List members might be interested in a recent case of the ON CA (sitting as the Divisional Court) about trustee/executor accounting:

Wall v. Shaw, 2018 ONCA 929 <http://canlii.ca/t/hwg1t>

Inasmuch as there is a claim that the executor-trustee overcharged the estate for his compensation, this involves a claim for restitution.

I teach accounting using Campbell v Hogg, [1930] 3 DLR 673, in which surcharging and falsification of the account are visible right in the judgment of the PC (and which is interesting for other reasons too; see eg http://www.austlii.edu.au/nz/journals/VUWLawRw/2012/10.pdf pp. 115-7). I think I will also have my students read the new case, which is short and to the point and which emphasizes how an accounting proceeding is not like a typical private lawsuit. One can read it as questioning whether those who drafted the new limitations legislation in Ontario (similar statutes have been adopted in almost all Canadian common law jurisdictions in recent years) paid enough attention to trust law or, more generally, relationships of looking after the property of others. More broadly, it underlines the particularity of a relationship of accountability.

These new-model statutes have two limitation periods: a short period (2 years in ON) that runs from when the plaintiff became aware of the facts generating the claim, and a longer ‘ultimate’ period that runs from when the facts occurred (15 years in ON) whether or not the plaintiff was aware. When either of the two periods runs out, the claim is barred. I believe a similar proposal was made for EW but has not been adopted.

In Ontario there is no law requiring a trustee or executor to have accounts judicially approved but a trustee is empowered to ‘pass’ accounts (I would be interested to know whether the terminology of ‘passing’ accounts is used in other places). Such a proceeding requires notice to interested parties of course, and its conclusion creates a res judicata that protects the trustee/executor against subsequent challenges. In this case the trustee/executor commenced the proceeding to pass accounts under a consent order, and one beneficiary raised objections that the trustee/executor had taken excessive compensation. The trustee/executor moved to strike all objections that were more than two years old, as statute barred. That motion failed. The short version of the holding is that the ON limitations statute simply does not apply to accounting proceedings.

Overall, the case raises the interesting point that an accounting relationship is not like a car crash but is a relationship of responsibility projected over time.

Lionel