



COURT OF APPEAL FOR ONTARIO

CITATION: Malik v. Nikbakht, 2021 ONCA 176

DATE: 20210323

DOCKET: C67101

Feldman, Paciocco and Coroza
    JJ.A.

BETWEEN

Sarfraz Malik

Plaintiff/Respondent (Appellant)

and

Amir Nikbakht
, Derek Da Silva,
and Conbora Formings
  Inc.

Defendants/
Appellant
(
Respondent
)

Joel Cormier and Hudson Chalmers, for
    the appellant

Theodore P.
    Charney, Caleb Edwards and James Omran, for the respondent Amir Nikbakht

Heard: March 12, 2021 by video
    conference

On appeal from the order of Justice Peter
    J. Cavanagh of the Superior Court of Justice, dated May 22, 2019, with reasons
    reported at 2019 ONSC 3118, allowing an appeal from the order of Master Charles
    G.T. Wiebe of the Superior Court of Justice, dated April 30, 2018, with reasons
    reported at 2018 ONSC 2816.

Paciocco J.A.:




MATERIAL FACTS

[1]

On October 10, 2013, a vehicle operated by the
    appellant, Sarfraz Malik, was involved in a three-car collision. Mr. Malik and
    the passengers in his vehicle, Mr. Maliks wife and their three children, were
    injured.

[2]

On November 12, 2014, Mr. Malik sued the owners
    and operators of the other vehicles for damages relating to the injuries he
    suffered. Notably, Mr. Malik did not include a claim pursuant to s. 61 of the
Family
    Law Act
,
R.S.O. 1990, c. F.3 (
FLA
) for his losses
    arising from the injuries to his children.

[3]

Mr. Maliks wife, Khadija Malik, and his three
    children brought lawsuits of their own, including against Mr. Malik. Unlike Mr.
    Malik, they included s. 61
FLA

claims for their damages arising
    from the injuries to each other.

[4]

In February 2018, more than four years after the
    accident, Mr. Malik brought a motion for leave to amend his statement of claim
    to add his own s. 61
FLA
claims relating to his losses arising from
    the injuries to his children. One of the defendants, Amir Nikbakht, the
    respondent in this appeal, resisted Mr. Maliks motion, arguing that the s. 61
FLA

claims Mr. Malik wanted to advance constituted a new statutory cause of
    action that was statute barred under the
Limitations Act
, 2002
,
    S.O. 2002, c. 24, Sched. B.

THE DECISIONS
    BELOW

[5]

On April 30, 2018, Master Wiebe of the Superior
    Court of Justice granted Mr. Maliks motion for leave to amend his pleadings. Master
    Wiebe concluded that he was bound by
Bazkur v. Coore
, 2012 ONSC 3468,
    292 O.A.C. 391 (Div. Ct.), a decision by a single judge of the Divisional Court.
    In
Bazkur
, the court

held that subsequent s. 61
FLA

claims added to a timely negligence action are merely claims for additional
    damages arising from the existing negligence claim and therefore not subject to
    the two-year limitation period in the
Limitations Act
, 2002
.

[6]

Mr. Nikbakht successfully appealed Master
    Wiebes decision to a judge of the Superior Court of Justice. On May 22, 2019, the
    appeal judge ruled that Master Wiebe was bound by
Bazkur
, but that he
    was not. He declined to follow
Bazkur
after concluding that it was plainly
    wrong. The appeal judge gave extensive reasons supporting his conclusion that
    a claim under s. 61
FLA

is a cause of action distinct from the
    timely negligence claim brought by Mr. Malik. The s. 61
FLA

claims
    Mr. Malik sought to add were therefore statute barred. Accordingly, the appeal
    judge set aside Master Wiebes order and dismissed Mr. Maliks motion for leave
    to amend.

THE ISSUE ON APPEAL

[7]

Mr. Malik now appeals the appeal judges
    decision and seeks an order allowing the amendment to his statement of claim. Mr.
    Malik argues that the appeal judge erred in law in finding that his s. 61
FLA

claims constituted a cause of action distinct from his negligence claim. He
    submits that he has already pleaded, in a timely manner, the same acts of
    negligence on the part of the defendants that support the s. 61
FLA

claims and is simply seeking recovery under another head of damages.

[8]

As I will explain, I would not give effect to
    this appeal.

ANALYSIS

[9]

In my view, the appeal judge was correct in
    holding that a s. 61
FLA

claim is a cause of action that, in Mr.
    Maliks case, is statute barred.

[10]

As the appeal judge correctly acknowledged, the
    common law does not permit family members to sue for compensation for injuries
    to their relatives. He explained, at para. 26, that s. 61(1)
FLA
therefore
    created a statutory cause of action that did not previously exist at common
    law:
Camarata v. Morgan
, 2009 ONCA 38, 246 O.A.C. 235, at para. 10.

[11]

Section 61(1)
FLA
provides:

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.

[12]

As put by Laskin J.A. (concurring), this
    provision dramatically expanded recovery:
Macartney v. Warner
(2000), 46 O.R. (3d) 641 (Ont. C.A.), at para. 51.

[13]

Significantly, the new cause of action created
    by s. 61 of the
FLA
is derivative:
Camarata
, at para. 9. In
    other words, Mr. Maliks 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
. As the appeal judge pointed out, at paras. 28-29, this is a
    fundamentally different claim than Mr. Maliks 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
. Indeed, as the appeal judge recognized, at para. 17, had Mr. Malik
    brought his s. 61
FLA

claims in a timely way, he could have
    done so even without instituting a negligence action of his own.

[14]

I do not read this courts decision in
Ridel
    v. Cassin
, 2014 ONCA 763, which cites
Bazkur
, at para. 10, as
    holding that
Bazkur

was correctly decided. In
Ridel
,

this court cited
Bazkur
, along with other authorities, only for
    the uncontroversial proposition that claims for additional damages arising from
    an existing cause of action in a timely claim are not barred by the
Limitations
    Act
, 2002
. The error in
Bazkur

occurred in the
    application of that principle.

[15]

It follows that the appeal judge was correct in
    finding that Mr. Malik was not entitled to amend his statement of claim to
    bring a new statutory cause of action outside of the applicable limitation
    period.

DISPOSITION

[16]

For these reasons, I would affirm the appeal
    judges decision and dismiss Mr. Maliks appeal.

[17]

At the end of the hearing, the parties expressed
    confidence that they could agree to an appropriate amount for costs. If they
    fail to do so and a costs order is required, either party may notify the
    Registrar within 15 business days of the release of these Reasons for Decision,
    and a timeline for the exchange of costs submissions will be provided.

Released: Tuesday, March 23, 2021
    K.F.

David
    M. Paciocco J.A.

I agree. K. Feldman J.A.

I
    agree. S. Coroza J.A.


