Ryan v. Moore (2005), 247 Nfld. & P.E.I.R. 286 (SCC);
735 A.P.R. 286
MLB headnote and full text
[French language version follows English language version]
[La version française vient à la suite de la version anglaise]
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Temp. Cite: [2005] Nfld. & P.E.I.R. TBEd. JN.024
Cabot Insurance Company Limited and Rex Gilbert Moore, deceased, by his administratrix, Muriel Smith (appellants) v. Peter Ryan (respondent)
(29849; 2005 SCC 38; 2005 CSC 38)
Indexed As:
Ryan v. Moore et al.
Supreme Court of Canada
McLachlin, C.J.C., Major, Bastarache, LeBel, Deschamps, Abella and Charron, JJ.
June 16, 2005.
Summary:
Ryan was injured when Moore’s vehicle collided with his vehicle. Ryan issued a statement of claim on October 28, 1999, within the two year limitation prescribed in the Limitations Act. However, unbeknownst to Ryan, Ryan’s solicitor or the adjuster for Moore’s insurer, Moore had died on December 26, 1998 and letters of administration of his estate had been granted to Muriel Smith on February 16, 1999. Thus, the statement of claim was issued outside the six months following probate or administration prescribed in s. 5 of the Survival of Actions Act. Moore’s insurer applied to intervene in the proceeding and sought an order striking out the statement of claim as being out of time. Ryan applied to amend the statement of claim to name the defendant as “Rex Moore, Deceased, by his administratrix, Muriel Smith”. The insurer asserted that the statement of claim naming a dead person as defendant was a nullity and was not capable of being amended.
The Newfoundland Supreme Court, Trial Division, in a decision reported at 205 Nfld. & P.E.I.R. 211; 615 A.P.R. 211, gave the insurer leave to intervene, gave Ryan leave to amend the statement of claim, and dismissed the insurer’s application for an order striking out the statement of claim or dismissing the action. The insurer and Moore’s estate appealed. Ryan cross-appealed.
The Newfoundland and Labrador Court of Appeal, Cameron and Welsh, JJ.A., dissenting, allowed the appeal and cross-appeal in part. However, the plaintiff retained leave to amend the statement of claim and the insurer’s application to strike out the statement of claim was still denied. The court awarded costs to Ryan. See 224 Nfld. & P.E.I.R. 181; 669 A.P.R. 181. Moore’s insurer and Moore’s estate appealed.
The Supreme Court of Canada allowed the appeal and struck out the statement of claim.
Equity – Topic 3607
Fiduciary or confidential relationships – General principles – Relationships which are not fiduciary – Ryan suffered injuries in a motor vehicle accident with Moore – Moore’s insurer asserted its right to stand in Moore’s place and stead – Its adjuster corresponded with Ryan’s solicitor and referred to Moore as “Our Insured” – Unbeknownst to Ryan, Ryan’s solicitor or the adjuster, Moore had died – Ryan sued Moore – The statement of claim was issued outside the six months following probate or administration prescribed in s. 5 of the Survival of Actions Act – Ryan claimed, inter alia, that estoppel by representation (silence) applied – The Supreme Court of Canada disagreed – The court held that there was no duty on the insurer or the estate, who were at the time only potential defendants, to advise Ryan of a limitation period, to assist him in the prosecution of the claim, or to advise him of the consequences of the death of one of the parties -There was no fiduciary or contractual relationship here – See paragraphs 76 and 77.
Estoppel – Topic 1030
Estoppel in pais (by conduct) – By agreement – Estoppel by convention – The Supreme Court of Canada held that the following criteria formed the basis of the doctrine of estoppel by convention: “1) The parties’ dealings must have been based on a shared assumption of fact or law: estoppel requires manifest representation by statement or conduct creating a mutual assumption. Nevertheless, estoppel can arise out of
silence
(impliedly). 2) A party must have conducted itself, i.e. acted, in reliance on such shared assumption, its actions resulting in a change of its legal position. 3) It must also be unjust or unfair to allow one of the parties to resile or depart from the common assumption. The party seeking to establish estoppel therefore has to prove that detriment will be suffered if the other party is allowed to resile from the assumption since there has been a change from the presumed position.” – See paragraph 59.
Estoppel – Topic 1030
Estoppel in pais (by conduct) – By agreement – Estoppel by convention – Ryan suffered injuries in a motor vehicle accident with Moore – Moore’s insurer asserted its right to stand in Moore’s place and stead – Its adjuster corresponded with Ryan’s solicitor and referred to Moore as “Our Insured” – Unbeknownst to Ryan, Ryan’s solicitor or the adjuster, Moore had died – Ryan sued Moore – The statement of claim was issued outside the six months following probate or administration prescribed in s. 5 of the Survival of Actions Act – Ryan applied to amend the statement of claim to name the defendant as “Rex Moore, Deceased, by his administratrix, Muriel Smith” – The insurer objected – Ryan claimed that estoppel by convention applied – The Supreme Court of Canada disagreed – The crucial requirement for estoppel by convention, which distinguished it from the other types of estoppel, was that at the material time both parties must be of “a like mind” – The court found that here there was mutual ignorance, not mutual assumption – See paragraphs 60 to 63.
Estoppel – Topic 1030
Estoppel in pais (by conduct) – By agreement – Estoppel by convention – The Supreme Court of Canada held that detrimental reliance was a requirement that had to be proven in order to find convention estoppel – The court stated that “Detrimental reliance encompasses two distinct, but interrelated, concepts: reliance and detriment. The former requires a finding that the party seeking to establish the estoppel changed his or her course of conduct by acting or abstaining from acting in reliance upon the assumption, thereby altering his or her legal position. If the first step is met, the second requires a finding that, should the other party be allowed to abandon the assumption, detriment will be suffered by the estoppel raiser because of the change from his or her assumed position” – See paragraphs 67 to 69.
Estoppel – Topic 1156
Estoppel in pais (by conduct) – Representation – By conduct – Silence or standing by – General – The Supreme Court of Canada stated that “an estoppel by representation cannot arise from silence unless a party is under a duty to speak. Silence or inaction will be considered a representation if a legal duty is owed by the representor to the representee to make a disclosure, or take steps, the omission of which is relied upon as creating an estoppel” – See paragraph 76.
Estoppel – Topic 1389
Estoppel in pais (by conduct) – Circumstances where doctrine not applicable – Lack of prejudice or detrimental reliance by person raising estoppel – [See third
Estoppel – Topic 1030
].
Estoppel – Topic 1389
Estoppel in pais (by conduct) – Circumstances where doctrine not applicable – Lack of prejudice or detrimental reliance by person raising estoppel – The Supreme Court of Canada held that “a detriment is not established by a reduced limitation period … Limitation periods and prescriptions, in the diverse areas of the law, have the similar effect and impact. The Survival of Actions Act has provided a benefit not available at common law; this benefit cannot legitimately be characterized as unfair and unjust.” – See paragraph 75.
Insurance – Topic 727
Insurers – Duties – Fiduciary duties – [See
Equity – Topic 3607
].
Limitation of Actions – Topic 15
General principles – Discoverability rule – Application of – Section 5 of the Survival of Actions Act provided that “An action shall not be brought under this Act unless proceedings are started within 6 months after letters of probate or administration of the estate of the deceased have been granted and proceedings shall not be started in an action under this Act after the expiration of 1 year after the date of death of the deceased.” – The Supreme Court of Canada held that the discoverability rule did not apply to the limitation period in the Survival of Actions Act – See paragraphs 16 to 34.
Limitation of Actions – Topic 15
General principles – Discoverability rule – Application of – The Supreme Court of Canada held that “the [discoverability] rule is ‘generally’ applicable where the commencement of the limitation period is related by the legislation to the arising or accrual of the cause of action. The law does not permit resort to the judge-made discoverability rule when the limitation period is explicitly linked by the governing legislation to a fixed event unrelated to the injured party’s knowledge or the basis of the cause of action” – See paragraph 24.
Limitation of Actions – Topic 8555
Claims by or against an estate – Claim against an estate – Time for commencement of action – Section 5 of the Survival of Actions Act provided that “An action shall not be brought under this Act unless proceedings are started within 6 months after letters of probate or administration of the estate of the deceased have been granted and proceedings shall not be started in an action under this Act after the expiration of 1 year after the date of death of the deceased.” – The Supreme Court of Canada held that “the Survival of Actions Act does not create a cause of action. It grafts its provision onto an existing cause of action, one which is complete in all of its elements before the operation of the Survival of Actions Act” – See paragraph 18.
Limitation of Actions – Topic 8555
Claims by or against an estate – Claim against an estate – Time for commencement of action – [See first
Limitation of Actions – Topic 15
].
Limitation of Actions – Topic 8558
Claims by or against an estate – Claim against an estate – Applicable limitation period – [See second
Estoppel – Topic 1030
and first
Limitation of Actions – Topic 15
].
Limitation of Actions – Topic 9305
Postponement or suspension of statute – General – Discoverability rule – [See both
Limitation of Actions – Topic 15
].
Limitation of Actions – Topic 9619
Enlargement of time period – Application for – Grounds – Confirmation of cause of action by defendant – Section 16(1)(a) of the Limitations Act (Nfld. & Lab.) provided that “A confirmation of a cause of action occurs where a person acknowledges that cause of action, right or title of another person” – The Supreme Court of Canada held that “a party can only be held to have acknowledged the claim if that party has in effect admitted his or her liability to pay that which the claimant seeks to recover … a person can acknowledge as a bare fact that someone has asserted (by making a claim) a cause of action against him, without acknowledging any liability. Simple acknowledgment of the ‘existence’ of a cause of action is insufficient to meet the requirements of s. 16(1)(a). Acknowledgment must involve acknowledgment of some liability.” – See paragraph 45.
Limitation of Actions – Topic 9619
Enlargement of time period – Application for – Grounds – Confirmation of cause of action by defendant – A plaintiff claimed that correspondence exchanged between the defendant’s insurance adjuster and his counsel proved acknowledgment of his cause of action, as contemplated by the Limitations Act (Nfld. & Lab.) and therefore confirmation – The Supreme Court of Canada rejected the argument – Mere investigations of claims did not constitute confirmation – Otherwise, potential defendants, in order to protect a limitation defence, would have no choice but to refuse to investigate until a statement of claim was issued – This would destroy the possibility of early settlements and lead to increased litigation and costs – See paragraph 46.
Limitation of Actions – Topic 9619
Enlargement of time period – Application for – Grounds – Confirmation of cause of action by defendant – The Supreme Court of Canada held that payment for a medical report with a cheque payable to a physician, but sent to a plaintiff’s solicitor, did not constitute confirmation of the plaintiff’s cause of action under s. 16 of the Limitations Act (Nfld. & Lab.) – See paragraph 47.
Practice – Topic 666
Parties – Adding or substituting parties – Adding or substituting defendants – Application of limitation periods – [See second
Estoppel – Topic 1030
].
Practice – Topic 669
Parties – Adding or substituting parties – Adding or substituting defendants – Actions respecting estates – [See second
Estoppel – Topic 1030
].
Words and Phrases
Acknowledge
– The Supreme Court of Canada discussed the meaning of this word as found in s. 16(1)(a) of the Limitations Act, S.N.L. 1995, c. L-16.1 – See paragraphs 40 to 45.
Cases Noticed:
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. 2].
Page v. Austin (1884), 10 S.C.R. 132, refd to. [para. 5].
Nielsen v. Kamloops (City) and Hughes, [1984] 2 S.C.R. 2; 54 N.R. 1, refd to. [para. 21].
K.M. v. H.M., [1992] 3 S.C.R. 6; 142 N.R. 321; 57 O.A.C. 321, refd to. [para. 21].
Peixeiro v. Haberman, [1997] 3 S.C.R. 549; 217 N.R. 371; 103 O.A.C. 161, refd to. [para. 23].
Fehr v. Jacob and Bethel Hospital (1993), 85 Man.R.(2d) 63; 41 W.A.C. 63; 14 C.C.L.T.(2d) 200 (C.A.), agreed with [para. 23].
Snow v. Kashyap (1995), 125 Nfld. & P.E.I.R. 182; 389 A.P.R. 182 (Nfld. C.A.), refd to. [para. 23].
Payne v. Brady et al. (1996), 144 Nfld. & P.E.I.R. 91; 451 A.P.R. 91; 140 D.L.R.(4th) 88 (Nfld. C.A.), leave to appeal refused [1997] 2 S.C.R. xii; 218 N.R. 399, refd to. [para. 28].
Burt v. LeLacheur (2000), 186 N.S.R.(2d) 109; 581 A.P.R. 109; 189 D.L.R.(4th) 193 (C.A.), dist. [para. 29].
Waschkowski v. Hopkinson Estate (2000), 129 O.A.C. 287; 47 O.R.(3d) 370 (C.A.), refd to. [para. 31].
Canadian Red Cross Society, Re, [2003] O.A.C. Uned. 375 (C.A.), refd to. [para. 31].
Edwards et al. v. Law Society of Upper Canada et al. (2000), 133 O.A.C. 286; 48 O.R.(3d) 321 (C.A.), refd to. [para. 31].
MacKenzie Estate v. MacKenzie (1992), 84 Man.R.(2d) 149 (Q.B.), refd to. [para. 33].
Justice v. Cairnie Estate et al. (1993), 88 Man.R.(2d) 179; 51 W.A.C. 179; 105 D.L.R.(4th) 501 (C.A.), refd to. [para. 33].
Good v. Parry, [1963] 2 All E.R. 59 (C.A.), refd to. [para. 44].
Surrendra Overseas Ltd. v. Government of Sri Lanka, [1977] 2 All E.R. 481 (Q.B.), refd to. [para. 45].
Podovinikoff v. Montgomery (1984), 14 D.L.R.(4th) 716 (B.C.C.A.), refd to. [para. 45].
Wheaton v. Palmer (2001), 205 Nfld. & P.E.I.R. 304; 615 A.P.R. 304 (Nfld. C.A.), disagreed with [para. 47].
MacKay v. Lemley (1997), 98 B.C.A.C. 260; 161 W.A.C. 260; 44 B.C.L.R.(3d) 382 (C.A.), agreed with [para. 47].
Harper v. Cameron (1892), 2 B.C.R. 365 (S.C.), refd to. [para. 50].
Amalgamated Investment & Property Co. v. Texas Commerce International Bank Ltd., [1982] 1 Q.B. 84 (C.A.), refd to. [para. 51].
National Westminster Finance NZ Ltd. v. National Bank of NZ Ltd., [1996] 1 N.Z.L.R. 548, refd to. [para. 57].
Ship Indian Grace, Re, [1998] 1 Lloyd’s Rep. 1 (H.L.), refd to. [para. 58].
Ship August Leonhardt, Re, [1985] 2 Lloyd’s Rep. 28 (C.A.), refd to. [para. 58].
Ship Vistafjord, Re, [1988] 2 Lloyd’s Rep. 343 (C.A.), refd to. [para. 58].
Canacemal Investment Inc. v. PCI Realty Corp. et al. (1999), 24 B.C.T.C. 355 (S.C.), refd to. [para. 59].
Carpo Investments Ltd. v. Tartan Development Corp., [1998] O.J. No. 1763 (Gen. Div.), refd to. [para. 59].
Troop v. Gibson, [1986] E.G.L.R. 1 (C.A.), refd to. [para. 61].
Hillingdon London Borough v. ARC Ltd., [2000] E.W.J. No. 3278 (C.A.), refd to. [para. 61].
Baird Textile Holdings Ltd. v. Marks & Spencer plc, [2002] 1 All E.R. (Comm.) 737 (C.A.), refd to. [para. 61].
John v. George, [1995] E.W.J. No. 4375 (C.A.), refd to. [para. 62].
Seechurn v. ACE Insurance S.A.-N.V., [2002] 2 Lloyd’s L.R. 390; [2002] E.W.C.A. Civ. 67, refd to. [para. 65].
Litwin Construction (1973) Ltd. v. Pan (1989), 52 D.L.R.(4th) 459 (B.C.C.A.), refd to. [para. 68].
Vancouver City Savings Credit Union v. Norenger Development (Canada) Inc., [2002] B.C.T.C. 934; 2002 BCSC 934, refd to. [para. 68].
32262 B.C. Ltd. v. Companions Restaurants Inc. (1995), 17 B.L.R.(2d) 227 (B.C.S.C.), refd to. [para. 68].
Grundt v. Great Boulder Proprietary Gold Mines Ltd. (1937), 59 C.L.R. 641 (Aust. H.C.), refd to. [para. 69].
Queen (D.J.) v. Cognos Inc., [1993] 1 S.C.R. 87; 147 N.R. 169; 60 O.A.C. 1, refd to. [para. 77].
Statutes Noticed:
Limitations Act, S.N.L. 1995, c. L-16.1, sect. 5 [Appendix A]; sect. 16(1), sect. 16(2), sect. 16(3), sect. 16(5) [para. 39, Appendix A].
Survival of Actions Act, R.S.N.L. 1990, c. S-32, sect. 2, sect. 5 [Appendix A].
Authors and Works Noticed:
Spencer-Bower, George S., The Law Relating to Estoppel by Representation (4th Ed. 2004), pp. 3 to 9 [para. 52]; 6 [para. 68]; 7, 8 [para. 4]; 46, 47 [para. 76]; 179 [para. 53]; 180 [paras. 53, 54]; 181 [para. 74]; 184 [paras. 62, 68].
Chitty on Contracts (29th Ed. 2004), vol. 1, p. 283 [para. 55].
Dawson, T. Brettel, Estoppel and obligation: the modern role of estoppel by convention (1989), 9 L.S. 16, generally [para. 53].
Fridman, Gerald Henry Louis, The Law of Contract in Canada (4th Ed. 1999), p. 140, fn. 302 [para. 4].
Mew, Graeme, The Law of Limitations (2nd Ed. 2004), pp. 55 [para. 24]; 115 [para. 43]; 253 [para. 18].
Wilken, Sean, and Villiers, T., The Law of Waiver, Variation and Estoppel (2nd Ed. 2002), pp. 223 [para. 55]; 227, [paras. 59, 76]; 228 [paras. 59, 69, 73].
Counsel:
Sandra Chaytor and Jorge Segovia, for the appellants;
Ian F. Kelly, Q.C., and Gregory A. French, for the respondent.
Solicitors of Record:
Cox, Hanson, O’Reilly, Matheson, St. John’s, Newfoundland, for the appellants;
Curtis, Dawe, St. John’s, Newfoundland, for the respondent.
This appeal was heard on December 7, 2004, by McLachlin, C.J.C., Major, Bastarache, LeBel, Deschamps, Abella and Charron, JJ., of the Supreme Court of Canada. Bastarache, J., delivered the following decision for the court on June 16, 2005, in both official languages.
