If a loved one passes away before their personal injury lawsuit concludes in Brampton, their claim does not disappear. Under Ontario law, the Estate Trustee can continue the lawsuit as a “survival action” at the Superior Court of Justice to recover compensation for the pain and suffering experienced between the injury and death.
Losing a family member is an incredibly painful experience, and it can be especially overwhelming if they were in the middle of a legal battle when they passed away. Whether they were pursuing a claim for a severe motor vehicle accident or a slip and fall in Brampton, many families wonder what happens to that pending lawsuit. In Ontario, the law recognizes that a negligent party should not escape liability simply because the injured person died before the case was resolved.
The legal mechanism that allows a pending claim to continue is often referred to as a survival action, governed by the provincial Trustee Act. This means the right to seek damages for the deceased’s pre-death pain and suffering “survives” them and is transferred to their estate. This guide explains the step-by-step process of how your family and a local law firm can keep the claim alive and protect your loved one’s legal rights.
Step-by-Step Process for Survival Actions in Brampton
Continuing a lawsuit after a plaintiff’s death requires specific administrative and legal adjustments. Whether the original incident occurred in Brampton, Mississauga, or elsewhere in Ontario, the case will generally continue through the Superior Court of Justice.
Step 1: Appointing an Estate Trustee
📄 Before the lawsuit can proceed, someone must have the legal authority to act on behalf of the deceased. If your loved one left a will, they likely named an Executor (now called an Estate Trustee in Ontario). If there is no will, a family member must apply to the court to be appointed as the Estate Trustee without a will.
Step 2: Amending the Statement of Claim
Once the Estate Trustee is formally recognized, your lawyer must amend the existing legal documents. They will file a motion at the local courthouse, such as the one on Hurontario Street, to change the title of proceedings. The lawsuit will no longer be in the deceased’s name directly, but rather in the name of the Estate Trustee on behalf of the estate.
Step 3: Calculating Survival Damages
The estate can only claim damages for the pain, suffering, and out-of-pocket medical expenses the deceased experienced up until the moment of death. If the death was unrelated to the original injury, the claim for future lost income generally ends on the date they passed away.
Step 4: Adding Family Law Act Claims
If the death was actually caused by the original injuries, the lawsuit transforms. In addition to the survival action for the deceased’s suffering, surviving spouses, children, and parents can add claims under the Ontario Family Law Act for the loss of care, guidance, and companionship.
How Much Does It Cost in Brampton?
Continuing an existing lawsuit involves standard litigation expenses, but most families are protected from out-of-pocket costs:
- Court Filing Fees: Amending a Statement of Claim or filing an Order to Continue generally incurs small administrative fees, while standard civil filing fees in Ontario sit around $238 CAD.
- Estate Administration Costs: Applying for a Certificate of Appointment of Estate Trustee may involve probate taxes (Estate Administration Tax) based on the total value of the deceased’s assets.
- Law Firm Fees: Most Brampton personal injury lawyers work on a contingency fee basis. They will continue to fund the litigation and typically charge a percentage (around 30%) only when the case reaches a final settlement or trial verdict.
How Long Does the Process Take?
Transitioning a claim after a death will pause the lawsuit temporarily, extending the overall timeline.
| Phase of Litigation | Expected Timeline in Ontario |
|---|---|
| Appointing the Estate Trustee | Obtaining court approval for an Estate Trustee can take 3 to 6 months, depending on court backlogs. |
| Amending the Lawsuit | Usually completed within 30 to 60 days after the Estate Trustee is confirmed. |
| Final Resolution | A complex personal injury or wrongful death lawsuit in Brampton typically takes 2 to 4 years to reach a settlement or trial. |
Frequently Asked Questions (FAQ)
Does the settlement money go directly to the family or the estate?
Damages recovered for the deceased’s pain and suffering are paid into their estate and distributed according to their will (or Ontario intestacy laws). However, damages awarded directly to family members under the Family Law Act bypass the estate and go directly to those individuals.
What if my loved one died before even starting the lawsuit?
If the 2-year limitation period from the date of the injury has not expired, the Estate Trustee can still initiate a brand-new survival action and wrongful death claim on behalf of the deceased and the family.
Are punitive damages allowed in a survival action?
In Ontario, the Trustee Act strictly prohibits estates from recovering punitive damages or damages for the “loss of expectation of life.” The compensation is strictly for actual financial losses and experienced pain and suffering.
Do we need a new lawyer to handle the estate portion?
While your personal injury law firm will handle the civil lawsuit, they may refer you to an estate lawyer to officially secure the Certificate of Appointment of Estate Trustee, ensuring all tax and probate rules are followed correctly.
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