All About Estates

Bringing a Tort Claim as an Estate Representative

Typically, estate litigation involves guardianship disputes and fights over a deceased person’s property.  In rare instances, however, estate litigation crosses over into the unfamiliar domain of personal injury law.  A recent example of this crossover can be found in the case of Campeau-Proulx v Bancroft.

The facts in Campeau-Proulx v Bancroft were tragic.  On June 15, 2019, two-year old “M.B.” drowned while in the care of her father during an unsupervised weekend access visit.  The Estate of M.B., along with M.B.’s mother and brother, brought a lawsuit against the father.  The mother and brother each brought a claim seeking damages for loss of care, guidance and companionship resulting from M.B.’s death.  Both claims were successful, with the mother receiving an award of $60,000 and the brother receiving an award of $15,000.  The Estate brought a different claim, seeking damages for the pain and suffering personally endured by M.B. due to the father’s negligence.

The Estate’s claim was brought pursuant to Section 38 (1) of the Trustee Act, which reads as follows:

Except in cases of libel and slander, the executor or administrator of any deceased person may maintain an action for all torts or injuries to the person or to the property of the deceased in the same manner and with the same rights and remedies as the deceased would, if living, have been entitled to do, and the damages when recovered shall form part of the personal estate of the deceased; but if death results from such injuries no damages shall be allowed for the death or for the loss of the expectation of life, but this proviso is not in derogation of any rights conferred by Part V of the Family Law Act.”

Section 38 of the Trustee Act conferred on the Estate the right to bring a claim for damages for any pain, suffering, inconvenience, or loss of amenities of life suffered by M.B. as a consequence of her father’s negligence, but only from the moment she was first injured to the moment of her death.  In other words, the Estate could seek damages only in respect of M.B.’s pain and suffering from the moment she first fell into the water until the moment she died by drowning.  While the Court was sensitive to the tragic circumstances of the case, it noted that M.B.’s death would have been “almost instantaneous.”  Since the Estate failed to provide any evidence of M.B.’s pain and suffering during this short period of time, the Estate’s claim was dismissed.

It is unclear what sort of evidence the Estate would have had to provide in order to succeed on its claim for damages in respect of M.B.’s pain and suffering.  Implicit in the Court’s reasoning was the suggestion that a deceased person’s pain and suffering must be prolonged before their estate can be awarded damages.

It is also important to keep in mind that an estate representative will be held to a strict limitation period when bringing a tort claim under the Trustee Act.  Pursuant to Section 38 (3), an estate representative may commence an action for any tort or injury sustained by the deceased no later than two years after their date of death.

About Christopher Cook
Christopher Cook is a lawyer at de VRIES LITIGATION LLP, specializing in estate, trust, capacity, and guardianship disputes. More of Christopher's blogs can be found at


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