Aucoin v. Murray, (2013) 326 N.S.R.(2d) 218 (SC)

• Judge: Wood, J.
• Court: Supreme Court of Nova Scotia (Canada)
• Case Date: January 15, 2013
• Jurisdiction: Nova Scotia
• Citations: (2013), 326 N.S.R.(2d) 218 (SC);2013 NSSC 37

Aucoin v. Murray (2013), 326 N.S.R.(2d) 218 (SC);

    1033 A.P.R. 218

MLB headnote and full text

Temp. Cite: [2013] N.S.R.(2d) TBEd. JA.081

Dola Ann Aucoin (applicant) v. Nickolas Richard Murray (respondent)

(Hfx. No. 407270; 2013 NSSC 37)

Indexed As: Aucoin v. Murray

Nova Scotia Supreme Court

Wood, J.

January 29, 2013.

Summary:

Aucoin sought repayment of three loans she made to Murray, represented by promissory notes dated November 1979, October 1980, and February 1995. Aucoin moved for summary judgment on evidence, pursuant to Civil Procedure Rule 13.04. She requested that Murray's limitation defence be set aside on the basis that a letter he sent to her in November 2008, and three payments he made in 2009, represented acknowledgments of the debts. Murray moved for summary judgment on pleadings in accordance with Civil Procedure Rule 13.03. He submitted that upon expiry of the limitation period, the debts were extinguished and could not be resurrected by subsequent acknowledgment or part payment.

The Nova Scotia Supreme Court granted Murray's motion for summary judgment. It was not necessary to deal with Aucoin's motion.

Limitation of Actions - Topic 6

General principles - Nature of limitation provisions - [See Limitation of Actions - Topic 2060 ].

Limitation of Actions - Topic 2055

Actions in contract - Actions for debt - Acknowledgments - [See Limitation of Actions - Topic 2060 ].

Limitation of Actions - Topic 2060

Actions in contract - Actions for debt - Part payments - Aucoin sought repayment of three loans she made to Murray, represented by promissory notes dated November 1979, October 1980, and February 1995 - Aucoin moved for summary judgment pursuant to Civil Procedure Rule 13.04 - She requested that Murray's limitation defence be set aside on the basis that a letter he sent to her in November 2008, and three payments he made in 2009, represented acknowledgments of the debts - Murray moved for summary judgment pursuant to Civil Procedure Rule 13.03 - He submitted that upon expiry of the limitation period, the debts were extinguished and could not be resurrected by subsequent acknowledgment or part payment - The Nova Scotia Supreme Court granted Murray's motion - Limitation statutes were substantive rather than procedural in nature - Once a limitation period had expired, the underlying claim was extinguished - The underlying debt was therefore extinguished and nothing remained to be revived by an acknowledgment - The court also considered the authority granted in s. 3 of the Limitation of Actions Act to disallow a limitation defence in certain circumstances - The relief was based on equitable principles and the application for relief had to be made no later than four years after the expiry of the limitation period - The court stated that s. 3 did not change its conclusions with respect to the effect of the expiry of a limitation period and the inability to reinstate the claim by acknowledgment - An acknowledgment or part payment made during the four year discretionary period set out in s. 3 would not automatically renew the claim, but it would be a relevant circumstance for the court to consider in exercising its equitable discretion.

Cases Noticed:

Tolofson v. Jensen and Tolofson, [1994] 3 S.C.R. 1022; 175 N.R. 161; 77 O.A.C. 81; 51 B.C.A.C. 241; 84 W.A.C. 241, folld. [para. 14].

Heuman v. Andrews et al. (2005), 389 A.R. 182; 2005 ABQB 832, consd. [para. 21].

Moody Estate, Re (2011), 518 A.R. 312; 2011 ABQB 222, consd. [para. 26].

Cherry v. Boultbee (1839), 4 My & Cr 442, refd to. [para. 26].

Neudorf Estate, Re (2012), 407 Sask.R. 156; 2012 SKQB 463, consd. [para. 29].

Weingarden v. Moss (1955), 63 Man.R. 243, refd to. [para. 32].

Mehr v. Primrose Club Ltd. (1958), 13 D.L.R.(2d) 121 (Ont. C.A.), refd to. [para. 33].

Spencer v. Hemmerde, [1922] 91 L.J.K.B. 941, consd. [para. 34].

Alberta (Treasury Branches) v. Jarvis Engineering Ltd. et al. (1998), 218 A.R. 360 (Q.B. Master), consd. [para. 35].

Canada (Attorney General) v. Simpson (1995), 26 O.R.(3d) 317 (Gen. Div.), refd to. [para. 36].

Lukenda et al. v. Campbell, [2003] O.T.C. Uned. 997; 67 O.R.(3d) 688 (Sup. Ct.), refd to. [para. 37].

Hamilton et al. v. R., [1917] 54 S.C.R. 331, refd to. [para. 45].

Pflug v. Collins, [1952] O.R. 519, refd to. [para. 45].

Shannan v. Raymond and Evett (1998), 55 O.T.C. 383 (Gen. Div.), refd to. [para. 45].

Statutes Noticed:

Limitations of Actions Act, R.S.N.S. 1989, c. 258, sect. 3 [para. 47].

Authors and Works Noticed:

Mew, Graeme, The Law of Limitations (2nd. Ed. 2004), pp. 64 [para. 14]; 65, 66 [paras. 14, 28]; 115 [para. 40].

Counsel:

Dillon Trider, for the applicant;

Shaun MacMillan, for the respondent.

These motions were heard in Chambers, at Halifax, N.S., on January 15, 2013, before Wood, J., of the Nova Scotia Supreme Court, who delivered the following decision on January 29, 2013.