In Kramarz v. KMS Cardiology & Diagnostic Centres, Mr. Justice Thomas R. Lederer held that a negligence action against a cardiologist was brought out of time. The suit had been commenced under the Family Law Act by members of the deceased’s family. The action was brought some two-and-a-half years after the death.
The defendant contended that the claim was prescribed by the two-year limitation period in s. 38(1) of the Trustee Act.
The main issue in the case was the effect of the transitional provisions of the Limitations Act, 2002.
Justice Lederer thought it evident that the Trustee Act limitation (two years from the date of death) governed the claim:
[7] The law is clear. The derivative nature of actions brought under the Family Law Act determines that the two-year limitation imposed by the Trustee Act applies to such actions (see: Smith Estate v. College of Physicians & Surgeons of Ontario (1998), 41 O.R. (3d) 481 (C.A.); Swain Estate v. Lake of the Woods Hospital (1992), 9 O.R. (3d) 74 (C.A.) leave to appeal to S.C.C. refused at (1993), 19 C.P.C. (3d) 25n and Waschkowski v. Hopkinson Estate (2000), 47 O.R. (3d) 370 (C.A.)).
That limitation period would mean that this action was out of time. (Although it was evidently not argued in this case, the Court of Appeal has held that the discoverability principle does not apply to postpone the commencement of the Trustee Act limitation period.)
The more contentious issue in the case was whether the action was saved from prescription by the Limitations Act, 2002. Justice Lederman ruled that it was not.
The plaintiff argued that, by virtue of the transitional provisions of s. 24 of the Act, there was no limitation period that applied to the claim. Subsection 24(2) says that the transitional section, “applies to claims based on acts or omissions that took place before the effective date and in respect of which no proceedings have been commenced before the effective date.”
The transitional provisions depend on whether or not there was a “former limitation period” that applied. That phrase, “former limitation period”, is defined in subsection 24(1) as, “the limitation period that applied in respect of the claim before the coming into force of this Act.”
In this case, the plaintiffs argued that because the limitation period in s. 38 of the Trustee Act applied before the Limitations Act, 2002 came into force, there is no “former limitation period”. They relied on subsection 24(4) of that Act, which says:
If the former limitation period did not expire before the effective date and if no limitation period under this Act would apply were the claim based on an act or omission that took place on or after the effective date, there is no limitation period.
Justice Lederer rejected this argument. He noted that the Trustee Act limitation period had survived the enactment of the Limitations Act, 2002 (it is included in a Schedule to the Act, listing the limitation periods which continue to apply). He also thought it significant that the plaintiff’s submission would mean that causes of action arising in a certain window of time would have no limitation period, while the same cause of action arising earlier or later would be subject to a limitation period:
Understood in this way, the limitation period in the Trustee Act is not a “former limitation period” because as a result of s. 19(1) of the Limitations Act, 2002 it continues in place. We are not transitioning from one regime to another. The Trustee Act did and does apply. It is not “of…the past”. The rights of the plaintiffs have not and will not change. The idea that for a brief period they have changed so that there is no applicable limitation period is not demonstrated by any policy, intention or words found in or derived from the legislation. Accordingly, the action is out of time.