Case information

None.

Case summaries are prepared by the Office of the Registrar of the Supreme Court of Canada (Law Branch). Please note that summaries are not provided to the Judges of the Court. They are placed on the Court file and website for information purposes only.

A motor vehicle accident occurred on November 27, 1997, when the car of the deceased, Rex Moore, struck the Respondent’s vehicle. The next day, the Appellant, Cabot Insurance Company Limited [hereinafter “Insurance Company”], Moore’s automobile insurer, appointed an adjuster to the file and the Respondent retained counsel. From December 1997 to December 1998, correspondence was exchanged between Respondent’s counsel and the Appellant Insurance Company concerning the medical condition of the Respondent, certain documents and updates. The Respondent’s property damage claim was also paid.

On December 26, 1998, Rex Moore died, of causes unrelated to the accident without the Respondent, his solicitor or the adjuster acting for the Appellant Insurance Company being advised. The Letters of Administration of the deceased’s estate were granted on February 16, 1999, to Muriel Smith, Moore’s sister. More correspondence and papers were exchanged between the parties, the letters consistently referring to Moore as “Our Insured” or “Our Principal”. The Respondent issued a statement of claim naming Rex Moore as the defendant on October 26, 1999, within the two year limitation period, as prescribed by the Limitations Act, S.N. 1995 c. L-16.1. In May 2000, the Appellant Insurance Company and the adjuster appointed to the claim were informed of Moore’s death. In September 2000, the Respondent’s counsel became aware of Moore’s death.

The Respondent’s application to amend the statement of claim to name the defendant as “Rex Moore, Deceased, by his administratrix, Muriel Smith” was granted on October 22, 2001, by the Supreme Court of Newfoundland, Trial Division. Also, the Appellant Insurance Company was granted intervener status in the matter to apply for an order striking out the statement of claim, arguing that s. 5 of the Survival of Actions Act, R.S.N. 1990, c. S-32 applied, rendering it a nullity because issued outside the six month limitation period. This application was dismissed.

On April 30, 2003, the Appeal Division of the Newfoundland and Labrador Supreme Court allowed in part the appeal and the cross-appeal, in a decision where two of the five judges on the panel expressed their dissent. The decision to grant the Appellant Insurance Company intervener status and to dismiss the application to have the statement of claim struck was confirmed by the majority. The Respondent was permitted to amend the statement of claim.