Bill 107 2018

An Act to amend the Trustee Act and the Limitations Act, 2002 with respect to a limitation period for actions for wrongful death and other estate matters

Her Majesty, by and with the advice and consent of the Legislative Assembly of the Province of Ontario, enacts as follows:

   1.  (1)  Subsection 38 (1) of the Trustee Act is amended by adding “that occurred before January 1, 1981” after “property of the deceased”.

   (2)  Section 38 of the Act is amended by adding the following subsection:

Same, in or after 1981

   (1.1)  Except in cases of libel and slander, the executor or administrator of a deceased person may bring or maintain an action for all torts or injuries to the person or to the property of the deceased that occurred on or after January 1, 1981 in the same manner and with the same rights and remedies as the deceased would, if living, have been entitled to do, and the damages when recovered shall form part of the personal estate of the deceased.

   (3)  Subsection 38 (3) of the Act is amended by striking out “under this section” and substituting “under subsection (1) or (2)”.

   (4)  Section 38 of the Act is amended by adding the following subsections:

Definition

   (4)  In this section,

“claim” means a claim to remedy a tort or an injury that occurred as a result of an act or omission.

Discovery

   (5)  For the purposes of this section, a claim is discovered on the earlier of,

  (a)  the day on which the person with the claim first knew,

           (i)  that the tort or injury had occurred,

          (ii)  that the tort or injury was caused by or contributed to by an act or omission,

         (iii)  that the act or omission was that of the person against whom the claim is made, and

         (iv)  that, having regard to the nature of the tort or injury, an action would be an appropriate means to seek to remedy it; and

  (b)  the day on which a reasonable person with the abilities and in the circumstances of the person with the claim first ought to have known of the matters mentioned in clause (a).

Previous actions

   (6)  Despite any order of a court or body, subsection (3), as it read immediately before the day on which the Trustee Statute Law Amendment Act, 2004 comes into force, shall be deemed never to have applied to an action brought by the executor or administrator of a deceased person if,

  (a)  torts or injuries to the person or to the property of the deceased, other than for libel and slander, occurred on or after January 1, 1981; and

  (b)  the executor or administrator of the deceased brought an action in respect of a claim for the torts or injuries mentioned in clause (a) before the second anniversary of the day on which the claim was discovered, but after the second anniversary of the death of the deceased.

Limitation period

   (7)  An action described in subsection (6) shall not be brought after the expiration of the second anniversary of the day on which the claim mentioned in that subsection was discovered.

Same

   (8)  An action that the executor or administrator of a deceased person is entitled to bring as a result of subsection (7) is not stayed or extinguished in any way and a court of competent jurisdiction may make whatever order that it considers is necessary to allow the executor or administrator to maintain the action.

New actions previously discovered

   (9)  Within 180 days after the day on which the Trustee Statute Law Amendment Act, 2004 comes into force, an executor or administrator of a deceased person may make an application to a judge of the Superior Court of Justice for an order described in subsection (10) if,

  (a)  torts or injuries to the person or to the property of the deceased, other than for libel and slander, occurred on or after January 1, 1981;

  (b)  the executor or administrator of the deceased did not bring an action in respect of a claim for the torts or injuries mentioned in clause (a) on or before the second anniversary of the day on which the claim was discovered; and

   (c)  the second anniversary mentioned in clause (b) occurred before the day on which the Trustee Statute Law Amendment Act, 2004 comes into force.

Order

   (10)  Despite subsection (3), as it read immediately before the day on which the Trustee Statute Law Amendment Act, 2004 comes into force, the judge may make an order allowing the executor or administrator to bring an action in respect of a claim for the torts or injuries mentioned in clause (9) (a), within the time period that the judge specifies, if satisfied that it was not unreasonable in the circumstances for the executor or administrator not to bring an action in respect of a claim for the torts or injuries on or before the second anniversary of the day on which the claim was discovered.

Contents of order

   (11)  In the order, the judge may make whatever order that the judge considers is necessary to allow the executor or administrator to maintain the action.

   2.  The Schedule to the Limitations Act, 2002 is amended by striking out the item for the Trustee Act and substituting the following:

Commencement

   3.  This Act comes into force on the day it receives Royal Assent.

Short title

   4.  The short title of this Act is the Trustee Statute Law Amendment Act, 2004.

EXPLANATORY NOTE

The Bill amends section 38 of the Trustee Act to allow the executor or administrator of a deceased person to bring or maintain an action for wrongful death of the deceased based on torts or injuries to the person or to the property of the deceased, other than for libel and slander, that occurred on or after January 1, 1981.

The limitation period for the executor or administrator of the deceased to bring an action for those torts or injuries is amended to expire on the second anniversary of the day on which a claim for them was actually discovered or reasonably ought to have been discovered, rather than on the second anniversary of the date of death of the deceased, as is presently the case under subsection 38 (3) of the Act. The amended limitation period applies to actions even if it expired before the amendments in the Bill come into force.

If the amended limitation period expired before the amendments in the Bill come into force and the executor or administrator did not bring an action within that period, the executor or administrator has 180 days to apply to a judge of the Superior Court of Justice for an order allowing the executor or administrator to bring an action. If satisfied that the failure of the executor or administrator to bring an action was not unreasonable in the circumstances, the judge may make the order. The judge is to specify in the order the time period during which the executor or administrator is allowed to bring the action.