Camarata Estate et al. v. Morgan et al., (2009) 246 O.A.C. 235 (CA)

• Judge: Doherty, Weiler and MacFarland, JJ.A.
• Court: Court of Appeal (Ontario)
• Case Date: January 07, 2009
• Jurisdiction: Ontario
• Citations: (2009), 246 O.A.C. 235 (CA);2009 ONCA 38

Camarata Estate v. Morgan (2009), 246 O.A.C. 235 (CA)

MLB headnote and full text

Temp. Cite: [2009] O.A.C. TBEd. FE.063

Jose Camarata, Personally and as Executor and Trustee of the Estate of Manuel Teixeira Camarata, Deceased, Dolores Silva, Manuel Camarata, Antonio Camarata, Armando Camarata, Enrique Camarata, Otilia Sousa, Dolores Silva, Jacqueline Camarata, Tammy Disalle, Laura Camarata, Paul Camarata, Joe Camarata, Armando Camarata, Eric Camarata, Joe Camarata, Paul Camarata, Robert Camarata, Susan Mapplebeck and Steven Silva (plaintiffs/appellants) v. John Paul Morgan, the Corporation of the City of Toronto and/or City of Toronto Fire Services (defendants/respondents)

(C48879; 2009 ONCA 38)

Indexed As: Camarata Estate et al. v. Morgan et al.

Ontario Court of Appeal

Doherty, Weiler and MacFarland, JJ.A.

January 19, 2009.

Summary:

On February 12, 2004, Camarata was struck and seriously injured by a fire truck operated by the defendant Morgan and owned by the defendant City of Toronto. He died on June 1, 2004. The representatives of Camarata's estate issued a statement of claim on March 16, 2006, more than two years after the date of the accident but within two years from the date of Camarata's death. The defendants applied for summary judgment.

The Ontario Superior Court, in a decision reported at [2008] O.T.C. Uned. 970, dismissed the estate's action under rule 20.04(2)(a) as statute-barred and granted summary judgment. The estate appealed.

The Ontario Court of Appeal dismissed the appeal.

Limitation of Actions - Topic 1906

Actions - General - Derivative actions - The deceased suffered injuries in a motor vehicle accident and died some months later - The Ontario Court of Appeal held that claims brought by the deceased's dependants under s. 61 of the Family Law Act (FLA) were derivative - The limitation period governing the principal action (brought by the trustee) also governed the claims made under s. 61 - Section 61(1) created a cause of action in favour of certain relatives of "a person [who] is injured or killed by the fault or neglect of another under circumstances where the person is entitled to recover damages." - The section contemplated claims triggered by the injury or death of that person - While the death of the injured party would have consequences for the kind of damages claimed, death did not create a new cause of action - Here, the cause of action under s. 61 arose when the deceased suffered his injuries - Section 267.5(5) of the Insurance Act provided that "Despite any other Act ... the owner of an automobile, the occupants of an automobile and any person present at the incident are not liable in an action in Ontario for damages for non-pecuniary loss, including damages for non-pecuniary loss under clause 61(2)(e) of the Family Law Act, from bodily injury or death arising directly or indirectly from the use or operation of the automobile, unless as a result of the use or operation of the automobile the injured person has died or has sustained, (a) permanent serious disfigurement; or (b) permanent serious impairment of an important physical, mental or psychological function." - Section 267.5 did not speak to any limitation period applicable to the claim described in that section - Nothing in the Limitations Act suggested that the general provisions in ss. 4 and 5 of that Act did not apply - See paragraphs 9 to 13.

Limitation of Actions - Topic 3028

Actions in tort - Motor vehicle accidents - When time begins to run - General - [See Limitation of Actions - Topic 1906 and first Limitation of Actions - Topic 8602 ].

Limitation of Actions - Topic 8602

Claims by or against an estate - Claim by an estate - Applicable limitation period - The Ontario Court of Appeal held that the limitation period to bring an action by an estate for damages for injuries to the deceased, arising from a motor vehicle accident, ran from the date of the motor vehicle accident, not from the date of the deceased's death.

Limitation of Actions - Topic 8602

Claims by or against an estate - Claim by an estate - Applicable limitation period - Section 38(1) of the Trustee Act provided in part that "the executor or administrator of any deceased person may maintain an action for all torts or injuries ... in the same manner and with the same rights and remedies as the deceased would, if living, have been entitled to do" - Section 38(3) provides that "an action under this section shall not be brought after the expiration of two years from the death of the deceased." - The Ontario Court of Appeal held that "Section 38(3) of the Trustee Act does not have the effect of tolling a limitation period that excludes the limitation period made applicable to the action by ss. 4 and 5 of the Limitations Act. Section 38(3) creates a second limitation period that operates in addition to any limitation period that would have applied had the deceased been able to carry on with the action. In some circumstances, s. 38(3) will effectively shorten what would otherwise be the applicable limitation period ... Section 38(3) cannot extend the limitation period that would have been applicable had the deceased not died and been able to carry on with his action." - See paragraph 8.

Cases Noticed:

Swain Estate v. Lake of the Woods District Hospital (1992), 56 O.A.C. 327 (C.A.), refd to. [para. 7].

Ryan v. Moore et al., [2005] 2 S.C.R. 53; 334 N.R. 355; 247 Nfld. & P.E.I.R. 286; 735 A.P.R. 286; 254 D.L.R.(4th) 1; 2005 SCC 38, refd to. [para. 7].

Smith Estate et al. v. College of Physicians and Surgeons (Ont.) et al. (1998), 115 O.A.C. 146; 41 O.R.(3d) 481 (C.A.), refd to. [para. 9].

Statutes Noticed:

Family Law Act, R.S.O. 1990, c. F-3, sect. 61 [para. 9].

Insurance Act, R.S.O. 1990, c. I-8, sect. 267.5(5) [para. 11].

Trustee Act, R.S.O. 1990, c. T-23, sect. 38(1), sect. 38(3) [para. 6].

Counsel:

William G. Scott, for the appellants;

Robert Traves and Michael White, for the respondents.

This appeal was heard on January 7, 2009, by Doherty, Weiler and MacFarland, JJ.A., of the Ontario Court of Appeal. The court delivered the following decision on January 19, 2009.