Camarata v. Morgan

Indexed as: Camarata v. Morgan

94 O.R. (3d) 496

Court of Appeal for Ontario,

Doherty, Weiler and MacFarland JJ.A.

January 19, 2009

Limitations -- Motor vehicles -- Damages occasioned by motor vehicle -- Deceased suffering serious injuries when struck by fire truck and dying several months later -- Deceased's estate commencing action for damages for injuries to deceased more than two years from date of accident but within two years of date of death -- Motion judge finding that limitation period ran from date of accident and not from date of death -- Estate's appeal dismissed -- Section 38(1) of Trustee Act not extending limitation period that would have been applicable had deceased not died -- Section 267.5(5) of Insurance Act not affecting application of basic limitation period -- Insurance Act, R.S.O. 1990, c. I.8, s. 267.5(5) -- Trustee Act, R.S.O. 1990, c. T.23, s. 38(1).

The deceased was seriously injured when he was struck by a fire truck, and died several months later. His estate commenced an action for damages for injuries to the deceased arising from a motor vehicle accident. The action was commenced more than two years after the date of the accident but within two years of the date of death. On a motion by the defendants for summary judgment dismissing the action, the motion judge found that the two-year limitation period in s. 4 of the Limitations Act, 2002, S.O. 2002, c. 24, Sch. B ran from the date of the accident and not from the date of death. The action was dismissed. The estate appealed, relying on s. 38(1) of the Trustee Act and s. 267.5(5) of the Insurance Act.

Held, the appeal should be dismissed.

Section 38(1) of the Trustee Act 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. Section 38(1) cannot extend the limitation period that would have been applicable had the deceased not died.

Section 267.5 of the Insurance Act does not speak to any limitation period applicable to the claim described in that section. The death of the injured party does not create a new cause of action. The serious injuries suffered by the deceased gave rise to a cause of action under s. 267.5(5). His death may have changed the nature of the damages claim, but did not give rise to a new cause of action or precipitate a re-tolling of the applicable limitation period.

APPEAL by plaintiffs from the judgment of B.A. Allen J., [2008] O.J. No. 1928, 170 A.C.W.S. (3d) 634 (S.C.J.) dismissing an action.

Cases referred to Ryan v. Moore, [2005] 2 S.C.R. 53, [2005] S.C.J. No. 38, 2005 SCC 38, 254 D.L.R. (4th) 1, 334 N.R. 355, J.E. 2005-1188, 247 Nfld. & P.E.I.R. 286, [2005] R.R.A. 694, 25 C.C.L.I. (4th) 1, 32 C.C.L.T. (3d) 1, 18 E.T.R. (3d) 163, 139 A.C.W.S. (3d) 1089, varg [2003] N.J. No. 113, 2003 NLCA 19, 224 Nfld. & P.E.I.R. 181, 50 E.T.R. (2d) 8, 122 A.C.W.S. (3d) 1139; Smith Estate v. College of Physicians and Surgeons of Ontario (1998), 1998 CanLII 1523 (ON CA), 41 O.R. (3d) 481, [1998] O.J. No. 4367, 167 D.L.R. (4th) 78, 115 O.A.C. 146, 28 C.P.C. (4th) 389, 26 E.T.R. (2d) 103, 83 A.C.W.S. (3d) 495 (C.A.); Swain Estate v. Lake of the Woods District Hospital (1992), 1992 CanLII 7601 (ON CA), 9 O.R. (3d) 74, [1992] O.J. No. 1358, 93 D.L.R. (4th) 440, 56 O.A.C. 327, 9 C.P.C. (3d) 169, 34 A.C.W.S. (3d) 1015 (C.A.) [page497] Statutes referred to Family Law Act, R.S.O. 1990, c. F.3, s. 61 [as am.], (1) [as am.] Insurance Act, R.S.O. 1990, c. I.8, s. 267.59, (5) Limitations Act, 2002, S.O. 2002, c. 24, Sch. B, ss. 4, 5, 19(1)(a) [as am.] Trustee Act, R.S.O. 1990, c. T.23, s. 38, (1), (3) Rules and regulations referred to Rules of Civil Procedure, R.R.O. 1990, Reg. 194, rule 20.04(2) [as am.]

William G. Scott, for appellants. Robert Traves and Michael White, for respondents.

[1] BY THE COURT: -- This appeal requires us to decide whether the limitation period to bring an action by an estate for damages for injuries to the deceased, arising from a motor vehicle accident, runs from the date of the motor vehicle accident or from the date of his death. At the conclusion of the appeal, counsel were advised that the appeal was dismissed with reasons to follow. These are those reasons.

[2] On February 12, 2004, Manuel Camarata was struck and seriously injured by a fire truck operated by the respondent John Morgan and owned by the respondent City of Toronto. He died on June 1, 2004. The representatives of Mr. Camarata's estate issued their statement of claim on March 16, 2006, more than two years after the date of the accident but within two years from the date of his death.

[3] The motion judge dismissed the estate's action pursuant to rule 20.04(2)(a) [of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194] as statute-barred and granted summary judgment. The estate appealed. Analysis

[4] The basic limitations period pursuant to s. 4 of the Limitations Act, 2002, S.O. 2002, c. 24, Sch. B is two years from the date the claim was discovered. Before us, the appellant does not challenge the analysis of the motion judge that he failed to rebut the presumption in s. 5(2) of the Limitations Act that the limitation period commenced on the day of the accident. Instead, the appellant raises a new legal issue.

[5] The appellant relies on the provisions of s. 38(1) of the Trustee Act, R.S.O. 1990, c. T.23, and s. 267.5(5) of the Insurance Act, R.S.O. 1990, c. I.8, in support of his argument that the applicable limitation period is two years from the date of death of the [page498] deceased, rather than two years from the date of the accident. I am satisfied that this is one of those exceptional cases in which a legal issue raised by the appellants for the first time on appeal can properly be addressed on this record.

[6] Section 38(1) of the Trustee Act provides in part that "the executor or administrator of any deceased person may maintain an action for all torts or injuries . . . in the same manner and with the same rights and remedies as the deceased would, if living, have been entitled to do". Section 38(3) provides that "an action under this section shall not be brought after the expiration of two years from the death of the deceased". Section 38(3) is preserved and continues in force pursuant to s. 19(1)(a) of the schedule to the Limitations Act, 2002.

[7] Section 38 of the Trustee Act modifies the harsh effect of the common law in respect of claims of a deceased person by allowing the deceased's representatives to maintain an action "in the same manner and with the same rights" as the deceased would have had, had he not died. The incident giving rise to the cause of action in this case is the motor vehicle accident. The deceased's death does not create the cause of action. Nor does s. 38 create a new cause of action. Instead, it allows the deceased's representative to prosecute an existing cause of action: see Swain Estate v. Lake of the Woods District Hospital (1992), 1992 CanLII 7601 (ON CA), 9 O.R. (3d) 74, [1992] O.J. No. 1358 (C.A.), at para. 13. Section 38(1) establishes the conditions under which an existing viable cause of action can be pursued after the deceased's death: see Ryan v. Moore, 2005 SCC 38, [2005] 2 S.C.R. 53, [2005] S.C.J. No. 38, at paras. 26-27, and the analysis of Wells C.J. [2003] N.J. No. 113, 2003 NLCA 19, at para. 37.

[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: see Swain Estate v. Lake of the Woods District Hospital, supra. Section 38(3) cannot extend the limitation period that would have been applicable had the deceased not died and been able to carry on with his action.

[9] The claims brought by the dependants of the deceased under s. 61 of the Family Law Act, R.S.O. 1990, c. F.3 are in no better position than the claim brought by the estate. Claims under s. 61 of the Family Law Act are derivative. The limitation [page499] period governing the principal action, that is the claim brought by the trustee, also governs the claims made under s. 61: Smith Estate v. College of Physicians and Surgeons of Ontario (1998), 1998 CanLII 1523 (ON CA), 41 O.R. (3d) 481, [1998] O.J. No. 4367 (C.A.).

[10] Section 61(1) of the Family Law Act creates a cause of action in favour of certain relatives of "a person [who] is injured or killed by the fault or neglect of another under circumstances where the person is entitled to recover damages". The section contemplates claims triggered by the injury or death of that person. While the death of the injured party will have consequences for the kind of damages claimed, death does not create a new cause of action. The cause of action under s. 61 arose in the circumstances of this case when the deceased suffered his injuries.

[11] We turn to s. 267.5(5) of the Insurance Act. It provides:

267.5(5) Despite any other Act . . . the owner of an automobile, the occupants of an automobile and any person present at the incident are not liable in an action in Ontario for damages for non-pecuniary loss, including damages for non-pecuniary loss under clause 61(2)(e) of the Family Law Act, from bodily injury or death arising directly or indirectly from the use or operation of the automobile, unless as a result of the use or operation of the automobile the injured person has died or has sustained, (a) permanent serious disfigurement; or (b) permanent serious impairment of an important physical, mental or psychological function.

[12] Section 267.5 does not speak to any limitation period applicable to the claim described in that section. Nothing in the Limitations Act suggests that the general provisions in ss. 4 and 5 of that Act do not apply.

[13] Counsel's argument based on s. 267.5(5) assumes that the death of the injured party creates a new cause of action and that in respect of that cause of action, the limitation period tolls from the death. We cannot read the section that way. The serious injuries suffered by the deceased gave rise to a cause of action under s. 267.5(5). His death may have changed the nature of the damages claim, but did not give rise to a new cause of action or precipitate a re-tolling of the applicable limitation period.

[14] There is no genuine issue for trial. The appeal is dismissed.

[15] Costs of the appeal are to the respondent and are fixed in the amount of $10,000, inclusive of GST and disbursements.

Appeal dismissed.