Burt and Seward v LeLacheur: Discoverability and the Twelve-Month Clock for Nova Scotia Wrongful Death Claims

Every fatal accident claim in Nova Scotia begins with the same foundational question: does the death satisfy the legal conditions required to support a civil action for damages? And it faces the same urgent pressure: the twelve-month limitation period in s. 10 of the Nova Scotia Fatal Injuries Act is among the shortest for any civil claim in Canada. The relationship between those two facts (what a wrongful death claim requires, and when the clock on it starts running) was addressed directly and authoritatively by the Nova Scotia Court of Appeal in Burt and Seward v LeLacheur.

The case is not widely known outside of fatal accident practice. Its facts are, in one sense, simple: a widow learning decades too late that the man who died in a car accident was not the person she thought was driving. But those facts gave rise to a legal ruling of substantial and lasting importance: the confirmation that Nova Scotia’s twelve-month limitation period for wrongful death claims runs not from the bare date of death, but from the point at which the claimant knows, or ought reasonably to have known, that the death was a wrongful one.

This article examines that ruling in full: the facts of the case, the legal analysis the court applied, the precise holding, and what it means in practice for families in Nova Scotia navigating fatal accident claims, particularly in medical malpractice cases where the wrongful character of a death may not be immediately apparent.

The Foundation: Why Wrongful Death Law Exists and What Problem It Solves

The Common Law’s Original Silence

Before the mid-nineteenth century, the common law of England and its Canadian descendants contained a rule that looks, to modern eyes, incomprehensible in its consequences: the death of a human being could not be complained of as an injury in a civil action. Lord Ellenborough stated this plainly in Baker v Bolton (1808): “In a civil court, the death of a human being could not be complained of as an injury.”

The legal mechanism was the doctrine of actio personalis moritur cum persona: the personal action dies with the person. A claim in tort was understood as personal to the victim. When the victim died, whether from the defendant’s negligence or from any other cause, the cause of action died with them. The family of a person killed through another’s negligence had no civil remedy at all, not because the law did not recognize that harm had occurred, but because the architecture of the common law provided no vehicle for pursuing it.

The practical consequences were perverse. A driver who injured a pedestrian faced potential civil liability. The same driver who killed the pedestrian faced none. Death, the graver harm, was the uncompensated one.

Lord Campbell’s Act and Its Nova Scotia Descendant

The Fatal Accidents Act 1846, Lord Campbell’s Act, corrected this anomaly. It created a new statutory cause of action that had not previously existed at common law: the right of designated family members to recover damages for their own losses resulting from the negligent killing of their relative. Nova Scotia’s current governing statute is the Fatal Injuries Act, RSNS 1989, c 163, descended through successive provincial enactments from the Lord Campbell’s Act model.

The statute creates the wrongful death cause of action that does not exist at common law, defines who may bring it, specifies what may be recovered, and sets the time within which it must be brought. Section 3 creates the cause of action. Section 10 sets the limitation period.

The Statutory Text: What the Fatal Injuries Act Provides

Section 3 of the Fatal Injuries Act is the operative provision. It was reproduced in full by Chipman J.A. in Burt and Seward at para 35:

“Where the death of a person has been caused by such wrongful act, neglect or default of another as would, if death had not ensued, have entitled the person injured to maintain an action and recover damages in respect thereto, in such case, the person who would have been liable if death had not ensued shall be liable to an action of damages, notwithstanding the death of the person injured, and although the death has been caused under such circumstances as amount in law to a crime.”

Section 10, the limitation provision that was central to the case, provides (para 36):

“Not more than one action shall lie for and in respect to the same subject-matter of complaint and every such action shall be commenced within twelve months after the death of the deceased person.”

The tension between these two provisions is the legal heart of the case. Section 3 creates a cause of action for “wrongful death”: not merely any death, but death caused by wrongful act, neglect, or default. Section 10 says the action must be commenced within twelve months “after the death.” The question Burt and Seward resolved is whether “the death” in s. 10 means any death, or whether it means the wrongful death that is the foundation of the cause of action in s. 3, and whether a claimant who does not know (and cannot reasonably have known) that the death was wrongful is nonetheless barred twelve months after it.

The Facts: A 25-Year Gap Between Death and Discovery

August 12, 1972

On August 12, 1972, Flora Burt was married to Vincent LeLacheur and lived with him in Louisdale, Richmond County, Nova Scotia. That afternoon, her husband returned from work and left in his vehicle, accompanied by Howard LeLacheur, Vincent’s nephew, to go to Port Hawkesbury. Flora did not know who was driving, but understood it was her husband, since he had the keys to the vehicle.

Later that day she learned there had been an accident and her husband was killed. She was distraught, heavily sedated, and hospitalized. She had little recollection of the immediate period following the accident due to the heavy sedation and her state of mind. She gave birth to Shelley Dawn Seward, born of the marriage, on September 15, 1972. Upon her release from hospital she went to live with relatives. She later remarried.

She had never had any reason to suspect that it was not her husband who was driving at the time of the fatal accident.

February 1997: Twenty-Five Years Later

In February 1997, twenty-five years after Vincent LeLacheur’s death, Flora Burt was advised by her niece, Kelly LeLacheur, that Howard LeLacheur had told his uncle that he, Howard, was in fact driving the vehicle on August 12, 1972 at the time of the accident resulting in Vincent LeLacheur’s death. He had also advised the RCMP in Sydney of that fact. This was the first intimation Flora Burt had that Howard LeLacheur admitted being the driver. She had never previously had reason to suspect that it was not her husband driving.

The Proceedings

Flora Burt and Shelley Dawn Seward subsequently sought legal advice and commenced proceedings under the Fatal Injuries Act on July 18, 1997. The originating notice was served on Howard LeLacheur on November 4, 1997. On February 18, 1998, a defence was filed on LeLacheur’s behalf by Judgment Recovery N.S. Ltd. pleading in paragraph 2 that the action was statute barred, relying on s. 10 of the Fatal Injuries Act, which required the action to have been commenced within twelve months after Vincent LeLacheur’s death in August 1972.

The appellants applied to strike the limitation plea on September 24, 1999. The application was heard by Wright J. in chambers on October 7, 1999. Before him were Flora Burt’s affidavit, a copy of her discovery transcript, and an affidavit from the manager of Judgment Recovery N.S. Ltd. In her discovery, Flora Burt acknowledged she had made no inquiries about the accident to anyone (family members, RCMP, or others), though she also stated when asked why, “I was too sick at the time, I guess.” She had never been contacted by the police regarding the accident.

On November 2, 1999, Wright J. dismissed both the application to strike the limitation defence and the action itself. He found no evidence of fraudulent concealment on Howard LeLacheur’s part, and held that s. 10 set a fixed period running from the date of death to which the discoverability rule did not apply. The appellants appealed.

The Court of Appeal: Two Issues, a Nuanced Result

The Two Issues

The Court of Appeal identified two issues: (1) whether Wright J. was correct in refusing to disallow the limitation defence; and (2) whether Wright J. was correct in dismissing the action at the summary application stage.

The answer to Issue 1 was: Wright J. was right to refuse to disallow the limitation defence, but wrong about the legal principle, because the discoverability rule does apply to s. 10 of the Fatal Injuries Act. The answer to Issue 2 was: the dismissal of the action was wrong: the question of whether the limitation period actually bars this particular claim depends on when the appellants knew or ought to have known the death was wrongful, and that requires a trial, not summary determination.

The Discoverability Rule: Principles the Court Applied

Chipman J.A. reviewed the development of the discoverability rule at length, from the Supreme Court of Canada’s foundational decisions in Kamloops v Nielsen, [1984] 2 SCR 2 and Central Trust Company v Rafuse, [1986] 2 SCR 147, through Peixeiro v Haberman, [1997] 3 SCR 549, Fehr v Jacob (1993), 5 WWR 1 (Man CA), Grenier v Canadian General Insurance Company (1999), 43 OR (3d) 715 (CA), and the Ontario Court of Appeal’s then-recent decision in Waschkowski v Hopkinson Estate, [2000] OJ No 470 (CA).

The court acknowledged the competing principles. On one side: the discoverability rule is a rule of construction applied to limitation periods; when a statute provides that time runs from “the accrual of the cause of action” or from an event that can only occur when the injured party has knowledge of the injury, the discoverability rule applies. On the other side: when a limitation period runs from a fixed event unrelated to the accrual of the cause of action, unconnected to the plaintiff’s knowledge, the discoverability rule may not extend the period the legislature prescribed (Fehr v Jacob, approved in Peixeiro). And when the pivotal event is a death, courts had found “no temporal elasticity possible” (Waschkowski, para 8).

The critical distinction that resolved the case is at para 38:

“In my opinion, the death for which an action can be brought under the Fatal Injuries Act is not merely the death of a person but a ‘wrongful death’, as contemplated in s. 3 of the Act. It is not an event totally unrelated to the accrual of the cause of action. It is, to use the words of Morden, A.C.J.O., in Grenier… a ‘constituent element’ of the cause of action.”

Waschkowski was distinguishable because the death from which time ran in that case was the death of a defendant, a party against whose estate a cause of action was permitted to continue. The death was “not of a person under such circumstances as to give rise in itself to a cause of action.” In Burt and Seward, by contrast, the death of Vincent LeLacheur was itself the event upon which the cause of action was founded: it had to be a wrongful death, one satisfying the elements of s. 3, for the cause of action to exist at all. It was therefore a constituent element of the cause of action, not a fixed external point unrelated to it. The Fehr v Jacob logic, which restricted discoverability to periods running from events related to the plaintiff’s knowledge, applied here.

The Governing Holding: Paragraphs 43–44

Chipman J.A. stated the holding directly at para 43:

“In this case, the cause of action is, as in Grenier, a statutory cause of action. While at first blush it seems that time runs simply from a fixed point, in reality there is more to it than that. The death of Vincent LeLacheur alone is not enough to found a cause of action. It must be shown to be a death within the meaning of s. 3 of the Fatal Injuries Act, i.e. a ‘wrongful death.’ Only then is there a statutory cause of action. The reasoning in Peixeiro and Grenier draws me to the conclusion that the triggering event here does not come into existence until the person for whose benefit the action is brought knows or ought to know that the death is a wrongful one.”

And at para 44:

“On the true construction of s. 10 of the Fatal Injuries Act, time does not run from a fixed point unconnected to the cause of action created by s. 3, but from the plaintiff’s knowledge, reasonably presumed, of its essential elements: a wrongful death caused by the defendant. It would be an injustice if a claimant could be barred before acquiring knowledge of the wrongdoer’s identity. Thus before time runs, the claimant must have sufficient knowledge of the death in question to put him or her on inquiry as to whether it was a wrongful death. The precise amount of knowledge necessary to trigger the running of time must be determined by the trial judge who applies the legislation, using the discoverability rule, to the facts as found.”

The Outcome: Allowed in Part

On Issue 1, Chipman J.A. affirmed Wright J.’s refusal to disallow the limitation defence, but did so with the declaration that the discoverability rule is applicable to s. 10 of the Fatal Injuries Act. The limitation defence was not eliminated; it was preserved for trial, to be adjudicated under the correct legal principle.

On Issue 2, Chipman J.A. set aside Wright J.’s dismissal of the action. The application of the discoverability rule required findings of fact about when the appellants knew or ought to have known the key facts: when they discovered or should have discovered that Howard LeLacheur (not Vincent) had been driving, and that his driving gave rise to a potential wrongful death claim. Summary procedure was inappropriate for those findings. The matter had to proceed to trial.

On costs: Wright J.’s order was affirmed in part and set aside in part; costs of the appeal were fixed at $1,500 plus disbursements, in the cause.

What the Case Contributes to Nova Scotia Fatal Accident Law

The Discoverability Principle for Section 10

The principal contribution of Burt and Seward is the confirmation that s. 10 of the Nova Scotia Fatal Injuries Act does not run from the bare date of death when the claimant does not know, and could not reasonably have known, that the death was a wrongful one. The limitation period runs from when the claimant has sufficient knowledge of the death to put them on inquiry as to whether it is a wrongful death within the meaning of s. 3.

This ruling reflects the fundamental logic underlying the discoverability principle as stated by Major J. in Peixeiro: it would be an injustice to bar a cause of action before a person is able to raise it. The legislature is presumed not to have intended that the period run without regard to the plaintiff’s knowledge. As Chipman J.A. observed at para 46, applying discoverability to s. 10 is “no greater a stretch of the language” than what was done in Peixeiro and Grenier, and all for the purpose of preventing a potential injustice.

What Section 3 Requires: Reading the Statutory Elements

While Burt and Seward does not articulate a formal “test” as such, the court’s reasoning illuminates what must be established under s. 3 of the Fatal Injuries Act before a wrongful death cause of action arises. Reading s. 3 through the lens of the court’s analysis in the case, three conditions must be satisfied:

First, a death must have occurred. The cause of action is statutory: it arises from death. Where a person is injured through negligence and subsequently dies from those injuries, the Fatal Injuries Act cause of action does not arise until the death occurs.

Second, the death must have been caused by a wrongful act, neglect, or default of another. This is what makes the death a “wrongful death” within the meaning of s. 3, and it is this element that was central to the discoverability analysis in Burt and Seward. The death of Vincent LeLacheur alone did not establish the cause of action; it had to be a death caused by Howard LeLacheur’s wrongful act or default. Flora Burt did not know for twenty-five years that Howard LeLacheur had been driving and potentially liable for the accident.

Third, the wrongful act, neglect, or default must be of a type that would have entitled the deceased, had they survived, to maintain an action and recover damages. The Fatal Injuries Act claim is derivative: it rests on the proposition that the deceased would have had a viable personal injury claim against the defendant. Defences available against the deceased’s potential personal injury claim remain available against the family’s Fatal Injuries Act claim. If the deceased’s own personal injury claim would have been statute-barred or defeated by contributory negligence, the Fatal Injuries Act claim stands on weaker ground accordingly.

The Practical Significance of “Wrongful Death” as the Trigger

The Burt and Seward ruling carries particular importance in the medical malpractice context, where the wrongful character of a death may not be immediately apparent to the family. Deaths following surgery, deaths attributed to disease progression, deaths in institutional care settings: in each of these, the family is often told that the death was a natural or inevitable outcome. They may not discover until much later, through independent medical review, that the death was caused or materially contributed to by a departure from the standard of care.

The discoverability principle confirmed in Burt and Seward means that in these circumstances, the twelve-month limitation period begins from the point at which the family knows, or by the exercise of reasonable diligence should have known, that the death was a wrongful one within the meaning of s. 3. That point is not the date of death itself if the wrongful character of the death was not discoverable at that time with reasonable diligence.

The Objective Standard: What Discoverability Requires

The discoverability principle is not a license for indefinite delay. It operates against the background of what reasonable diligence would have produced. The question is not simply when the claimant subjectively discovered the wrongful death, but when a reasonable person in the claimant’s circumstances, exercising reasonable diligence, ought to have discovered it. A claimant who suspects negligence but delays seeking independent medical review for years without good reason cannot rely on discoverability to extend the twelve-month window beyond what diligent investigation would have produced.

In Burt and Seward itself, the application of the discoverability rule to the specific facts (whether Flora Burt knew or ought to have known before February 1997 that Howard LeLacheur had been driving, and that she had a potential wrongful death claim) was left for the trial judge to determine. The Court of Appeal did not resolve those facts; it established the legal principle on which they would be assessed. Wright J. had dismissed the action on the wrong legal basis (finding discoverability inapplicable) without applying it to the facts. Those facts required trial.

The Nova Scotia Twelve-Month Limitation Period in Context

An Exceptionally Short Period

Section 10’s twelve-month limitation period is, by Canadian standards, among the most restrictive for any category of civil claim in any province. For comparison: New Brunswick’s Fatal Accidents Act provides two years from when the claimant knew or reasonably ought to have known of the claim, or five years from the date of death. Prince Edward Island provides two years. Newfoundland and Labrador provides two years from when the right to bring the action arose. Nova Scotia’s twelve months is dramatically shorter and has been criticized by plaintiff advocates as insufficient for grieving families to organize their affairs, retain counsel, obtain medical records, and properly assess the merits of a potential claim.

The Burt and Seward discoverability ruling does not change the length of the period. It changes when the period begins. For families who knew from the outset that their loved one’s death was caused by another’s negligence (a clearly negligent car accident, an immediately obvious surgical error), the twelve months begins from the date of death and runs without extension. Discoverability only addresses the cases where the wrongful character of the death was not apparent at the time of death.

Practical Implications for Fatal Accident Claims

Even with the discoverability principle available, the practical reality is that Nova Scotia’s twelve-month limitation creates acute time pressure in any fatal accident case. Any family that suspects a death may have involved negligence should seek legal advice and begin obtaining medical records and independent expert opinion as quickly as possible after the death. The window is short even on a discoverability analysis: reasonable diligence is measured objectively, and the question of when a reasonable person in the family’s circumstances should have investigated and discovered the wrongful character of the death may not be far removed from the date of death itself.

The Relationship Between Burt and Seward and the Broader Fatal Accident Framework

What This Case Does and Does Not Decide

Burt and Seward establishes when the s. 10 limitation period begins to run in cases where the wrongful death was not immediately discoverable. It does not address what damages are available to dependants once the cause of action is established; that is the province of the cases governing quantum of recovery. It does not address the estate’s parallel claim under the Survival of Actions Act. And it does not address the comparative framework across Atlantic Canada provinces, which differ significantly in their limitation periods, their available heads of damage, and their approach to estate versus dependant recovery.

MacLean v MacDonald: What the Estate Can Recover

Once a wrongful death is established, the Nova Scotia Court of Appeal decision in MacLean v MacDonald, 2002 NSCA 30 (CanLII), governs what the estate may recover under the Survival of Actions Act claim that runs in parallel to the Fatal Injuries Act claim. MacLean confirmed that estate damages in Nova Scotia are strictly pecuniary: non-pecuniary damages for the deceased’s own pain and suffering do not survive to the estate. This limitation significantly affects the total recovery available in Nova Scotia compared to provinces like New Brunswick where non-pecuniary and punitive damages are available to the estate.

Murray Estate v Advocate Contracting: Quantum Benchmarks

Murray Estate v Advocate Contracting Ltd, 2001 NSSC 104, provides the Nova Scotia quantum benchmarks for loss of care, guidance and companionship, the principal head of damages for dependants under the Fatal Injuries Act. These benchmarks establish the ranges within which Nova Scotia courts have awarded these non-pecuniary dependant losses, and they inform the damages assessment in every Fatal Injuries Act claim following the Burt and Seward gateway.

Rowe v Brown: The Purpose of the Act

The Nova Scotia Supreme Court decision in Rowe v Brown, 2008 NSSC 13 (CanLII), addresses the purpose of the Fatal Injuries Act, confirming that it is a mechanism to put dependants in the economic and relational position they would have occupied had the deceased lived and continued to provide support, not a vehicle for grief damages or punitive recovery. This purposive understanding of the Act complements the Burt and Seward analysis of what constitutes a “wrongful death” sufficient to trigger the cause of action.

The New Brunswick Contrast

For those practicing in New Brunswick or advising clients about interprovincial differences, the New Brunswick equivalent of the Nova Scotia wrongful death framework is addressed in the companion articles in this series on Mazerall v Nightingale (1991 CanLII 2716 NBCA) and Guimond v Guimond Estate (1996 CanLII 4858 NBCA). The New Brunswick framework differs significantly from Nova Scotia’s: a two-year limitation period (versus twelve months), non-pecuniary and punitive damages available to the estate, and different quantum benchmarks for dependant loss of companionship awards.

Conclusion

Burt and Seward v LeLacheur is the governing Nova Scotia Court of Appeal authority for the proposition that the discoverability rule applies to the twelve-month limitation period in s. 10 of the Fatal Injuries Act. The limitation period does not run from the bare date of death but from the point at which the claimant knows, or by reasonable diligence ought to have known, that the death was a wrongful death within the meaning of s. 3: a death caused by the wrongful act, neglect, or default of another that would have entitled the deceased to maintain an action had they survived.

The case arose from facts that illustrate the injustice the discoverability ruling prevents. Flora Burt spent twenty-five years unaware that her husband’s nephew, not her husband, had been driving the vehicle when her husband was killed. Without the discoverability ruling, her action and her daughter’s action would have been barred before either of them could possibly have known they had one. The Court of Appeal confirmed that this result was not what the legislature intended when it enacted s. 10 of the Fatal Injuries Act.

That confirmation, that the “death” from which time runs in s. 10 is not merely any death but the wrongful death that is the constituent element of the statutory cause of action, is the lasting contribution of this case to Nova Scotia fatal accident law.

Quick Reference: Burt and Seward v LeLacheur

Case Details

• Citation: Burt and Seward v LeLacheur, 2000 NSCA 90 (CanLII), (2000) 189 DLR (4th) 193, 186 NSR (2d) 109 — https://canlii.ca/t/1vhhm
• Docket: CA161675 | Appeal heard: June 13, 2000 | Judgment: July 28, 2000
• Panel: Chipman J.A. (Glube C.J.N.S. and Cromwell J.A. concurring)
• Appeal from: Wright J. in chambers (November 2, 1999)
• Result: Appeal allowed in part; discoverability applies to s. 10; action dismissal set aside; matter to trial

The Parties

• Appellants: Flora Burt (widow of the deceased) and Shelley Dawn Seward (daughter, born September 15, 1972)
• Respondent: Howard LeLacheur (nephew of the deceased, Vincent LeLacheur; the driver of the vehicle)

Key Facts

• August 12, 1972: Vincent LeLacheur killed in a vehicle accident near Port Hawkesbury; his widow Flora Burt believed her husband (not his nephew Howard) was driving
• February 1997: Flora Burt first learns from her niece that Howard LeLacheur had admitted to family members and to the RCMP that he (not Vincent) had been driving, 25 years after the death
• July 18, 1997: Action commenced under the Fatal Injuries Act
• February 18, 1998: Defence pleads action statute-barred under s. 10 (12 months from death)
• November 2, 1999: Wright J. dismisses application to strike limitation plea and dismisses the action; discoverability held inapplicable; no fraudulent concealment shown
• July 28, 2000: NSCA allows appeal in part; discoverability applies; action dismissal set aside; matter to trial

The Governing Holding

• The death triggering s. 10 is not merely any death but the “wrongful death” created by s. 3: a constituent element of the statutory cause of action, not a fixed external event unrelated to it
• Accordingly, the discoverability rule applies to s. 10 of the Fatal Injuries Act
• The twelve-month period does not begin until the claimant knows or ought reasonably to know that the death is a wrongful death caused by the defendant
• The precise point at which knowledge (actual or constructive) triggers the period is a question of fact for the trial judge
• Per para 44: “On the true construction of s. 10 of the Fatal Injuries Act, time does not run from a fixed point unconnected to the cause of action created by s. 3, but from the plaintiff’s knowledge, reasonably presumed, of its essential elements — a wrongful death caused by the defendant”

What Section 3 Requires for a Wrongful Death Claim

• A death of a person
• Caused by a wrongful act, neglect, or default of another (i.e., a “wrongful death” that is not merely any death)
• Of a type that would have entitled the deceased, had they survived, to maintain an action and recover damages
• The cause of action is derivative of the personal injury claim the deceased would have had; defences available against the deceased’s claim remain available against the family’s Fatal Injuries Act claim

The Nova Scotia Limitation Period

• Section 10, Fatal Injuries Act, RSNS 1989, c 163: action must be commenced within 12 months after the death of the deceased person
• Among the shortest limitation periods for civil claims in Canada; compare: New Brunswick 2 years; PEI 2 years; NL 2 years
• Discoverability (per Burt and Seward) governs when the 12 months begins in cases where the wrongful character of the death was not immediately known or knowable
• Where the wrongful death was apparent from the outset, the clock runs from the date of death with no extension
• Families suspecting negligence in a loved one’s death should seek legal advice immediately; even with discoverability, the period is strict and the objective diligence standard may not give much room

Related Cases in This Series

• MacLean v MacDonald, 2002 NSCA 30 (CanLII) — estate damages in Nova Scotia under the Survival of Actions Act; limited to strictly pecuniary losses; no non-pecuniary damages for the estate
• Rowe v Brown, 2008 NSSC 13 (CanLII) — purpose of the Nova Scotia Fatal Injuries Act; economic compensation for dependants
• Murray Estate v Advocate Contracting Ltd, 2001 NSSC 104 — Nova Scotia quantum benchmarks for loss of care, guidance and companionship
• Mazerall v Nightingale (1991 CanLII 2716 NBCA) and Guimond v Guimond Estate (1996 CanLII 4858 NBCA) — New Brunswick fatal accident framework; 2-year limitation; non-pecuniary and punitive damages available to estate; different quantum benchmarks

The Governing Statutory Provisions

• Section 3, Fatal Injuries Act, RSNS 1989, c 163: “Where the death of a person has been caused by such wrongful act, neglect or default of another as would, if death had not ensued, have entitled the person injured to maintain an action and recover damages in respect thereto, in such case, the person who would have been liable if death had not ensued shall be liable to an action of damages, notwithstanding the death of the person injured, and although the death has been caused under such circumstances as amount in law to a crime.”
• Section 10, Fatal Injuries Act, RSNS 1989, c 163: “Not more than one action shall lie for and in respect to the same subject-matter of complaint and every such action shall be commenced within twelve months after the death of the deceased person.”