Rationale for Revising Nova Scotia’s Fatal Injuries Act

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. Further, in Quebec, a plaintiff has three years to file a fatal injury claim.

This article draws attention to Nova Scotia’s stringent limitation period for fatal injury claims and calls for its amendment to align it with other jurisdictions in Canada and contemporary legal standards.

In the case of 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 Canadian common law followed suit.

In 1873, Nova Scotia’s legislature codified this change in statute by enacting the Fatal Injuries Act. The Fatal Injuries Act provides a clear mechanism for legal action for the benefit of the deceased’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 general justifications for limitation statutes. First, after a specified period, a defender should be certain that the plaintiff won’t pursue legal action against them. Second, all injury claims must be filed before the related evidence becomes stale.

Third, complainants are 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 promote the defendant’s interests, and there should be fairness to the plaintiff. This aim was reflected in the case Murphy v. Welsh, [1993] 2 S.C.R. 1069.

Additionally, in Novak v. Bond, [1999] 1 S.C.R. 808, Canada’s Supreme Court emphasized 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 balance the three conventional justifications for limitations with the need to treat the plaintiffs fairly. This evolution has led to statutes of limitations that reflect a fourth justification: they account for the claimant’s circumstances as analyzed through an objective/subjective lens. Unfortunately, Nova Scotia’s fatal injury law is lagging behind. The current 12-month period doesn’t appropriately consider the claimant’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 most civil claims have a limitation period of two years from the date the claim is discovered. Considering the potential overlap of the cases involving personal injuries and fatal injuries, the difference in their limitation period is quite striking.

The unfairness and arbitrariness of the difference in the two limitation periods can be illustrated with an example. Suppose one passenger sustained minor injuries and another passenger died in the same car accident. In this case, applying the certainty, evidentiary, and diligence rationales, you would expect the two plaintiffs to have the same limitation period.

In both cases, the defendant ) has an equal interest in knowing if the plaintiff is pursuing legal action, ensuring the evidence is preserved, and encouraging the plaintiff to bring the action within a reasonable amount of time. Applying the fourth rationale that accounts for the specific circumstances of the claimant (the party filing the legal action), you would expect the fatal injury case to have at least the same limitation period as the personal injury case After all, the family members bringing the fatal injury claim may be grieving. However, this isn’t the case in Nova Scotia.

Given this, Nova Scotia’s fatal injury law should be reevaluated. 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 and burden on Canadians seeking redress for fatal injuries sustained by their loved ones.

Nova Scotia legislature 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 and reflect the aim of a fair and just legal system

Note: This article was originally published on Law360 Canada, a publication by Lexis Nexis

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