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| Sean Davidson |
Every other jurisdiction allows a fatal injury claim to be brought within two years of the deceased’s passing. This article calls for attention to this issue, and for the amendment of the limitation period for fatal injuries to align it with other Canadian jurisdictions and contemporary legal standards.
In MacLean v. MacDonald, 2002 NSCA 30 the Nova Scotia Court of Appeal summarized the legal history of fatal injury claims in Nova Scotia. In 1846, the rule preventing the family of a deceased from bringing an action in tort was deemed “unsatisfactory” and “considerably amended” by England’s legislature. Around this time, the common law in Canadian jurisdictions followed suit and, in 1873, Nova Scotia’s legislature enacted the Fatal Injuries Act to allow an action to be brought for the benefit of the deceased’s immediate family.
In M. (K.) v. M. (H.), [1992] 3 S.C.R. 6 the Supreme Court of Canada provided three rationales for general limitation statutes. First, after a certain period, a defendant should feel certain that an action will not be brought against them. Second, claims should be brought before the evidence becomes stale. Third, plaintiffs are expected to act diligently and not “sleep on their rights.” However, in Murphy v. Welsh, [1993] 2 S.C.R. 1069, the Supreme Court of Canada recognized that these traditional rationales generally reflect the interests of a defendant and “there must be fairness to the plaintiff as well.”
In Novak v. Bond, [1999] 1 S.C.R. 808, the Supreme Court of Canada identified that legislatures have moved to “modernize” their limitation statutes. Renewed attention to limitation statutes has been given to ensure that limitation periods account for “the plaintiff’s interests, not just those of the defendant. Accordingly, contemporary statutes aim to balance the three conventional rationales with “the need to treat plaintiffs fairly, having regard to their specific circumstances.” As a result of this evolution, limitation statutes now reflect a fourth rationale: they must account for the plaintiff’s circumstances, as assessed through a subjective/objective lens.
Nova Scotia’s Fatal Injuries Act is lagging behind this trend. The current one-year limitation period set out in s. 10 does not properly account for the plaintiff’s circumstances.
Fatal injury claims are typically brought by a family member of the deceased on behalf of the estate. When the limitation period begins, family members are most often grieving the death of their loved one. In addition, they may be managing the affairs of the estate, planning a funeral, and overseeing several administrative tasks that interfere with their ability to commence an action within the prescribed period.
Under Nova Scotia’s Limitations of Actions Act, civil claims, including personal injury claims, generally have a two-year limitation period. Given the potential overlap between the facts of personal injury and fatal injury cases, the difference in the two limitation periods is striking.
The arbitrariness and unfairness of this difference can be illustrated with a hypothetical. Suppose there was a car accident in which one passenger sustained a minor injury and another passenger died. Applying the “certainty, evidentiary, and diligence rationales,” one would expect the two matters to have the same limitation period: in both cases, the defence has an equal interest in knowing whether an action is being brought, ensuring the evidence is fresh, and encouraging the plaintiff to be diligent (M. (K.) v. M. (H.). Applying the fourth rationale, which accounts for the circumstances of the party bringing the action, one would expect the fatal injury matter to have at least an equal limitation period. However, under the current regime, that is not the case.
The punitive limitation period in Nova Scotia's Fatal Injuries Act demands critical attention. Nova Scotia’s limitation statute is inconsistent with the principles set out by the Supreme Court of Canada in Novak v. Bond and is out of step with other Canadian jurisdictions. By failing to account for the circumstances of the grieving party, the legislation imposes undue burdens on families seeking redress for fatal injuries. By increasing the limitation period to two years, the Nova Scotia legislature can demonstrate its commitment to balancing the interests of plaintiffs and defendants, and promote the values of dignity, compassion and justice.
Sean Davidson graduated from Dalhousie University’s Schulich School of Law on May 16, 2023. He is currently articling at Wagners Law Firm, a boutique personal injury law firm in Halifax, Nova Scotia, and works primarily in its Medical Malpractice and Class Actions departments. Prior to attending law school, he studied at Queen’s University as a Loran Scholar, where he completed a bachelor’s in philosophy and a master’s in legal and political philosophy.
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