By Jennifer Taylor – Research Lawyer

September used to mean one thing: back to school. This year, Nova Scotia lawyers get a fresh learning opportunity of a different sort. It comes in the form of the new Limitation of Actions Act, in force September 1, 2015.

This post provides a brief review of the transition provisions, using two variations on a simple hypothetical – with thanks to the helpful “Transition Rules Flowchart” at page 6 of the Department of Justice’s guide to the Act.

The transition provisions are found in section 23 of the Act:

TRANSITIONAL PROVISIONS, CONSEQUENTIAL AMENDMENTS AND EFFECTIVE DATE

23 (1) In this Section,

(a) “effective date” means the day on which this Act comes into force;

(b) “former limitation period” means, in respect of a claim, the limitation period that applied to the claim before the effective date.

(2) This Section applies to claims that are based on acts or omissions that took place before the effective date and in respect of which no proceeding has been commenced before the effective date.

(3) Where a claim was discovered before the effective date, the claim may not be brought after the earlier of (a) two years from the effective date; and (b) the day on which the former limitation period expired or would have expired.

We now know that the “effective date” is September 1, 2015.

Scenario A:

Let’s assume a person (we’ll call her the plaintiff, for ease of reference) wants to pursue a claim to recover damages for personal injuries she suffered in a motor vehicle accident on August 31, 2015. She will allege that the driver of the other motor vehicle was negligent.[1]

The new Act streamlines limitation periods for most causes of action, including negligence (it also eliminates all limitation periods for causes of action based on sexual misconduct, with retrospective effect). However, the transition rules mean the former Limitation of Actions Act, RSNS 1989, c 258 will remain relevant for the foreseeable future.

Under section 2(1)(f) of the “old” Limitation of Actions Act, the plaintiff would have had three years from the date of the accident to bring her claim. However, section 3(2) gave the court the discretion to disallow a limitations defence if a claim was commenced outside that period, as long as no more than four years had passed after the original limitation period expired.

With the advent of the new Act, there is now a basic limitation period of two years. The clock starts to tick when the claim is first discovered (which we’ll assume to be August 31, 2015). There is also an ultimate limitation period of 15 years, regardless of discoverability.

Section 12(6) of the new Act allows the Court to disallow a limitations defence in personal injury claims, as long as the claim is brought within two years of the expiry of the applicable limitation period.

In our hypothetical, the plaintiff has not yet started a lawsuit. When does the plaintiff’s limitation period expire?

Section 23(2) applies to this calculation, because the act in question—the allegedly negligent driving that led to the MVA—occurred, and the plaintiff discovered her claim, on August 31, 2015. This was before the effective date of September 1, 2015, and “no proceeding has been commenced” yet.

According to section 23(3), the limitation period will expire on the earlier of:

• “two years from the effective date” (September 1, 2017) or
• “the day on which the former limitation period expired or would have expired” (August 31, 2018).

So the plaintiff has to bring her claim by September 1, 2017 – although she will still have the potential “safety net” of section 12, the safeguard provision that could disallow the defendant’s limitations defence, if she brings her claim by September 1, 2019.

Scenario B:

Changing the facts a bit, imagine the plaintiff’s accident happened on August 31, 2012. When the new Act comes into force on September 1, 2015, she has still not brought her lawsuit. The “former limitation period” of three years has expired, so it would appear her claim is statute-barred. (The Department of Justice chart reaches the same conclusion.)

Furthermore, there is nothing in the new Act to indicate that the “former limitation period” would also encompass the possible four-year discretionary extension in section 3 of the 1989 legislation.

What about the judicial discretion contained in section 12 of the new Act, given that this is a personal injury case? Could the court disallow a defence (which would be based on the expiry of the limitation period on August 31, 2015), and allow the claim to proceed, as long as it is brought before August 31, 2017? It does not seem that way.

Section 12(1) defines “limitation period” as either a limitation period established under the new Act, or a limitation period established by “any enactment other than this Act.” The 1989 Act would not fall into either category; the relevant provisions of that Act will be repealed as they relate to causes of action other than those involving real property (see section 27 of the new Act) so probably could not count as an “enactment.”

What about the ultimate limitation period of 15 years that the new Act establishes? Where the MVA happened on August 31, 2012, does the plaintiff really have until August 31, 2027? Again, the new Act suggests the answer is no, because her “former limitation period” expired on August 31, 2015.

The exact relationship between the transition provision and the 15-year ultimate limitation period is unclear, however; section 23(3) focuses on discoverability, whereas the ultimate limitation period in section 8(1)(b) depends on the occurrence of the event and not when it is discovered by the claimant. Depending on how courts wrestle with this relationship, the concern is that more claims will remain alive than the Legislature might have intended. But only time, and judicial interpretation of the new Act, will tell.

Although these scenarios were relatively simple, expect more tricky transition questions to come up as Nova Scotia lawyers go “back to school” this fall with the new Statute of Limitations.

[1]For an earlier analysis of how the new Act would affect personal injury cases, please see http://canliiconnects.org/en/commentaries/34962.

The foregoing is intended for general information only and should not be relied upon as legal advice. If you have any questions about how the new Limitation of Actions Act might apply to you, please contact one of our lawyers: https://www.stewartmckelvey.com/en/home/areasoflaw/default.aspx.