In Wilson v. Arseneau, 2012 ONSC 2879 (CanLII), Mr. Justice John McDermot held that a statement of claim can be amended to add a claimant under the Family Law Act more than two years after the accident giving rise to the claim, provided that an action has been commenced within the limitation period by the person from whose injury or death the FLA claim is derived. His conclusion appears in the following passage: “It therefore appears to me that a derivative action under the Family Law Act may be added to the main action outside of the limitation period by way of amendment so long as the main action is properly constituted.”
Justice McDermot does not appear to have cited any authority in support of this proposition, but there is at least one decision that came to the opposite conclusion.
In Tikhanova v. Covelli et al., 2004 CanLII 27026 (ON SC), Master Hawkins refused to allow an amendment to add an FLA claimant to an existing action after the limitation period had expired.
Justice McDermot also based his decision on the discoverability principle. The facts of this case were quite unusual. The principal plaintiff, who had originally been injured in a motor vehicle accident, killed herself after an action had been commenced on her behalf. In her suicide note, she said, “that the “insurance company killed me” and that “[t]he car accident pushed me over the top, caused me to drown”. His Honour concluded that the suicide was a “triggering event”, such that the FLA claim only became discoverable at that point.
This raises an interesting point: who would be the appropriate defendant in an action for damages based on the suicide? Could it really be said that the plaintiff’s suicide was an event reasonably foreseeable to the motorist who was involved in the collision giving rise to her original claim? Or should the claim arising out of the suicide properly (if there is any “proper” claim) be brought against the insurer that conducted the defence of her claim?
Finally, Justice McDermot also cited the Supreme Court of Canada’s decision in Peixeiro v. Haberman, 1997 CanLII 325 (SCC),  3 S.C.R. 549 for the proposition that the FLA claim might only have become discoverable once the damages increased beyond the Insurance Act deductible upon the plaintiff’s suicide. This again raises the issue of who is the proper defendant to this claim.
All in all, lots of questions, most arising out of the very unusual facts. But the first ground for Justice McDermot’s decision, that an FLA claim can be brought outside the limitation period if the main plaintiff sues in time, has broad application and deserves appellate attention.