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Wagners Obtains Seminal Decision on Limitation of Actions

On November 19, 2018, the Nova Scotia Supreme Court released a decision, Bond v. Willson, 2018 NSSC 287, concerning the applicable limitation period in a case involving the death of Bernice Bond resulting from an alleged medication prescription error. The Plaintiff, Carlton Bond, the son of Mrs. Bond, in his role as executor of her estate, is represented by Raymond F. Wagner, Q.C. and Kate Boyle of Wagners.

Within a year of Ms. Bond’s death, the Plaintiff commenced an action pursuant to the Fatal Injuries Act, R.S.N.S. 1989, c. 163, alleging an improper prescription caused her untimely death. Under section 10 of that Act, the applicable limitation period runs one year from the date of death.

The Defendant pharmacists and the pharmacy that filled the prescription claimed that the Plaintiff was out of time to file a claim, relying on the one-year limitation period found at section 79 of the Nova Scotia Pharmacy Act, S.N.S. 2011, c. 11, which runs from the date the pharmacy services were rendered (approximately six weeks prior to the date of Ms. Bond’s death).

The Plaintiff filed a motion seeking a declaration that the Fatal Injuries Act limitation period applied to this case and an order disallowing the Defendants’ reliance on the Pharmacy Act limitation defence.

The Honourable Justice Joshua M. Arnold found that the Plaintiff was correct in their position concerning the applicable limitation period, concluding:

[89] The limitation period proscribed the Fatal Injuries Act applies and therefore, the limitation period prescribed in the Pharmacy Act is irrelevant.

[90] In the alternative, if the limitation period set out in the Pharmacy Act does apply, this is an appropriate case for the application of the equitable power provided by s. 12 of the Limitation of Actions Act.

[91] Either way, the limitation defence is disallowed.

This decision clarifies that actions brought under the Fatal Injuries Act are subject to the one-year limitation under that Act. It also determines for the first time that an action brought for a fatal injury falls within a provision of the Nova Scotia Limitation of Actions Act, which provides judges discretion to consider fairness and other factors and disallow reliance on a surpassed limitation period.

Below is a link to a CBC article about the decision:

https://www.cbc.ca/news/canada/nova-scotia/lawsuit-over-senior-s-death-from-alleged-prescription-error-can-proceed-1.4913589

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