The Plaintiffs in Kakinoki et al. v. Islam et al. sought leave to add a defendant notwithstanding the expiry of the presumptive limitation period. They submitted that the limitation period in section 38(3) of the Trustee Act excludes the application of the section 4 general limitation period in the Limitations Act. However, it’s settled law that the Trustee Act doesn’t supersede the Limitations Act. That the doctrine of special circumstances applies to the Trustee Act but not the Limitation Act is of no consequence.
Justice Dunphy helpfully summarised the interaction between the Limitations Act and the Trustee Act:
[25] The relief sought by the plaintiffs, ostensibly grounded in s. 38 of the Trustee Act, would produce an outcome diametrically opposite to one that a straightforward reading of s. 38 would lead one to suppose. Section 38(1) of the Trustee Act modifies the rule of the common law which had the sometimes harsh effect of making a defendant better off should an injured person succumb to his or her injuries. As a result of s. 38, their claim can be taken up by the executor or trustee “in the same manner and with the same rights and remedies as the deceased would, if living, have been entitled to do”. I have already found that Mr. Kur, who survived the accident, lost the right to pursue the Township of King by reason of s. 4 of the Limitations Act. It would be anomalous indeed if s. 38 of the Trustee Act, while purporting only to vest in the executor the same rights as the deceased Mr. Kakinoki would have had if he had survived the tragedy, instead potentially vested higher rights in his estate and those claiming thought it. Such a reading would turn s. 38 on its ear and is not one which the plain wording of s. 38 compels. It does not purport to exclude the operation of other limitation periods, but imposes another limitation period which may well prove shorter in some cases.
[26] In the case of Camarata, supra, the Court of Appeal found (at para. 8):
“Section 38(3) of the Trustee Act does not have the effect of tolling a limitation period that excludes the limitation period made applicable to the action by ss. 4 and 5 of the Limitations Act. Section 38(3) creates a second limitation period that operates in addition to any limitation period that would have applied had the deceased been able to carry on with the action. In some circumstances s. 38(3) will effectively shorten what would otherwise be the applicable limitation period….Section 38(3) cannot extend the limitation period what would have been applicable had the deceased not died and been able to carry on with his action” (emphasis added).
[27] Camarata has found that both limitation periods must be applied and that the Trustee Act does not supercede the Limitations Act. This is consistent not only with precedent but with the plain words of the statute and common sense. Thus, even if I were to be moved to exercise discretion to soften the application of the Trustee Act, I can do nothing to mitigate the application of the Limitations Act.
[28] Section 20 and 21 of the Limitations Act also demand this same conclusion and preclude me from granting the requested amendment adding the Township of King to the Kakinoki action:
“20. This Act does not affect the extension, suspension or other variation of a limitation period or other time limit by or under another Act.
- (1) If a limitation period in respect of a claim against a person has expired, the claim shall not be pursued by adding the person as a party to any existing proceeding.”
[29] Section 38(3) of the Trustee Act and Section 4 of the Limitations Act both provide for a two year limitation period which, given the death of Mr. Kakinoki on the day of the accident, happen to coincide with each other precisely (subject to extensions of the latter limitation due to possible discoverability issues which do not apply to Trustee Act claims). The Trustee Act by its terms does not purport to extend, vary or suspend the Limitations Act. To the contrary, they both apply a two year period. The doctrine of special circumstances allowing what is, in effect, a nunc pro tunc amendment to pleadings to avoid the application of the Trustee Act can hardly be characterized as an extension, variation or suspension under another Act as referred to in s. 20 of the Limitations Act and, accordingly, s. 21 thereof precludes me from adding the Township of King to this existing proceeding as requested in this motion.
[30] Accordingly, on the basis of Camarata, supra, and s. 21 of the Limitations Act, I must dismiss the plaintiffs’ motion to add Township of King as a defendant at this stage in the proceedings given the passage of the limitation period under s. 4 of the Limitations Act.
