MacCulloch v. McInnes, Cooper & Robertson, (1995) 140 N.S.R.(2d) 220 (CA)

• Judge: Freeman, Matthews and Roscoe, JJ.A.
• Court: Court of Appeal of Nova Scotia (Canada)
• Case Date: April 20, 1995
• Jurisdiction: Nova Scotia
• Citations: (1995), 140 N.S.R.(2d) 220 (CA)

MacCulloch v. McInnes, Cooper (1995), 140 N.S.R.(2d) 220 (CA);

  399 A.P.R. 220

MLB headnote and full text

Patricia B. MacCulloch (appellant) v. McInnes, Cooper & Robertson, a registered Partnership and Stewart McInnes (respondent)

(C.A. No. 113926)

Indexed As: MacCulloch v. McInnes, Cooper & Robertson

Nova Scotia Court of Appeal

Freeman, Matthews and Roscoe, JJ.A.

April 20, 1995.

Summary:

MacCulloch applied under s. 3(2) of the Limitation of Actions Act to extend the limitation period to sue her former lawyer respecting transactions in 1981.

The Nova Scotia Supreme Court, in a judgment reported 138 N.S.R.(2d) 212; 394 A.P.R. 212, dismissed the application. Mac­Culloch appealed. The lawyer, by way of notice of contention, claimed the contract action, based on a 1981 breach of contract, was statute barred because the limitation period expired in 1987 and could not be extended where more than four years had passed since the limitation period expired.

The Nova Scotia Court of Appeal allowed the appeal. The trial judge failed to balance the degree of prejudice to both parties. Accordingly, the tort action was permitted to proceed. However, the contract action was statute barred. The limitation period expired in 1987 and leave to proceed was precluded by the passage of more than four years since the limitation period expired.

Limitation of Actions - Topic 15

Discoverability rule - Application of - The Nova Scotia Court of Appeal held that the discoverability rule did not apply to contract actions - The limitation period commenced running as of the date of the alleged breach of contract - Accordingly, the limitation period for a 1981 breach of contract expired in 1987 - Where the plaintiff applied to extend the limitation period in 1994, the court had no jurisdic­tion to extend the time, because s. 3(6) of the Limitation of Actions Act precluded the granting of extensions more than four years after the limitation period expired (i.e., 1991) - See paragraphs 66 to 82.

Limitation of Actions - Topic 2023

Actions in contract - Actions for breach of contract - When time commences to run - [See Limitation of Actions - Topic 15 ].

Limitation of Actions - Topic 9424

Bars - Disallowance of defence - Con­siderations - Delay - In May 1994, a client applied under s. 3(2) of the Limita­tion of Actions Act to extend the limitation period for suing her lawyer respecting facts and transactions taking place in 1981 - The trial judge dismissed the application - The client knew of the po­tential claim by De­cember 1986 (discoverability rule) - The six year limitation period expired in De­cember 1992 - The trial judge focused on the prejudice to the lawyer due to the length of time since the 1981 transactions, but failed to weigh the prejudice to the lawyer against the prejudice to the client should the action not proceed - The law­yer alleged no prejudice other than because of the passage of time - The trial judge did not consider other crucial facts - The Nova Scotia Court of Appeal held that in failing to weigh the respective prejudices the trial judge erred by failing to apply proper principles - The court extended the limitation period and allowed the action in tort to proceed - See paragraphs 1 to 65.

Limitation of Actions - Topic 9426

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

Limitation of Actions - Topic 9613

Enlargement of time period - Application for - Time for application - [See Limita­tion of Actions - Topic 15 ].

Limitation of Actions - Topic 9614

Enlargement of time period - Application for - Considerations - [See Limitation of Actions - Topic 9424 ].

Practice - Topic 8804

Appeals - Duty of appellate court regard­ing discretionary orders - The Nova Scotia Court of Appeal stated that "we will not interfere with a discretionary order, espec­ially an interlocutory one unless wrong principles of law have been applied or a patent injustice would result" - The court stated that a decision on an application to extend a limitation period to permit an otherwise statute barred action to proceed was not an interlocutory order, because dismissal of the application resulted in final disposition of the case - See para­graphs 56 to 61.

Cases Noticed:

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; 31 D.L.R.(4th) 481, refd to. [para. 8].

MacCulloch (Bankrupt), Re (1989), 93 N.S.R.(2d) 226; 242 A.P.R. 226 (T.D.), refd to. [para. 17].

Anderson v. Co-Operative Fire & Casu­alty Co. (1983), 58 N.S.R.(2d) 163; 123 A.P.R. 163 (T.D.), refd to. [para. 22].

Rushton v. Registrar of Motor Vehicles (N.S.) (1992), 118 N.S.R.(2d) 107; 327 A.P.R. 107 (T.D.), refd to. [para. 45].

Exco Corp. Ltd. v. Nova Scotia Savings & Loan Co. et al. (1983), 59 N.S.R.(2d) 331; 125 A.P.R. 331 (C.A.), refd to. [para. 56].

Nova Scotia (Attorney General) v. Morgentaler (1990), 96 N.S.R.(2d) 54; 253 A.P.R. 54 (C.A.), refd to. [para. 56].

Minkoff v. Poole and Lambert (1991), 101 N.S.R.(2d) 143; 275 A.P.R. 143 (C.A.), refd to. [para. 56].

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. 60].

Saulnier v. Dartmouth Fuels Ltd. (1991), 106 N.S.R.(2d) 425; 288 A.P.R. 425 (C.A.), refd to. [para. 60].

98956 Investments Ltd. (Receivership) v. Fidelity Trust Co. (1988), 89 A.R. 151 (C.A.), refd to. [para. 71].

Velcoff v. Nova Scotia (Attorney General) and Anthony (1986), 73 N.S.R.(2d) 41; 176 A.P.R. 41 (T.D.), refd to. [para. 74].

Bollivar v. Hirtle Estate (1989), 93 N.S.R.(2d) 279; 242 A.P.R. 279 (Probate Ct.), refd to. [para. 74].

Beaver et al. v. Metropolitan Authority (1990), 94 N.S.R.(2d) 250; 247 A.P.R. 250 (T.D.), refd to. [para. 74].

Clarke v. Milford et al. (1987), 78 N.S.R.(2d) 337; 193 A.P.R. 337 (C.A.), dist. [para. 74].

Johnson v. Johnson Estate et al. (1991), 103 N.S.R.(2d) 256; 282 A.P.R. 256 (T.D.), dist. [para. 74].

Statutes Noticed:

Limitation of Actions Act, R.S.N.S. 1989, c. 258, sect. 2(1) [para. 2]; sect. 3(2), sect. 3(3), sect. 3(4), sect. 3(6) [para. 3].

Authors and Works Noticed:

Feeney, Thomas G., The Canadian Law of Wills, Probate (1st Ed. 1976), generally [para. 42].

Sopinka, John, and Gelowitz, Mark A., The Conduct of an Appeal (1993), pp. 6 [para. 58]; 15 [para. 59].

Counsel:

Patricia B. MacCulloch, on her own behalf;

John P. Merrick, Q.C., for the respondent.

This appeal was heard on March 28, 1995, before Freeman, Matthews and Roscoe, JJ.A., of the Nova Scotia Court of Appeal.

On April 20, 1995, Matthews, J.A., delivered the following judgment for the Court of Appeal.