With Death, Can There Be No Limitation Period for Sexual Assault?

I recently had reason to reconsider the question of whether, in Ontario, there is a two-year or no limitation period for sexual assault where one of the parties to the alleged assault has died.  I wanted to know if there had been further case law developments on this question since my 2016 blog on the topic, “Court Breaks New Ground for Sexual Assault Cases.” I was surprised to see that, ten years later, the question has yet to be answered in a clear and conclusive manner. There are lessons to be drawn from this state of affairs, which I offer at the end. 

The decision addressed in my 2016 blog was Fox v. Narine, 2016 ONSC 6499, which had just been released at the time. This case was based on a Rule 21 motion brought by the defendant to strike the claim by the estate of a deceased victim of sexual assault, where the claim had been started two years and two days after the victim’s death. The court declined to strike the claim and allowed the action to continue.  There is no reported decision that tells us what ultimately happened with this case. 

In permitting the action to proceed, the court in Fox v. Narine considered the interplay between Ontario’s Trustee Act and its Limitations Act. Section 38(3) of the Trustee Act requires a claim to be initiated by or brought against the estate of a deceased person within two years of the date of death. There is no flexibility with this timeline. It is a strict limitation period that runs from the date of death and is not subject to postponement by the principle of discoverability. 

On the other hand, the Limitations Act, via sub-sections 16(1) and (1.3), provides that there is no limitation period in respect of a proceeding based on sexual assault. This “no limitation period rule” overrides the Limitations Act’s ordinary two-year limitation period (section 4) as well as its 15-year ultimate limitation period (section 15), both of which could otherwise apply to bar claims. The court in Fox v. Narine concluded that the Trustee Act, as a general statute, must yield to the special one, being the Limitations Act, with its specific provision addressing actions based on sexual assault. Put simply, the “no limitation period rule” prevailed over the “two-year from death limitation period rule”.  

It must be remembered, however, that the ruling in Fox v. Narine was not a final determination of the legal question of whether the plaintiff estate had a viable claim. Rather, it addressed a pre-emptive preliminary motion under Rule 21.01, based on no evidence, the aim of which was to have the action dismissed for being brought out of time. The moving party in a Rule 21 motion must satisfy the court that it is “plain and obvious” the action cannot succeed. This is a high bar for a moving defendant to meet – understandably, because it deprives the plaintiff of the right to even pursue a claim - and conversely, a low bar for a responding plaintiff to overcome. The facts in Fox v. Narine were particularly sympathetic ones, and importantly, the court was not presented with the countervailing interest of an estate trustee (or executor) acting on behalf of a deceased alleged perpetrator. This is the scenario I want to consider next.  

In my experience, sexual assault claims involving deceased persons are almost always brought against, not on behalf of, the deceased person. This is because the alleged perpetrator of a sexual assault has died, and the living alleged survivor is seeking recourse against the deceased alleged perpetrator’s estate (and/or another party who may also bear responsibility, even though they themselves did not commit the assault). Fox v. Narine was an unusual case in that it involved an alleged victim of sexual assault who died, and whose estate would be foreclosed from having any recourse against the defendant if the motion to strike its claim was granted. 

An estate trustee is legally responsible for managing and winding up a deceased person’s estate. A lawsuit brought against the estate of a deceased individual must name the estate trustee as the defendant in their capacity as the estate’s representative. Provided they are served with timely notice, the estate trustee who finds themself in this unenviable situation must generally delay distributing the estate’s assets to beneficiaries until the litigation has been concluded through an out-of-court settlement or a final court decision. 

The strict two-year limitation period under the Trustee Act has traditionally brought certainty and finality for estate trustees. This is because it allows the estate trustee to disburse estate assets to beneficiaries where no action has been brought within two years from death, without fear of being held personally liable for improper distribution of the estate. Thereafter, the estate can be wound up. 

However, if there is truly a “no limitation period rule” for sexual assault in the case of death, one can envision a situation where an estate trustee has been put on notice of a possible claim before the two-year period from death has expired, but no lawsuit is actually brought by the end of that two-year period. What then does the estate trustee do?  Can they, with impunity, go ahead and disburse the estate to the beneficiaries to whom bequests were made under the deceased person’s Will, or, if there was no Will, under Ontario’s Succession Law Reform Act? One might assume yes, in the interests of certainty and finality, but Fox v. Narine casts doubt on this assumption. 

I have only been able to find one subsequent reported decision that considers the issue, and it highlights a potential problem with the court’s reasoning in Fox v. Narine, without actually deciding if the reasoning was flawed or insufficient. The decision was made in the case of Bankruptcy of Robert Simpson, Deceased, 2023 ONSC 4948, which involved an individual who was criminally convicted of multiple sexual offences against children. After he died, claims were brought against his estate within two years of his death. An assignment in bankruptcy on behalf of his estate was subsequently filed. 

The trustee in bankruptcy was concerned that individuals other than those who had already started litigation could still bring claims. Accordingly, the trustee in bankruptcy went to court to seek an order that would bring certainty to the amount of the estate’s potential liability, so the trustee could finally discharge their duties.  

The case was ultimately decided by having resort to the provisions of Canada’s Bankruptcy and Insolvency Act, which the court said provided a means for the trustee in bankruptcy to achieve the finality they were seeking.  

But in the process of reaching this determination, the court considered the fact that sexual assault claims in Ontario are not subject to any limitation period. It considered Fox v. Narine, but also the trustee in bankruptcy’s argument that I believe has merit, which is that Fox v. Narine failed to consider the effect of section 19 of the Limitations Act.  Section 19 expressly incorporates the Trustee Act’s strict two -year limitation period by stating that section 38(3) of the Trustee Act (providing that an action “shall not be brought after the expiration of two years from death”) remains in effect. The court in Bankruptcy of Robert Simpson, Deceased, noted this argument but did not try to resolve it, as it was able to dispose of the motion on other grounds. 

The difficulty I see with saying there is no limitation period in a sexual assault case involving a deceased alleged perpetrator is the potentially unsatisfactory outcome of an estate trustee being unable to wind up an estate in perpetuity where they were put on notice of a potential claim prior to two years from death, but no claim is actually brought before the two-year mark. Surely, it was not the Legislature’s intention by enacting a “no limitation period” rule for sexual assault to force estates to remain open indefinitely.  

To my mind, this is an unresolved question that needs a clear answer. The answer could come from a court that has received fulsome submissions, including on whether there is a mechanism under Ontario’s statutory regime governing estates and their administration, as there was found to be under the federal Bankruptcy and Insolvency Act in the case of Bankruptcy of Robert Simpson, Deceased.  One contender for such a mechanism is section 45 of the Estates Act, R.S.O. 1990, c. E.21, which permits an estate trustee to contest an unliquidated claim or demand, thereby triggering an obligation on the claimant to apply to a judge for directions to proceed with their claim or demand. If the claimant fails to do so, they are deemed to have abandoned their claim or demand and are forever barred from pursuing it. Alternatively, the Legislature should enact clarifying legislation, preferably via an amendment to Ontario’s Limitations Act, since this is where it is most likely to attract the attention of civil litigators who are frequently dealing with such claims.  

Take-aways 

In the meantime, I maintain that the best practice is for a lawyer acting for an alleged survivor of sexual assault (or of other enumerated misconduct similarly subject to no limitation period under Ontario’s Limitations Act) to commence a claim against the deceased alleged perpetrator’s estate before the expiry of two years from death. This is the most prudent course and avoids the potential dire consequence of having the claim thrown out on the basis that it is time-barred. 

However, if there are compelling reasons why a claim could not be started within two years from death, then one might wish to test the theory that there is no limitation period at all that applies in the circumstances.  But before one does this, one should be sure to consider the potential effect of section 19 of the Limitations Act as it relates to section 38(3) of the Trustee Act, and also consider the public policy implications for estate trustees if estates cannot be wound up in a timely fashion because of the potential for suits to be brought long after two years have passed. 

Whichever side of the issue one is on, my advice is to obtain the input of an estate lawyer who can bring to bear their knowledge of the often-complicated issues that arise in estate administration and litigation matters. This is not an area to be dabbled in. The potential consequences for plaintiffs and for the estate trustee are too great.