Day v. Guarantee Co. of North America, 2003 NSCA 13

• Judge: Roscoe, Cromwell and Saunders, JJ.A.
• Court: Court of Appeal of Nova Scotia (Canada)
• Case Date: November 18, 2002
• Jurisdiction: Nova Scotia
• Citations: 2003 NSCA 13;(2003), 212 N.S.R.(2d) 177 (CA)

Day v. Guarantee Co. (2003), 212 N.S.R.(2d) 177 (CA);

 665 A.P.R. 177

MLB headnote and full text

Temp. Cite: [2003] N.S.R.(2d) TBEd. MR.022

Raymond F. Wagner (appellant/respondent on cross-appeal) v. Terri Leah Anne Day (respondent/respondent by cross-appeal) and the Guarantee Company of North America, a body corporate (respondent/appellant by cross-appeal)

(CA 177136; 2003 NSCA 13)

Indexed As: Day v. Guarantee Co. of North America

Nova Scotia Court of Appeal

Roscoe, Cromwell and Saunders, JJ.A.

January 23, 2003.

Summary:

The plaintiff was an Ontario resident insured under an automobile policy issued in Ontario. She was injured in a motor vehicle accident in Nova Scotia. The drivers of the two other vehicles involved were not identi­fied. The plaintiff sued her insurer under her policy. Issues arose respecting the addition of an intervenor, choice of law and whether a limitation defence should be struck.

The Nova Scotia Supreme Court, in a decision reported at 200 N.S.R.(2d) 331; 627 A.P.R. 331, determined the issues. The intervenor appealed the dismissal of his application to disallow a limitation defence relied upon by the insurer. The insurer cross-appealed the decision that Nova Scotia law applied to the proceeding rather than Ontario law.

The Nova Scotia Court of Appeal allowed the appeal and dismissed the cross-appeal.

Conflict of Laws - Topic 7245

Contracts - Choice of law - Insurance con­tracts - The plaintiff was an Ontario resi­dent insured under an automobile poli­cy is­sued in Ontario - She was injured in a motor vehicle accident in Nova Scotia - The drivers of the two other vehicles involved were not identified - The plaintiff sued her insurer under her policy - A Chambers judge found that the reciprocity rules, which had sources in both contract and statute (e.g., s. 127(1) of the Nova Scotia Insurance Act), modified the com­mon law conflict rules of choice of law arising out of automobile accidents - The accident took place in Nova Scotia, Nova Scotia law applied and the insurer could not set up any defence that could not be set up if the policy had been issued in Nova Scotia - The Nova Scotia Court of Appeal agreed - See paragraphs 29 to 52.

Insurance - Topic 4552

Automobile insurance - Actions by insured against insurer - Defences - Circumstances where insurer is precluded from raising a defence - [See Conflict of Laws - Topic 7245 ].

Limitation of Actions - Topic 9424

Bars - Disallowance of defence - Consider­ations - Delay - The plaintiff was an Ontario resident insured under an auto­mobile policy issued in Ontario - She was injured in a motor vehicle accident in Nova Scotia on September 4, 1994 - The drivers of the two other vehicles involved were not identified - By letter dated Sep­tember 19, 1995, the insurer informed the plaintiff's first lawyer that the plaintiff's only recourse was against the uninsured motorist funds in Nova Scotia - In June 2000, the plaintiff sued her insurer under her policy - The insurer raised a limitation defence - The plaintiff applied to disallow the defence - A Chambers judge dismissed the application because of the plaintiff's inexcusable delay and prejudice to the insurer - The Nova Scotia Court of Appeal overturned the decision and disallowed the limitation defence - The Chambers judge erred in law in failing to weigh the relative degrees of prejudice to both parties - There was no consideration given to the prejudice suffered by Day and no evidence of any real prejudice to the insurer - No consider­ation was given to Day's diligence in pursuing her claim - See paragraphs 53 to 72.

Limitation of Actions - Topic 9426

Bars - Disallowance of defence - Consider­ations - Prejudice to parties - [See Limita­tion of Actions - Topic 9424 ].

Cases Noticed:

Shannon et al. v. Insurance Corp. of British Columbia (1996), 83 B.C.A.C. 90; 136 W.A.C. 90; 40 C.C.L.I.(2d) 49 (C.A.), appld. [para. 46].

Wawanesa Mutual Insurance Co. v. Lindblom (2000), 267 A.R. 78 (Q.B.), refd to. [para. 46].

Administrator, Motor Vehicle Accident Claims Act (Alta.) v. Saskatchewan Government Insurance (1981), 29 A.R. 582 (C.A.), refd to. [para. 46].

Thai v. Dao et al. (1998), 70 O.T.C. 119; 39 O.R.(3d) 791 (Gen. Div.), refd to. [para. 46].

Potts v. Gluckstein et al. (1992), 56 O.A.C. 290; 8 O.R.(3d) 556 (C.A.), refd to. [para. 46].

Berg v. Farm Bureau Mutual Insurance Co. (2000), 135 O.A.C. 135; 50 O.R.(3d) 109 (C.A.), leave to appeal dismissed (2001), 268 N.R. 400; 149 O.A.C. 200 (S.C.C.), refd to. [para. 46].

Healy v. Interboro Mutual Indemnity In­surance Co. et al. (1998), 66 O.T.C. 105; 40 O.R.(3d) 270 (Gen. Div.), affd. (1999), 119 O.A.C. 354; 44 O.R.(3d) 404 (C.A.), leave to appeal dismissed (2000), 256 N.R. 199 (S.C.C.), refd to. [para. 46].

Bissky v. Co-operators General Insurance Co. (1986), 17 C.C.L.I. 149 (B.C.S.C.), refd to. [para. 46].

MacCulloch v. McInnes, Cooper & Robertson (1995), 140 N.S.R.(2d) 220; 399 A.P.R. 220 (C.A.), refd to. [para. 53].

Anderson v. Co-Operative Fire & Casualty Co. (1983), 58 N.S.R.(2d) 163; 123 A.P.R. 163 (T.D.), refd to. [para. 53].

Canada (Attorney General) v. Foundation Co. of Canada Ltd. et al. (1990), 99 N.S.R.(2d) 327; 270 A.P.R. 327 (C.A.), refd to. [para. 54].

Minkoff v. Poole and Lambert (1991), 101 N.S.R.(2d) 143; 275 A.P.R. 143 (C.A.), refd to. [para. 54].

McGuire and McGuire v. Fermini (1984), 62 N.S.R.(2d) 104; 136 A.P.R. 104 (S.C.), affd. (1984), 64 N.S.R.(2d) 60; 143 A.P.R. 60 (C.A.), refd to. [para. 59].

Butler et al. v. Southam Inc. et al. (2001), 197 N.S.R.(2d) 97; 616 A.P.R. 97 (C.A.), refd to. [para. 64].

Statutes Noticed:

Insurance Act, R.S.N.S. 1989, c. 231, sect. 127(1) [para. 38].

Counsel:

Robert L. Barnes, Q.C., and Jennifer Ross, for the appellant/respondent by cross-appeal;

M. Joseph Rizzetto, for the respondent Day/respondent by cross-appeal;

David Farrar and Christa Hellstrom, for the respondent/appellant by cross-appeal.

This appeal and cross-appeal were heard on November 18, 2002, by Roscoe, Cromwell and Saunders, JJ.A., of the Nova Scotia Court of Appeal. Saunders, J.A., delivered the following decision for the Court of Appeal on January 23, 2003.