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Bill 107, Trustee Statute Law Amendment Act, 2004

Klees, Frank

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Debates

Acts affected

Original

Bill 107 2018

Act to amend the Trustee Act and the Limitations Act, 2002 with respect to a

limitation period for actions for wrongful death and other estate matters

Her

Majesty, by and with the advice and consent of the Legislative Assembly of the

Province of Ontario, enacts as follows:

1. (1) Subsection

38 (1) of the Trustee Act is amended by adding

“that occurred before January 1, 1981” after “property of the deceased”.

(2) Section 38 of the Act is amended by

adding the following subsection:

Same,

in or after 1981

(1.1) Except in cases of

libel and slander, the executor or administrator of a deceased person may bring

or maintain an action for all torts or injuries to the person or to the

property of the deceased that occurred on or after January 1, 1981 in the same

manner and with the same rights and remedies as the deceased would, if living,

have been entitled to do, and the damages when recovered shall form part of the

personal estate of the deceased.

(3) Subsection 38 (3) of the Act is amended

by striking out “under this section” and substituting “under subsection (1) or

(2)”.

(4) Section 38 of the Act is amended by

adding the following subsections:

Definition

(4) In this section,

“claim”

means a claim to remedy a tort or an injury that occurred as a result of

an act

or omission.

Discovery

(5) For

the purposes of this section, a claim is discovered on the earlier of,

(

a) the

day on which the person with the claim first knew,

(

i) that

the tort or injury had occurred,

(ii) that

the tort or injury was caused by or contributed to by

an act or omission,

(iii) that

the act or omission was that of the person against whom the claim is made, and

(iv) that,

having regard to the nature of the tort or injury, an action would be an appropriate

means to seek to remedy it; and

(

b) the

day on which a reasonable person with the abilities and in the circumstances of

the person with the claim first ought to have known of the matters mentioned in

clause (a).

Previous

actions

(6) Despite any order of a court or body,

subsection (3), as it read immediately before the day on which the Trustee Statute Law Amendment Act, 2004 comes into force,

shall be deemed never to have applied to an action brought by the executor or

administrator of a deceased person if,

(

a) torts

or injuries to the person or to the property of the deceased, other than for

libel and slander, occurred on or after January 1, 1981; and

(

b) the

executor or administrator of the deceased brought an action in respect of a

claim for the torts or injuries mentioned in clause (

a) before the second

anniversary of the day on which the claim was discovered, but after the second

anniversary of the death of the deceased.

Limitation

period

(7) An action described in subsection

(6) shall not be brought after the expiration of the second anniversary of the day

on which the claim mentioned in that subsection was discovered.

Same

(8) An action that the executor or

administrator of a deceased person is entitled to bring as a result of

subsection (7) is not stayed or extinguished in any way and a court of

competent jurisdiction may make whatever order that it considers is necessary

to allow the executor or administrator to maintain the action.

New

actions previously discovered

(9) Within 180 days after the day on which

the Trustee Statute Law Amendment Act, 2004 comes

into force, an executor or administrator of a deceased person may make an

application to a judge of the Superior Court of Justice for an order described

in subsection (10) if,

(

a) torts

or injuries to the person or to the property of the deceased, other than for

libel and slander, occurred on or after January 1, 1981;

(

b) the

executor or administrator of the deceased did not bring an action in respect of

a claim for the torts or injuries mentioned in clause (

a) on or before the

second anniversary of the day on which the claim was discovered; and

(

c) the

second anniversary mentioned in clause (

b) occurred before the day on which the

Trustee Statute Law Amendment Act, 2004 comes into force.

Order

(10) Despite subsection (3), as it read

immediately before the day on which the Trustee Statute

Law Amendment Act, 2004 comes into force, the judge may make an order

allowing the executor or administrator to bring an action in respect of a claim

for the torts or injuries mentioned in clause (9) (a), within the time period

that the judge specifies, if satisfied that it was not unreasonable in the

circumstances for the executor or administrator not to bring an action in

respect of a claim for the torts or injuries on or before the second

anniversary of the day on which the claim was discovered.

Contents

of order

(11) In the order, the judge may make

whatever order that the judge considers is necessary to allow the executor or

administrator to maintain the action.

2. The

Schedule to the Limitations Act, 2002 is amended by

striking out the item for the Trustee Act and

substituting the following:

Trustee Act

subsections

38 (3), (6), (7), (9) and

(10) Commencement

3. This

Act comes into force on the day it receives Royal Assent.

Short

title

4. The

short title of this Act is the Trustee Statute Law

Amendment Act, 2004 .

EXPLANATORY

NOTE

The

Bill amends

section 38 of the Trustee Act to allow

the executor or administrator of a deceased person to bring or maintain an

action for wrongful death of the deceased based on torts or injuries to the

person or to the property of the deceased, other than for libel and slander,

that occurred on or after January 1, 1981.

The

limitation period for the executor or administrator of the deceased to bring an

action for those torts or injuries is amended to expire on the second

anniversary of the day on which a claim for them was actually discovered or

reasonably ought to have been discovered, rather than on the second anniversary

of the date of death of the deceased, as is presently the case under subsection

38 (3) of the Act. The amended limitation period applies to actions even if it

expired before the amendments in the Bill come into force.

the amended limitation period expired before the amendments in the Bill come

into force and the executor or administrator did not bring an action within

that period, the executor or administrator has 180 days to apply to a judge of

the Superior Court of Justice for an order allowing the executor or

administrator to bring an action. If satisfied that the failure of the executor

or administrator to bring an action was not unreasonable in the circumstances,

the judge may make the order. The judge is to specify in the order the time period

during which the executor or administrator is allowed to bring the action.

Date Bill stage Activity Committee

June 22, 2004

First Reading

Carried

Debates and Progress

First Reading

June

22, 2004

Second Reading

Committee

Third Reading

Royal Assent :

Coming into force :Royal Assent.

Acts Affected: Most Ontario public acts are available electronically; to view copies of the Acts to be amended by this bill visit e-Laws .

Trustee Act

Limitations Act, 2002

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