“The relevant provisions are s. 38(2) and (3) of the Trustee Act.
Section 38(2) provides as follows:
Except in cases of libel and slander, if a deceased person committed or is by law liable for a wrong to another in respect of his or her person or to another person’s property, the person wronged may maintain an action against the executor or administrator of the person who committed or is by law liable for the wrong.
The two-year limitation period applicable to claims under s. 38(2) is set out in s. 38(3) of the Trustee Act, as follows: “An action under this section shall not be brought after the expiration of two years from the death of the deceased.”
In Waschkowski v. Hopkinson Estate (2000), 2000 CanLII 5646 (ON CA), 47 O.R. (3d) 370 (C.A.), at para. 8, this court confirmed that the two-year limitation period under s. 38(3) of the Trustee Act is a strict limit and the discoverability principle does not apply to actions under s. 38: “[r]egardless of when the injuries occurred or matured into an actionable wrong, s. 38(3) of the Trustee Act prevents their transformation into a legal claim unless that claim is brought within two years of the death of the wrongdoer or the person wronged.”
I agree with the appellants’ and intervener’s submissions that the inapplicability of the discoverability principle and the clear two-year limit for bringing an action under s. 38 of the Trustee Act demonstrate the legislative intent that actions against estates be subject to the shorter limitation period. The shorter, two-year limitation period for estate matters reflects the long-established duty of estate trustees to administer estates promptly and diligently, including ascertaining the estate’s liabilities and debts as quickly as possible, as the expeditious administration of estates is in the interests of justice: Appleyard v. Zealand, 2022 ONCA 570, 162 O.R. (3d) 494, at para. 60; Omiciuolo v. Pasco, 2008 ONCA 241, 90 O.R. (3d) 175, at para. 25; Euring Estate (Re), (1997), 1997 CanLII 1080 (ON CA), 31 O.R. (3d) 777 (C.A.), at p. 792. It is also consistent with the interest of finality in the administration of estates: Roth v. Weston Estate, 1997 CanLII 1125 (ON CA), [1997] O.J. No. 4445 (C.A.), at para. 11.”