Uniform Acts Drafting Conventions

(1963 Proceedings, pages 28, 136)

Interpretation

1. In this Act "cause of action " means the right to institute a civil proceeding, and includes a civil proceeding instituted before death, but does not include a prosecution for contravening a statute, regulation or by-law.

What causes of action survive

2. (1) All causes of action vested in a person who dies after the commencement of this Act, other than causes of action in respect of,

(a) adultery;

(b) seduction; or

(c) inducing one spouse to leave or remain apart from the other,

survive for the benefit of his estate.

(2) The rights conferred by subsection (1) are in addition to and not in derogation of any rights conferred by the Fatal Accidents Act.

Idem

3. All causes of action subsisting against a person who dies after the commencement of this Act survive against his estate.

Idem

4. Where damage has been suffered by reason of an act or omission as a result of which a cause of action would have or at the same time as the damage was suffered, there is deemed to have been subsisting against him before his death whatever cause of action as a result of the act or omission would have subsisted if he had not died before or at the same time as the damage was suffered.

What damages are recoverable by estate of decreased person

5. Where a cause of action survives for the benefit of the estate of a deceased person, only damages that have resulted in actual pecuniary loss to the deceased person or the estate are recoverable and, without restricting the generality of the foregoing, the damages recoverable shall not include punitive or exemplary damages or damages for loss of expectation of life, pain and suffering or physical disfigurement.

Calculation of damages

6. Where the death of a person was caused by the act or omission that gave rise to the cause of action, the damages shall be calculated without reference to any loss or gain to his estate consequent on his death, except that there may be included in the damages awarded an amount sufficient to cover the reasonable expenses of the funeral and the disposal of the body of the deceased [not exceeding ................... dollars in all,] if those expenses were, or liability therefor was, incurred by the estate.

(NOTE: The words in brackets are optional.)

Nature of case of action

7. Every cause of action that survives under this Act and every judgment or order thereon or relating to the costs thereof is an asset or liability, as the case may be, of the estate for the benefit of which or against which the action was taken or the judgment or order made.

Administration ad litem

8. (1) Where a cause of action survives against the estate of a deceased person and there is no personal representative of the deceased person against whom such an action may be brought or continued in this Province, a court of competent jurisdiction, or any judge thereof, may,

(a) on the application of a person entitled to bing or continue such an action; and

(b) on such notice as the court or judge may consider proper,

appoint an administrator ad litem of the estate of the deceased person.

Idem

(2) The administrator ad litem is an administrator against whom such an action may be brought or continued and by whom such an action may be defended..

Administrator ad litem as defendant

(3) The administrator ad litem as defendant in any such action may take any steps that a defendant may ordinarily take in an action, including third party proceedings and the brining, by way of counterclaim, of any action that survives for the benefit of the estate of the deceased person.

Judgment by or against administrator ad litem

(4) Any judgment obtained by or against the administrator ad litem has the same effect as a judgment in favour of or against the deceased person, or his personal representative, as the case may be, but it has no effect for or against the administrator ad litem in his personal capacity.

Special limitation periods

9. (1) Notwithstanding the Limitation of Actions Act or any other Act limiting the time within which an action may be brought, a cause of action that survives under this Act is not barred until the expiry of the period provided by this section.

Idem

(2) Proceedings on a cause of action that survives under section 2 or 3 may be brought

(a) within the time otherwise limited for the bringing of the action; or

(b) within one year from the date of death, whichever is the longer period.

Idem

(3) Proceedings on a cause of action that survives under section 4 may be brought

(a) within the time otherwise limited for the bringing of the action, which shall be calculated from the date the damage was suffered; or

(b) within one year from the date the damage was suffered,

Whichever is the longer period.

Barred causes of action not revived

(4) [Subject to subsection (5)], this Act does not operate to revive any cause of action in or against a person that was barred at the date of his death.

Counterclaims and third party proceedings

[(5) Any enactment that permits action to be instituted by way of counterclaim or third party proceedings after the expiry of the time otherwise limited for the bringing of the action applies with respect to proceedings under this Act.]

NOTE: The words in brackets may be adopted in jurisdictions that have provisions similar to section 131(2) of the Vehicles and Highway Traffic Act (Alberta) which permits counterclaims and third party proceedings after the expiry of the one year limitation period for motor vehicle negligence cases.

10. The Crown is bound by this Act.

11. Sections .................... of [the Trustee Act] and section ...................... of [the Limitation of Actions Act] are repealed.

NOTE: Te be varied to meet the requirements of each jurisdiction.

Next Annual Meeting

2018 Conference (Centennial)

Delta Hotel

Québec City, QC

August 12 - 16, 2018