The Nova Scotia Bar is anticipating proclamation of amendments to the Limitation of Actions Act, contained in Bill 64, although a date has not been announced and there are currently some further amendments to the final wording under contemplation.
The main reform will be the implementation a basic two-year limitation period from the discovery of the cause of action with a 15-year ultimate cutoff from the time the incident occurred (with some exceptions, e.g. sexual abuse, aboriginal equitable claims, etc.)
This will bring Nova Scotia’s legislation into line with the recent trend in Canada toward a simplified system, rather than the present state of affairs, which is widely viewed as overly complicated.
However, the Nova Scotia legislation will create a “safeguard” or “loophole” for personal injury cases. This was not originally contemplated by the drafters, but after consultation, the law amendments committee introduced such a provision at Section 12:
12 (1) In this Section, “limitation period” means the limitation period established by
(a) clause 8(1)(a); or
(b) any enactment other than this Act.
(2) This Section applies only to claims brought to recover damages in respect of personal injuries.
(3) Where a claim is brought without regard to the limitation period applicable to the claim, and an order has not been made under subsection (4), the court in which the claim is brought, upon application, may disallow a defence based on the limitation period and allow the claim to proceed if it appears to the court to be just having regard to the degree to which
(a) the limitation period creates a hardship to the claimant or any person
whom the claimant represents; and
(b) any decision of the court under this Section would create a hardship to the defendant or any person whom the defendant represents, or any other person.
(4) Where a limitation period has expired, a person who wishes to invoke the limitation period, upon giving at least 30 days’ notice to any person who may have a claim, may apply to the court for an order terminating the right of the person to whom such notice was given from commencing the claim and the court may issue such order or may authorize the commencement of the claim only if it is commenced on or before a day determined by the court.
(5) In making a determination under subsection (3), the court shall have regard to all the circumstances of the case and, in particular, to
(a) the length of and the reasons for the delay on the part of the claimant;
(b) any information or notice given by the defendant to the claimant respecting the limitation period;
© 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.
The result would seem to fall much closer to the “soft” limitation period approach currently practiced in the province. However, it is important to underline that the judicial discretion that is built into subsection (5) only applies to personal injury claims, and only to those which are not late by more than two years.
For other areas of insurance practice, the new limitation periods will be eagerly embraced by insurers for professionals practicing in areas where delayed discovery of causes of action are endemic, such as surgeons, engineers, and architects.
In spite of the trend toward reform that has recently been felt, insurers with claims in Atlantic Canada will still need to be aware of the differences in legislation between the provinces.