Case information

Limitation of actions — Whether cause of action concealed — Whether applicants’ proceeding statute-barred — The Limitations Act, S.S. 2004, c. L-16.1, s. 17.<br>

Case summaries are prepared by the Office of the Registrar of the Supreme Court of Canada (Law Branch). Please note that summaries are not provided to the Judges of the Court. They are placed on the Court file and website for information purposes only.

David and Gloria Hunter were a married couple who accumulated a significant amount of farmland in Saskatchewan (the “Subject Lands”). They had six children: Bruce, Lorne, Lynda, Brian, Murry, and Velvet. Prior to David’s death, he transferred one portion of the Subject Lands to himself, Bruce, and Lorne as joint tenants, a second portion to himself, Bruce, Lorne, and Gloria as joint tenants, and a third portion to Bruce and Lorne as joint tenants. With David, Gloria, and Lorne’s successive deaths, Bruce thus came to acquire the entire title to the Subject Lands. Donald Ernst and David Clark are the executors of Lorne’s estate. Mr. Ernst is a lawyer in Manitoba.

On April 1, 2008, Bruce transferred title to the Subject Lands to himself and Lorne’s surviving spouse, Diane Giesbrecht, as tenants in common. On the same date, Mr. Clark wrote to Mr. Ernst, seeking legal advice about the distribution of the Subject Lands. On May 12, Mr. Ernst replied, offering his opinion that, generally, the Subject Lands had passed to their current owners in accordance with their previous owners’ wishes, that no further transfers were required, and that any transfers following David and Gloria’s deaths occurred in the 1990s, making any claim arising from those transfers statute-barred. Mr. Ernst’s reply was addressed to Mr. Clark and Bruce Hunter. Mr. Clark forwarded Mr. Ernst’s reply to Lynda, Brian, Murry, and Velvet.

The applicants maintain that David’s intention was for each of his children to receive a specific amount of land, allege that Bruce held the Subject Lands in a trust upon those terms, and that the 2008 transfer was a breach of that trust. They commenced an originating application to vindicate this theory on February 22, 2018. The respondents applied to strike the application as statute-barred.

The application judge struck the application. The cause of action in relation to the alleged trust arose in April 2008; the limitation period expired two years later, and the application was therefore out of time. She held that none of the respondents had fraudulently concealed material facts in a way that would toll the limitation period.

The Court of Appeal held that it was an error to apply the equitable doctrine of fraudulent concealment rather than the statutory test found at s. 17 of the Act, but dismissed the appeal as the applicants had not satisfied that test either.