Barry v. Halifax (Regional Municipality), 2017 NSSC 180

SUPREME COURT OF Nova Scotia Citation: Barry v. Halifax (Regional Municipality) , 2017 NSSC 180 Date: 20170914 Docket: Hfx No . 444100 Registry: Halifax Between: Mary Paula Barry Plaintiff v. Halifax Regional Municipality Defendant Judge: The Honourable Justice Ann E. Smith Heard: March 14, 2017, in Halifax, Nova Scotia Additional Written Submissions: May 15, 2017 Counsel: Ali Raja, for the Plaintiff Andrew Gough, for the Defendant (HRM) Wayne J.

Francis, for proposed Defendant (Royal Sunalliance Insurance Company) By the Court: INTRODUCTION [ 1 ] The Plaintiff, Mary Barry, claims she was injured on March 3, 2013 when she was a passenger on a Halifax Transit bus. She says that the bus driver stopped suddenly to avoid collision with an unidentified vehicle causing her to fall onto another passenger. [ 2 ] Ms. Barry commenced an action in October, 2015 against Halifax Regional Municipality (“HRM”). HRM contests liability in the action and denies any negligence on the part of its bus driver.

The Plaintiff and HRM have exchanged affidavits disclosing documents and conducted discovery examinations. [ 3 ] Shortly after the Plaintiff’s discovery examination on July 28, 2016, the Plaintiff says she learned for the first time that she had a possible claim against HRM’s automobile insurer for its bus fleet under

Section D of the Standard Automobile Policy for Nova Scotia. [ 4 ] The Plaintiff brings a motion to add Royal and Sunalliance Insurance (RSA), HRM’s

Section D insurer, as a defendant pursuant to Civil Procedure Rule 35.08 . [ 5 ] RSA says that it had no notice of the March 3, 2013 incident until September 29, 2016 when the Plaintiff advised that she

would seek to have RSA added as party to this action. [ 6 ] RSA relies on Civil Procedure Rules 35.08(5) and 83.04(2) and says that the Plaintiff’s action against it is statute barred, having been commenced more than two years after the March 3, 2013 incident. [ 7 ] Ms. Barry says that she should be able to add RSA as a defendant to her claim because the limitation period should, at the earliest, start being calculated on July 28, 2016 when she first discovered that RSA was HRM’s insurer. ISSUES 1. What is the test for adding a party after the close of pleadings? 2.

Which, if any, Limitations of Action legislation applies, the 1989 Statute, or the 2015 Statute? 3. Has the limitation period expired in relation to an action against RSA? 4. If the limitation legislation applies, can and should RSA’s limitation defence be disallowed? ISSUE 1: What is the test for adding a party after the close of pleadings? [ 8 ] In Sweeney-Cunningham v. IBG Canada Ltd. , 2013 NSSC 414 Bourgeois J.A. considered the applicable Civil Procedure Rules engaged on a motion to amend pleadings to add a party.

She first referred to Rule 35.05 , which provides: 35.05 A party who starts a proceeding may join a further party by amending the originating document, or notice of claim against third party, as provided in Rule 83 - Amendment. [ 9 ] Bourgeois J.A. noted that Rule 35.08 provides: 35.08

(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 the 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. [ 10 ] Bourgeois J.A. states that Rule 35.08(5) was central to the determination before her: 35.08(5) Despite Rule 35.08, 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. [ 11 ] Also relevant is Rule 83.04, which is referenced in Rule 35.05 : 83.04

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

(2) A judge must set aside an amendment, or party 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. [ 12 ] At para. 42 of Sweeney-Cunningham Bourgeois J.A. sets forth the combined effect of these Rules: [42] In my view Rule 35.08(5) , read in conjunction with Rule 83.04(2) adds a new and important consideration to a motion seeking the addition of a new party. The Court must consider whether a relevant limitation period, or extended limitation period has expired.

If expired, then the Court has no discretion to add a party. [ 13 ] Accordingly, the Rules direct the Court to consider limitation issues on this motion to add a party. [ 14 ] With respect to Civil Procedure Rule 35.08(3) , I note that RSA proffered no evidence to rebut the presumption that is set forth in Civil Procedure Rule 35.08(2) , i.e., the effective administration of justice requires a person with an interest in the issues to be before the Court. ISSUE 2: Which, if any, Limitation of Actions legislation applies, the 1989 Statute, or the 2015 Statute?

[15] RSA says that this matter is solely governed by contract and has nothing to do with either the Limitations of Actions Act,R.S.N.S. 1989, c. 25 or the “new” Limitations of Actions Act, S.N.S. 2015, c. 35 (the “2015 Act”). [16] RSA refers to the Standard Automobile Policy for Nova Scotia which addresses damages caused by uninsured or unidentifiedmotorists at

Section D. Pursuant to s. 9(2) of

Section D, there is a two-year limitation period: Every action or other legal proceeding against an insurer for the recovery of an amount of damages shall be commenced within two yearsafter the date on which the cause of action against the insurer arose and not afterward. [17] I note that the Insurance Act, R.S.N.S. 1989, c. 231 at s. 145 provides: [e]very action or proceeding against an insurer under a contract of insurance provided under

Section 139 or 140 shall be commencedwithin the limitation period specified in the contract but, in no event, shall this be less than one year after the happening of the accident. [18] I find that the limitation period in

Section D is fully consistent with, and limited by, s. 145 of the Insurance Act. [19] The authors (Graeme Mew, Debra Rolph, Daniel Zacks) of The Law of Limitations, Third Edition (Toronto: LexisNexisCanada, 2016) describe provisions similar to s. 145 as moves “to restrict insurers from attempting to introduce contractual limitationperiods shorter than those provided by statute or shorter than a stipulated period from the date of the accident.” (9.133-9.138) [20] There is case law to this effect.

For instance, in Casey v Federated Insurance, 2004 MBQB 99, the insurer argued that aone-year limitation period in an insurance contract prevailed over a legislated two-year limitation period, and an extension provision inthe limitations legislation did not apply. The Court referred to Copp v Federation Insurance Co of Canada (1985), (BC CA), 28 BCLR (2d) 342, 1985 CarswellBC 8 (BCCA) (appeal dismissed), where similar circumstances arose (para. 24): [24] In Copp v. Federated Insurance Co. of Canada, [1985] B.C.J.

No. 2348, the relevant insurance policy contained a statutorycondition barring an action against the insurer unless commenced within one year after the occurrence of the loss giving rise to a claim. In an action against other defendants, the plaintiff obtained an order adding the insurer as a party defendant after the expiry of the oneyear period for bringing an action.

The insurer's application for an order discharging the order obtained by the plaintiff was dismissedby the British Columbia Superior Court which found that because the Insurance Act was applicable to the statutory condition, ss. 4(1)(d)of the Limitation Act, R.S.B.C 1979, Chap. 236 allowing the addition of a new party as defendant despite the lapse of time also applied.

Accordingly, a party to a defendant could be added even after the expiry of the limitation period as stated in the insurance policy. [25] In that case, the statutory conditions in the policy of insurance existed by virtue of ss. 220(1) of the Insurance Act of BritishColumbia which is identical in its wording to ss. 142(1) of the Manitoba Insurance Act. The defendant argued, as the respondent doeshere, that once the parties enter into the contract of insurance the statutory condition becomes a term of the contract, i.e. a contractualterm to which the parties have agreed.

The limitation period which governs the action, therefore, exists by virtue of the contract ands. 4(1) of the Limitation Act has no effect since it applies only to limitation periods created by statute. [26] The British Columbia court observed that by virtue of the Insurance Act there was a one year limitation period for bringing anaction which is referred to in the policy as a statutory condition, i.e. one which must by statute be included in a policy of insurance.

Thecourt went on to say that regardless of whether the term exists in the policy also by agreement, the action is governed by the statutoryrequirement of a one year limitation. Accordingly, the Insurance Act applied to the action with the saving provision of the LimitationAct. The rationale applies equally here. (emphasis added) [21] The Court in Copp v. Federated Insurance determined that the limitations legislation was applicable. [22] In my view, s. 145 of the Insurance Act dictates that a limitation period in a contract of insurance cannot be less than one year(section 139 or 140 actions).

As such, we are not dealing with a purely contractual limitation period and I find that limitation of actionslegislation applies. [23] On March 3, 2013, at the time the Plaintiff allegedly suffered her injuries, the general limitations statute in Nova Scotia was theLimitation of Actions Act, R.S.N.S. 1989, c. 258. Paragraph 2(1)(

f) of that Act stated: 2(1) The actions mentioned in this

Section shall be commenced within and not after the times respectively mentioned in such Section,that is to say: … (

f) actions for recovery of damages on account of injury to persons or damage to property occasioned by or arising out of theownership, maintenance, operation or use of a motor vehicle, within three years after the cause of action arose. [24] The “new” Limitation of Actions Act, S.N.S. 2015, c. 35 came into force on September 1,

Section 6 of the 2015 Actimposes a general two-year limitation period, based on discoverability: 8(1) Unless otherwise provided in this Act, a claim may not be brought after the earlier of (

a) Two years from the day on which the claim is discovered; and (

b) Fifteen years from the day on which the act or omission on which the claim is based occurred. The effective date of the 2015 Act is September 1, 2015. On August 31, 2015 HRM was served with a Notice of Intended Action in thewithin matter. The Halifax Regional Municipality Charter, S.N.S. 2008, c. 39 provides at s. 376(3), that in the event of a proposed

action or proceeding against HRM: [n]otice must be served on the intended defendant at least one month prior to the commencement of an action…stating the cause ofaction, the name and address of the person intending to sue and the name and address of that person's solicitor or agent, if any. [25] The 1989 Limitation of Actions Act required actions to be “commenced” within the requisite limitation periods. (s. 2(1)) The2015 Act refers to claims being “brought” (s. 8(1)), but specifies that a claim is “brought”, inter alia, “when a proceeding in respect ofthe claim is commenced.” (s. (2)(a)) [26] I find that a Notice of Intended Action is not the “commencement” of a claim.

It does not have the effect of initiating a courtproceeding. The language of the respective enactments does not support the view that the Plaintiff’s claim was commenced under the1989 Act. The proceeding was not commenced until October 7, 2015, after the effective date of the 2015 Act. Accordingly, I find thatthe 2015 Act applies.

ISSUE 3: Has the limitation period expired in relation to an action against RSA? [27] RSA maintains that the plaintiff “was contractually required to commence any action against RSA within two years from whenthe cause of action arose.” [28] Although RSA contends that the 2015 Act does not apply, it does agree that the doctrine of “discoverability” applies to theCourt’s analysis of when the potential cause of action against it arose. [29] There are three possible dates when the cause of action arose in this case:

(1) March 3, 2013, the day of the incident on the HRM bus where the plaintiff says she was injured;

(2) July 28, 2016, the day the plaintiff says she first learned that she had a potential claim against HRM's

Section D insurer;

(3) A date in the future should RSA deny the Plaintiff

Section D coverage. [30] In terms of discoverability, both the Plaintiff and RSA refer to the decision of the Supreme Court of Canada in Central TrustCo. v.

Rafuse, (SCC), [1986] 2 S.C.R. 147 at para. 22: The discoverability principle provides that “a cause of action arises for purposes of a limitation period when the material facts on whichit is based have been discovered or ought to have been discovered by the plaintiff by the exercise of reasonable diligence”… [31] The Supreme Court of Canada more recently commented on the discoverability principle in Ryan v Moore, 2005 SCC 38, 2005CarswellNfld 157, where Bastarache J. said, for the Court: 22 The discoverability principle provides that “a cause of action arises for purposes of a limitation period when the material facts onwhich it is based have been discovered or ought to have been discovered by the plaintiff by the exercise of reasonable diligence”:[Central & Eastern Trust Co v Rafuse, (SCC), [1986] 2 SCR 147, 1986 CarswellNS 40] at p. 224.

In some provinces,the discoverability rule has been codified by statute; in others, it has been deemed redundant because of other remedial provisions. [32]

Section 8 of the 2015 Act incorporates discoverability in the following terms:

(2) A claim is discovered on the day on which the claimant first knew or ought reasonably to have known (

a) that the injury, loss or damage had occurred; (

b) that the injury, loss or damage was caused by or contributed to by

an act or omission; (

c) that the act or omission was that of the defendant; and (

d) that the injury, loss or damage is sufficiently serious to warrant a proceeding.

(3) For the purpose of clause (1)(b), the day

an act or omission on which a claim is based occurred is (

a) in the case of a continuous act or omission, the day on which the act or omission ceases; and (

b) in the case of a series of acts or omissions concerning the same obligation, the day on which the last act or omission in theseries occurs. [33] The Plaintiff's position is, essentially, that she did not know about the RSA policy until 2016. She so provided in her Affidavitfiled on this motion and confirmed that that was the case on cross-examination by counsel for RSA. RSA accepts her evidence astruthful. [34] However, that is not the end of the analysis. The Court must also consider whether, by the exercise of reasonable diligence, thePlaintiff ought to have known that she had a possible

Section D claim against RSA. [35] To the extent that the Plaintiff addresses the phrase “ought reasonably to have known”, it is simply to say that neither HRM norRSA informed her of the policy after she reported the accident to HRM. She argues that HRM had a positive duty to advise her of thepossibility of

Section D coverage. [36] The Plaintiff cites Jack v Canada (Attorney General), (ON SC), [2004] OTC 706, [2004] OJ No 3294 (Ont

Sup Ct J): 83 The rule of reasonable discoverability is to ensure that the plaintiffs have sufficient awareness of the facts to be able to bring anaction. The suggestion that a plaintiff requires a “thorough understanding” of such facts even after the action is brought, sets the bar toohigh. Similarly, to say that a plaintiff has to know the precise cause of her injuries before the limitation period started to run would alsoplace the bar too high. K.L.B. v. British Columbia 2003 SCC 51 , [2003] 2 S.C.R. 403 (S.C.C.) at para. 55-57; McSween v.Louis (2000), (ON CA), 187 D.L.R. (4th) 446 at p. 459 (Ont.

C.A.). (emphasis added) [37] RSA says the cause of action arose on the date of the accident: the RSA policy existed, there was a motor vehicle accidentinvolving an unidentified automobile, and the Plaintiff says she was injured. RSA, referring to the decision of Bourgeois J.A. inSweeney-Cunningham v.

IBG Canada Ltd., says discoverability requires “an objective consideration of the Plaintiff’s knowledge of thematerial facts and what she could have known by virtue of exercising reasonable diligence.” [38] RSA notes that the Plaintiff’s evidence on cross-examination was that she was 50 years old at the time of the incident, hadowned and operated a motor vehicle for the better part of 30 years and dealt with an insurance broker in obtaining insurance coverage forher vehicle.

RSA says that, having been in an accident involving a motor vehicle, the Plaintiff did not exercise diligence in informingherself of any rights she might have. She did not consult a lawyer until June 24, 2015. There was evidence that, a few months after theincident, the Plaintiff spoke with someone at the Dalhousie Legal Aid clinic, but she did not know if that person was a lawyer and shereceived nothing in writing from that person. [39] RSA notes that the Plaintiff did not retain counsel for more than two years after the accident, and took no action regarding theunidentified vehicle for another year.

RSA characterizes the Plaintiff's conduct as “complete inaction for over three years.” [40] The Plaintiff says that she reported the incident to HRM staff in May, 2013 and that HRM should have alerted her to thepossibility of

Section D coverage through its insurer. [41] I find no basis in law for the suggestion that HRM had a positive duty to advise the Plaintiff that she might have

Section Dcoverage through the insurer of its buses. HRM is obviously a separate entity than RSA. RSA adduced affidavit evidence that it was notaware of a potential claim against it until September 29, 2016. HRM was defending a tort claim brought against it alleging negligencecausing injuries occasioned by its bus driver. I cannot find a legal basis for saying that HRM was required to notify its liability insurer ofa potential

Section D claim or that it had a positive obligation to advise the Plaintiff of the potential for such a claim. [42] Can the Plaintiff be said to have exercised reasonable diligence in the circumstances? [43] Mew, et al. in The Law of Limitations, Third Edition (Toronto: LexisNexis Canada, 2016) at 3.54 make the followingcomments on discoverability: In all cases where the discoverability rule is invoked, the claimant must have exercised reasonable diligence in discovering the materialfacts upon which to found an action.

The discoverability rule will not apply unless the claimant is able to demonstrate that he or sheexercised reasonable or due diligence to discover the information. The claimant has the burden to adduce evidence explaining theparticular steps taken to investigate the claim prior to its commencement.

Due diligence may include investigating an accident, gettinginformation from the police, determining the correct identity of the tortfeasor or those who may be vicariously liable for the tortfeasor'sactions, or obtaining hospital records, expert reports as to liability or damages, or medical evidence as to whether the plaintiff meets anystatutory threshold, and examining such reports or records when they are obtained. (emphasis added) [44] I find that it is not “setting the bar too high” to expect the Plaintiff to make inquiries of a professional, such as a lawyer orinsurance broker, to ascertain rights she might have against persons arising out of an accident.

Other than report the incident to HRM,the Plaintiff took no steps to inform herself of her rights until she retained counsel in June, 2015. Another year passed before the Plaintiffbecame aware she had a potential

Section D claim against RSA. [45] I find that had the Plaintiff exercised due diligence, she would have been able to ascertain that she had a potential claim againstHRM's

Section D insurer. [46] Accordingly, I find that the limitation period did not begin to run on July 28, 2016, the date that the Plaintiff had actualknowledge of the possibility of a

Section D claim, but on March 3, 2013, the day of the incident on the HRM bus. [47] As noted earlier in this decision, there is yet another possible date that the Court could conclude that the Plaintiff “discovered”the claim against RSA, and that date is a possible date in the future. In Tucker v. Unknown Person, [2015] NLCA 21 the Newfoundlandand Labrador Court of Appeal (with a dissent by Rowe, J.A., as he then was) determined that a

Section D claim was contractual andaccordingly, the limitations clock did not start to tick until the plaintiff had made a claim for

Section D coverage and was denied. [48] Tucker v. Unknown Person was not argued by counsel on this motion. The Court became aware of the case at a later date andinvited counsel to provide the Court with written submissions on the decision. Counsel for the Plaintiff chose not to provide furthersubmissions. I received submissions from counsel for RSA. [49] The facts of the case are that Mr. Tucker was injured in a hit and run incident on October 13, 2007. As the driver of the vehiclewas unknown, he advised his own

Section D insurer (AXA General Insurance Company) a few weeks later that a

Section D claim wouldbe advanced. AXA obtained a statement from Mr. Tucker shortly thereafter. [50] For reasons unknown, Mr. Tucker did not commence an action against AXA immediately. Instead, he waited until November

2010 to submit a settlement demand to AXA. AXA denied the claim on the basis it was outside the two-year contractual limitationperiod. Mr. Tucker commenced an action against AXA in November 2011 - four years after the accident. AXA successfully brought amotion for dismissal of the action. Mr. Tucker appealed. The Court of Appeal ruled: 1. The contractual limitation period of two years set out in

Section D applied. 2. As the claim against the insurer was a contractual claim, a breach of contract needed to occur before a cause of action arose. The breach of contract occurred the day after Mr. Tucker submitted his settlement demand in 2010 and it was not honoured. Thetwo-year

Section D limitation clock began at that time. [51] The Court of Appeal relied upon the decision of the Ontario Court of Appeal in Markel Insurance Company of Canada v. INGInsurance, 2012 ONCA 218. In Markel, under the statutory benefits scheme of the Ontario Insurance Act, R.S.O. 1990, c. I-8, an insurerwas required to pay accident benefits but it claimed an entitlement to be indemnified by another insurer in accordance with loss transferrules. The issue was when did the two-year limitation period of the Ontario Limitation Act, 2002, commence to run for loss transferpayments between insurers.

The Court of Appeal concluded that the limitation period began to run from the date that the insurer had aperfected claim for indemnification and not from the date when a demand for reimbursement was refused or from the date when theinsurers disagreed about who was responsible to pay the statutory benefits. The Court of Appeal in Markel did not address the

interpretation of the Standard Insurance Policy. [52] The Newfoundland and Labrador Court of Appeal in Tucker v. Unknown Person also referred to two Ontario decisions thatfollowed Markel: • Schmitz v. Lombard General Insurance Company of Canada, 2014 ONCA 88. This case involved the OPFCF 44R policyendorsement. However, the appeal dealt solely with the

interpretation of the discoverability provision Ontario Limitations Act - the veryissue in Markel. The case did not involve the

interpretation of the Standard Automobile Policy. • Chahine and Al-Dahak v. Grybas, 2014 ONSC 4698. While this case involved a situation similar to the within case, the Court'sfocus was solely on the

interpretation of the discoverability provisions of the Ontario Limitations Act. It followed the reasoning inMarkel and Schmitz. The case makes no attempt to interpret the Standard Automobile Policy. [53] The Court in Tucker chose to disregard a line of authority from the Ontario Court of Appeal that dealt specifically with theinterpretation of the Ontario Standard Automobile Policy, Johnson v. Wunderlich, (1986), (ON CA), 57 O.R. (2d) 600(C.A.) and Caruso v. Guarantee Co. of North America, [1996] O.J. 339.

These decisions, among others, were relied on by the motionjudge in Tucker. [54] In Johnson the plaintiff was injured in an accident involving an uninsured car. He sued only the tortfeasor initially and latersought to add his own insurer as a defendant for uninsured motorist coverage. The Ontario Standard Automobile Policy contained aprovision similar to s. 9(2) of the Nova Scotia Standard Automobile Policy.

The Court was clear as to when a cause of action arose: …I think that the elements of this cause of action are (1) a person insured (2) who is legally entitled to recover damages from the owneror driver of (3) and uninsured or unidentified automobile…the cause of action accrues when the plaintiff (the person insured) hasdiscovered these material facts or ought to have discovered them by the exercise of reasonable diligence… Related to the foregoing, I should also mention that, with respect to a direct action against the insurer, the appellants did not submit thatthe cause of action does not arise until the insurer has denied liability on the contract.

Notwithstanding that the form of the insurer's obligations is contractual (legislatively imposed) I do not read the relevant provisions asmaking a denial of liability a constituent element of the direct claim. In other words, an action commenced before denial of liabilitywould not be premature from a cause of action perspective (at pages 14 and 15 emphasis added). [55] The Court was able to make the comments in the last paragraph above because the Standard Automobile Policy provided aright to bring a direct legal action for determination on liability and damages; see s. 4(1)(

c) of the Ontario Policy (at p. 6 of Johnstondecision) and s. 5 of Nova Scotia's

Section D policy. A denial by the insurer (a breach of contract) is not required to establish a cause ofaction. [56] Likewise, Caruso involved an uninsured motorist situation. The Plaintiffs were seeking a declaration that their insurancecoverage was in full force and effect. The insurer applied to strike the action due to a missed limitation period.

The Court confirmed itsearlier ruling in Johnson regarding how to determine when a cause of action arises but, ultimately, determined the facts did not supportthe expiry of the limitation period. [57] I note that Johnson is still cited as a leading case on this subject: Naipaul v. State Farm Mutual Insurance Company 2015ONSC 2186, at para. 12. I find the Johnson line of authorities to be directly on point to the issues to be determined in the within matter. I decline to follow Tucker v.

Unknown Person. [58] For all of the above reasons, I find that the cause of action arose on March 3, 2013, the date of the accident, and expired onMarch 2, 2015. ISSUE 4: If the limitation period expired, can RSA's limitation defence be disallowed pursuant to the relevant limitation

legislation, and if so, should it be disallowed? [ 59 ] RSA says that if the 2015 Act applies, s. 23 governs the Court's analysis, and that that

section precludes a

Section 12 disallowance.

Section 23 is the “Transitional” provision between the 1989 Act and the 2015 Act and provides as follows: Transitional 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) Subsection (3) applies to claims that are based on acts or omissions that took place before the effective date, other than claims referred to in

Section 11, and in respect of which no proceeding has been commenced before the effective date.

(3) Where a claim was discovered before the effective date that 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.

(4) A claimant may bring a claim referred to in

Section 11 at any time, regardless of whether the former limitation period expired before the effective date. [ 60 ] RSA says that this claim was discovered on March 3, 2013 and that it expired on March 2, 2015. It says that the transition provision does not permit the Court to extend the limitation period. [ 61 ] I note that s. 3 of the 1989 Act permitted the Court to disallow a limitation defence in certain circumstances. The discretion was limited to four years after the expiry of the relevant limitation period: s 3(6).

The discretion extended beyond the Act to limitations under other enactments, as well as “the provisions of an agreement or contract”: ss. 3(1)(c)(ii) and (iii). The 2015 Act also permits the Court to disallow a limitations defence in certain circumstances.

Section 12 provides, in part:

(1) In this Section, "limitation period" means the limitation period established by (a) clause 8(1)(a); or (

b) any enactment other than this Act.

(2) Section applies only to claims brought to recover damages in respect of personal injuries. [ 62 ] In my view, the transitional provision cannot preclude the disallowance of a limitation defence. If it were so interpreted, it would mean that the Legislature meant to preclude a claimant caught by the transitional provision to not have the benefit of a disallowance of a limitation defence in circumstances where both the 1989 Act and the 2015 Act provide for such disallowances. [ 63 ] I find that s. 12 of the 2015 Act applies and that I must consider the prerequisites for engaging that section. If the prerequisites are established, I must then consider the factors set out in the

section in order to determine whether to disallow RSA’s limitation defence. [ 64 ] Sections 12(3) to 12(6) of the Act provide: Disallowance or invocation of limitation period 12

(1) In this Section, "limitation period" means the limitation period established by (a) clause 8(1)(a); or (

b) any enactment other than this Act.

(2) This

Section applies only to claims brought to recover damages in respect of personal injuries.

(3) Where a claim is brought without regard to the limitation period applicable to the claim, and an order has not been made under subsection (4), the court in which the claim is brought, upon application, may disallow a defence based on the limitation period and allow the claim to proceed if it appears to the court to be just having regard to the degree to which (

a) the limitation period creates a hardship to the claimant or any person whom the claimant represents; and (

b) any decision of the court under this

Section would create a hardship to the defendant or any person whom the defendant represents, or any other person.

(4) Where a limitation period has expired, a person who wishes to invoke the limitation period, upon giving at least 30 days' notice to any person who may have a claim, may apply to the court for an order terminating the right of the person to whom such notice was given from commencing the claim and the court may issue such order or may authorize the commencement of the claim only if it is commenced on or before a day determined by the court.

(5) In making a determination under subsection (3), 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 claimant; (

b) any information or notice given by the defendant to the claimant respecting the limitation period; (

c) the effect of the passage of time on (

i) the ability of the defendant to defend the claim, and (ii) the cogency of any evidence adduced or likely to be adduced by the claimant or defendant; (

d) the conduct of the defendant after the claim was discovered, including the extent, if any, to which the defendant responded to requests reasonably made by the claimant for information or inspection for the purpose of ascertaining facts that were or might be relevant to the claim; (

e) the duration of any incapacity of the claimant arising after the date on which the claim was discovered; (

f) the extent to which the claimant acted promptly and reasonably once the claimant 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 a claim; (

g) the steps, if any, taken by the claimant to obtain medical, legal or other expert advice and the nature of any such advice the claimant may have received; (

h) the strength of the claimant's case; and (

i) any alternative remedy or compensation available to the claimant.

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

Section if the claim is brought more than two years after the expiry of the limitation period applicable to that claim. [ 65 ] Section 12(1) defines “limitation period” as either a limitation period established under the 2015 Act , or a limitation period established by “any enactment other than this Act.” [ 66 ] RSA submits that if the Court finds that s. 12 is applicable to the transition provision, that disallowance under s. 12 should nonetheless not be applied to the claim, because, it says, the claim is purely contractual. [ 67 ] Further, RSA argues that s. 12 is more limited than was

Section 3 of the 1989 Act , and that it does not apply to the

Section D limitation period.

Section 3 of the 1989 Act defined “time limitation” to include “the provisions of an agreement or contract.” RSA says that the removal of “the provisions of an agreement or contract” in the definition of “limitation period” in the 2015 Act is significant, and that the drafters of the new Act intended to narrow the circumstances in which a limitations defence will be disallowed. [ 68 ] As found earlier in this decision, I do not accept RSA’s contention that the limitation at issue is purely contractual.

Accordingly, its argument that s. 12 does not engage the claim at issue on that basis, lacks merit. [ 69 ] However, I find that the within limitation period as set forth in the Standard Automobile Policy does not fall within the definition of “limitation period” set forth in s. 12.

The two-year limitation period was not established under the 2015 Act ; nor was it established by the 1989 Act , or by another “enactment.” [ 70 ] For that reason, I conclude that the Court cannot consider the disallowance of the limitation defence in this case. [ 71 ] If I am wrong and s. 12 is engaged, I would have disallowed RSA’s limitation defence for the following reasons. [ 72 ] I note at the outset that the Applicant’s motion to add RSA as a defendant in this proceeding was advanced within the two-year time limit of s. 12(6). [ 73 ] The Court must make an evidentiary finding as to whether, based on the factors in s. 12, the limitations defence should be disallowed. [ 74 ] The only evidence before the Court from RSA was the Affidavit of Lisa Euloth who is a Claims Examiner for RSA.

The content of the Affidavit discloses that Ms. Euloth reviewed the RSA file materials with respect to the Plaintiff's

Section D claim against RSA, that her first notice of the Plaintiff’s potential claim was Plaintiff’s counsel’s September 29, 2016 correspondence to Mr. Murray Ritch, Q.C. (RSA’s registered agent), that Mr. Ritch’s letter was received in her office on October 4, 2016, that prior to that date RSA had no knowledge of the motor vehicle incident and that RSA has never been contacted by the Plaintiff directly regarding the claim. [ 75 ] What is missing from this Affidavit, in terms of the s. 12 analysis, is any evidence whatsoever as to how RSA has been affected by “the passage of time on (

i) the ability of the defendant to defend the claim, and (ii) the cogency of any evidence adduced or likely to be adduced by the claimant of defendant.” [ 76 ] The kind of evidence which might be expected could encompass an account of RSA’s normal practice when it receives notice of a possible

Section D claim, whether it has carried out that process to date and how it might have been hampered in its ability to engage that process by the passage of time. The Court cannot speculate on whether it is more difficult for RSA to attempt to find the unidentified motorist at this point in time, than it would have been the day after the incident.

[ 77 ] I am not prepared to presume hardship in the absence of evidence. [ 78 ] The delay by the Plaintiff in claiming against RSA is approximately 18 months (from March 3, 2015 to September 29, 2016). The reason for the delay is that the Plaintiff did not know she had a possible claim against HRM’s liability insurer. There was further delay after she retained counsel from June 24, 2015 when she retained counsel until September 29, 2016.

Plaintiff’s counsel did request details about the proposed defendant in late July, 2016 which he received on September 27, 2016. [ 79 ] I have previously found that the Plaintiff did not exercise diligence in ascertaining her rights. [ 80 ] RSA was not aware of the potential claim until September 29, 2016, after the limitation period had expired.

The limitation issue was immediately raised. [ 81 ] I have no evidence as to whether the evidence likely to be adduced by the Defendant is or is likely to be less cogent than if the action had been brought or notice had been given within the limitation period. [ 82 ] From the evidence available to me I concluded that RSA was diligent in responding to any requests made by the Plaintiff. [ 83 ] I have insufficient evidence to conclude that any injuries suffered by the Plaintiff had any impact on her delay in ascertaining that she had a possible claim against RSA. [ 84 ] The Plaintiff acted promptly and reasonably once she knew she had a claim against RSA.

The Plaintiff and her counsel were not diligent prior to July 28, 2016. [ 85 ] The Plaintiff was not diligent in obtaining legal advice but, based on the evidence before me, she was diligent in seeking medical assistance. [ 86 ] Balancing all of these factors, I conclude, (provisionally) that the Plaintiff would suffer greater hardship losing a cause of action against RSA, than the hardship occasioned to RSA by defending this claim.

Although I have considered all of the appropriate s. 12 factors, I put the most weight on the fact that there is no evidence that RSA will have any greater difficulty in its defence of the Plaintiff’s claim, or in attempting to locate the unidentified driver than it would have had the action against it been commenced within the limitation period. I have submissions from counsel on the point, but no evidence from RSA. Ms.

Euloth’s Affidavit, as noted earlier, makes no reference to any matters relating to hardship or prejudice to it should it be added as a defendant. [ 87 ] As noted above, I have concluded that s. 12 of the 2015 Act is not engaged. My reasons with respect to the disallowance of the limitation defence are entirely provisional. CONCLUSION [ 88 ] The Applicant’s motion to add RSA as a Defendant is dismissed. [ 89 ] I note that counsel for HRM participated in the motion, but took no position as to the limitations issues.

He took the position, and I agree with him, that HRM had no legal duty to advise the Plaintiff of a possible claim against RSA. [ 90 ] I award costs on this motion to the Defendant, RSA from the Plaintiff in the amount of $1,000.00. Costs are payable within thirty (30) calendar days of this decision. Smith, J.