Nova Scotia enforces a stringent limitation period for claims involving fatal injuries. Among all ten provinces and three territories in Canada, only Yukon and Nova Scotia jurisdictions have a limitation period of 12 months for fatal injuries.
All other jurisdictions allow fatal injury claims to be filed within two years from the time a deceased passed away. This article draws attention to Nova Scotia’s stringent limitation period laws and calls for their amendment to align with all other jurisdictions in Canada and contemporary legal standards.
In the case ‘MacLean v. MacDonald, NSCA 30 (2002),’ Nova Scotia’s Court of Appeal highlighted the history of claims involving fatal injuries in this region. In 1846, the law that prevented the family of a deceased individual from taking legal action in a tort was considered ‘unsatisfactory’ and ‘significantly amended’ by England’s legislature.
During this period, the common law in all Canadian jurisdictions followed suit. However, Nova Scotia enacted its Fatal Injuries Act in 1873 to pave the way for legal action for the benefit of the deceased individual’s immediate family members.
Justification for Limitation Statutes
In M. (K.) v. M. (H.), [1992] 3 S.C.R. 6, Canada’s Supreme Court provided three justifications for general statutes of limitation. First, after a specified period, an alleged offender should be certain that the plaintiff (or complainant) won’t pursue legal action against them. Secondly, all injury claims must be filed before the related evidence becomes stale.
Third, complainants are legally expected to act diligently and avoid what the court referred to as ‘sleeping on their rights.’ However, the Supreme Court still recognized that these three rationales reflect the defendant’s interests, and there should be fairness to the complainant. This was reflected in the case Murphy v. Welsh, [1993] 2 S.C.R. 1069.
Additionally, Canada’s Supreme Court (in Novak v. Bond, [1999] 1 S.C.R. 808) realized that various legislatures have implemented amendments to ‘modernize’ their statutes of limitations. Thus, there has been attention towards ensuring limitation periods also consider the interests of the plaintiff instead of focusing solely on the defendant.
Generally, contemporary statutes are intended to balance the three conventional justifications for statute of limitations with the need to treat the complainants or plaintiffs fairly. This revolution has led to statutes of limitations that reflect a fourth justification – they account for the complainant’s circumstances as analyzed through an objective/subjective lens. Unfortunately, Nova Scotia’s fatal injury law is lagging behind this revolution. The current 12-month period doesn’t appropriately consider the complainant’s circumstances.
The Need for Fatal Injury Act Amendment
All fatal injury claims are usually filed by a surviving member of the deceased’s family on behalf of the estate. As the limitations period starts, the family members are often grieving the loss of a loved one. Furthermore, they may be making funeral arrangements, managing estate affairs, and handling various administrative tasks that could interfere with their ability to file a legal action against the defendant within the recommended period.
According to the Limitations of Actions Act in Nova Scotia, personal injury claims and all other civil claims have a limitation period of two years. Considering the potential overlap of the cases involving personal injuries and fatal injuries, the difference in their limitation period is quite striking.
Further, the unfairness and arbitrariness of the difference in the two limitation periods can be illustrated hypothetically. Suppose one passenger sustained minor injuries and another passenger died in the same car accident. In that case, you would expect the two cases to adhere to the same limitations period as long as certainty, evidentiary, and diligence rationales are applied.
In both cases, the defence lawyer(s) have an equal interest in knowing if the plaintiff is pursuing legal action, encouraging the complainant to act diligently, and ensuring the evidence is preserved. Applying the rationale that accounts for the specific circumstances of the complainant (the party filing the legal action), you would expect the fatal injury case to have an equal limitation period with the personal injury case. However, this isn’t the case in Nova Scotia.
Thus, Nova Scotia’s fatal injury law requires critical action. Its punitive limitation period is inconsistent with the legal principles set out in the Novak v. Bond by Canada’s Supreme Court. Furthermore, the Fatal Injury Act is out of step with other statutes of limitation across Canada. It fails to account for the circumstances of the grieving family members of the deceased person. Thus, it imposes undue stress or burden on Canadians seeking redress for fatal injuries sustained by their loved ones.
Nova Scotia legislation should consider extending the limitation period for fatal injury claims to two years. This would demonstrate the commitment to balance the plaintiff’s interests with those of the defendant. Further, this change would promote the values of justice, dignity, and compassion.
Disclaimer: This article was originally published on law360.