Novak v. Bond, [1999] 1 S.C.R. 808
Donald Bond Appellant
v.
Barbara Novak and Anton Novak Respondents
Indexed as: Novak v. Bond
File No.: 26811.
1999: March 18; 1999: May 20.
Present: Lamer C.J. and L’Heureux‑Dubé, Gonthier, Cory, McLachlin, Iacobucci and Major JJ.
on appeal from the court of appeal for british columbia
Limitation of actions -- Patient suing doctor -- Action started outside ordinary period -- Postponement possible until a reasonable person would consider that the plaintiff “ought, in the person’s own interests and taking the person’s circumstances into account, to be able to bring an action” -- Patient delaying action and focusing on healing process -- Proper approach to be taken when interpreting postponement provision -- Limitation Act, R.S.B.C. 1996, c. 266, s. 6(4)(b).
The defendant (appellant) allegedly misdiagnosed a lump on the plaintiff’s (respondent B.N.’s) breast as a benign condition from October 1989 until October 1990 when a specialist diagnosed breast cancer, performed a partial radical mastectomy, and discovered that the cancer had spread to most of B.N.’s lymph nodes. After recovering from a year of illness and debilitating cancer treatment, the plaintiff considered suing the defendant and discussed the matter with her parish priest. She decided not to sue at the time, preferring to concentrate on maintaining her health and a positive belief that she had been cured. The cancer recurred four years later (May 1995), this time spreading to the spine, liver and lung.
This action was started on April 9, 1996. Although s. 3(2)(a) of the Limitation Act provided for a two-year limitation period for this type of personal injury action, s. 6(4)(b) allowed for the postponement of the running of the limitation period until a properly advised reasonable person would consider that the plaintiff “ought, in the person’s own interests and taking the person’s circumstances into account, to be able to bring an action”.
Before trial, the defendant successfully sought an order dismissing the action as statute-barred. The Court of Appeal, however, held that the motions judge had not given proper attention to s. 6(4)(b) and allowed the appeal, holding that this provision allowed the running of time to be postponed. At issue here is the proper approach to be taken when interpreting s. 6(4)(b) of the Limitation Act.
Held (Lamer C.J. and Iacobucci and Major JJ. dissenting): The appeal should be dismissed.
Per L’Heureux-Dubé, Gonthier, Cory and McLachlin JJ.: The British Columbia Court of Appeal has in different cases suggested at least four approaches to s. 6(4)(b): (1) a broad subjective/objective approach, that asks when a reasonable person would hold that the plaintiff should bring an action, taking into account his or her own circumstances and interests; (2) a restrictive subjective/objective approach, that asks when a reasonable person would hold that the plaintiff could bring an action, taking into account the plaintiff’s “important and substantial interests”; (3) a restrictive objective approach, that simply looks to the individual plaintiff’s legal capacity to bring an action; and (4) a discretionary approach, that holds that s. 6(4)(b) gives the court the discretion to assess the particular action and decide whether the plaintiff “ought . . . to be able to bring” it outside the usual limitation period.
Given the scheme and purpose of the Act, the appropriate test is a variant of the second approach. Section 6(4)(b) requires the court to adopt the perspective of a reasonable person who knows the facts that are within the plaintiff’s knowledge and has taken the appropriate advice a reasonable person would seek on those facts. Time does not begin to run until this reasonable person would conclude that someone in the plaintiff’s position could, acting reasonably in light of his or her own circumstances and interests, bring an action. The question posed by s. 6(4)(b) therefore becomes: “in light of his or her own particular circumstances and interests, at what point could the plaintiff reasonably have brought an action?” The reasonable person would only consider that the plaintiff could not have brought an action at the time the right to do so first arose if the plaintiff’s own interests and circumstances were serious, significant, and compelling. Purely tactical concerns have no place in this analysis.
This approach recognizes the special problems injured persons may encounter and the intense stresses and strains involved in litigation. It recognizes that in some cases, the plaintiff’s own circumstances and interests may be so compelling that it cannot be reasonably said that he or she could bring an action within the prescribed limitation period. Finally, it makes practical sense. People ought to be encouraged to take steps short of litigation to deal with their problems. They should not be compelled to sue when to do so runs counter to a vital interest, such as the need to maintain their health in the face of a life-threatening disease.
In light of the proposed test, the plaintiff’s concerns were so serious, substantial and compelling that, taking into account all of her circumstances and interests, she could not reasonably have commenced a suit at the time the cause of action first arose. The plaintiff’s interests and circumstances changed dramatically in May 1995 and the circumstances that precluded a decision to sue earlier -- the need to maintain a positive outlook and believe herself cured -- were no longer operative. The plaintiff’s need to redress the serious wrong allegedly done to her and her consequent willingness to undergo the stresses and strains of litigation outweighed her intensely felt desire to concentrate on regaining her health. Litigation became a realistic option. Section 6(4)(b) of the Limitation Act therefore postponed the running of time to at least that date.
Per Lamer C.J. and Iacobucci and Major JJ. (dissenting): The test put forward by McLachlin J. was correct. That test, however, was not the test applied to reach the result.
The postponement provisions envisage an objective test applied to the plaintiff’s particular position. The court must find the point in time when a reasonable person would say that the plaintiff could have brought a lawsuit, taking into account the plaintiff’s interests and circumstances. There was no evidence that it would not have been reasonable for the plaintiff to bring an action in the fall of 1991.
The evidence relied on by the majority does not support a conclusion that a lawsuit could not reasonably have been brought. Rather, it only showed that the plaintiff acted reasonably in delaying the lawsuit. The fact that the particular plaintiff’s own behaviour was reasonable is irrelevant. The factors advanced by the plaintiff in support of postponement, although relevant to personal decisions that a person must make in his or her life, should not be considered in interpreting a statute of limitations.
Cases Cited
By McLachlin J.
Considered: Evans v. Vancouver Port Corp. (1989), 42 B.C.L.R. (2d) 174, and additional reasons (1990), 46 B.C.L.R. (2d) 334; Karsanjii Estate v. Roque, [1990] 3 W.W.R. 612; Frosch Construction Ltd. v. Volrich (1995), 7 B.C.L.R. (3d) 72; Vance v. Peglar (1996), 22 B.C.L.R. (3d) 251, leave to appeal refused, [1997] 1 S.C.R. x; Royal North Shore Hospital v. Henderson (1986), 7 N.S.W.L.R. 283; referred to: Rizzo & Rizzo Shoes Ltd. (Re), [1998] 1 S.C.R. 27; Peixeiro v. Haberman, [1997] 3 S.C.R. 549; M. (K.) v. M. (H.), [1992] 3 S.C.R. 6; Murphy v. Welsh, [1993] 2 S.C.R. 1069; Kamloops (City of) v. Nielsen, [1984] 2 S.C.R. 2; Central Trust Co. v. Rafuse, [1986] 2 S.C.R. 147; Bera v. Marr (1986), 1 B.C.L.R. (2d) 1; Zeidan v. British Columbia, [1989] B.C.J. No. 598 (QL); Trueman v. Ripley, [1998] B.C.J. No. 2060 (QL).
By Iacobucci and Major JJ. (dissenting)
Peixeiro v. Haberman, [1997] 3 S.C.R. 549; Frosch Construction Ltd. v. Volrich (1995), 7 B.C.L.R. (3d) 72; Evans v. Vancouver Port Corp. (1989), 42 B.C.L.R. (2d) 174; Royal North Shore Hospital v. Henderson (1986), 7 N.S.W.L.R. 283; Karsanjii Estate v. Roque, [1990] 3 W.W.R. 612.
Statutes and Regulations Cited
Interpretation Act, R.S.B.C. 1996, c. 238, s. 8.
Limitation Act, R.S.B.C. 1996, c. 266, ss. 3(2)(a), (3), (5), (6), 6(2), (3)(a), (c), (4)(a), (b), (5)(a), (b), (6), 7(1)(a), (b), (2), (3)(a), (b), (4), (5)(a), (b), 8(1)(b), (c), (2), 9(1).
Authors Cited
Alberta. Law Reform Institute. Limitations. Report No. 55. Edmonton: The Institute, 1989.
British Columbia. Law Reform Commission. Report on Limitations, Part 2: General. Victoria: Queen’s Printer, 1974.
British Columbia. Law Reform Commission. Report on the Ultimate Limitation Period: Limitation Act, Section 8. Vancouver: The Commission, 1990.
Legate, Barbara. “Limitation Periods in Medical Negligence Actions Post-Peixeiro” (1998), 20 Advocates’ Q. 326.
New South Wales. Law Reform Commission. Report of the Law Reform Commission: being the First Report on the Limitation of Actions. Sydney, N.S.W.: V.C.N. Blight, Government Printer, 1967.
APPEAL from a judgment of the British Columbia Court of Appeal (1998), 110 B.C.A.C. 103, 178 W.A.C. 103, 161 D.L.R. (4th) 577, [1998] B.C.J. No. 1508 (QL), allowing an appeal from a judgment of Holmes J., [1997] B.C.J. No. 1900 (QL), allowing a motion for summary judgment and dismissing the action. Appeal dismissed, Lamer C.J. and Iacobucci and Major JJ. dissenting.
Christopher E. Hinkson, Q.C., and Raj Samtani, for the appellant.
Joseph J. Arvay, Q.C., and Catherine J. Parker, for the respondents.
The reasons of Lamer C.J. and Iacobucci and Major JJ. were delivered by
//Iacobucci and Major JJ.//
1 Iacobucci and Major JJ. (dissenting) -- We have had the benefit of Justice McLachlin’s reasons in this case and agree with her review of the statute and with the test summarized in para. 39 of the majority reasons. It is our view that that test is not the test applied in reaching her result. Consequently, we respectfully dissent.
2 The plaintiff, Barbara Novak, alleges that she suffered damage because the defendant, Dr. Donald Bond, negligently failed to diagnose her breast cancer. She became aware of Dr. Bond’s alleged error in October 1990. Around that time, she also became aware that the breast cancer had spread to her lymph nodes and that heavy “lymph node involvement” would significantly increase the likelihood that her cancer would recur. Between October 1990 and April 1991, she underwent a partial radical mastectomy, chemotherapy and radiation therapy in the hope of treating the cancer. From April 1991 to May 1995, she showed no symptoms of cancer at all.
3 In mid- to late 1991, the plaintiff considered whether she should sue the defendant. She did not consult a lawyer or a medical professional on the subject, but discussed the matter with her parish priest. She decided to take a positive attitude toward her recovery and “wait to see for a few years what’s going to happen down the road”.
4 In May 1995, the plaintiff was diagnosed with cancer in her spine, liver, and lung. This recurrence prompted the plaintiff and her husband to file a lawsuit against the defendant on April 9, 1996.
5 The motions judge ([1997] B.C.J. No. 1900 (QL) (S.C. in chambers)) dismissed the action as barred under British Columbia’s Limitation Act, R.S.B.C. 1996, c. 266. Although the British Columbia Court of Appeal ((1998), 110 B.C.A.C. 103) allowed the plaintiff’s appeal, two members of the three-judge panel expressed disagreement with the interpretation the statute has received in British Columbia and allowed the appeal only because they believed themselves bound by court precedent. The defendant now appeals that decision.
6 The relevant provisions of the Limitation Act are:
3 . . .
(2) After the expiration of 2 years after the date on which the right to do so arose a person may not bring any of the following actions:
(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;
. . .
6 . . .
(3) The running of time with respect to the limitation periods set by this Act for any of the following actions is postponed as provided in subsection (4):
(a) for personal injury;
. . .
(c) for professional negligence. . . .
(4) Time does not begin to run against a plaintiff with respect to an action referred to in subsection (3) until the identity of the defendant is known to the plaintiff and those facts within the plaintiff’s means of knowledge are such that a reasonable person, knowing those facts and having taken the appropriate advice a reasonable person would seek on those facts, would regard those facts as showing that
(a) an action on the cause of action would, apart from the effect of the expiration of a limitation period, have a reasonable prospect of success, and
(b) the person whose means of knowledge is in question ought, in the person’s own interests and taking the person’s circumstances into account, to be able to bring an action.
(5) For the purpose of subsection (4),
(a) “appropriate advice”, in relation to facts, means the advice of competent persons, qualified in their respective fields, to advise on the medical, legal and other aspects of the facts, as the case may require,
(b) “facts” include
(i) the existence of a duty owed to the plaintiff by the defendant, and
(ii) that a breach of a duty caused injury, damage or loss to the plaintiff,
. . .
7 (1) For the purposes of this section,
(a) a person is under a disability while the person
(i) is a minor, or
(ii) is in fact incapable of or substantially impeded in managing his or her affairs . . . .
. . .
(2) If, 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 set by this Act is postponed so long as that person is under a disability.
. . .
8 (1) Subject to section 3(4) and subsection (2) of this section but despite a confirmation made under section 5 [not relevant here], a postponement or suspension of the running of time under section 6 or 11(2) or a postponement or suspension of the running of time under section 7 in respect of a person who is not a minor, no action to which this Act applies may be brought
. . .
(b) against a medical practitioner, based on professional negligence or malpractice, after the expiration of 6 years from the date on which the right to do so arose, or
(c) in any other case, after the expiration of 30 years from the date on which the right to do so arose.
7 The focus of this appeal is s. 6(4)(b) of the Limitation Act, which allows for the postponement of time until a reasonable person would conclude that the facts showed that the plaintiff “ought, in [her] own interests and taking [her] circumstances into account, to be able to bring an action”. Does this language mean that a plaintiff may postpone the running of time provided only that he or she acts reasonably? It is our opinion that such a test allows the postponement provision to swallow the statute of limitations whole. The outcome in this case, though humane, runs counter to the main objective of a statute of limitations: that the litigation process be orderly and fair to all concerned.
8 Almost all applications of limitations statutes will seem harsh. But their finality should not obscure their value. They bring needed stability to society by enabling potential defendants to plan their affairs in the safe assumption that stale claims cannot be raised against them. They minimize the risk that evidence relevant to the claim will be lost. In addition, they are an incentive for plaintiffs not to “sleep on their rights”. See Peixeiro v. Haberman, [1997] 3 S.C.R. 549, at para. 34.
9 In Peixeiro, the Court held at para. 38 that the absolute function of a statute of limitations is tempered by the “general rule of discoverability”. This equitable doctrine constitutes an incursion on the limitations period to account for the fact that it would be unfair to require a plaintiff to bring a lawsuit “before he could reasonably have discovered that he had a cause of action”. See Peixeiro, at paras. 38-39. The effect of the discoverability rule is to postpone the running of time until a reasonable person, in the exercise of reasonable diligence, would discover the facts necessary to maintain the action.
10 British Columbia has adopted a specific postponement provision within the statute. The role of the postponement provision is the same as that of the discoverability rule: to ensure that plaintiffs who, in the exercise of reasonable diligence, cannot know that they have a viable claim against a particular defendant or cannot reasonably bring an action, will not be barred.
11 The postponement provision in dispute, s. 6(4), relies on the traditional language of discoverability by requiring the court to consider those “facts within the plaintiff’s means of knowledge” and the “appropriate advice a reasonable person would seek on those facts”. Section 6(5)(a) of the statute further defines “appropriate advice” as “the advice of competent persons, qualified in their respective fields, to advise on the medical, legal and other aspects of the facts, as the case may require”.
12 These sections envision an objective analysis. They require a potential plaintiff to act reasonably in discovering the facts available and in consulting with professional advisors. This is a duty of reasonable diligence that does not vary with the individual circumstances of the particular plaintiff.
13 Section 6(4)(b), the provision relied on by the plaintiff here, does no differently. The triggering event for the running of time is the point where “a reasonable person” would regard the facts as showing that the plaintiff “ought, in the person’s own interests and taking the person’s circumstances into account, to be able to bring an action” (emphasis added). The statute focuses on the plaintiff’s ability to bring a lawsuit, taking account of the plaintiff’s own interests and circumstances. This provision is still within the objective analysis that is the backbone of s. 6(4). The appropriate question is whether a reasonable person would think that she could bring a lawsuit, taking into account the plaintiff’s interests and circumstances. Thus, s. 6(4)(b) does not prescribe a “subjective” analysis; it focuses the objective analysis on the plaintiff’s particular situation.
14 This strict view of the statutory language was convincingly asserted by Lambert J.A. in Frosch Construction Ltd. v. Volrich (1995), 7 B.C.L.R. (3d) 72 (C.A.), at p. 79:
By the addition of the words “to be able” the meaning is changed from whether a reasonable person would consider that someone in the plaintiff’s position should, acting reasonably, bring an action at that time, to whether a reasonable person would consider that someone in the plaintiff’s position could, acting reasonably, bring an action at that time. [Emphasis in original.]
Thus the statute provides that time starts to run as soon as a reasonable person would answer “yes” to the question, “Could someone in the plaintiff’s position reasonably bring an action now?”
15 Of course, the plaintiff’s “ability” to bring an action must be understood in the context of the rest of the Limitation Act. Section 7(2) allows the postponement of the otherwise applicable limitation period for as long as a person is under a disability. Pursuant to s. 7(1)(a), a person is under a disability if that person is a minor or “is in fact incapable of or substantially impeded in managing his or her affairs”. Therefore, in order to read ss. 7(2) and 6(4)(b) together consistently, a plaintiff’s inability to bring a lawsuit according to s. 6(4)(b) does not include being “incapable of or substantially impeded in managing his or her affairs”. Otherwise, s. 7(2) would be rendered redundant.
16 The proper analysis should then be to find the earliest point at which a reasonable person, contemplating the facts within the plaintiff’s means of knowledge and taking into account her personal circumstances, would believe that that person could reasonably have brought an action. Once that date has been established, the court asks whether the particular action at issue was brought within (in this case) two years of that date. If not, the action is barred.
17 n our view, the statute directs the court to find the point in time when a reasonable person would say that the plaintiff could have brought a lawsuit. Nothing in the statute refers to the reasonableness of what the particular plaintiff actually did.
18 That is as it should be. There are always reasons why a plaintiff may reasonably choose not to bring an action, even though it would also be reasonable to bring an action. Lawsuits are trying, financially, emotionally and perhaps physically. Often the game is not worth the candle. The decision whether to sue or not is a personal one that each plaintiff must make individually. The statute of limitations foresees this by allowing a two-year period from the moment a potential plaintiff becomes reasonably able to sue. It is during that time that the plaintiff’s subjective position is considered – not by the courts, but by the plaintiff herself in deciding whether to sue or not.
19 Reasonable people can differ over whether any particular person with a cause of action who could sue actually should sue. In this case, the plaintiff decided that she did not wish to sue in the fall of 1991. She had personal reasons, supported by her discussion with her parish priest, to forgo suing and to pursue an optimistic approach to regaining her health. That decision was reasonable, as the motions judge found. But that finding, which showed sympathy for the difficult position in which Mrs. Novak found herself in having to make a serious decision, is not relevant to the statute of limitations analysis.
20 The fact that the plaintiff made a reasonable decision in not beginning a lawsuit does not mean that a different decision would have been unreasonable. Quite the contrary – although her chemotherapy and radiation treatment probably rendered her unable to sue prior to May 1991 (as the motions judge found) there is no “appropriate” evidence from any professional, medical or otherwise, that her recovery would have been endangered had she begun a lawsuit sometime between May 1991 and May 1993. There is no evidence to show that her parish priest was qualified to give the type of advice envisioned by the statute. Consequently, there is no proof that Mrs. Novak would not have been acting reasonably had she decided to bring a lawsuit during that time.
21 Our colleague, McLachlin J., states in her reasons that in the summer of 1991 “Mrs. Novak had reason to believe herself cured” (para. 94) and that only in May 1995, did she become “aware of the actual extent of the lymph node involvement that had been found in 1990” (para. 46). We disagree with the relevance of this, as s. 6(4)(b) requires an assessment of the facts within the plaintiff’s “means of knowledge” (emphasis added) and not the facts actually known. Mrs. Novak’s injury is not more extensive than she could have reasonably anticipated by May 1991. The motions judge found, at para. 50:
Timely advice, medical and legal, on the basis of Mrs. Novak’s knowledge as to the defendant’s negligence and knowledge that some damage had been occasioned would undoubtedly have led to a review of her medical records which clearly contained the information regarding extensive lymphatic involvement. Reasonable advice to be expected would be that significant future risk to her life and health had been created.
It may be the case that if this “significant future risk” could not have been known in May 1991, that it would not have been reasonable for Mrs. Novak to sue, taking into account her other circumstances. The seriousness of an injury can be a factor in deciding whether it is reasonable to bring an action. However, the fact that, in this case, the seriousness of the illness was clearly within her means of knowledge strengthens our conclusion that there is no evidence that it would not have been reasonable for the plaintiff to bring an action in May 1991.
22 The evidence that McLachlin J. uses to support her result is, in our opinion, inapposite. McLachlin J. relies on the fact that Mrs. Novak did not approach the matter lightly, did not act strategically, was concerned with her health, and hoped that her cancer would not recur (para. 96). These factors do not show that suing in 1991 would have been unreasonable. All they show is the uncontroversial proposition that Mrs. Novak herself acted reasonably in delaying her lawsuit. Every judge that has heard this case agrees. But, as stated above, the fact that the particular plaintiff’s own behaviour was reasonable is irrelevant. The test developed in Frosch Construction, supra, focuses on a different issue, namely whether the plaintiff could reasonably have sued earlier or not.
23 The difference between a showing that the plaintiff acted reasonably in delaying her lawsuit and a showing that the plaintiff could not reasonably have sued earlier is well illustrated by the holding in Frosch Construction itself, which McLachlin J. purports to follow. In that case, the plaintiff company was experiencing financial difficulties, had neither the time nor the money to bring an action, and had been advised by its legal counsel that the time was not right for a lawsuit. It was clear that, from the company’s subjective point of view, delaying the lawsuit was reasonable. Nonetheless, Lambert J.A. held that this evidence would not make a reasonable person think that a lawsuit could not have been brought earlier, taking into account the plaintiff’s own circumstances. He contrasted the plaintiff in Frosch Construction with the plaintiff in Evans v. Vancouver Port Corp. (1989), 42 B.C.L.R. (2d) 174 (C.A.), where the evidence clearly showed that the timely filing of a lawsuit would have stopped the plaintiff’s workers’ compensation benefits, thereby exposing him and his family to destitution. Unlike Evans, the evidence in Frosch Construction did not warrant a conclusion that a lawsuit could not reasonably be brought.
24 In our view, the same can be said of this case. In reaching the contrary conclusion, McLachlin J. focuses on factors that go only to the reasonableness of the course Mrs. Novak herself decided to take. This view seems to follow less from Lambert J.A.’s reasoning in Frosch Construction and more from the interpretation of the New South Wales legislation in Royal North Shore Hospital v. Henderson (1986), 7 N.S.W.L.R. 283 (C.A.). The New South Wales court makes clear (at p. 287) that it is concerned with circumstances in which “notwithstanding a knowledge of material facts of a decisive character, it might nonetheless be reasonable for a person not to sue” (emphasis added).
25 We do not believe that the Henderson analysis can be reconciled with the language of the British Columbia statute or with Lambert J.A.’s interpretation of it in Frosch Construction. The Henderson court was interpreting a different statute (Limitation Act, 1969 (N.S.W.), 1969, No. 31, s. 57(1)(c)), which provided that time began to run only when a reasonable person would regard the facts as showing that someone in the plaintiff’s position “ought, in his own interests, and taking his circumstances into account, to bring an action”. The absence of the words “to be able” shifts the perspective to the point in time when a reasonable person would say that the plaintiff reasonably should bring a cause of action. Under the New South Wales legislation, it makes sense to ask whether a particular plaintiff’s delay in filing suit was “reasonable” under the circumstances. Obviously, if a plaintiff’s refusal to bring an action can be called “reasonable,” then the plaintiff was not someone who “ought . . . to bring” an action at that time and postponement is in order.
26 In British Columbia, the law is different. McLachlin J. posits (at para. 80) that the additional words “to be able” in s. 6(4)(b) should be given meaning, and we agree. Yet her analysis, relying as it does on whether the plaintiff’s course of action was itself reasonable, interprets s. 6(4)(b) in the same way as the Henderson court interpreted the New South Wales legislation, effectively reading the words “to be able” out of the statute. This interpretation is not the one advanced in Frosch Construction, but rather that of the two British Columbia cases that saw no difference between s. 6(4)(b) and the New South Wales statute: see Karsanjii Estate v. Roque, [1990] 3 W.W.R. 612 (B.C.C.A.), and Evans, supra. The interpretation advanced in Evans and Karsanjii Estate cannot be squared with the language of the British Columbia statute.
27 If the conclusion is that an action will not be barred so long as a person in the plaintiff’s subjective position was not unreasonable in delaying his or her lawsuit, that conclusion is contrary to the wording of the statute and expands without limit the kind of interests that a plaintiff may advance for postponing the lawsuit. A plaintiff could reasonably decide not to bring a lawsuit for almost an infinite variety of “serious, significant and compelling” reasons, such as the presence of a difficult personal crisis, a desire to wait until the plaintiff’s career was more established or his or her economic circumstances more secure, or the desire to wait until a similar case was tried successfully. All such and similar factors would have to be considered in each case because they all contribute to a determination whether the plaintiff “acted reasonably”.
28 It is suggested that the statute will nonetheless bar a plaintiff who delayed a lawsuit for tactical reasons. This seems doubtful in light of all the litigation-related factors listed as possibly “serious, significant and compelling” reasons to delay bringing a lawsuit. If it is reasonable for a plaintiff to temporize on account of the “costs and strain of litigation,” or the “minimal or speculative” quality of the damages recoverable, what other serious circumstances would not qualify? If we take individual interests into account, would a plaintiff not be reasonable in waiting until unfavourable evidence was no longer available? What meaningful distinction exists between a plaintiff’s concern regarding the quantum of damages recoverable and the concern regarding the likelihood of victory on the merits? Lambert J.A. voiced similar concerns when he rejected a broad interpretation of s. 6(4)(b) in Frosch Construction, supra, at p. 78.
29 If the test is that the limitations period is postponed so long as the plaintiff acts reasonably, it will be difficult to find any action barred under s. 3 of British Columbia’s Limitation Act, if that action is subject to the postponement provision of s. 6. The only ready example of a circumstance that might bar an action would be if it became clear to the plaintiff that the amount recoverable was beginning to decrease. In that improbable circumstance, it would be unreasonable for a plaintiff not to sue immediately.
30 The expansive interpretation of s. 6(4)(b) means that actions subject to s. 6's postponement provision will not be barred except under the “ultimate limitation” provision of s. 8 of the Limitation Act. Under s. 8, most of the actions subject to the postponement provision may be brought up to 30 years after they arise, with the exception of a limited class of actions against medical practitioners, hospitals and hospital employees, which have an ultimate limitation period of six years. This does not appear to be the British Columbia legislature’s intended result.
31 The postponement provision is awkwardly drafted and its meaning has been the subject of concern among the British Columbia courts. This seems all the more reason to be cautious in giving it a wide interpretation. McLachlin J. states that she will follow the welcome “restrictive” approach propounded by Lambert J.A., but the holding itself deviates from that approach. Instead, reliance is placed on factors that, although relevant to the personal decisions people must make in their lives, cannot be used in interpreting a statute of limitations without draining the statute of meaning.
32 It is apparent that the interpretative difficulties attending s. 6(4) can be easily remedied by the British Columbia legislature. For now, unfortunately, a section designed to temper the injustice of an absolute statute of limitations will commit the opposite but equal injustice of effectively abolishing the statute of limitations.
33 We would allow the appeal with costs, set aside the judgment of the British Columbia Court of Appeal, and reinstate the decision of the motions judge dismissing the action.
The judgment of L’Heureux-Dubé, Gonthier, Cory and McLachlin JJ. was delivered by
//McLachlin J.//
McLachlin J. __
I. Summary
34 This appeal requires the Court to consider the proper interpretation to be given to s. 6(4)(b) of the Limitation Act, R.S.B.C. 1996, c. 266 (the “Act”). This subsection allows the running of a limitation period for certain actions to be postponed until a reasonable person would consider that the plaintiff “ought, in the person’s own interests and taking the person’s circumstances into account, to be able to bring an action”. The meaning of this obscure provision has been a longstanding source of frustration in British Columbia.
35 The respondent, Mrs. Novak, went to see the appellant, Dr. Bond, about a lump she had discovered in her breast. Between October 18, 1989 and October 1, 1990, she saw him at least six times. Dr. Bond advised Mrs. Novak not to worry. On October 4, 1990, a specialist diagnosed Mrs. Novak with breast cancer. She had a partial radical mastectomy, and it was discovered that the cancer had spread to at least twelve of her thirteen lymph nodes.
36 After recovering from a year of illness, Mrs. Novak considered suing Dr. Bond and even discussed the matter with her parish priest. She decided not to sue at that time, preferring to concentrate on maintaining her health and a positive belief that she had been cured. Four years later, in May 1995, Mrs. Novak’s cancer recurred, spreading to her spine, liver and lung. She and her husband started this action on April 9, 1996. Section 3(2)(a) of the Act provides that this type of personal injury action is subject to a two-year limitation period. Therefore, for it to have been brought in time, Mrs. Novak must establish that s. 6(4)(b) postponed the running of time until at least April 9, 1994.
37 Before trial, Dr. Bond sought an order dismissing this action as statute-barred. The motions judge granted the application and dismissed the action. The Court of Appeal held, however, that the motions judge had not given proper attention to s. 6(4)(b) and, holding that this provision allows the running of time to be postponed on the basis of compassionate or sympathetic factors that are personal to the plaintiff, allowed the appeal. Dr. Bond now appeals to this Court.
38 The British Columbia Court of Appeal has in different cases suggested at least four approaches to s. 6(4)(b): (1) a broad subjective/objective approach, that asks when a reasonable person would hold that the plaintiff should bring an action, taking into account his or her own circumstances and interests; (2) a restrictive subjective/objective approach, that asks when a reasonable person would hold that the plaintiff could bring an action, taking into account the plaintiff’s “important and substantial interests”; (3) a restrictive objective approach, that simply looks to the individual plaintiff’s legal capacity to bring an action; and (4) a discretionary approach, that holds that s. 6(4)(b) gives the court the discretion to assess the particular action and decide whether the plaintiff “ought . . . to be able to bring” it outside the usual limitation period.
39 The scheme and purpose of the Act leads me to conclude that the appropriate test is a variant of the second approach. Leaving aside the requirement that the identity of the defendant must be known to the plaintiff and that the provisions of s. 6(4)(a) must also be satisfied before the running of time is postponed, it is my view that the proper interpretation of s. 6(4)(b) may be summarized as follows:
Section 6(4)(b) requires the court to adopt the perspective of a reasonable person who knows the facts that are within the plaintiff’s knowledge and has taken the appropriate advice a reasonable person would seek on those facts. Time does not begin to run until this reasonable person would conclude that someone in the plaintiff’s position could, acting reasonably in light of his or her own circumstances and interests, bring an action. The question posed by s. 6(4)(b) therefore becomes: “in light of his or her own particular circumstances and interests, at what point could the plaintiff reasonably have brought an action?” The reasonable person would only consider that the plaintiff could not have brought an action at the time the right to do so first arose if the plaintiff’s own interests and circumstances were serious, significant, and compelling. Purely tactical concerns have no place in this analysis.
40 This approach recognizes the special problems injured persons may encounter and the intense stresses and strains involved in litigation. It recognizes that in some cases, the plaintiff’s own circumstances and interests may be so compelling that it cannot be reasonably said that he or she could bring an action within the prescribed limitation period. Finally, it makes practical sense. People ought to be encouraged to take steps short of litigation to deal with their problems. They should not be compelled to sue when to do so runs counter to a vital interest, such as the need to maintain their health in the face of a life-threatening disease.
41 Applying this test to the facts of this case, I would dismiss the appeal and permit the action to proceed.
II. Facts
42 The appellant, Dr. Bond, was the respondent Mrs. Novak’s physician. Between October 18, 1989 and October 1, 1990, Mrs. Novak saw him about a lump and soreness in her left breast on at least six occasions. Each time, Dr. Bond told her that she had “mammary dysplasia” and “‘lumpy’ breasts”, reassuring her that “cancer is not like this” and that she had nothing to worry about. He told her to exercise more, drink less coffee, and take Vitamin E, Diazide and Advil.
43 On October 1, 1990, Mrs. Novak was referred to a specialist, and on October 3, 1990, was examined by a surgeon, Dr. T. E. Abraham. On October 4, 1990, Dr. Abraham performed a biopsy which established that Mrs. Novak had cancer of the left breast. On October 9, 1990, she had a partial radical mastectomy and it was discovered that the cancer had spread to at least twelve of her thirteen lymph nodes. From October 1990 until April 1991, Mrs. Novak underwent chemotherapy and radiation therapy. Later in October 1990, she began seeing a new physician as she no longer had confidence in Dr. Bond.
44 From the time of her diagnosis in October 1990, Mrs. Novak believed that Dr. Bond should have taken action earlier than he did. She believed that she would have required less extensive medical treatment had an earlier diagnosis been made, although she still would have had to undergo the mastectomy. Although she did not know the specific extent of her lymph node involvement in October 1990, she was aware by at least December 1990, that it was heavy or extensive.
45 In the late summer or early fall of 1991, Mrs. Novak considered whether she should sue Dr. Bond. She did not consult a lawyer, but discussed the issue with her parish priest. She decided not to pursue litigation. At her Examination for Discovery, she explained the reasons for her decision:
That would have taken place probably after my – after my chemo. I remember distinctly thinking, I’m not going to worry about litigation until I get my treatment. It was very profound, I was extremely ill for about a year, and I started to get back on my feet and – so it was after my chemo, probably the summer of `90, and then my father died and I was dealing with my dad’s death. So it would have been the late summer maybe early fall of `91, somewhere around there, and I tossed it about and tossed it about and thought, well do I have the strength to really go through this at this stage of the game? And I talked to my parish priest about it and thought, well I’m well, I have to believe that I’m well, I have to believe that I’ve been cured, if I go for litigation it brings back all the horrible memories and I won’t at this point, we’ll wait to see for a few years what’s going to happen down the road.
46 Mrs. Novak had no symptoms of cancer from April 1991 to May 1995, a time during which her health was closely monitored. In May 1995, she was diagnosed with cancer of the spine, liver and lung and became aware of the actual extent of the lymph node involvement that had been found in 1990. The cancer was a recurrence of the breast cancer originally diagnosed and treated in October 1990.
47 When her cancer recurred, Mrs. Novak and her husband decided to initiate legal action against Dr. Bond, and commenced these proceedings on April 9, 1996. They made no claim with respect to the initial cancer, nor for its treatment. They claimed only damages relating to the recurrence of cancer in May 1995 on the basis that those damages arose from Mrs. Novak’s increased susceptibility to recurrence caused or contributed to by the late diagnosis of her breast cancer.
48 Dr. Bond successfully moved to have the action dismissed as statute-barred. The Court of Appeal allowed Mrs. Novak’s appeal and reinstated her action. Dr. Bond now appeals that decision to this Court.
49 In order for Mrs. Novak’s action to be within the time limit set by s. 3(2)(a) of the Act, she must establish that the running of time was postponed by s. 6(4) until at least April 9, 1994.
III. Statutory Provisions
Limitation Act, R.S.B.C. 1996, c. 266
50 Section 3(2)(a) provides that an action claiming damages for personal injury must be brought within two years of the date the right to bring the action arose.
3 . . .
(2) After the expiration of 2 years after the date on which the right to do so arose a person may not bring any of the following actions:
(a) subject to subsection (4)(k), 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. . . .
51 In certain circumstances, s. 6 allows the running of time to be postponed.
6 . . .
(3) The running of time with respect to the limitation periods set by this Act for any of the following actions is postponed as provided in subsection (4):
(a) for personal injury;
. . .
(c) for professional negligence. . . .
(4) Time does not begin to run against a plaintiff with respect to an action referred to in subsection (3) until the identity of the defendant is known to the plaintiff and those facts within the plaintiff’s means of knowledge are such that a reasonable person, knowing those facts and having taken the appropriate advice a reasonable person would seek on those facts, would regard those facts as showing that
(a) an action on the cause of action would, apart from the effect of the expiration of a limitation period, have a reasonable prospect of success, and
(b) the person whose means of knowledge is in question ought, in the person’s own interests and taking the person’s circumstances into account, to be able to bring an action.
(5) For the purpose of subsection (4),
(a) “appropriate advice”, in relation to facts, means the advice of competent persons, qualified in their respective fields, to advise on the medical, legal and other aspects of the facts, as the case may require,
(b) “facts” include
(i) the existence of a duty owed to the plaintiff by the defendant, and
(ii) that a breach of a duty caused injury, damage or loss to the plaintiff. . . .
52 Section 7 allows the running of time to be postponed if the plaintiff is under a legal disability.
7 (1) For the purposes of this section,
(a) a person is under a disability while the person
(i) is a minor, or
(ii) is in fact incapable of or substantially impeded in managing his or her affairs, and
(b) "guardian" means a parent or guardian who has actual care and control of a minor or a committee appointed under the Patients Property Act.
(2) If, 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 set by this Act is postponed so long as that person is under a disability.
(3) If the running of time against a person with respect to a cause of action has been postponed by subsection (2) and that person ceases to be under a disability, the limitation period governing that cause of action is the longer of the following:
(a) the period that the person would have had to bring the action had that person not been under a disability, running from the time the cause of action arose;
(b) the period running from the time the disability ceased, but in no case does that period extend more than 6 years beyond the cessation of disability.
(4) If, after time has begun to run with respect to a limitation period set by this Act, but before the expiration of the limitation period, a person who has 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.
(5) If the running of time against a person with respect to a cause of action has been suspended by subsection (4) and that person ceases to be under a disability, the limitation period governing that cause of action is the longer of the following:
(a) the length of time remaining to bring an action at the time the person came under the disability;
(b) one year from the time that the disability ceased.
. . .
53 Section 8 provides an ultimate limitation period of six years for proceedings against medical practitioners.
8 (1) Subject to section 3(4) and subsection (2) of this section, but despite a confirmation made under section 5, a postponement or suspension of the running of time under section 6 or 11(2) or a postponement or suspension of the running of time under section 7 in respect of a person who is not a minor, no action to which this Act applies may be brought
. . .
(b) against a medical practitioner, based on professional negligence or malpractice, after the expiration of 6 years from the date on which the right to do so arose. . . .
IV. Judicial History
54 The motions judge ([1997] B.C.J. No. 1900 (QL) (S.C. in chambers)) held that the primary limitation period in this case began to run in October 1990, when Mrs. Novak learned that she had breast cancer. She then “had ‘within her means of knowledge’ facts upon which a reasonable person would have taken appropriate advice . . . .” That advice “would have indicated a cause of action for which there would be a reasonable prospect of success and which in her best interests should be commenced within two years of the October 1990 discovery of her breast cancer” (para. 57). The recurrence of her cancer in 1995 did not give rise to a new cause of action; it only increased her damages. The motions judge noted however that he had no difficulty postponing the running of time during the period in which Mrs. Novak was recovering from her treatments. While this postponed the running of time until the spring of 1991, it was not enough to assist Mrs. Novak. The motions judge held that the limitation period had expired before the action was brought and dismissed the action.
55 The Court of Appeal ((1998), 110 B.C.A.C. 103) allowed the appeal and reinstated the action. Southin J.A., with whom Newbury J.A. concurred, considered herself bound by previous authority to hold that s. 6(4)(b) postpones the running of the limitation period if there exist “sympathetic, compassionate, or other grounds based upon the personal preferences of the plaintiff”. In this case, the plaintiff had “considered, not unreasonably, that it was in her own interest not to sue but to devote herself to recovering her health” (p. 112). Newbury J.A. added brief concurring reasons, stating that but for the existing authorities she would have dismissed the appeal. Hall J.A. agreed in the result and stated at p. 113:
In the instant case, the plaintiff . . . , after her initial surgery, was determined to devote all her energies to attempting to recover from her illness and took the not unreasonable view that expending time and energy on a lawsuit that would largely concentrate on what she hoped were minimal future contingencies would be harmful to her. People ought to be encouraged to take reasonable steps short of litigation to cope with their problems. I consider that what this plaintiff did accorded not only with good public policy but was clearly in her own best interests. It was far better for her to maintain a positive attitude and concentrate on the hopes of a continuing healthy life as opposed to dwelling on the possibility of a recurrence of illness.
Hall J.A. went on to state that within the ultimate limitation period of six years applicable to this type of case, courts must address the postponement of the limitation period in individual cases on an individual basis. “Tactical” conduct should not be sanctioned, but there was no indication of any such conduct here. Until she actually commenced this action, Mrs. Novak was truly not, “having regard to her interests in preserving and maintaining her health, an individual who ‘ought, in the person’s own interests and taking the person’s circumstances into account, to be able to bring an action’” (p. 114).
V. Issue
56 What is the proper approach to be taken when interpreting s. 6(4)(b) of the Limitation Act, R.S.B.C. 1996, c. 266?
VI. Analysis
A. Approaches Suggested by the British Columbia Court of Appeal
57 The British Columbia Court of Appeal has been engaged in an ongoing struggle to define the content of s. 6(4)(b) of the Act. At least four different approaches to s. 6(4)(b) have emerged in the decisions of the Court of Appeal. To a greater or lesser extent, they are reflected in the positions taken by the appellant and the respondent.
(1) Broad Subjective/Objective Approach: Whether Reasonable
Plaintiff “Should” Bring Action
58 This approach suggests that s. 6(4)(b) postpones the running of time until a reasonable person would hold that the plaintiff, taking his or her own circumstances and interests into account, should bring an action, i.e., until it is in the plaintiff’s best interests to do so. Such an interpretation was advocated in Evans v. Vancouver Port Corp. (1989), 42 B.C.L.R. (2d) 174 (C.A.), per Wood J.A., additional reasons at (1990), 46 B.C.L.R. (2d) 334 (C.A.), per Macdonald J.A., and in Karsanjii Estate v. Roque, [1990] 3 W.W.R. 612 (B.C.C.A.), per Taylor J.A. On this interpretation, great deference is given to the course of action that is best for the plaintiff.
(2) Restrictive Subjective/Objective Approach: Whether Reasonable Plaintiff “Could” Bring Action, Taking into Account Plaintiff’s “Important and Substantial Interests”
59 Later cases have restricted the broad approach taken by Wood J.A. in Evans, supra, and by Taylor J.A. in Karsanjii, supra. These cases attempt to give effect to the inclusion of the words “to be able” in s. 6(4)(b) and strive to identify the point at which a reasonable person, taking into account the plaintiff’s “important and substantial interests”, would conclude that the plaintiff could – not necessarily should – sue the defendant.
60 The leading case adopting this interpretation is Frosch Construction Ltd. v. Volrich (1995), 7 B.C.L.R. (3d) 72 (C.A.). Lambert J.A., writing for the court, compared s. 6(4)(b) to the New South Wales legislation on which it was based, and expressed the opinion, at p. 78, that the addition to the British Columbia Act of the words “to be able” made “a significant difference to the meaning of the provision”. At p. 79, he set out his understanding of how s. 6(4)(b) should be interpreted, emphasizing that postponement cannot be justified by tactical considerations:
In short, the effect of the addition of the words “to be able” is, in my opinion, to take out of consideration matters of tactics to do with the lawsuit itself and to do with any other matters that affect only questions of tactical timing, and to leave for consideration only those matters where important and substantial interests of the plaintiff in his or her own circumstances should be open for consideration by a reasonable person in deciding whether a person in the plaintiff’s position ought to be able to bring an action. “Ought to bring an action” involves a wider range of factors for consideration than “ought to be able to bring an action”. By the addition of the words “to be able” the meaning is changed from whether a reasonable person would consider that someone in the plaintiff’s position should, acting reasonably, bring an action at that time, to whether a reasonable person would consider that someone in the plaintiff’s position could, acting reasonably, bring an action at that time. [Emphasis in original.]
Lambert J.A. proposed a similar interpretation of s. 6(4)(b) in Vance v. Peglar (1996), 22 B.C.L.R. (3d) 251 (C.A.), leave to appeal refused, [1997] 1 S.C.R. x.
(3) Restrictive Objective Approach: Plaintiff Generally “Ought to be Able to Bring Action” if Legally Capable of Bringing Action
61 A third interpretation of s. 6(4)(b) was proposed by McEachern C.J. in Karsanjii, supra. There, he suggested that s. 6(4)(b) essentially referred only to the plaintiff’s legal capacity to bring an action. Once the plaintiff is legally entitled to bring an action, he or she “ought to be able” to do so. At pp. 616-17, McEachern C.J. expressed his views with respect to what is now s. 6(4)(b) as follows:
. . . I must respectfully reject the suggestion that personal, economic or embarrassing reasons are sufficient to postpone the commencement of a limitation period. It must be remembered that the plaintiff has two years to bring an action after the means of knowledge test is satisfied.
Therefore, without knowing precisely what this section means, it is my view that any plaintiff who ought, in his own interests and taking his circumstances into account, to bring an action should do so if he is able, that is, if he has legal capacity to be able to do so.
. . .
In my view, any person who is able to bring an action is also a person who ought to be able to bring an action.
(4) Discretionary Approach: Court Has Discretion to Assess Action and Decide Whether Plaintiff “Ought To Be Able To Bring” It
62 n Vance, supra, McEachern C.J. offered a fourth interpretation of s. 6(4)(b). The main question posed by this approach is whether the plaintiff (who would otherwise be out of time) has established a cause of action with a reasonable chance of success under s. 6(4)(a). If so, s. 6(4)(b) is then considered to determine whether there are any factors which negative the plaintiff’s right to bring the action, i.e., which show that the plaintiff ought not to be able to bring the action. McEachern C.J. elaborated at pp. 263-64:
It may be, for example, that a plaintiff has already been compensated adequately for the lost cause of action, or that the cause of action is trivial, frivolous, vexatious or not bona fide. No doubt there are other examples of cases where the court, having regard to all relevant considerations, would properly conclude that the plaintiff ought not to be able to bring an action even though his or her cause of action has a reasonable prospect of success.
B. How Should Section 6(4)(b) Be Interpreted?
(1) Statutory Interpretation
63 Although the judicial debate about the proper interpretation of s. 6(4)(b) has assumed an independent life in British Columbia legal circles, it remains a question of statutory interpretation. The cardinal principle of statutory interpretation is that a legislative provision should be construed in a way that best furthers its objects: see Rizzo & Rizzo Shoes Ltd. (Re), [1998] 1 S.C.R. 27, at paras. 21-22, per Iacobucci J., and Interpretation Act, R.S.B.C. 1996, c. 238, s. 8. Subsidiary rules of statutory interpretation provide that each part of an enactment must be given meaning, and that statutes must be construed in such a way that absurdities are avoided: see Rizzo Shoes, supra, at para. 27, per Iacobucci J. The task faced by the Court on this appeal is therefore to first identify the scheme and purpose of the Limitation Act and then identify the interpretation of s. 6(4)(b) that best furthers its goals.
(2) Scheme and Purpose of the Limitation Act
64 In Peixeiro v. Haberman, [1997] 3 S.C.R. 549, this Court affirmed its earlier identification of the traditional rationales of limitations statutes in M. (K.) v. M. (H.), [1992] 3 S.C.R. 6, at pp. 29-30. Limitations statutes were held, at p. 29, to rest on “certainty, evidentiary, and diligence rationales”. In M. (K.), supra, this Court noted at pp. 29-30:
Statutes of limitations have long been said to be statutes of repose. . . . The reasoning is straightforward enough. There comes a time, it is said, when a potential defendant should be secure in his reasonable expectation that he will not be held to account for ancient obligations. . . .
The second rationale is evidentiary and concerns the desire to foreclose claims based on stale evidence. Once the limitation period has lapsed, the potential defendant should no longer be concerned about the preservation of evidence relevant to the claim. . . .
Finally, plaintiffs are expected to act diligently and not “sleep on their rights”; statutes of limitation are an incentive for plaintiffs to bring suit in a timely fashion.
It is apparent that these rationales generally reflect the interests of the potential defendant: Murphy v. Welsh, [1993] 2 S.C.R. 1069, at pp. 1079-80, per Major J. They rest on the view that a potential defendant should not have to defend a stale claim brought by a plaintiff who has chosen not to assert his or her rights diligently. Indeed, although there have traditionally been doctrines or statutory provisions that recognized the plaintiff’s interests, such as the exceptions applicable to persons under a disability or victims of concealed frauds, limitations statutes have generally been oriented towards the interests of the potential defendant.
65 Over the last several decades, however, many legislatures have moved to modernize their limitations statutes, most of which were formerly based on diverse collections of centuries-old English statutes: see Law Reform Commission of British Columbia, Report on Limitations, Part 2: General (1974), at pp. 9-16; Alberta Law Reform Institute, Report No. 55, Limitations (1989), at pp. 15-16 and Appendix A. As part of this process, renewed attention has been given to ensuring that the limitations statutes are framed in a manner that addresses more consistently the plaintiff’s interests, not just those of the defendant. This trend has also been reflected in the more balanced way that courts have sought to interpret these statutes. Arbitrary limitation dates have been discouraged in favour of a more contextual view of the parties’ actual circumstances. To take just one example, it has been well-recognized that it is unfair for the limitation period to begin running until the plaintiff could reasonably have discovered that he or she had a cause of action: see Kamloops (City of) v. Nielsen, [1984] 2 S.C.R. 2; Central Trust Co. v. Rafuse, [1986] 2 S.C.R. 147; M. (K.), supra; Peixeiro, supra. Even on this new approach, however, limitation periods are not postponed on the plaintiff’s whim. There is a burden on the plaintiff to act reasonably.
66 Contemporary limitations statutes thus seek to balance conventional rationales oriented towards the protection of the defendant – certainty, evidentiary, and diligence – with the need to treat plaintiffs fairly, having regard to their specific circumstances. As Major J. put it in Murphy, supra, “[a] limitations scheme must attempt to balance the interests of both sides” (p. 1080). See also Peixeiro, supra, at para. 39, per Major J.
67 The result of this legislative and interpretive evolution is that most limitations statutes may now be said to possess four characteristics. They are intended to: (1) define a time at which potential defendants may be free of ancient obligations, (2) prevent the bringing of claims where the evidence may have been lost to the passage of time, (3) provide an incentive for plaintiffs to bring suits in a timely fashion, and (4) account for the plaintiff’s own circumstances, as assessed through a subjective/objective lens, when assessing whether a claim should be barred by the passage of time. To the extent they are reflected in the particular words and structure of the statute in question, the best interpretation of a limitations statute seeks to give effect to each of these characteristics.
68 The general scheme of the British Columbia Limitation Act reflects this evolution. Section 3 provides concrete limitation periods for most actions. Depending on the cause of action, an action must be commenced within two, six, or ten years after the date on which the right to bring it arose, i.e., the date on which all the elements of the cause of action came into existence: see s. 3(2), (3), (5) and (6); Bera v. Marr (1986), 1 B.C.L.R. (2d) 1 (C.A.).
69 At the same time, the Act contains provisions aimed at treating plaintiffs fairly. For example, s. 6(3) to (5) reflect the common law view that it is unfair to the plaintiff if the running of time commences before the existence of the cause of action is reasonably discoverable. To determine when the running of time should commence for the enumerated actions, the court is generally directed to consider the actions of a reasonable person in the particular plaintiff’s circumstances. Except where certain claims are made against a trustee, the plaintiff bears the burden of proving that, on the basis of these tests, the running of time has been postponed in a particular case: see s. 6(2), (6), and Zeidan v. British Columbia, [1989] B.C.J. No. 598 (QL) (S.C.). Section 7 of the Act allows the running of time to be postponed if the plaintiff is under a legal disability, a provision that is also directed to ensuring fairness to plaintiffs.
70 Certainty and diligence, however, remain important goals. The running of time cannot be postponed indefinitely. Therefore, s. 8 of the Act sets forth a series of ultimate limitation periods, the length of which depends on the particular type of action in issue. Generally, regardless of whether the running of time has been postponed or the cause of action confirmed by the defendant, no action can be brought after the expiration of __ depending on the classification of the action __ six or thirty years after the date on which the right to bring the action arose. Where the plaintiff is a minor, the running of time for the purposes of the ultimate limitation period is postponed until he or she reaches the age of majority: see s. 8(2). Only upon the expiration of the relevant ultimate limitation period can the potential defendant truly be assured that no plaintiff may bring an action against him or her. At that time, any cause of action that was once available to the plaintiff is extinguished: see s. 9(1). See generally Law Reform Commission of British Columbia, Report on the Ultimate Limitation Period: Limitation Act, Section 8 (1990), especially at pp. 21-23. With respect to the case on appeal, the appellant is protected by a six-year ultimate limitation period: see s. 8(1)(b).
71 Viewed in this context, s. 6(4)(b) may be seen as operating to adjust the position of the limited window of time within which a plaintiff may bring an action. This section is constrained at one end by the specific date on which the cause of action actually arose in fact and, at the other end, by the ultimate limitation period of six or thirty years. Within that longer time period, and regardless of when it is considered to begin running, time may generally only be permitted to run for two, six, or ten years. The debate in this case is over the type of circumstances in which, within that larger period of time, the commencement of the limitation period for the initiation of an action that has a reasonable prospect of success should be postponed. The answer to this question must be resolved in a manner that maintains the traditional defendant-oriented rationales of limitations statutes, while also reflecting the modern need to balance those rationales against the plaintiff’s circumstances and his or her interest in bringing an action to redress a wrong.
(3) Meaning of the Troublesome Phrase in Section 6(4)(b)
72 After stipulating that the identity of the defendant must be known to the plaintiff, s. 6(4) sets out the parameters of knowledge and advice that determine whether the commencement of the running of time will be postponed beyond the date on which the right to bring the action arose in fact. The question is whether a reasonable person, knowing the facts within the plaintiff’s means of knowledge and having taken the appropriate advice a reasonable person would take on those facts, would regard those facts as showing both that the action would have a reasonable prospect of success (s. 6(4)(a)), and that the plaintiff “ought . . . to be able to bring an action”, given the person’s “own interests” and “circumstances” (s. 6(4)(b)). Time does not begin to run until both s. 6(4)(a) and s. 6(4)(b) are satisfied. The question before this Court is the meaning to be ascribed to the opaque phrase, “ought, in the person’s own interests and taking the person’s circumstances into account, to be able to bring an action”. The word “ought” suggests an objective “reasonable person” standard. On the other hand, the reference to the plaintiff’s “own interests” and “circumstances” introduces subjective considerations. How are the two to be reconciled?
73 The interpretation given to s. 6(4)(b) must give proper weight to: (1) the Legislature’s inclusion of a subjective/objective standard in s. 6(4)(b); (2) the broad wording it has used in that provision; (3) the contemporary view that when construing a limitations statute the plaintiff’s concerns must be considered together with the defendant’s need to be protected from stale claims brought by dilatory plaintiffs; and (4) the interpretive presumption that s. 6(4)(b) adds something to s. 6(4)(a) and, to the rest of the Act. Many of the proposed interpretations fail to meet one or more of these requisites.
74 One suggestion is that the phrase “ought . . . to be able to bring an action” in s. 6(4)(b) is concerned with legal capacity. A minor or a mentally incompetent person might argue that, owing to a disability, he or she was not able to bring the action at the time the right to do so arose. The first problem with this suggestion is that the Legislature has addressed questions of the plaintiff’s legal capacity to bring an action in s. 7 of the Act, not s. 6(4)(b). This interpretation would therefore render s. 6(4)(b) superfluous. The second problem with this suggestion is that it fails to reflect fully the broad wording of s. 6(4)(b). Section 6(4)(b) expressly directs the court to consider the plaintiff’s “own interests” and “circumstances”. These expansive words go far beyond bare legal capacity and effect must be given to the Legislature’s decision to include them in s. 6(4)(b).
75 Another suggestion is that s. 6(4)(b) is primarily designed to address the situation of the plaintiff who considers that, while an action would have a reasonable prospect of success, the amount likely to be recovered would be so little, or the remedy so unimportant, that practical considerations weigh against bringing it. Again, this suggestion fails to acknowledge the broad ambit of the phrase, “in the person’s own interests and taking the person’s circumstances into account”. To be sure, there may be cases where the plaintiff’s “own interests” and “circumstances” make the significance of the remedy an important consideration under s. 6(4)(b). But to confine the ambit of s. 6(4)(b) to these situations seems to me to run against the broad language the Legislature chose to employ.
76 A third suggestion is that the Legislature intended that s. 6(4)(b) should prevent the postponement of the limitation period where the action – which the plaintiff only lately discovered has a reasonable prospect of success – is trivial, frivolous, vexatious, or not bona fide. This suggestion seems to assume that s. 6(4)(b) “revives” an extinguished cause of action and confers upon the court the discretion to decide which causes of action should be “revived” and which should not. Frivolous, vexatious, trivial, or non-bona fide actions are examples, the argument runs, of proceedings that should not be revived.
77 With respect, this interpretation overlooks the wording and function of s. 6(4). First s. 6(4) provides that time does not begin to run until the identity of the defendant is known and the provisions of both s. 6(4)(a) and s. 6(4)(b) are satisfied. Thus, the question of whether s. 6(4)(b) should be used to “revive” the plaintiff’s particular action is inapposite: the action has not yet been extinguished at the time s. 6(4)(b) is considered. It is accordingly incorrect to posit that s. 6(4)(b) allows the limitation period to be postponed only if the action appears meritorious.
78 This interpretation also threatens to render s. 6(4)(b) superfluous. To the extent that the merits of the particular action are relevant to the s. 6(4) analysis, they more naturally fall for consideration under s. 6(4)(a). An action that is trivial, frivolous, vexatious, or not bona fide is, by definition, an action that does not have a “reasonable prospect of success”. If this be so, this interpretation deprives s. 6(4)(b) of any purpose. Alternatively, on the assumption that the character of the action may also figure in the plaintiff’s “own interests” and “circumstances”, s. 6(4)(b)’s broad wording belies the view that the character of the action is the only thing to be considered, to the exclusion of the rest of the plaintiff’s interests and circumstances. In fact, if the character of the action were the exclusive focus of s. 6(4)(b), it would be indistinguishable from s. 6(4)(a).
79 Having considered and found wanting the narrower interpretations proposed, I turn to the broader interpretations of s. 6(4)(b). Two possibilities emerge: a broad subjective/objective approach akin to that suggested by Wood J.A. and Taylor J.A. in Evans, supra, and Karsanjii, supra, and a more restrictive subjective/objective approach similar to that offered by Lambert J.A. in Frosch Construction, supra, and Vance, supra.
80 The broad subjective/objective approach interprets the phrase “ought . . . to be able to bring an action” as meaning “should bring an action, in light of the plaintiff’s interests and circumstances”. This gives effect to the subjective component of s. 6(4)(b). However, it begs the question of why the Legislature did not simply use “should” if that is what it intended. Why did it choose the phrase “ought . . . to be able” with its connotation of capacity? Moreover, this interpretation is open to the practical objection that it might allow the running of time to be postponed for mere tactical reasons, a result that does not accord with the need to balance the four characteristics of limitations statutes discussed earlier.
81 The other option, a more restrictive subjective/objective test similar to that adopted by Lambert J.A. in Frosch Construction, supra, and Vance, supra, gives full effect to the language of s. 6(4)(b) while avoiding both the distortion of the phrase “ought . . . to be able to bring an action” and the misuse of the provision for tactical purposes. On this approach, s. 6(4)(b) may be read as denoting a time at which a reasonable person would consider that someone in the plaintiff’s position, acting reasonably in light of his or her own circumstances and interests, could – not necessarily should – bring an action. This approach is neither purely subjective nor purely objective. The question becomes: “in light of his or her own circumstances and interests, at what point could the plaintiff reasonably have brought an action?” The reasonable person would only consider that the plaintiff could not have brought an action at the time the right to do so first arose if the plaintiff’s own interests and circumstances were serious, significant, and compelling. Purely tactical considerations have no place in this analysis. In my view, this approach best accords with the purposes of modern limitations statutes, gives a sensible meaning to the terms of s. 6(4)(b), and is most likely to result in clear and fair results in the majority of cases.
82 This approach addresses the heart of the problem posed by this difficult provision: how to reconcile the words “ought . . . to be able to bring an action”, with their connotation of capacity or ability, and the section’s insistence that full account also be taken of the plaintiff’s “own interests” and “circumstances”. As suggested above, the two directions may seem contradictory on one level. The phrase “ought . . . to be able” suggests objective ability or capacity. The reference to the plaintiff’s personal circumstances and interests, on the other hand, is the language of choice, of a situation where the plaintiff has the ability to do two or more things, and chooses one.
83 The proposed interpretation resolves this apparent conundrum by relying on the fact that there are different kinds of “ability”. “[O]ught . . . to be able to bring an action” can certainly be interpreted narrowly in the sense of legal capacity. But it also may be interpreted more broadly, in the sense of a practical ability to choose a particular course in light of the factual circumstances in which a person finds himself or herself. We speak of not being “able” to do something not only when we lack the legal or physical capacity to do it, but also when our circumstances are such that we cannot reasonably contemplate doing the thing.
84 Interpreting “ought . . . to be able to bring an action” in the second sense permits full weight to be given to all the words of s. 6(4)(b). The running of the limitation period is therefore postponed when the plaintiff shows that practical considerations arising from his or her “circumstances” and “own interests” render him or her unable, as a reasonable person, to bring an action at the earlier prescribed date. “[O]ught . . . to be able to bring an action”, interpreted thus, is very different from the normative “should bring an action”. “Should” connotes subjective choice; “could” connotes practical ability. On the interpretation I have proposed, the court’s central task is to identify the point at which the reasonable person who animates s. 6(4) would consider that the plaintiff, in light of his or her own interests and circumstances, could reasonably have brought an action. Section 6(4)(b) therefore refers to a time at which, in light of the plaintiff’s particular situation, the bringing of a suit is reasonably possible, not when it would be ideal from the plaintiff’s perspective to do so.
85 What “interests and circumstances” should be considered at this stage? In Frosch Construction, supra, at p. 79, Lambert J.A. held that only “important and substantial interests of the plaintiff in his or her own circumstances” should be considered. Practically speaking, the reasonable person would only consider that the plaintiff could not have brought an action at the time the right to do so first arose if the plaintiff’s own interests and circumstances were serious, significant, and compelling. For example, a plaintiff may not reasonably be able to bring an action when, viewed objectively but with regard to the plaintiff’s own situation, the costs and strain of litigation would be overwhelming to him or her, the possible damages recoverable would be minimal or speculative at best, or other personal circumstances combine to make it unfeasible to initiate an action. Litigation is never a process to be embarked upon casually and sometimes a plaintiff’s individual circumstances and interests may mean that he or she cannot reasonably bring an action at the time it first materializes. This approach makes good policy sense. To force a plaintiff to sue without having regard to his or her own circumstances may be unfair to the plaintiff and may also disserve the defendant by forcing him or her to meet an action pressed into court prematurely: see generally B. Legate, “Limitation Periods in Medical Negligence Actions Post-Peixeiro” (1998), 20 Advocates’ Q. 326, at p. 334.
86 Whether a particular circumstance or interest has the practical effect of preventing the plaintiff from being able to commence the action must be assessed in each individual case. Section 6(4)(b) requires that the circumstances and interests of the individual plaintiff be taken into account. What is a serious, substantial, and compelling interest in one case may not be so in another case. Purely tactical concerns play no role in this analysis because they do not relate to the practical ability of the plaintiff to bring an action, as assessed by a reasonable person who takes into account all his or her circumstances and interests. See Trueman v. Ripley, [1998] B.C.J. No. 2060 (QL) (S.C.).
87 Further assistance in determining what factors may lead a reasonable person to conclude that the plaintiff could not reasonably have brought an action at the normally prescribed time may be derived from the comments made by the New South Wales Law Reform Commission. Although the key difference between the New South Wales statute and the British Columbia Act is that the latter alone includes the phrase “to be able”, the observations of the Law Reform Commission are helpful in highlighting the general concerns that may arise in these circumstances. In its Report of the Law Reform Commission being the First Report on the Limitation of Actions (October 1967), the Commission stated at p. 135:
296. Section 57(1)(c)(ii) is new: it requires consideration of matters peculiar to the person whose means of knowledge is in question. Cases may arise where the prospective damages are sufficient in amount to justify bringing the action but the injured person would be obliged to pay to someone else the whole or a large part of the damages so that what would be left for the injured party would not be enough to outweigh the hazards of litigation. An example is the case where the only known heads of damage are medical expenses and loss of wages for a relatively short period. If the injured person has received workers’ compensation, the bringing of an action might in substance (after allowance for solicitor and client costs) result only in a benefit to the workers’ compensation insurer. The injured person may, acting reasonably in his own interests, refrain from suing in such a case but he should not, we think, be deprived on that account of the possibility of getting an extension of time in case the injuries later turn out to be much more serious.
297. Then again, there may be personal reasons for not suing when the apparent injury is small. An injured employee may, for example, reasonably take the view that an action against his employer may jeopardize the future course of his employment to an extent which outweighs the prospective damages for the injuries at first apparent. Section 57(1)(c)(ii) would allow circumstances such as these to be taken into account.
I do not understand the New South Wales Law Reform Commission to be suggesting that the plaintiff is entitled to abstain from suing until, on a fine analysis of the situation, the costs of the action are just outweighed by the benefits. Certainly, the interpretation I have proposed does not set the bar that low. Rather, the report suggests that, in some circumstances, a plaintiff may not reasonably be able to bring an action at the time it first arises. Where it is reasonable in the circumstances to say that the particular plaintiff could sue __ even if it is not an ideal course of action from the plaintiff’s perspective __ s. 6(4)(b) triggers the running of time.
88 The New South Wales provision was considered in Royal North Shore Hospital v. Henderson (1986), 7 N.S.W.L.R. 283 (C.A.), (approved by Wood J.A. in Evans, supra). There the plaintiff failed to bring an action against the defendant hospital when he first suffered some minor consequences of its alleged negligence. At the time, he was still receiving treatment at the hospital for a very serious disease. He sued only much later when more serious consequences were diagnosed and he had left the hospital’s care. The majority of the Court of Appeal (Hope and Mahoney JJ.A., Samuels J.A., dissenting) agreed with the trial judge that, in the plaintiff’s particular circumstances, the running of time was postponed until the more serious consequences were diagnosed and the plaintiff’s treatment for the initial condition had ended. Hope J.A. reasoned that, as a matter of policy, potential plaintiffs should not be encouraged to run to court at the earliest opportunity. Recognizing that each case must be assessed on its own facts, he further observed at p. 287 that he saw “no reason to . . . confine the circumstances which would justify the not bringing of an action to any particular class or category”.
89 Although dealing with different legislation, the Henderson case is of assistance in identifying some of the interests that may arise when deciding whether to commence a lawsuit. However, with the addition of the words “to be able” to the British Columbia legislation, those interests must be such that they prevent the particular plaintiff from being reasonably able to sue, as that phrase is understood by the test proposed in these reasons. Plaintiffs should be encouraged to bring an action in a timely fashion when a reasonable person would consider that, in light of their own interests and circumstances, they could do so. Where they are not reasonably able to bring an action in light of those interests and circumstances, however, s. 6(4)(b) requires courts to recognize that fact.
90 I conclude that delay beyond the prescribed limitation period is only justifiable if the individual plaintiff’s interests and circumstances are so pressing that a reasonable person would conclude that, in light of them, the plaintiff could not reasonably bring an action at the time his or her bare legal rights crystallized. The task in every case is to determine the point at which the plaintiff reasonably could bring an action, taking into account his or her own interests and circumstances.
C. Application to the Case on Appeal
91 The motions judge did not engage in a detailed consideration of the requirements of s. 6(4)(b) and whether they were met in this case. The justices of the Court of Appeal considered the test in greater detail, noting that it appeared not to have been fully argued and considered at first instance. In separate reasons, the three Justices each found that Mrs. Novak’s conduct in delaying the commencement of her action was reasonable having regard to her own interests and circumstances. These findings must be approached with caution, however, since the test applied, particularly by Southin and Newbury JJ.A., differed in some respects from the test adopted in these reasons. The test I have proposed places greater emphasis than did these judges on the importance of evaluating the plaintiff’s decision not to sue from the objective standpoint of a reasonable person, of insisting that the circumstances must be such that a person in Mrs. Novak’s position could not reasonably have brought an action at the time the right to do so first arose, and of requiring that the factors inducing the decision to delay suing must be serious, significant and compelling. We must therefore consider anew the facts of the case on appeal, in light of the test here proposed.
92 One starts with the motions judge’s holding that the primary limitation period began to run in October 1990. Therefore, without a postponement, the two-year limitation period prescribed by s. 3(2)(a) would have expired in October 1992. The motions judge also held that, before that time, Mrs. Novak had sufficient knowledge of the facts that, had she obtained the appropriate advice a reasonable person would have taken on those facts, she would have been advised that she had the right to bring an action and that such an action would have had a reasonable prospect of success. The provisions of s. 6(4)(a) were therefore met prior to the expiry of the primary limitation period.
93 However, s. 6(4) postpones the running of time until both s. 6(4)(a) and s. 6(4)(b) are satisfied. Section 6(4)(b) requires an analysis of Mrs. Novak’s interests and circumstances at the time she considered and decided against bringing an action prior to the expiration of the primary limitation period. Having identified these interests and circumstances, one then asks whether those interests and circumstances were so serious, significant and compelling that she could not reasonably bring an action within the limitation period. If those circumstances and interests were not so pressing – if they were tactical, trivial or unreasonable, for example – they cannot serve as a basis for postponing the running of the limitation period under s. 6(4)(b).
94 Mrs. Novak’s personal interests and circumstances prior to the expiry of the primary limitation period were these. Between 1990 and the summer of 1991 she was extremely ill. She had undergone a partial radical mastectomy and was receiving debilitating radiation treatment and chemotherapy for her breast cancer. She was just starting “to get back on [her] feet” in the summer of 1991 when her father died, presenting her with new difficulties. She actively considered starting an action in the late summer or fall of 1991. She described her decision not to sue in these terms:
. . . I tossed it about and tossed it about and thought, well do I have the strength to really go through this at this stage of the game? And I talked to my parish priest about it and thought, well I’m well, I have to believe that I’m well, I have to believe that I’ve been cured, if I go for litigation it brings back all the horrible memories and I won’t at this point, we’ll wait to see for a few years what’s going to happen down the road.
In fact, Mrs. Novak had reason to believe herself cured at this point. She had no symptoms of cancer from April 1991 to May 1995.
95 Hall J.A. summarized Mrs. Novak’s situation (at p. 113) as follows:
. . . the plaintiff . . ., after her initial surgery, was determined to devote all her energies to attempting to recover from her illness and took the not unreasonable view that expending time and energy on a lawsuit that would largely concentrate on what she hoped were minimal future contingencies would be harmful to her.
Having concluded that these were Mrs. Novak’s “interests” and “circumstances” under s. 6(4)(b), he held, at p. 113, that:
People ought to be encouraged to take reasonable steps short of litigation to cope with their problems. I consider that what this plaintiff did accorded not only with good public policy but was clearly in her own best interests. It was far better for her to maintain a positive attitude and concentrate on the hopes of a continuing healthy life as opposed to dwelling on the possibility of a recurrence of illness.
96 Although I disagree that the test is what is in Mrs. Novak’s “best interests”, I nonetheless agree with Hall J.A.’s assessment of her situation. More importantly in light of the test here proposed, I am also satisfied that her concerns were so serious, substantial and compelling that, taking into account all of her circumstances and interests, she could not reasonably have commenced a suit at the time the cause of action first arose. She certainly did not approach the matter lightly, going so far as to consult her parish priest. Nor is there any evidence that her decision was taken for tactical reasons. She was concerned with nothing less than how to maintain her threatened hold on life, a serious and compelling concern by any measure. She hoped that her health would improve and that her cancer would not recur. In light of these interests and circumstances, Mrs. Novak decided against bringing an action against Dr. Bond, a proceeding that would have required her to prove the likely recurrence of the very cancer she was trying so desperately to eradicate. I am satisfied that, in light of her own particular interests and circumstances at the time, Mrs. Novak could not reasonably have sued Dr. Bond in the spring of 1991.
97 Mrs. Novak’s determination to get better continued after 1991 and, for a time, it seemed that the cancer no longer posed a threat. However, her interests and circumstances changed dramatically in May 1995. It was then that she learned that her cancer had returned, this time to her spine, liver, and lung. She no doubt understood that she was in great jeopardy and that her previous attempts to regain her health and avoid any harm that may have been caused by Dr. Bond’s alleged negligence had been to no avail. The circumstances that precluded a decision to sue earlier – the need to maintain a positive outlook and believe herself cured – were no longer operative. Absent these considerations, her need to redress the serious wrong allegedly done to her and her consequent willingness to undergo the stresses and strains of litigation outweighed her intensely felt desire to concentrate on regaining her health. Litigation became a realistic option.
98 After May 1995, it is my view that a reasonable person would consider that, taking into account her own unique interests and circumstances, Mrs. Novak “ought to be able” to bring an action, i.e., that she reasonably could bring an action. Section 6(4)(b) of the Limitation Act therefore postponed the running of time to at least that date. Because this action was brought by Mrs. Novak and her husband within two years of May 1995, it follows that it is not barred by s. 3(2)(a) of the Act. Neither is it barred by the ultimate limitation period of six years prescribed by s. 8(1) of the Act, running from the time the right to bring the action arose in October 1990.
VII. Conclusion
99 I would dismiss the appeal and confirm the Court of Appeal’s order that the order of the motions judge be set aside and the action permitted to proceed. The respondent shall have her costs in this Court and in the courts below.
Appeal dismissed, Lamer C.J. and Iacobucci and Major JJ. dissenting.
Solicitors for the appellant: Harper, Grey, Easton, Vancouver.
Solicitors for the respondents: Arvay, Finlay, Victoria.