Novak v. Bond (1999), 239 N.R. 134 (SCC)
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[French language version follows English language version]
[La version française vient à la suite de la version anglaise]
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Temp. Cite: [1999] N.R. TBEd. MY.019
Donald Bond (appellant) v. Barbara Novak and Anton Novak (respondents)
(26811)
Indexed As: Novak et al. v. Bond
Supreme Court of Canada
Lamer, C.J.C., L’Heureux-Dubé,
Gonthier, Cory, McLachlin,
Iacobucci and Major, JJ.
May 20, 1999.
Summary:
The plaintiff saw the defendant doctor six times between October 1989 and October 1990 respecting a lump in her breast. The defendant did not diagnose breast cancer. Later in October 1990, a specialist diagnosed the plaintiff with breast cancer. A partial radical mastectomy was performed and it was discovered cancer had spread to 12 of her 13 lymph nodes. After recovering for one year the plaintiff decided not to sue the defendant. Four years later (May 1995), the cancer recurred, spreading to her spine, liver and lung. On April 6, 1996, the plaintiff commenced an action for medical negligence. The defendant applied under rule 18A to dismiss the action on the ground that it was barred by the two year limitation period in s. 3(2)(a) of the Limitation Act. The plaintiff submitted that s. 6(4)(b) of the Act applied to postpone the running of the limitation period.
The British Columbia Supreme Court, in a judgment reported [1997] B.C.J. No. 1900, granted the rule 18A motion and dismissed the action as being statute-barred. The plaintiff appealed.
The British Columbia Court of Appeal, in a judgment reported 110 B.C.A.C. 103; 178 W.A.C. 103, allowed the appeal, applying s. 6(4)(b) to postpone the running of the limitation period. The defendant appealed.
The Supreme Court of Canada, Lamer, C.J.C., Iacobucci and Major, JJ., dissenting, dismissed the appeal. The court disagreed with the Court of Appeal’s test for s. 6(4)(b), but agreed with the result that s. 6(4)(b) applied to postpone the running of the limitation period until May 1995.
Limitation of Actions – Topic 2
General principles – Purpose of limitation provisions – The Supreme Court of Canada stated that the purpose of limitations statutes were to: “(1) define a time at which potential defendants may be free of ancient obligations, (2) prevent the bringing of claims where the evidence may have been lost to the passage of time, (3) provide an incentive for plaintiffs to bring suits in a timely fashion, and (4) account for the plaintiff’s own circumstances, as assessed through a subjective/objective lens, when assessing whether a claim should be barred by the passage of time.” – See paragraph 34.
Limitation of Actions – Topic 9305
Postponement or suspension of statute – Discoverability rule – Section 6(4)(b) of the Limitation Act provided that time did not begin to run against a plaintiff in a personal injury action until, inter alia, the plaintiff “ought, in the person’s own interests and taking the person’s circumstances into account, to be able to bring the action” – The plaintiff saw the defendant doctor six times between October 1989 and October 1990 respecting a lump in her breast – The defendant did not diagnose breast cancer – Later in October 1990, a specialist diagnosed the plaintiff with breast cancer – A partial radical mastectomy was performed and it was discovered cancer had spread to 12 of her 13 lymph nodes – After recovering for one year the plaintiff decided not to sue the defendant -Four years later (May 1995), the cancer recurred, spreading to her spine, liver and lung – On April 6, 1996, the plaintiff commenced an action for medical negligence – The defendant applied under rule 18A to dismiss the action on the ground that it was barred by the two year limitation period in s. 3(2)(a) of the Limitation Act – The Supreme Court of Canada affirmed that s. 6(4)(b) applied to postpone commencement of the two year limitation period until May 1995 – See paragraphs 58 to 66.
Limitation of Actions – Topic 9305
Postponement or suspension of statute – Discoverability rule – Section 6(4)(b) of the Limitation Act provided that time did not begin to run against a plaintiff in a personal injury action until, inter alia, the plaintiff “ought, in the person’s own interests and taking the person’s circumstances into account, to be able to bring the action” – The Supreme Court of Canada stated that the proper interpretation of s. 6(4)(b) was as follows: “Section 6(4)(b) requires the court to adopt the perspective of a reasonable person who knows the facts that are within the plaintiff’s knowledge and has taken the appropriate advice a reasonable person would seek on those facts. Time does not begin to run until this reasonable person would conclude that someone in the plaintiff’s position
could
, acting reasonably in light of his or her own circumstances and interests, bring an action. The question posed by s. 6(4)(b) therefore becomes: ‘in light of his or her own particular circumstances and interests, at what point could the plaintiff reasonably have brought an action?’ The reasonable person would only consider that the plaintiff could not have brought an action at the time the right to do so first arose if the plaintiff’s own interests and circumstances were serious, significant, and compelling. Purely tactical concerns have no place in this analysis.” – See paragraph 6.
Cases Noticed:
Evans v. Vancouver Port Corp. (1989), 42 B.C.L.R.(2d) 174 (C.A.), additional reasons at (1990), 46 B.C.L.R.(2d) 334 (C.A.), refd to. [para. 25].
Karsanjii Estate v. Roque, [1990] 3 W.W.R. 612 (B.C.C.A.), refd to. [para. 25].
Frosch Construction Ltd. et al. v. Volrich (1995), 60 B.C.A.C. 266; 99 W.A.C. 266; 7 B.C.L.R.(3d) 72 (C.A.), refd to. [para. 27].
Vance v. Peglar et al. (1996), 78 B.C.A.C. 299; 128 W.A.C. 299; 22 B.C.L.R.(3d) 251 (C.A.), leave to appeal refused, [1997] 1 S.C.R. x, refd to. [para. 27].
Rizzo & Rizzo Shoes Ltd. (Bankrupt), Re, [1998] 1 S.C.R. 27; 221 N.R. 241; 106 O.A.C. 1, refd to. [para. 30].
Peixeiro v. Haberman, [1997] 3 S.C.R. 549; 217 N.R. 371; 103 O.A.C. 161, refd to. [para. 31].
K.M. v. H.M., [1992] 3 S.C.R. 6; 142 N.R. 321; 57 O.A.C. 321, refd to. [para. 31].
Murphy v. Welsh, [1993] 2 S.C.R. 1069; 156 N.R. 263; 65 O.A.C. 103, addendum 157 N.R. 372; 66 O.A.C. 240, refd to. [para. 31].
Nielsen v. Kamloops (City), Hughes and Hughes, [1984] 2 S.C.R. 2; 54 N.R. 1; 10 D.L.R.(4th) 641; [1984] 5 W.W.R. 1, refd to. [para. 32].
Central Trust Co. v. Rafuse and Cordon, [1986] 2 S.C.R. 147; 69 N.R. 321; 75 N.S.R.(2d) 109; 186 A.P.R. 109, refd to. [para. 32].
Bera v. Marr (1986), 1 B.C.L.R.(2d) 1 (C.A.), refd to. [para. 35].
Zeidan v. British Columbia, [1989] B.C.J. No. 598 (S.C.), refd to. [para. 36].
Trueman v. Ripley et al., [1998] B.C.T.C. Uned. C42 (S.C.), refd to. [para. 53].
Royal North Shore Hospital v. Henderson (1986), 7 N.S.W.L.R. 283 (C.A.), refd to. [para. 55].
Statutes Noticed:
Limitation Act, R.S.B.C. 1996, c. 266, sect. 3(2)(a) [para. 17]; sect. 6(3)(a), sect. 6(3)(c), sect. 6(4), sect. 6(5) [para. 18]; sect. 7 [para. 19]; sect. 8(1)(b) [para. 20].
Authors and Works Noticed:
Alberta, Law Reform Institute, Limitations, Report No. 55 (1989), pp. 15, 16 [para. 32].
British Columbia, Law Reform Commission, Report of the Law Reform Commission being the First Report on the Limitation of Actions (LRC 3) (1967), p. 135 [para. 54].
British Columbia, Law Reform Commission, Report on Limitations, Part 2: General (LRC 15) (1974), pp. 9 to 16 [para. 32].
British Columbia, Law Reform Commission, Report on the Ultimate Limitation Period: Limitation Act, Section 8 (LRC 112) (1990), pp. 21 to 23 [para. 37].
Legate, B., Limitation Periods in Medical Negligence Actions Post-Peixeiro (1998), 20 Adv. Q. 326, p. 334 [para. 52].
Counsel:
Christopher E. Hinkson, Q.C., and Raj Samtani, for the appellant;
Joseph J. Arvay, Q.C., and Catherine J. Parker, for the respondents.
Solicitors of Record:
Harper, Grey, Easton, Vancouver, B.C., for the appellant;
Arvay, Finlay, Victoria, B.C., for the respondents.
This appeal was heard on March 18, 1999, before Lamer, C.J.C., L’Heureux-Dubé, Gonthier, Cory, McLachlin, Iacobucci and Major, JJ., of the Supreme Court of Canada.
On May 20, 1999, the judgment of the Supreme Court of Canada was delivered in both official languages and the following opinions were filed:
McLachlin, J. (L’Heureux-Dubé, Gonthier and Cory, JJ., concurring) – see paragraphs 1 to 66;
Iacobucci and Major, JJ. (Lamer, C.J.C., concurring), dissenting – see paragraphs 67 to 99.
