Knowing your limitations: a new NS case on limitation periods
Introduction
The recent Nova Scotia Supreme Court decision in Dyack v Lincoln is a nice case study on how to work through a limitations issue. It arrives almost two years after the “new” Limitation of Actions Act, SNS 2014, c 35 (“the New Act”) came into force.1 This case study is especially welcome during our ongoing transition time, when both the New Act and the former Limitation of Actions Act, RSNS 1989, c 258 (“the Former Act”)2 may have to be consulted to figure out (a) the relevant limitation period for a claim and (b) whether that limitation period has expired.
Facts
Dyack is a case about alleged medical malpractice.
In 2014, the plaintiff (himself a doctor) sued his orthopedic surgeon, alleging that the surgeon failed to obtain informed consent before operating on the plaintiff’s shoulder in 2012. Last year, the plaintiff obtained an expert opinion suggesting that the defendant also breached the standard of care of an orthopedic surgeon in treating the plaintiff, who claims to now suffer from a partially frozen shoulder. Later in 2016, the plaintiff moved to amend his claim to allege that the defendant breached the standard of care.
Limitations analysis
The defendant argued that the limitation period had already expired so it was too late to add this allegation of negligence. Justice Chipman disagreed and allowed the amendment, taking the following analytical steps.
The first step was assessing whether the amendments pleaded a new cause of action under Nova Scotia Civil Procedure Rule 83.11(3). Distinguishing the recent Court of Appeal decision in Automattic Inc v Trout Point Lodge Ltd, Justice Chipman held that the amendments did allege a new cause of action (see para 25):
…there is nothing in the original pleading that would have put Dr. Lincoln on notice that his actions before, during or after the surgery – other than his alleged failure to obtain informed consent – were being challenged by the Plaintiff. Under even the most liberal approach, it cannot be said that these amendments merely plead an alternative theory of liability based on the same factual matrix. In the result, I am of the view that these amendments add to the factual matrix and advance new claims based on the additional facts.
Because the proposed amendments would advance a new claim, Justice Chipman had to determine the applicable limitation period for that claim, and whether it had expired. After reviewing the varied purposes of limitation periods, Justice Chipman next engaged with section 23 of the New Act. This is the so-called transition provision.
Application of the transition provision depends on whether a “proceeding” was commenced before the New Act came into force, on September 1, 2015.3 The plaintiff started his action in the spring of 2014, well before the New Act came into force. As a result, the limitation periods in the Former Act applied (see paragraph 40).
The two-year limitation period for medical negligence / malpractice under the Former Act had already expired. But that did not end the analysis. The next step was to consider whether the Court could apply section 3(2) of the Former Act to disallow the limitations defence – and Justice Chipman decided he should, exercising his discretion to effectively extend the limitation period (see paragraph 44). In the result, the plaintiff’s claim in medical negligence can continue, but the defendant surgeon “is still able to fully defend every aspect of his treatment” on the merits.
Conclusion
Nova Scotia will likely remain in limitations limbo for quite some time. This is because, in many cases, the Former Act and the New Act will both be on the table when sorting through limitations questions. Clear analysis like Justice Chipman’s will help parties and their counsel work through this transition period – and know their limitations.
NOTE: This case summary is not legal advice. It is intended as general information only and is not intended to answer specific questions on the possible expiry of a limitation period. For more information about how a limitation period may affect you, please contact one of our lawyers.
1 It will probably be the “New Act” for a while – sometimes we still call our Nova Scotia Civil Procedure Rules the “New Rules” … and they came into force in 2009.
2 Now revamped and rebranded as the Real Property Limitations Act.
3 On this point, see also Justice Hood’s decision in Mattatall Estate v Whitehead.
Archive
As many of you will now know, the Nova Scotia Government introduced legislation on Friday, December 6, 2013, amending provisions of the Nova Scotia Trade Union Act dealing with First Contract Arbitration. This client update sets out…
Read MoreIn a decision that will largely be of interest to international organizations that have been granted some type of immunity in Canada, the Supreme Court of Canada (SCC) has confirmed that international organizations enjoy immunity…
Read MoreThe Prince Edward Island (“PEI”) legislature has proposed changes to the PEI Human Rights Act to add “gender expression” and “gender identity” as new protected grounds of discrimination. First introduced on November 13, 2013 the…
Read MoreWe previously circulated a client update regarding contemplated changes to automobile insurance in Prince Edward Island. Government has now published a consultation paper (www.gov.pe.ca/photos/original/eljautoinreform.pdf), seeking responses in writing on or before December 2, 2013. According to the consultation…
Read MoreThe Association of Caribbean Corporate Counsel (ACCC) released the inaugural edition of its quarterly journal, Caribbean Corporate Counsel, featuring CEO, John Rogers, Q.C., advisor on the International Advisory Board, and an article by partner Paul Smith, entitled “Governance…
Read MoreCHANGES, CHANGES AND MORE CHANGES: KEEPING UP WITH THE TEMPORARY FOREIGN WORKER PROGRAM These days, Canada’s Temporary Foreign Worker Program (“TFWP”) is more top of mind than ever for Canadian employers. This is in part…
Read MoreBy October 17, 2014 existing not-for-profit corporations incorporated under Part II of the Canada Corporations Act (the “Old Act”) are required to be continued under the new Canada Not-for-Profit Corporations Act (the “New Act”) or face the possibility of automatic administrative…
Read MoreIN THIS ISSUE: Reasonable Cause: A necessary prerequisite for random alcohol testing policies by Mark Tector, Steve Carpenter, CHRP, Melissa Everett Withers, Ruth Trask Business Succession: Why is it critical? by Richard Niedermayer, TEP Privacy Please: Nova Scotia brings in new…
Read MoreOn May 19, 2011, Nova Scotia’s Labour Standards Code was amended to protect foreign workers from exploitation by recruiters and employers. These amendments imposed a requirement for third-party recruiters to obtain a license from the Province to…
Read MoreFacts This appeal arose from a decision which held that the Dominion of Canada General Insurance Company (“Dominion”) has a duty to defend Larry and Lona Hannam and their teenage son Jordan in an action…
Read More