MacDonald v Loblaws

MacDonald v Loblaws

The court exercised its discretion under s.12 to disallow the limitation defence because the delay was short (about 4.5 months), caused by counsel's inadvertence while the claimant acted diligently and gave timely notice to the defendant, the defendant had early awareness and investigated the spill, the defendant did not notify the claimant it intended to rely on the limitation period and failed to show prejudice from the delay; on balance the hardship assessment favored the claimant and it was just to permit the claim to proceed.

Citation
2021 NSSC 267
Parties
Plaintiff/applicant: David MacDonald; Defendant/respondent: Loblaws Inc. c.o.b. Super Valu Supermarket
Court
Supreme Court of Nova Scotia
Jurisdiction
Canada
Judgment Date
18 March 2021
Procedural Posture
Personal Injury (negligence and Occupiers Liability) / Application in Chambers to Disallow Limitation Period Defence Under S.12 Limitations of Actions Act
Outcome
Application granted; defendant’s limitation period defence disallowed and claim allowed to proceed.
Legal Topics
S.12 Limitations of Actions Act, Disallowance of Limitation Defence, Hardship Assessment, Statute of Limitations, Notice Requirements
Source Language
English
Limitations of Actions Personal Injury Occupiers Liability Negligence Civil Procedure S.12 Limitations of Actions Act Disallowance of Limitation Defence Hardship Assessment +2 more

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Parties

David MacDonald

Plaintiff/applicant

Loblaws Inc. c.o.b. Super Valu Supermarket

Defendant/respondent

Procedural Posture

Personal Injury (negligence and Occupiers Liability) / Application in Chambers to Disallow Limitation Period Defence Under S.12 Limitations of Actions Act

Legal Issues

  1. 1 Whether court should disallow defendant's limitation period defence under s.12 of the Limitations of Actions Act
  2. 2 Whether the claimant acted promptly and reasonably despite a lawyer's inadvertence
  3. 3 Whether the defendant suffered prejudice from the delay

Ratio Decidendi

The court exercised its discretion under s.12 to disallow the limitation defence because the delay was short (about 4.5 months), caused by counsel's inadvertence while the claimant acted diligently and gave timely notice to the defendant, the defendant had early awareness and investigated the spill, the defendant did not notify the claimant it intended to rely on the limitation period and failed to show prejudice from the delay; on balance the hardship assessment favored the claimant and it was just to permit the claim to proceed.

Court Disposition

Application granted; defendant’s limitation period defence disallowed and claim allowed to proceed.

Orders

  • Limitation period defence under s.12 of the Limitations of Actions Act disallowed; plaintiff's action may proceed.
  • Plaintiff's counsel to draft the Order.