Court of Appeal

Judge:

The Honourable Justice Cindy A. Bourgeois

Appeal Heard:

June 13, 2018

Subject:

Addition of party – Rules 35.08 and 83.04; Disallowance of limitation defence – s. 12 of Limitation of Actions Act, S.N.S. 2014, c. 35

Summary:

Ms. Barry alleges she was injured on a Halifax transit bus.  She says the bus driver unexpectedly slammed on the brakes due to being cut off by an unidentified motorist, causing her to be flung from her seat.

In 2015, Ms. Barry brought an action against the Halifax Regional Municipality (HRM).  In November 2016, Ms. Barry brought a motion seeking to add HRM’s transit insurer, Royal & Sun Alliance Insurance Company of Canada (RSA) as a defendant.

The motions judge concluded that Rule 35.08 precluded the addition of a party if a limitation period was expired.  She further concluded that she was unable to consider disallowing RSA’s limitation defence under s. 12 of the Limitation of Actions Act, S.N.S. 2014, c. 35.  The motion was dismissed.

Ms. Barry appeals.  RSA cross-appeals in relation to the motions judge’s interpretation of s. 12 of the Limitation of Actions Act.

Issues:

(1)         Did the motions judge err in conducting a limitation   analysis, as opposed to leaving that for the trial judge?

(2)         Did the motions judge err in her discoverability analysis?

(3)   Did the motions judge err in her interpretation of s. 12(1)    of the Act? and

(4)   In provisionally disallowing RSA’s limitation defence,        did the motions judge err in her application of s. 12(3)        and (5) of the Act?

Result:

The motions judge did not err in conducting a limitation analysis.  Rule 35.08 prohibits the addition of a party if a limitation period has expired, therefore she was required to consider it.

The motions judge did not err in her discoverability analysis, in particular, her conclusion that HRM had no obligation to advise Ms. Barry of the existence of Section D coverage.

The motions judge did not err in her interpretation of s. 12(1) of the Limitation of Actions Act.  Her determination that the limitation period proscribed by the Standard Automobile Policy was not established “by enactment” was incorrect.  The appeal was allowed on this ground.

On the cross-appeal, the motions judge failed to consider all of the factors contained in s. 12(5) of the Limitation of Actions Act.  The cross-appeal was allowed.

Notwithstanding the appeal being allowed in part and the cross-appeal allowed, the motions judge’s conclusion remained intact.  RSA was not joined as a defendant.