T-1247-85
Ernest William Scott (Plaintiff)
v.
The Queen (.a efendant)
INDEXED AS: SCOTT V. R.
Trial Division, Joyal J.—Vancouver, April 28;
Ottawa, June 6, 1986.
Practice — Limitation of actions — Convict injured in fall
— 29 months later commencing damages action against Crown
— Two year limitation period under provincial legislation —
Commencement of period postponed if plaintiff under disabili
ty — Disability meaning physical or mental incapacity of
person or exterior forces substantially impeding management
of affairs — Evidence that plaintiff consulted lawyers long
before limitation period expiring — Plaintiff gave lawyer
wrong information as to date of injury — Lack of funds not
making plaintiff incapable of managing affairs — Action
dismissed as statute barred — Limitation Act, R.S.B.C. 1979,
c. 236, ss. 3(1), 7 — Crown Liability Act, R.S.C. 1970, c. C-38,
s. 19 — Federal Court Act, R.S.C. 1970 (2nd Supp.), c. 10, s.
38.
This is an application for an order that the action is statute
barred. On January 2, 1983, the plaintiff, an inmate at Matsqui
Institution, fell, injuring his knee. This action was instituted
some 29 months later. Subsection 3(1) of the Limitation Act of
British Columbia limits the time for bringing an action to
recover damages for personal injuries to two years. However,
under section 7 the commencement of a limitation period is
postponed when a person is under a disability. Subparagraph
7(5)(a)(ii) defines "disability" as meaning "incapable of or
substantially impeded in the management of his affairs". The
sole issue is the interpretation of section 7. The plaintiff
contends that he was under a disability because of his incarcer
ation and lack of funds.
Held, the application should be allowed.
As the legislation is being interpreted for the first time, it
should be interpreted strictly on its application to the facts.
When speaking of a disability resulting in incapacity or
impediment to managing one's affairs, it means generally
physical or mental incapacity of the person, or exterior forces
beyond his control which substantially impede him from
managing his affairs. Although incarceration may slow things
down, there was evidence that the plaintiff communicated with
a lawyer some two months after the accident, and with another
lawyer some four months later. About a year later, a third
lawyer agreed to take the case on a contingency fee basis
provided that a retainer was paid. However, the plaintiff appar-
ently instructed his counsel that the accident occurred in 1984,
not in 1983. The plaintiff did not provide a retainer until after
the limitation period had expired. Failure to take timely action
was not a result of the plaintiffs incarceration. Likewise, the
plaintiff's lack of funds did not make him incapable of manag
ing his affairs, nor would it constitute a substantial impediment
in the management of one's affairs. Lack of funds did not
preclude the plaintiff from, subject to the retainer agreement,
obtaining counsel some eleven months prior to the expiry of the
limitation period. The plaintiff was the victim of his own error
in instructing counsel, not of factual circumstances making him
incapable of or substantially impeding him in the management
of his affairs.
CASE JUDICIALLY CONSIDERED
CONSIDERED:
McKay v. Winnipeg General Hospital et al., [1971] 1
W.W.R. 65 (Man. Q.B.).
COUNSEL:
Paul D. Gornall for plaintiff.
P. Dan Le Dressay for defendant.
SOLICITORS:
Paul D. Gornall, Vancouver, for plaintiff.
Clark, Wilson, Vancouver, for defendant.
The following are the reasons for order ren
dered in English by
JOYAL J.: This is an application by the defen
dant, Her Majesty the Queen, for an order that
the action in damages instituted by the plaintiff is
statute barred by reason of the Limitation Act,
R.S.B.C. 1979, c. 236.
The action arises from physical injuries sus
tained by the plaintiff in an accident on January 2,
1983 while an inmate in Matsqui Institution, a
penitentiary in British Columbia. The plaintiff,
while carrying a load of empty serving trays,
slipped and fell on the floor causing considerable
damage and some degree of permanent partial
disability to his left knee. The plaintiff holds the
Crown liable for these damages.
The plaintiff's action against the defendant was
instituted on May 31, 1985, some 29 months after
the cause of action arose. In its statement of
defence filed on June 28, 1985, the defendant
pleaded, inter alia, the Limitation Act of British
Columbia, in particular, subsection 3(1) thereof
which reads as follows:
3. (1) After the expiration of 2 years after the date on which
the right to do so arose a person shall not bring an action
(a) for damages in respect of injury to person or property,
including economic loss arising from the injury, whether
based on contract, tort or statutory duty;
(b) for trespass to property not included in paragraph (a);
(c) for defamation;
(d) for false imprisonment;
(e) for malicious prosecution;
(f) for tort under the Privacy Act;
(g) under the Family Compensation Act;
(h) for seduction
The defendant further pleaded the provisions of
section 4 of the Crown Liability Act, R.S.C. 1970,
c. C-38, which provides for a notice in writing of a
claim to be delivered within seven days whenever a
claim in tort is in respect of a breach of duty
attaching to the ownership, occupation, possession
or control of property.
At the hearing before me, however, counsel for
the defendant waived the issue of lack of notice,
preferring to limit his argument to the prescriptive
period set out in the Limitation Act of British
Columbia.
There is no issue between the parties as to the
date of the accident or as to the date when the
action in damages was instituted. There is also no
issue that pursuant to section 19 of the Crown
Liability Act and to section 38 of the Federal
Court Act [R.S.C. 1970 (2nd Supp.), c. 10], the
prescriptive laws in force in the Province of British
Columbia apply to these proceedings.
The sole issue remaining is the application and
the interpretation of the disability clause set out in
section 7 of the Limitation Act. This section pro
vides for a postponement of a limitation period or
the suspension of time running against a person
whenever such person is or comes under a
disability.
I should reproduce here the full text of section 7
of the statute:
7. (1) Where, at the time the right to bring an action arises,
a person is under a disability, the running of time with respect
to a limitation period fixed by this Act is postponed so long as
that person is under a disability.
(2) Where the running of time against a person with respect
to a cause of action has been postponed by subsection (1) and
that person ceases to be under a disability, the limitation period
governing that cause of action is the longer of either
(a) the period which that person would have had to bring the
action had that person not been under a disability, running
from the time that the cause of action arose; or
(b) such period running from the time that the disability
ceased, but in no case shall that period extend more than 6
years beyond the cessation of disability.
(3) Where, after time has commenced to run with respect to
a limitation period fixed by this Act, but before the expiration
of the limitation period, a person having a cause of action
comes under a disability, the running of time against that
person is suspended so long as that person is under a disability.
(4) Where the running of time against a person with respect
to a cause of action has been suspended by subsection (3) and
that person ceases to be under a disability, the limitation period
governing that cause of action is the longer of either
(a) the length of time remaining to bring an action at the
time the person came under the disability; or
(b) one year from the time that the disability ceased.
(5) For the purposes of this section,
(a) a person is under a disability while he is
(i) a minor; or
(ii) in fact incapable of or substantially impeded in the
management of his affairs; and
(b) "guardian" means a parent or guardian having actual
care and control of a minor or a committee appointed under
the Patients Property Act.
(6) Notwithstanding subsections (1) and (3), where a person
under a disability has a guardian and anyone against whom
that person may have a cause of action causes a notice to
proceed to be delivered to the guardian and to the Public
Trustee in accordance with this section, time commences to run
against that person as if he had ceased to be under a disability
on the date the notice is delivered.
(7) A notice to proceed delivered under this section must
(a) be in writing;
(b) be addressed to the guardian and to the Public Trustee;
(c) specify the name of the person under a disability;
(d) specify the circumstances out of which the cause of
action may arise or may be claimed to arise with such
particularity as is necessary to enable the guardian to investi
gate whether the person under a disability has the cause of
action;
(e) give warning that a cause of action arising out of the
circumstances stated in the notice is liable to be barred by
this Act;
(f) specify the name of the person on whose behalf the notice
is delivered; and
(g) be signed by the person delivering the notice, or his
solicitor.
(8) Subsection (6) operates to benefit only those persons on
whose behalf the notice is delivered and only with respect to a
cause of action arising out of the circumstances specified in the
notice.
(9) The onus of proving that the running of time has been
postponed or suspended under this section is on the person
claiming the benefit of the postponement or suspension.
(10) A notice to proceed delivered under this section is not a
confirmation for the purposes of this Act and is not an admis
sion for any purpose.
(11) The Attorney General may make regulations prescrib
ing the form, content and mode of delivery of a notice to
proceed.
It will be noted that subsection 7(5) provides
that for purposes of the section, a person is under a
disability while he is (i) a minor, or (ii) in fact
incapable of or substantially impeded in the man
agement of his affairs.
Counsel for both parties conceded that this par
ticular provision of the statute had never before
been subjected to a judicial test. They also agreed
that there was a dearth of case law dealing with
any similar legislation when special rules apply to
persons under disability.
I am therefore left to interpret this particular
piece of provincial legislation for the first time and
I think I should do so strictly on its application to
the facts before me.
The main contention of the plaintiff is that by
reason of his incarceration and of his lack of funds,
he was a person under a disability. He was "in fact
incapable of or substantially impeded in the man
agement of his affairs", as the expression is found
in subsection 7(5) of the statute.
The facts leading to the conclusion urged by the
plaintiffs counsel are set out in the plaintiffs
affidavit and exhibits filed.
In essence, the plaintiff states that:
1. he has been incarcerated since June 1977;
2. he has had limited opportunity to earn money
and has been unable to save any;
3. he discussed the matter with a solicitor involved
in assisting inmates but was told that the nature of
his claim did not qualify him;
4. in September of 1983, a fellow inmate wrote to
another solicitor on his behalf but this solicitor
declined to take the case;
5. he also discussed the claim with a solicitor in
Abbotsford, B.C., but this solicitor also declined;
6. in February 1984, he was finally able to retain
counsel on a contingency fee basis on condition
that a retainer be paid but was unable to secure
the necessary retainer until the end of March
1985;
7. in his instructions to his counsel, he apparently
gave him to understand that his accident had
occurred on January 2, 1984 rather than January
2, 1983.
On this evidence, I am asked to conclude that as
a result of the plaintiff's incarceration or of his
financial impecuniosity or of both, he was in fact
incapable of or substantially impeded in the man
agement of his affairs.
Before dealing with these facts and drawing
conclusions from them, I should make a quick
analysis of section 7 of the statute and specifically
of subsection 7(5) which states that:
7....
(5) For the purposes of this section,
(a) a person is under a disability while he is
(i) a minor; or
(ii) in fact incapable of or substantially impeded in the
management of his affairs;
It appears to me that the definition of "disabili-
ty" which the statute provides limits considerably
the scope to be given to it. "Disability" is a fairly
generic term and can be applied to any number of
instances. Osborn's Concise Law Dictionary, (7th
ed., London, Sweet & Maxwell, 1983) at page
119, gives it a juridical meaning, i.e. "Legal
incapacity, either general or special." Similarly,
Stroud's Judicial Dictionary of Words and
Phrases, Vol. 2 (4th ed., London, Sweet & Max-
well Limited, 1972) at page 784, speaks of disabil
ity as "disabled or made incapable to doe, to
inherit, or to take benefit or advantage of, a thing
ff
The Oxford English Dictionary, Vol. 3,
(Oxford, Clarendon Press, 1969) page 397, defines
"disability" as "Want of ability ... Pecuniary
inability or want of means ... Incapacity in the
eye of the law."
Black's Law Dictionary, (5th Ed., St. Paul
Minn., West Publishing Co., 1979) at page 415
gives a very extensive meaning to the word "disa-
bility" and includes in its genus incapacity for the
full enjoyment of human rights, impediment to
marriage, lack of qualifications to hold office, as
well as incapacity resulting from physical or
mental impairment.
The word "disability", according to these dic
tionary definitions, lends itself to two meanings,
one strictly juridical, and the other more generic.
When speaking of a minor, the term is strictly
juridical. When it speaks of disability resulting in
incapacity or impediment to managing one's
affairs, the word "disability" may take on any
number of meanings. A rough outline of circum
stances when disability of that nature might be
found might include physical or mental illness, a
lengthy period of coma following a grievous acci
dent, temporary loss of memory, exterior con
straints including shipwreck or incarceration in a
foreign prison with all communications denied, all
in all, physical or mental incapacity of the person
or exterior forces beyond his control which sub
stantially impede him from managing his affairs.
On the facts before, it may be said that incar
ceration on the one hand and financial constraints
on the other limit considerably the efficiency with
which any person manages his affairs. One may
appreciate that forced confinement slows things
down. Although there is no evidence on point, one
may presume that a prisoner cannot use telephone
facilities at will nor can he spend all his time
writing letters to lawyers or meeting with them for
interviews. Those kinds of constraints, however,
are not in issue, the evidence being clear that the
plaintiff was in communication with a lawyer as
early as March 2, 1983, some two months after the
accident. On or about July 18, 1983, he was able
to communicate with another. Still later, he was
able to consult with a third solicitor.
About a year after the accident, counsel before
me agreed to take the case on a contingency fee
basis subject to a retainer being paid in. In a letter
addressed to the plaintiff and dated February 17,
1984, counsel sets out the terms of the arrange
ment. He advises the plaintiff that action should
be taken as early as possible "because limitation
periods may preclude recovery after a time". Of
greater interest in the case than this warning is the
fact that counsel at the beginning of his letter
refers to "personal injury to yourself on January 2,
1984 at Matsqui Institution" (my underlining).
This would not appear to have been a mere typo
graphical error, the plaintiff himself acknowledg
ing that he had apparently given his counsel to
understand that the accident had occurred in 1984
and not 1983.
The plaintiff did not have the funds to provide
counsel with a retainer. It was not until February
26, 1985 that he could agree to counsel's terms set
out in counsel's letter directed to him a year
earlier. He forwarded a cheque dated March 1,
1985. By this time, the statutory limitation period
of two years had run out.
I should not think that the failure to take action
in a timely manner was the result of the plaintiffs
incarceration. He had ample opportunity in the
two intervening years to communicate with law
yers. Counsel who took the case cannot be faulted
either. Presuming the accident had taken place on
January 2, 1984, he had no reason to feel any
apprehension when months went by without a
reply to his proposal of February 17, 1984. He
would have reason to believe that he had until
January 1986 to institute action.
Would the plaintiff's lack of the necessary funds
create the kind of disability contemplated in the
statute so as to lead to the conclusion that this in
fact made him incapable of or substantally imped
ed him in the management of his affairs? I would
not think so.
While admitting that impecuniosity might
render a person incapable of doing any number of
things, I should doubt that it would make him
incapable of managing his affairs. Furthermore,
while admitting that lack of funds might also be a
substantial impediment to the carrying out of any
number of purposes, I should doubt that in the
context of the statute, it would constitute a sub
stantial impediment in the management of one's
affairs.
The fact of the matter before me, in any event,
is that the lack of funds did not preclude the
plaintiff from seeking and, subject to the retainer
condition, obtaining counsel. The retainer agree
ment forwarded to him by counsel is dated Febru-
ary 17, 1984, some eleven months before limitation
would run out. Counsel warned the plaintiff that
time would be running out but it is no wonder that
counsel did not provide any follow-up as he had
reason to believe that the limitation period had
scarcely begun to run.
No doubt the plaintiff was the victim of some
unconscious error on his part or of some unfortu
nate series of circumstances which caused him
serious prejudice. The result, however, cannot be
ascribed to factual circumstances making him
incapable of or substantially impeding him in the
management of his affairs.
Counsel for the defendant referred the Court to
a Court of Queen's Bench decision in Manitoba in
McKay v. Winnipeg General Hospital et al.,
[1971] 1 W.W.R. 65. It appears that The Limita
tion of Actions Act of Manitoba, R.S.M., 1954, c.
145 as amended by S.M. 1966-67, c. 32, provides
for an extension to a limitation period on certain
grounds being substantially of fact and knowledge.
The Court said in that instance [at page 67]:
The Act was not passed to permit delays and procrastina-
tions. Here the delays were occasioned by the applicant's
inability to obtain legal counsel to start her action within the
limitation period. She has now qualified for free legal aid in
Manitoba, but too late to start action in time. In my opinion the
Manitoba Act did not contemplate that extension of time would
be granted because of slow administrative and bureaucratic
procedures.
Counsel for the defendant admitted that the
Manitoba case was far from being on point. It did
indicate, however, that a thorough search of juris
prudence on extension of time in limitation stat
utes failed to disclose anything which might be of
assistance to the Court. I agree with him.
Counsel further provided the Court with an
excerpt from the Law Reform Commission of
British Columbia, Report on Limitations. He
admitted that it was not much help in determining
the issue before me. Again, I agree with him.
Earlier in these reasons, I stated that I should be
loath to elaborate too much on what would be
included in the expression "in fact incapable of or
substantially impeded in the management of his
affairs" as found in subsection 7(5). I have limited
myself to obvious, if trite, examples. I should go no
further. I should simply decide that in all the
circumstances of the case, the plaintiff does not
fall within the ambit of the section.
I should therefore allow the defendant's motion
to have the plaintiff's action dismissed as being
statute barred.
The defendant has not asked for costs.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.