Flynn v. Superior Foundation Ltd., 2008 NSSC 296

• Judge: Robertson, J.
• Court: Supreme Court of Nova Scotia (Canada)
• Case Date: May 12, 2008
• Jurisdiction: Nova Scotia
• Citations: 2008 NSSC 296;(2008), 269 N.S.R.(2d) 279 (SC)

Flynn v. Superior Fdn. Ltd. (2008), 269 N.S.R.(2d) 279 (SC);

    860 A.P.R. 279

MLB headnote and full text

Temp. Cite: [2008] N.S.R.(2d) TBEd. OC.035

Trudy Flynn and Fabian Flynn (appellants/respondents by cross-appeal) v. Superior Foundation Limited (respondent/appellant by cross-appeal)

(SH 283821; 2008 NSSC 296)

Indexed As: Flynn v. Superior Foundation Ltd.

Nova Scotia Supreme Court

Robertson, J.

October 9, 2008.

Summary:

The Flynns had a home built in 1997, by Applewood Enterprises Ltd. (Applewood). Applewood contracted with Superior Foundation Ltd. (Superior) to construct the foundation wall and pour the concrete slab. Within 1997-1998, the concrete slab failed, causing considerable damage. Superior was never notified of the problem. In 1999, the Flynns sued several defendants, including Applewood. The Flynns gained judgment against Applewood and others, although their judgment was modified on appeal. Applewood went out of business before the Flynns were able to collect any portion of their judgment. In September 2005, the Flynns filed a claim against Superior in Small Claims Court, alleging negligent installation of the concrete slab. Superior argued, inter alia, that the claim was statute barred by s. 2(1)(e) of the Limitation of Actions Act (N.S.).

An Adjudicator of the Nova Scotia Small Claims Court, in a decision not reported in this series of reports, found that Superior was negligent, but dismissed the claim on the basis that it was statute barred under s. 2(1)(e), since it had been commenced one-and-one-half years beyond the statutory period of six years. Further, it was not equitable to allow the claim to proceed under s. 3(2), having regard to the degree in which it would have prejudiced Superior. The Flynns appealed on the ground, inter alia, that the Small Claims Court did not have the jurisdiction to make an order under the Limitation of Actions Act. Superior cross-appealed, based on the limitation provisions of the Act.

The Nova Scotia Supreme Court dismissed the appeal. The Small Claims Court was a court by definition of its own legislation and also within the meaning of s. 3 of the Limitation of Actions Act. There was an obvious breach of the limitation period, and the adjudicator properly exercised his discretion in finding that the action was statute barred.

Courts - Topic 6204.1

Provincial courts - Nova Scotia - Small Claims Court - Jurisdiction - General - [See Practice - Topic 9755.2 ].

Limitation of Actions - Topic 9

General principles - Effect of missed limitation period - [See Practice - Topic 9755.2 ].

Limitation of Actions - Topic 16

General principles - Applicability to equitable relief - [See Practice - Topic 9755.2 ].

Limitation of Actions - Topic 3101

Actions in tort - Negligence - General - [See Practice - Topic 9755.2 ].

Practice - Topic 9755.2

Small claims - Limitation period - The Flynns had a home built in 1997 by Applewood Enterprises Ltd. - Applewood contracted with Superior Foundation Ltd. to pour the concrete slab - Within 1997-1998, the slab failed - Superior was never notified - In 1999, the Flynns sued several defendants and ultimately gained judgment against Applewood and others, although modified on appeal - Applewood went out of business before the Flynns collected on their judgment - In September 2005, the Flynns filed a claim against Superior in Small Claims Court, alleging negligence - Superior argued, inter alia, that the claim was statute barred by s. 2(1)(e) of the Limitation of Actions Act (N.S.) - An Adjudicator of the Nova Scotia Small Claims Court found that Superior was negligent, but dismissed the claim because it had been commenced one-and-one-half years beyond the statutory period of six years, and because it was not equitable to allow the claim to proceed under s. 3(2), having regard to the degree of prejudice to Superior - The Flynns appealed on the ground, inter alia, that the Small Claims Court did not have the jurisdiction to make an order under the Limitation of Actions Act - Superior cross-appealed, based on the limitation provisions of the Act - The Nova Scotia Supreme Court dismissed the appeal - The Small Claims Court was a court by definition of its own legislation and within the meaning of s. 3 of the Limitation of Actions Act - There was an obvious breach of the limitation period, and the adjudicator properly exercised his discretion in finding that the action was statute barred - Superior was at "extreme prejudice" having not had the opportunity to participate in earlier court proceedings - See paragraphs 28 to 37.

Practice - Topic 9767

Small claims - Jurisdiction - General - [See Practice - Topic 9755.2 ].

Cases Noticed:

Cote v. Scott (2005), 251 N.S.R.(2d) 1; 802 A.P.R. 1 (Sm. Cl. Ct.), folld. [para. 30].

Butler et al. v. Southam Inc. et al. (2001), 197 N.S.R.(2d) 97; 616 A.P.R. 97; 2001 NSCA 121, consd. [para. 31].

Brown v. Marwieh (1993), 123 N.S.R.(2d) 194; 340 A.P.R. 194 (S.C.), affd. (1995), 145 N.S.R.(2d) 220; 418 A.P.R. 220 (C.A.), consd. [para. 31].

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.), consd. [para. 31].

Statutes Noticed:

Limitation of Actions Act, R.S.N.S. 1989, c. 258, sect. 2(1)(e) [para. 9]; sect. 3(2) [para. 25]; sect. 3(4) [para. 26].

Counsel:

James D. MacNeil and Kelly Peck, articled clerk, for the appellants;

B. William Piercey, Q.C., and Sean Rooney, for the respondent.

This appeal and cross-appeal were heard on May 12, 2008, in Halifax, N.S., by Robertson, J., of the Nova Scotia Supreme Court, who delivered the following written decision on October 9, 2008.