How much time do I have to file my injury claim in Nova Scotia?
What is a statute of limitations?
Every province in Canada has a law (statute) that sets time limits for how long a plaintiff has to file an injury claim with appropriate insurance companies and in court. This type of legislation is generally referred to as a statute of limitations, although it goes by a different name in various Canadian provinces. In Nova Scotia it is called the Limitation of Actions Act, and it’s important for everyone to understand how this plays a factor within every injury case and insurance claim
In September of 2015, the legislature significantly changed Nova Scotia’s Limitation of Actions Act. The changes significantly reduced the amount of time that plaintiffs have to file various injury claims. You can read more about it here.
The changes to the statute of limitations, in particular the shortened limitation periods, raised the potential that injury claims that wouldn’t have been barred under the litigation process standards within the old act to potentially run out of time under the new Limitation of Actions Act.
The 2015 legislation provided some direction on how to deal with these types of conflicts that could come up with your claim; however, there has not been any judicial direction on how to address these types of issues until recently.
If you or a loved one was involved in a car accident (or any motor vehicle accident), medical malpractice situation, workers’ compensation claim, or any other type of injury case, feel free to contact us for a free consultation. When we get a better understanding of the limitation period pertaining to your personal injury claim and insurance policy, we’ll be able to initiate the necessary steps towards a successful litigation process with insurance adjusters so your medical treatment and other damages are properly accounted for.
Dyack v. Lincoln
Dyack deals with a medical malpractice claim that ran into problems with its limitation period. In 2012 the plaintiff had orthopedic surgery on his shoulder, and back then the time limit to file a medical malpractice claim was 2 years after the date of the accident. So in 2014 the plaintiff sued his orthopedic surgeon claiming that the surgeon failed to obtain informed consent by not properly advising him of all the risks of the procedure.
In 2016, the plaintiff got a medical report from an orthopedic surgeon that suggested the defendant had not only failed to obtain informed consent, but had also failed to meet the standard of care in performing the surgery. The plaintiff made a motion to amend his medical malpractice claim to add an allegation of negligence that the defendant had breached the standard of care.
The defendant opposed the motion to amend the pleadings. The defendant surgeon argued that the 2-year limitation period for filing a medical malpractice claim had already expired, so the plaintiff’s claim for negligence was statute-barred.
Justice J. Chipman reviewed the facts and the transition provisions of the Limitation of Actions Act and allowed the motion to amend the pleadings.
Is a new cause of action pleaded?
According to Justice Chipman’s analysis of the Limitation of Actions Act, the first step was to determine whether the proposed amendment pleaded a new cause of action. If the proposed amendments did not include new allegations the motion could have been granted without issue.
Justice Chipman determined that the amended pleadings did include a new cause of action:
“.. there is nothing in the original pleading that would have put Dr. Lincoln on notice that his actions before, during or after the surgery – other than his alleged failure to obtain and inform consent – will be challenged by the plaintiff. Under even the most liberal approach, it cannot be said that these amendments merely plead and alternative theory of liability based on the same factual matrix. As a result, I am of the view that these amendments add to the factual matrix and advance new claims based on the additional facts.”
Because the proposed claimed negligence was a new allegation, Justice Chipman had to determine whether the limitation period for that claim had run out or not.
Under the previous Limitation of Actions Act, the time limit for filing a claim alleging negligence in a medical malpractice matter was two (2) years after the date of the accident.
Under the “transition provisions” of section 23 of the new Limitation of Actions Act the court had to determine whether a “proceeding” had been started before the effective date of the new act (September 1, 2015). Since the plaintiff had filed his action in 2014 the limitation periods under the old Limitation of Actions Act applied.
Under section 23 (3) of the new Limitation of Actions Act states:
“where a claim was discovered before the effective date, the claim may not be brought after the earlier of:
- Two (2) years from the effective date; and
- The date on which the former limitation period expired or would have expired.
Justice Chipman determined that the two (2) year limitation period for medical malpractice claims under the old Limitation of Actions Act had already expired.
Discretion to extend limitation period
However, the new limitation act also contains a “saving provision” that allows the court jurisdiction to extend time limits for up to a further two (2) years if there has been little to no prejudice to the defendant.
Justice Chipman referred to the decision of Cromwell J. A. decision of the Nova Scotia Court of Appeal in Butler v. Southam Inc. which contains a discussion of when the court should exercise its discretion to extend time limits:
“…in assessing the prejudice to the defendant it is important to focus on prejudice attributable to delay after the expiry of the limitation period.”
Justice Chipman determined that it was appropriate for him to extend the expired time limit. Chipman J. stated, at paragraph 44:
“In my view, having regard to the authorities, it is appropriate for the court to exercise its discretion under section 3 (2) to disallow the limitations defence. Since the informed consent action against him was filed, Dr. Lincoln has known his treatment of Dr. Dyack has been under legal scrutiny. There has been no affidavit filed stating that evidence has been lost or that Dr. Lincoln’s ability to fully defend himself has been otherwise compromised. While I appreciate the counsel for Dr. Dyack could have acted more diligently to determine whether other claims were available against Dr. Lincoln, this does not end the matter. Indeed, it is my determination that when the degrees of respective prejudice are weighed, Dr. Dyack will suffer far greater prejudice if Dr. Lincoln is permitted to rely on the limitation period then Dr. Lincoln will suffer if the limitation defence is disallowed.”
While a close examination of the applicable limitation periods should be one of the first things a personal injury lawyer undertakes when reviewing a file, the provisions of the new Limitation of Actions Act may provide some limited recourse for plaintiffs that have missed a limitation period if they can establish a little or no prejudice to the defendant.
Reach Out to a Halifax Personal Injury Lawyer for a Free Consultation to Support your Personal Injury Claim
Understanding the statutes of limitations and overall time limits associated with any personal injury claim is always difficult without an experienced legal team supporting your claim.
Contact our team of personal injury lawyers for a free consultation via our online contact information, and we’ll help you in better determining what your best legal options are.