How much time do I have to file my injury claim in Nova Scotia? Dyack v. Lincoln

by John McKiggan

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 a claim. This type of legislation generally referred to as a statute of limitations although it goes by a different name in various provinces. In Nova Scotia it is called the Limitation of Actions Act.

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 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 claims that would not have been barred under the old act could run out of time under the new Limitation of Actions Act.

The legislation provided some direction on how to deal with these types of conflicts. However, until now, there has not been any judicial direction on how to address these types of issues.

Dyack v. Lincoln

Dyack deals with a medical malpractice claim. In 2012 the plaintiff had orthopedic surgery on his shoulder. At that time the time limit to file a medical malpractice claim was 2 years. 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 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 Chipman J’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. In the 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.

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.

Transition provisions

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.

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