Carvery v. Halifax (Regional Municipality), 2022 NSSC 371

SUPREME COURT OF Nova Scotia Citation: Carvery v. Halifax (Regional Municipality) , 2022 NSSC 371 Date: 20230105 Docket: Halifax , No. 485049 Registry: Halifax Between: Tirrell Shane Carvery Plaintiff v.

Halifax Regional Municipality and Defendant/Respondent Andrea MacNevin Defendant/Applicant DECISION ON MOTION TO STRIKE LIMITATION DEFENCE Judge: The Honourable Justice Ann Smith Heard: August 31, 2022, and September 14, 2022, in Halifax, Nova Scotia Counsel: Michael Dull, for the Plaintiff Edward Murphy and Kelsey Nearing, for the Defendant/Respondent, Halifax Regional Municipality William Mahody, K.C., and Christine Murray for the Defendant/Applicant, Andrea MacNevin By the Court: Introduction [ 1 ] Tirrell Shane Carvery (“Mr.

Carvery”) claims that on April 2, 2017 he suffered injury as a result of being stuck between the doors of a Halifax Metro Transit bus at the Dartmouth bus terminal (the “Incident”). [ 2 ] On September 21, 2017, Michael Dull, then counsel for Mr. Carvery, wrote to the Halifax Regional Municipality (“HRM”) providing certain details surrounding the Incident, including that Mr. Carvery had been injured. [ 3 ] On October 16, 2017, Mr. Dull advised the Defendant lawyer Andrea MacNevin that he was no longer representing Mr. Carvery with respect to the Incident. That day, the Defendant MacNevin began representing Mr.

Carvery. [ 4 ] On September 21, 2018, the Defendant MacNevin emailed Joel Plater of HRM Risk & Insurance with the intention to serve HRM with a formal Notice of Intended Action on behalf of Mr. Carvery, attaching a draft Statement of Claim. [ 5 ] At some point in January 2019 Ms. MacNevin lost contact with Mr. Carvery and her representation of him ended. Thereafter, also in January 2019 Mr. Carvery retained MacGillivray Law Office Inc. to represent him with respect to a claim against HRM. [ 6 ] On February 11, 2019, Mr. Jamie MacGillivray filed a Notice of Action and Statement of Claim on behalf of Mr.

Carvery with respect to the Incident, naming both Andrea MacNevin and HRM as Defendants. [ 7 ] The Defendant HRM filed a Notice of Defence on May 17, 2019. At paragraph nine of that Defence, the Defendant HRM claims a limitation defence based on sections 376(1) and (3) of the Halifax Regional Municipality Charter , SNS 2008, c. 39 , as amended (the “ Charter ”).

[ 8 ] The Defendant MacNevin has acknowledged on this motion that the Notice of Action was filed outside of the twelve (12) month limitation period prescribed pursuant to section 376(1) of the Charter . However, Ms. MacNevin submits that she provided appropriate notice of Mr. Carvery’s proposed claim within the timeline required by section 376(3) of the Charter . [ 9 ] On this motion, the Defendant MacNevin seeks an order disallowing the Defendant HRM’s limitations defence. Ms. MacNevin relies upon sections 12(3) and 12(5) of the Nova Scotia Limitation of Actions Act , SNS 2014, c. 35 (the “ LAA ”).

ISSUE [ 10 ] The sole issue on this motion is whether the Court should exercise its discretion and grant the relief sought under s. 12 of the LAA , that is, the disallowance of HRM’s limitation defence. Evidence on the Motion [ 11 ] The Applicant MacNevin and the Respondent HRM filed an Agreed Statement of Facts with appended discovery evidence of Ms. MacNevin. [ 12 ] The Applicant MacNevin filed the Affidavit of Michael Dull sworn on May 11, 2022 and the Affidavit of Andrea MacNevin sworn on May 13, 2022. [ 13 ] The Respondent HRM filed the Affidavit of Joel Plater sworn on May 27, 2022. Mr.

Plater is the Manager of Risk and Insurance Services for HRM. The Respondent HRM also filed the Affidavit of Katie Logan, sworn on May 27, 2022. Ms. Logan is employed by HRM as the legal assistant for Edward J. Murphy, solicitor of record for HRM in this proceeding. Ms. Logan’s Affidavit attached a copy of the transcript of Mr. Carvery’s discovery evidence. [ 14 ] None of the affiants was cross-examined on their affidavits. [ 15 ] It is not disputed that Mr. Carvery was involved in two motor vehicle accidents before the Incident.

The first occurred on October 6, 2016 in New Brunswick and the second on January 27, 2017 in Halifax. Relevant Legislation The Limitation Period in the Charter [ 16 ] This is a motion to disallow a limitation defence. Pursuant to section 376(1) of the Charter , there is twelve months to file a claim against HRM. The Incident happened on April 2, 2017, and the limitation period expired on April 2, 2018.

The Statement of Claim was filed on February 11, 2019, approximately ten months after the limitation period expired. [ 17 ] The limitation period prescribed by the Charter has two components: (1) the limitation period is twelve months and (2) at least one month before commencing an action, notice of the intended action must be served on HRM. [ 18 ] These requirements are set out in sections 376(1) and 376(3) of the Charter : 376(1) For the purpose of the Limitation of Actions Act , the limitation period for an action or proceeding against the Municipality, the Council, a Council member, an officer or employee of the Municipality or against any person acting under the authority of any of them, is twelve months. …

(3) Notice must be served on the intended defendant at least one month prior to the commencement of an action against any parties listed in subsection (1) or (2) stating the cause of action, the name and address of the person intending to sue and the name and address of that person’s solicitor or agent, if any. Discretion to Disallow Limitations Defence in the LAA [ 19 ] Section 12(3) and 12(5) of the LAA provides this Court with the discretion to disallow a defence based upon the expiry of a limitation period. [ 20 ]

Section 12 of the LAA provides: 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 clause (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.

(7) This

Section does not apply to a claim for which the limitation period is 10 years or more. Position of the Parties in Brief The Applicant, the Defendant MacNevin [ 21 ] Counsel for the Defendant MacNevin says that after considering all of the factors in section 12(5) of the LAA , the degree of hardship analysis significantly favours Mr. Carvery over the Defendant HRM. Counsel says that the fact the Incident occurred does not appear to be in dispute.

The determination of whether there was negligence on the part of the bus driver, and the injuries that flowed from the Incident, should be permitted to proceed to a determination on their merits at trial, where Mr. Carvery will be able to present his full case. [ 22 ] Counsel for the Defendant MacNevin submits that, on the other hand, there is no hardship to the Defendant HRM in disallowing the limitations defence. Reference is made to the fact that the Defendant HRM was aware of the Incident on the day it occurred, was regularly in contact with counsel for Mr.

Carvery, and continued such contact even after the 12-month limitation period had expired. [ 23 ] Counsel says that the Notice of Intended Action was provided to the Defendant HRM within seven (7) months of the Incident, and a second Notice of Intended Action was served less than seven (7) months after the expiry of the limitation period, with the Action being commenced within a few months thereafter. Counsel also says that the Defendant HRM’s investigation into the Incident has not been compromised, nor has the Defendant HRM shown that any evidence has been lost due to any delay. [ 24 ] In

summary, the Defendant MacNevin submits that the just outcome in the circumstances is to disallow the Defendant HRMS’s limitations defence and allow Mr. Carvery’s action to proceed. The Respondent – The Defendant HRM [ 25 ] Counsel for HRM submits that the starting presumption on the motion is that limitation periods mandated by statute are valid and binding.

Counsel says that s. 12 of the LAA provides a potential exception to limitation periods in personal injuries matters specifically for the purpose of preserving the rights of injured persons where that is appropriate taking into account all of the factors set out under s. 12(5). Counsel points out that the onus is on the Defendant MacNevin to show hardship to the Plaintiff. [ 26 ] Counsel for HRM says that to demonstrate hardship, evidence must be adduced on all of the factors enumerated in s. 12 (5) of the LAA . [ 27 ] Counsel says that in this case evidence of hardship to Mr.

Carvery is lacking in certain respects. Counsel points to the fact that Mr. Carvery has chosen not to bring a motion of his own to set aside the limitation defence. Counsel also notes that Mr. Carvery has chosen not to participate in any active format in Ms. MacNevin’s motion, with the exception of a solicitor’s affidavit from Mr. Dull which counsel describes as “limited in scope”. [ 28 ] Counsel also says that Mr. Carvery has chosen not to waive solicitor-client privilege over communications that took place between him and Mr. Dull and there is no evidence directly from Mr.

Carvery himself. [ 29 ] Counsel for HRM says that Ms. MacNevin has essentially placed herself in the plaintiff’s shoes, and thus the bears the onus which would normally fall to the claimant to demonstrate hardship. Further, HRM says that since Mr. Carvery did not file an affidavit on the motion, counsel had no opportunity to test his evidence. Counsel says that what the Court is left with is an evidentiary record provided by Ms. MacNevin which speculates on the hardship to Mr. Carvery if the limitation defence is struck. Counsel for HRM points out that if Ms. MacNevin’s motion is successful, Mr.

Carvery “loses his claim against her”.

[ 30 ] Counsel for HRM notes that s. 12(3) of the LAA provides that a Court may disallow a limitations defence where it appears to be just. [ 31 ] In considering what is “just”, counsel for HRM says that in the context of this motion the Defendant MacNevin is attempting to rely upon the facts of her own prima facie negligence to avoid the legal consequences of that negligence. Counsel for HRM suggests that it is not “just” for a defendant to use their position as a co-defendant to their own advantage by undermining HRM’s valid limitations defence.

Law and Analysis [ 32 ] In MacDonald v Jamieson , 2019 NSSC 345 Gogan J granted a termination order pursuant to s. 12(4) of the LAA , extinguishing the ability of two potential plaintiffs to commence an action for personal injuries after the limitation period had expired. At paras. 20-29, Justice Gogan considered the general scheme established in s. 12 of the LAA : [20] The current limitations regime came into force on September 1, 2015. It was the product of consultation and heralded as a modern and uniform approach consistent with other Canadian jurisdictions.

The hallmark of the new approach was a consolidation and shortening of limitation periods. The changes from the earlier regime signalled a stricter approach to limitations with some increased focus on timelines, certainty, and finality. [21]

Section 12 of existing Act applies specifically to personal injury claims. The limitation periods are determined by s. 12(1). Section 12(1)(

a) incorporates s. 8(1)(

a) which requires claims to be brought within two years of discovery. After the expiration of that period, a person who seeks to rely upon a limitation period may apply for a termination order on thirty days notice. If a termination order has not been granted, a claimant may bring a claim and apply to disallow any limitation period defence. The considerations on such an application are found in ss. 12(3) and (5) . [22] Once a limitation period in s. 8(1) has been expired for more than two years, there is no need for a termination order.

At that point, the court no longer has jurisdiction to disallow the limitation period defence. Section 12(6) essentially creates an absolute limitation period defence ( s. 12(3) ); (2) a claim may proceed by a deadline ( s. 12(4) ); or a claim may be terminated ( s. 12(4) ). After the absolute limitation date, no form of discretionary relief is available (s. 12(6)). [ 33 ] In Barry v.

Halifax (Regional Municipality) , 2018 NSCA 79 , (“ Barry ”) Bourgeois, J.A. considered s. 12 of the LAA , cautioning that claimants seeking relief must put their best foot forward (paras. 77 and 78): Before undertaking a consideration of the various factors, a preliminary observation is in order. Although s. 12(3) requires a court to consider the degree of hardship to both claimant and defendant, it should not be forgotten that this exercise is triggered due to a claimant having missed a limitation period created by virtue of the Act or other enactment.

It is incumbent on a claimant to adduce evidence which addresses the factors contained in s. 12(5) , in order to inform the assessment. Although s. 12(5) mandates a judge to “have regard to all the circumstances of the case|”, those who fail to provide an evidentiary foundation do so at their peril.

Similarly, in response, a defendant (or proposed defendant) is well-advised to provide sufficient foundation to permit a comprehensive consideration of the factors in s. 12 (5) in order to better inform the hardship assessment. [ 34 ] The leading authority from the Nova Scotia Court of Appeal on the LAA and the disallowance of limitation defences, continues to be the Court of Appeal decision in Barry . In Barry , the plaintiff was injured while a passenger on a Metro Transit bus. Ms. Barry sued the defendant HRM and later sought leave to amend her pleadings and join the

section D insurer. The insurer relied upon the limitation defence. [ 35 ] The Court of Appeal noted that an eighteen-month delay after the expiry of the limitation period was “significant”, was not accompanied by a compelling reason and the failure to provide early notice had a negative impact on the ability of the insurer to defend the claim. There was no evidence offered on either the strength of the case (liability or damages) or alternative sources of recovery. The plaintiff had failed to adduce evidence on the relevant factors at her peril.

The balancing of hardship required under s. 12(3) favoured the insurer and the limitation defence stood. [ 36 ] In MacDonald v. Loblaws , 2021 NSSC 267 Gogan, J helpfully provided a

summary of cases following Barry , as follows at para. 29 : More recently, I am guided by a number of decision applying the direction in Barry . In Bourque v. Morrison and Nova Scotia (Attorney General), 2019 NSSC 291 , the delay was approximately nine weeks, was due to inadvertence, and the defendants “were not taken by surprise”. The short delay had no impact on the cogency of evidence and was otherwise “inconsequential”. The claim was not frivolous and deserved to be heard on the merits. The hardship analysis favoured disallowance of the limitation defence. In Nixon v.

Chignecto-Central Regional School Board, 2019 NSSC 272 , the delay was about six months which was “not an extraordinary delay but still significant”. However, in the period following the expiry of the limitation period, a key witness died and some records were destroyed. The delay impacted the defendant’s ability to respond to some of the central allegations. Alternative sources of recover were available but were not a complete replacement for the damages available from a successful claim. The hardship analysis favored the defence and the limitation defence stood. In Morrisey v.

Bulmer, [2020 NSSC 29], supra , the claims arose from a series of ATV collisions and the plaintiff sought to add a

section D insurer after the expiry of the limitation period. The period of delay was eight months. Significant here was that the insurer had been involved in related claims from “nearly the first day” and had participated in discoveries just prior to the motion. Although all parties had counsel and were actively litigating existing claims, the insurer did not give notice to the claimant about the limitation period for the

section D claim. This was not a case where the defendant had no notice of claim until it was served. To the contrary the insurer was waiting for a claim that never came. The oversight was one of complacency given the insurer’s level of participation in the existing litigation. The strength of the

section D claim was not clear on the evidence presented. Alternative pathways to recovery existed but were complicated and speculative and defences were available. The hardship analysis favored discretionary relief and the disallowance of the limitation defence. Most recently, in Sears v. Top O’ the Mountain Apartments Limited , 2021 NSSC 80 the proceeding began with a slip and fall claim. The issue before Norton, J. was whether to disallow a third party limitation defence. The delay was almost two years.

The third party did not provide evidence of hardship or prejudice caused by the delay and did not give notice of the limitation period to the defence. Significant here was that the third party had actual notice of the claim within the limitation period but did not investigate. There was no evidence that the cogency of the evidence had been impacted by the delay. There were arguable issues for the third party to answer at trial. There was no alternative remedy available to the defendants. The limitation defence was set aside on the basis that the hardship analysis favoured the defence:

[81] The Court is required to assess and balance these considerations. The objective is to achieve a just outcome in all the circumstances, having regard to the respective hardships. I am mindful of the instruction from the Court of Appeal in Barry that it should not be forgotten that this exercise is triggered due to the Defendants having missed a limitation period.

As such the burden rests on the defendants to establish that any defence arising from the lapsing of that limitation period ought to be disallowed. [82] Nonetheless, in the circumstances before the Court, I find that is just to disallow the limitation defence of the Third Party. The Third Party was given notice in February of 2016 of the Plaintiff’s injury and intent to bring a claim, and that the Defendants considered any such claim to be the responsibility of the Third Party. The Third Party could have conducted an investigation at that time, informed the insurer, taken statements, and preserved documents.

Although the Defendant cannot excuse their delay in filing a Third Party Novice on the basis that they chose to represent themselves without legal counsel, there is not evidence of any specific hardship or prejudice that the Third Party has or will have in mounting its defence resulting from that delay… Factor (a): The length and reasons for the delay on the part of the claimant The length of delay [ 37 ] The length of the delay in this case is approximately ten (10) months. [ 38 ] The Incident occurred on April 2, 2017.

Pursuant to section 376(1) of the Charter , the Notice of Action was required to be filed no later than April 2, 2018, twelve (12) months from the date of the Incident. The Notice of Action in this proceeding was filed on February 11, 2019, approximately ten (10) months after the expiry of the limitation period, but within the two (2) year window permitted by section 12(6) of the LAA . [ 39 ] Counsel for the Defendant MacNevin notes that Mr. Dull, then counsel for Mr.

Carvery, sent correspondence on September 21, 2017, to Tina O’Leary, Senior Claims Officer with the Defendant HRM which meets the notice requirements of section 376(3) of the Charter . Mr. Dull’s letter to Tina O’Leary, provides in part, as follows: Dear Ms.

O’Leary: Re: Our Client: Tirrell Carvery Your Insured: Metro Transit Driver of Vehicle: Unknown Bus Route: 68 (Dartmouth Sportsplex Terminal) Policy No.: Unknown Date of Loss: April 2, 2017 Further to the above noted matter, please be advised that we represent Tirrell Carvery in relation to personal injuries he sustained by a Metro Transit Bus on April 2, 2017. I would ask that this matter be dealt with by two adjusters, one for the

Section “A” portion of the policy and one for the

Section “B” portion and that the two matters be kept separate and confidential. … Attached with this letter if ( sic ) a Notice of Loss & Proof of Claim Form, along with a referral from Dr. Glenn Campbell for physiotherapy treatments stemming from the April 2 accident. Mr. Carvery is in physical distress. He has no funds or private insurance. He is waiting on

Section B approval to fund this necessary treatment. I kindly ask that you please provide me with a claim number as soon as possible so that he can approach a physio clinic and commence immediate treatment. Also, I understand that there exists video evidence relevant to this accident.

Please preserve and produce any such videos of the accident that Halifax Regional Municipality may have in your possession. [ 40 ] It appears that this correspondence was received by HRM no later than September 25, 2017, based upon an email from HRM employee Derek Poirier to Sara Nordqvist of HRM “Accidents & Claims Investigations” on September 25, 2017, at approximately 4:18 pm. In this email, Mr. Poirier states: Good afternoon Sarah, have a tricky one here. We’ve received notice from a third party solicitor’s office with regards to a claim for Tirrell Carvery.

However, no claim has currently be ( sic ) generated. According to the form, the event occurred back on April 2, 2017 at 7:30 PM, near the Dartmouth Sportsplex Terminal (Bridge Terminal?) while travelling along route 68. The incident in question involved Mr. Carvery getting caught in between a set of closing doors. Could you please see if we have any reports relating to the above incident? I have attached a copy of the letter and NS-1 forms for your reference. [ 41 ] Mr.

Poirier responded later on September 26, 2017 saying that he had discussed the matter with Joel Plater and Tina O’Leary “and they will be in contact with the solicitors to confirm details and move on to the next step”. [ 42 ] The Defendant MacNevin says that notice was provided to the Defendant HRM less than six (6) months after the Incident, which it says is well within the twelve (12) month limitation period prescribed by section 376(1) of the Charter and at least one month before the Notice of Action was filed, as required by section 376(3) of the Charter .

[ 43 ] The Defendant MacNevin says that, in addition, the Defendant HRM was provided with a second notice of intended action on September 21, 2018, when the Defendant MacNevin (then counsel for Mr. Carvery) sent an email to Joel Plater of HRM attaching a draft copy of the Statement of Claim. In this email, Andrea MacNevin states, in part, as follows: The matter referenced herein was first raised with HRM on September 25, 2017. I spoke with someone in your claims department on November 3, 2017, and you and I spoke via telephone and had email correspondence on April 27, 2018, regarding Mr. Carvery’s claim.

This email is to provide notice of 30 days that we will commence an action against HRM pursuant to…the Charter . A draft copy of the Statement of Claim to be filed is attached hereto. [ 44 ] Counsel says that this second notice of intended action was provided to the Defendant HRM approximately seventeen (17) months after the Incident and at least one month before the Notice of Action was filed. [ 45 ] HRM says that the ten (10) month delay in Mr.

Carvery’s claim is not extraordinary, but is still significant. [ 46 ] Counsel for HRM says, that in addition, over and above the ten (10) month delay, over four (4) months elapsed between September of 2018 when the Notice of Intended Action was provided by Ms. MacNevin to Mr. Plater and February, 2019 of the filing of the actual Notice of Action, and that all of this occurred after the expiry of the limitations period. Counsel says that during this four-month period, the expiry of the limitations period was well known to both Mr. Carvery and Ms. MacNevin. Counsel says that Mr.

Carvery’s delay was not solely attributable to matters out of his hands, and that the claimant’s delay is a consideration in the balancing of hardship. [ 47 ] This Court finds that the ten (10) month delay following the expiry of the one year limitation period in this case is significant. However, HRM had notice of the incident the day it occurred. An incident report was filled out by the bus driver on April 2, 2017. In Barry , the applicable limitation period was two years and the delay was eighteen (18) months after the expiry of the limitation period. The Court of Appeal stated that that delay was significant.

In DeWolfe v. Canadian Corps of Commissionaries , 2015 NSSC 229 , the applicable limitation period was twelve (12) months and the delay was two years and two months past the expiry of the limitation period pursuant to the HRM Charter . In DeWolfe , Justice Rosinski disallowed the HRM’s limitations defence and allowed the action to proceed. In Morrisey v. Bulmer , 2020 NSSC 294 the delay was twelve (12) months after the expiry of the two year limitation period. In Morrisey , Justice Hunt disallowed the limitations defence and allowed the action to proceed.

The Reason for the Delay [ 48 ] The Defendant MacNevin says that the delay in this matter was caused by inadvertent solicitor error. [ 49 ] In her Affidavit Ms. MacNevin states, inter alia , that: I first met with the Plaintiff, Mr. Tirrell Shane Carvery, on September 28, 2017. At that meeting, Mr. Carvery advised me of an incident that occurred on or about April 2, 2017 in Dartmouth. In particular, he advised he was harmed when the doors of a Metro Transit bus closed on his neck. At that meeting on September 28, 2017, Mr. Carvery advised me, and I do verily believe that Mr. Dull was representing Mr.

Carvery with respect to the Incident. After being retained by Mr. Carvery, I reviewed a decision involving alleged negligence by the Halifax Regional Municipality. I cannot recall the name of that decision at this time. From my reading of that decision, I formed the belief that the general two year limitation period prescribed at

section 8 of the Limitation of Actions Act , SNS 2014, c. 35 , as amended, applied to claims against the Halifax Regional Municipality. I was not aware that the twelve month limitation period prescribed at section 376(1) of the …. Charter …applied to Mr. Carvery’s claim until on or about August 31, 2018 when I re-read

section 376 of the Charter . Upon discovering this, I drafted the Statement of Claim for Mr. Carvery. On September 21 and 26, 2018, I provided one month’s notice of Mr. Carvery’s intended action to the Halifax Regional Municipality, pursuant to section 376(3) of the Charter . I did not have instructions to file the Notice of Action and Statement of Claim. After my retainer with the Plaintiff terminated, he picked up his file materials and sought new representation. [ 50 ] The Defendant MacNevin states in her Affidavit that her solicitor-client relationship with Mr.

Carvery with respect to the Incident terminated on or about December 13, 2018. [ 51 ] HRM points out that in this case, there is no affidavit evidence from Mr. Carvery with respect “to the reason for his delay”. Counsel for HRM submits that instead, the Court is left to infer, as they say the Defendant MacNevin urges the Court to do in their brief, that they only reason for the delay is solicitor “inadvertence”. Counsel also suggests that “Mr. Carvery only ever had a limited retainer agreement with her that specified that Ms.

MacNevin would not start an action against HRM”. [ 52 ] This latter submission must be put into context. At paragraph 11 of Ms. MacNevin’s Affidavit she states, “At all times during my solicitor-client relationship with Mr. Carvery regarding the Incident, Mr. Carvery’s instructions were to seek compensation from the Halifax Regional Municipality for damages he suffered as a result of the Incident”. Ms. MacNevin’s Affidavit goes on to provide that she was not aware that the twelve month limitation period prescribed in the Charter applied to Mr.

Carvery’s claim, but upon discovery that it did apply in late August, 2018, she drafted the Statement of Claim for Mr. Carvery and gave one month’s notice of his intended action to HRM. Ms. MacNevin then says (para. 16 of her Affidavit), that “I did not have instructions to file the Notice of Action and Statement of Claim. After my retainer with the Plaintiff terminated, he picked up his file materials and sought new representation”. [ 53 ] Counsel for HRM also says that it is apparent from Mr.

Carvery’s discovery evidence that there “may be alternative explanations for the delay although they cannot be fully tested on this motion”. “For one, there was a period of time in which Mr. Carvery did not have a cellular telephone and could not easily be reached. Mr. Carvery did not always reply promptly to emails to him in relation to this claim. He moved away from Halifax for a time. He may have received legal advice with respect to the prospects for success of the action which caused him to reconsider same”.

[ 54 ] This Court finds that the overwhelming evidence supports the fact that the reason for the delay in the filing of the Notice of Action was inadvertent solicitor error. This is not a case where a potential plaintiff sat on their rights after a limitation period had expired or was approaching expiry. Mr. Carvery retained Mr. Dull to represent his interests arising out of the Incident shortly after it occurred, on September 12, 2017, approximately five (5) months after the Incident and well within the twelve month limitation period. When Mr. Carvery’s retainer with Mr.

Dull ended on October 4, 2017, he did not delay in retaining Ms. MacNevin, whom he retained on October 16, 2017. Mr. Carvery’s retainer with Ms. MacNevin ended on December 13, 2018. In January, 2019 Mr. Carvery retained MacGillivray Law. The Affidavit evidence of each of Mr. Dull and Ms. MacNevin was that Mr. Carvery’s instruction to them were to seek compensation from HRM regarding the Incident. Mr. MacGillivray filed the Notice of Action on February 11, 2019. [ 55 ] The Plaintiff’s claim also was filed with the one months’ notice required by s. 376(3) of the Charter . Mr.

Dull’s September 21, 2017 letter to HRM sets out the date, time and place of the Incident, that Mr. Carvery was injured, and provided Mr. Dull’s contact information. This was all provided to HRM less than six (6) months after the Incident occurred and well within the twelve (12) limitation period. On September 21, 2018, Ms. MacNevin sent Mr. Plater a draft copy of the Statement of Claim. [ 56 ] The Court’s analysis of factor (

a) weighs in favour of Mr. Carvery and in disallowing HRM’s limitation defence. Factor (b): Any information or notice given by the defendant HRM to the defendant MacNevin respecting the limitation period [ 57 ] The Defendant MacNevin submits that the Defendant HRM at no time brought the twelve-month limitation period to the attention of Mr.

Carvery or the Defendant MacNevin prior to the expiry of the limitation period or shortly thereafter. [ 58 ] Indeed in the Agreed Statement of Facts, HRM has agreed that “At no time during the Charter ’s 12 month limitation period, which ended on April 2, 2018, did HRM give any information or notice to Mr. Carvery respecting the limitation period”. [ 59 ] Further, Ms. MacNevin’s uncontested evidence was that on April 27, 2018, the very month the limitation period had expired, she spoke with Mr. Plater by telephone. Ms. MacNevin had no recollection of Mr. Plater advising her that the limitation period had expired.

Her discovery evidence on this point, which was attached as an exhibit to the Agreed Statement of Facts, was that had Mr. Plater raised the expiry of the limitation period during that call, alarm bells would have gone off for her and she would have looked into the matter pretty rapidly. Mr. Plater’s email to Ms. MacNevin on April 30, 2017 states that HRM would not, by accepting any documentation from Ms. MacNevin “waive any right or defence” available to HRM under the Charter . However, this email does not specifically notify Ms.

MacNevin of the one year limitation period, or the fact that the limitation had already expired. [ 60 ] Counsel for Andrea MacNevin refers to the decision of Gogan, J in MacDonald v. Loblaws (supra) where Justice Gogan stated, at para: 39: In my view, Loblaws’ failure to provide clear notice in advance to MacDonald of the impending limitation period and its intention to rely upon it is significant and favours MacDonald. The statutory considerations must be given meaning.

Had Loblaws given clear notice of intention to rely on the limitation period in advance of its expiry, much more weight could be afforded to the desire to have certainty and alleviate against “ancient” obligations. But that is not the case here. [ 61 ] Counsel for HRM points to an entry which Joel Plater, Manager of Risk and Insurance Services for HRM made in an HRM electronic activity log on April 27, 2018, which reads as follows: claimant’s solicitor called discussed status of file and lack of information from her client.

Advised there are issues with respect to the circumstances surround the incident, lack of statement, medical information or retention letter from her office. Advised that if she wished she could forward correspondence to my atten. Re what she is seeking with respect to a move forward on this file , however, this in no way waives any previsions (sic) of limitations periods or policy requirements . [Emphasis added] [ 62 ] In his Affidavit, filed on this motion, Mr. Plater says that during his telephone conversation with Ms. MacNevin on April 27, 2018, “I advised Ms.

MacNevin of the information and records HRM would require to respond to Mr. Carvery’s claims. I advised her that our acceptance and consideration of the foregoing would in no way waive HRM’s reliance on its limitation defence or of compliance with the requirements prescribed by the Automobile Insurance Contract Mandatory Conditions Regulations ” . [ 63 ] Clearly Mr. Plater did not advise Ms. MacNevin’s that the Charter required actions against HRM to be commenced within one year. Mr. Plater does not say he did so and Ms.

MacNevin’s evidence was that she first learned in late August, 2018 that the limitation period for claims against HRM was one year, pursuant to the Charter . Prior to that point Ms. MacNevin thought, incorrectly, that a claim against HRM could be brought within two years pursuant to s. 8(1) (

a) of the LAA . [ 64 ] On April 30, 2018 Joel Plater sent the following email to Andrea MacNevin: Good Evening Andrea, As you are aware a great deal of time has past since the incident reported by your client is said to have occurred. Should you wish to advance a claim for either Accident Benefits or for bodily injury I ask that you forward any and all documentation to my attention. Upon receipt of the information I will instruct Tina O’Leary to reopen her file so that she may adjudicate the Accident Benefits portion of the incident. The tort claim will be handled by Ron McKenna.

Please note that the acceptance of any documentation does not waive any right or defence available to HRM under any Statute including but not limited to the provisions of the SPF1 for the Province of Nova Scotia or contained within the Halifax Regional Municipality Charter . [Emphasis added] [ 65 ] In this email, Mr. Plater refers to HRM’s Charter , but he does not refer to any limitation period in it. [ 66 ] Andrea MacNevin had a telephone call with Joel Plater on September 26, 2018. Mr. Plater noted in his log as follows:

claimant sol called. Discussed status. Advised limitation period is an issue . To date no information has been provided that would allow office to determine what, if any, coverage could be afford [Emphasis added] [ 67 ] By the time that Ms. MacNevin and Mr. Plater spoke by telephone on September 26, 2018, Ms. MacNevin was aware of the Charter ’s one year limitation period. [ 68 ] This Court concludes that factor (

b) also weighs in favour of disallowing HRM’s limitation defence. At no point did HRM provide clear notice to Mr. Carvery or Ms. MacNevin that the limitation period was one year. Factor (c): The effect of the passage of time on (

i) the ability of the Defendant HRM to defend the claim, and (ii) the cogency of any evidence adduced or likely to be adduced by the claimant or the Defendant HRM. (i)The Ability of the Defendant HRM to Defend the Claim [ 69 ] The Defendant MacNevin says that the delay in filing the Notice of Action has had no effect on the Defendant HRM’s ability to defend the claim. Counsel points to several events which it says served to alert and notify the Defendant HRM of Mr. Carvery’s potential claim, which it says provided HRM with ample opportunity to investigate and gather evidence to defend the claim.

Counsel refers to two Employee Incident Reports, notice received from Mr. Carvery’s then solicitor Mr. Michael Dull in September 2017 and a call between the Defendant MacNevin and the Defendant HRM in November 2017. [ 70 ] The Defendant MacNevin argues that, accordingly, the Defendant HRM was not “taken by surprise” when the Notice of Intended Action was provided on September 21, 2018, nor when the Notice of Action was filed, as was also the case in Bourque v. Morrision where Justice Coady noted that “the Defendants were not taken by surprise, as discussions occurred well before the two-year limitation”.

Further, Mr. Dull’s letter of September 21, 2017 substantially provided HRM with notice of the Incident. [ 71 ] With respect to the incident reports, the Court notes that on April 2, 2017, Jeff Lawrence, an employee of HRM completed an Employee Incident Report regarding the Incident which he says occurred on route 68 at the Dartmouth Bridge Terminal at 8:15 p.m. It appears that Mr. Lawrence was driving the HRM transit bus involved in the Incident. Under the heading “Operator’s Description of Incident (Who, What, Where, When, Why), Mr.

Lawrence writes: As I was loading passengers at the start of Route 68, around 8:15 pm, I started to close the front door as a young man, whom I didn’t see approach the bus, stepped onto the door step. I immediately opened the door again and apologized to the passenger. I also stated that I didn’t see him approach the door. He told me that he would like to write me up, and wanted to know how. I gave him the block number and mentioned to call 311. He wanted a supervisor. I called OPS as Jonathan was walking inside. He came over and took control of the situation.

I told him my side of the story, and to held me to write this and carry on with the route. [ 72 ] This Incident Report is initialled by a supervisor. Under a heading on the form, “Operations/Employee Services” a tick is made by the box, “Passenger Concern/Driver Error”. An unknown person put a circle around “Driver Error”. [ 73 ] As noted above, Mr.

Carvery’s then solicitor, Michael Dull, wrote to HRM (Tina O’Leary) on September 21, 2017, approximately (6) months after the Incident advising that he represented Tirrell Carvery in relation to personal injuries he sustained by a Metro Transit Bus on April 2, 2017 and attaching a Notice of Loss & Proof of Claim Form, along with a referral from Dr. Glenn Campbell for physiotherapy treatments for Mr. Carvery stemming from the April 2 Incident. [ 74 ] On October 12, 2017, Mr. Ron McKenna, HRM Claims Officer, Risk and Insurance Services sent an email to Michael Dull, in response to Mr.

Dull’s September 27, 2017 correspondence attaching a Notice of Loss & Proof of Claim Form stating: Subject: re your client Tirrell Carvery, our claim file 009423 Dear Mr. Dull Thank you for your letter of September 21, 2017 to Tina O’Leary. Please be advised I will be dealing with your clients

Section A claim, if submitted. Our understanding that based upon the information to date Halifax Transit was not able to confirm or substantiate your clients claim. I would expect that the

Section B adjuster has or will be requesting a statement from your client and hopefully your client can provide further information to assist in the investigation of this matter. If your client provides a statement to the

Section B adjuster can your provide me with a copy? [ 75 ] On October 12, 2017 Mr. Dull sent a response email to Mr. McKenna advising that he was no longer representing Mr. Carvery in the matter. [ 76 ] In her Affidavit, Andrea MacNevin states that on November 3, 2017 she had a telephone conversation with Tina O’Leary. During that conversation, Ms. MacNevin says that she advised Ms. O’Leary that she was representing Mr. Carvery with respect to the Incident. [ 77 ] A second HRM Incident Report was completed by HRM employee supervisor Jonathan Lewin on November 5, 2017, at HRM’s instruction.

Under the heading, “Operator’s Description of Incident” Mr. Lewin records the following: As requested by Sarah. (this incident occurred while I was doing a 6 month developmental supervisor term) While I was at the Dartmouth Bridge Terminal I was approached by a man (Tirrell Carvery) who asked if he could speak with me. He said that

he just got off a bus and the door accidentally closed on him, and that he was recently in a car accident and was still a little sore. I asked if he needed medical attention and he said not that he just wanted to talk to someone and that the driver should be more careful. He had no visible injuries. I believe this occurred early April. [ 78 ] Counsel for HRM says that this Court should consider that the new LAA has changed the wording from the previous legislation with respect to this factor. The previous legislative factor ( s. 3(4) ) was as follows: (

c) The extent to which, having regard to the delay, the evidence adduced or likely to be adduced by the plaintiff or 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. [Emphasis added] [ 79 ] Counsel submits that this “old factor” guided the assessment to factors which lessened the cogency of evidence and came about after the expiry of the limitation period. Counsel suggests that the assessment was thereby tightly circumscribed. Counsel for HRM says that this was emphasized by the Court of Appeal in Butler v.

Southam , 2001 NSCA 121 , which counsel says was the leading case under the old Act : 143 In assessing the prejudice to the defendant it is important to focus on prejudice attributable to delay after the expiry of the limitation period. This is made clear, for example, in s. 3(4)(

c) which requires consideration of the impact of delay on the cogency of evidence compared to what it would have been had the action been started within the time limit. [Emphasis in original] [ 80 ] Counsel for HRM says that in changing the wording for some of the criterion for disallowance, but not for others, it is clear that the Legislature intended that the Courts take a slightly different approach to the analysis. Counsel says that now the criterion focuses on the overall effect of the passage of time on the defendant’s ability to defend the claim and on the cogency of the evidence.

Counsel says, “there is no longer a distinction with respect to whether the foregoing arose after the limitation period expired”. [ 81 ] Counsel for HRM says that the application of the new criterion can be seen in the decision of Campbell J in Nixon v. Chignecto- Central Regional School Board: 34 Ms. Nixon’s husband, Peter Nixon reported the fall to the principal of the school just after Ms. Nixon fell in the parking lot. The principal started the paper work.

The School Board was aware that a fall had taken place in the parking lot and could have made the inquiries necessary to gather evidence related to the incident. At that stage however the School Board was dealing with a disability claim, not litigation. The burden of responsibility for the collection of evidence should not be shifted to the potential defendant to require them to collect evidence in case someone decides to wait and later start a legal action. If there was at least some intimation that Ms. Nixon was contemplating litigation that might be different.

But here, the School Board was unaware of any claim. [ 82 ] In Nixon, a key witness had died after the limitation period expired and the witness’s widow destroyed potentially key business records thereafter. [ 83 ] Counsel for HRM suggests that there are evident similarities between the case before the Court and Nixon . Counsel says that in both cases, an official with the defendant was immediately made aware of the incident (principal vs supervisor).

Counsel says that “neither defendant had any reason to collect evidence” and “both suffered prejudice by means of the destruction of key evidence in the interim”. [ 84 ] Counsel also says that HRM received no 311 call despite what it says was the bus operator’s contemporaneous suggestion to Mr. Carvery that he report the incident through that service. Mr. Carvery’s discovery evidence on this point was that he “tried 311 a few times [but] I couldn’t get in touch with them”. Counsel for HRM says that that evidence is not credible, and it could not test that on this motion. [ 85 ] In his affidavit, Mr.

Plater says that in the case of a 311 call of a reported injury on Halifax Transit, the matter is directed to Risk and Insurance Services and to Transit’s Accident and Claims Investigations teams. [ 86 ] However, this Court notes that in Nixon the plaintiff did not retain counsel in respect of her fall until after the limitations period had expired. In this case, Mr. Carvery retained counsel well before the limitations period expired. In addition, in Nixon , the Court noted that the plaintiff received benefits for her injuries under the terms of a short-term disability policy.

She also received a settlement with respect to long- term disabilities. The Court noted, “if the case does not proceed, she would not have the opportunity to make a claim for things like compensation for pain and suffering, loss of valuable service, and future care”. [ 87 ] Further, counsel for HRM conducted a discovery examination of the Plaintiff on February 9, 2021. Counsel for HRM questioned Mr.

Carvery extensively at that time about his actions prior to and following the Incident and with respect to the injuries he said he suffered as a result of the Incident. (ii)The Effect of the Passage of Time on the Cogency of Any Evidence [ 88 ] The Agreed Statement of Facts submitted by the parties provides that by April 16, 2017, HRM’s “video footage of the April 2, 2017 incident was likely deleted on or about April 16, 2017 (approximately 2 weeks after the incident)”. HRM says that it had no notice of potential litigation until September 21, 2017, at which point the video had already been destroyed.

HRM concedes that had an action been filed at that time, the video would not have been available to assist HRM with the defence of this matter. In his affidavit on this motion, Mr. Plater says that at the time of the Incident, Transit footage would only be pulled when an incident was reported to 311 or if HRM was otherwise made aware that a claim “would be forthcoming. HRM has now changed its practice and obtains the video footage in connection to all Halifax Transit Incident Reports”. Mr. Plater says that “HRM’s ability to defend Mr.

Carvery’s claim is significantly affected by the lack of the video evidence which would have depicted the alleged incident.” [ 89 ] Irrespective of the loss of the video footage, HRM says that the passage of time still has resulted in prejudice to HRM. Counsel says that HRM cannot properly advance a claim of contributory negligence. Counsel refers to the operator’s report where the operator says, “I started to close the front door as a young man, whom I didn’t see approach the bus, stepped onto the doorstep…”. Counsel says therefore that the only remaining evidence of the manner of Mr.

Carvery’s approach to the bus is his own recollection, which it says his poor. The Court notes that HRM has plead contributory negligence on the part of Mr. Carvery in its defence.

[ 90 ] Apart from the destruction of video footage of the Incident (which likely occurred within two weeks of the Incident), HRM has not adduced any evidence to show that relevant records which would have been available within the limitation period are no longer in existence. Mr.

Plater’s affidavit says that in addition to the loss of the video evidence, “HRM’s ability to defend the claim is also hampered somewhat by the passage of time and the associated degradation of the memories of the witnesses and of the Plaintiff”. [ 91 ] The Court notes that several events occurred within the limitation period which the Court finds served to notify HRM of Mr. Carvery’s potential claim. This is not a situation where HRM was taken by surprise when the Notice of Action was filed and served upon it. HRM knew about the Incident on the very day it occurred, April 2, 2017. Mr.

Carvery immediately reported the Incident to the person driving the bus, Mr. Lawrence, as well as Mr. Lawrence’s supervisor, Mr. Jonathan Lewin. Mr. Lawrence completed an incident report that very day, at the request of Mr. Lewin. [ 92 ] HRM could have investigated and developed evidence during the ensuing twelve (12) period while it was still fresh and cogent. On receipt of Mr. Dull’s September 21, 2017 letter, HRM had sufficient information to allow it to conduct whatever investigations it chose including obtaining a statement from Mr. Carvery. Mr.

Dull’s letter to HRM also specifically raised the potential of video evidence and asked that it be preserved. A letter of this nature, from counsel, should have shown HRM that Mr. Carvery was serious about pursuing a claim arising out of the Incident. [ 93 ] Further, on October 12, 2017, HRM engaged Mr. Ron McKenna as the

Section A adjuster in response to Mr. Dull’s September 21, 2017 letter. On November 5, 2017, Mr. Lewin, HRM’s Operation Supervisor, who spoke with Mr. Carvery on the day of the Incident, completed an incident report at the request of HRM. [ 94 ] The Court notes that all of these events took place within seven (7) months after the Incident took place, well within the twelve (12) month limitation period. HRM had plenty of time to investigate during the limitation period. As noted by Norton J. in Sears v.

Top O’ the Mountain Apartments Limited : The Third Party argues that it would be deprived of the opportunity to properly investigate the Plaintiff’s claim and collect evidence to defend itself. It filed no evidence of any specific deprivatio n. It is noteworthy that the Third Party was notified of the fall and injury of Mr. Sears by the Defendants on February 9, 2016 well within the limitation period.

If it chose not to investigate or to inform its insurer at that time, it cannot argue that it was deprived of the opportunity by the delay after the expiry of the limitation period. [Emphasis added] [ 95 ] The Court finds that the late filing of the Statement of Claim did not meaningfully effect HRM’s ability to defend Mr. Carvery’s claim.

This is not a situation where a defendant had no notice of a claim against it prior to be served with a claim after the expiry of a limitation period. [ 96 ] After considering all of counsel submissions and the evidence before the Court, I find that the passage of time and the loss of cogency of evidence has had little effect on HRM’s ability to defend Mr. Carvery’s claim. Accordingly factor (

c) also weighs in favour of disallowing HRM’s limitations defence. Factor (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 [ 97 ] To repeat, HRM was aware of the Incident on the day it occurred. HRM assigned a

Section A adjuster upon receipt of Mr. Dull’s September 21, 2017 correspondence to it. On May 1, 2018, after the limitation period expired, Mr. Plater invited Ms. MacNevin to forward him documentation related to Mr. Carvery’s claim. Mr. Plater states that “upon receipt of the information I will instruct Tina O’Leary to reopen her file so that she may adjudicate the Accident Benefits portion of the incident. The tort claim will be handled by Ron McKenna”. [ 98 ] The Court also notes that during the limitation period, HRM did not provide Ms. MacNevin, Mr.

Carvery’s counsel at the time, with the two HRM incident reports that existed at the time, despite inviting Ms. MacNevin to provide it with documentation in support of Mr. Carvery’s claim. However, nor did Ms. MacNevin ask for such documentation. Further, Mr. Plater did not advise Ms. MacNevin of the one year limitation period, even on April 27, 2018 when he spoke by phone with Ms. MacNevin with the limitation period having expired on April 2, 2018. [ 99 ] However, there is no evidence to suggest that the Defendant HRM resisted any efforts on the part of Mr.

Carvery to get information about his claim. [ 100 ] On balance, Factor (

d) weighs in favour of disallowing HRM’s limitation defence. Factor (e): Incapacity of the Claimant [ 101 ] There is no evidence related to any incapacity of Mr. Carvery during the relevant period. Accordingly, this factor is irrelevant, or at best neutral to the Court’s consideration. Factor (f): The extent to which the claimant acted promptly and reasonably once the claimant knew a claim may arise against the defendant [ 102 ] It is clear that Mr. Carvery relatively quickly retained counsel to represent him in a possible claim against the Defendant HRM. He retained Mr. Dull on September 12, 2017.

On or about October 16, 2017 the Defendant MacNevin began representing Mr. Carvery. The Defendant MacNevin served the Notice of Intended Action on the Defendant HRM and represented Mr. Carvery in this matter until December 13, 2018. [ 103 ] Mr. Dull states in his Affidavit that “at all times during my solicitor-client relationship with Mr. Carvery regarding the Incident, Mr. Carvery’s instructions were to seek compensation from the Halifax Regional Municipality for damages he suffered as a result of the Incident”. [ 104 ] In January 2019, Mr.

Carvery retained MacGillivray Law Inc. to represent him and the Notice of Action was filed in February 2019. MacGillivray Law Inc. represented Mr. Carvery in the matter until on or about November 14, 2019, when the Plaintiff retained Mr. Dull to represent him again.

[ 105 ] This Court finds that Mr. Carvery acted promptly and reasonably in addressing his claim though his retention of legal counsel. I do not accept that Mr. Carvery himself contributed to the delay. [ 106 ] Factor (

f) weighs in favour of disallowing HRM’s limitation defence. Factor (g): The steps, if any, taken by the claimant to obtain medical, legal or other expert advice and the nature of any such evidence the claimant received. [ 107 ] The steps Mr. Carvery took to retain legal counsel are fully noted above, and will not be repeated under this factor. [ 108 ] With respect to the steps Mr. Carvery took to obtain medical advise, the evidence shows that on April 10, 2017, only days after the Incident, Mr. Carvery saw Dr. Glenn Campbell, his family physician. Dr. Glenn Campbell wrote Mr.

Carvery a prescription for physiotherapy with instructions, “Assess, treat and provide instruction for home exercises for neck strain as the result of twisting motion and being caught in the closing doors of a Metro Bus”. In correspondence to Ms. MacNevin dated May 3, 2018, Dr. Campbell refers to the fact that Mr. Carvery was involved in two motor vehicle collisions on October 6, 2016 and January 27, 2017 and then the Incident which Dr. Campbell describes as “twisting his neck”. Dr. Campbell says that Mr.

Carvery suffered “multiple soft-tissue/muscle strain/whiplash associated disorder over a short period of approximately 6 months” and that “he was eventually able to get physiotherapy beginning in December, 2017 and attended 17 sessions before being discharged in March, 2018”. Ms. MacNevin provided this documentation to Mr. Plater on October 10, 2018 together with physiotherapy records for Mr. Carvery arising out of his seventeen attendances for physiotherapy treatment. [ 109 ] The evidence before the Court also shows that Mr.

Carvery attended a QEII Pain Clinic on September 9, 2019, as a result of a referral from Dr. Campbell. In the report generated by the treating resident physician to Dr. Campbell the physician states “In April 2017, Tirrell unfortunately had the doors of a bus close on him as he was stepping on to the bus. Since this accident, he states that the pain, specifically in his neck and right shoulder, has increased”. [ 110 ] The Court finds that Mr. Carvery was diligent in obtaining legal advice and medical advice relating to the injuries he suffered in the Incident.

He was prescribed physiotherapy by his family physician and he sought out and obtained that form of treatment. He attended the Pain Clinic for further assessment, once again as recommended by his family physician. [ 111 ] Factor (

g) weighs in favour of disallowing HRM’s limitation defence. Factor (h): The strength of the claimant’s case [ 112 ] In Barry v. Halifax (Regional Municipality) ( supra ) the Court of Appeal noted a preference for evidence on liability together with details of the nature, extent, duration, and causation of the injuries (para. 90): To successfully claim against RSA, Ms. Barry will be obligated to establish that she is “legally entitled” to damages from an unidentified driver. In this motion she provided little evidence to establish a strong case for liability.

Further, although it appears she undertook some physiotherapy following the accident, there is insufficient evidence adduced to advance a strong case regarding the nature, extent, duration or causation of any injuries being claimed as arising from the incident. [ 113 ] In MacDonald v. Loblaws ( supra ), Justice Gogan considered the strength of the case before her on the motion, referring to the direction of the Nova Scotia Court of Appeal in Barry , stating at paras. 45 and 46 , as follows: On this point, I rely on the evidentiary standard established in Barry .

It is incumbent on MacDonald to offer evidence on “liability together with the details of the nature, extent, duration and causation of the injuries”. MacDonald has provided evidence that permits the required analysis to take place. The assessment required here is in the context of the relief sought. In other words, does the claim have enough merit to ground a claim for equitable relief. In my view, the evidence adduced establishes that the claim is not frivolous and his merit in the sense required. Norton, J. in Sears , considered the nature of the claim advanced and found “arguable issues”.

Likewise, I find that sufficient evidence has been advanced to establish that MacDonald would suffer hardship if the limitation period was not disallowed, in the sense that the claim deserves to be heard. [ 114 ] In Bourque v. Morrison and Nova Scotia (Attorney General) , 2019 NSSC 291 Justice Coady disallowed the defendant’s limitation defence. With respect to factor 12 (5)(

h) he concluded that the “Plaintiff’s claim is not frivolous and deserves to be resolved on the merits”. [ 115 ] The Court notes that in its brief on this motion, counsel for HRM states that in connection with Mr. Carvery’s two prior motor vehicle accidents and the Incident that “the overwhelming evidence in this proceeding and on this motion is that the Plaintiff suffered soft tissue injuries to his neck, shoulders, and back. There is some limited evidence that this was contributed to by HRM. It is clear that any injuries suffered constitute on ( sic ) indivisible injury”.

As noted earlier in this decision, HRM’s April 2, 2017 Incident Report, includes reference to “employee error”. [ 116 ] With respect to the damages portion of his claim, the Court has the transcript of Mr. Carvery’s discovery evidence where he was examined extensively on the nature of his alleged injuries arising from the Incident and his current state of health. This evidence shows that Mr. Carvery has a viable claim against HRM in negligence on its part and resulting injuries. [ 117 ] Counsel for HRM argues that Mr.

Carvery’s discovery evidence shows that he is largely unable to articulate what injuries he suffered as a result of the two prior motor vehicle accidents and those he suffered as a result of the Incident. Mr. Carvery did give discovery evidence that the injuries he received as a result of the Incident were “kind of minor” but he added, “But you know, I already had injuries in my back at the time so I think it kind of could have made them worse”. [ 118 ] HRM notes that in her Statement of Defence, Ms. MacNevin states that Ms. MacNevin describes Mr. Carvery’s claim against HRM as “challenging and highly uncertain”.

Ms. MacNevin so states in the context of pleading in her Defence that no cause of action exists against her “until a Court determines that the Plaintiff’s action against the Defendant HRM is statute-barred by a defence based on a limitation period”. [ 119 ] Mr. Carvery has produced sufficient evidence on this motion for the Court’s analysis of this factor to take place. [ 120 ] Factor (

h) supports disallowing HRM’s limitations defence.

[ 121 ] Factor (

i) Any alternative remedy or compensation available to the claimant [ 122 ] In MacDonald v. Loblaws ( supra ), as is the case before this Court, Mr. MacDonald relied upon his lawyer to file a claim before the expiry of the relevant limitation period. Although the Court has no evidence from Mr. Carvery on this point, it is not a stretch to say that a reasonable potential plaintiff would expect a lawyer retained to advance a claim on their behalf would do so within any relevant limitation period.

In MacDonald , Justice Gogan stated: MacDonald relied on his lawyer to advance his claim and his lawyer did not file the claim before the expiry of the limitation period. If the limitation period is not disallowed, it is open to MacDonald to advance a claim against his lawyer. Whether, or to what extend, that option would be a full alternative remedy is speculative and difficult to weigh. Regardless, it is but one of the factors to be considered in assessing hardship on this motion. [ 123 ] Although Ms.

MacNevin is a named Defendant in the within action, I do not accept, as argued by HRM, that a claim against her in negligence, if successful, provides Mr. Carvery with an alternative remedy or compensation within the meaning of factor (i). [ 124 ] The Court refers to the decision of the Nova Scotia Court of Appeal in Lord v.

Smith , 2013 NSCA 34 where Justice Farrar responded to the argument advanced by the defendant that a plaintiff whose claim is found to have expired always has recourse against their counsel (para. 52): With respect to the potential alternative remedy against his former counsel, whatever action Mr. Lord may have against his former counsel and its potential success is mere speculation. In my view, it was appropriate for the motions judge to give it little weight in his deliberations. [ 125 ] HRM also argues that Mr.

Carvery stands to recover 100% of his damages from any concurrent tortfeasors if it is found that he suffered one indivisible injury arising from the Incident and the other motor vehicle collisions. Mr. Carvery has an action in another Nova Scotia proceeding against Defendants, other than HRM (Hfx. No. 484908). A joint discovery of Mr. Carvery in that action and the within action took place on February 9, 2021. [ 126 ] The fact that damages may be apportioned with another tortfeasor in a possible consolidated action is not a reason to conclude on this motion that Mr.

Carvery has an alternate remedy for injuries suffered in the Incident. The Court notes that the within action is scheduled for trial on January 17, 2023 and has not been consolidated at this time with Hfx. No. 484908. [ 127 ] Factor (

i) favours disallowing HRM’s limitation defence. Balancing of Hardships [ 128 ] Section 12(3) of the LAA requires the Court to balance the hardship to each party when determining whether a limitations defence should be disallowed and the plaintiff permitted to commence their action. [ 129 ] A consideration of all of the relevant factors strongly supports disallowing HRM’s limitation defence. Conclusion [ 130 ] This Court has considered all of the circumstances presented, and specifically has considered each of the s. 12(5) factors as set out in the LAA . [ 131 ] In my view, the hardship assessment favours Mr.

Carvery. [ 132 ] The Court concludes that it is just to disallow HRM’s limitation defence. [ 133 ] The Defendant MacNevin is entitled to costs. I ask her counsel to prepare an Order accordingly. [ 134 ] If the parties can not agree on costs, the Court will accept short written submissions within 30 calendar days of this decision. Smith, J.