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Limitations – POA

Posted on October 1, 2019 | Posted in Lawyers' Issues

The Limitations Act, 2002 was proclaimed in force as of January 1, 2004. Subject to some other qualifications, the Act has a basic limitation period of two years from discovery and an absolute limitation period of 15 years regardless of discovery. However, not every request for a court order is caught by the Act. This was made apparent in Armitage v. Salvation Army, 2016 ONCA 971.

A stopwatch with the word deadline on it.


The deceased appointed a realtor as his attorney for property as far back as 1990. The deceased died in 2013. In the same year, the realtor submitted her claim for attorney compensation and, within two years of the date of death, issued a notice of application for the passing of accounts, both under her power of attorney and for the estate accounts.

The charity, which we assume was a beneficiary under the will, disputed the realtor’s entitlement to compensation for her work under the POA, claiming that the attorney ought to have claimed for her compensation annually, as was her right under the Substitute Decisions Act. Accordingly, the charity argued that compensation for any work done, other than for the last two years of the deceased’s life, was statute-barred.

The application judge held that the date of the deceased’s death, which terminated the continuing POA, triggered the limitation period. Accordingly, the application, commenced within the 2 years, was timely.

The charity appealed.


The Court agreed with the result and dismissed the appeal, but for different reasons than the application judge. The Court held that the Limitations Act, 2002 did not apply at all because compensation for an attorney for property, through the passing of accounts process, did not constitute a “claim” within the meaning of the Act.

In coming to that conclusion, the Court noted the following:

  • A claim under the Act is defined as “a claim to remedy an injury, loss or damage that occurred as a result of an act or omission.”
  • In seeking a court approval of the passing of accounts, an attorney is not seeking redress; rather, the attorney seeks approval from the court of the attorney’s actions in managing the property, including approval for compensation previously taken or then sought.
  • A passing of accounts is the opposite of remedial; it is a process that seeks a court order stating that no remedy is necessary regarding the accounts.
  • The 2nd necessary portion of the claim requires an act or omission, presumably by a third party, that has the effect of causing loss, injury, or damage to the claimant. However, the claimant (i.e. the attorney) never suffered a loss because of a third party act or omission.


The Court held that the Act did not apply and that the charity’s only available defences under the circumstances of the case were those of laches and acquiescence. Since neither of these defences were asserted, the charity was out of luck.

The charity had also appealed as to the quantum of compensation. However, the Court noted that it would not interfere with the exercise of the application judge’s discretion unless the judge made an error in principle or acted unreasonably in weighing the relevant principles. The Court held that the judge had made no such error.


Image courtesy of AbsolutVision.

Jonathan Speigel


Written by Jonathan Speigel, the founding partner of Speigel Nichols Fox LLP, leads the litigation and construction practices.


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