Novak v. Bond

Novak v. Bond
Collection
Supreme Court Judgments
Date
1999-05-20
Report
[1999] 1 SCR 808
Case number
26811
Judges
Lamer, Antonio; L'Heureux-Dubé, Claire; Gonthier, Charles Doherty; Cory, Peter deCarteret; McLachlin, Beverley; Iacobucci, Frank; Major, John C.
On appeal from
British Columbia
Subjects
Action
Notes
SCC Case Information: 26811
Decision Content
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 he