May 9, 2023 by David Gambrill
Nova Scotia’s Supreme Court recently allowed an auto liability claim to proceed four years after the collision happened, and two years after the time limit for making a claim had expired.
The delay was based mainly on the claimants’ lawyer losing track of when the two-year limitation period expired.
One hotly contested topic in the court was whether the claimants could pursue a negligence claim against their lawyer as an alternative to the auto liability claim. Another was whether the delay prejudiced the defendant and his auto insurer, Pembridge Insurance.
How the court ruled
On the first point, the court ultimately decided the claimants could not count on recovering their money in an alternative negligence action against their initial lawyer, who had changed firms and lost track of the limitation periods.
Thus, the auto liability claim should be allowed to continue.
“[Claimants’] counsel says that the [claimants] do not have an alternative remedy or compensation available through a potential professional negligence action against [their initial lawyer],” the Nova Scotia Supreme Court ruled, siding with the claimant’s counsel. “Counsel notes that such an action would be complex and would likely involve allegations of contributory negligence and other issues. Counsel suggests that it is speculative to suggest this would be successful in offering the [claimants] any alternate remedy or compensation.”
On the second point, the court found the claim had been put in motion within three days of the auto accident, suggesting the insurer could have done an investigation at that time. The insurer refuted this point, and noted its requests for medical documentation verifying the injuries at the onset of the car accident had not been supplied by the claimant’s initial lawyer.
But once the claimants’ file had been passed to a new lawyer in 2022, the medical files were available, so the prejudice against the insurer because of the time delay was not fatal to their case, the court found.
“The defendant [and his auto insurer, Pembridge] may have lost the ability to test the credibility of possible statements and documentation early on,” the court conceded. “To that extent, it has suffered some prejudice. However, it has not lost the opportunity to obtain complete medical documentation concerning the claims.
“It may discover the [claimants] and request information [that] it deems relevant to its assessment of their claims for general and specific damages. It may still test their credibility if that documentation reveals inconsistencies in what was said closer in time to the collision than at later points in time.
“Pembridge has not lost this opportunity; it has been delayed but delay alone does not establish prejudice on these facts.”
Paul Lauzon was driving his daughter, Robin Lauzon, on Mar. 9, 2018, when they collided with a car driven by the defendant, Charles Magee.
Robin Lauzon was 17 years old (a minor) at the time of the collision, so the limitation period on her claim did not start until she turned legal age two years later. As such, her claim was only three months past the limitation period, which the court found was not a substantial delay.
The Lauzons retained the services of solicitor Darlene Lamey on Mar. 21, 2018. Pembridge noted the two-year period to launch an auto liability claim expired on Mar. 9, 2020. Paul and Robin started their actions against Magee and Pembridge on Mar. 7, 2022.
Why the delay?
In a September 2022 affidavit filed in court, Lamey indicated she had lost track of the time limits because of a number of factors related to moving to another law firm. “It is clear from the affidavit of Darlene Lamey that the reason for her delay in commencing the actions was solicitor inadvertence,” the court observed.
Her affidavit stated:
“When I was retained by the [Lauzons] in 2018, I was employed as a solicitor in the law firm of Waterbury Newton in Kentville, Nova Scotia, and when a personal injury file was opened, I normally requested support staff to diarize limitation periods.
In September of 2019, I changed firms and moved to Atlantica Law Group in Windsor, Nova Scotia. I had little support staff assigned to me at this new firm and often had to look after my files by myself. I do not believe that the file for Paul Lauzon was properly opened or diarized with limitation periods at the Atlantica Law Group.”
Nevertheless, the court noted, a litigation specialist at Pembridge stated the accident was reported to the insurer on Mar. 12, 2018 – three days after it occurred. A claims adjuster corresponded with the local RCMP and learned the Lauzons’ names on Mar. 16. She requested police reports.
Notes taken by a second Pembridge adjuster on the file said “she received a text from the defendant, Charles Magee, indicating that he told her that on the day of the collision he consumed four drinks of vodka before driving to meet his girlfriend,” the court decision stated. “[The adjuster’s] notes record that Mr. Magee told her that he had been in a motor vehicle collision and had been charged with driving while over the blood alcohol limit and causing bodily harm.”
The second adjuster’s notes also noted she spoke with Paul Lauzon on Apr. 19, 2018. As recorded in the court’s decision, she reported Lauzon “felt his injuries were getting complicated with a concussion and thought he should have someone represent him.”
Lamey provided Pembridge with a summary of Paul and Robin’s injuries and health status on May 17, 2018, albeit without supporting medical documentation.
Communications from the insurer’s adjusters asking for medical documentation to support the injuries went unreturned for several months. Lamey told the court she had been in touch with Paul Lauzon about his injuries up until the start of the pandemic, around March 2020.
Pembridge argued the long delay in receiving medical information prejudiced its ability to mount a defence, rendering it unable to ask questions about the Lauzons’ health — both pre- and post-accident — closer to the time of the accident.
The court, in contrast, noted the insurer could still ask its questions because files had not been lost, and none of the expert witnesses were unavailable to be questioned.
Feature image courtesy of iStock.com/Gam1983