The recent Nova Scotia Supreme Court decision in Dyack v Lincoln is a nice case study on how to work through a limitations issue. It arrives almost two years after the “new” Limitation of Actions Act, SNS 2014, c 35 (“the New Act”) came into force.1 This case study is especially welcome during our ongoing transition time, when both the New Act and the former Limitation of Actions Act, RSNS 1989, c 258 (“the Former Act”)2 may have to be consulted to figure out (a) the relevant limitation period for a claim and (b) whether that limitation period has expired.
Dyack is a case about alleged medical malpractice.
In 2014, the plaintiff (himself a doctor) sued his orthopedic surgeon, alleging that the surgeon failed to obtain informed consent before operating on the plaintiff’s shoulder in 2012. Last year, the plaintiff obtained an expert opinion suggesting that the defendant also breached the standard of care of an orthopedic surgeon in treating the plaintiff, who claims to now suffer from a partially frozen shoulder. Later in 2016, the plaintiff moved to amend his claim to allege that the defendant breached the standard of care.
The defendant argued that the limitation period had already expired so it was too late to add this allegation of negligence. Justice Chipman disagreed and allowed the amendment, taking the following analytical steps.
The first step was assessing whether the amendments pleaded a new cause of action under Nova Scotia Civil Procedure Rule 83.11(3). Distinguishing the recent Court of Appeal decision in Automattic Inc v Trout Point Lodge Ltd, Justice Chipman held that the amendments did allege a new cause of action (see para 25):
…there is nothing in the original pleading that would have put Dr. Lincoln on notice that his actions before, during or after the surgery – other than his alleged failure to obtain informed consent – were being challenged by the Plaintiff. Under even the most liberal approach, it cannot be said that these amendments merely plead an alternative theory of liability based on the same factual matrix. In the result, I am of the view that these amendments add to the factual matrix and advance new claims based on the additional facts.
Because the proposed amendments would advance a new claim, Justice Chipman had to determine the applicable limitation period for that claim, and whether it had expired. After reviewing the varied purposes of limitation periods, Justice Chipman next engaged with section 23 of the New Act. This is the so-called transition provision.
Application of the transition provision depends on whether a “proceeding” was commenced before the New Act came into force, on September 1, 2015.3 The plaintiff started his action in the spring of 2014, well before the New Act came into force. As a result, the limitation periods in the Former Act applied (see paragraph 40).
The two-year limitation period for medical negligence / malpractice under the Former Act had already expired. But that did not end the analysis. The next step was to consider whether the Court could apply section 3(2) of the Former Act to disallow the limitations defence – and Justice Chipman decided he should, exercising his discretion to effectively extend the limitation period (see paragraph 44). In the result, the plaintiff’s claim in medical negligence can continue, but the defendant surgeon “is still able to fully defend every aspect of his treatment” on the merits.
Nova Scotia will likely remain in limitations limbo for quite some time. This is because, in many cases, the Former Act and the New Act will both be on the table when sorting through limitations questions. Clear analysis like Justice Chipman’s will help parties and their counsel work through this transition period – and know their limitations.