Savoury v. Nova Scotia (Attorney General), (2013) 328 N.S.R.(2d) 268 (CA)

• Judge: Fichaud, Hamilton and Beveridge, JJ.A.
• Court: Court of Appeal of Nova Scotia (Canada)
• Case Date: March 20, 2013
• Jurisdiction: Nova Scotia
• Citations: (2013), 328 N.S.R.(2d) 268 (CA);2013 NSCA 36

Savoury v. N.S. (A.G.) (2013), 328 N.S.R.(2d) 268 (CA);

    1039 A.P.R. 268

MLB headnote and full text

Temp. Cite: [2013] N.S.R.(2d) TBEd. MR.047

George Savoury (appellant) v. The Attorney General of Nova Scotia representing Her Majesty The Queen in Right of the Province of Nova Scotia (respondent)

(CA 389970; 2013 NSCA 36)

Indexed As: Savoury v. Nova Scotia (Attorney General)

Nova Scotia Court of Appeal

Fichaud, Hamilton and Beveridge, JJ.A.

March 20, 2013.

Summary:

The plaintiff was employed for 15 years by the province of Newfoundland (Nfld.). He resigned in 1987. He commenced employment in 1989 with the province of Nova Scotia (N.S.). A reciprocal agreement between Nfld. and N.S. allowed him to transfer his 15 years of Nfld. pensionable service to N.S., but the value of his Nfld. pension plan would purchase only seven years of N.S. pensionable service. He would have to buy back the eight year deficiency. The transfer documents signed by the plaintiff clearly informed the plaintiff of this, but he did not read them. Several months later, when the plaintiff learned of the deficiency, it was too late to cancel the transfer. Rather than buying back the deficiency at the cost indicated, the plaintiff spent years trying to have someone else pay to buy back the deficiency. It was years before the plaintiff complained that he was led to believe that his 15 years of Nfld. pensionable service would give him 15 years of N.S. pensionable service without any additional cost. In 2006, more than 16 years after learning of the deficiency, the plaintiff sued N.S. for breach of contract and negligent misrepresentation.

The Nova Scotia Supreme Court, in a judgment reported (2012), 313 N.S.R.(2d) 319; 990 A.P.R. 319, dismissed the action. There was no breach of contract and no misrepresentation. In any event, the action was barred by the expiration of the six year limitation period in s. 2(1)(e) of the Limitation of Actions Act. The court subsequently awarded the defendant lump costs of $45,000 under rule 77.08 (See (2012), 319 N.S.R.(2d) 175; 1010 A.P.R. 175). The plaintiff appealed the dismissal of his claim.

The Nova Scotia Court of Appeal dismissed the appeal.

Fraud and Misrepresentation - Topic 2508

Misrepresentation - General principles - Negligent misrepresentation - [See Limitation of Actions - Topic 2023 ].

Limitation of Actions - Topic 2023

Actions in contract - Actions for breach of contract - When time commences to run - The plaintiff was employed for 15 years by the province of Newfoundland (Nfld.) - He resigned in 1987 - He commenced employment in 1989 with the province of Nova Scotia (N.S.) - A reciprocal agreement between Nfld. and N.S. allowed him to transfer his 15 years of Nfld. pensionable service to N.S., but the value of his Nfld. pension plan would purchase only seven years of N.S. pensionable service - He would have to buy back the eight year deficiency - The transfer documents signed by the plaintiff clearly informed the plaintiff of this, but he did not read them - Several months later, when the plaintiff learned of the deficiency, it was too late to cancel the transfer - Rather than buying back the deficiency at the cost indicated, the plaintiff spent years trying to have either Nfld. or N.S. pay it - It was years before the plaintiff complained that he was led to believe that his 15 years of Nfld. pensionable service would give him 15 years of N.S. pensionable service without any additional cost - In 2006, more than 16 years after learning of the deficiency, the plaintiff sued N.S. for breach of contract and negligent misrepresentation - The trial judge dismissed the action - There was no breach of contract and no evidence (apart from the plaintiff's unsubstantiated belief) of any misrepresentation or assurance that induced him to request that his Nfld. years of pensionable service be transferred to N.S. years of pensionable service - In any event, the action was barred by the expiration of the six year limitation period in s. 2(1)(e) of the Limitation of Actions Act, as time commenced running in 1989 - The Nova Scotia Court of Appeal affirmed the decision absent palpable and overriding error in the trial judge's findings of fact or mixed fact and law - Although the court did not disagree with the trial judge's analysis and conclusion on the limitation issues, it was unnecessary to deal with those issues on appeal as the appeal had been dismissed on its merits.

Limitation of Actions - Topic 3011

Actions in tort - General principles - When time begins to run - Attribution of knowledge - [See Limitation of Actions - Topic 2023 ].

Cases Noticed:

Housen v. Nikolaisen et al., [2002] 2 S.C.R. 235; 286 N.R. 1; 219 Sask.R. 1; 272 W.A.C. 1; 2002 SCC 33, refd to. [para. 33].

H.L. v. Canada (Attorney General) et al., [2005] 1 S.C.R. 401; 333 N.R. 1; 262 Sask.R. 1; 347 W.A.C. 1; 2005 SCC 25, refd to. [para. 33].

Cape Breton Development Corp. v. Roper (D.) Services Ltd. (2005), 229 N.S.R.(2d) 307; 725 A.P.R. 307; 2005 NSCA 7, refd to. [para. 33].

MacNeil v. Nova Scotia (Attorney General) et al. (2000), 183 N.S.R.(3d) 119; 568 A.P.R. 119; 2000 NSCA 31, refd to. [para. 55].

Queen (D.J.) v. Cognos Inc., [1993] 1 S.C.R. 87; 147 N.R. 169; 60 O.A.C. 1, refd to. [para. 62].

Spinks v. Canada, [1996] 2 F.C. 563; 195 N.R. 184 (F.C.A.), refd to. [para. 62].

Allison v. Noranda Inc. et al. (2001), 239 N.B.R.(2d) 211; 619 A.P.R. 211; 2001 NBCA 67, refd to. [para. 62].

Hedley Byrne & Co. v. Heller and Partners Ltd., [1963] 2 All E.R. 575 (H.L.), refd to. [para. 63].

Counsel:

Ann E. Smith and Leon S. Tovey (articled clerk), for the appellant;

Alexander M. Cameron, for the respondent.

This appeal was heard on November 22, 2012, at Halifax, N.S., before Fichaud, Hamilton and Beveridge, JJ.A., of the Nova Scotia Court of Appeal.

On March 20, 2013, Beveridge, J.A., delivered the following judgment for the Court of Appeal.