Clark v. Naqvi (1989), 99 N.B.R.(2d) 271; 250 A.P.R. 271 (C.A.) (Comment), (1990) 104 N.B.R.(2d) 237

• Case Date: May 19, 1990
• Jurisdiction: New Brunswick
• Citations: (1990), 104 N.B.R.(2d) 237

Clark v. Naqvi (Comment) (1990), 104 N.B.R.(2d) 237;

         104 R.N.-B.(2e) 237; 261 A.P.R. 237

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Case Comment

Clark v. Naqvi (1989), 99 N.B.R.(2d) 271; 250 A.P.R. 271 (C.A.)

Indexed As: Clark v. Naqvi (1989), 99 N.B.R.(2d) 271; 250 A.P.R. 271 (C.A.) (Comment)

Répertorié: Clark v. Naqvi (1989), 99 N.B.R.(2d) 271; 250 A.P.R. 271 (C.A.) (Comment)

John P. McEvoy

Associate Professor of Law

Faculty of Law

University of New Brunswick

May 19, 1990.

Summary:

Résumé:

Clark received medical treatment in 1978 from a doctor in Nova Scotia. In 1984, Clark commenced an action in New Brunswick against the doctor, alleging negligent and unskilful treatment and, alternatively, breach of contract because he performed unauthorized surgery without Clark's informed consent. Pursuant to rule 23.01(1)(a) the following question was referred to the court: "Is the plaintiff's action against the defendant prescribed by law?".

The New Brunswick Court of Queen's Bench, Trial Division, in a judgment reported (1989), 94 N.B.R.(2d) 419; 239 A.P.R. 419, held that the Nova Scotia Limitation of Actions Act, s. 2(1)(d)(i), applied and the action was barred by the expiration of the one year limitation period. Clark appealed.

The New Brunswick Court of Appeal in a judgment reported 99 N.B.R.(2d) 271; 250 A.P.R. 271, dismissed the appeal. The court held that the limitation defence was substantive, not procedural; therefore the action was governed by the Nova Scotia Limitation of Actions Act. The court agreed that the one year limitation period applied to bar the action.

In the case comment below the commentator criticized the approach (but not the result) of the Court of Appeal in relying on a non-conflicts case instead of the traditional conflicts approach based on standard conflicts cases.

Conflict of Laws - Topic 7235

Contracts - Choice of law - Limitation period - A patient received medical treatment in 1978 in Nova Scotia - The patient sued the doctor in New Brunswick in 1984 for negligent treatment and alternatively, for breach of contract for unauthorized surgery without informed consent - The doctor pleaded that the action was barred by expiry of the applicable limitation period - The New Brunswick Court of Appeal held that the doctor's limitation defence was substantive, not procedural; therefore the Nova Scotia limitation provision applied to bar the action - A commentator criticized the approach (but not the result) of the Court of Appeal in failing to base its analysis on traditional conflicts cases.

Conflict of Laws - Topic 7692

Torts - Choice of law - Torts affecting the person - Limitation periods - [See Conflict of Laws - Topic 7235 ].

Conflict of Laws - Topic 9241

Practice - Limitation of actions - General - [See Conflict of Laws - Topic 7235 ].

Limitation of Actions - Topic 6

Nature of limitation provisions - Substantive v. procedural - [See Conflict of Laws - Topic 7235 ].

Medicine - Topic 4324

Liability of practitioners - Bars to actions - Limitation periods - [See Conflict of Laws - Topic 7235 ].

Cases Noticed:

Block Bros. Realty v. Mollard (1981), 27 B.C.L.R. 17; 122 D.L.R.(3d) 323, consd. [para. 3].

Perrie v. Martin, [1986] 1 S.C.R. 41; 64 N.R. 195; 12 O.A.C. 269, consd. [para. 3].

Gustavson Drilling (1964) Ltd. v. Minister of National Revenue, [1977] 1 S.C.R. 271; 7 N.R. 401, consd. [para. 3].

Huber v. Steiner (1835), 2 Bing. N.C. 202; 132 E.R. 80, consd. [para. 5].

Allard v. Charbonneau, [1953] 2 D.L.R. 422 (C.A.), consd. [para. 5].

Benedict v. Antuofermo (1975), 19 N.S.R.(2d) 262; 24 A.P.R. 262, consd. [para. 5].

Leroux v. Brown (1852), 12 C.B. 801; 138 E.R. 1119, consd. [para. 5].

Ward v. Coffin (1972), 4 N.B.R.(2d) 481 (C.A.), consd. [para. 5].

Statutes Noticed:

Extension of Limitation of Foreign Actions Act, S.B.C. 1861, sect. 2 [para. 9].

Foreign Limitation Periods Act, 1984 (U.K.), c. 16 [para. 8].

Limitation of Actions Act, R.S.N.S. 1967, c. 168, sect. 2(1)(d)(i) [para. 2].

Limitation of Foreign Actions Act, S.B.C. 1860, sect. 1 [para. 9].

Limitations Act, R.S.O. 1980, c. 240 [para. 8].

Peru Civil Code, 1984, art. 2099 [para. 9].

Authors and Works Noticed:

Alberta Law Reform Institute, Limitations, Report No. 55 [para. 8].

Castel, Canadian Conflict of Laws (2nd Ed.), pp. 116, 117 [para. 7].

Dicey and Morris, The Conflict of Laws (11th Ed.), p. 174 [para. 7].

Law Commission (U.K.), Classification of Limitation in Private International Law, No. 114 (1982) [para. 8].

MacLeod, The Conflict of Laws, p. 216 [para. 7].

Ontario Law Reform Commission, Report on Limitations of Actions, pp. 133-136 [para. 8].

Counsel:

This is a case comment, therefore contains no counsel.

This case comment was delivered by John P. McEvoy, Associate Professor of Law, Faculty of Law, University of New Brunswick, on May 19, 1990.