The recent case of Whorpole v. Echelon General Insurance raised the issue of how to interpret a conflict between a limitation period in the Trustee Act relating to claims by a deceased’s executors and other limitation periods that may apply to the claims. 

In this case, the deceased had been killed in an automobile accident and just less than two years after her death her executor commenced an action against the deceased’s insurer.  The insurer brought a motion for summary judgment arguing that the claim was statute barred because the Insurance Act provided that claims of this nature must be commenced within a year. 

S. 259.1 of the Insurance Act provides that a proceeding against an insurer regarding loss/ damage to an automobile or its contents must be brought within a year of the loss/damage occurring.  However, s. 38 of the Trustee Act gives a deceased’s executor the right to maintain an action for tort or injuries to the person or property of the deceased and provides for a limitation period of two years from the deceased’s death. 

The plaintiff’s counsel argued that a claim against an insurer in regard to loss/damage to an automobile/its contents constituted a claim for injuries to the property of the deceased as contemplated by s. 38 of the Trustee Act and that the limitation period found in s. 38 of the Trustee Act overrode the limitation period set out in the Insurance Act.    

Justice Heeney, the motion judge, noted that neither the plaintiff’s counsel nor that of the defendant had submitted case law for or against this interpretation.  In fact, Heeney J. noted that there didn’t appear to be any case law at all on this issue. 

In examining the point of law, Heeney J. found it would make a lot of sense that s. 38 of the Trustee Act operated to extend any limitation period that would have otherwise applied to the deceased and found that if s. 38 did not do so then the section could potentially be rendered meaningless. 

Ultimately, Heeney J. declined to make any “new law” on the issue and instead found that the plaintiff’s claim could proceed for other reasons he set out in his decision.