Temure et al. v. Hache et al., (2016) 371 N.S.R.(2d) 91 (SC)

• Judge: Moir, J.
• Court: Supreme Court of Nova Scotia (Canada)
• Case Date: November 16, 2015
• Jurisdiction: Nova Scotia
• Citations: (2016), 371 N.S.R.(2d) 91 (SC);2016 NSSC 67

Temure v. Hache (2016), 371 N.S.R.(2d) 91 (SC);

    1169 A.P.R. 91

MLB headnote and full text

Temp. Cite: [2016] N.S.R.(2d) TBEd. MR.013

Husniye Temure and Remziye Kesebi (plaintiffs) v. Paul Marie Hache and Ovilda Richardson (defendants)

(Hfx. No. 436488; 2016 NSSC 67)

Indexed As: Temure et al. v. Hache et al.

Nova Scotia Supreme Court

Moir, J.

March 3, 2016.

Summary:

The plaintiffs sued the defendants for damages for injuries sustained in a motor vehicle accident. There was no question that New Brunswick law applied to the matter, the accident having occurred in that province. The defendants moved for summary judgment based on a limitations defence.

The Nova Scotia Supreme Court dismissed the summary judgment motion. There was a genuine issue for trial as to whether the defendants' insurer's conduct amounted to an "acknowledgement of ... liability" such as to restart the limitation period pursuant to s. 19(1) of the New Brunswick Limitation of Actions Act.

Insurance - Topic 4138

Automobile insurance - Accident benefits - Limitation period - [See both Limitation of Actions - Topic 9306.1 ].

Limitation of Actions - Topic 1528

Estoppel - Conduct - Admission or acknowledgement - [See both Limitation of Actions - Topic 9306.1 ].

Limitation of Actions - Topic 9306.1

Postponement or suspension of statute - By acknowledgement - The Nova Scotia Supreme Court interpreted s. 19 of the New Brunswick Limitation of Actions Act which provided that "(1) If, before the expiry of the relevant limitation period established by this Act, a defendant gives an acknowledgment of ... liability ... to which the claim relates, the operation of the limitation period begins again at the time of the acknowledgment" - The court stated "Because the text of s. 19 indicates a basis for extension that is much more relaxed than estoppel, and because of the interpretations of similar extension provisions in British Columbia and Newfoundland and Labrador, the phrase 'acknowledgment of ... liability' means an admission in the weaker sense of the word, as discussed by Justice Sopinka in Maracle, the kind of admission that supports discussion of settlement. An acknowledgment that a claim is being made is not enough, but an acknowledgment that may be proved against a party as an admission supporting a finding of liability, or a case for estoppel, is not required. An acknowledgment is sufficient if, on objective assessment, it would lead the other party to believe that the acknowledging party intends settlement" - See paragraphs 13 to 19.

Limitation of Actions - Topic 9306.1

Postponement or suspension of statute - By acknowledgement - On June 14, 2012, the defendant made a u-turn on the Trans-Canada Highway in New Brunswick near the Nova Scotia border - He collided with the plaintiff's vehicle - The plaintiff and her passenger were injured - Negotiations ensued between the plaintiffs' lawyer and the defendants' insurer's representative - In November 2013, the insurer's representative wrote to the lawyer about discussing settlement - In April 2014, the insurer requested a settlement demand - In November 2014, a new representative of the insurer raised, for the first time, the two year limitation period in the New Brunswick Limitation of Actions Act and denied liability - There was no question that New Brunswick law applied - The defendants moved for summary judgment relying on the limitation defence - The Nova Scotia Supreme Court denied the motion for summary judgment - There was a genuine issue for trial as to whether the insurer's statements before June 2014 amounted to an "acknowledgement of ... liability" such as to restart the limitation period pursuant to s. 19(1) of the New Brunswick Limitation of Actions Act.

Words and Phrases

An acknowledgment of the right, title, liability or obligation to which the claim relates - The Nova Scotia Supreme Court discussed the meaning of this phrase as it appeared in s. 19(1) of the New Brunswick Limitation of Actions Act, S.N.B. 2009, c. L-8.5 - See paragraphs 13 to 19.

Cases Noticed:

Binder v. Royal Bank of Canada et al. (2005), 234 N.S.R.(2d) 109; 745 A.P.R. 109; 2005 CarswellNS 259; 2005 NSCA 94, refd to. [para. 11].

Maracle v. Travellers Indemnity Co. of Canada, [1991] 2 S.C.R. 50; 125 N.R. 294; 47 O.A.C. 333, refd to. [para. 11].

Oliver v. Elite Insurance Co. (2014), 353 N.S.R.(2d) 232; 1115 A.P.R. 232; 2014 NSSC 413, refd to. [para. 16].

Podovinikoff v. Montgomery, [1984] B.C.J. 1920 (B.C.C.A.), refd to. [para. 20].

Myers v. Dunphy (2005), 251 Nfld. & P.E.I.R. 157; 752 A.P.R. 157; 2005 NLTD 166, refd to. [para. 22].

Statutes Noticed:

Limitation of Actions Act, S.N.B. 2009, c. L-8.5, sect. 5(1)(a) [para. 1]; sect. 19(1) [para. 13].

Counsel:

Peter M. Landry and Craig Arsenault, for the plaintiffs;

Nadia M. MacPhee, for the defendants.

This motion was heard on November 16, 2015, in Halifax, N.S., before Moir, J., of the Nova Scotia Supreme Court, who delivered the following decision on March 3, 2016.