Canada: Personal Injury Claims And The Nova Scotia Limitation Of Actions Act: Everything Old Is New Again?

Last Updated: December 17 2014
Article by Jennifer Taylor

Introduction

Nova Scotia's new Limitation of Actions Act, SNS 2014, c 35 received Royal Assent on November 20, 2014, but has not yet been proclaimed into force.1 This post argues that the new Act will streamline the presumptive limitation periods, which is a welcome development, but will still maintain some of the uncertainty that has plagued its predecessor. The uncertainty will be especially acute in personal injury cases – and therefore especially problematic for defendants in those cases.

The new Act: The good ... and the unpredictable

First, the good news.

The current version of the Limitation of Actions Act, RSNS 1989, c 258 is notorious for creating complicated limitation periods that depend on particular causes of action. See, for example, section 2(1)(e):

(e) all actions grounded upon any lending, or contract, expressed or implied, without specialty, or upon any award where the submission is not by specialty, or for money levied by execution, all actions for direct injuries to real or personal property, actions for the taking away or conversion of property, goods and chattels, actions for libel, malicious prosecution and arrest, seduction and criminal conversation and actions for all other causes which would formerly have been brought in the form of action called trespass on the case, except as herein excepted, within six years after the cause of any such action arose;

Compare that wordy provision to section 8 of the new Act, which establishes the general limitation periods applicable to all claims ("claim" is broadly defined in section 2(1)(a)):

8 (1)Unless otherwise provided in this Act, a claim may not be brought after the earlier of

  1. two years from the day on which the claim is discovered; and
  2. fifteen years from the day on which the act or omission on which the claim is based occurred.

(The rest of section 8 explains how to determine when a claim is discovered, and when an act or omission occurred.)

There are some exceptions to these limitations, including for sexual assault claims (see section 11(a)) and where another statute sets out a different limitation period (see section 6).2 But for the most part, the new streamlined limitation periods will create more certainty in litigation.

Except for personal injury litigation.

Recall that the current Limitation of Actions Act in section 3(2) allows the court to disallow a limitations defence if it would be "equitable in the circumstances," based on the factors listed in section 3(4). This provision has created an in-joke amongst local lawyers that Nova Scotia doesn't really have any limitation periods.

That was supposed to change with the new Act. When it was first introduced as Bill 64, there was no discretion to extend a limitation period. This made sense: Bill 64 was based on the Uniform Law Conference of Canada's limitations statute,3 which does not give this kind of discretion to the court.4 Neither does New Brunswick's similar Limitation of Actions Act, SNB 2009, c L-8.5, in force since 2010.

But before third reading, Bill 64 changed. Submissions before the law amendments committee caused the committee to add "a safeguard provision" for victims of personal injuries.5

Section 12 of the Act, as passed, contains this safeguard provision. It is worth setting out in full:

12 (1) In this Section, "limitation period" means the limitation period established by

  1. clause 8(1)(a); or
  2. any enactment other than this Act.

(2) This Section applies only to claims brought to recover damages in respect of personal injuries.

(3) Where a claim is brought without regard to the limitation period applicable to the claim, and an order has not been made under subsection (4), the court in which the claim is brought, upon application, may disallow a defence based on the limitation period and allow the claim to proceed if it appears to the court to be just having regard to the degree to which

  1. the limitation period creates a hardship to the claimant or any person whom the claimant represents; and
  2. any decision of the court under this Section would create a hardship to the defendant or any person whom the defendant represents, or any other person.

(4) Where a limitation period has expired, a person who wishes to invoke the limitation period, upon giving at least 30 days' notice to any person who may have a claim, may apply to the court for an order terminating the right of the person to whom such notice was given from commencing the claim and the court may issue such order or may authorize the commencement of the claim only if it is commenced on or before a day determined by the court.

(5) In making a determination under subsection (3), the court shall have regard to all the circumstances of the case and, in particular, to

  1. the length of and the reasons for the delay on the part of the claimant;
  2. any information or notice given by the defendant to the claimant respecting the limitation period;
  3. the effect of the passage of time on

    1. the ability of the defendant to defend the claim, and
    2. the cogency of any evidence adduced or likely to be adduced by the claimant or defendant;
  4. the conduct of the defendant after the claim was discovered, including the extent, if any, to which the defendant responded to requests reasonably made by the claimant for information or inspection for the purpose of ascertaining facts that were or might be relevant to the claim;
  5. the duration of any incapacity of the claimant arising after the date on which the claim was discovered;
  6. the extent to which the claimant acted promptly and reasonably once the claimant knew whether or not the act or omission of the defendant, to which the injury was attributable, might be capable at that time of giving rise to a claim;
  7. the steps, if any, taken by the claimant to obtain medical, legal or other expert advice and the nature of any such advice the claimant may have received;
  8. the strength of the claimant's case; and
  9. any alternative remedy or compensation available to the claimant.

(6) A court may not exercise the jurisdiction conferred by this Section if the claim is brought more than two years after the expiry of the limitation period applicable to that claim.

(7) This Section does not apply to a claim for which the limitation period is 10 years or more.

In many ways, this provision is remarkably similar in language and tone to section 3 of the current Act (although "equitable" has been changed to "just," and "disability" is now "incapacity"). And there are two additional factors for the court to consider in deciding whether to extend a limitation period:

  • "the strength of the claimant's case" – Section 12(5)(h)
  • "any alternative remedy or compensation available to the claimant" – Section 12(5)(i)

However, the new Act will limit judicial discretion in two key ways:

  1. The judicial discretion will only apply to personal injury lawsuits. This is a big difference from the current discretion provision, which applies to most causes of action.
  2. The court will not be able to exercise its discretion "if the claim is brought more than two years after" the applicable limitation period has expired. This is down from the four-year ultimate extension in the current section 3(6).

Discretion from a defence perspective

These new parameters on the court's discretion represent a major change from the current state of the law. But personal injury defendants will still be exposed to possible extensions to limitation periods and all the uncertainty that brings. So what arguments and procedural steps will be available to potential defendants in these cases?6

  • The defendant can make a hardship argument under section 12(3)(b).
  • Section 12(4) lets the defendant apply for an order terminating the plaintiff's right to bring the claim, once the limitation period has expired and the defendant has given 30 days' notice. However, the court will have discretion to allow the plaintiff's claim, as long as it is brought "on or before a day determined by the court."
  • Defendants can argue that the factors in subsection (5) are on their side, especially if they can show that the delay was not for good reason and harmfully affects their ability to defend the case, and that the plaintiff's case is weak.
  • The defendant's position will be stronger if it can show that it has responded to reasonable requests of the plaintiff (subsection (5)(d)) and / or notified the claimant about an upcoming limitation period (subsection (5)(b)).
  • Under subsection (5)(i), the defendant can point to any "alternative remedy or compensation" that may be "available to the claimant" as a factor against permitting the lawsuit to proceed. This provision may serve an access to justice function as well, pushing cases out of the courts and into alternative dispute resolution.

Conclusion

Traditionally, the rationales for limitation periods, which La Forest J outlined in M (K) v M (H), were considered "from the perspective of fairness to the potential defendant":7

  • Certainty That the potential defendant is entitled at some point to rest assured that it no longer faces the jeopardy of a lawsuit.
  • Evidentiary That claims "based on stale evidence" should not proceed: "Once the limitation period has lapsed, the potential defendant should no longer be concerned about the preservation of evidence relevant to the claim..."
  • Diligence That plaintiffs should not be allowed to "sleep on their rights" and should "bring suit in a timely fashion."8

However, Justice La Forest went on to say that "fairness to the plaintiff" must also play a role in the limitations analysis.9

Nova Scotia's new Limitation of Actions Act tips the balance in favour of the plaintiff, at least in the personal injury context. For this reason, the new Act's reforms were not as wholesale as some in the defence Bar had expected (and hoped). But there is cautious optimism that the Act will bring increased certainty to other areas of the law, once it comes into force.

Footnotes

[1] Section 31 provides: "This Act comes into force on such day as the Governor in Council orders and declares by proclamation."

[2] In the personal injury context, note the Insurance Act, RSNS 1989, c 231, s 145, which sets out a one-year limitation period for actions against automobile insurers.

[3] Nova Scotia, House of Assembly, Hansard, Assembly 62, Session 2, 14-23 (30 October 2014) at 1756-1757 (Hon Lena Diab).

[4] Online: ULCC http://www.ulcc.ca/en/uniform-acts-new-order/current-uniform-acts/494-josetta-1-en-gb/uniform-actsa/limitations-act/1122-uniform-limitations-act-2005.

[5] Nova Scotia, House of Assembly, Hansard, Assembly 62, Session 2, 14-31 (14 November 2014) at 2640 (Hon Lena Diab).

[6] For simplicity's sake, this section refers to "plaintiffs" and "defendants" even though no lawsuit may have been commenced when these arguments are raised. Many of these arguments and options have been available under the current version of the Act as well.

[7] M (K) v M (H), [1992] 3 SCR 6 at 33.

[8] M (K) v M (H) at 29-30.

[9] M (K) v M (H) at33.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
Similar Articles
Relevancy Powered by MondaqAI
Miller Thomson LLP
Bennett Jones LLP
 
In association with
Related Topics
 
Similar Articles
Relevancy Powered by MondaqAI
Miller Thomson LLP
Bennett Jones LLP
Related Articles
 
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions