Halifax Regional Municipality v Tirrell Shane Carvery and Andrea MacNevin, 2023 NSCA 79
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By: Krista Nasartschuk (Articled Clerk)
The Nova Scotia Court of Appeal has strengthened the test for disallowance of a limitations defence.
In April 2017, Plaintiff Carvery suffered personal injuries while exiting a Metro Transit bus in Halifax, Nova Scotia. The applicable limitation period for bringing his claim against the Halifax Regional Municipality [hereinafter, “HRM”] was one (1) year. Plaintiff Carvery’s counsel, Solicitor MacNevin, did not file the Plaintiff’s action within the specified time period. Plaintiff Carvey eventually retained new counsel and pursued his action against Defendant HRM. Defendant HRM pleaded a limitation defence and argued that Plaintiff Carvey’s claim was statute-barred.
Plaintiff Carvery subsequently amended his pleadings to pursue an action in negligence and breach of contract against Solicitor MacNevin. Defendant MacNevin then brought a motion seeking to have Defendant HRM’s limitations defence struck. At first instance, Justice Smith of the Nova Scotia Supreme Court granted Defendant MacNevin’s motion. Defendant HRM subsequently appealed to the Nova Scotia Court of Appeal.
Section 12 of the Nova Scotia Limitations of Actions Act concerns the striking out of limitations defences. Section 12(5) of the Act lays out what the Court is required to consider. At paragraph 28, the Court affirmed the actions and diligence of a plaintiff are key for courts in deciding whether to exercise discretion to disallow a limitations defence. Justice Bourgeois went on to write that:
“On a motion to set aside a limitation defence, a significant focus will be on why the plaintiff has missed the limitation period. There may be circumstances which demonstrate the plaintiff was diligent and has a cogent reason for being tardy. In such instances, the equities will weigh in favour of a plaintiff being permitted to continue with their claim. On the other hand, if the evidence demonstrates the plaintiff was lackadaisical or otherwise acted in a questionable manner in advancing their claim, this will weigh against granting relief.”
The Court then went on to apply the factors enumerated in section 12(5) of the Act and found that Defendant HRM was still entitled to rely on its limitations defence.