Mattatall Estate v. Whitehead, 2016 NSSC 334

Supreme Court of Nova Scotia Citation: Mattatall Estate v. Whitehead , 2016 NSSC 334 Date: 20161207 Docket: Hfx No. 434793 Registry: Halifax Between: Elaine Marie Mattatall and David Harold Mattatall through the Estate of James Phillip Mattatall, pursuant to the Fatal Injuries Act , R.S., c. 163, s. 1 and the Survival of Actions Act , R.S., c. 453, s. 1 Plaintiffs v. Jason William Whitehead and Toothy Moose Inc. Defendants v.

Daniel Mattatall Third Party Library Heading Judge: The Honourable Justice Suzanne Hood Heard: October 6, 2016, in Halifax, Nova Scotia Supplemental Written Submissions: October 13 and October 18, 2016 Written Decision: December 7, 2016 Subject: Adding third party: C.P.R. 35.08 and 83.04; Limitation of Actions Act , R.S., c. 258 and S.N.S. 2014, c. 35 .

Summary: Toothy Moose Inc. is a defendant in a Fatal Injuries Act and Survival of Actions Act lawsuit. It wishes to add a third party who has already been made a third party by the other defendant. Issues:

(1) Which Act applies and does Toothy Moose meet the requirements to add a third party? Result: The 1989 Limitation of Actions Act applies. Third party can be added. THIS INFORMATION SHEET DOES NOT FORM PART OF THE COURT'S DECISION. QUOTES MUST BE FROM THE DECISION, NOT THIS LIBRARY SHEET. SUPREME COURT OF Nova Scotia Citation: Mattatall Estate v. Whitehead , 2016 NSSC 334 Date: 20161207 Docket: Hfx No. 434793 Registry: Halifax Between: Elaine Marie Mattatall and David Harold Mattatall through the Estate of James Phillip Mattatall, pursuant to the Fatal Injuries Act , R.S., c. 163, s. 1 and the Survival of Actions Act , R.S., c. 453, s. 1

Plaintiffs v. Jason William Whitehead and Toothy Moose Inc. Defendants v. Daniel Mattatall Third Party Judge: The Honourable Justice Suzanne Hood Heard: Supplemental Written Submissions: October 6, 2016, in Halifax, Nova Scotia October 13 and October 18, 2016 Counsel: Trevor Wadden and Jamie MacGillivray for the plaintiffs David Green for the defendant, Jason William Whitehead Nancy Murray and Kyla Russell for the defendant, Toothy Moose Inc. Brian Bailey for the third party, Daniel Mattatall Introduction [ 1 ] Toothy Moose Inc. seeks to add a third party to an existing action.

Issue [ 2 ] Has Toothy Moose met the requirements to add a third party? Facts [ 3 ] James Mattatall was struck by Jason Whitehead outside the Toothy Moose Tavern on December 17, 2011. He was knocked to the ground and died from his injuries. [ 4 ] Action was commenced pursuant to the Fatal Injuries Act and the Survival of Actions Act by James Mattatall’s parents on December 24, 2014 against Jason Whitehead and Toothy Moose Inc. Whitehead filed a defence to the claim and a cross claim against Toothy Moose and made a third party claim against Daniel Mattatall.

Toothy Moose filed a defence to the claim and a defence to the cross claim and its own cross claim against Whitehead. Daniel Mattatall filed a defence to the third party claim brought by Whitehead. It was only on September 15, 2016 that Toothy Moose filed a notice of motion to add Daniel Mattatall as a third party. Civil Procedure Rules and Limitation of Actions Acts [ 5 ] Civil Procedure Rule 4.11 provides that a party can be added as a third party. Where the pleadings have closed, leave of the court is necessary to add a third party. [ 6 ] Rule 35.08 provides:

(1) A judge may join a person as a party in a proceeding at any stage of the proceeding.

(2) It is presumed that the effective administration of justice requires each person who has an interest in the issues to be before the

court in one hearing.

(3) The presumption is rebutted if a judge is satisfied on each of the following: (

a) joining a person as a party would cause serious prejudice to that person, or a party; (

b) the prejudice cannot be compensated in costs; (

c) the prejudice would not have been suffered had the party been joined originally, or would have been suffered in any case. …

(5) Despite Rule 35.08(1), a judge may not join a party if a limitation period, or an extended limitation period, has expired on the claim that would be advanced by or against the party, the expiry precludes the claim, and the person protected by the limitation period is entitled to enforce it. [ 7 ] Three conditions must be met before leave is granted: 1. no bad faith by the applicant; 2. no prejudice to the third party that cannot be compensated in costs; and, 3. the limitation period has not expired. [ 8 ] The first two are conceded by Daniel Mattatall.

He submits however that the limitation period has expired and the court has no discretion to add a third party as a result. He relies on Sweeney-Cunningham v. IBG Canada Ltd. 2013 NSSC 415 , where Bourgeois, J. (as she then was) referred to Rule 83.04. It provides:

(1) A notice that starts a proceeding, or a third party notice, may be amended to add a party, except in the circumstances described in Rule 83.04(2).

(2) A judge must set aside an amendment, or part of an amendment, that makes a claim against a new party and to which all of the following apply: (

a) a legislated limitation period, or extended limitation period, applicable to the claim has expired; (

b) the expiry precludes the claim; (

c) the person protected by the limitation period is entitled to enforce it. [ 9 ] In that case Bourgeois J. considered the Limitation of Actions Act , R.S.N.S. 1989, c. 258, which gives the court authority to extend the limitation period in certain circumstances. Section 3(2) provides:

(2) Where an action is commenced without regard to a time limitation, and an order has not been made pursuant to subsection (3), the court in which it is brought, upon application, may disallow a defence based on the time limitation and allow the action to proceed if it appears to the court to be equitable having regard to the degree to which (

a) the time limitation prejudices the plaintiff or any person whom he represents; and (

b) any decision of the court under this

Section would prejudice the defendant or any person whom he represents, or any other person. [ 10 ] The factors that are to be considered in deciding whether a limitation period should be extended are set out in s. 3(4) of the Act .

(4) In making a determination pursuant to subsection (2), the court shall have regard to all the circumstances of the case and in particular to (

a) the length of and the reasons for the delay on the part of the plaintiff; (

b) any information or notice given by the defendant to the plaintiff respecting the time limitation; (

c) the extent to which, having regard to the delay, the evidence adduced or likely to be adduced by the plaintiff or the defendant is or is likely to be less cogent than if the action had been brought or notice had been given within the time limitation; (

d) the conduct of the defendant after the cause of action arose, including the extent if any to which he responded to requests reasonably made by the plaintiff for information or inspection for the purpose of ascertaining facts which were or might be relevant to the plaintiff's cause of action against the defendant; (

e) the duration of any disability of the plaintiff arising after the date of the accrual of the cause of action;

(

f) the extent to which the plaintiff acted promptly and reasonably once he 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 an action for damages; (

g) the steps, if any, taken by the plaintiff to obtain medical, legal or other expert advice and the nature of any such advice he may have received. [ 11 ] A further consideration is whether four years have passed since the limitation period expired:

(6) A court shall not exercise the jurisdiction conferred by this

Section where the action is commenced or notice given more than four years after the time limitation therefor expired. [ 12 ] A complicating factor in this case is the fact that the 1989 Limitation of Actions Act has been replaced by a new Limitation of Actions Act (S.N.S. 2014, c. 35) which took effect on September 1, 2015, after this action was commenced.

Section 8 of the “new act” (S.N.S. 2014, c. 35) provides for a two year limitation period for claims of this nature and an extended limitation period of a further two years (s. 12(6)). There are transitional provisions in the new Act .

Section 23 provides:

(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. [ 13 ] Those transitional provisions in my view do not apply to this motion. Section 23(2) deals with claims where no action has been commenced. Although a third party action may be considered as a separate action brought by a defendant against a third party, it is part of the original action. Civil Procedure Rule 4.01(

c) refers to a third party claim as being “within an action”. Toothy Moose’s claim against Daniel Mattatall is for contribution and indemnity and can only exist as part of the original action. [ 14 ] Accordingly the extended limitation period set out in s. 3(6) of the old Act is applicable.

I conclude the claim is being brought within four years of the date on which the original limitation period expired, that is within four years of December 17, 2012, the date on which the one year limitation period pursuant to the Fatal Injuries Act expired. [ 15 ] As a result Sweeney-Cunningham is distinguishable because the extented limitation period has not expired.

I therefore retain the discretion to allow the third party claim. [ 16 ] In exercising my discretion I must consider whether the circumstances set out in s. 3(4) of the old Act apply. [ 17 ] I am satisfied the applicant would be prejudiced if it cannot add Daniel Mattatall as a third party. It would have no claim for contribution and indemnity against him if the claim against it is successful. Whitehead, on the other hand, who has already added Daniel Mattatall as a third party, would have that ability. [ 18 ] In considering the factors listed in ss. (4), I am satisfied that (

a) is relevant. Toothy Moose explained that it awaited the result of mediation, which was unsuccessful, before moving to add the brother of the deceased as a third party. In my view that was not unreasonable. [ 19 ] Subsection 4(

c) is relevant in that Daniel Mattatall is already a third party named by the defendant Whitehead and has, as a result, had notice that he was to be a party to this action since that third party claim was filed in October 2015. Subsection 4(

f) is in my view related to 4(

c) in that it refers back to the reason why Toothy Moose delayed in making this motion although it filed its defence and cross claim in November 2015. [ 20 ] I conclude the other factors are not relevant in these circumstances. I agree with Toothy Moose that a motion to disallow a limitation period defence is not required. The wording of Rule 35.08 contemplates that consideration be given to the limitation period issue in deciding if the motion to add a third party should be granted. The relevant parties have had a full opportunity to consider the limitation period issue.

It would be contrary to Civil Procedure Rule 1, which sets out the objective of the Civil Procedure Rules, to require two motions in these circumstances. It would not be conducive to the “just speedy and inexpensive determination” of this matter to, in effect, require a re-hearing of this issue. [ 21 ] I am therefore satisfied the motion should be granted. [ 22 ] Since this is a motion that raises for the first time issues of the applicability of the new and old Limitation of Actions Acts and

the transitional provisions in the new Act , I conclude the parties should bear their own costs. Hood, J.