Milbury v. Nova Scotia (Attorney General) et al., 2007 NSCA 52

• Judge: Roscoe, Saunders and Fichaud, JJ.A.
• Court: Court of Appeal of Nova Scotia (Canada)
• Case Date: May 04, 2007
• Jurisdiction: Nova Scotia
• Citations: 2007 NSCA 52;(2007), 254 N.S.R.(2d) 181 (CA)

Milbury v. N.S. (A.G.) (2007), 254 N.S.R.(2d) 181 (CA);

    810 A.P.R. 181

MLB headnote and full text

Temp. Cite: [2007] N.S.R.(2d) TBEd. MY.018

Nova Scotia Home for Coloured Children and Family and Children's Services of Annapolis County (appellants) v. Elizabeth Ann Milbury (respondent)

(CA275523; 2007 NSCA 52)

Indexed As: Milbury v. Nova Scotia (Attorney General) et al.

Nova Scotia Court of Appeal

Roscoe, Saunders and Fichaud, JJ.A.

May 4, 2007.

Summary:

The plaintiff was one of 61 former residents of the Nova Scotia Home for Coloured Children (NSHCC) who claimed damages from the defendants for alleged mental, physical and sexual abuse while resident there. The plaintiff's claim was based on being scalded in hot water as an infant and being undernourished. The defendants applied for summary judgment dismissing the plaintiff's claims for want of a genuine issue for trial and on the basis that the Limitation of Actions Act barred the claims.

The Nova Scotia Supreme Court, in a judgment reported (2006), 248 N.S.R.(2d) 230; 789 A.P.R. 230, granted summary judgment dismissing the fiduciary duty claim. Although the defendants owed a fiduciary duty, it was not breached by the conduct alleged, which was properly the subject of the negligence, breach of contract and vicarious liability claims. The court declined to summarily dismiss the latter three claims, as each raised an arguable issue for trial and the pleadings raised an arguable issue that the plaintiff's cause of action was not "discovered" until March 2001, which would result in the claims not being barred by the Limitation of Actions Act. The defendants appealed the dismissal of the summary judgment application for the claims in negligence, vicarious liability and breach of contract and on the basis of the discoverability principle. The plaintiff cross-appealed summary judgment dismissing her breach of fiduciary duty claim.

The Nova Scotia Court of Appeal allowed both the appeal and the cross-appeal. The trial judge erred in failing to grant summary judgment dismissing the claims in negligence, breach of contract and vicarious liability, as there was no real chance of success at trial absent any evidence that the discoverability rule applied to extend the limitation period beyond 1972. The trial judge also erred in granting summary judgment dismissing the breach of fiduciary duty claim, which was not subject to any limitation period. The defendants had not discharged their burden of establishing that there was no genuine issue for trial, so the trial judge erred in placing a burden on the plaintiff to establish a real chance of success.

Equity - Topic 3643

Fiduciary or confidential relationships - Breach of fiduciary relationship - Elements of - The now 61 year old plaintiff was a resident of the Nova Scotia Home for Coloured Children (NSHCC) from 1947 to 1948, when she was 2-3 years of age - The plaintiff was allegedly scalded by a hot bath and undernourished by NSHCC staff - In 2001, the plaintiff allegedly became aware, for the first time, of a possible claim against the NSHCC when she was advised of a newspaper article respecting the claim by another resident - The plaintiff sued for damages for breach of fiduciary duty, negligence, breach of contract and vicarious liability - The trial judge granted summary judgment dismissing the breach of fiduciary duty claim - Although NSHCC and the other defendants (provincial Crown, child protection agencies) owed the plaintiff a fiduciary duty, the conduct alleged did not constitute a breach of that fiduciary duty - There was no evidence that the defendants placed their own interests above that of the plaintiff, which was a requirement for breach of fiduciary duty - The trial judge opined that had the plaintiff succeeded in her "plantation argument" (i.e., forced to work on NSHCC's commercial farm for NSHCC's profit), the court "might have" concluded that there was an arguable case for breach of fiduciary duty - The Nova Scotia Court of Appeal allowed the plaintiff's cross-appeal respecting one defendant and set aside the summary judgment dismissing the claim - The defendants had not discharged their burden of establishing that there was no genuine issue for trial (no evidentiary base for defence provided), so the trial judge erred in placing a burden on the plaintiff to establish a real chance of success - See paragraphs 30 to 37.

Limitation of Actions - Topic 15

General principles - Discoverability rule - Application of - The now 61 year old plaintiff was a resident of the Nova Scotia Home for Coloured Children (NSHCC) from 1947 to 1948, when she was 2-3 years of age - The plaintiff was allegedly scalded by a hot bath and undernourished by NSHCC staff - In 2001, the plaintiff allegedly became aware, for the first time, of a possible claim against the NSHCC when she was advised of a newspaper article respecting the claim by another resident - The plaintiff sued for damages for negligence, breach of contract and vicarious liability - The trial judge denied summary judgment dismissing the claims - The pleadings raised arguable issues to be tried respecting negligence, breach of contract and vicarious liability - Further, there existed an arguable issue that the plaintiff did not discover her cause of action until 2001, which would defeat any limitation of actions defence - The issues were best resolved at a full trial - The Nova Scotia Court of Appeal allowed the defendants' appeal and granted summary judgment dismissing the claims - Absent an extension of the limitation period based on the discoverability rule, all claims would be statute-barred by 1972 at the latest, 31 years before the action was commenced - Accordingly, the burden shifted to the plaintiff to establish a real chance of success by presenting evidence that the discoverability rule applied - That burden was not discharged by evidence that the plaintiff did not know she could sue until 2001 - The court stated that what was important was the "discovery of the facts giving rise to a cause of action that starts the time running, not the discovery of the applicable law" - See paragraphs 20 to 29.

Cases Noticed:

Maritime Travel Inc. v. Go Travel Direct.Com Inc., [2007] N.S.R.(2d) Uned. 13; 2007 NSCA 11, refd to. [para. 15].

United Gulf Developments Ltd. et al. v. Iskandar et al. (2004), 222 N.S.R.(2d) 137; 701 A.P.R. 137; 2004 NSCA 35, refd to. [para. 15].

Eikelenboom v. Holstein Association of Canada (2004), 226 N.S.R.(2d) 235; 714 A.P.R. 235; 2004 NSCA 103, refd to. [para. 15].

Jeffrey v. Naugler (2006), 248 N.S.R.(2d) 372; 789 A.P.R. 372; 2006 NSCA 117, refd to. [para.16].

Frank v. Purdy Estate (1995), 142 N.S.R.(2d) 50; 407 A.P.R. 50 (C.A.), refd to. [para. 16].

Clarke v. Sherman et al. (2002), 205 N.S.R.(2d) 112; 643 A.P.R. 112 (C.A.), refd to. [para. 16].

Binder v. Royal Bank of Canada et al. (2005), 234 N.S.R.(2d) 109; 745 A.P.R. 109; 2005 NSCA 94, refd to. [para. 16].

MacNeil v. Bethune et al. (2006), 241 N.S.R.(2d) 1; 767 A.P.R. 1; 2006 NSCA 21, refd to. [para. 16].

Orlandello v. Nova Scotia (Attorney General) (2005), 234 N.S.R.(2d) 247; 745 A.P.R. 247; 2005 NSCA 98, refd to. [para. 17].

Selig v. Cook's Oil Co. (2005), 230 N.S.R.(2d) 198; 729 A.P.R. 198; 2005 NSCA 36, refd to. [para. 18].

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, refd to. [para. 22].

Soper et al. v. Southcott et al. (1998), 111 O.A.C. 339 (C.A.), refd to. [para. 23].

Gray Condominium Corp. No. 27 v. Blue Mountain Resorts, [2005] O.J. No. 793 (Sup. Ct.), refd to. [para. 23].

Stell et al. v. Obedkoff (1999), 97 O.T.C. 154 (Sup. Ct.), refd to. [para. 25].

Jack v. Canada (Attorney General), [2004] O.T.C. 706 (Sup. Ct.), refd to. [para. 26].

Coutanche v. Napolean Delicatessen et al., [2004] O.A.C. Uned. 578 (C.A.), refd to. [para. 27].

Hill v. Registrar of South Alberta Land Registration District, [1993] 5 W.W.R. 47; 135 A.R. 266; 33 W.A.C. 266; 100 D.L.R.(4th) 331 (C.A.), refd to. [para. 27].

K.M. v. H.M., [1992] 3 S.C.R. 6; 142 N.R. 321; 57 O.A.C. 321, refd to. [para. 31].

D.K. v. B.D. Estate, [2000] N.S.J. No. 330 (S.C.), refd to. [para. 31].

Allen v. Royal Canadian Legion (2007), 254 N.S.R.(2d) 38; 810 A.P.R. 38; 2007 NSCA 44, refd to. [para. 31].

Authors and Works Noticed:

Rotman, Leonard Ian, Fiduciary Law (2005), p. 619 ff. [para. 31].

Counsel:

John Kulik, for the appellant, Nova Scotia Home for Coloured Children;

W. Bruce Gillis, Q.C., for the appellant, Family and Children's Services;

Raymond Wagner and Fiona Imrie, for the respondent.

This appeal and cross-appeal were heard on April 2, 2007, at Halifax, N.S., before Roscoe, Saunders and Fichaud, JJ.A., of the Nova Scotia Court of Appeal.

On May 4, 2007, Roscoe, J.A., delivered the following judgment for the Court of Appeal.