Nunc Pro Tunc: The Court's Power to Bend Time

The law is full of Latin expressions, relics which have survived to the present day with varying degrees of clarity and usefulness. One very important and rarely-used Latin term that arises occasionally in the estates context is nunc pro tunc, which means “now, for then.”  

This phrase has been used to refer to the power of court, at common law, to decree that its order will have retroactive effect. This is an unusual power. Generally, a court order takes effect on the date of its pronouncement, whether it is pronounced orally to the parties in court, or by written decision.  However, nunc pro tunc allows the court to reach back in time and, in a sense, alter history.  

The most common use of nunc pro tunc is to overcome some administrative failure or cure a procedural defect, for example back-dating the date a statement of claim was issued, when court error was the reason for its failure to issue earlier.

However, courts have held that the highly discretionary and unusual step of a nunc pro tunc order can be taken where a deceased's (and by extension his or her estate's) legal rights depend on the date of formal judgment. When untimely death interrupts litigation, nunc pro tunc orders can be used to back-date the decision and thereby avoid unjust loss to the estate which would otherwise result. Such a remedy may be necessary because an estate is not identical in rights and interests to the deceased individual, and so cannot pursue all claims the deceased would have. In fact, an estate, as the Supreme Court aptly described it in Canada (Attorney General) v Hislop, is merely “a collection of assets and liabilities of a person who has died.”[1] An estate has the right to enforce or defend a judgment obtained before a plaintiff or defendant’s death, but cannot bring certain personal actions on the deceased’s behalf.  

The Supreme Court in Crown Zellerbach Ltd v Canada cautioned that the nunc pro tunc rule should be applied only in exceptional circumstances, and even then, applied with caution. 

The court does have discretion to permit a judgment to be entered nunc pro tunc when the signing of the judgment has been delayed by the act of a court.[2]  Court have interpreted this idea of “delay by an act of the court” to include the process of reserving its decision, as opposing to pronouncing judgment at the conclusion of a trial or hearing.

Here are a few examples of situations in which courts have turned to nunc pro tunc to preserve a deceased’s rights, where an estate would otherwise be unable to proceed.  

• In the recent case of Scalia v Scalia, the Ontario Court of Appeal made its order for partition and sale of the deceased’s home (owned as joint tenants with the wife) nunc pro tunc as of the date that argument concluded.[3] The deceased’s attorney under a power of attorney for property had commenced an application for partition and sale while the deceased was still alive. The deceased passed away before the court gave its decision, an event that would otherwise have caused title to the home to pass entirely to the joint-tenant, the deceased's spouse, by right of survivorship. The nunc pro tunc order allowed the estate to retain ownership of one half of the home.  

• In Jurevicius v Jurevicius, a divorce action, Justice Kruzick granted a divorce nunc pro tunc, effective as of the last day of trial, when the husband died between the end of trial and the release of His Honour’s decision.[4] This prevented the surviving former spouse from being able to claim against the estate as a spouse.

• In Canada (Attorney General) v Hislop, the Supreme Court of Canada found that estates do not have standing to commence s. 15(1) Charter claims on behalf of a deceased (because an estate, as a collection of assets, has no dignity to be infringed) but when a party died pending appeal of a s. 15 class action, the appeal survived death even if the original cause of action would not have. The Supreme Court held that the estate of any class member who was alive on the date that argument concluded in the Ontario Superior Court, and who otherwise met the requirements under the Class Proceedings Act, was entitled to the benefit of the Supreme Court’s judgment.[5] The Supreme Court’s judgment therefor was entered, nunc pro tunc, to the date of the conclusion of arguments in the trial court. This is possible because, the court explained, the issue on an appeal is “not the original cause of action but rather the legality and validity of the judgment.” 

• Court have turned to nunc pro tunc in personal injury actions in order to preserve the deceased’s claim and entitlement to non-pecuniary damages in jurisdictions where legislation prohibits estates from claiming such damages on a deceased’s behalf. Legislation such as Alberta's Survival of Actions Act, RSA 2000, c S-27, like British Columbia’s former Estate Administration Act RSBC 1996, c 122, limit an estate’s recovery of damages to actual financial loss to the deceased or his/her estate. In Monahan v Nelson[6] and Vollrath v Bruce,[7] the courts issued judgments nunc pro tunc when the deceased died in between conclusion of trial and judgment, thus allowing recovering of damages that would otherwise be denied the estate.

How far back?

An interesting question regarding nunc pro tunc orders is, when does the order take effect, and why? There has been some debate in the case law.

In Volrath v Bruce, the court held that the date immediately before the plaintiff’s death was the “appropriate and correct date” to which to back-dated the judgment, and indicated it did not see the rationale behind the practice of back-dating to the last date of trial.[8] The court speculated that the reason was one could argue that that was the last opportunity the trial judge had to give oral judgment, but then found that this rationale made no sense, as theoretically the court could call the parties back to court to give oral judgment at any time. 

The practice of back-dating to the day before the date of death has been followed by other courts since Volrath.[9] Selecting the date before the date of death poses an amusing evidentiary issue, in that the court is required to either have the parties prove date of death, or “take judicial notice” of the date of death – the approach taken in Petrowski v Petrowski Estate.[10]

Whether the judgment takes effect on the day before the deceased’s death or the day the trial concludes, the result is the same for the estate. But in my opinion, only the date the trial or hearing concludes makes sense, given the rationale behind the nunc pro tunc order.  The Supreme Court in Crown Zellerbach, supra, stated that the rationale for back-dating judgments was to avoid injustice caused “when the signing of the judgment has been delayed by an act of the court.” While it may be somewhat artificial to say that reserving its decision is a delay (in the sense that is somehow avoidable, and that the court should render judgment orally at the conclusion of trial in every case), this at least provides a logical basis both for resort to nunc pro tunc and for selecting the date of conclusion of the matter as the effective date of the order.

In contrast, back-dating the order to the date immediately before death suggests that the court’s only act of delay was in not anticipating the deceased’s moment of death and releasing judgment accordingly: that the court waited just a moment too long and accidentally missed the window of time in which the deceased was alive to benefit from the decision. A court’s ability to issue its decision effective as of the last date of trial also signals that there was nothing between the close of the trial and the date of judgment that could change how the court decided: while it may take the court some time to arrive at the decision, that decision was in effect already there. To pick some date in between, while no doubt also permissible as an exercise of the court’s discretion, causes one to wonder why the deceased’s rights would crystallize on that day.  

Either way, a nunc pro tunc order is an extraordinary power for the judiciary, and a useful tool for a lawyer to know about if the client she was had so zealously represented in court suddenly passes away, before having the benefit of the court’s decision.