Skip to content

Knowing your limitations: a new NS case on limitation periods

Jennifer Taylor

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.

SHARE

Archive

Search Archive


Generic filters

 
 

The “dominant tide” comes in: cooperative federalism in the Reference re Greenhouse Gas Pollution Pricing Act

April 5, 2021

Jennifer Taylor and Bhreagh Ross   In the recent Reference re Greenhouse Gas Pollution Pricing Act (“GGPPA Reference”), the judges of the Supreme Court of Canada unanimously agreed that climate change is real and dangerous.…

Read More

Beyond the border: Immigration update – March 2021

March 30, 2021

We are pleased to present the fifth installment of Beyond the border, a publication aimed at providing the latest information to clients about new programs and other immigration-related information that may be pertinent to employers of…

Read More

COVID-19 immigration update

March 30, 2021

*Last updated: March 30, 2021 (Originally published April 1, 2020) Kathleen Leighton Due to the COVID-19 pandemic, there are various implications for the immigration world, including for those already in Canada, as well as those…

Read More

“Worker” vs “independent operators” distinction clarified in Newfoundland and Labrador workers’ compensation decision

March 26, 2021

Richard Jordan Is a worker under a contract “of” service or contract “for” service? The former means a worker is an employee whereas the latter means a worker is an independent contractor. The answer to…

Read More

Canadian carbon tax is here to stay: Supreme Court rules Greenhouse Gas Pollution Pricing Act constitutional

March 25, 2021

Kevin Landry and William Wojcik In September 2020 the Supreme Court of Canada heard Reference re Greenhouse Gas Pollution Pricing Act, 2021 SCC 11, a case featuring appeals from Ontario, Saskatchewan, and Alberta with respect to…

Read More

Changes to the regulation of syndicated mortgages under securities laws

March 25, 2021

Christopher Marr, TEP and David Slipp Effective March 1, 2021 in all provinces of Canada, other than Ontario and Quebec (to be effective there on July 1, 2021), securities laws related to the distribution of…

Read More

Health Canada provides draft guidance on personal production of cannabis for medical purposes

March 17, 2021

Kevin Landry and  Emily Murray On March 8, 2021, Health Canada released draft guidance on personal production of cannabis for medical purposes (“Guidance Document”).  At present, the Guidance Document is being circulated for public comment for…

Read More

Clarity on the limitation period for third party claims in Nova Scotia

March 15, 2021

Jennifer Taylor   The Supreme Court of Nova Scotia has finally provided clarity on the limitation period for third party claims, in Sears v Top O’ the Mountain Apartments Limited, 2021 NSSC 80. This is…

Read More

New COVID-19 travel & quarantine requirements

March 9, 2021

Brendan Sheridan Canada has continually claimed to be one of the countries with the toughest COVID-19 related travel and quarantine requirements. In response to the new COVID-19 variants emerging in the UK and South Africa,…

Read More

Newfoundland and Labrador financial hardship unlocking available beginning today

March 1, 2021

Dante Manna As of today, Newfoundland and Labrador has joined several other jurisdictions with financial hardship unlocking provisions. While the new provisions do not allow direct unlocking from pension plans, and unlocking is not available…

Read More

Search Archive


Generic filters

Scroll To Top