At our weekly meeting, Chris MacDonald discussed a recent decision by the Court of Appeal in Malik v. Nikbakht, 2021 ONCA 176.
In this decision, the Court of Appeal considered an appeal brought by the plaintiff, Sarfraz Malik. Mr. Malik appealed a lower court decision where the court held that he was statute barred by the Limitations Act, 2002 from amending his statement of claim to add claims under section 61 of the Family Law Act (“FLA”) for his losses arising from injuries to his children, some four years after he had issued a statement of claim.
The Court of Appeal dismissed Mr. Malik’s appeal and held that a claim under section 61 of the FLA is its own cause of action distinct from a claim in negligence.
Section 61 of the Family Law Act, R.S.O. 1990, c. F.3
Section 61 of the FLA effectively provides an avenue for family members to sue for compensation sustained by their relatives. It states:
Right of dependants to sue in tort
61 (1) If a person is injured or killed by the fault or neglect of another under circumstances where the person is entitled to recover damages, or would have been entitled if not killed, the spouse, . . . children, grandchildren, parents, grandparents, brothers and sisters of the person are entitled to recover their pecuniary loss resulting from the injury or death from the person from whom the person injured or killed is entitled to recover or would have been entitled if not killed, and to maintain an action for the purpose in a court of competent jurisdiction.
Mr. Malik, his wife, and three children were injured in a three-car motor vehicle accident in 2013. The next year, Mr. Malik sued the owners and operators of the other vehicles for damages relating to the injuries he suffered from the collision. His statement of claim did not include claims under section 61 of the FLA.
Mr. Malik’s wife and children also brought lawsuits, including against Mr. Malik, and did include FLA claims for their damages arising from injuries to each other.
Over four years later, in 2018, Mr. Malik brought a motion for leave to amend his statement of claim to add section 61 claims relating to his losses arising from the injuries to his children. One of the defendants, Amir Nikbakht, contested the motion and argued that the proposed claims under section 61 of the FLA constituted a new statutory cause of action which were statute barred, as the two-year limitation period to add such claims had expired.
Decision on the Motion
Master Wiebe of the Superior Court granted Mr. Malik’s motion. The judge found that he was bound by a 2012 decision of a single judge of the Divisional Court, Bazkur v. Coore, where the court held that subsequent FLA claims added to a timely negligence action are merely claims for additional damages arising from the existing negligence claim, and therefore are not subject to the two-year limitation period in the Limitations Act, 2002.
The Master’s decision was appealed by the defendant, Mr. Nikbakht.
Decision of the Appeal Judge
Mr. Nikbakht was successful in his appeal. The appeal judge of the Superior Court held that he was not bound to follow the decision in Bazkur, and that a claim under section 61 of the FLA is a cause of action distinct from the timely negligence claim brought by Mr. Malik. The FLA claims Mr. Malik sought to add were therefore statute-barred. Accordingly, the appeal judge set aside Master Wiebe’s order and dismissed Mr. Malik’s motion for leave to amend.
Mr. Malik appealed this decision to the Court of Appeal and sought an order allowing the amendment of his statement of claim.
Decision of the Court of Appeal
The Court of Appeal dismissed Mr. Malik’s appeal and held that a claim under section 61 of the FLA is its own cause of action, distinct from a claim in negligence. As Mr. Malik failed to bring his FLA claims within the applicable limitation period, his claims were statute-barred by the Limitations Act, 2002.
In its analysis, the court stated:
Mr. Malik’s s. 61 FLA claim would be for his damages arising out of injuries caused to his children as the result of allegedly negligent breaches by the defendants of duties of care they owed to his children [. . .] this is a fundamentally different claim than Mr. Malik’s negligence action, which claimed damages arising out of his own injuries caused as the result of allegedly negligent breaches by the defendants of duties of care they owed to him. [emphasis in original]
On this basis, the Court of Appeal affirmed the appeal judge’s decision and dismissed Mr. Malik’s appeal.
This decision shows that: (1) claims made pursuant to section 61 of the FLA must be made within the two-year limitation period under the Limitations Act, 2002; and (2), FLA claims are not considered to be merely claims for additional damages in circumstances where a timely negligence claim is made.
 Family Law Act, R.S.O. 1990, c. F.3, s. 61(1).
 Bazkur v. Coore, 2012 ONSC 3468, 292 O.A.C. 391 (Div. Ct.).
 Malik v. Nikbakht, 2021 ONCA 176, at para. 13.