COREY RIDEOUT Plaintiff And: GAIL BALSOM Defendant, 2021 NLSC 30

court crest IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR GENERAL DIVISION Citation : Rideout v. Balsom , 2021 NLSC 30 Date : March 8, 2021 Docket : 201906G0122 Between: COREY RIDEOUT Plaintiff And: GAIL BALSOM Defendant Before: Justice Garrett A. Handrigan Place of Hearing: Grand Bank, Newfoundland and Labrador Date of Hearing: February 26, 2021

Summary: Corey Rideout sued Gail Balsom for damages because of injuries he suffered in a motor vehicle accident on September 1, 2017. Mr. Rideout says Ms. Balsom caused the accident. Ms. Balsom applied to strike Mr. Rideout’s claim because he did not file it until September 12, 2019, 11 days after the statutory limitation period of 2 years ended. The Court dismissed Ms. Balsom’s application. It found that Ms. Balsom confirmed Mr. Rideout’s claim as contemplated by section 16(2) of the Limitations Act , thereby extending the limitation period so that his claim was in time. It ordered costs in the cause. Appearances:

Thomas F. Hutchings Appearing on behalf of the Plaintiff Patrick B. Power Appearing on behalf of the Defendant Authorities Cited: CASES CONSIDERED: Meyers v. Dunphy, 2007 NLCA 1; Sable Offshore Energy Inc. v. Ameron International Corp., 2013 SCC 37;GRI Simulations v. Pro-Dive Oceaneering Co., 2004 NLCA 74; Wheaton v. Palmer (1999), (NL SC), 183 Nfld. &P.E.I.R. 233, 94 A.C.W.S. (3d) 365 (Nfld. S.C.(T.D.)); Pirie v. Wyld, (1886), 11 O.R. 422, [1886] O.J. No. 188 (C.A.); B.B. v.Newfoundland and Labrador English School District, 2019 NLCA 71; Walsh v. T.R.A., 2007 NLCA 50.

STATUTES CONSIDERED: Limitations Act, S.N.L. 1995, c. L-16.1. RULES CONSIDERED: Rules of the Supreme Court, 1986 S.N.L. 1986, c. 42,

Schedule D. REASONS FOR JUDGMENT Handrigan, J.: INTRODUCTION [1] On September 1, 2017, at approximately 5:30 p.m., two motor vehicles, one driven by Corey Rideout and the other by GailBalsom, collided near the intersection of Shoal Harbour Drive and Bare Mountain Road in Clarenville, NL. Mr. Rideout says that hesustained injuries in the accident and claims that Ms. Balsom caused them. He issued a statement of claim from this Court on September12, 2019 claiming damages from her. [2] Ms.

Balsom filed a statement of defence to the claim on February 14, 2020 saying, amongst other things, that “…this actionwas commenced outside of the limitation period prescribed by the Limitations Act, S.N.L. 1995, c. L-16.1, and therefore is statute-barred” (paragraph 7 of the statement of defence). [3] As well, Ms. Balsom filed an interlocutory application on February 25, 2020 in which she asked this Court for an order that“…dismisses the within proceeding with costs to be awarded against… [Mr. Rideout]” (paragraph 9 (

b) of the interlocutory application). Initially, Ms. Balsom asked for relief under Rule 14.24 of the Rules of the Supreme Court, 1986 S.N.L. 1986, c. 42,

Schedule D (the“Rules”), but refocused her request under Rule 38.01 following a case management meeting on October 29, 2020. [4] I heard Ms. Balsom’s interlocutory application on February 26, 2021 and reserved my judgment until now. ISSUES [5] Ms. Balsom’s interlocutory application raises these issues: 1. Is the matter appropriate for determination under Rule 38.01? 2. What is the limitation period for the cause of action? 3. Is evidence that Mr. Rideout submitted when he responded to the interlocutory application admissible? 4. Did Ms. Balsom confirm Mr. Rideout’s cause of action? 5. Should Mr. Rideout’s statement of claim be struck as showing no reasonable cause of action?

6. Should Ms. Balsom receive her costs? [6] I will address issues 3 to 7 only. As to issue # 1, Ms. Balsom submits, and Mr. Rideout takes no issue with her submission,that it is appropriate to consider this matter under Rule 38.01 of the Rules. I agree with Ms. Balsom and what her counsel says on thisissue: “Balsom submits that Courts of this jurisdiction have recognized limitations [sic] issues as ‘classic cases for Rule 38 applications’”(paragraph 24 of Ms. Balsom’s supplemental memorandum of fact and law). [7] As to issue # 2, again Ms. Balsom submits, and Mr.

Rideout takes no issue with her submission, that “…the applicablelimitations [sic] period for the within cause of action is two years from the date of the Accident such that the limitations [sic] period[began] on 1 September 2017 and expired on 1 September 2019” (paragraph 26 of Ms. Balsom’s Supplemental Memorandum of Fact andLaw). I agree with Ms. Balsom’s submission as well, subject to the obvious caveat that she is simply stating, and Mr. Rideout islikewise agreeing, that the 2-year statutory period applies to Mr. Rideout’s claim; whether that limitation period binds Mr.

Rideout here,will depend on how I rule on Ms. Balsom’s interlocutory application. THE LAW Limitation Period – Personal Injury Claims [8]

Section 5(

a) of the Limitations Act reads: 5. Following the expiration of 2 years after the date on which the right to do so arose, a person shall not bring an action (

a) for damages in respect of injury to a person or property, including economic loss arising from the injury whether based on contract,tort or statutory duty”… Admissibility of Evidence [9] Wells, C.J. (as he then was) set out the "...general principles to be applied in determining whether a party is entitled tohave excluded from admission as evidence, an exchange of correspondence that is said to be protected by settlement privilege",in Meyers v. Dunphy, 2007 NLCA 1, (paragraph 12). As Wells, C.J. noted, 12. ...the conditions that must be...present...for the privilege to be recognized are: (

a) a litigious dispute must be existence or within contemplation; (

b) the communication must be made with the express or implied intention that it would not be disclosed to the court in the eventnegotiations failed; and (

c) the purpose of the communication must be to attempt to effect a settlement. [10] The rationale for settlement privilege is well known and the privilege must be guarded assiduously: It promotes settlements,and it allows parties to resolve their disputes without incurring the expense, expending the time or enduring the angst of litigation (seeSable Offshore Energy Inc. v. Ameron International Corp., 2013 SCC 37). Settlements also spare the "courts' resources", which are not,as Mercer, J.A. said in GRI Simulations v.

Pro-Dive Oceaneering Co., 2004 NLCA 74, “inexhaustible". [11] While settlement privilege enjoys a "wide scope", as Wells, C.J. said in Meyers, it is not absolute and "...occasionally theprivilege has to yield" (paragraph 19). He listed seven exceptions that are recognized in the U.K. as "among the most importantinstances" of when the privilege will yield. [12] Wells, C.

J. said that most of the stated exceptions to settlement privilege address: “... conduct of a nature that serving the interests of justice could be said to require admitting the otherwise privileged correspondence.Employing the settlement privilege to exclude evidence of such conduct would clearly be perceived as an abuse of that privilege” (Meyers, paragraph 21). [13] He preferred a principled approach (Meyers, paragraph 27) to deciding exceptions to settlement privilege; and his approachreflects his concern that the privilege not be abused: “...

Where exclusion of the communication would facilitate an abuse of the privilege, or another compelling or overriding interest ofjustice requires it, without prejudice communications are admissible”. [14] In Wheaton v. Palmer (1999), (NL SC), 183 Nfld. & P.E.I.R. 233, 94 A.C.W.S. (3d) 365 (Nfld. S.C.(T.D.)), Orsborn, J., then of this Court, offered these thoughts on the “without prejudice” disclaimers that parties to disputes commonlyattach to the correspondence and other documents they exchange:

As noted above, the law has generally required as a condition of the privilege that the communication evidence an express or implied intention that the communication will not be disclosed to the court if the dispute proceeds to trial. Generally, although not automatically, the phrase "without prejudice" will provide evidence of this intention. But the intention may also be implied. Absence of the phrase "without prejudice" will not preclude the conclusion that a communication was sent with the intention that it not be disclosed failing settlement.

If the communication in question can be said to be a part of a previous "without prejudice" privileged correspondence, then the expression of intention and the privilege will continue. Further, the non-disclosure intention may be implied from the surrounding circumstances, including any settlement-oriented subject matter in the communication itself. ( Wheaton , paragraphs 154 &155 ) [ 15 ] Orsborn, J. also quoted from Cameron, C.J. in Pirie v. Wyld , (1886), 11 O.R. 422, [1886] O.J.

No. 188 (C.A.) : The authorities seem, though not very numerous, to be clear upon the first point, that letters written, or communications made without prejudice, or offers made for the sake of buying peace, or to effect a compromise , are inadmissible in evidence. It seemingly being considered against public policy as having a tendency to promote litigation, and to prevent amicable settlements. The language used in the cases is sufficiently wide to cover all communications made under the words "without prejudice".

The cases in which the rejection of such letters or communications has taken place have generally contained some offer of settlement. (Underlining mine) ( Pirie , page 427) Confirming a Cause of Action Statute [ 16 ]

Section 16 of the Limitations Act provides: 16

(1) A confirmation of a cause of action occurs where a person (

a) acknowledges that cause of action, right or title of another person; or (

b) makes a payment in respect of that cause of action, right or title of another. 16(2) Where a person against whom an action lies confirms that cause of action, the time before the date of that confirmation shall not count when determining the limitation period for a person having the benefit of the confirmation against the person bound by that confirmation. Case Law [ 17 ] Let me return again to Orsborn, J. in Wheaton v. Palmer , for what is the definitive

interpretation of

section 16, particularly for personal injury claims, arising out of motor vehicle accidents: Based on the foregoing discussion, and with some trepidation, I offer a

summary of what I believe to be the proper

interpretation of s. 16, at least with respect to the issues raised by this application: 1. Confirmation of a cause of action is the validation or formal acceptance of all of the elements necessary to entitle the plaintiff to a court-ordered remedy. 2. A cause of action may be confirmed either by acknowledgment or by payment. 3. Acknowledgment of a cause of action requires that the defendant admit the existence of all constituent elements of the cause of action, thereby acknowledging or admitting liability.

4. In a claim for personal injury arising out of a motor vehicle accident, confirmation of the cause of action requires confirmation, either explicit or implicit, that the defendant is liable for the accident itself and that, as a result of the accident, the plaintiff suffered some compensable personal injury for which the defendant is liable to the plaintiff. Once these elements are acknowledged, nothing more is required to constitute an acknowledgment of the cause of action under consideration.

Differences as to the quantum of compensable injury do not detract from an acknowledgment that all elements of the cause of action are present. But neither does evidence of a dispute over quantum, in and of itself, suffice as acknowledgment of a cause of action. 5. Confirmation is effected by payment only if the payment is in respect of the cause of action; that is, a payment must relate to the plaintiff's entitlement to a remedy, as distinct from, for example, a payment incurred to investigate the claim or to otherwise acquire information. 6.

The solicitor of the party in question will generally be regarded, for the purposes of s. 16, as the agent of that party. Except in unusual circumstances, a solicitor would not be a person through whom the plaintiff claims. 7.

Without fully defining it, the phrase "through whom he or she claims" refers not to agents but to predecessors in title or entitlement of the plaintiff, or to a person - such as a guardian ad litem - who is authorized to conduct a proceeding for and on behalf of and in the name of the plaintiff. ( Wheaton , paragraph 112 ) Striking a Statement of Claim Statute – Rules of the Supreme Court, 1986 [ 18 ] Rule 38.01 provides, in relevant part, as follows: 38.01.

(1) The Court may, on the application of any party or on its own motion, at any time prior to a trial or hearing, (

a) determine any relevant question or issue of law or fact, or both; (

b) determine any question as to the admissibility of any evidence; …

(2) Where in the opinion of the Court, the determination of any question or issue under rule 38.01(1) substantially disposes of the whole proceeding, or any cause of action, ground of defence, or counterclaim, the Court may thereupon order the entry of such judgment or make such order, as is just. Case Law [ 19 ] In B.B. v.

Newfoundland and Labrador English School District , 2019 NLCA 71 , our Court of Appeal confirmed that the test for deciding whether to strike a statement of claim by Rule 38 is the same as that for striking a statement of claim by Rule 14.24 ; or as Welsh, J.A. said in B.B. : While the application to strike the statement of claim in this case was brought under rule 38, the test for striking out the pleadings would be the same as the test that applies under rule 14.24 . That test is stated in Sparkes v.

Imperial Tobacco Canada Ltd. , 2010 NLCA 21 , 295 Nfld. & P.E.I.R. 267: In assessing whether the pleadings disclose a cause of action, the appropriate test is the same as that applied in an application to strike a statement of claim. That is, it must be plain and obvious the action cannot succeed. The analysis must be conducted on the basis of the facts as pleaded in the statement of claim.… ( B.B. , paragraph 21 ) [ 20 ] Wells, C.J. articulated the test this way in Walsh v.

T.R.A. , 2007 NLCA 50 : I conclude, therefore, that if there is any possible basis whatsoever on which a plaintiff might successfully argue entitlement at law, it is inappropriate to anticipate any defence a defendant may plead, even though it may be a very strong one, and, on the basis of evaluating that defence, strike the Statement of Claim as having no chance of success. That issue can only be determined at trial after hearing all of the evidence relevant to the matters pleaded by all parties, and the legal arguments of the parties.

On an application under rule 14.24(1) (a), it is not appropriate to make a preliminary determination of the success of any defence the defendant might plead. If a plaintiff has pleaded facts on which a cause of action can reasonably be argued, a plaintiff is not to be "driven from the judgment seat" by anticipating defences that might be successful.

( Walsh , paragraph 16 ) [ 21 ] This is the law I will apply to the issues left for me to consider. I turn now to analyze those issues, starting with the background to them. ANALYSIS Background [ 22 ] In 2017 Corey Rideout owned a Chevrolet Cruze motor vehicle. At the time, Mr. Rideout lived in Clarenville, NL, but he now lives in Windsor, NS. Gail Balsom owned a Ford Escape motor vehicle and lived in Clarenville, where she still lives. Mr. Rideout and Ms.

Balsom, each driving their respective vehicles, collided at the intersection of Shoal Harbour Drive and Bare Mountain Road in Clarenville around 5:30 p.m. on September 1, 2017. [ 23 ] Mr. Rideout says he sustained personal injuries in the collision, and he filed a statement of claim in this Court on September 12, 2019, suing Ms. Balsom in negligence and claiming damages under various heads. In paragraphs 5 to 7 of his statement of claim, Mr. Rideout describes how the collision happened, and how he was injured: 5.

Then without warning the Defendant [Gail Balsom] suddenly turned left on Shoal Harbour Drive from Bare Mountain Road and proceeded unlawfully into the intersection and caused a collision with the Plaintiff’s [Corey Rideout’s] vehicle. 6. The Defendant’s motor vehicle pulled out in front of the Plaintiff’s motor vehicle and as a result the front of the Plaintiff’s motor vehicle collided with the side of the Defendant’s motor vehicle. 7. The Plaintiff’s motor vehicle was struck with such force that it caused the Plaintiff to suffer personal injuries. [ 24 ] Ms. Balsom filed her defence to Mr.

Rideout’s claim on February 14, 2020. She denies each allegation of negligence that Mr. Rideout makes against her and puts him to their strict proof. Generally, her defence is based in law, not in fact, and the nub of it appears in paragraph 7 of the pleading: 7. As to the whole of the Statement of Claim, the Defendant states, and the fact is, that this action was commenced outside the limitation period prescribed by the Limitations Act , S.N.L. 1995, c. L-16.1 , and therefore is statute barred. [ 25 ] Mr.

Rideout agrees that he did not file his statement of claim until 11 days after the 2-year limitation period stated in

section 5 (

a) of the Limitations Act expired. However, he says that quite a lot was happening during this time between his counsel and an adjusting firm that Ms. Balsom’s insurer hired to investigate and manage the claim. [ 26 ] In particular, Mr. Rideout notes correspondence that his counsel, Ms. Balsom’s insurer and/or adjuster exchanged from February 23, 2018 to November 4, 2019. Since that correspondence is critical to the issues in this matter, I will provide details of it in this table. Date Issuing Party Particulars 02/23/2018 Mr. Rideout’s counsel Wrote a letter to Wedgwood Insurance, Ms.

Balsom’s insurer, advising that Mr. Rideout believed Ms. Balsom caused the accident. 10/15/2018 Ms. Balsom’s adjuster Contacted Mr. Rideout’s counsel to get a statement from Mr. Rideout and to have him complete a Bodily Injury Questionnaire. 10/15/2018 Mr. Rideout’s counsel Emailed Ms. Balsom’s adjuster asking if the adjuster wanted Mr. Rideout’s medical records. 10/16/2018 Ms. Balsom’s adjuster Emailed Mr. Rideout’s counsel advising to get the records and offering to pay for them. 12/10/2018 Ms. Balsom’s adjuster Emailed Mr.

Rideout’s counsel inquiring first about the medical records and then if “… your client is in a position to settle?” 03/13/2019 Ms. Balsom’s adjuster Reimbursed Mr. Rideout’s counsel the cost of obtaining Mr. Rideout’s hospital records.

06/25/2019 Ms. Balsom’s adjuster Emailed Mr. Rideout’s counsel confirming a new person in the office had carriage of the file and asking whether counsel was “…in a position to present the [claim] demand for review”. 06/26/2019 Mr. Rideout’s counsel Presented a claim demand to Ms. Balsom’s adjuster. 07/09/2019 Ms. Balsom’s adjuster Emailed Mr. Rideout’s counsel acknowledging receipt of the claim demand and asking for “…something written from his employer confirming the hours missed [from work] in order to properly assess his claim and present you with an offer”. 08/06/2019 Ms. Balsom’s adjuster Emailed Mr.

Rideout’s counsel following up from previous email “…to see if you have been able to obtain written confirmation of your clients [ sic ] lost income so I can assess his claim”. 09/04/2019 Mr. Rideout’s counsel Caused Mr. Rideout’s employer to send letter to Ms. Balsom’s adjuster. 09/05/2019 Mr. Rideout’s counsel Sent Mr. Rideout’s statement of claim to court for issuance. 09/05/2019 Ms. Balsom’s adjuster Sent offer to settle to Mr. Rideout’s counsel, which he received September 11, 2019. 09/11/2019 Mr. Rideout’s counsel Sent counteroffer by email to Ms. Balsom’s adjuster. 09/18/2019 Ms.

Balsom’s adjuster Presented counteroffer to Mr. Rideout’s counsel by email. 09/30/2019 Ms. Balsom’s adjuster Sent follow-up email to Mr. Rideout’s counsel about counteroffer. 10/30/2019 Ms. Balsom’s adjuster Emailed Mr. Rideout’s counsel about the settlement offer of September 18, 2019: “Just wondering if you have spoken with your client regarding same”. 11/04/2019 Ms. Balsom’s adjuster Emailed Mr. Rideout’s counsel asking for “…a copy of the issued statement of claim for my file”. 11/08/2019 Ms. Balsom’s adjuster Emailed Mr.

Rideout’s counsel asking for “…a copy of the issued statement of claim in this matter so we can continue negotiations”. 11/12/2019 Mr. Rideout’s counsel Sent copy of statement of claim to Ms. Balsom’s adjuster. 11/27/2019 @ 4:29 pm Ms. Balsom’s adjuster Emailed Mr. Rideout’s counsel “…just following up the issue with the statement of claim …Limitation expired prior to SOC issuance. Can you advise your position on this”? 11/27/2019 @ 4:57 pm Mr. Rideout’s counsel Responded to Ms.

Balsom’s adjuster’s email of that date: “It is our position that the limitation period is reset as there was an acknowledgment of the cause of action…If it remains your position not to continue negotiations, we will serve the Statement of Claim…”. [ 27 ] This is the background to this matter. I turn now to discuss the issues that are still outstanding, starting with the admissibility of the evidence that Mr. Rideout relies on in responding to Ms. Balsom’s interlocutory application to strike his statement of claim. DISCUSSION Admissibility of Evidence [ 28 ] Ms. Balsom submits that Mr.

Rideout “…has taken a cavalier approach in determining what [of the materials and affidavit evidence he has filed in answering the interlocutory application] …is and is not subject to settlement privilege and has failed to provide any rationale as to why some evidence is covered by settlement privilege, while other evidence is not” (paragraph 28 of supplemental memorandum of fact and law of the Defendant/Applicant). [ 29 ] In Meyers v. Dunphy , Wells, C.J. set out three conditions that must exist for settlement privilege to apply. They are:

(

a) a litigious dispute must be existence or within contemplation; (

b) the communication must be made with the express or implied intention that it would not be disclosed to the court in the event negotiations failed; and (

c) the purpose of the communication must be to attempt to effect a settlement. (

a) Litigious Dispute [ 30 ] There is no doubt that a “litigious dispute” exists. Mr. Rideout’s counsel wrote to Ms. Balsom’s insurer on February 23, 2018 advising of the motor vehicle accident between Ms. Balsom and Mr. Rideout on September 1, 2017 and noting that “[i]t is our position that liability for this accident rests with your insured and we appreciate it if you would contact the undersigned at your earliest convenience in connection with this matter”. Subsequently, Mr. Rideout issued a statement of claim from this Court in which he appears as plaintiff and names Ms. Balsom as defendant. He seeks damages for injuries he says he suffered in the accident. (

b) Communications Not to be Disclosed if Negotiations Fail [ 31 ] Ms. Balsom’s adjuster submitted some of its correspondence to Mr. Rideout’s counsel on a “without prejudice” basis. I note, in particular, the emails of October 16, 2018 and December 10, 2018; but none of the adjuster’s correspondence after that date carried that disclaimer, or otherwise limited its use. Mr. Rideout’s counsel submitted none of his correspondence to Ms.

Balsom’s adjuster on a “without prejudice” basis or restricted its dissemination in anyway. [ 32 ] Of course, the absence of a stated disclaimer does not end the inquiry about whether the correspondence may be inadmissible. As Orsborn, J. said in Wheaton v. Palmer : “If the communication in question can be said to be a part of a previous ‘without prejudice’ privileged correspondence, then the expression of intention and the privilege will continue.

Further, the non-disclosure intention may be implied from the surrounding circumstances, including any settlement-oriented subject matter in the communication itself”. [ 33 ] The correspondence that flowed between Mr. Rideout’s counsel and Ms. Balsom’s adjuster between March 13, 2019 and November 8, 2019 is free-wheeling and unrestrained. In effect, it amounts to overt representations from adjuster to counsel and vice versa, as the adjuster compiles information – Mr.

Rideout’s medical records, his employment information, etc. – about the claim, and attempts to quantify it. [ 34 ] There is no indication, for example, that the adjuster doubts Ms. Balsom’s liability for the accident, or that she believes that Mr. Rideout may have contributed to it. The adjuster’s posture is consistent with two things: the police report about the accident that Mr. Rideout attached as Exhibit “I” to the “Response to the Defendant’s Interlocutory Application” that he filed on December 10, 2020. The report, dated October 18, 2018, notes as to Ms. Balsom: “No charges at this time”; and as to Mr.

Rideout: “not at fault”. [ 35 ] It is also consistent with the statement of defence that Ms. Balsom filed to Mr. Rideout’s statement of claim. I noted earlier that Ms. Balsom offers no defence on the merits of the claim, but simply denies all of Mr. Rideout’s claims about how the accident happened and puts him to their strict proof. Otherwise, of course, she relies on her claim that Mr. Rideout missed the limitation period and asks that it be dismissed on that basis. [ 36 ] Comments made or representations held out in correspondence between parties prior to trial may be evidence of who is liable for the cause.

I have no sense that Ms. Balsom’s adjuster was worried that comments she made or representations she held out might be used to decide if Ms. Balsom was responsible for the accident. [ 37 ] My compelling sense is that Ms. Balsom’s insurer and adjuster accepted that she caused the accident from when Mr. Rideout’s counsel wrote to Ms. Balsom’s insurer on February 23, 2018 and told the insurer that Mr. Rideout believed Ms. Balsom caused the accident. And that belief accounts for the lack of restraint that is evident to me in the correspondence that Ms. Balsom’s adjuster and Mr.

Rideout’s counsel, especially the former, exchanged. (

c) Purpose of Correspondence to Effect a Settlement [ 38 ] I am uncertain about when Wedgewood Insurance retained Ms. Balsom’s adjuster to represent it. The earliest correspondence from the adjuster that is noted in the materials that Mr. Rideout filed is dated October 15, 2018. As soon as two months after that, on December 10, 2018 the adjuster asked Mr. Rideout’s counsel if “…your client is in a position to settle?” After that, there are repeated requests about the same until June 26, 2019 when Mr.

Rideout’s counsel presented a claim on his behalf. [ 39 ] From then, until October 30, 2019 counsel and the adjuster exchanged ongoing correspondence, containing offers and counteroffers as they tried to settle Mr. Rideout’s claim. So, it is clear from this background that Ms. Balsom’s adjuster (and her principal, Ms.

Balsom’s insurer) wanted to settle the claim early on in their dealings and practically all correspondence between them, especially in the last six months, was directed to that end. [ 40 ] However, once again, both their intent to settle the claims and their attempts to do so are not reasons, in the circumstances of this case, to exclude that correspondence. Quite simply, as I have already noted, the parties were mutually interested in that result, and, if anything, Ms.

Balsom’s adjuster (and, by extension, her insurer) was even more resolved to achieve it. [ 41 ] I note again what Wells, C.J. said in Meyers : Settlement privilege enjoys a "wide scope", but it is not absolute and "...occasionally the privilege has to yield". If settlement privilege applies here, and I believe, for the reasons that I have articulated that it does not, this is a case where the “the privilege has to yield”.

[ 42 ] I make one final point as to the admissibility of the correspondence: It is being tendered neither to prove that Ms. Balsom is liable for the accident nor the quantum of Mr. Rideout’s claim. Mr. Rideout, to his credit, has withheld all or portions of any correspondence that contains his discussions with the adjuster about the quantum of Mr. Rideout’s damages; and it seems that Ms. Balsom’s adjuster and her insurer inclined to the view that she caused the accident. [ 43 ] Ms. Balsom has applied to dismiss Mr. Rideout’s claim as being out of time. Mr.

Rideout wants to tender that correspondence simply to address that argument. It remains to be seen if it will support his claim that the correspondence confirmed his cause of action. It is clearly relevant to that issue and it will not prejudice Ms. Balsom if I admit it for that purpose, which I do. I turn now to consider whether the correspondence has that effect. Confirmation of Mr. Rideout’s Cause of Action [ 44 ] In Wheaton v. Palmer , Orsborn, J. set out 7 principles to consider when assessing whether a plaintiff’s cause of action, that would be out of time otherwise, has been confirmed.

Orsborn, J. offered the principles to aid in the proper

interpretation of

section 16 of the Limitations Act . Principle #4 is most pertinent to this application. It reads, in part: In a claim for personal injury arising out of a motor vehicle accident, confirmation of the cause of action requires confirmation, either explicit or implicit, that the defendant is liable for the accident itself and that, as a result of the accident, the plaintiff suffered some compensable personal injury for which the defendant is liable to the plaintiff. [ 45 ] There are by Orsborn, J.’s assessment, two aspects to consider: (

a) Does the evidence relied upon confirm that the Defendant is liable for the accident? (

b) If so, does it also confirm that the Plaintiff has suffered some injury from the accident that the Defendant is responsible to him for? I will examine these aspects separately to see if the evidence here confirms one or both of them. [ 46 ] Before doing so, however, I want to observe the important distinction between confirming a cause of action and proving it.

Confirmation results when the defendant accepts that the plaintiff has an arguable cause of action; that the defendant may be, even partly liable for his loss; and that the plaintiff has incurred damages because of his actions. [ 47 ] It does not require that the plaintiff prove the defendant is liable for his damages. Nor does the defendant have to admit both aspects of the plaintiff’s claim outright. When the defendant, as Ms.

Balsom did here, engages in ongoing discussions with the plaintiff aimed at settling his claim, it is implicit in the defendant’s willingness to join the discussions that he accepts some liability to the plaintiff. That is confirmation. Let me show how it happened here. (

a) Confirmation that the Defendant is Liable [ 48 ] On December 10, 2018, Ms. Balsom’s adjuster sent an email to Mr. Rideout’s counsel asking if Mr. Rideout was “in a position to settle”. The adjuster followed up with counsel on June 25, 2019 to see “if you are now in a position to present the demand for review”; such that on June 26, 2019, Mr. Rideout’s counsel submitted his first claims letter to the adjuster. [ 49 ] The adjuster followed that up with several letters clarifying aspects of the claim, such as proof from his employer that Mr. Rideout lost income because of his injuries.

Then counsel and the adjuster exchanged offer and counteroffer, as they attempted to settle the claim. Their joint efforts seemed to move things along predictably until Mr. Rideout issued his statement of claim and provided a copy to the adjuster. Their cooperation ended abruptly at that, when the adjuster advised counsel on November 27, 2019 that Mr. Rideout’s claim was out of time. [ 50 ] From December 10, 2018 to November 27, 2019 there was no indication that Ms. Balsom’s adjuster thought, on the facts as she knew them, that Ms. Balsom was not liable for the accident. Even after the adjuster repudiated Mr.

Rideout’s claim as being out of time, she did so on that basis alone, just as Ms. Balsom has defended the claim. Mr. Rideout’s counsel and Ms. Balsom’s adjuster focused for almost a year solely on quantifying Mr. Rideout’s claim and gave no consideration to liability. That confirms that aspect of Mr. Rideout’s cause of action, that Ms. Balsom was liable for the accident. (

b) Confirmation of Plaintiff’s Injuries [ 51 ] Just as there is no ambivalence about whether Ms. Balsom is liable for the accident, there is none that the accident caused Mr. Rideout’s injuries. Ms. Balsom’s adjuster asked for Mr. Rideout’s medical records, she reimbursed Mr. Rideout’s counsel for their and she asked for proof that Mr. Rideout lost work because of his injuries. This is confirmation, to paraphrase Orsborn, J. from Wheaton , that Mr. Rideout suffered some compensable personal injury for which Ms. Balsom is liable to him. [ 52 ] Ms. Balsom takes issue with the time of confirmation.

In paragraph 52 of her supplemental memorandum of fact and law, Ms. Balsom says that “[f]or a confirmation to be effective, the confirmation of a cause of action necessary to reset the limitations period must occur prior to the expiration of the cause of action” (underlining in original). The cause of action in this case, unless confirmed would have expired on September 1, 2019. [ 53 ] However, much occurred before that date that effectively confirmed the action. I have discussed those events several times earlier in these reasons and need not repeat them here. It is enough to note, in general terms, that Ms.

Balsom’s adjuster had made several representations to Mr. Rideout’s counsel before September 1, 2019 that were sufficient to confirm his cause of action. By that date, negotiations to settle Mr. Rideout’s claim had advanced considerably, and his claim would likely have been resolved in the fall of 2019, but for the expiration of the limitation period. [ 54 ] Overall, I am satisfied that Ms. Balsom confirmed Mr.

Rideout’s cause of action prior to the expiration of the limitation period, thereby extending the time as contemplated by section 16(2) of the Limitations Act . [ 55 ] For greater certainty, I find that the effective date is June 25, 2019, the date on which Mr. Rideout’s counsel submitted, at the request of Ms. Balsom’s adjuster, his first demand letter for their consideration. Thus, when Mr. Rideout filed his statement of claim in

this Court on September 12, 2019, he was well within the (extended) time for him to do so. Striking Mr. Rideout’s Statement of Claim [ 56 ] Ms. Balsom applied under Rule 38.01 of the Rules because it was out of time. Mr. Rideout had until September 1, 2019 to file his statement of claim, unless Ms. Balsom extended the time by confirming his cause of action before the limitation period expired. Ms. Balsom confirmed the cause of action and extended the time well beyond September 1, 2019. There is no basis for striking Mr. Rideout’s claim as being out of time.

COSTS [ 57 ] Each party requested its costs of the interlocutory application. Costs are in the cause. Quite simply, Ms. Balsom identified an issue that was critical to the litigation and it had to be addressed before these proceedings could move to their next stage. I will not penalize her in costs for doing so.

SUMMARY AND DISPOSITION [ 58 ] Corey Rideout sued Gail Balsom for damages because of injuries he suffered in a motor vehicle accident on September 1, 2017. Mr. Rideout says Ms. Balsom caused the accident. Ms. Balsom applied to strike Mr. Rideout’s claim because he did not file it until September 12, 2019, 11 days after the statutory limitation period of 2 years ended. [ 59 ] The Court dismissed Ms. Balsom’s application. It found that Ms. Balsom confirmed Mr. Rideout’s claim as contemplated in section 16(2) of the Limitations Act , thereby extending the limitation period so that his claim was in time.

It ordered costs in the cause. ORDER [ 60 ] In the result, I order that: 1. The interlocutory application is dismissed. 2. Costs are in the cause. _____________________________ Garrett A. Handrigan Justice