In Godoy v. 475920 Ontario Ltd., Mr. Justice Thomas R. Lederer considered whether the limitation period in s. 38(3) of the Trustee Act trumps the one in s. 61(4) of the Family Law Act. He held that it does. In doing so, he reiterated a number of the conclusions that he had come to in the recent decision of Kramarz v. KMS Cardiology Centres.
Here, the mother of the plaintiffs had been sexually assaulted and murdered. The plaintiffs sued the individual who had committed the crime and several other parties. Their action was based on s. 61(1) of the Family Law Act.
The case proceeded to trial in January, 2007 but the trial was adjourned. Two weeks later, counsel for the defendants raised, for the first time, his intention to seek an amendment of the statement of defence, to plead the Trustee Act limitation period. In today’s ruling, Justice Lederer allowed the amendment and dismissed the action as statute-barred.
(Both the FLA and the Trustee Act contain two-year limitation periods, but the provision under the Trustee Act runs from the date of death and is not subject to the principle of discoverability. Thus, it can potentially expire before the plaintiff even knows that he or she has a cause of action. The same is not true of the limitation period under the FLA.)
In Godoy, His Honour discussed in greater detail (than he had done in Kramarz) the derivative nature of claims under the Family Law Act. Counsel for the plaintiffs argued that the claims of FLA claimants are not barred by the Trustee Act where no claim has been made under that Act on behalf of the deceased’s estate. Here, the estate of the deceased had not sued, so it was argued that only the limitation period under the FLA applied. Since that limitation runs from the date on which the cause of action arose and can be postponed by the discoverability principle, the plaintiffs’ action might not have been defeated if the FLA provision applied.
However, Justice Lederer ruled that it makes no difference to the applicability of s. 38(3) of the Trustee Act, whether or not the estate has advanced a claim of its own: “In my mind, the derivative relationship of the claim under the Family Law Act to the right to sue provided to the estate by the Trustee Act does not spring from the fact that an action has been commenced, but from the connection between the rights the two Acts provide.”