Simon's Megalomaniacal Legal Resources

Torts - Death of a Party

Section 38 of the Trustees Act is an important provision that bears on the death of either party in most tort cases: Trustees Act, s.38.

. Nussbacher v. Criminal Injuries Compensation Board

Nussbacher v. Criminal Injuries Compensation Board (Div Ct, 2006) is a Divisional Court case that raises the fate of litigation on the death of a party:

[3] The Compensation for Victims of Crime Act, R.S.O. 1990, c. C.24, does not alter the common law principle that a right to compensation for injuries suffered by a person terminates with the death of the person. While s.38(1) of the Trustee Act, R.S.O. 1990, c. T.23, modified the common law principle that a personal action dies with the person, that section does not apply in the circumstances of this case. “Action” in s.38(1) refers to civil proceedings between a plaintiff and defendant (see Royal Canadian Legion Norwood (Alberta) Branch 178 v. Edmonton (City) (1994), 1994 ABCA 37 (CanLII), 16 Alta. L.R. (3d) 305 (C.A.) at paragraph 27). Section 38(1) does not refer to proceedings before an administrative tribunal to obtain compensation from a public fund.