In Thiessen v. Thiessen Estate, the Court allowed the estate trustees’ appeal and held that the respondent’s claim to a 50% interest in his late wife’s home was statute-barred under the two-year limitation period in s. 38 of the Trustee Act, rather than the ten-year limitation period in s. 4 of the Real Property Limitations Act. The Court confirmed that, absent a specific legislative exception, the Trustee Act two-year limitation period governs all claims against estates arising from wrongs for which the deceased was liable, even where the claims involve real property, subject to very limited exceptions.

In Lecuyer v. Essex (Town), the appellant owned two properties separated by a plot of land she believed to be a highway owned by the Town pursuant to the Municipal Act, 2001. When the appellant attempted to buy the land, she learned that it was owned by a golf course. The appellant subsequently brought an application to amend the Land Titles Register to confirm the Town’s ownership, which was dismissed. The Court allowed the appeal, finding that the disputed property was a highway owned by the Town, since that land had been designated a public highway on the registered plan of subdivision. The fact that it was not being used as a highway did not mean the municipality did not own it.

Wishing everyone an enjoyable weekend.

John Polyzogopoulos
Blaney McMurtry LLP
416.593.2953 Email

Table of Contents

Civil Decisions

Thiessen v. Thiessen Estate, 2026 ONCA 730

Keywords: Wills and Estates, Express Trusts, Family Law, Real Property, Marriage Contracts, Unjust Enrichment, Remedies, Constructive Trust, Civil Procedure, Limitation Periods, Trustee Act, R.S.O. 1990, c. T.23, s. 38, Real Property Limitations Act, R.S.O. 1990, c. L.15, ss. 4, 25, 26, 27 and 42, Succession Law Reform Act, R.S.O. 1990, c. S.26, Statute of Frauds, R.S.O. 1990, c. S.19, s. 9, Estates Administration Act, R.S.O. 1990 c. E.22, ss. 9(1), Rules of Civil Procedure, Rule 21.01, Operation Dismantle Inc. v. The Queen, 1 S.C.R. 441, Waschkowski v. Hopkinson Estate (2000), 47 O.R. (3d) 370 (C.A.), Bank of Montreal v. Iskenderov, 2023 ONCA 528, Ingram v. Kulynich Estate, 2024 ONCA 678, McConnell v. Huxtable, 2014 ONCA 86, Gomes v. Da Silva, 2024 ONCA 792, Housen v. Nikolaisen, 2002 SCC 33, Das v. George Weston Ltd., 2018 ONCA 1053, Smallman v. Moore, [1948] S.C.R. 295, Roth v. Weston Estate, 36 O.R. (3d) 513 (C.A.), Ryan v. Moore, 2005 SCC 38, Appleyard v. Zealand, 2022 ONCA 570, Omiciuolo v. Pasco, 2008 ONCA 241, Waterstone Properties Corporation v. Caledon (Town), 2017 ONCA 623, O’Neill Estate v. Cahill, 2026 ONSC 1176, Sewerynek et al. v. Pawlina et al. (January 7, 2026), Brampton, CV-22-00001441 (Ont. S.C.), leave to appeal to Ont. C.A. requested, M57392; Sparovec v. Smith et al., 2025 ONSC 6530, McDougald Estate v. Gooderham (2005), 255 D.L.R. (4th) 435 (Ont. C.A.), Mitchell v. Gard (1863), 3 Sw. & Tr. 275, Spiers v. English, [1907] P. 122 (Eng. P.D.A.), Di Nunzio v. Di Nunzio, 2022 ONCA 889

Lecuyer v. Essex (Town), 2026 ONCA 729

Keywords: Real Property, Plans of Subdivision, Doctrine of Dedication, Doctrine of Acceptance, Municipal Law, Highways, Municipal Act, 2001, S.O. 2001, c. 25, Public Transportation and Highway Improvement Act, R.S.O. 1990, c. P.50, Surveys Act, 1958, S.O. 1958, c. 107, Oro-Medonte (Township) v. Warkentin, 2013 ONSC 1416, Scott v. City of North Bay (1997), 18 O.R. (2d) 365 (C.A.), Boland v. Baker and The Township of North York, [1953] O.R. 239 (H.C.), aff’d [1953] 4 D.L.R. 442 (Ont. C.A.), Re Westwood Addition Hamilton, [1945] O.R. 257 (C.A.), Re Plan 69, Dunneville, [1950] O.R. 350 (C.A.)

Short Civil Decisions

Ashkan v. Yeganeh, 2026 ONCA 731

Keywords: Family Law, Child Support, Property

Caroti v. Vuletic, 2026 ONCA 732

Keywords: Breach of Contract, Torts, Fraud, Conspiracy, Breach of Fiduciary Duty, Misappropriation, Damages, Civil Procedure, Orders, Equitable Remedies, Constructive Trust, Resulting Trust, Costs, Partial Indemnity

Rahman v. Peel Standard Condominium Corporation No. 779, 2026 ONCA 734

Keywords: Civil Procedure, Appeals, Reconsideration, Costs, Rules of Civil Procedure, r 2.1

Royal Bank of Canada v. 1512632 Ontario Inc. (Cheema & Sons Transport), 2026 ONCA 735

Keywords: Bankruptcy and Insolvency, Receiverships, Civil Procedure, Appeals, Leave to Appeal, Costs

Goodfellow v. Sioux Lookout (Municipality), 2026 ONCA 737

Keywords: Civil Procedure, Appeals, Dismissal for Delay, Reasonable Apprehension of Bias, 1196158 Ontario Inc. v. 6274013 Canada Limited, 2012 ONCA 544

CIVIL DECISIONS

Thiessen v. Thiessen Estate, 2026 ONCA 730

[Thorburn, Madsen and Rahman JJ.A.]

Counsel:

E. M. Katzman, S. E. Abbot and B. Mackenzie, for the appellants

I. Hull and D. L. Y. So, agents for the respondent

Keywords: Wills and Estates, Express Trusts, Family Law, Real Property, Marriage Contracts, Unjust Enrichment, Remedies, Constructive Trust, Civil Procedure, Limitation Periods, Trustee Act, R.S.O. 1990, c. T.23, s. 38, Real Property Limitations Act, R.S.O. 1990, c. L.15, ss. 4, 25, 26, 27 and 42, Succession Law Reform Act, R.S.O. 1990, c. S.26, Statute of Frauds, R.S.O. 1990, c. S.19, s. 9, Estates Administration Act, R.S.O. 1990 c. E.22, ss. 9(1), Rules of Civil Procedure, Rule 21.01, Operation Dismantle Inc. v. The Queen, 1 S.C.R. 441, Waschkowski v. Hopkinson Estate (2000), 47 O.R. (3d) 370 (C.A.), Bank of Montreal v. Iskenderov, 2023 ONCA 528, Ingram v. Kulynich Estate, 2024 ONCA 678, McConnell v. Huxtable, 2014 ONCA 86, Gomes v. Da Silva, 2024 ONCA 792, Housen v. Nikolaisen, 2002 SCC 33, Das v. George Weston Ltd., 2018 ONCA 1053, Smallman v. Moore, [1948] S.C.R. 295, Roth v. Weston Estate, 36 O.R. (3d) 513 (C.A.), Ryan v. Moore, 2005 SCC 38, Appleyard v. Zealand, 2022 ONCA 570, Omiciuolo v. Pasco, 2008 ONCA 241, Waterstone Properties Corporation v. Caledon (Town), 2017 ONCA 623, O’Neill Estate v. Cahill, 2026 ONSC 1176, Sewerynek et al. v. Pawlina et al. (January 7, 2026), Brampton, CV-22-00001441 (Ont. S.C.), leave to appeal to Ont. C.A. requested, M57392; Sparovec v. Smith et al., 2025 ONSC 6530, McDougald Estate v. Gooderham (2005), 255 D.L.R. (4th) 435 (Ont. C.A.), Mitchell v. Gard (1863), 3 Sw. & Tr. 275, Spiers v. English, [1907] P. 122 (Eng. P.D.A.), Di Nunzio v. Di Nunzio, 2022 ONCA 889

facts:

The respondent and H.T. were married. Before they married, each owned their own home. They agreed that the property they purchased would be owned as tenants in common, funded equally by the sale of their respective homes. They formalized this plan in a marriage contract signed on March 16, 2015.  The parties were unable to find a suitable new home. They agreed to cohabit in H.T.’s home at Talbot Road. In 2016, the respondent sold his house. Then he deposited $223,000 into his joint account with H.T. and moved into her home. That same day, H.T. transferred $100,000, half of the estimated value of the residence, from the couple’s joint account to her three children. The respondent claims that this cash payment secured him a 50% interest in the residence. The couple never amended their Marriage Contract to reflect any change in the contemplated third residence, nor did they modify title to reflect any joint ownership. On January 26, 2022, H.T. died. The respondent was given a conditional life interest in the Talbot Road property in H.T.’s will.

More than two years after her death, the respondent brought a claim against the estate of H.T. He sought a 50% interest in her home on Talbot Road. While the couple had lived there together, title to the home was registered in H.T.’s name only. H.T.’s estate brought a motion under r. 21.01(1) of the Rules of Civil Procedure seeking an order that the respondent’s claim was statute-barred. The question before the motion judge was whether, on the facts pleaded and considering the applicable limitations periods, the Claim should be allowed to proceed.

The motion judge held that this case was not governed by s. 38(2) of the Trustee Act, which required that all claims against an estate in respect of the wrongs or liability of the deceased must be commenced within two years of their death. In the motion judge’s view, the action was instead governed by s. 4 of the Real Property Limitations Act (“RPLA”), which allowed an “action to recover any land” to be brought within ten years of the accrual of the claimant’s right to the land. The motion judge held that the respondent’s claim for damages was a “monetary award as a remedy under the rubric of a trust claim” and was therefore dismissed as statute-barred pursuant to the Trustee Act. However, he determined that the respondent’s constructive trust claim could proceed to be determined on its merits. The estate trustees appealed the order.

issues:

1. Did the motion judge err in applying the ten-year RPLA limitation period rather than the two-year limitation period the Trustee Act?

a. Whether it was the Deceased or the executors who were liable for the “wrong” done to the claimant?
b. Does the Trustee Act apply?
c. Does the RPLA assist the respondent where both the Trustee Act and the RPLA contain applicable provisions?

holding:

Appeal allowed.

reasoning:

1. Yes.

a. The Deceased, not the Executors, was Liable for a Wrong to the Claimant

The respondent submitted that the motion judge was correct in deciding that the ten-year limitation period under the RPLA applied because it was the executor’s wrongdoing, not the deceased, that necessitated the claim, removing the claim from the scope of the Trustee Act. The Court disagreed.

The Court held that section 38(2) of the Trustee Act provided that for the Act to apply, the deceased must be liable for a wrong to the claimant or their property. A “wrong”, set out in s. 38(2), refers to all actionable wrongs for which the deceased may be liable. This would include the claims asserted by the respondent.

The Court noted that there was no suggestion that H.T. intentionally “wronged” the respondent. However, any “wrong”, whether in contract or equity, arose upon the deceased’s failure to register the respondent’s interest in her home on title. To the extent that there was a wrong, it could not be recast as having been committed by the executors. On the facts pleaded by the respondent, his right to a 50% ownership interest in the home crystallized not upon H.T.’s death, but when the couple made the amendment to their Marriage Contract, or “adjusted plan”, and he did not receive it. Therefore, the claim originated in an alleged wrong committed by the Deceased. The Court held that the “wrong”, including both alleged breach of contract and resulting unjust enrichment, was encompassed by s. 38(2) of the Trustee Act.

b. The Trustee Act Applied

The only claims against an estate that are not subject to the two-year limitation period under s. 38 of the Trustee Act are expressly set out in the RPLA: (i) “claims to recover land or rents in respect of express trusts of land or rents vested in a trustee”; (ii) the dower rights of a spouse against her spouse’s estate; and (iii) an action for arrears of dower (or resulting damages): RPLA, ss. 25, 26, 27 and 42. The respondent argued that, reading the Marriage Contract and the parties’ wills together, the express trust exception may apply. However, he admitted that the parties’ agreement to substitute the property into their Marriage Contract was oral, unrecorded in either H.T.’s will or in the Marriage Contract. An express trust agreement must be in writing under the Statute of Frauds. Therefore, the Court was satisfied that an express trust did not exist.

The Court held that the possibility of an equitable trust did not assist the respondent either. First, equitable trust claims are not excepted from the Trustee Act  (Ingram). Second, whether s. 38 of the Trustee Act applies depends on the nature of the injury, not the way the claim is framed or the remedy sought: Smallman v. Moore. As stated in the respondent’s factum, he sought to “assert his right to the property based on a contractual agreement and subsequent actions of both parties.”

While the respondent also framed his claim, in the alternative, as arising through a constructive trust, he argued that the injury was that he did not receive his half-interest in the Property in accordance with the “adjusted plan” with H.T. This would seem to be a financial loss that arose from a contractual right but even if it were not, equitable trust claims were subject to the two-year limitation period. Therefore, none of the exceptions to s. 38 applied in this case. Accordingly, the claim was statute-barred by the Trustee Act.

c. The RPLA Did Not Assist the Respondent

Since the respondent’s claim was covered by the Trustee Act, if it was also covered by the RPLA, the Court had to decide which of these conflicting limitation periods applied. The Court held that the motion judge erred in his finding that the respondent’s claim was “an action to recover any land” within the meaning of s. 4 of the RPLA, such that the Trustee Act did not apply.

The motion judge had identified the correct analytical approach for determining which limitation period applied by considering (i) the historical approach to the applicable limitation periods, including legislative purposes, (ii) the judicial approach to interpreting limitation periods, (iii) the nature of the relief sought, and (iv) the language of the statutes (Iskenderov; Ingram). The Court explained the purpose behind the enactment of s. 38 of the Trustee Act was to encourage the timely and final disposition of estates. The two-year limitation period in the Trustee Act reflected the legislature’s intention to foster certainty and finality, avoid indefinite fiscal vulnerability for trustees, and assist trustees in administering estates expeditiously. Section 9(1) of the Estates Administration Act reinforced this objecting, providing that real property not sold, conveyed or distributed by an estate trustee within three years of a person’s death automatically vests in the beneficiaries entitled to it (Ingram).

The Court noted that Ingram involved similar facts and identical competing limitation periods. In Ingram, the Court held that the inapplicability of the discoverability principle and the clear two-year limitation period under the Trustee Act demonstrated the legislators’ intent that actions against estates arising from actions of the deceased be subject to a shorter limitation period. The Court in Ingram held that “the underlying policy considerations for a two-year limitation period apply to all estate claims captured under s. 38(2) of the Trustee Act”. The sole exceptions were those specifically contemplated in legislation.

In considering the legislative history of the Trustee Act and the RPLA, the Court found that specific provisions governing estate claims in the Trustee Act should override the more general provisions concerning all claims against property in the RPLA. Finding otherwise would ignore the clear legislative intent underlying the Trustee Act.  As noted by the respondent, it was true that in Ingram, the Court found that the respondent’s equitable trust claim was not “an action to recover any land” within the meaning of s. 4 of the RPLA, because the respondent’s claim was “in relation to the estate assets and not in relation to [the deceased’s] real property”. This distinction differentiated this case from Ingram. However, the Court’s analysis of Iskenderov in Ingram specifically considered “the circumstance of an apparent conflict between the specific provisions of s. 38 of the Trustee Act and the general provisions of s. 4 of the RPLA”. Absent a specific legislative exception, the limitation period in s. 38 of the Trustee Act governs all claims made against estates arising from wrongs for which the deceased was liable, even where the RPLA may also apply. As a result, the Trustee Act, and not the RPLA, applied here to bar the respondent’s claim.

The cases brought forward by the respondent were distinguishable. The respondent relied on the Court’s decision in Waterstone Properties Corporation v. Caledon (Town) in support of his claim that s. 4 of the RPLA applied. In that case, the Court held that:

The words “action to recover any land” in s. 4 of the RPLA are not limited to claims for possession of land or to regain something a plaintiff has lost. Rather, “to recover any land” means simply “to obtain any land by judgment of the Court” and thus these words also encompass claims for a declaration in respect of land and claims to the ownership of land advanced resulting or constructive trust.

Accordingly, claims based on unjust enrichment in which a party seeks a remedial constructive trust qualify as “actions to recover land” within the meaning of s. 4 of the RPLA. However, Waterstone, like McConnell and Gomes (which the respondent also cited, and which were relied on by the motion judge), did not involve claims against estates that were also covered by the Trustee Act. While the RPLA applied in those cases, the Trustee Act did not. As a result, the conflict between the two was not considered. This case was different. The question here was whether the RPLA still applied when the Trustee Act limitation period also applied. The Court confirmed that the RPLA limitation period was trumped by the Trustee Act limitation period in this case. Other courts considering Ingram have found the same.  Accordingly, the limitation period in s. 38(3) of the Trustee Act applies to “all actionable wrongs that wrong a claimant and for which the deceased may be found liable”. The limitation period for such claims against estates, even claims involving land, is two years after the death of a deceased. Where both the Trustee Act and the RPLA contain applicable provisions, the specificity and legislative history of the Trustee Act dictate that its two-year limitation period applies.

Lecuyer v. Essex (Town), 2026 ONCA 729

[Huscroft, George and Wilson JJ.A.]

Counsel:

M. F. Sirdevan, for the appellant

P. K. Hrastovec, for the respondent

Keywords: Real Property, Plans of Subdivision, Doctrine of Dedication, Doctrine of Acceptance, Municipal Law, Highways, Municipal Act, 2001, S.O. 2001, c. 25, Public Transportation and Highway Improvement Act, R.S.O. 1990, c. P.50, Surveys Act, 1958, S.O. 1958, c. 107, Oro-Medonte (Township) v. Warkentin, 2013 ONSC 1416, Scott v. City of North Bay (1997), 18 O.R. (2d) 365 (C.A.), Boland v. Baker and The Township of North York, [1953] O.R. 239 (H.C.), aff’d [1953] 4 D.L.R. 442 (Ont. C.A.), Re Westwood Addition Hamilton, [1945] O.R. 257 (C.A.), Re Plan 69, Dunneville, [1950] O.R. 350 (C.A.)

facts:

The appellant owned two properties in the Town of Essex (the “Town”) separated by a plot of land (the “disputed property”). The appellant sought to purchase the disputed property from the Town but learned that the respondent numbered company, a golf course, held title. The appellant contended that the disputed property was a “highway” pursuant to s. 26 of the Municipal Act, 2001, S.O. 2001, c. 25 (the “Municipal Act, 2001”), and as a result, was owned by the Town pursuant to s. 30 of the Municipal Act, 2001.

The appellant brought an application to amend the Land Titles Register to confirm the Town’s ownership of the disputed property. The Town did not ultimately support the application and did not seek ownership of the disputed property. The application judge dismissed the application, concluding that the disputed property was not a “highway” within the meaning of s. 26, in essence because it was never used as a highway.

issues:

(1) Is the disputed property a highway?

(2) Does the Town own the disputed property?

holding:

Appeal allowed.

reasoning:

1. Yes.

Paragraph 5 of s. 26 of the Municipal Act states that “all road allowances, highways, streets and lanes shown on a registered plan of subdivision” are highways unless they have been closed. The Court found that application judge erred by treating the common law doctrine of dedication and acceptance as a basis for departing from the clear meaning of s. 26.

Relying on Boland v. Baker and The Township of North York and Re Plan 69, Dunneville, the Court held that the operation of this section did not depend on whether the municipality had assumed the road allowances, streets or lanes for public use. Rather, the allowance became a public highway when the plan of subdivision became binding on the owner. Accordingly, in this case, as the disputed property was a road allowance, street or lane shown on a registered plan of subdivision, the Court found that there was no other statutory requirement in dispute, and the disputed property was therefore a “highway” within the meaning of the section.

2. Yes.

Section 30 of the Municipal Act, 2001 vested ownership of the disputed property in the Town. While that ownership was “subject to … any interest in the land held by any other person” the Court found that the respondent golf course had not established that its presence on title was an “interest” to which the municipality’s ownership was subject, as the parcel register described the disputed property as “subject to the interest of the municipality” and the respondent did not know how its predecessors came to be on the title.

SHORT CIVIL DECISIONS

Ashkan v. Yeganeh, 2026 ONCA 731

[Paciocco, Sossin and Madsen JJ.A.]

Counsel:

V.A., acting in person

A. Mazinani, for the respondent

Keywords: Family Law, Child Support, Property

Caroti v. Vuletic, 2026 ONCA 732

[Roberts, Trotter and Dawe JJ.A.]

Counsel:

D.M. Cunningham, for the respondents/appellants, P.P, T.L, F.T, and 958041 Ontario Limited

A.J. Esterbauer and A. March, for the appellants M. B, F.D, J.B, Mr R.B, Mrs R.B, R.S and J. F

A. Honickman and S. Lau, for the appellants A.G and K.G

C. Abela, for the respondents A.C, J.C, I.G, M.G, N.K, B.M, B.N, M. P-M, W.J, M.S

A.J. MacDonald, for the respondent A.B

Keywords: Breach of Contract, Torts, Fraud, Conspiracy, Breach of Fiduciary Duty, Misappropriation, Damages, Civil Procedure, Orders, Equitable Remedies, Constructive Trust, Resulting Trust, Costs, Partial Indemnity

Rahman v. Peel Standard Condominium Corporation No. 779, 2026 ONCA 734

[Roberts, Monahan and Wilson JJ.A.]

Counsel:

A.R., acting in person

R. Love, for the respondent/responding party, Peel Standard Condominium Corporation No. 779

Keywords: Civil Procedure, Appeals, Reconsideration, Costs, Rules of Civil Procedure, r 2.1

Royal Bank of Canada v. 1512632 Ontario Inc. (Cheema & Sons Transport), 2026 ONCA 735

[Osborne J.A. (Motion Judge)]

Counsel:

K. Singh, for the appellants/debtors

M. Lici, for Grant Thornton Limited in its capacity as Receiver

L. Raffaghello, for Gateway Landscaping Group (2005) Inc. and 8412-8424 Goreway Drive Holdings Inc., the Purchaser

P. Baxi, for S.C., Second Mortgagee

Keywords: Bankruptcy and Insolvency, Receiverships, Civil Procedure, Appeals, Leave to Appeal, Costs

Goodfellow v. Sioux Lookout (Municipality), 2026 ONCA 737

[Huscroft, Dawe and Brownstone JJ.A.]

Counsel:

D.W.G., acting in person

E. Prpic, for the respondent The Corporation of the Municipality of Sioux Lookout

K. Cohen, for the respondent Sioux Lookout Hydro

A. Fidler-Wener, for the respondent Bell Canada

Keywords: Civil Procedure, Appeals, Dismissal for Delay, Reasonable Apprehension of Bias, 1196158 Ontario Inc. v. 6274013 Canada Limited, 2012 ONCA 544