Smith v. Atlantic Wholesalers Ltd., (2012) 314 N.S.R.(2d) 12 (SC)

• Judge: Wood, J.
• Court: Supreme Court of Nova Scotia (Canada)
• Case Date: December 06, 2011
• Jurisdiction: Nova Scotia
• Citations: (2012), 314 N.S.R.(2d) 12 (SC);2012 NSSC 14

Smith v. Atlantic Wholesalers (2012), 314 N.S.R.(2d) 12 (SC);

    994 A.P.R. 12

MLB headnote and full text

Temp. Cite: [2012] N.S.R.(2d) TBEd. JA.033

Beverly Smith (plaintiff) v. Atlantic Wholesalers Limited, carrying on business as Super Valu (defendant) and APM Construction Services Inc. (third party)

(Syd. No. 115217; 2012 NSSC 14)

Indexed As: Smith v. Atlantic Wholesalers Ltd.

Nova Scotia Supreme Court

Wood, J.

January 10, 2012.

Summary:

The plaintiff was injured in a slip and fall at a grocery store in 1999. In 2001, she sued the defendant store owner. In January 2010, the defendant issued a claim for contribution and indemnity against a third party, a construction company, which was working in the store at the time of the incident. The third party sought summary judgment, arguing that the limitation period had expired.

The Nova Scotia Supreme Court granted summary judgment dismissing the claim.

Courts - Topic 126

Stare decisis - Authority of judicial decisions - Prior decisions of same court - Decisions binding on provincial courts - [See Practice - Topic 1043 ].

Courts - Topic 126.1

Stare decisis - Authority of judicial decisions - Courts of superior jurisdiction - Supreme Court of Canada - General - [See Practice - Topic 1043 ].

Practice - Topic 1043

Parties - Third party procedure - General principles - Application of limitation periods - In 2001, the plaintiff sued the defendant store owner, respecting a slip and fall incident - In January 2010, the defendant issued a claim for contribution and indemnity against a third party - The third party sought summary judgment and, relying on Stetar v. Poirier (SCC 1975), argued that the third party claim for contribution was governed by the limitation period applicable to the plaintiff's potential claim against it (six years) - The defendant, relying on Vance v. Mackenzie (NSCA 1977), argued that the limitation period against the third party did not start to run until there was a finding of liability imposed on the defendant - The Nova Scotia Supreme Court, held that the Supreme Court of Canada decision in Stetar governed on the basis of stare decisis - Further, the MacKenzie decision was per incuriam and should not be followed (i.e., the Stetar decision was not brought to the attention of the Court of Appeal in MacKenzie) - Thus, the limitation period for the third party indemnity claim began to run when the plaintiff's cause of action against that party accrued, and not when liability was imposed on the defendant.

Torts - Topic 7394

Joint tortfeasors - Contribution between tortfeasors - Loss of right to claim contribution (incl. limitation period) - [See Practice - Topic 1043 ].

Cases Noticed:

Vance v. Mackenzie et al. (1977), 19 N.S.R.(2d) 381; 24 A.P.R. 381 (C.A.), not folld. [para. 11].

Stetar v. Poirier and Parkland No. 31 (County), [1975] 2 S.C.R. 884; [1975] 1 W.W.R. 441; 3 N.R. 311, folld. [para. 14].

Trustees of St. Matthews Church v. Stone (C.W.) Contractors et al. (1994), 132 N.S.R.(2d) 103; 376 A.P.R. 103 (S.C.), refd to. [para. 16].

Canada Deposit Insurance Corp. et al. v. Prisco et al., [1996] 7 W.W.R. 30; 181 A.R. 161; 116 W.A.C. 161; 38 Alta. L.R.(3d) 97 (C.A.), refd to. [para. 17].

Paine (J.R.) & Associates Ltd. v. Strong Lamb & Nelson Ltd. and Proctor, [1979] 6 W.W.R. 353; 18 A.R. 112 (C.A.), refd to. [para. 28].

Campbell et al. v. Bartlett and Young (No. 2), [1980] 1 W.W.R. 758; 2 Sask.R. 139, refd to. [para. 32].

Investors Group Trust Co. et al. v. Gordon et al. (1998), 131 Man.R.(2d) 243; 187 W.A.C. 243; 169 D.L.R.(4th) 462 (C.A.), refd to. [para. 33].

Young v. Bristol Aeroplane Co., [1944] K.B. 718 (C.A.), refd to. [para. 39].

R. v. Neves (J.A.), [2006] 4 W.W.R. 464; 201 Man.R.(2d) 44; 366 W.A.C. 44; 2005 MBCA 112, refd to. [para. 41].

Al's Steak House and Tavern Inc. et al. v. Deloitte & Touche et al. (1997), 102 O.A.C. 144; 13 C.P.C.(4th) 90 (C.A.), refd to. [para. 42].

Authors and Works Noticed:

Cross, Rupert, and Harris, J.W., Precedent in English Law (4th Ed. 1991), p. 143 [para. 39].

Klar, Lewis N., Annotation to Vance v. Mackenzie et al., 2 C.C.L.T. 63, generally [para. 23].

Counsel:

J. W. Stephen Johnston, for the third party applicant;

Peter Rumscheidt, for the defendant respondent.

This matter was heard in Chambers in Halifax, Nova Scotia, on December 6, 2011, before Wood, J., of the Nova Scotia Supreme Court, who delivered the following decision on January 10, 2012.