McConnell v. Huxtable, 2014 CarswellOnt 1152, 2014 ONCA 86, is an important decision released by the Ontario Court of Appeal regarding the limitation period for claims against land in unjust enrichment and constructive trust claims. The appeal was from the order of Justice Perkins in February, 2013.

In this matter, the common law wife made a claim for unjust enrichment and sought a remedial constructive trust in a property owned solely by the common law husband. She was aware of the existence of these claims when the relationship ended, yet the action was issued almost 5 years later. This was an appeal from Justice Perkins finding that the ten year limitation period in the Real Property Limitations Act applied to an action for unjust enrichment seeking a remedial constructive trust against the defendant. Alternatively, Justice Perkins found that there was no limitation period governing this type of claim.

The Ontario Court of Appeal had to decide a) if the 2 year limitation period in the Limitations Act applied, thus making the action barred by statute b) if the 10 year limitation period under s. 4 of the Real Property Limitations Act applied, thus rendering the action ‘safe’ or; c) whether neither act applied leaving a legislative gap such that there is no limitation period.

The Ontario Court of Appeal held that the 10 year period under the Real Property Limtations Act applied. S. 4 of the Real Property Limitations Act is summarized as follows: “No person shall bring an action to recover any land, but within ten years next after the time at which the right to bring such action first accrued to the person bring it”.

The Court of Appeal determined that the test is: 1) is the claim is an action?; 2) is the action to “recover; and 3) is the action to recover “land”.

The Court of Appeal held that 1) clearly the wife’s claim was an action; 2) “recover” means to obtain, and the wife’s claim certainly sought to ‘obtain’ a right to the property; and 3) the language of s. 4 of the Real Property Limitations Act is broad enough to encompass an equitable claim for property based on the remedy of constructive trust.

The judgement released by the Ontario Court of Appeal largely agrees with Justice Perkins finding with respect to the Real Property Limitations Act. The Ontario Court of Appeal disagrees with Justice Perkins finding regarding the legislative gap in the Limitations Act.

There are now three limitation periods to keep in mind: 1) A six year limitation period for an equalization claim and Part I of the Family Law Act; 2) A ten year limitation period under the Real Property Limitations Act for an equitable claim respecting land; and 3) A two year limitation period for an equitable claim that does not relate to land.