The Court of Appeal decision in Malik v. Nikbakht summarises the limitation of FLA actions. Because they are derivative, the limitation period that applies to the injured person’s action also applies to the dependant’s action:
[9] In my view, the appeal judge was correct in holding that a s. 61 FLA claim is a cause of action that, in Mr. Malik’s case, is statute barred.
[10] As the appeal judge correctly acknowledged, the common law does not permit family members to sue for compensation for injuries to their relatives. He explained, at para. 26, that s. 61(1) FLA therefore “created” a statutory cause of action that did not previously exist at common law: Camarata v. Morgan, 2009 ONCA 38, 246 O.A.C. 235, at para. 10.
[11] Section 61(1) FLA provides:
If a person is injured or killed by the fault or neglect of another under circumstances where the person is entitled to recover damages, or would have been entitled if not killed, the spouse, … children, grandchildren, parents, grandparents, brothers and sisters of the person are entitled to recover their pecuniary loss resulting from the injury or death from the person from whom the person injured or killed is entitled to recover or would have been entitled if not killed, and to maintain an action for the purpose in a court of competent jurisdiction.
[12] As put by Laskin J.A. (concurring), this provision “dramatically expanded recovery”: Macartney v. Warner (2000), 2000 CanLII 5629 (ON CA), 46 O.R. (3d) 641 (Ont. C.A.), at para. 51.
[13] Significantly, the new cause of action created by s. 61 of the FLA is “derivative”: Camarata, at para. 9. In other words, Mr. Malik’s s. 61 FLA claim would be for his damages arising out of injuries caused to his children as the result of allegedly negligent breaches by the defendants of duties of care they owed to his children. As the appeal judge pointed out, at paras. 28-29, this is a fundamentally different claim than Mr. Malik’s negligence action, which claimed damages arising out of his own injuries caused as the result of allegedly negligent breaches by the defendants of duties of care they owed to him. Indeed, as the appeal judge recognized, at para. 17, had Mr. Malik brought his s. 61 FLA claims in a timely way, he could have done so even without instituting a negligence action of his own.
[14] I do not read this court’s decision in Ridel v. Cassin, 2014 ONCA 763, which cites Bazkur, at para. 10, as holding that Bazkur was correctly decided. In Ridel, this court cited Bazkur, along with other authorities, only for the uncontroversial proposition that claims for additional damages arising from an existing cause of action in a timely claim are not barred by the Limitations Act, 2002. The error in Bazkur occurred in the application of that principle.
[15] It follows that the appeal judge was correct in finding that Mr. Malik was not entitled to amend his statement of claim to bring a new statutory cause of action outside of the applicable limitation period.
This is settled law, but it’s never made sense to me. A person injured through fault or neglect has a cause of action in tort as against the wrongdoer. The elements of that tort include the wrongdoer’s actionable conduct and the resulting damage to the injured person. An FLA cause of action derives from the tort committed to the injured person in that it arises from the same actionable conduct, but the damage is to the FLA claimant, not the injured person. Even if the FLA cause of action is conditional on the tort, they are independent causes of action based on discrete losses.
Why should the same limitation period apply to the tort and the FLA cause of action? The FLA claimant may not discover her pecuniary loss when the injured person discovers her injury. The injury that founds the tort and the pecuniary loss that founds the FLA claim don’t necessarily occur contemporaneously. I’d like to think that with the right facts, the Court of Appeal might be persuaded to acknowledge this.
