DeWolfe v. Canadian Corps of Commissionaires (N.S.) et al., (2015) 365 N.S.R.(2d) 58 (SC)

JudgeRosinski, J.
CourtSupreme Court of Nova Scotia (Canada)
Case DateJuly 13, 2015
JurisdictionNova Scotia
Citations(2015), 365 N.S.R.(2d) 58 (SC);2015 NSSC 229

DeWolfe v. Cdn. Corps (2015), 365 N.S.R.(2d) 58 (SC);

    1151 A.P.R. 58

MLB headnote and full text

Temp. Cite: [2015] N.S.R.(2d) TBEd. OC.045

Nikki Lynn DeWolfe (plaintiff) v. Nova Scotia Division of the Canadian Corps of Commissionaires and Halifax Regional Municipality (defendants)

(Hfx. No. 425045; 2015 NSSC 229)

Indexed As: DeWolfe v. Canadian Corps of Commissionaires (N.S.) et al.

Nova Scotia Supreme Court

Rosinski, J.

July 17, 2015.

Summary:

In January 2011, DeWolfe was walking on a sidewalk in front of property owned by the Canadian Corps of Commissionaires. She slipped and fell in the "driveway area" sustaining significant physical injuries. In November 2011, DeWolfe notified the Commissionaires of her potential claim. In February 2013, DeWolfe notified the municipality of her potential claim. In the meantime, the municipality had replaced the sidewalk. DeWolfe's claim against the Commissionaires and the municipality was filed in March 2014. The municipality denied liability, relying on the 12 month limitation period in s. 376 of the Halifax Regional Municipality Charter. DeWolfe moved for an order under s. 3 of the Limitation of Actions Act disallowing the limitation defence. The municipality moved for an order dismissing the claim as against it and for summary judgment.

The Nova Scotia Supreme Court granted DeWolfe's motion and denied the municipality's motion.

Limitation of Actions - Topic 9424

Bars - Disallowance of defence - Considerations - Delay - [See Limitation of Actions - Topic 9426 ].

Limitation of Actions - Topic 9426

Bars - Disallowance of defence - Considerations - Prejudice to parties - In January 2011, DeWolfe was walking on a sidewalk in front of property owned by the Canadian Corps of Commissionaires - She slipped and fell in the "driveway area" sustaining significant physical injuries - In November 2011, DeWolfe notified the Commissionaires of her potential claim - In February 2013, DeWolfe notified the municipality of her potential claim - In the meantime, the municipality had replaced the sidewalk - DeWolfe's claim against the Commissionaires and the municipality was filed in March 2014 - The municipality denied liability, relying on the 12 month limitation period in s. 376 of the Halifax Regional Municipality Charter - DeWolfe moved for an order under s. 3 of the Limitation of Actions Act disallowing the limitation defence - The Nova Scotia Supreme Court granted the motion - The issue was whether the delay from January 2012 to February 2013 had irreparably prejudiced the municipality's defence - The differences in the replaced sidewalk and driveway apron were likely not material - The municipality had not lost the benefit of the evidence of its snow and ice clearing policy - The discovery process would "shed light" on conditions existing when DeWolfe fell - Despite the municipality's assertion that it had been unsuccessful in locating persons with memories of the incident or evidence regarding snow and ice operations at the relevant time, the cogency of the evidence adduced or likely to be adduced had not been so materially prejudiced by the delay that DeWolfe should be deprived of the opportunity to present her claim on its merits - See paragraphs 18 to 48.

Limitation of Actions - Topic 9427

Bars - Disallowance of defence - Considerations - Alternative actions - In January 2011, DeWolfe was walking on a sidewalk in front of property owned by the Canadian Corps of Commissionaires - She slipped and fell in the "driveway area" sustaining significant physical injuries - In November 2011, DeWolfe notified the Commissionaires of her potential claim - In February 2013, DeWolfe notified the municipality of her potential claim - In the meantime, the municipality had replaced the sidewalk - DeWolfe's claim against the Commissionaires and the municipality was filed in March 2014 - The municipality denied liability, relying on the 12 month limitation period in s. 376 of the Halifax Regional Municipality Charter - DeWolfe moved for an order under s. 3 of the Limitation of Actions Act disallowing the limitation defence - The Nova Scotia Supreme Court, in granting the motion, stated that the potential for DeWolfe to have "successful recourse" against her former solicitor (who failed to advise her of the 12 month limitation period) and against the Commissionaires was "speculative" and "not a persuasive basis for denying her the ability to rely on a limitation period extension" - See paragraph 48.

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. 21].

Lord v. Smith (2013), 328 N.S.R.(2d) 189; 1039 A.P.R. 189; 2013 NSCA 34, refd to. [para. 26].

Morris v. Royal Bank of Canada (2007), 254 N.S.R.(2d) 134; 810 A.P.R. 134; 2007 NSSC 73, refd to. [para. 28].

Hiscock v. Pasher (2008), 270 N.S.R.(2d) 169; 865 A.P.R. 169; 2008 NSCA 101, refd to. [para. 28].

Economical Insurance Group v. Master Forestry Ltd. (2012), 321 N.S.R.(2d) 379; 1018 A.P.R. 379; 2012 NSSC 353, refd to. [para. 28].

Palmer Estate v. MacInnis et al. (2013), 337 N.S.R.(2d) 382; 1067 A.P.R. 382; 2013 NSSC 391, refd to. [para. 28].

Smith v. Clayton et al. (1994), 133 N.S.R.(2d) 157; 380 A.P.R. 157 (S.C.), refd to. [para. 29].

Coady v. Burton Canada Co. et al. (2013), 333 N.S.R.(2d) 348; 1055 A.P.R. 348; 2013 NSCA 95, refd to. [para. 30].

Layes v. Chisholm and Stewart (1997), 159 N.S.R.(2d) 299; 468 A.P.R. 299 (C.A.), refd to. [para. 31].

Halifax (Regional Municipality) v. Nicholson (2009), 283 N.S.R.(2d) 312; 900 A.P.R. 312; 2009 NSCA 109, refd to. [para. 31].

Bowden v. Withrow's Pharmacy Halifax (1999) Ltd. et al. (2008), 268 N.S.R.(2d) 299; 857 A.P.R. 299; 2008 NSSC 252, refd to. [para. 34].

Shane v. 3104854 Nova Scotia Ltd. (2013), 332 N.S.R.(2d) 187; 1052 A.P.R. 187; 2013 NSCA 84, refd to. [para. 37].

Counsel:

Richard A. Bureau, for the plaintiff;

Joshua A. Martin, for the defendant, Commissionaires (watching brief only);

Guy Harfouche, for the defendant, Halifax Regional Municipality.

These motions were heard at Halifax, N.S., on July 13, 2015, by Rosinski, J., of the Nova Scotia Supreme Court, who delivered the following decision orally on July 17, 2015, and in writing on July 30, 2015.

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1 practice notes
  • Carvery v. Halifax (Regional Municipality),
    • Canada
    • Supreme Court of Nova Scotia (Canada)
    • January 5, 2023
    ...period.  The Court of Appeal stated that that delay was significant.  In DeWolfe v. Canadian Corps of Commissionaries, 2015 NSSC 229, the applicable limitation period was twelve (12) months and the delay was two years and two months past the expiry of the limitation period pursuan......
1 cases
  • Carvery v. Halifax (Regional Municipality),
    • Canada
    • Supreme Court of Nova Scotia (Canada)
    • January 5, 2023
    ...period.  The Court of Appeal stated that that delay was significant.  In DeWolfe v. Canadian Corps of Commissionaries, 2015 NSSC 229, the applicable limitation period was twelve (12) months and the delay was two years and two months past the expiry of the limitation period pursuan......

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