Acts and Regulations

S-18 - Survival of Actions Act

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Repealed on 1 September 2011
CHAPTER S-18
Survival of Actions Act
Repealed: R.S.N.B. 2011, Schedule A
Cause of action defined
1In this Act, “cause of action” means the right to institute a civil proceeding and includes a civil proceeding instituted before death, but does not include a prosecution for contravening a statute, regulation or by-law.
1969, c.19, s.2
Survival of action for benefit of estate
2(1)All causes of action vested in a person who dies after April 1, 1969, survive for the benefit of the estate.
Application of Act
2(2)The rights conferred by subsection (1) are in addition to and not in derogation of any rights conferred by the Fatal Accidents Act.
1969, c.19, s.3; 1992, c.14, s.1
Survival of actions against estate of deceased
3All causes of action subsisting against a person who dies after April 1, 1969 survive against his estate.
1969, c.19, s.4
Action arising after death deemed arising before death
4Where damage has been suffered by reason of an act or omission as a result of which a cause of action would have subsisted against a person if that person had not died before or at the same time as the damage was suffered, there is deemed to have been subsisting against him before his death whatever cause of action as a result of the act or omission would have subsisted if he had not died before or at the same time as the damage was suffered.
1969, c.19, s.5
Recoverable damages
5(1)Where a cause of action survives for the benefit of the estate of a deceased person, only damages that have resulted in actual pecuniary loss to the deceased person or the estate are recoverable and, without restricting the generality of the foregoing, the damages recoverable shall not include damages for loss of expectation of life, pain and suffering or physical disfigurement.
5(2)Notwithstanding subsection (1), where the person in whom the cause of action is vested dies on or after January 1, 1993, the damages recoverable may include punitive or exemplary damages in appropriate cases.
1969, c.19, s.6; 1992, c.14, s.2
Calculation of damages
6Where the death of a person was caused by the act or omission that gives rise to the cause of action, the damages shall be calculated without reference to any loss or gain to his estate consequent on his death, except that there may be included in the expenses of the funeral and the disposal of the body of the deceased if those expenses were, or liability therefor was, incurred by the estate.
1969, c.19, s.7
Judgment and costs recovered deemed assets of estate
7Every cause of action that survives under this Act and every judgment or order thereon or relating to the costs thereof is an asset or liability, as the case may be, of the estate for the benefit of which or against which the action was taken or the judgment or order made.
1969, c.19, s.8
Litigation administrator
8(1)Where a cause of action survives against the estate of a deceased person, and there is no personal representative of the deceased person against whom such an action may be brought or continued in this Province, a court of competent jurisdiction, or any judge thereof, may,
(a) on the application of a person entitled to bring or continue such an action, and
(b) on such notice as the court or judge may consider proper,
appoint a litigation administrator of the estate of the deceased person.
Liability of litigation administrator
8(2)The litigation administrator is an administrator against whom such an action may be brought or continued and by whom such an action may be defended.
Powers of litigation administrator
8(3)The litigation administrator as defendant in any such action may take any steps that a defendant may ordinarily take in an action, including third party proceedings and the bringing, by way of counterclaim, of any action that survives for the benefit of the estate of the deceased person.
Effect of judgment against litigation administrator
8(4)Any judgment obtained by or against the litigation administrator has the same effect as a judgment in favour of or against the deceased person, or his personal representative, as the case may be, but it has no effect for or against the litigation administrator in his personal capacity.
1969, c.19, s.9; 1986, c.4, s.51
Limitation of actions
9(1)Notwithstanding any Act limiting the time within which an action may be brought, a cause of action that survives under this Act is not barred until the expiry of the period provided by this section.
9(2)Subject to subsection (2.1), proceedings on a cause of action that survives under section 2 shall not be brought after 2 years from,
(a) if the cause of action is discovered by the person in whom the cause of action was vested before death, the day of the death of the person, and
(b) if the cause of action is discovered after the death of the person in whom the cause of action was vested before death, the day the cause of action is discovered by the person bringing the action.
9(2.1)Proceedings on a cause of action that survives under section 2 shall not be brought after 5 years from the day of the death of the person in whom the cause of action was vested before death.
9(3)Subject to subsection (3.1), proceedings on a cause of action that survives under section 3 or 4 shall not be brought after 2 years from the later of
(a) the day of the death of the person against whom the cause of action subsisted or was deemed to have been subsisting before death, and
(b) the day the cause of action is discovered by the person who has the cause of action.
9(3.1)Proceedings on a cause of action that survives under section 3 or 4 shall not be brought after 5 years from the day of the death of the person against whom the cause of action subsisted or was deemed to have been subsisting before death.
9(3.2)For the purposes of subsections (2) and (3), a cause of action is discovered by a person on the day on which that person first knew or ought reasonably to have known that the cause of action existed.
9(4)Subject to subsection (5), this Act does not operate to revive any cause of action in or against a person that was barred at the date of his death.
9(5)Any enactment that permits action to be instituted by way of counterclaim or third party proceedings after the expiry of the time otherwise limited for the bringing of the action applies with respect to proceedings under this Act.
1969, c.19, s.10; 2009, c.L-8.5, s.39
Crown bound by Act
10The Crown is bound by this Act.
1969, c.19, s.11
N.B. This Act is consolidated to September 1, 2011.