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The Family Member’s Rights in a Personal Injury Case

The impacts of fatal or injurious accidents often send shockwaves throughout families. A perosn’s loss of independence, their loss of their abilities to continue working, and indeed the loss of their lives often puts extreme financial strains on their close relatives. In accordance with provincial law, certain family members of injured or wrongfully deceased accident victims may be able to pursue damages for costs they have incurred as a result of their loved one’s accident.

Some of the damages to which close relatives of accident victims may be entitled include:

  • The “actual expenses” incurred by the family member on behalf of the victim
  • The costs of providing any “nursing, housekeeping, or other services” for the victim as a result of their accident-related injuries
  • Compensation for the loss of the victim’s “guidance, care, and companionship,” again as a consequence of the accident

Case Study: Scalabrini v. Khan

Ontario law generally imposes a two-year limitations period on personal injury claims. That is to say, if you are injured in an auto accident that occurred on January 1, 2017, you have until January 1, 2019, to file a lawsuit. A judge is required to dismiss any claim filed after the limitations period unless an exception applies.

What happens if you are not immediately aware of your injury? This often comes up in medical malpractice cases, where a patient may not learn about or “discover” the doctor’s negligence until months or even years later. To address such situations, Ontario’s Limitations Act makes it clear that the two-year clock does not begin to run until the day on which the claim is “discovered” or should have been discovered by a “reasonable person” under the circumstances.

So, how does the discoverability provisions of the Limitation Act apply to a potential claim under the Family Law Act? An Ontario Superior Court official recently addressed this question as part of an ongoing personal injury lawsuit, Scalabrini v. Khan. In this case, a spouse of an accident victim asked for permission to join the case as a plaintiff under the Family Law Act. The defence objected on the grounds that more than two years had passed between the date of the original accident and the spouse’s motion.

Accident Leaves Victim Unable to Fix Roof, Spouse Later Gets Sick Due to Mold

The accident itself took place in June 2014. The plaintiff’s vehicle collided with the defendant’s vehicle on the Lower Jarvis Street ramp, which leads onto the Gardiner Expressway in downtown Toronto’s East Bayfront neighbourhood. The plaintiff subsequently filed a personal injury lawsuit against the defendant prior to the expiration of the two-year limitations period in June 2016.

The spouse’s Family Law Act claim arises from the events of October 1, 2018. On that date, the plaintiff and his spouse discovered via an inspection that their home was infested with mold. Now, you may be wondering what this has to do with the auto accident. According to the plaintiff, shortly before the June 2014 accident he had purchased approximately $34,000 worth of roofing tiles. The plaintiff planned to personally redo his roof. But due to the injuries sustained in the car accident, the plaintiff abandoned that plan as he said climbing the ladder on to his roof made him “dizzy.”

The spouse maintained that the plaintiff’s inability to repair the roof — a direct consequence of the auto accident caused by the defendant — caused the roof to leak, which in turn led to the mold problem. The spouse further alleged the mold caused her serious health problems. Consequently, she sought to add herself as a plaintiff to her spouse’s lawsuit to recover damages for her own injuries, as well as the financial losses she incurred “for the benefit of” her spouse.

The Master’s Ruling

The spouse’s motion add herself as a plaintiff was submitted to Donald E. Short, a case management master with the Ontario Superior Court of Justice. Masters are judicial officers who typically handle pre-trial motions in civil lawsuits. Here, Master Short reviewed the spouse’s petition and the defence’s objection and ultimately ruled in favour of adding the spouse as a plaintiff.

The basic legal dispute here was whether the spouse plausibly alleged that she could not have “discovered” the extent of her own injuries prior to the date she claimed in 2018. As an initial matter, Short observed that nothing in either the Family Law Act nor the Limitations Act “requires that the limitation period applicable to each derivative claim be the same as the limitation period applicable to principal claim.” In other words, just because the husband’s two-year clock started to run on the date of his accident, that did not mean the same was true for the spouse’s claim. Indeed, Short pointed a number of prior Ontario cases where a family member was allowed to bring a “derivative” Family Law Act claim as much as six years after the original victim’s injury.

In addition, Short explained that it was appropriate to “postpone the running of time until the material facts underlying the cause of action, including the extent of the injury, are known.” Here, the spouse alleged she was not aware of the “material facts” until 2018, when she learned about the mold problem, which she was then able to connect back to her spouse’s inability to repair the roof back in 2016 due to his accident. While Short said the evidence was “sparse” at this stage in support of this theory, it was nevertheless sufficient to justify adding the spouse as a plaintiff.


To learn more about options that might be available to you in the aftermath of a serious accident, call 1-800-JUSTICE to speak with Preszler Injury Lawyers in a free initial consultation on your case.

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