Oliver v. Elite Insurance Co., (2015) 356 N.S.R.(2d) 318 (SC)

• Judge: Rosinski, J.
• Court: Supreme Court of Nova Scotia (Canada)
• Case Date: September 11, 2014
• Jurisdiction: Nova Scotia
• Citations: (2015), 356 N.S.R.(2d) 318 (SC);2015 NSSC 70

Oliver v. Elite Ins. (2015), 356 N.S.R.(2d) 318 (SC);

    1126 A.P.R. 318

MLB headnote and full text

Temp. Cite: [2015] N.S.R.(2d) TBEd. MR.012

Regan Oliver (plaintiff) v. Elite Insurance Company (defendant)

(Hfx. No. 415765; 2015 NSSC 70)

Indexed As: Oliver v. Elite Insurance Co.

Nova Scotia Supreme Court

Rosinski, J.

March 5, 2015.

Summary:

The plaintiff was injured in an October 2001 motor vehicle accident involving Sangster. The plaintiff initially returned to work, but since October 2004 was incapable of working and in receipt of CPP disability benefits. The plaintiff sued Sangster in October 2003. Mediation in June 2008 resulted in a settlement of the action for the maximum of Sangster's insurance coverage ($200,000). This was the first time that the plaintiff and his counsel were aware that Sangster's insurance coverage was limited to the $200,000 statutory minimum. The plaintiff immediately notified the plaintiff's parents' insurer (Elite) that an excess claim would be made against them under clause 6(c) of the SEF 44 endorsement. Clause 6(c) provided that any claim for such excess coverage had to be commenced within 12 months "from the date upon which the eligible claimant or his legal representative knew or ought to have known" that the plaintiff's claim exceeded the statutory minimum coverage. Calculating the value of the plaintiff's claim was complicated by his pre-existing cerebral palsy and further injuries in 2005 and 2006 motor vehicle accidents. The action against Elite was not commenced until May 2013. Elite's statement of defence raised a limitations of action defence. In May 2014, the plaintiff moved to disallow the limitation period defence. At issue was: (1) whether clause 6(c) was ambiguous and should be interpreted contra proferentem; (2) when the limitation period expired; (3) whether Elite waived the limitation period defence or was estopped from relying on it; and (4) whether the plaintiff should be granted relief under s. 3 of the Limitation of Actions Act.

The Nova Scotia Supreme Court, in a judgment reported (2014), 353 N.S.R.(2d) 232; 1115 A.P.R. 232, held that clause 6(c) was not ambiguous. The time limitation commenced when the plaintiff had a body of evidence accumulated that would give him a reasonable chance of persuading a judge that his claims would exceed $200,000, with an allowance or "latitude" in relation to the assessment of the claim by the plaintiff's counsel. The plaintiff neither knew nor ought to have known that his claim exceeded $200,000 until the mediation brief was prepared on June 16, 2008. The 12 month limitation period commenced on June 16, 2008. Although Elite had not waived the limitation period, Elite had by its conduct and statements created a promissory estoppel respecting when the limitation period would commence. Accordingly, the limitation period expired June 2009 at the earliest and possibly as late as March 2010 (when mediation with Elite failed and Elite asked for the statement of claim). The court exercised its discretion to grant the plaintiff relief under s. 3 of the Limitation of Actions Act. The four year extension resulted in the plaintiff's action being commenced in time. The motion to disallow the limitation period defence was allowed and the action was permitted to proceed on its merits. Now at issue was costs on the motion.

The Nova Scotia Supreme Court awarded the successful plaintiff lump sum costs of $18,000 (60% of reasonable fees on the motion) to be paid forthwith in any event of the cause.

Practice - Topic 6967

Costs - Definitions - Costs payable in any event of the cause - [See Practice - Topic 7117 ].

Practice - Topic 7117

Costs - Party and party costs - Special orders - Lump sum in lieu of taxed costs - The plaintiff successfully moved to disallow an insurer's limitation period defence, which permitted the action to proceed - The court had to consider the unsettled question about when an SEF 44 endorsement limitation period found in motor vehicle insurance policies began to run, the effect of estoppel on the contractual limitation period, and whether the plaintiff was entitled to rely on s. 3 of the Limitation of Actions Act to extend the time to file a statement of claim - The motion was heard over two days - The plaintiff's counsel estimated legal costs at almost $44,000 - The Nova Scotia Supreme Court held that the motion was sufficiently factually and legally complex to warrant a lump sum award of costs to substantially contribute to the plaintiff's costs for the motion - The court estimated reasonable legal costs of preparing for and presenting the motion at $30,000 - The plaintiff was awarded costs of $18,000 (60%), plus HST and disbursements - Given the significance of the issue and its potential to be largely determinative of the plaintiff's claim, it was appropriate to order that costs be paid forthwith in any event of the cause.

Practice - Topic 7364

Costs - Costs of interlocutory proceedings - Costs of motions or applications - [See Practice - Topic 7117 ].

Practice - Topic 7372

Costs - Costs of interlocutory proceedings - Payment forthwith - [See Practice - Topic 7117 ].

Cases Noticed:

Armour Group Ltd. v. Halifax (Regional Municipality) (2008), 267 N.S.R.(2d) 350; 853 A.P.R. 350; 2008 NSSC 123, refd to. [para. 5].

Richards v. Richards et al. (2013), 335 N.S.R.(2d) 203; 1060 A.P.R. 203; 2013 NSSC 269, refd to. [para. 5].

Amaratunga v. Northwest Atlantic Fisheries Organization (2011), 297 N.S.R.(2d) 385; 943 A.P.R. 385; 2011 NSSC 3, refd to. [para. 5].

Cummings v. Belfast Mini-Mills Ltd. (2011), 306 N.S.R.(2d) 190; 968 A.P.R. 190; 2011 NSSC 320, refd to. [para. 5].

North American Trust Co. et al. v. Salvage Association (1998), 173 N.S.R.(2d) 249; 527 A.P.R. 249; 1998 NSCA 210, refd to. [para. 5].

Counsel:

John Rafferty, Q.C., and Daniel Roper, for the plaintiff;

J. Scott Barnett, for the defendant.

This matter was heard on September 11, 2014, at Halifax, N.S., before Rosinski, J., of the Nova Scotia Supreme Court, who delivered the following judgment on March 5, 2015.