N saw B, a doctor, about lump in breast. B told N it was not cancer. Another doctor determined she had cancer. N thought about suing, but talked to priest and decided not to. So had no cancer for 4 years, then found the cancer had spread bc of the undiagnosed cancer 5 years earlier.
*s.3(2)(a) Limitation Act – an action for damages from personal injury must be brought w/in 2 yrs of date the right to bring the action arose.
*s.6 allows running time to be postponed in certain circumstances.
*s.7 allows running time to be postponed if P is under a legal disability.
*s.8 provides an ultimate limitation period of 6 years for proceedings against medical practitioners.
Taking Ns circumstances into account was it reasonable for her to have brought a claim w/in the limitation period?
Delay beyond prescribed limitation period is only justifiable if the indiv Ps interests and circumstances are so pressing that a reasonable person would conclude that the P could not reasonably bring an action at the time his or bare legal rights crystallized.
Restrictive subjective/objective approach for s.6(4)(b).
BC CA Approaches – 4 different approaches to s.6(4)(b)
**Whether Reasonable P “Should “ Bring Action (broad subjective/objective)
***Postpones running of time until a reasonable person would hold that the P, taking his or her own circumstances and interests into account, should bring an action
**Whether a Reasonable P “Could” Bring Action, Taking Into Accounts Ps “Important and Substantial Interests” (restrictive subjective/objective approach)
**P General “Ought to Be Able to Bring Action” if Legally Capable of Bringing Action (restrictive objective approach)
**Court has Discretion to Assess Action and Decide whether P “Ought to Be Able to Bring” it (discretionary approach)
How Should s.6(4)(b) be interpreted?
**S.6(4)(b) is constrained by 2 dates
***1 end – specific date on which the cause of action actually arose, and
***Other end – the ultimate limitation period of 6 or 30yrs
**Identify of D must be known to P
**Q is whether a reasonable person, knowing the facts w/in the P 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 (6(4)(a)) and s.6(4)(b) are satisfied
**BEST APPROACH – more restrictive subjective/objective
***Q is – in light of his or her own circumstances and interests, at what point could the have reasonably brought the action
****Running of limitation period is postponed when P shows practical considerations arising from his or her circumstances and own interests render him unable to bring action
****What must be present for circumstances in order to delay time period – Serious, significant and compelling circumstances
**What interests and circumstances should be considered?
***Serious, substantial and compelling reasons
***Tactical considerations will not play a role
***Whether a particular circumstance or interest has the practical effect of preventing the P from being able to commence the action must be assessed in each indiv case
Time does not start to run until D is known to P and 6(4)(a) and (b) are satisfied
N allowed to bring action – action was not time bared
NOTE: this case decided under BC Limitation Act