Monaco v. Rate, 2010 ONSC 2349

• Judge: Greer, J.
• Court: Superior Court of Justice of Ontario (Canada)
• Case Date: February 24, 2010
• Jurisdiction: Ontario
• Citations: 2010 ONSC 2349;(2010), 263 O.A.C. 121 (DC)

Monaco v. Rate (2010), 263 O.A.C. 121 (DC)

MLB headnote and full text

Temp. Cite: [2010] O.A.C. TBEd. MY.053

Benito Vittorio Monaco (plaintiff/appellant) v. Carol Ann Rate (defendant/respondent on appeal)

(537/09; 08-CV-350262PD3; 2010 ONSC 2349)

Indexed As: Monaco v. Rate

Court of Ontario

Superior Court of Justice

Divisional Court

Greer, J.

April 23, 2010.

Summary:

The plaintiff loaned his son $85,000 for the purchase of a house. They signed a mortgage that was not registered. On June 1, 2007, his son died intestate. After his son died, the plaintiff discovered that his son (the deceased) might have purchased two properties with the money advanced to him. The deceased had later registered title to the first property in his name and that of his common law spouse (Rate) as joint tenants with right of survivorship. They, in turn, borrowed money from a trust company for a mortgage on the first property in the amount of $193,951, which the plaintiff claimed exceeded its value. The second property was later purchased by the deceased and Rate as joint tenants with a right of survivorship. Each property remained subject to an institutional mortgage. In March 2008, the plaintiff sued Rate for repayment of the mortgage money still owing ($65,000). He also sought repayment of $24,946 that he had loaned Rate to purchase a car. After Rate eventually agreed to sign the renunciation required by her if she was not going to apply to administer the deceased's estate (August 11, 2008), the plaintiff applied for the certificate of appointment of estate trustee without a will of the deceased's estate. The certificate was issued to the plaintiff on September 29, 2008. The plaintiff then sought to add himself as a party to the proceedings, in his capacity as the estate trustee.

A Master of the Ontario Superior Court dismissed the motion as barred under the Limitations Act. The Master held that the estate had not always been a party in the proceedings by virtue of references in the statement of claim. Further, the estate was not made a party "...  as a defendant for the plaintiff to claim the debt against his son, as a plaintiff to seek the resulting trust relief  ...". The Master then referred to Civil Procedure Rules 9.03(2) and 5.03(5), which, he said, could have been used by the plaintiff at some point in time to advance his claim. The plaintiff appealed.

The Ontario Divisional Court allowed the appeal. The Master did not err in holding that the estate was not always a party by virtue of certain references in the statement of claim. However, he erred when he said that if there was a concern about Rate consenting to have the estate as a "defendant" and about Rate being both a plaintiff and defendant in two different capacities, "...  the plaintiff could have added the estate as a defendant under Rule 5.03(5)." The estate could only be a plaintiff in any action, since the estate trustee was suing on behalf of the estate saying that either Rate owed money personally to the deceased or held part or all of one or more joint assets on a resulting or constructive trust for the estate, founded in conjunction with the principle of unjust enrichment. The plaintiff's role as estate trustee would then be to collect all assets of the deceased and pursue claims the deceased might have had. Further, the fact that the parties entered into mediation on July 14, 2009, extended the limitation period so that the plaintiff was in time when he moved to have himself added as a party in his capacity as estate trustee. The Master therefore erred in holding that the limitation period began either at the date of the deceased's death or when Rate registered her transfer by right of survivorship. Alternatively, once appointed as estate trustee in September 2009, the plaintiff could have started a new action against Rate and a new limitation period would have begun and continued until September 2010.

Executors and Administrators - Topic 5405

Actions by and against representatives - Limitation of actions - When time begins to run - [See Practice - Topic 125 ].

Limitation of Actions - Topic 8601

Claims by or against an estate - Claim by an estate - General - [See Practice - Topic 125 ].

Limitation of Actions - Topic 8602

Claims by or against an estate - Claim by an estate - Applicable limitation period - [See Practice - Topic 125 ].

Practice - Topic 125

Persons who can sue and be sued - Estates - Proper representative - The plaintiff loaned his son $85,000 for the purchase of a house - They signed a mortgage that was not registered - On June 1, 2007, his son died intestate - After his son died, the plaintiff discovered that his son (the deceased) might have purchased two properties with the money advanced to him - The deceased had later registered title to the first property in his name and that of his common law spouse (Rate) as joint tenants with right of survivorship - They, in turn, borrowed money from a trust company for a mortgage on the first property in the amount of $193,951, which the plaintiff claimed exceeded its value - The second property was later purchased by the deceased and Rate as joint tenants with a right of survivorship - Each property remained subject to an institutional mortgage - In March 2008, the plaintiff sued Rate for repayment of the mortgage money still owing ($65,000) - He also sought repayment of $24,946 that he had loaned Rate to purchase a car - After Rate eventually agreed to sign the renunciation required by her if she was not going to apply to administer the deceased's estate (August 11, 2008), the plaintiff applied for the certificate of appointment of estate trustee without a will of the deceased's estate - The certificate was issued to the plaintiff on September 29, 2008 - The plaintiff then sought to add himself as a party to the proceedings, in his capacity as the estate trustee - A Master dismissed the motion as barred under the Limitations Act (Act) - The Master held that the estate had not always been a party in the proceedings by virtue of references in the statement of claim - Further, the estate was not made a party "...  as a defendant for the plaintiff to claim the debt against his son, as a plaintiff to seek the resulting trust relief  ... " - The Master then referred to Civil Procedure Rules 9.03(2) and 5.03(5), which, he said, could have been used by the plaintiff at some point in time to advance his claim - The Ontario Divisional Court held that the Master did not err in holding that the estate was not always a party by virtue of certain references in the statement of claim - However, he erred when he said that if there was a concern about Rate consenting to have the estate as a "defendant" and about Rate being both a plaintiff and defendant in two different capacities, "...  the plaintiff could have added the estate as a defendant under Rule 5.03(5)." - The estate could only be a plaintiff in any action, since the estate trustee was suing on behalf of the estate saying that either Rate owed money personally to the deceased or held part or all of one or more joint assets on a resulting or constructive trust for the estate, founded in conjunction with the principle of unjust enrichment - The plaintiff's role as estate trustee would then be to collect all assets of the deceased and pursue claims the deceased might have had - Further, the fact that the parties entered into mediation on July 14, 2009, extended the limitation period so that the plaintiff was in time when he moved to have himself added as a party in his capacity as estate trustee (Act, s. 11) - The Master therefore erred in holding that the limitation period began either at the date of the deceased's death or when Rate registered her transfer by right of survivorship - Alternatively, once appointed as estate trustee in September 2009, the plaintiff could have started a new action against Rate and a new limitation period would have begun and continued until September 2010.

Cases Noticed:

McCracken v. Kossar, [2007] O.T.C. Uned. 262; 279 D.L.R.(4th) 246 (Sup. Ct.), refd to. [para. 33].

Statutes Noticed:

Civil Procedure Rules (Ont.) - see Rules of Civil Procedure (Ont.).

Limitations Act, R.S.O. 1990, c. L-15, sect. 11 [para. 39].

Rules of Civil Procedure (Ont.), rule 5.03(5) [para. 20]; rule 9.03(2), rule 9.03(5) [para. 19].

Authors and Works Noticed:

Mew, Graeme, The Law of Limitations (2nd Ed. 2004), p. 37 [para. 28].

Counsel:

Umberto Sapone, for the appellant;

Jonathan Rosenstein, for the respondent.

This appeal was heard at Toronto, Ontario, on February 24, 2010, by Greer, J., of the Ontario Divisional Court, who delivered the following decision on April 23, 2010.