In Levesque v Crampton Estate, the Court of Appeal for Ontario held that the two year limitation period in the Trustee Act applies to crossclaims, overturning the decision at first instance. The Court of Appeal concluded that the ability to crossclaim against an estate only arises through the Trustee Act and the limitation period in the Trustee Act therefore applies to crossclaims when a co-defendant dies.

The Court also noted that the application of the Trustee Act does not mean that the limitation period under section 18(1) of the Limitations Act, 2002 (relating to crossclaims) does not apply at all; the shorter of the two limitation periods will rule. That section holds that the limitation period for crossclaims is two years from the date the defendant is served with the claim. Therefore, if a claim is served prior to the death of one of the defendants, the limitation period will expire two years after service. The death of the co-defendant does not reset the limitation period.

For those who practice in this area, the takeaways are:

  • The limitation period for a crossclaim against an estate is two years from the date of death even if that period has expired prior to service of the plaintiff's claim
  • If the claim is served prior to the death, then the limitation period for the crossclaim is two years from the date of service

There are some exceptions to this rule, the most significant being if the deceased fraudulently concealed the tort.