FLA Claims Cannot Be Brought After the Limitation Period…Or Can They?
Nelligan Law gratefully acknowledges the contribution of Grace Tran, Student-at-Law in writing this article.
Accidents can completely change one’s life. But they can also change your loved ones’ lives. The Family Law Act, R.S.O. 1990, c. F.3 (“FLA”) acknowledges this reality at section 61. FLA s.61 allows spouses, siblings, children, grandchildren, parents, and grandparents to recover damages for their family member’s injuries or death resulting from another person’s negligence. This can include damages for funeral expenses, travel expenses, income loss, and loss of expected guidance, care, and companionship had the injury or death not happened.
Under the Limitations Act, an injured person will have two years from their claim’s discoverable date (usually the accident date) to start a claim. But does this apply to loved ones bringing forward claims?
In 2012, the Ontario Superior Court of Justice (“ONSC”) confirmed that these types of claims can be brought after the two-year period. However, this year, the ONSC found the opposite in a case with very similar circumstances.
The conflicting decisions are discussed below.
Claimants Can Bring FLA Claims Post-Limitation Period: Bazkur v Coore et al, 2012 ONSC 3468
Bazkur v Coore involved a husband and wife’s motor vehicle accident. The wife, Ms. Bazkur, brought a claim for her injuries within the two-year limitation period. After the limitation period, she brought a motion to change her claim and add an FLA s.61 claim for her husband’s injuries. The Case Management Master, Master McAffee, denied the motion. Ms. Bazkur appealed this decision and argued that Master McAffee was incorrect in concluding that an FLA s.61 claim constitutes a separate cause of action. She argued that her proposed amendment was intended to extend her personal injury claim by adding a new head of damages. Justice Moore relied on a case from 1967(Cahoon v Franks) and allowed Ms. Bazkur’s appeal. Justice Moore found that the parties and the basis for the new damages claim were the same, specifically the defendant’s original alleged negligence. Justice Moore thus allowed the appeal and found that Ms. Bazkur’s proposal to amend her claim and add an FLA s.61 claim did not raise a new cause of action.
Claimants Cannot Bring FLA Claims Post-Limitation Period: Malik v Nikbakht, 2019 ONSC 3118
In Malik v Nikbakht, Mr. Malik got into an accident while driving with his wife and three sons. Mr. Malik started an action for his injuries arising out of the accident within the two-year limitation period. Four and a half years later, Mr. Malik brought a motion to change his claim and add an FLA s.61 claim. Thus, like in Bazkur v Coore, the proposed FLA s.61 claim amendment came after the limitation period’s expiry. Master Wiebe found Bazkur v Coore binding and as a result allowed the amendment.
On appeal to the ONSC, Justice Cavanagh reminded that a claimant does not require their own tort claim for damages to make an FLA s.61 claim. A tort claim is a case filed against a person who accidentally injures another, through which the injured person seeks compensation for the injury. Justice Cavanagh relied the Ontario Court of Appeal decision Camarata v Morgan where the court found: “Section 61(1) of the Family Law Act creates a cause of action in favour of certain relatives… (emphasis added)”. Justice Cavanagh therefore concluded that an FLA s.61 claim is derivative, separate, and arises from a statutorily created cause of action.
Regarding Bazkur v Coore, Justice Cavanagh acknowledged that the facts were the same in all material respects. However, Justice Cavanagh found Justice Moore was incorrect by relying on the Supreme Court of Canada decision Cahoon v Franks. Justice Cavanagh found Cahoon different because Cahoon had only one cause of action, the negligence tort. However, in this case, there were two causes of action. Mr. Malik’s tort claim arose from the defendant’s alleged duty of care breach. Mr. Malik’s FLA s.61 claim arose from the defendant’s alleged duty of care breach toward his children, which is statutorily created.
Justice Cavanagh ultimately determined that Bazkur v Coore was incorrect. Justice Moore in Bazkur v Coore sat as a Divisional Court judge. Justice Cavanagh in Malik v Nikbakht sat as a motions court judge. Therefore, the two judges had coordinate jurisdiction. Given that Justice Cavanagh considered Bazkur v Coore incorrect, he did not follow it.
Where We Go from Here
From the above, we are left with two competing decisions from the same court. However, the tension may resolve quite soon. Malik v Nikbakht is currently under appeal. Counsel recently perfected the case and is now waiting on a date. Our prediction? We see the Ontario Court of Appeal following Justice Cavanagh’s reasoning in Malik v Nikbakht over Bazkur v Coore.
If you have any questions about personal injury or Family Law Act claims, contact our experienced Personal Injury Group.