J. 1997 S.PHa (PH) No. 0357 IN THE SUPREME COURT OF NOVA SCOTIA BETWEEN: Flora Burt and Shelly Dawn Seward -and- Howard LeLacheur DECISION HEARD BEFORE: The Honourable Justice Robert W. Wright, in Chambers, at Arichat, Nova Scotia on October 7, 1999 ORAL DECISION: October 7, 1999 WRITTEN RELEASE OF DECISION: November 2, 1999 COUNSEL: Gerald MacDonald, Counsel for the Plaintiffs Paul McLean, Counsel for the Defendant WRIGHT, J. (Orally): This is an application on behalf of the plaintiffs, Flora Burt and her daughter Shelly Dawn Seward, now residents of Jasper, Alberta, essentially for an Order disallowing the limitation defence raised by Judgment Recovery on behalf of the defendant, Howard LeLacheur, pursuant to Section 10 of the Fatal Injuries Act. The action arises out of single car accident in which the defendant’s uncle, Vincent LeLacheur, was killed leaving him surviving his wife, the plaintiff Flora Burt, who was then pregnant with the second plaintiff, Shelly Dawn Seward. The accident occurred on August 12, 1972. The action itself was not issued until July 18, 1997. It was served on November 4, 1997 on the defendant, Howard LeLacheur and provided to Judgment Recovery on January 23, 1998. On February 23,1998, defence was filed by Judgment Recovery on behalf of the defendant. In that defence, paragraph reads that: “The Defendant pleads and relies on the Statute of Limitations (in Nova Scotia) and notes that the motor vehicle accident, which forms the subject matter of the Statement of Claim herein, is said to have occurred on the 12th day of August, 1972, now over 25 years ago.” An affidavit was filed by the plaintiff, Flora Burt, in support of this application in which she attests that the first time she became aware that the driver of the car at the time of the accident was or may have been Howard LeLacheur, rather than her deceased husband, Vincent LeLacheur, was in February of 1997 when she was so informed by family member named Kelly LeLacheur, who was in turn informed by another family member that this information had been revealed to him by Howard LeLacheur. Upon learning that, the plaintiffs sought legal advice which culminated in the commencement of this action by Originating Notice issued July 18, 1997. The action is brought under the provisions of the Fatal Injuries Act. While the Fatal Injuries Act preserves an action by those persons entitled to benefit under its provisions, there is very specific limitation period contained in Section 10 of the Act. It reads as follows: Not more than one action shall lie for and in respect to the same subject matter of complaint and every such action shall be commenced within twelve months after the death of the deceased person. In this case, that means in order to have complied with Section 10, the plaintiffs would have to have commenced their action under the Fatal Injuries Act not later than August 11, 1973. The action, in fact, was commenced on July 18, 1997, some 25 years later. What the plaintiffs say, however, is that they are entitled to rely on the discoverability rule coupled with the fraudulent concealment rule so that the limitation period, it is argued, should not begin to run until February of 1997, that being the date upon which they learned for the first time that Howard LeLacheur was or may have been the driver of the vehicle at the time of the fatality. It is submitted by plaintiffs’ counsel that the action is accordingly not out of time relying, as said, on the discoverability rule coupled with the fraudulent concealment rule. Since that is the main thrust of their position, the saving provisions of Section 3(2) of the Limitations of Actions Act really have no application here and that was conceded by plaintiffs’ counsel in an exchange with the Court in oral submissions this morning. The plaintiffs’ position here really stands or falls on the successful application of the discoverability rule coupled with the fraudulent concealment rule. The lead argument advanced by defence counsel on behalf of Judgment Recovery is that the discoverability rule does not apply to the limitation period specified in Section 10 of the Fatal Injuries Act. Mr. McLean is not suggesting that the plaintiff actually knew of the revelation about the identity of the driver of the car before 1997 but argues that the discoverability rule does not apply to limitation period such as is found in Section 10 of the Fatal Injuries Act because that limitation period is prescribed regardless of the plaintiffs’ knowledge or state of knowledge. had occasion to consider this issue not too long ago in the case of Marshall Parker et al. (S.H. No. 139222) upon which defence counsel relies. In that case cited, with approval, the reasons for judgment of the Manitoba Court of Appeal in Fehr Jacob 1993) 1993 CanLII 4407 (MB CA), 14 CCLT (2d) 200 where Justice Twaddle said as follows: “In my opinion the Judge-made discoverability rule is nothing more than rule of construction. Whenever statute requires an action to be commenced within specified time from the happening of specific event, the statutory language must be construed. When time runs from the “accrual of the cause of action” or from some other event which can be construed as occurring only when the injured party has knowledge of the injuries sustained, the Judge-made discoverability rule applies. But when time runs from an event which clearly occurs without regard to the injured party’s knowledge, the Judge-made discoverability rule may not extend the period the Legislature has prescribed.” also make reference to the decision of the Nova Scotia Court of Appeal in Sawh Petrie (1987) 76 NSR (2d) 223 where Justice Matthews said at page 234: “The principle or rule as expressed in Kamloops and Central Trust is applicable where the enactment speaks of the tolling of prescription after the cause of action arose. It is not applicable here where the tolling begins “after the date in the matter complained of such professional services ... terminated. For these reasons am of the opinion that the result in Kamloops and Central Trust cannot be obtained here.” In both cases have just referred to, the commencement of the limitation period was marked by or triggered by the termination date of professional services, an event which clearly occurs without regard to the injured party’s knowledge. Likewise, Section 10 of the Fatal Injuries Act identifies specific event for the tolling of prescription. It does not speak in terms of the limitation period running from the time when the cause of action accrued. If that were the case, it might be open to interpretation, and the discoverability rule could be invoked as rule of construction. It cannot, however, be invoked in respect of Section 10 of the Fatal Injuries Act for the simple reason that the Legislature has prescribed the happening of specific event, namely, the death of the deceased person, from which the prescriptive period begins to run. It is without regard to the injured party’s knowledge. So, for reasons similar to those which expressed in Marshall Parker, supra, have concluded that the discoverability rule does not apply in this case. The only remaining issue that think need address in rendering this decision is the correlating argument by plaintiffs’ counsel that there was fraudulent concealment on the part of the defendant, Howard LeLacheur, of the alleged fact that he was the driver of the vehicle when the accident took place some 25 years earlier and not Vincent LeLacheur. Plaintiffs’ counsel submits that such withholding of information, coupled with the discoverability rule above mentioned, should prevent the limitation period from starting to run until February of 1997. In my view, the plaintiffs have failed to establish that they are entitled to rely on the application of the fraudulent concealment principle. It is neither pleaded in the Statement of Claim, nor is there anything approaching satisfactory evidentiary basis before me upon which claim for fraudulent concealment can be made out. To date, there has been no discovery or interrogatories or any other sort of pre-trial procedures involving the defendant, Howard LeLacheur although understand Mr. LeLacheur has not been cooperative in participating in this litigation. At the same time, neither has he been examined on discovery through notice. The fact of the matter is that we have nothing in the way of evidence from Howard LeLacheur, nor do we have evidence from any of the family members through whom this chain of communication came, nor from the R.C.M.P. to whom this statement was allegedly made by Howard LeLacheur. At the same time, we have admissions by the plaintiff, Flora Burt, in her discovery examination which took place on October 29, 1998 of her failure to make any inquiries about the accident of any sort to anyone, family members, R.C.M.P., or whomever. At no time did she make any inquiries to anyone until she says she was contacted in February of 1997 by family member passing on the revelation from Howard LeLacheur as to the identity of the driver at the time of the accident. Mr. McLean has filed an affidavit attached to which is the discovery transcript of the evidence taken from Flora Burt on October 29, 1998. Mr. McLean makes reference to several passages in his brief but the two most prominent passages are to be found first at page 30 of the transcript where, after asking several questions laying the foundation, the question was asked to Ms. Burt: Q. Was there reason you hadn’t seen either Howard or his father? A. Oh, seen them. just didn’t speak to them about the accident. Secondly, at page 39, Ms. Burt was asked the question: Q. And so from 1972 up to February of 1997 you hadn’t made any inquires or investigations to find out who the driver had actually been? No. The situation, in short, is that we have plaintiff, Flora Burt, who until 1997 made no inquiries to Howard LeLacheur or any other family member, nor the police as to how this accident happened. She could have asked Howard LeLacheur that question but for some reason did not do so which find surprising even though she was at relatively young age and pregnant at the time. In the result, 25 years went by without anything being said by the parties to one another about the tragedy that had taken place. To compound the difficulty surrounding this application, it is to be noted that the revelation even as made is based on double hearsay, i.e. from Howard LeLacheur allegedly to, believe, his brother, then on to daughter and then on to Flora Burt. All things considered, there has not been established sufficient evidentiary basis upon which this Court can make finding of fraudulent concealment on the part of the defendant. In the result, the plaintiffs’ application to disallow the defence of limitation is dismissed. In the peculiar circumstances of this case, I decline to award costs to Judgment Recovery.
The deceased was killed in a single car accident in 1972, leaving his wife, the plaintiff, who was pregnant with the second plaintiff, his daughter, as his survivors. In 1997, the plaintiffs first learned through other family members that the defendant, a nephew of the deceased, had revealed to them that it was actually he who was the driver of the car at the time of the accident. They brought an action under the provisions of the Fatal Injuries Act. This was an application to disallow the limitation defence raised by Judgment Recovery on behalf of the defendant. Dismissing the application without costs, that the limitation as prescribed by the Act is twelve months, which the plaintiffs had clearly exceeded. This time period is without regard to the injured party's knowledge of whether or not a claim exists.