McConnell v. Huxtable,

• Jurisdiction: Ontario
• Judge: Laskin, Rosenberg and Goudge, JJ.A.
• Neutral Citation: 2014 ONCA 86
• Citation: (2014), 315 O.A.C. 3 (CA),2014 ONCA 86,118 OR (3d) 561,(2014), 315 OAC 3 (CA),118 O.R. (3d) 561,315 OAC 3,315 O.A.C. 3
• Date: 16 September 2013
• Court: Court of Appeal (Ontario)

McConnell v. Huxtable (2014), 315 O.A.C. 3 (CA)

MLB headnote and full text

Temp. Cite: [2014] O.A.C. TBEd. FE.002

Judith June Barry McConnell (applicant/respondent) v. Brian Wesley Scott Huxtable (respondent/appellant)

(C56761; 2014 ONCA 86)

Indexed As: McConnell v. Huxtable

Ontario Court of Appeal

Laskin, Rosenberg and Goudge, JJ.A.

January 31, 2014.

Summary:

McConnell and Huxtable ended their 14 year relationship in June 2007. In February 2012, McConnell brought an action for unjust enrichment seeking a remedial constructive trust in a property owned by Huxtable. Huxtable brought a motion for summary judgment on the ground that the action was barred by a limitation period. The issues were (1) whether McConnell's claim was governed by the 10 year limitation period in s. 4 of the Real Property Limitations Act or the two year limitation period in s. 4 of the Limitations Act, 2002, and (2) whether there was a gap in the limitations legislation such that there was no applicable statutory limitation period for a constructive trust claim in a family law case, leaving scope for the court to devise a time limit using its equitable jurisdiction.

The Ontario Superior Court, in a decision reported at [2013] O.T.C. Uned. 948, dismissed the motion. The court found that McConnell's claim was an application to recover land governed by the 10 year limitation period in s. 4 of the Real Property Limitations Act. If this conclusion was incorrect, then McConnell's claim was one to which no statutory limitation period applied. The husband appealed.

The Ontario Court of Appeal dismissed the appeal. The Real Property Limitations Act applied.

Family Law - Topic 1025

Common law, same-sex or adult interdependent relationships - Limitation period - [See Limitation of Actions - Topic 16 and Limitation of Actions - Topic 4141 ].

Limitation of Actions - Topic 15

General principles - Discoverability rule - Application of - [See Limitation of Actions - Topic 16 ].

Limitation of Actions - Topic 16

General principles - Applicability to equitable relief - McConnell and Huxtable ended their 14 year relationship in 2007 - In 2012, McConnell brought an action for unjust enrichment seeking a remedial constructive trust in a house owned by Huxtable - Huxtable brought a motion for summary judgment on the ground that the action was barred by the two year limitation period in s. 4 of the Limitations Act, 2002 (Act) - The motion judge dismissed the motion, finding that McConnell's claim was an application to recover land - Accordingly, it was governed by the 10 year limitation period in s. 4 of the Real Property Limitations Act - If this conclusion was incorrect, then the motion judge found that there was a gap in the limitations legislation such that there was no applicable statutory limitation period for a constructive trust claim in a family law case, leaving scope for the court to devise a time limit using its equitable jurisdiction - Huxtable appealed - The Ontario Court of Appeal dismissed the appeal but disagreed with the motion judge's conclusion respecting a legislative gap - The Act applied to equitable claims unless they were specifically excluded - An equitable claim based on unjust enrichment fit within the broad definition of "claim" in s. 1 of the Act as a "claim to remedy an injury, loss or damage that occurred as a result of an act or omission" - There was no statutory gap - The court disagreed with the motion judge's finding that a remedial constructive trust claim did not require any act or omission by the person against whom the claim was brought - The relevant act of the defendant was simply the act of keeping the enrichment (or the omission to pay it back) once the elements of the unjust enrichment had crystallized - It might sometimes be difficult to apply the s. 5 definition of discoverability to equitable claims, but that did not mean that the Act did not apply - It might mean that the claim had not been discovered, such that the ultimate limitation period in s. 15 applied - See paragraphs 43 to 54.

Limitation of Actions - Topic 4002

Recovery of land - What constitutes recovery of land - [See Limitation of Actions - Topic 4141 ].

Limitation of Actions - Topic 4141

Recovery of land - Application of limitation period - General - McConnell and Huxtable ended their 14 year relationship in 2007 - In 2012, McConnell brought an action for unjust enrichment seeking a remedial constructive trust in a house owned by Huxtable - Huxtable moved for summary judgment on the ground that the action was barred by the two year limitation period in s. 4 of the Limitations Act, 2002 - The motion judge dismissed the motion, finding that McConnell's claim was an application to recover land - Accordingly, it was governed by the 10 year limitation period in s. 4 of the Real Property Limitations Act (RPLA) - The Ontario Court of Appeal dismissed Huxtable's appeal - "Recover" meant to gain or obtain land through a court order or judgment - The plain meaning of "recover any land" in s. 4 of the RPLA included seeking an equitable interest in land through the imposition of a constructive trust - There was no reason to impose an artificial and narrow interpretation on the section's very broad language when it could fairly bear the interpretation of applying to recovery of real property through a constructive trust - A 10 year limitation period for constructive trust claims seeking ownership of land was not inconsistent with the rest of the RPLA or the general scheme of the Limitations Act, 2002, which expressly deferred to the RPLA - The issue of which Act applied would be the same whether the equitable claim for an interest in land arose out of a domestic relationship or a purely business transaction - The fact that the court might provide McConnell with the alternative remedy of a monetary award did not take away from the fact that her claim was for a share of property - See paragraphs 13 to 42.

Limitation of Actions - Topic 6006

Trusts - General - Constructive trusts - [See Limitation of Actions - Topic 16 and Limitation of Actions - Topic 4141 ].

Words and Phrases

Recover - The Ontario Court of Appeal discussed the meaning of the word "recover" as that word was found in s. 4 of the Real Property Limitations Act, R.S.O. 1990, c. L-15 - See paragraphs 16 to 20.

Cases Noticed:

Rizzo v. Rizzo Shoes Ltd. (Bankrupt), Re, [1998] 1 S.C.R. 27; 221 N.R. 241; 106 O.A.C. 1, refd to. [para. 8].

Hartman Estate, Re (2006), 205 O.A.C. 369; 263 D.L.R.(4th) 640 (C.A.), appld. [para. 16].

Becker v. Pettkus, [1980] 2 S.C.R. 834; 34 N.R. 384, refd to. [para. 29].

Kerr v. Baranow, [2011] 1 S.C.R. 269; 411 N.R. 200; 300 B.C.A.C. 1; 509 W.A.C. 1; 274 O.A.C. 1; 2011 SCC 10, refd to. [para. 29].

Peter v. Beblow, [1993] 1 S.C.R. 980; 150 N.R. 1; 23 B.C.A.C. 81; 39 W.A.C. 81, refd to. [para. 33].

Equitable Trust Co. v. 2062277 Ontario Inc. et al. (2012), 289 O.A.C. 345; 109 O.R.(3d) 561; 2012 ONCA 235, refd to. [para. 41].

Bouchan et al. v. Slipacoff et al., [2010] O.T.C. Uned. 2693; 2010 ONSC 2693, refd to. [para. 49].

Schneider v. State Farm Mutual Automobile Insurance Co. et al., [2010] O.T.C. Uned. 4734; 2010 ONSC 4734, refd to. [para. 49].

Placzek v. Green (2009), 245 O.A.C. 220; 307 D.L.R.(4th) 441; 2009 ONCA 83, refd to. [para. 49].

Wilson v. Fotsch (2010), 286 B.C.A.C. 276; 484 W.A.C. 276; 2010 BCCA 226, refd to. [para. 54].

Statutes Noticed:

Limitations Act, S.O. 2002, c. 24, sect. 1 [para. 50].

Real Property Limitations Act, R.S.O. 1990, c. L-15, sect. 4 [para. 7].

Authors and Works Noticed:

Maddaugh, Peter W., and McCamus, John D., The Law of Restitution (2013 Looseleaf Update, Release 11), p. 3:500.30 [para. 54].

Ontario, Limitations Act Consultation Group, Recommendations for a New Limitations Act: Report of the Limitations Act Consultation Group (1991), generally [para. 25].

Counsel:

Bryan R.G. Smith and Lindsey Love-Forester, for the appellant;

Bill Rogers, for the respondent.

This appeal was heard on September 16, 2013, before Laskin, Rosenberg and Goudge, JJ.A., of the Ontario Court of Appeal. Rosenberg, J.A., delivered the following judgment for the court on January 31, 2014.