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First look at the application of s.22 of the Limitation of Actions Act

November 30, 2012

Gildart v. Minhas, 2012 NBQB 300

On June 14, 2009, Gildart was involved in a motor vehicle accident. Following her accident, Gildart met with her lawyer on June 30, 2009 to commence her claim
for compensation against the defendant, Minhas. Gildart’s solicitor did not initiate legal proceedings until July 26, 2011, over the two year limitation prescribed under legislation. Minhas contended that Gildart’s claim was prescribed under s.5 (1) (a) of the Limitation of Actions Act (the “Act”). Gildart filed a motion asking that paragraph 8 of Minhas’ Statement of Defence be struck out on the ground that s.22 of the
Act precludes the application of the limitation period contained in s.5(1). Gildart maintained that her solicitor was actively involved in settlement proposals with a representative for Minhas’ insurer and that she and/or her solicitor reasonably believed that her claim would be resolved by agreement, and therefore delayed her decision to bring her claim within the two year limit.

Prior to the expiration of the two year limitation, Gildart’s solicitor had sent several letters and emails to two claims examiners for Minhas’ insurer. The correspondences dealt with Gildart’s medical information, employment information, particulars of
loss of income, etc. Each of the examiner’s letters included a disclaimer stating that “nothing herein contained is or shall be construed as either an admission of liability or a waiver or extension of any applicable notice, claim or limitation.”

In March of 2010, a “without prejudice” offer of settlement for $2,500 in general damages was sent by one of the claims examiners. The offer was rejected, and a counter offer of $82,620.02 was made by Gildart’s solicitor. Finally, on July 7, 2011, the claims examiners wrote to Gildart’s solicitor requesting his Statement of Claim. The court took the position that the large discrepancy between the offers was certainly not indicative of a likely resolution or assurance that an agreement would be reached.

Justice McNally of the Court of Queen’s Bench, rejecting Gildart’s motion, concluded as follows:

(24) In the circumstances of this case as presented on this motion, I have not been convinced on the balance of probabilities that [Gildart’s solicitor], despite his statement to the contrary, believed that he or his client received any assurance from any of the representatives of the defendant’s insurer by their statements or actions, that the claim would be resolved by agreement or that there was any waiver of any defence or time limitations under the Act. Further, even if [Gildart’s solicitor] personally believed that he received such an assurance from the defendant’s insurer, in my opinion it would not have been reasonable in the circumstances for him to believe that was the case.

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