Co-authored by Natalie Tomaszczyk

When it comes to claims brought by family members pursuant to s. 61 of the Family Law Act, RSO 1990, c. F.3. ("FLA"), the latest word from an Ontario court indicates that the two year limitation period applies to those claims as separate causes of action. In Malik v. Nikbakht, 2019 ONSC 3118, the defendant appealed a Master's order that permitted the plaintiff to amend the statement of claim to add a claim pursuant to s. 61 of the FLA after the expiry of the limitation period. Section 61 allows family members of a party injured or killed by the fault or neglect of another to recover pecuniary losses that flow from a family member's death or injury. A claimant under this provision need not have their own direct claim in tort for damages in relation to the incident.

The Master allowed this amendment, notwithstanding that four years had passed since the motor vehicle accident giving rise to the litigation occurred. According to the Master, he was bound by the decision in Bazkur v. Coore, 2012 ONSC 3468. In Bazkur, the plaintiff had moved to amend the statement of claim (after expiry of the limitation period) to include a claim under the FLA. Ultimately, the amendments were allowed on the basis that they did not raise a new cause of action.

Justice Cavanagh overturned the Master's decision, concluding that the decision in Bazkur was "plainly wrong." He differentiated between what he saw as two different causes of action: one is the plaintiff's cause of action in the original statement of claim, which was based on a breach of the duty of care owed to the plaintiff, and the other is the statutory cause of action in the proposed amendment, which was based on damages to the plaintiff's children, caused by the fault or neglect of the defendant. Accordingly, even though the direct claim and the FLA derivative claim flow from the same acts or omissions, these claims arise as a result of different causes of action.

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