Anderson v. Co-Operative Fire & Casualty Co., (1983) 58 N.S.R.(2d) 163 (TD)

• Judge: Hallett, J.
• Court: Supreme Court of Nova Scotia (Canada)
• Case Date: May 25, 1983
• Jurisdiction: Nova Scotia
• Citations: (1983), 58 N.S.R.(2d) 163 (TD);1997 CanLII 11498 (NS SC);1983 CanLII 2942 (NS SC);149 DLR (3d) 103;1 CCLT 162;123 APR 163;34 CPC 310;58 NSR (2d) 163

Anderson v. Co-op Fire (1983), 58 N.S.R.(2d) 163 (TD);

    123 A.P.R. 163

MLB headnote and full text

Anderson and Anderson v. Co-Operative Fire & Casualty Company

(S.H. 41128)

Indexed As: Anderson v. Co-Operative Fire & Casualty Co.

Nova Scotia Supreme Court

Trial Division

Hallett, J.

June 17, 1983.

Summary:

An insured brought an action against his insurer under a fire insurance policy for payment of a claim after the expiration of the one year limitation period. The insured's solicitor applied under s. 2A of the Statute of Limitations for an order disallowing the insurer's defence based on the limitation period. The Nova Scotia Supreme Court, Trial Division, allowed the application.

Limitation of Actions - Topic 9426

Bars - Disallowance of defence - Considerations - Prejudice to parties - An insured's claim under a fire insurance policy was rejected by the insurer - The insured was charged with arson and acquitted - The insured brought an action to enforce the claim against the insurer after the limitation period expired - The insured's solicitor applied for an order disallowing the insurer's defence that the limitation period expired - The Nova Scotia Supreme Court, Trial Division, allowed the application, holding that it was equitable to disallow the defence where the degree of prejudice to the insured was far greater than the prejudice to the insurer - See paragraphs 14 to 24.

Practice - Topic 682

Parties - Intervenors - Re interest in subject matter - An insured brought an action against his insurer under a fire insurance policy after the limitation period expired - The insured's solicitor neglected to bring the action in time - The solicitor applied for an order disallowing the insured's defence based on the expiration of the limitation period and sought leave to intervene - The Nova Scotia Supreme Court, Trial Division, granted leave, holding that a solicitor who was potentially liable if an action succeeded was entitled to intervene because he had an "interest in the subject matter" - See paragraphs 5 to 13.

Cases Noticed:

Halifax Flying Club v. Maritime Builders Ltd. (1973), 5 N.S.R.(2d) 364, folld. [para. 7].

Statutes Noticed:

Civil Procedure Rules (N.S.), rule 8.01 [para. 6].

Statute of Limitations, R.S.N.S. 1967, c. 168, sect. 2A [para. 14].

Counsel:

H.E. Wrathall, Q.C., for the applicant, Ben Y.S. Prossin;

Clarence A. Beckett, for the defendant.

This case was heard on May 25, 1983, at Halifax, Nova Scotia, in chambers before HALLETT, J., of the Nova Scotia Supreme Court, Trial Division, who delivered the following judgment on June 17, 1983.