Brett v. Anthony & Boulton, (1998) 171 N.S.R.(2d) 356 (SC)

• Judge: Goodfellow, J.
• Court: Supreme Court of Nova Scotia (Canada)
• Case Date: July 08, 1998
• Jurisdiction: Nova Scotia
• Citations: (1998), 171 N.S.R.(2d) 356 (SC)

Brett v. Anthony & Boulton (1998), 171 N.S.R.(2d) 356 (SC);

    519 A.P.R. 356

MLB headnote and full text

Temp. Cite: [1998] N.S.R.(2d) TBEd. JL.004

Bruce R. Brett (plaintiff) v. Anthony & Boulton and James N. Horwich (defendants)

(138591C)

Indexed As: Brett v. Anthony & Boulton et al.

Nova Scotia Supreme Court

Goodfellow, J.

July 13, 1998.

Summary:

Brett sued accountants for negligent prep­aration of a corporation's financial state­ments. Brett applied to strike the paragraph of the statement of defence which asserted that the action was time barred, or, alterna­tively, an order under s. 3(2) of the Limita­tion of Actions Act, disallowing the defence. The accountants opposed the appli­cation and applied in the final alternative for security for costs.

The Nova Scotia Supreme Court struck the paragraph from the statement of defence. The court declined to order security for costs.

Limitation of Actions - Topic 15

General principles - Discoverability rule - Application of - Brett sued a bank and third partied accountants respecting their preparation of financial statements in 1988/1989 - Although the third party action was discontinued, Brett refused to agree to a dismissal - In response to Brett's 1993 complaint against the accoun­tants, the Institute of Chartered Accounts released a report in June 1995 - Due to financial difficulties, Brett was unable to sue the accountants until May 1997 - The Nova Scotia Supreme Court applied the discoverability rule and held that the action was out of time where Brett knew of the impugned transactions from the outset, relied on his partner and did not act out of loyalty to the partner - However, the court struck the limitation defence where the matter had not laid dormant and the de­fendants were not prejudiced (Limitation of Actions, s. 3(2)) - See paragraphs 1 to 9.

Limitation of Actions - Topic 9305

Postponement or suspension of statute - General - Discoverability rule - [See Limitation of Actions - Topic 15 ].

Limitation of Actions - Topic 9426

Bars - Disallowance of defence - Con­siderations - Prejudice to parties - [See Limitation of Actions - Topic 15 ].

Practice - Topic 8105

Costs - Security for costs - General prin­ciples - Considerations - A plaintiff sued accountants, alleging that they negligently prepared financial statements which he relied on in executing a guarantee - The accountants sought security for costs based on an unsatisfied judgment against the plaintiff for taxes owing - The plaintiff asserted that the judgment was related to his financial state which was due to him addressing the guarantee and he would not have executed the guarantee but for the accountants misconduct - The Nova Scotia Supreme Court refused to order security for costs - See paragraph 10.

Practice - Topic 8111

Costs - Security for costs - General prin­ciples - Where plaintiff has failed to sat­isfy prior judgment or order - [See Prac­tice - Topic 8105 ].

Practice - Topic 8112

Costs - Security for costs - General prin­ciples - Where plaintiff insolvent or impe­cunious - [See Practice - Topic 8105 ].

Cases Noticed:

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; 37 C.C.L.T. 117; 31 D.L.R.(4th) 481, refd to. [para. 3].

Smith v. Clayton et al., 133 N.S.R.(2d) 157; 380 A.P.R. 157 (S.C.), folld. [para. 7].

Thomas-Canning v. Juteau (1993), 122 N.S.R.(2d) 23; 338 A.P.R. 23 (S.C.), refd to. [para. 9].

Statutes Noticed:

Limitation of Actions Act, R.S.N.S. 1989, c. 258, sect. 3(2) [paras. 7, 8].

Counsel:

Ian Blue, Q.C., and Blair H. Mitchell, for the plaintiff;

H.E. Wrathall, Q.C., and Stephen Kingston, for the defendants.

Goodfellow, J., of the Nova Scotia Supreme Court, heard this matter in Cham­bers, in Halifax, on July 8, 1998, and released the following judgment on July 13, 1998.