Lauzon v. Magee, 2023 NSSC 137

SUPREME COURT OF Nova Scotia Citation: Lauzon v. Magee , 2023 NSSC 137 Date: 20230502 Docket: Hfx No. 513143 Registry: Halifax Between: Robin Lauzon Plaintiff and Charles Magee Defendant Docket: Hfx No. 513145 Registry: Halifax Between: Paul Lauzon Plaintiff and Charles Magee Defendant DECISIONS ON MOTIONS TO STRIKE LIMITATION DEFENCES AND

SUMMARY JUDGMENT Judge: The Honourable Justice Ann E. Smith Heard: October 12, 2022, in Halifax, Nova Scotia Counsel: Robert Carter, K.C., for the Plaintiffs Sheree Conlon, K.C., for the Defendant By the Court: Introduction [ 1 ] The Court heard two motions applicable to Hfx No. 513143 and Hfx No. 513145. The Plaintiff Paul Lauzon (Hfx No. 513145) is the father of the Plaintiff Robin Lauzon (Hfx No. 513143). Robin Lauzon was a passenger in a vehicle (the “Lauzon vehicle”) driven by her father, Paul Lauzon, on March 9, 2018.

The Lauzon vehicle was involved that day in a motor vehicle accident (the “collision”) with a vehicle driven by the Defendant, Charles Magee (the “Defendant”). Robin Lauzon was 17 years of age at the time of the collision, being born on December 7, 2000.

Each Plaintiff alleges personal injuries and loss as a result of the collision. [ 2 ] The Plaintiffs retained the services of solicitor Darlene Lamey on March 21, 2018. [ 3 ] Each Plaintiff commenced an action against the Defendant by filing Notices of Action and Statements of Claim on March 7, 2022. [ 4 ] The Defendant filed a defence to the Action commenced by Paul Lauzon on May 18, 2022. At para. 12 of that defence, the Defendant states that the limitation period for Paul Lauzon’s claim expired on March 9, 2020, and says that his claim is statute-barred.

The Defendant pleads and relies on the Nova Scotia Limitations of Action Act , R.S.N.S. 1989, c. 259 , as amended (the “ LAA ”).

[ 5 ] The Defendant filed a defence to the Action commenced by the minor Robin Lauzon on May 18, 2022. At para. 12 of that defence, the Defendant states that the limitation period for Robin Lauzon’s claim expired prior to the filing of the Notice of Action and that her claim is statute-barred. The Defendant pleads and relies on the LAA . [ 6 ] The parties agree that the limitation period for commencing the within Actions is set by provisions of the LAA . Section 8(1) (

a) provides for a two-year limitation period. That means that in the case of Paul Lauzon, the limitation period expired on March 9, 2020, two years after the March 9, 2018 collision. His claim was commenced on March 7, 2022, almost four years after the collision and approximately two years after the limitation period expired on March 9, 2020. [ 7 ] In the case of Robin Lauzon, she was a minor at the time of the collision. Accordingly, s. 12(6) of the LAA applies such that the two-year limitation period did not start to run until she turned 19 years of age on December 7, 2019.

The limitation period in the case of Robin Lauzon expired on December 7, 2021. Her claim was commenced on March 7, 2022, approximately three months after the limitation period expired. [ 8 ] The Court has before it the motion of each Plaintiff to strike the Defendant’s limitation defences in each Action. [ 9 ] The Court also has before it a

summary judgment motion brought by the Defendant in each Action. Those motions rest entirely on the outcome of the first motions, i.e., if the Plaintiffs’ motions for disallowance of the limitation defences fails then the Defendants seek

summary judgment on the basis that each claim is statute-barred. Issues: 1. Should the Defendant’s limitations defences be disallowed pursuant s. 12(3) of the LAA ? 2. If the answer to the first question is “no”, in the case of either claim, should

summary judgment be granted and the Action dismissed? Evidence on the Motion [ 10 ] The Plaintiffs filed the Affidavit of Darlene Lamey, sworn September 22, 2022 (the Plaintiffs’ former legal counsel) and a solicitor’s Affidavit of Jeff Mitchell in each Action (the Plaintiffs’ current legal counsel), each of which is sworn on October 3, 2022, as well as the Affidavit of Robin Lauzon, sworn October 5, 2022, and the Affidavit of Paul Lauzon, sworn October 5, 2022. [ 11 ] The Defendant filed the Affidavit of Larry Kelly, a Litigation Specialist with Pembridge Insurance Company of Canada (“Pembridge”).

Pembridge was the insurer of the Defendant’s motor vehicle involved in the collision pursuant to a Nova Scotia Standard Automobile Policy. [ 12 ] No Affiant was cross-examined on their Affidavit. Issue 1: Should the Defendant’s limitations defences be disallowed pursuant s. 12(3) of the LAA ? Relevant Legislation Discretion to Disallow Limitations Defence in the LAA [ 13 ] Sections 12(3) and 12(5) of the LAA provide this Court with the discretion to disallow a defence based upon the expiry of a limitation period where the claim is brought to recover damages in respect of personal injuries.

Such is the case for each of Robin and Paul Lauzon’s claims. [ 14 ]

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. [ 15 ] The claims of each Plaintiff were filed within the two-year period following the expiry of each limitation defence. As such, pursuant to s. 12(6) of the LAA , the Court has jurisdiction to consider the within disallowance motions. Position of the Parties in Brief The Plaintiffs (on the Motion to Disallow the Limitation Defence) [ 16 ] The Plaintiffs say that a balancing of the LAA s. 12(5) factors and the assessment of relative hardship supports a disallowance of the limitations defence in each Action.

The Plaintiffs say that the Defendant’s insurer had immediate notice of the claims and ample opportunity to investigate the collision and the claims advanced.

The Plaintiffs’ counsel submits that “there is no evidence that the delays involved have impacted the cogency of evidence or the Defendants’ ability to defend each claim.” [ 17 ] The Plaintiffs’ counsel says that the evidence supports the conclusion that the Plaintiffs have legitimate and real claims to advance if the limitation defences are not disallowed, with their hardship being that they will lose their causes of action. [ 18 ] On the other hand, Plaintiffs’ counsel submits that the consequence for the Defendant is less dire, i.e., it will lose its limitation defences, but will still be able to fully defend the claims on their merits.

The Defendant (on the Motion to Disallow the Limitation Defence) [ 19 ] The Defendant’s counsel says that the length of the delay in commencing Paul Lauzon’s Action is very significant – two days shy of four years.

Defence counsel says that in the case of Robin Lauzon the delay is about three months, “but still four years post- accident and four years after counsel was retained for her and a Litigation Guardian appointed.” [ 20 ] Defence counsel says that while the Plaintiffs focus primarily on the factor of prejudice, “their evidence falls far short of meeting their burden on this factor.” Counsel says that they are asking the Court to assume no prejudice on the part of the Defendant in circumstances where the Plaintiffs have the burden of proof as well as control over the evidence which can prove no prejudice from their delay.

Law – Section 12(5) of the LAA [ 21 ] 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)). [ 22 ] 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. 77-78): 77 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. 78 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. [ 23 ] 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. [ 24 ] The Court of Appeal noted that an 18-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. [ 25 ] In MacDonald v. Loblaws , 2021 NSSC 267 , Gogan, J. helpfully provided a

summary of cases following Barry , as follows at paras. 29-32 : 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. 30 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. 31 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. 32 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…

Section 18 of the LAA – the Minor Claimant Robin Lauzon [ 26 ]

Section 18 of the LAA provides that the “limitation periods established by this Act do not run while a claimant is a minor.” The collision in this case occurred on March 9, 2018 when Robin Lauzon was 17 years old.

Robin Lauzon reached the age of majority on December 7, 2019, at which point the limitation period began to run. [ 27 ] The submissions of defence counsel raise the relevance, if any, of action or inaction by Robin Lauzon and her Litigation Guardian, Paul Lauzon, during the period of time between the collision and her 19th birthday, when the limitation period was not running against her, i.e., March 9, 2018 to December 7, 2019. [ 28 ] The Defendant’s counsel argues that it is relevant that Robin Lauzon’s father signed a contingency fee agreement on her behalf shortly after the accident, and acted as her Litigation Guardian while she was a minor.

The Defendant also refers to evidence of communications between Robin Lauzon and Ms. Lamey while Robin was a minor.

According to the Defendant’s counsel, these facts indicate that Robin Lauzon was not “waiting until she reached the age of majority before deciding whether to advance a claim.” In oral argument, defence counsel suggested that “everything was in place” to commence an action when Robin Lauzon turned 19, so that she effectively had three to five years after the accident to commence an action. [ 29 ] The Defendant submits that these facts are relevant considerations under each of ss. 12(5)(a) (“the length of and the reasons for the delay on the part of the claimant”) and 12(5)(e) (“the duration of any incapacity of the claimant arising after the date on which the claim was discovered”). [ 30 ] The implication of the Defendant’s argument is that the acts, omissions and legal status of the Plaintiff Robin Lauzon before the limitation period started running are relevant to the circumstances the Court is required to consider under s. 12(5). [ 31 ] In the view of this Court, to accept this reasoning would effectively displace s. 18 of the LAA .

That is because such would result in a plaintiff being penalized for circumstances that pre-date the limitation period – for instance, by attributing the “reasons for the delay” to acts or omissions of that plaintiff during their minority, or by penalizing that plaintiff for acts or omissions of a litigation guardian. The LAA provides no mechanism for this approach. [ 32 ] By comparison, the comparable Ontario legislation – the Limitations Act , 2002, SO 2002, c. 24, Sch B – provides as follows: Minors 6 The limitation period established by s. 4 does not run during any time in which the person with the claim, (

a) is a minor; and (

b) is not represented by a litigation guardian in relation to the claim. [Emphasis added] [ 33 ] As such, the appointment of a litigation guardian will trigger the limitation period against a minor in Ontario. Before these provisions were in effect, Graeme Mew in The Law of Limitations , 3d edn (LexisNexis, 2016) at §6.31, notes that the state of the law in Ontario was that “the mere appointment of a litigation guardian did not cause the limitation period to begin to run.” [ 34 ] Legislation in other jurisdictions provides other mechanisms by which a limitation period may commence while the plaintiff is a minor.

Mew summarizes: In some provinces, the limitation period can run during a plaintiff’s minority if the defendant acts to satisfy certain specified requirements. In Alberta, British Columbia, Manitoba and Ontario, the defendant may deliver a notice to proceed to the minor’s guardian and the public trustee.

Where this occurs, the limitation period will begin to run against the minor. (Mew at §6.27.) [ 35 ] There is no equivalent language in the LAA . [ 36 ] Accordingly, for purposes of s. 12(5)(a), the view of this Court is that the delay attributable to Robin Lauzon starts to run only after she reached the age of majority, (i.e., on December 7, 2019). Therefore, reasons for delay must be found within the time period of December 7, 2019 to March 7, 2022, and not earlier, when the limitation period was not running.

Analysis Factor (a): The length of, and reasons for, the delay on the part of the claimant. [ 37 ] As noted previously in this decision, Robin Lauzon’s claim was filed approximately three months after the ultimate expiry of the limitation period. That is not a significant delay. [ 38 ] In the case of Paul Lauzon’s claim, his claim was filed almost two years after the ultimate expiry of the limitation period. The Court would not have had jurisdiction to consider disallowing the limitation defence, had Paul Lauzon’s claim been filed two days after it was, i.e., on March 9, 2022.

As it was, Paul Lauzon’s claim was filed on March 7, 2022. That delay is of significant duration. [ 39 ] In her Affidavits filed on this motion, Darlene Lamey says that she was retained by Robin Lauzon and by Paul Lauzon as Litigation Guardian for his then minor daughter Robin Lauzon in connection with the collision on March 21, 2018, twelve days after it occurred. In that regard, a Contingency Fee Agreement entered into by Paul Lauzon, as Litigation Guardian for Robin Lauzon, is attached as an exhibit to the Affidavit of Ms. Lamey. Darlene Lamey was also retained by Paul Lauzon, on his own behalf on March 21,

2018, also by way of retainer and Contingency Fee Agreement. [ 40 ] It is clear from the Affidavit of Darlene Lamey that the reason for her delay in commencing the Actions was solicitor inadvertence. Ms. Lamey states as follows in her Affidavit: 14 When I was retained by the Plaintiff in 2018, I was employed as a solicitor in the law firm of Waterbury Newton in Kentville, Nova Scotia and when a personal injury file was opened, I normally requested support staff to diarize limitation periods. 15 In September of 2019, I changed firms and moved to Atlantica Law Group in Windsor, Nova Scotia.

I had little support staff assigned to me at this new firm and often had to look after my files by myself. I do not believe that the file for Paul Lauzon was properly opened or diarized with limitation periods at the Atlantica Law Group. In addition, the electronic file system, including limitation reminder system, was changed in February of 2020. Under the new system the limitation period did not come up for me to see nor did I get the reminders on the file that I got on other files.

Unfortunately, through inadvertence, I then lost track of the limitation period for this file and was unaware of the limitation period expiring March 9, 2020, without a Notice of Action being issued. 16 I continued to work on the files throughout 2021 with the assistance of the firm’s articling clerk, Aimee Virick.

I met with Paul Lauzon on February 9, 2021 to review his medical condition and prepare further third-party disclosure. … 17 That I reviewed the file and notice that Aimee Virick, the form’s articling clerk, was in regular email contact with the clients throughout April, May and August of 2021 in order to obtain medical disclosure consents and updated medical information concerning their injuries. … 18 That I became aware of the missed limitation period on or around February 28, 2022. I was preparing to leave private practice and was gathering up, and reviewing, my files for transfer to other lawyers.

When I discovered that the limitation period has been missed, I notified the clients of the problem and arranged to have the files transferred to Solicitor Jeff Mitchell of NOVA Injury law firm on February 23, 2022 for representation of the clients. [Emphasis added] [ 41 ] Based on the evidence, it is clear that the Paul Lauzon acted diligently in quickly retaining legal counsel for himself and his daughter Robin. The Defendant insurer knew about the collision soon after it occurred and also knew that its insured, Mr. Magee, was likely at fault for the collision.

Evidence in this regard will be reviewed later in this decision. Factor (b): Any information or notice given by the defendant to the plaintiff respecting the limitation period. [ 42 ] In her Affidavit, Ms. Lamey states, “I do not recall the Defendant notifying me or the Plaintiff of any impending expiry of the limitation period or the fact of its expiry.” In its brief on this motion, Plaintiffs’ counsel says, “No correspondence from Pembridge advising Ms.

Lamey or the Plaintiffs of [the] impending limitation period expiry was ever received.” [ 43 ] Counsel for the Defendant says that this “is another indication that the Plaintiffs are attempting to reverse the burden of proof on their

section 12 motions.” Counsel argues that this is not a situation where the Defendant, or her insurer, gave incorrect information about the limitation period, or any suggestion that it would be extended.

Counsel says that where claimants are represented, their counsel would be expected to inform themselves and advise their clients about the expiry of any applicable limitation periods and not depend on the defendant’s insurance adjuster. [ 44 ] Defence counsel submits that as in Barry , there is “nothing in the record to suggest” that the “Plaintiffs were ‘in any way detrimentally influenced by the actions of’ the Defendant or his insurer” (referring to Barry , at para. 81 ).

Counsel for the Defendant says that this factor does not favour the Plaintiffs. [ 45 ] There is no evidence that the Defendant provided notice to either the Plaintiffs or Ms. Lamey that the limitation period was two years. However, the Plaintiffs were represented by counsel throughout this two-year period.

This is not a situation where the Plaintiffs were acting on their own behalf, and the Defendant, through its dealings with them, lead them to believe that there was no limitation period, or that a limitation period was not running against them. [ 46 ] This factor does not weigh in favour of the Plaintiffs or the Defendant. Factor (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. [ 47 ] In the circumstances of this case, factor (

c) is the part of the analysis that is most hotly contested by the parties. [ 48 ] Both parties address the evidence supporting their views of factor (

c) in their submissions. [ 49 ] Ms. Lamey states in her Affidavit, that on April 23, 2018 (about a month following her retention by the Plaintiffs), she communicated by letter correspondence with Nicole Branch, adjuster for Pembridge, advising that she represented the Plaintiffs Robin Lauzon and Paul Lauzon in respect to injuries sustained in the collision. Darlene Lamey’s Affidavit states that this letter is attached as Exhibit B to her Affidavit, but in fact what is attached as Exhibit B is a letter dated April 23, 2018, which appears to have been sent by Ms.

Lamey to Paul Lauzon’s own insurance company, “The Personal Insurance Company.” The letter is directed to “Dear Sir/Madame” and provides as follows:

April 23, 2018 The Personal Insurance Company P.O. Box 7065, Station A Mississauga, ON L5A 4K7 Dear Sir/Madam: Our Client/Your Insured: Paul J.L. Lauzon Date of Loss: March 9, 2018 Policy No.: O-KO-00286-5 We have been retained by Mr. Lauzon to assist him in his claim for damages resulting from personal injuries and property damage sustained in a motor vehicle accident on March 9, 2018, in New Minas, Nova Scotia. It is my understanding that you represent the Personal Insurance Company, Mr. Lauzon’s

Section B and

Section C insurer in this matter. I would appreciate it if you would forward to me, any statements or previous correspondence you may have in your

Section B and C file. I have no problem with you continuing to be in direct contact with Mr. Lauzon; I ask only that you copy me onto any correspondence you may send to him. [ 50 ] Attached to this letter is an “Authorization to Release File and Information” dated March 29, 2018, signed by Paul Lauzon. [ 51 ] Ms.

Lamey states in her Affidavit that she received email correspondence from Nicole Branch dated April 24, 2018, acknowledging her earlier correspondence, and requesting details of the injuries and anticipated special damages being claimed by the Plaintiffs. [ 52 ] This April 23, 2018 email correspondence from Nicole Branch to Darlene Lamey is attached as an exhibit to Ms. Lamey’s Affidavit and provides as follows: Subject: your clients: Paul Lauzon and Robin Lauzon, our claim # PHA516945 DOL 3/9/2018 Hello Darlene, I understand that you represent Paul Lauzon and Robin Lauzon in the above noted accident.

Please be advised that I am the adjuster assigned to this claim. I would appreciate preliminary details as to the nature of your clients injuries and any anticipated special damages. I will be happy to reimburse your firm for the reasonable fees insured (sic) in securing medical documentation. I look forward to hearing from you and to dealing with you on this matter. Kind regards, Nicole Nicole Branch, CIP Senior Claims Advisor [ 53 ] It appears that Ms.

Branch did receive a letter from Darlene Lamey with respect to her retention by Paul and Robin Lauzon in connection with the collision, because, as set out in Darlene Lamey’s Affidavit, on May 1, 2018, Nicole Branch sent the following email message to Darlene Lamey: Subject: RE: your clients: Paul Lauzon and Robin Lauzon, our claim # PHA516945 DOL 3/8/2018 Hello Darlene, I acknowledge receipt of you (sic) letter dated April 23, 2018. We do not have any statements from your client or any medical information. I would appreciate preliminary details so that I may update my file and set proper reserves.

I look forward to hearing from you. Kind regards, Nicole [ 54 ] In her Affidavit, Darlene Lamey says that she was advised by Paul Lauzon that Charles Magee was charged and convicted of impaired driving. [ 55 ] In his Affidavit, Larry Kelly – Litigation Specialist with Pembridge – states that the claims handlers at Pembridge who were at different times involved in these claims, Laura Dawe, Nicole Branch and Chantal Caron, each entered their claims notes into Pembridge’s claims system. Larry Kelly attaches these notes as an exhibit to his Affidavit.

[ 56 ] Larry Kelly states that the accident was reported to Pembridge on March 12, 2018 – three days after it occurred. Claims adjuster Laura Dawe corresponded with the local RCMP and on March 16, 2018, learned the Plaintiffs’ names and insurance information. She requested police reports. [ 57 ] The notes taken by Laura Dawe provide that she received a text from the Defendant, Charles Magee, indicating that he told her that on the day of the collision he consumed four drinks of vodka before driving to meet his girlfriend. Ms. Dawe’s notes record that Mr.

Magee told her that he had been in a motor vehicle collision and had been charged with driving while over the blood alcohol limit and causing bodily harm. [ 58 ] Laura Dawe’s claims notes provide that she spoke with Paul Lauzon on April 19, 2018. She recorded, “He felt his injuries were getting complicated with a concussion and thought he should have someone represent him.” Paul Lauzon told Laura Dawe that he had retained lawyer Darlene Lamey to represent him and Robin and provided Ms. Dawe with Ms.

Lamey’s email address and other contact information. [ 59 ] The claims notes indicate that the files were then transferred from Laura Dawe to Nicole Branch. A police report was received from the Registry of Motor Vehicles and sent to Nicole Branch. As of April 24, 2018, the adjuster notes, under the heading “Quantum” for Paul Lauzon and Robin Lauzon record, “No details”. [ 60 ] On April 24, 2018, Nicole Branch sent the following email message to Darlene Lamey: Hello Darlene: I understand that you represent Paul Lauzon and Robin Lauzon in the above noted accident.

Please be advised that I am the adjuster assigned to this claim. I would appreciate preliminary details as to the nature of your clients injuries and any anticipated special damages. I will be happy to reimburse your firm for the reasonable fees insured (sic) in securing medical documentation. I look forward to hearing from you and to dealing with you on this mater. [Emphasis added] [ 61 ] On May 17, 2018, Darlene Lamey sent an email to Nicole Branch providing a

summary of the health information she had received for Robin and Paul Lauzon: I have received some preliminary reports on Robin Lauzon & Mr. Paul Lauzon’s health status. Robin: (student) She has experienced constant pain in her mid-sternum. She has attended chiropractic treatments as prescribed to address this. She has to date a WAD 1 diagnosis, restricted range of motion, Muscular Chest and Sternum pain. Paul: (music therapy teacher/university music teacher and performance musician) Right handed. Paul has the following injuries: Diagnosed with concussion. Referred to physiotherapist concussion clinic.

Experiencing: light sensitivity, sound sensitivity, difficulty with visual patterns, eye strain, headaches, dizziness, light headedness, confusion, difficulty with decision making, slowed mental response, and delayed mental acuity and processing time, nausea, memory difficulties, concentration difficulties, inability to multi-task, organize, and maintain sustained thought, difficulty reading and visual with computer triggering headaches, nausea, dizziness. Mood extremes, changes, irritability, personality difference, crying.

Flash backs, intense worry, sadness lethargy, fatigue, lethargy, decreased appetite, insomnia, anxiety, referred to psychologist/counsellor Neck pain and restricted mobility Back pain and restricted mobility Injury to (left) knee, swelling and pain-uses cane since accident Wrist pain (right), Referred to chiropractic, and physiotherapy. Right handed musician and music therapist/professor-University professor – employed full time-receiving accommodation at Teaching job since accident. Difficulty with mental clarity. Unable to perform all duties of employment, marking, reading and teaching since accident.

Unable to perform. Had just completed a CD prior to accident – had booked performances pre-accident that have now been cancelled. Mr. Lauzon is 71 years old. He was a full functioning full time university professor, music therapist and performing musician prior to the accident. He has (sic) the sole earner for a young family. Yours Very Truly Darlene Lamey [ 62 ] There appears to be no communication between Nicole Branch and Darlene Lamey between May 18, 2018 and December 26,

2018. [ 63 ] On December 27, 2018, Nicole Branch sent an email message to Darlene Lamey asking her to “Kindly provide us with a copy of the

section B file for both Mr. Paul Lauzon and Ms. Robin Lauzon.” The Plaintiffs’ counsel says that Ms. Lamey has no record of receiving this email from Nicole Branch. [ 64 ] This Court has no reason to disbelieve the evidence of Nicole Branch that she sent the December 27, 2018 email to Ms. Lamey. The Court also accepts that for unknown reasons, this email did not come to Ms. Lamey’s attention. [ 65 ] The adjuster’s file notes do not record any response to Nicole Branch’s December 27, 2018 email to Ms. Lamey. [ 66 ] Ms.

Lamey’s Affidavit attaches a “Victim Impact Statement” dated April 9, 2019 in which Paul Lauzon states “how the motor vehicle accident, caused by Charles Magee on March 19, 2018 has seriously impacted me” and Robin. There is no evidence that Ms. Lamey sent this document to Nicole Branch. [ 67 ] On May 18, 2019, approximately four and one-half months after her unanswered December 27, 2018 email, Ms. Branch wrote again to Darlene Lamey by email. Ms. Branch requested a complete copy of the

Section B files, including amounts paid out “for both Mr. and Ms. Lauzon.” Ms. Branch further stated that “the last update provided on this matter was May 17, 2018.” Ms. Lamey did not respond to this email. [ 68 ] Darlene Lamey’s Affidavit provides that she left her law firm, Waterbury Newton, in September 2019 and moved to Atlantica Law Group. [ 69 ] Darlene Lamey states in her Affidavit that she was in regular contact with Paul Lauzon concerning his injuries and condition until the start of the COVID-19 pandemic, in or around March 2020. Ms. Lamey has not produced time records for these interactions.

Her Affidavit attaches as an exhibit her handwritten notes dated October 10, 2019, during a telephone call which she had with Paul Lauzon. These notes appear to record that she gave him the advice to continue to see his doctor and engage in treatment, if needed.

There is also reference in these notes to Paul advising that “Robin not engaged – may be fully recovered.” There is reference to Paul as having “no loss of income.” There is no evidence as to why Darlene Lamey did not communicate information to Pembrooke following this contact with Paul Lauzon. [ 70 ] Darlene Lamey’s Affidavit provides that, through inadvertence, she lost track of the limitation periods for the Lauzon claims. [ 71 ] Ms. Lamey’s evidence is that she continued to work on the files throughout 2021 with the assistance of her new firm’s articling clerk, Aimee Virick.

She states that she met with Paul Lauzon on February 19, 2021 to review his medical condition and prepare further third-party disclosure. Notes that Ms. Lamey attaches to her Affidavit provide that she asked Ms. Virick to update “medicals” during a meeting with her. There appears to be reference to “Disclosure to Insurer, update and arrange video meeting or in person if comfortable.” Ms. Lamey’s Affidavit does not provide an account of what these notes actually say. [ 72 ] Ms. Lamey’s Affidavit says that Ms.

Virick was in regular email contact with the Lauzons throughout April, May and August of 2021 “in order to obtain medical disclosure consents and updated medical information concerning their injuries.” [ 73 ] Ms. Branch’s claims notes indicate that on October 6, 2021 she emailed Ms. Lamey at Atlantica Law to ask whether a Notice of Action and Statement of Claim had been filed. On October 12, 2021 Ms. Branch noted that there had been no response from Ms.

Lamey. [ 74 ] Also on October 6, 2021, Nicole Branch called Waterbury Newton and left a voicemail with the main reception line, asking for a call back advising if anyone at the firm was representing Paul and Robin Lauzon. Ms. Branch also checked the Waterbury Newton website but did not see Ms. Lamey listed and sent email messages to two paralegals who were listed on the firm’s website (one of which was returned to her as undeliverable). Nicole Branch received a telephone call from Paul Walter, K.C., managing partner of Waterbury Newton on October 6, 2021. Mr. Walter told Ms. Branch that Ms.

Lamey had left the firm and joined Atlantica Law. He gave Ms. Branch Ms. Lamey’s contact information. [ 75 ] The next claims notes were made by Chantal Caron, Bodily Injury Claim Advisor. Ms. Caron’s notes indicate that she received a voicemail from lawyer Jeff Mitchell on March 7, 2022 regarding Paul and Robin Lauzon. As noted earlier in this decision, the pleadings in the proceedings were filed on March 7, 2022. Mr. Mitchell was retained by the Lauzons on March 6, 2022. [ 76 ] Ms.

Lamey’s Affidavit provides that she failed to diarize the limitation period for the Lauzon claims when she transferred firms: In September of 2019, I changed firms and moved to Atlantica Law Group in Windsor, Nova Scotia. I had little support staff assigned to me at this new firm and often had to look after my files by myself. I do not believe that the file for Paul Lauzon was properly opened or diarized with limitation periods at the Atlantica Law Group. In addition, the electronic file system, including limitation reminder system, was changed in February 2020.

Under the new system the limitation period did not come up for me to see nor did I get the reminders on the file that I got on other files. Unfortunately, through inadvertence, I then lost track of the limitation period for this file and was unaware of the limitation period expiring on March 9, 2020 without a Notice of Action being issued. [ 77 ] Turing now to the factor (

c) analysis on this evidence, the Plaintiffs’ counsel says that Pembridge was aware of the collision within three days after it occurred, communicated with the RCMP concerning the circumstances and was aware of the Plaintiffs’ claims within seven days of the collision. Counsel says that Pembridge had the opportunity to investigate the collision and obtain information concerning injuries, and in fact was advised of the injuries sustained by each Plaintiff on May 17, 2018. Counsel says that Pembridge’s adjuster, Nicole Branch, made a couple of attempts to contact Ms.

Lamey in 2018 and 2019, but then did nothing until October of 2021, after being contacted by the managing partner at Ms. Lamey’s former law firm.

[ 78 ] The Court notes that Ms. Lamey states in her Affidavit that she became aware of the missed limitation periods on or around February 28, 2022. When she so discovered she notified the Lauzons of the problem and arranged to have the Lauzon files transferred to Jeff Mitchell on February 23, 2022. The Court notes that the 23rd of February is five days before Ms.

Lauzon says she became aware of the missed limitation periods. [ 79 ] The Plaintiffs’ counsel submits that the passage of time has had little or no negative effect on the ability of the Defendant to defend the claims or the cogency of the evidence relevant to the claims. [ 80 ] In particular, Plaintiffs’ counsel says that the evidence as to the cause of the collision is straight forward, involving a loss of control and the Defendant crossing the center line of the roadway and colliding with the Lauzon vehicle in a head-on collision.

Counsel submits that there is no suggestion that crucial evidence, in respect to how the collision occurred, is no longer available. Counsel says that the Defendant’s insurer was immediately aware of the collision and had full opportunity to investigate the collision and take any steps it thought prudent to establish a defence, such as obtaining a reconstruction expert or interviewing any witnesses.

Counsel for the Plaintiffs says that the Defendant’s insurer had sufficient opportunity to take such statements and interview the Defendant as to possible defences but has presented no evidence on these motions to suggest loss of ability to defend or that the cogency of evidence has been impaired.

Counsel points out that there is no suggestion that witnesses are not available, that an important witness has died, or that evidence such as statements, photographs or medical records are no longer available. [ 81 ] The Plaintiffs say that the Defendant’s insurer could have requested specific medical evidence or requested an independent medical examination of either Plaintiff, and that it can still do so.

Further, Plaintiffs’ counsel argues that all the relevant medical evidence with respect to the injuries and resulting conditions of the Plaintiffs has been obtained and remains available, with the cogency of such evidence being unimpaired. [ 82 ] The Defendant’s counsel emphasizes that “the ability of the defendant to defend the claim” is new to the LAA , as opposed to factors found in the previous legislation. [ 83 ] The Defendant’s counsel notes that in the case of Robin Lauzon, that while Ms.

Lamey summarized her injuries in an email message to Nicole Branch on May 17, 2018, the Defendant was nevertheless prejudiced by the lack of medical information between then and now. However, this Court cannot accept that the Defendant suffered any prejudice in relation to factor 12(5)(

c) prior to December 7, 2019, when Robin turned 19 years of age. [ 84 ] Defence counsel properly notes that the Plaintiffs bear the burden of proving each s. 12(5) factor.

Counsel says that the Court must not presume prejudice on the part of the Plaintiffs, or lack thereof on the part of the Defendant. [ 85 ] In that regard, the Defendant’s counsel submits that the Plaintiffs are asking this Court to assume, without evidence, that the Defendant’s ability to defend the claims is unaffected by the delay. [ 86 ] This Court notes that in Barry , Bourgeois, J.A., after stating that it is “incumbent on a claimant to adduce evidence which addresses the factors contained in s. 12 (5) in order to inform the s. 12(3) assessment” added that “[S]imilarly in response, a defendant (or a proposed defendant) is well-advised to provide a sufficient foundation to provide a comprehensive consideration of the factors in s.12(5) in order to better inform the hardship assessment” (para. 78). [ 87 ] Defence counsel also points to the decision of Justice Campbell in Nixon v.

Chignecto-Central Regional School Board, where the Court stated, “This factor does not require that the passage of time make it impossible or impractical for the defendant to defend the claim. It addresses the extent to which that ability has been impaired” (para. 31). [ 88 ] The Defendant’s counsel says that the Kelly Affidavit describes the unsuccessful efforts of Pembridge to obtain the Plaintiffs’ medical records in a timely manner.

Counsel says that Pembridge “finally received copies of Robin’s medical records when her unsworn Affidavit Disclosing Documents was provided on July 28, 2022.” Counsel says that “Paul’s Affidavit Disclosing Documents has not yet been provided…although Mr.

Mitchell states that Paul’s records have been obtained, he does not say what records he secured or explained why they still have not been produced to the Defendant.” [ 89 ] Counsel for the Defendant points out that the Plaintiffs’ counsel suggests that Pembridge “could have requested specific medical evidence or requested an independent medical examination of either Plaintiff.” In response, counsel for the Defendant says that the evidence shows that Pembridge did in fact make “multiple request[s] for particulars of the Plaintiffs’ claims, which went wholly unanswered except for Ms.

Lamey’s May 17, 2018 email.” That email was Ms.

Lamey’s last communication with Pembridge. [ 90 ] Defence counsel also says that it is relevant that the Plaintiffs were represented by counsel, saying that until these Actions were commenced, Pembridge “had not even received general medical evidence that would have helped particularize a request for “specific medical evidence”, let alone arrange any independent medical examinations.” Counsel says that even if they had made a general request, “there can be no expectation it would have been answered since the requests that were made were ignored.” [ 91 ] This Court notes that as of the date that this motion was heard, the Defendant had not been provided with a copy of the Affidavit Disclosing Documents for Paul Lauzon.

Inexplicably, the Defendant had not been provided with any medical information as to his alleged injuries, apart from the information which Ms.

Lamey summarized in her email communication with Nicole Branch on May 17, 2018, and, now on this motion, the Affidavit of Paul Lauzon which provides certain details, from his perspective, as to his injuries and the impact of those injuries. [ 92 ] While counsel for the Plaintiffs says that Paul Lauzon’s medical information is available, the obvious question then, is “why has it not been provided” to the Defendant’s counsel? [ 93 ] The Court notes that Jeff Mitchell states in his Affidavit that on April 4, 2022 he requested the following for each Plaintiff: a. Updated prescription

summary from Lawtons Pharmacy Kentville;

b. Updated records from Acadia Sports Therapy; [Robin only] c. Updated records from Dr. Abraham (family doctor); d. Complete records from Valley Regional Hospital; e. Updated file from Nova Scotia MSI. [ 94 ] Mr. Mitchell says that all of these requests resulted in documents which were received by his office. Mr. Mitchell also states that on June 20, 2022 his office requested the Plaintiffs’ updated accident benefits files, but as of October 3, 2022 those files had not been received. [ 95 ] It appears that as of the date of this motion there has not been discovery examination of either Paul or Robin Lauzon.

Likely, that is because the Defendant has not received each of their Affidavits Disclosing Documents. Accordingly, the Defendant does not have the benefit of having the opportunity to explore through questioning under oath, the state of the Plaintiffs’ health before the collision, and the extent, treatment and progress of recovery of their injuries after the collision. [ 96 ] The evidence shows that Pembridge made requests of Ms. Lamey for particulars of Robin’s claim. Certain of these requests, however, were made before Robin reached the age of majority on December 7, 2019.

While it may have been helpful for Pembrooke to have details of Robin’s injuries before that date, it cannot be found to be prejudiced in law by not receiving this information before the limitations clock began to run. [ 97 ] As noted above, Ms. Lamey provided Pembridge’s adjuster with a

summary of Robin’s injuries and health status on May 17, 2018, albeit without supporting medical documentation. Pembridge received copies of Robin’s medical records when her Affidavit Disclosing Documents (unsworn) was provided on July 28, 2022. This was approximately eight months after the limitation period expired, on December 7, 2021. [ 98 ] It is not, as contended by the Defendant, a shifting of the burden of proof to say that a Defendant in such circumstances must articulate what prejudice it says it has suffered due to delay in obtaining medical information.

The Defendant’s counsel says that the “information gap arising from this lack of diligence prevents the Defendant from testing the Plaintiffs’ credibility and the merits of their case against statements and documentation that could have been provided closer in time to the accident.” [ 99 ] The Defendant may have lost the ability to test the credibility of possible statements and documentation early on. To that extent, it has suffered some prejudice. However, it has not lost the opportunity to obtain complete medical documentation concerning the claims.

It may discover the Plaintiffs and request information which it deems relevant to its assessment of their claims for general and specific damages. It may still test their credibility if that documentation reveals inconsistencies in what was said closer in time to the collision than at later points in time.

Pembridge has not lost this opportunity; it has been delayed but delay alone does not establish prejudice on these facts. [ 100 ] There is no evidence before the Court that due to delay the Defendant was deprived of the opportunity to investigate the cause of the collision and whether its insured was at fault for it. It knew of the collision shortly after it occurred.

It knew as well, through its insured, that he was likely at fault for the collision. [ 101 ] This Court accepts that the length of the delay impacted the Defendant insurer’s ability to defend the damages aspect of the claims closer in time to the collision. However, the fact remains that the medical evidence exists and can now be tested by the Defendant insurer. [ 102 ] The Court’s analysis of factor (c), on balance, favours the Plaintiffs.

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. [ 103 ] The Plaintiffs’ counsel says in this case, there were no requests made by the Claimant’s solicitor to the Defendant’s insurer and no conduct that is relevant for consideration. [ 104 ] The Defendant’s counsel points to the early contact between Pembridge and Ms.

Lamey after the accident, which shows that Pembridge was trying to figure out what was happening with the claims in circumstances where the Defendant bears no responsibility for the delay. [ 105 ] This Court agrees. The Defendant bears no responsibility for the delay in the circumstances. [ 106 ] On balance, factor (

d) weighs in favour of the Defendant. Factor (e): Incapacity of the claimant. [ 107 ] There is no evidence that either Plaintiff was legally incapacitated in such a manner so as to engage this factor. The Court’s analysis of Robin’s claim in terms of her status as minor at the time of the collision need not be repeated. Factor (f): The extent to which the claimant acted promptly and reasonably once the claimant knew a claim may arise against the defendant. [ 108 ] The Plaintiffs’ counsel says that following the collision, the Plaintiffs immediately retained Ms.

Lamey as legal counsel for purposes of pursuing a claim for personal injury damages, with a Contingency Fee Agreement being executed on March 21, 2018, within a couple of weeks of the collision. The Plaintiffs reasonably relied on Ms. Lamey to diligently pursue those claims. The Plaintiffs says

that they acted promptly and reasonably in pursuing their claims. [ 109 ] The Defendant’s counsel says that factor (

f) strongly favours the Defendant’s position. It acknowledges that Paul Lauzon retained Ms.

Lamey soon after the accident, on his and his daughter Robin’s behalf, but submits that neither the Plaintiffs nor their counsel acted promptly or reasonably to advance their claims. [ 110 ] In that regard, Defence counsel points out that prior to the within motions being filed, neither Plaintiff produced any documents to support their claims, saying that “despite several requests and prompts by Pembridge, nothing was done to advance the claims.” [ 111 ] Defence counsel says that the evidence reveals only a handful of communications between either Paul or Robin Lauzon and their lawyer in the intervening four years, saying that “Paul spoke with his lawyer once in 2019 and once in 2021 and Robin exchanged some emails with her lawyer’s office in 2021.” [ 112 ] The Defendant argues that while the Plaintiffs retained counsel shortly after the accident, neither they nor their lawyer acted promptly or reasonably from that point forward, and nor have they provided any reason for failing to do so. [ 113 ] The Court finds that the Plaintiffs acted promptly and reasonably in advancing their claims.

Paul Lauzon quickly retained a lawyer and sought advice for himself and his daughter. It was reasonable for him to rely on legal counsel to advance his and his daughter’s claims and to follow her advice once she was retained. Paul Lauzon clearly had interactions with Darlene Lamey prior to May 17, 2018 when Ms. Lamey sent Ms. Branch a detailed

summary of Paul and Robin’s health status. Ms. Lamey’s evidence was that she was in regular contact with Paul concerning his injuries and condition until March 2020 (the onset of COVID-19). Ms. Lamey’s Affidavit provides that she continued to work on the Lauzon claims throughout 2021 and met with Paul on February 19, 2021 to review his medical condition and prepare third-party disclosure. [ 114 ] The failure in this case to commence actions on time was that of Darlene Lamey and not Paul or Robin Lauzon.

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. [ 115 ] The Plaintiffs’ counsel says that the Affidavits of Paul Lauzon and Robin Lauzon, as well as the Affidavit of their former legal counsel, Ms. Lamey, “establish the multiple steps by the Plaintiffs to obtain medical advice and treatment recommendations.” Counsel says that it was reasonable for them to have relied on legal counsel for these purposes once retained.

Plaintiffs’ counsel also points to the Affidavit of Jeff Mitchell, the Plaintiffs’ current legal counsel, wherein he states that the medical evidence is available and that updated medical evidence has been obtained. [ 116 ] The Defendant’s counsel argues that as in Barry at para. 88 , “the record is scant regarding the nature and extent of medical advice received” by the Plaintiffs. [ 117 ] This Court finds that the record is sufficient to establish the following, from the Affidavit of Paul Lauzon, and from the standpoint of his perspective: • Following the accident, his right wrist was splinted by Emergency Health Services and he travelled in an ambulance to the Valley Regional Hospital. • The attending physician observed a large hematoma on the underside of his right wrist. • He was diagnosed with a soft tissue injury to his right wrist and a left knee injury. • He saw his family doctor, Dr.

Grant, on March 22, 2018. He advised Dr. Grant that he was experiencing flashbacks to the accident, was not sleeping and had very low energy. He was having headaches and reported that even half an hour in front of a computer increased his headaches significantly. He was also having neck pain. Dr. Grant suggested that he see a chiropractor. Dr. Grant also diagnosed him with a concussion. • He went to CBI Physiotherapy for an initial consultation on April 2, 2018. He was experiencing daily nausea, recurrent headaches, interrupted sleep, dizziness and light headedness.

He was also experiencing stress at work, nervousness driving and trouble with attention and memory. He was having word-finding difficulties. • He received chiropractic treatment for his right wrist and left knee and was discharged on May 5, 2018. His physical injuries were feeling somewhat better at that time, but his concussion symptoms remained. [ 118 ] In terms of Robin Lauzon, her Affidavit provides the following in terms of interactions with health care providers: • Following the accident, she went to the Valley Regional Hospital complaining of chest wall pain. • She saw her family doctor, Dr.

Grant, on March 18, 2018. Dr. Grant diagnosed her with whiplash and noted that she had anxiety related to driving. Dr. Grant recommended psychotherapy. • She began experiencing pain in her shoulders. She was referred for chiropractic treatment with Dr. LaPierre for constant sternum discomfort. She attended for therapy with Dr. LaPierre for 20 sessions until July 25, 2018. • In March 2019 Dr.

Grant referred her for osteopathy for her shoulder and chest pain. • She has been, according to her, diagnosed with whiplash, collarbone, and shoulder injuries. [ 119 ] This Court finds that Paul Lauzon acted promptly and reasonably in addressing his claim through his retention of legal counsel,

for himself personally, and for his daughter Robin as her Litigation Guardian, soon after the collision. [ 120 ] Both Robin and Paul Lauzon each acted reasonably and promptly in obtaining medical advice and care following the collision. Factor (h): The strength of the claimant’s case. [ 121 ] The Plaintiffs’ counsel refers again to the decision in MacDonald v. Loblaws Inc ., and says that the test is whether sufficient evidence is presented by the Plaintiffs to warrant equitable relief: 5 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. … 46 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 has 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 … [ 122 ] The Plaintiffs’ counsel says that each Plaintiff has a strong case in terms of establishing both liability and entitlement to damages. [ 123 ] In terms of the Plaintiffs’ claims for damages, counsel says that the Affidavit of Robin Lauzon establishes she sustained multiple injuries, including psychological injury requiring psychotherapy and ongoing chest and shoulder chronic pain requiring ongoing medical treatment.

Counsel says that Robin’s injuries have impacted her ability to study in university and to work.

Counsel submits that the nature of Robin’s psychological injuries and chronic pain establishes she has a strong and legitimate and significant claim for damages. [ 124 ] The Plaintiffs’ counsel says that the Affidavit of Paul Lauzon establishes that he suffered multiple injuries in the collision, including a head injury with concussion, headaches, nausea, dizziness, problems with attention and concentration, psychological injuries causing nightmares and flashbacks of the collision, as well as stress and nervousness driving. [ 125 ] The Plaintiffs’ counsel submits that Paul Lauzon suffered, and continues to suffer, ongoing symptoms related to his head injury.

Counsel submits that the impact of Paul’s injuries has impacted his ability to work and perform normal daily activities.

As such, Plaintiffs’ counsel says that Paul Lauzon has established that he has a strong and significant claim for damages. [ 126 ] In short, Plaintiffs’ counsel submits that each Plaintiff has presented sufficient evidence to establish that their claims are not frivolous and that each has presented arguable issues which should be determined at a trial on the merits. [ 127 ] This Court concludes that each Plaintiff has adduced sufficient evidence to establish a claim which is not frivolous, and which deserves to be resolved on the merits. [ 128 ] Factor (

h) favours disallowing the Defendant’s limitations defences. Factor (i): Any alternative remedy or compensation available to the claimant. [ 129 ] The Plaintiffs’ counsel says that in the present case, if the limitation defence is not disallowed, the Plaintiffs’ claims are extinguished and there is no alternate remedy or compensation against the Defendant available. [ 130 ] The Plaintiffs’ counsel notes that case law indicates that it is speculative to weigh potential claims against professional advisors: see Smith v.

Lord , 2013 NSCA 34 , at para. 52 : 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 a little weight in his deliberations. [ 131 ] The Plaintiffs’ counsel says that the Plaintiffs do not have an alternative remedy or compensation available through a potential professional negligence action against Ms. Lamey.

Counsel notes that such an action would be complex and would likely involve allegations of contributory negligence and other issues. Counsel suggests that it is speculative to suggest this would be successful in offering the Plaintiffs any alternate remedy or compensation. [ 132 ] The Defendant rightly notes that factor (

i) is a new and mandatory consideration for this Court to consider and weigh. Counsel suggests that case law pre-dating the 2015 amendments to the LAA must therefore be relied upon with caution. Moreover, defence counsel says that it is apparent that the Plaintiffs have an “alternative remedy or compensation” through LIANS (the liability insurer for Nova Scotia lawyers), since LIANS’ counsel has brought the within motions. [ 133 ] The LAA directs this Court to consider factor (i). This Court does so. The Plaintiffs have a potential claim against their former lawyer in negligence. The Court gives some weight to this factor. [ 134 ] Factor (

i) weighs slightly in favour of disallowing the Plaintiffs’ claims. Balancing of Hardships [ 135 ] 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 continue with their action.

[ 136 ] In the case of Robin Lauzon, a consideration of all relevant factors supports disallowing the Defendant’s limitation defence. It is true that, as of the date of the within motions, over four years had passed since the collision. It is true that Pembridge had made unsuccessful efforts to obtain Robin Lauzon’s medical records in a timely manner. However, some of these efforts were in the form of emails to Darlene Lamey on December 27, 2018 and May 28, 2019 – both of which pre-dated Robin’s date of majority of December 7, 2019.

An Affidavit Disclosing Documents for Robin Lauzon was provided to Pembrooke on July 28, 2022. This Affidavit disclosed medical records. This was approximately eight months after the limitation period had expired, on December 7, 2021. [ 137 ] On balance, the hardship assessment favours Robin Lauzon on these facts. [ 138 ] In the case of Paul Lauzon, the situation is more complicated. His Action was started only two days before his claim would have been absolutely barred. As of the date of the hearing of these motions, the Plaintiffs had not provided the Defendant with an Affidavit Disclosing Documents for Paul.

His present counsel has sworn an Affidavit saying that his medical information has been gathered and is available. Why it has not (as of the date of hearing these motions) been provided to the Defendant’s counsel, is unknown to this Court. However, the fact remains that it is available. Paul Lauzon can still be discovered and further relevant material can be requested by the Defendant. [ 139 ] The Defendant does not suggest that there are issues arising from its ability to defend the liability issue arising from the collision.

It knew about the collision almost as soon as it happened, and it dealt with its insured and the police early on. It could have developed whatever evidence it wished concerning the cause of the accident soon after it happened. It has not shown that it was impeded or prejudiced in any way in that sense by the delay in commencing either Action. [ 140 ] There is no question that Pembridge should have and would have benefited in its defence of Paul Lauzon’s claim for damages by having earlier disclosure of his medical information.

I accept that Pembridge was prejudiced somewhat by the delay in receiving timely medical reports. However, that evidence has not been lost, but rather its receipt delayed. This is not a situation where medical evidence has been destroyed or for some other reason is not available.

Pembrooke can still test Paul Lauzon’s credibility based on the medical documentation, if it wishes to do so. [ 141 ] On balance, taking into account all of the circumstances, and giving consideration to each s. 12(5) factor, this Court determines that the hardship assessment favours Paul Lauzon. [ 142 ] The Defendant’s limitation defences are disallowed, pursuant to s. 12(3) of the LAA . Issue 2: If the answer to the first question is “no”, in the case of either claim, should

summary judgment be granted and the Action dismissed? [ 143 ] In light of the Court’s decisions on Issue 1, the Defendant’s motions for

summary judgment are dismissed. Conclusion [ 144 ] The Defendant’s limitation defences in each Action are disallowed. The Defendant’s motions for

summary judgment are accordingly dismissed. [ 145 ] The Plaintiffs are entitled to costs. If counsel cannot agree on costs, the Court will receive written submissions within 20 days of this decision. Smith, J.