If a plaintiff dies before their Toronto personal injury claim settles, the lawsuit does not die with them. Under Ontario’s equivalent of a survival of actions law (the Trustee Act), the estate representative can continue the legal action, seeking compensation for the pain and financial losses the deceased suffered up until their passing.
Understanding the Survival of Actions in Ontario
Experiencing a severe personal injury is incredibly stressful, but the situation becomes vastly more complicated if the injured person passes away before their lawsuit is resolved ヾ. Many families in Toronto mistakenly believe that if the plaintiff dies, the negligent driver or property owner is off the hook. Fortunately, Ontario law ensures that accountability remains intact .
In Ontario, the legal principle of “survival of actions” is governed by Section 38 of the Trustee Act 📄. This specific statute dictates that the right to sue for personal injuries survives the death of the victim. Whether the death was a direct result of the original accident or caused by something completely unrelated, the deceased’s estate can step into their shoes to continue fighting for justice .
Step-by-Step Process in Toronto
When a plaintiff passes away mid-lawsuit, the legal proceedings at the Superior Court of Justice are temporarily paused 📍. Here is the general step-by-step process your family and your personal injury lawyer will follow to get the case back on track .
Step 1: Notify Your Law Firm Immediately
The very first step is to inform the deceased’s lawyer about the passing 📞. The lawyer must officially notify the defence counsel and the court that the plaintiff has died. This places an automatic temporary stay (pause) on the litigation until a legal representative is formally appointed .
Step 2: Appoint an Estate Trustee
To continue the lawsuit, someone must have the legal authority to act on behalf of the deceased 📁. If the deceased left a valid will, the named Executor takes on this role. If there was no will, a close family member must apply to the Ontario courts to be appointed as the Estate Trustee (often called an administrator) .
Step 3: Amend the Statement of Claim
Once the Estate Trustee is officially appointed, your lawyer will draft a legal document called an “Order to Continue” 💭. They will file this at the Toronto Superior Court of Justice, which legally swaps the deceased’s name on the lawsuit with the name of the Estate Trustee. The Statement of Claim is also amended to reflect the date of death .
Step 4: Reassess the Damages Claimed
The passing of the plaintiff fundamentally changes the value of the lawsuit 📈. If the death was unrelated to the accident, claims for future income loss and future medical care are removed, as those future needs no longer exist. However, if the accident injuries actually caused the death, the lawsuit may be expanded to include a Wrongful Death claim under the Family Law Act for surviving relatives .
How Much Does it Cost in Toronto?
Transitioning a standard personal injury claim into an estate claim involves specific administrative and legal expenses 💵.
| Legal Process | Estimated Cost in CAD | Who Pays? |
|---|---|---|
| Applying for a Certificate of Appointment (Probate) | $1,500 – $3,000+ (Legal Fees) | The Estate |
| Estate Administration Tax (Probate Tax) | $0 on the first $50,000 of estate value; then $15 per $1,000 on any value exceeding $50,000 | The Estate |
| Amending the Court Claim | Included in Contingency | Law Firm (Upfront) |
- Lawyer Fees: The original contingency fee agreement (usually 25% to 33%) generally remains valid. The lawyer is paid from the final settlement awarded to the estate.
- Settlement Distribution: Any compensation awarded for the pain and suffering of the deceased goes directly into their estate. It is then used to pay off any outstanding debts (like CRA taxes) before being distributed to the heirs according to the will.
How Long Does the Process Take?
The death of a plaintiff inevitably delays the lawsuit ⌛. Applying for a “Certificate of Appointment of Estate Trustee” in Toronto courts currently takes several months due to administrative backlogs. Overall, having to pause the litigation, appoint a trustee, and amend the pleadings generally adds 1 to 2 years to the standard personal injury timeline, pushing total resolution times to potentially 4 or 5 years . Crucially, regarding deadlines, if a personal injury lawsuit has not yet been filed before the plaintiff passes away, the Estate Trustee has exactly 2 years from the date of death to commence an action under Section 38(3) of the Trustee Act. As confirmed by the Court of Appeal for Ontario in Ingram v. Kulynych Estate (2024 ONCA 678), this two-year post-death limitation is strict and is not subject to the principle of discoverability, meaning the clock starts ticking immediately upon death rather than when the injury or claim was discovered.
Frequently Asked Questions (FAQ)
Can the family claim pain and suffering for themselves?
If the plaintiff’s death was caused by the accident, eligible family members can file a claim for “loss of care, guidance, and companionship” under the Family Law Act. If the death was totally unrelated to the accident, the family cannot claim new emotional damages for themselves.
What happens to the claim for lost wages?
Under s. 38 of the Trustee Act, the deceased’s estate claim can only recover the actual wages the plaintiff lost from the date of the accident up until the exact date of their death. Any claim by the estate for future lost income beyond the date of death is extinguished. However, if the plaintiff’s death was caused by the accident (such as a motor vehicle collision), the deceased’s dependents have a separate legal right under Section 61 of the Ontario Family Law Act (FLA) to sue for the loss of future financial support and dependency they would have received had the deceased lived.
Are the settlement funds protected from creditors?
Generally, no. Because the personal injury settlement for the deceased’s pain and suffering becomes an asset of their estate, it must be used to clear any outstanding debts the deceased owed before the remaining funds can be inherited by their family.
What if the deceased did not have a will?
If there is no will, the deceased died “intestate.” A spouse or next of kin must apply to the court to be appointed as the Estate Trustee without a will. The final settlement funds will then be distributed according to Ontario’s strict succession laws, not by personal choice.
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