Court File and Parties
COURT FILE NO.: CV-17-00027618-0000
DATE: 2021-09-29
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
ROBERTA BOYER and CYNTHIA BOYER and MICHAEL BOYER
Plaintiffs
– and –
JOE PAUL CHIBLOW and MISSISSAUGA FIRST NATION
Defendants
Counsel:
Mark Palombi, for the Plaintiffs
Gary J. Marcuccio, for the Defendants
HEARD: September 27, 2021
Endorsement
Gareau J.
[1] Before the court is a summary judgment motion brought by the defendants who seek an order dismissing the action on the basis that it is statute barred and that there is no causal connection between the hip fracture sustained by Theresa Carmelita Boyer on June 9, 2015 and her death, which occurred on September 29, 2015.
[2] The cause of action arose on June 9, 2015 when Theresa Carmelita Boyer fell and fractured her hip. She had previous challenges such as advanced age and dementia. After her fall, Ms. Boyer was admitted to hospital and remained in hospital until her death on September 29, 2015.
[3] The action before the court was commenced on September 29, 2017, the second-year anniversary of Ms. Boyer’s death but beyond the two-year anniversary of the date of her fall and injury.
[4] The action presently before the court is a Section 61 Family Law Act claim by adult children of the deceased seeking to recover damages related to the death of their mother.
[5] Section 4 of the Limitations Act, 2002, provides that a claim must be brought no later than the second anniversary of the date the claim was discovered. Section 5(2) of the Limitations Act provides a presumption that the claim is known on the day the act or omission occurred unless the contrary is proved.
[6] This court indicated that it was bound by the Court of Appeal decision in Camarata v. Morgan, 2009 ONCA 38, 94 O.R. (3d) 496. In that case the Court of Appeal clearly stated that “while the death of an 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 Section 61 arose in the circumstances of this case when the deceased suffered his injuries.” The Court of Appeal goes on to state that “the serious injuries suffered by the deceased gave rise to a cause of action under s. 267.5(5) [of the Insurance Act]. His death may have changed the nature of the damages claim, but did not give rise to a new course of action or precipitate a re-tolling of the applicable limitation period.”
[7] The moving party on the motion before the court made full submissions on the issue of the limitation period and the absence of causation between the injury sustained by Theresa Carmelita Boyer and her death. After the recess and before commencing his argument, counsel for the plaintiffs conceded that this court was bound by the Camarata v. Morgan decision and consented to an order dismissing the action involving the adult claimants on the basis that it is statute barred.
[8] Accordingly, based on this concession by counsel for the plaintiffs, this court orders the action by the adult claimants is dismissed as statute barred.
[9] Counsel are to attempt to work out an agreement as to the issue of costs, failing which the parties shall serve and file written submissions no longer than five typed pages in length, excluding offers to settle and bills of costs.
Gareau J.
Released: September 29, 2021
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
ROBERTA BOYER and CYNTHIA BOYER and MICHAEL BOYER
- and –
JOE PAUL CHIBLOW and MISSISSAUGA FIRST NATION
ENDORSEMENT
Gareau J.
Released: September 29, 2021