Mills et al. v. Drum Head Estates Ltd. et al., (2011) 309 N.S.R.(2d) 69 (CA)

• Judge: Hamilton, Fichaud and Bryson, JJ.A.
• Court: Court of Appeal of Nova Scotia (Canada)
• Case Date: September 20, 2011
• Jurisdiction: Nova Scotia
• Citations: (2011), 309 N.S.R.(2d) 69 (CA);2011 NSCA 93

Mills v. Drum Head Estates Ltd. (2011), 309 N.S.R.(2d) 69 (CA);

    979 A.P.R. 69

MLB headnote and full text

Temp. Cite: [2011] N.S.R.(2d) TBEd. OC.027

Drum Head Estates Limited, Celia McClure and Angela Chapin (appellants) v. George E. Mills, Jr., Trustee of the Estate of Stephen Beal Chapin, a Bankrupt (respondent)

(CA 342923; 2011 NSCA 93)

Indexed As: Mills et al. v. Drum Head Estates Ltd. et al.

Nova Scotia Court of Appeal

Hamilton, Fichaud and Bryson, JJ.A.

October 18, 2011.

Summary:

A trustee in bankruptcy moved for an order under s. 3(2) of the Limitation of Actions Act to disallow the respondents' limitation defence.

The Nova Scotia Supreme Court, in a decision reported at 299 N.S.R.(2d) 140; 947 A.P.R. 140, allowed the motion. The respondents appealed.

The Nova Scotia Court of Appeal dismissed the appeal.

Limitation of Actions - Topic 9424

Bars - Disallowance of defence - Considerations - Delay - A bankruptcy trustee moved for an order under s. 3(2) of the Limitation of Actions Act to disallow the defendants' limitation defence - The defence related to a promissory note from one of the defendants to the bankrupt for $463,000 - The Nova Scotia Supreme Court allowed the motion - The "promissory note" was executed on August 14, 1996 and the action was commenced by the trustee on February 14, 2006, more than six years after execution of the note, but less than 10 - Therefore, the court had to determine, considering all of the circumstances, the degree to which the time limitation prejudiced the plaintiff and the prejudice to the defendants, particularly the items set out in s. 3(4)(a) to (g) of the Act - From August 14, 1996 to February 12, 2004, the bankrupt took no action to enforce the debt - He was involved in litigation with his estranged wife in which she was attempting to realize on a judgment she had against him - The trustee commenced the action approximately two years after being aware of the claim - The delay was not inordinate - The defendants did not provide any information or notice to the plaintiff respecting the limitation until the amended defence was filed in 2010 - As a result of court proceedings in Nova Scotia and New York, evidence had been preserved - The trustee had to obtain court orders to move this matter forward - He took the necessary steps to commence and prosecute the action, and obtain the necessary advice required to deal with the claim - The defendants would not be prejudiced by disallowing the defence - The defendants appealed - The Nova Scotia Court of Appeal dismissed the appeal.

Limitation of Actions - Topic 9426

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

Cases Noticed:

Hiscock v. Pasher (2008), 270 N.S.R.(2d) 169; 865 A.P.R. 169; 2008 NSCA 101, refd to. [para. 10].

MacCulloch v. McInnes Cooper & Robertson (1995), 140 N.S.R.(2d) 220; 399 A.P.R. 220 (C.A.), refd to. [para. 12].

Counsel:

G.F. Philip Romney, for the appellants;

Geoffrey A. Saunders and Dillon Trider, for the respondent.

This appeal was heard at Halifax, N.S., on September 20, 2011, by Hamilton, Fichaud and Bryson, JJ.A., of the Nova Scotia Court of Appeal. Hamilton, J.A., delivered the following judgment for the court on October 18, 2011.