Personal Injury Cases and the New Limitations of Actions Act

On November 20, 2014, Royal Assent was given to the new Limitation of Actions Act, as introduced by the current government.  In many ways, this new act offers greater clarity for persons who are considering legal actions, especially for those involved in personal injury matters.  The new Act discards the old language and phrases such as “trespass on the case”1  that was confusing to lawyers and clients alike.  For those wondering, that example was the general catch-all for negligence cases.  The most dramatic change to the new Act, however, is the uniform limitation of two years for almost all types of actions. 

Under the old Act, “trespass on the case” actions were subject to a six-year limitation date, motor vehicle accidents were subject to a three-year limitation date, while actions for assault and battery were subject to a one-year limitation date.  These are just some examples of the myriad of different limitation dates that were imposed on different types of actions.  Under the new Act, with few exceptions, everything is subject to a two-year “discoverability” limitation date, with a fifteen-year ultimate limitation date.  What each of those means is that those actions that are subject to these dates expire two years after a claimant discovered, or ought to have discovered the damage, injury, or loss; or fifteen years from the date that the cause of the damage, injury or loss occurred, regardless of whether it has been discovered or not. 

This creates a unique situation for personal injury litigation in Nova Scotia, as it shortens the two areas most often used in this field, being general negligence, and motor vehicle accidents.  While Royal Assent was received for the new Act, it has not yet been proclaimed into force, nor has there been a general indication of when it will be proclaimed into force.  The transitional sections of the new Act specify that upon it becoming effective, a claim will expire on the earlier of either the date that the claim would have expired under the old Act, or two years from the effective date.2   Potential claimants involved in motor vehicle accidents within a year preceding the effective date of the new Act will need to have special attention paid to their files, in order that the applicable limitation date will not be missed, and their claim expire. 

On the other hand, the provisions under section 23 of the new Act preclude a previously expired claim from being revived.  For example, a potential claimant for a matter arising from an assault would not gain the advantage of his or her claim being revived should the government choose to proclaim the new Act in force immediately.  For these reasons, it is extremely important to be aware of what the applicable limitation date is for any matter that a potential claimant may consider pursuing.  Extra diligence will be required in the coming months and years when the transition period between the two acts begins.  It is always recommended that persons considering legal action consult a lawyer practicing in the appropriate field to ensure that their rights are protected and preserved.

1Limitation of Actions Act, RSNS 1989, c 258, s 2(e)

2Limitation of Actions Act, RSNS 2014, c 35, s 23(3)

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