Smith v. Clayton et al., (1994) 133 N.S.R.(2d) 157 (SC)

• Judge: Goodfellow, J.
• Court: Supreme Court of Nova Scotia (Canada)
• Case Date: June 14, 1994
• Jurisdiction: Nova Scotia
• Citations: (1994), 133 N.S.R.(2d) 157 (SC)

Smith v. Clayton (1994), 133 N.S.R.(2d) 157 (SC);

  380 A.P.R. 157

MLB headnote and full text

Elson Vinnie Smith and Aleta May Smith (plaintiffs) v. Victor Guy Clayton and Mary Clayton (defendants) and Co-operators General Insurance Company (third party)

(S.H. No. 93-2171)

Indexed As: Smith v. Clayton et al.

Nova Scotia Supreme Court

Goodfellow, J.

July 13, 1994.

Summary:

The plaintiff parents of a boy killed in a single vehicle accident commenced an action under the Fatal Injuries Act outside the one year limitation period. The plaintiffs applied under s. 3(2) of the Limitation of Actions Act to set aside the defendants' defence based on expiration of the limitation period.

The Nova Scotia Supreme Court allowed the application and struck the limitation period defences.

Barristers and Solicitors - Topic 1541.1

Relationship with client - Duty to client - When limitation period missed - The Nova Scotia Supreme Court stated that "the moment a solicitor realizes a limita­tion period has been missed, the wisest course of action is to commence the action forthwith. Sufficient, general authority normally exists with a solicitor to protect a client's interests, by commencing forth­with the action, and if, with the passage of time, the client does not wish to confirm the commencement of legal action, then it is simply a matter of discontinuance. The more prudent course invariably is to com­mence the action immediately, when it is recognized that a limitation period has expired. Not only should a solicitor, on realizing a limitation period has expired, immediately protect a client but also a client should be advised of the failure to recognize the limitation period and also be advised of an entitlement to seek indepen­dent advice on the situation." - See para­graphs 26 to 27.

Limitation of Actions - Topic 9426

Bars - Disallowance of defence - Con­siderations - Prejudice to parties - A boy died in a February 17, 1991, single vehicle accident - The parent's claim under the Fatal Injuries Act had to be commenced within one year - Counsel was retained within four months of the accident and advised the defendants and insurer of a possible claim - Counsel, apparently unaware of the limitation period, did not commence an action before leaving the firm in June 1992 - When the firm trans­ferred the file to another lawyer, a further three months passed before the claim was filed - The parents applied under s. 3(2) of the Limitation of Actions Act to disallow the defendants' defence based on the claim being commenced 15 months after the limitation period expired - The Nova Scotia Supreme Court struck the limitation period defences - It was equitable for the claim to proceed, because, inter alia, the defendants were not prejudiced.

Cases Noticed:

McGuire and McGuire v. Fermini (1984), 64 N.S.R.(2d) 60; 143 A.P.R. 60 (C.A.), refd to. [para. 18].

Smith v. Hunter (1994), 126 N.S.R.(2d) 254; 352 A.P.R. 254 (S.C.), refd to. [para. 45].

Bollivar v. Hirtle Estate (1990), 97 N.S.R.(2d) 247; 258 A.P.R. 247 (C.A.), refd to. [para. 49].

Statutes Noticed:

Fatal Injuries Act, R.S.N.S. 1989, c. 163, sect. 10 [para. 12].

Interpretation Act, R.S.N.S. 1989, c. 235, sect. 9(5) [para. 12].

Judicature Act, R.S.N.S. 1989, c. 240, sect. 43(11) [para. 12].

Limitation of Actions Act, R.S.N.S. 1989, c. 258, sect. 3(2), sect. 3(4) [para. 12].

Counsel:

Michael J. Wood and C. LouAnn Chais­son, for the plaintiffs;

John Kulik, for the defendants;

S. Raymond Morse, for the third party.

This application was heard at Halifax, N.S., on June 14, 1994, before Goodfellow, J., of the Nova Scotia Supreme Court, who delivered the following decision on July 13, 1994.