Cote v. Scott,

• Jurisdiction: Nova Scotia
• Judge: Parker
• Neutral Citation: 2005 NSSM 27
• Date: 30 November 2004
• Court: Small Claims Court of Nova Scotia (Canada)

Cote v. Scott (2005), 251 N.S.R.(2d) 1 (SmCl);

    802 A.P.R. 1

MLB headnote and full text

Temp. Cite: [2007] N.S.R.(2d) TBEd. JA.029

Michael Cote and Marie Cote (claimants) v. Kourtney Scott and Robert Scott (defendants)

(SCCH 207582; 2005 NSSM 27)

Indexed As: Cote v. Scott

Nova Scotia Small Claims Court

Parker, Adjudicator

January 3, 2005.

Summary:

At issue in this small claims proceeding were the powers of the Small Claims Court to extend the limitation period and when it could be extended under s. 3 of the Limitation of Actions Act.

An Adjudicator of the Nova Scotia Small Claims Court held that the court had the power to apply s. 3 and this was an appropriate case in which to do so.

Limitation of Actions - Topic 3025

Actions in tort - Motor vehicle accidents - General - [See Practice - Topic 9755.2 ].

Limitation of Actions - Topic 3161

Actions in tort - Trespass or injury to property - General - [See Practice - Topic 9755.2 ].

Limitation of Actions - Topic 9603

Enlargement of time period - General - Power to grant - [See Practice - Topic 9755.2 ].

Limitation of Actions - Topic 9612

Enlargement of time period - Application for - When available - [See Practice - Topic 9755.2 ].

Practice - Topic 9755.2

Small claims - Limitation period - In 2000, the defendants agreed to pay the claimant $1,000 for property damage caused when one of the defendants struck the claimant's house with an automobile - The defendants did not pay - The claimants commenced a small claims action against the defendants in September 2003 - The defendants raised the two year limitation period in s. 2(1)(f) of the Limitation of Actions Act - The claimants sought an extension of the limitation period under s. 3 of the Act - An Adjudicator of the Nova Scotia Small Claims Court held that the court had the power to employ s. 3 of the Act to disallow a defence based on the time limitation - The court held that the claimants were not guilty of a lack of diligence in pursuing their case and the defendants would not be seriously prejudiced in having the court proceed on the merits - The court therefore disallowed the defendants' defence based on time limitation and allowed the action to proceed as allowed under s. 3(2) of the Act - The court opined that had s. 3(2) not applied, it would have held that this case was subject to the six year limitation period in s. 2(1)(e) of the Act because this was an action for direct injury to real property which constituted an action for trespass on the case.

Cases Noticed:

Butler et al. v. Southam Inc. et al. (2001), 197 N.S.R.(2d) 97; 616 A.P.R. 97; 2001 NSCA 121, refd to. [para. 9].

Rankin Estate v. Smith (1988), 81 N.S.R.(2d) 316; 203 A.P.R. 316 (C.A.), refd to. [para. 22].

Woods v. Hubley (1995), 140 N.S.R.(2d) 180; 399 A.P.R. 180 (S.C.), refd to. [para. 31].

Eisner v. Maxwell, [1951] 3 D.L.R. 345 (N.S.C.A.), refd to. [para. 41].

Statutes Noticed:

Limitation of Actions Act, R.S.N.S. 1989, c. 258, sect. 2(1)(e) [para. 36]; sect. 3 [para. 12].

Authors and Works Noticed:

Snell, E.H.T., Principles of Equity (27th Ed. 1973), p. 33 [para. 34].

Counsel:

Mark V. Rieksts, represented the claimants;

David P. Grant, represented the defendants.

This matter was heard on November 30, 2004, before Parker, Adjudicator, of the Nova Scotia Small Claims Court, who delivered the following decision on January 3, 2005.