Hendsbee v. Khuber and Stockmal, (1995) 148 N.S.R.(2d) 270 (SC)

• Judge: Goodfellow, J.
• Court: Supreme Court of Nova Scotia (Canada)
• Case Date: December 19, 1995
• Jurisdiction: Nova Scotia
• Citations: (1995), 148 N.S.R.(2d) 270 (SC)

Hendsbee v. Khuber (1995), 148 N.S.R.(2d) 270 (SC);

  429 A.P.R. 270

MLB headnote and full text

Gavin Barclay Hendsbee (plaintiff) v. Sam Khuber and Patrick Stockmal (defendants)

(S.H. No. 101540)

Indexed As: Hendsbee v. Khuber and Stockmal

Nova Scotia Supreme Court

Goodfellow, J.

December 19, 1995.

Summary:

On February 21, 1993, Hendsbee, a pass­enger in Khuber's vehicle, was injured in a motor vehicle accident in Saskatchewan when Khuber's vehicle collided with Stock­mal's vehicle. On February 22, 1994, Hends­bee brought a negligence action for dam­ages in Nova Scotia against Khuber and Stockmal (the defendants). The defendants applied to dismiss the action, arguing that the laws of Saskatchewan applied and therefor the action was statute barred (Saskatchewan Highways Act, s. 88).

The Nova Scotia Supreme Court agreed that the laws of Saskatchewan applied and that the one year limitation provided in the Act had expired. However, the court granted Hendsbee leave to explore any further basis upon which he might be entitled to have the action continue.

Conflict of Laws - Topic 7602

Torts - Jurisdiction - Torts occurring outside jurisdiction - On February 21, 1993, Hendsbee, a passenger in Khuber's vehicle, was injured in a motor vehicle accident in Saskatchewan when Khuber's vehicle collided with Stockmal's vehicle - On February 22, 1994, Hendsbee brought a negligence action for damages in Nova Scotia against Khuber and Stockmal (the defendants) - At issue was which prov­ince's substantive law applied to determine liability - The Nova Scotia Supreme Court, following the Supreme Court of Canada decision in Tolofson v. Jensen and Tolofson, stated that the substantive law of the lex loci delicti (where accident occurred) applied - Since there was noth­ing in the pleadings or material indicating that Hendsbee discovered his injuries subsequent to the date of the accident, the action was statute barred by virtue of the one year limitation period set out in the Saskatchewan Highways Act, s. 88.

Conflict of Laws - Topic 7653

Torts - Choice of law - Rule in Phillips v. Eyre - [See Conflict of Laws - Topic 7602 ].

Conflict of Laws - Topic 7690

Torts - Choice of law - Torts affecting the person - Damages - [See Conflict of Laws - Topic 7602 ].

Conflict of Laws - Topic 7692

Torts - Choice of law - Torts affecting the person - Limitation of actions - [See Conflict of Laws - Topic 7602 ].

Limitation of Actions - Topic 9305

Postponement or suspension of statute - Discoverability rule - [See Conflict of Laws - Topic 7602 ].

Practice - Topic 2230

Pleadings - Striking out pleadings - Grounds - Failure to disclose a cause of action or defence - Civil Procedure Rule 14.25 states, inter alia, that the court may at any stage of a proceeding order any pleading to be struck out on the ground that it discloses no reasonable cause of action or defence - The Nova Scotia Supreme Court held that a limitation period can be invoked to strike a statement of claim under rule 14.25(1)(a) "if a plain­tiff, in his pleadings, states such facts that establish his claim is statute barred" - See paragraphs 27 to 35.

Practice - Topic 2239.2

Pleadings - Striking out pleadings - Grounds - Action prescribed or barred by limitation period - [See Practice - Topic 2230 ].

Cases Noticed:

Tolofson v. Jensen and Tolofson, [1994] 3 S.C.R. 1022; 175 N.R. 161; 77 O.A.C. 81; 51 B.C.A.C. 241; 84 W.A.C. 241; 120 D.L.R.(4th) 289, consd. [para. 4].

Smith v. Clayton et al. (1994), 133 N.S.R.(2d) 157; 380 A.P.R. 157 (S.C.), refd to. [para. 21].

Benedict and Benedict v. Antuofermo (1975), 19 N.S.R.(2d) 262; 24 A.P.R. 262 (T.D.), refd to. [para. 23].

Vance v. MacKenzie, Colchester County Hospital and MacMillan (1977), 19 N.S.R.(2d) 381; 24 A.P.R. 381 (C.A.), refd to. [para. 26].

Vladi Private Islands Ltd. v. Haase et al. (1990), 96 N.S.R.(2d) 323; 253 A.P.R. 323 (C.A.), refd to. [para. 29].

Teale v. United Church of Canada at Woodlawn (Trustees) (1979), 34 N.S.R.(2d) 313; 59 A.P.R. 313 (C.A.), refd to. [para. 30].

Campbell and Campbell v. Sinnott and Charlottetown Clinic Management (1984), 48 Nfld. & P.E.I.R. 125; 142 A.P.R. 125 (P.E.I.S.C.), refd to. [para. 31].

Abbott and Steeves v. Cook (1980), 40 N.S.R.(2d) 614; 73 A.P.R. 614 (C.A.), refd to. [para. 31].

Peixeiro v. Haberman (1995), 85 O.A.C. 2 (C.A.), refd to. [para. 41].

Nielsen v. Kamloops (City) and Hughes, [1984] 2 S.C.R. 2; 54 N.R. 1; [1984] 5 W.W.R. 1; 10 D.L.R.(4th) 641; 29 C.C.L.T. 97; 8 C.L.R. 1, refd to. [para. 42].

Central Trust Co. v. Rafuse and Cordon, [1986] 2 S.C.R. 147; 69 N.R. 321; 75 N.S.R.(2d) 109; 186 A.P.R. 109; 37 C.C.L.T. 117; 42 R.P.R. 161; 31 D.L.R.(4th) 481; 34 B.L.R. 187, refd to. [para. 42].

Desormeau v. Holy Family Hospital, Prince Albert, [1989] 5 W.W.R. 186; 76 Sask.R. 241 (C.A.), refd to. [para. 43].

Statutes Noticed:

Civil Procedure Rules (N.S.), rule 14.25 [para. 17].

Interpretation Act, R.S.S. 1978, c. I-11, sect. 11, sect. 17(10), sect. 17(11) [para. 19].

Limitations of Actions Act, R.S.N.S., c. 258, sect. 3(2)(a), sect. 3(2)(b), sect. 3(4)(a), sect. 3(4)(b), sect. 3(4)(c), sect. 3(4)(d), sect. 3(4)(e), sect. 3(4)(f), sect. 3(4)(g), sect. 3(6) [para. 20].

Highway Traffic Act, S.S. 1986, c. H-3.1, sect. 88(1)(a), sect. 88(1)(b) [para. 18].

Vehicles Act, R.S.S. 1978, c. V-3, sect. 180(1) [para. 9].

Authors and Works Noticed:

Mewes on Limitations, p. 33 [para. 38].

Counsel:

Raymond F. Wagner, for the plaintiff;

Cheryl L. Hodder, for the defendants.

This application was heard on December 19, 1995, at Halifax, Nova Scotia, before Goodfellow, J., of the Nova Scotia Supreme Court, who delivered the following oral decision on December 19, 1995, and released the written reasons on December 22, 1995.