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Same Cause, Separate Action: Malik v Nikbakht, 2021 ONCA 176

3 minute read

In a recent decision (Malik v Nikbakht, 2021 ONCA 176), the Court of Appeal for Ontario examined whether a proposed Family Law Act claim was a separate and distinct cause of action from a negligence claim initiated by the Plaintiff.

The moving party, Mr. Malik, and his children were injured in a motor vehicle accident. Mr. Malik brought an action for the injuries he sustained allegedly as a result of the accident within the applicable limitation period. The children brought a separate action for their own injuries and included Family Law Act claims for damages allegedly arising from the injuries suffered by their other family members. Four years after the accident Mr. Malik sought leave to amend his statement of claim to add his own section 61 Family Law Act claims.

Mr. Malik’s motion was resisted by the respondent, Mr. Nikbakht. The respondent argued that the Family Law Act claims proposed constituted a new cause of action that was statute barred due to the expiry of the limitation period. At first instance, the Master hearing the motion granted leave for Mr. Malik to amend his pleadings, relying on the decision in Bazkur v Coore, 2012 ONSC 3468. The court in Bazkur held that subsequent section 61 Family Law Act claims added to a timely negligence action were claims for additional damages arising from the existing claim and not subject to the applicable limitation period.

The respondent appealed the Master’s decision. The appeal judge of the Superior Court of Justice concluded that the decision in Bazkur was wrong and that claims made under section 61 of the Family Law Act are distinct causes of action from a negligence claim brought for personal injury. Such claims are therefore subject to the limitation period and, therefore, the appeal judge concluded that Mr. Malik’s claims were statute barred. Mr. Malik’s motion was dismissed.

Mr. Malik appealed to the Court of Appeal. The Court of Appeal agreed with the appeal judge below. The court clarified that a claim under section 61 of the Family Law Act is for damages caused to the claimant as a result of the injuries caused to the family member as a result of alleged negligent breaches by the defendants of duties of care owed to the family members. This contrasts with a claim for damages arising from injuries caused to the claimant personally by alleged negligent breaches by the defendant of the duty of care owed to the claimant. The court concluded that claims under section 61 of the Family Law Act, while derivative in nature, were separate and distinct causes of action and therefore the limitation period as set out in the Limitations Act, 2002, applied.

This is a cautionary tale. Those bringing an action for personal injury must ensure that they have considered all possible claims, including Family Law Act claims within the applicable limitation period. Those defending such actions should closely review any request to amend pleadings to add additional claims when the limitation period has elapsed.

Jacqueline A. Fortner

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