Focus On

Limitation of actions - Extension, interruption, suspension and inapplicability - Expiry of limitation periods

Thursday, September 08, 2016 @ 8:00 PM  

Appeal by the plaintiff, Trombley, from a summary trial judgment dismissing his claim against the defendants, the Pannus, as statue-barred. In July 2012, the plaintiff tripped and fell on stairs in front of a premises owned by the defendants. The plaintiff was seriously injured in the fall. In April 2013, he retained counsel. In August 2013, counsel notified the defendants of the plaintiff’s intent to pursue a claim for damages. In September 2013, the defendants’ insurance adjuster wrote to plaintiff’s counsel advising the incident was under investigation and requesting a written account from the plaintiff. In November 2013, the plaintiff provided the requested information and hospital records. In January 2014, the adjuster sent 40 questions related to the issues of liability and damages. In February 2014, counsel provided the plaintiff’s answers. In April 2014, the adjuster sent a without prejudice letter that requested any settlement demands. No settlement proposal was provided and the plaintiff’s notice of civil claim was filed in August 2014, three weeks after expiration of the two-year limitation period. The summary trial judge rejected the plaintiff’s contention that the April 2014 without prejudice request for settlement proposals acknowledged liability in a manner that extended the limitation period. The action was dismissed. The plaintiff appealed.

HELD: Appeal dismissed. The summary trial judge correctly applied the legal test and did not err in finding the April 2014 letter was not a confirmation of the cause of action, as it did not demonstrate an intention to admit liability. The context of the communications included a statement that the adjuster’s investigation of the plaintiff’s claim was ongoing, an indication no decision had been reached on liability, and requests for further information and the terms of any possible settlement. Not all inquiries into settlement constituted admission of liability for the purpose of confirming a cause of action. The without prejudice notation reinforced the defendants’ position that the letter was made during the investigation and assessment of the claim, with liability remaining a live issue. The circumstances supported the finding the adjuster did not confirm the cause of action by impliedly acknowledging any liability.