{"id":1238,"date":"2022-01-03T21:42:07","date_gmt":"2022-01-04T01:42:07","guid":{"rendered":"http:\/\/limitations.ca\/?p=1238"},"modified":"2022-01-03T21:44:48","modified_gmt":"2022-01-04T01:44:48","slug":"ontario-court-of-appeal-on-the-limitation-of-fla-actions","status":"publish","type":"post","link":"https:\/\/limitations.ca\/?p=1238","title":{"rendered":"Ontario: Court of Appeal on the limitation of FLA actions"},"content":{"rendered":"

The Court of Appeal decision in Malik v. Nikbakht <\/em><\/a>summarises the limitation of FLA actions.\u00a0 Because they are derivative, the limitation period that applies to the injured person\u2019s action also applies to the dependant\u2019s action:<\/p>\n

[<\/a>9]\u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0\u00a0In my view, the appeal judge was correct in holding that a\u00a0s. 61<\/a>\u00a0FLA<\/a><\/em>\u00a0<\/i>claim is a cause of action that, in Mr. Malik\u2019s case, is statute barred.<\/p>\n

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[<\/a>10]\u00a0\u00a0 \u00a0\u00a0\u00a0\u00a0As 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\u00a0s. 61(1)<\/a>\u00a0FLA<\/a><\/em>\u00a0therefore \u201ccreated\u201d a statutory cause of action that did not previously exist at common law:\u00a0Camarata v. Morgan<\/em>,\u00a02009 ONCA 38<\/a>, 246 O.A.C. 235, at para.\u00a010<\/a>.<\/p>\n<\/div>\n

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[<\/a>11]\u00a0\u00a0 \u00a0\u00a0\u00a0Section 61(1)<\/a>\u00a0FLA<\/a><\/em>\u00a0provides:<\/p>\n<\/div>\n

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, \u2026 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.<\/p>\n

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[<\/a>12]\u00a0\u00a0 \u00a0\u00a0\u00a0As put by Laskin J.A. (concurring), this provision \u201cdramatically expanded recovery\u201d:\u00a0Macartney v. Warner<\/em>\u00a0(2000),\u00a02000 CanLII 5629 (ON CA)<\/a>, 46 O.R. (3d) 641 (Ont. C.A.), at para.\u00a051<\/a>.<\/p>\n<\/div>\n

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[<\/a>13]\u00a0\u00a0 \u00a0\u00a0\u00a0Significantly, the new cause of action created by\u00a0s. 61<\/a>\u00a0of the\u00a0FLA<\/a><\/em>\u00a0is \u201cderivative\u201d:\u00a0Camarata<\/em>, at para.\u00a09<\/a>. In other words, Mr. Malik\u2019s\u00a0s. 61<\/a>\u00a0FLA<\/a><\/em>\u00a0claim would be for his damages arising out of injuries caused\u00a0to his children<\/u>\u00a0as the result of allegedly negligent breaches by the defendants of duties of care they owed\u00a0to his children<\/u>. As the appeal judge pointed out, at paras. 28-29, this is a fundamentally different claim than Mr. Malik\u2019s negligence action, which claimed damages arising out of\u00a0his own injuries<\/u>\u00a0caused as the result of allegedly negligent breaches by the defendants of duties of care they owed\u00a0to him<\/u>. Indeed, as the appeal judge recognized, at para. 17, had Mr. Malik brought his\u00a0s. 61<\/a>\u00a0FLA<\/a><\/em>\u00a0<\/i>claims in a timely way, he could have done so even without instituting a negligence action of his own.<\/p>\n<\/div>\n

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[<\/a>14]\u00a0\u00a0 \u00a0\u00a0\u00a0I do not read this court\u2019s decision in\u00a0Ridel v. Cassin<\/em>,\u00a02014 ONCA 763<\/a>, which cites\u00a0Bazkur<\/em>, at para.\u00a010<\/a>, as holding that\u00a0Bazkur<\/em>\u00a0<\/i>was correctly decided. In\u00a0Ridel<\/em>,\u00a0<\/i>this court cited\u00a0Bazkur<\/em>, 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\u00a0Limitations Act<\/em>, 2002<\/i><\/a>. The error in\u00a0Bazkur<\/em>\u00a0<\/i>occurred in the application of that principle.<\/p>\n<\/div>\n<\/blockquote>\n

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[<\/a>15]\u00a0\u00a0 \u00a0\u00a0\u00a0It 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.<\/p>\n<\/blockquote>\n<\/div>\n

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This is settled law, but it\u2019s never made sense to me. A person injured through fault or neglect has a cause of action in tort as against the wrongdoer.\u00a0 The elements of that tort include the wrongdoer\u2019s actionable conduct and the resulting damage to the injured person.\u00a0 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.\u00a0 Even if the FLA cause of action is conditional on the tort,\u00a0they are\u00a0independent\u00a0causes of action based on discrete losses.<\/p>\n

Why should the same limitation period apply to the tort and the FLA cause of action?\u00a0 The FLA claimant may not discover her pecuniary loss when the injured person discovers her injury.\u00a0 The injury that founds the tort and the pecuniary loss that founds the FLA claim don\u2019t necessarily occur contemporaneously.\u00a0 I\u2019d like to think that with the right facts, the Court of Appeal might be persuaded to acknowledge this.<\/p>\n","protected":false},"excerpt":{"rendered":"

The Court of Appeal decision in Malik v. Nikbakht summarises the limitation of FLA actions.\u00a0 Because they are derivative, the limitation period that applies to the injured person\u2019s action also applies to the dependant\u2019s action: [9]\u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0\u00a0In my view, the appeal judge was correct in holding that a\u00a0s. 61\u00a0FLA\u00a0claim is a cause of action … Continue reading Ontario: Court of Appeal on the limitation of FLA actions<\/span><\/a><\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"closed","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[4],"tags":[43,643],"class_list":["post-1238","post","type-post","status-publish","format-standard","hentry","category-ontario","tag-ontario-court-of-appeal","tag-ontario-family-law-act-s-61"],"_links":{"self":[{"href":"https:\/\/limitations.ca\/index.php?rest_route=\/wp\/v2\/posts\/1238","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/limitations.ca\/index.php?rest_route=\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/limitations.ca\/index.php?rest_route=\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/limitations.ca\/index.php?rest_route=\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/limitations.ca\/index.php?rest_route=%2Fwp%2Fv2%2Fcomments&post=1238"}],"version-history":[{"count":2,"href":"https:\/\/limitations.ca\/index.php?rest_route=\/wp\/v2\/posts\/1238\/revisions"}],"predecessor-version":[{"id":1240,"href":"https:\/\/limitations.ca\/index.php?rest_route=\/wp\/v2\/posts\/1238\/revisions\/1240"}],"wp:attachment":[{"href":"https:\/\/limitations.ca\/index.php?rest_route=%2Fwp%2Fv2%2Fmedia&parent=1238"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/limitations.ca\/index.php?rest_route=%2Fwp%2Fv2%2Fcategories&post=1238"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/limitations.ca\/index.php?rest_route=%2Fwp%2Fv2%2Ftags&post=1238"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}