Andison v. Katz, (2012) 288 Man.R.(2d) 53 (CA)

• Judge: Scott, C.J.M., Chartier and Beard, JJ.A.
• Court: Court of Appeal (Manitoba)
• Case Date: October 12, 2012
• Jurisdiction: Manitoba
• Citations: (2012), 288 Man.R.(2d) 53 (CA);2012 MBCA 107

Andison v. Katz (2012), 288 Man.R.(2d) 53 (CA);

      564 W.A.C. 53

MLB headnote and full text

Temp. Cite: [2012] Man.R.(2d) TBEd. NO.022

Richard Andison (applicant/appellant) v. Fay-Lynn Katz (respondent/respondent)

(AI 12-30-07776; 2012 MBCA 107)

Indexed As: Andison v. Katz

Manitoba Court of Appeal

Scott, C.J.M., Chartier and Beard, JJ.A.

November 13, 2012.

Summary:

Andison sought an order pursuant to s. 14(1) of Manitoba's Limitation of Actions Act, for leave to commence an action against Katz for professional negligence in relation to a prenuptial agreement, signed on April 21, 1997. The ground for the application was that no more than 12 months had elapsed between the date on which Andison first knew, or ought to have known, of all material facts upon which the proposed action was based (December 3, 2008), and the date of the application (November 24, 2009).

The Manitoba Court of Queen's Bench, in a decision reported at 276 Man.R.(2d) 207, dismissed the application. Andison appealed, and made a request to raise a new position on appeal.

The Manitoba Court of Appeal dismissed Andison's appeal and his request.

Limitation of Actions - Topic 9612

Enlargement of time period - Application for - When available - An application judge dismissed an application under s. 14(1) of Manitoba's Limitation of Actions Act, for an extension of time to begin an action after the expiration of the limitation period in the Act - A ground of appeal was that the application judge committed an error of law in his interpretation of Part II of the Act - The Manitoba Court of Appeal stated that "[t]o understand what constitutes 'material facts of a decisive character' in relation to an action, as those words are used in Part II of the Act, it is helpful to understand the elements of the cause of action - here, negligent provision of services." - After reviewing the jurisprudence governing the issue, the court stated that "it is clear that the damage component of the cause of action is not to be equated with the plaintiff's ultimate financial loss and also that the damage occurs when the would-be plaintiff acts on the negligent advice, rather than when the actual financial loss occurs." - See paragraphs 24 to 27.

Limitation of Actions - Topic 9612

Enlargement of time period - Application for - When available - The provisions in Manitoba's Limitation of Actions Act to extend the limitation period to begin an action that were relevant in this case were ss. 14(1) and 20(3) - The Manitoba Court of Appeal stated that "material facts of a decisive character do not require certainty or near certainty regarding either the prospect of success or of the amount of the damages that would flow in the event that the cause of action is ultimately proved. All that is required is that the would-be plaintiff knew or ought to have know of facts that indicate a 'reasonable prospect of [the action] succeeding' and that the action would result in damages 'sufficient to justify the bringing of the action.'" - See paragraphs 32 and 33.

Limitation of Actions - Topic 9612

Enlargement of time period - Application for - When available - On November 24, 2009, Andison applied pursuant to s. 14(1) of Manitoba's Limitation of Actions Act, for leave to commence an action against Katz for professional negligence in relation to a prenuptial agreement, signed on April 21, 1997 (the date the cause of action arose) - The determinative question was the date on which Andison first knew, or ought to have known, of all "material facts of a decisive character" upon which his action was based - Andison had commenced divorce proceedings in 2004 - On October 26, 2005, Andison, through his lawyer, put Katz's firm on notice of a potential claim for negligence regarding the effect of the prenuptial agreement - The wife's amended Answer, dated August 16, 2007, placed in issue the interpretation of the agreement - On December 3, 2008, a motion judge dismissed Andison's motion to allow parol evidence - A few days later, a settlement was negotiated - Andison contended that until the settlement was concluded, he could not have known the extent of his damages - The application judge dismissed the application - Knowing the precise amount of damages was not a material fact of a decisive character - As of August 16, 2007, Andison had already incurred damages (legal fees), and thus, as of that date, he first knew of all "material facts of a decisive character" - The application was thus filed well beyond the 12-month period in s. 14(1) - The Manitoba Court of Appeal dismissed Andison's appeal - While the court would have found that Andison had the requisite knowledge at October 26, 2005, the application judge was correct in his finding that Andison did not file his application within the 12-month time frame required by s. 14(1) - See paragraphs 30 to 41.

Limitation of Actions - Topic 9614

Enlargement of time period - Application for - Considerations (incl. evidence) - [See first and second Limitation of Actions - Topic 9612 ].

Statutes - Topic 5166

Operation and effect - Enabling Acts - Directory acts - Limitation period - [See second Limitation of Actions - Topic 9612 ].

Cases Noticed:

Tuteckyj v. Winnipeg (City) (2012), 284 Man.R.(2d) 261; 555 W.A.C. 261; 2012 MBCA 100, refd to. [para. 9].

Budd v. Cardoso (1996), 113 Man.R.(2d) 101; 131 W.A.C. 101 (C.A.), refd to. [para. 14].

Burke et al. v. Heaton et al. (2003), 177 Man.R.(2d) 213; 304 W.A.C. 213; 2003 MBCA 104, refd to. [para. 24].

Central Trust Co. v. Rafuse and Cordon, [1986] 2 S.C.R. 147; 69 N.R. 321; 75 N.S.R.(2d) 109; 186 A.P.R. 109, refd to. [para. 27].

Sentinel Self-Storage Corp. v. Dyregrov et al. (2003), 180 Man.R.(2d) 85; 310 W.A.C. 85; 2003 MBCA 136, refd to. [para. 27].

Weselak v. Beausejour District Hospital No. 29 (1986), 45 Man.R.(2d) 196 (Q.B.), affd. (1987), 49 Man.R.(2d) 86 (C.A.), refd to. [para. 29].

Rarie v. Maxwell (1998), 131 Man.R.(2d) 184; 187 W.A.C. 184 (C.A.), refd to. [para. 29].

Knapp v. Ecclesiastical Insurance Group plc and Smith, [1998] Lloyd's Rep. I.R. 390 (C.A.), refd to. [para. 31].

R. v. C.J. (1997), 115 Man.R.(2d) 72; 139 W.A.C. 72 (C.A.), refd to. [para. 45].

British Columbia v. Imperial Tobacco Canada Ltd. et al., [2011] 3 S.C.R. 45; 419 N.R. 1; 308 B.C.A.C. 1; 521 W.A.C. 1; 2011 SCC 42, refd to. [para. 48].

Statutes Noticed:

Limitation of Actions Act, R.S.M. 1987, c. L-150; C.C.S.M., c. L-150, sect. 14(1), sect. 20(3) [para. 11].

Counsel:

M.T. Green, for the appellant;

R.W. Schwartz and K.L. Hall, for the respondent.

This appeal was heard on October 12, 2012, before Scott, C.J.M., Chartier and Beard, JJ.A., of the Manitoba Court of Appeal. In reasons written by Beard, J.A., the Court delivered the following judgment, dated November 13, 2012.