The Gazette 1987

GAZETTE

SEPTEMBER 1987

also dismissed. 16 Without deciding whether there was concurrent liabili- ty, the Appeal Division held that the action was statute-barred, whether it was in contract or in tort. The plaintiff thereupon appealed to the Supreme Court of Canada. The relevant dates were as follows: December 31, 1968 mortgage executed and taken by defendants as security for the loan; January 17, 1969 certificate of title stating that the mortgage formed a first charge on the property given by defendants; April 21, 1977 validity of mortgage challenged in the plaintiff's institution of an action for foreclosure; April 22, 1980 mortgage held to be void by Supreme Court of Canada; October 22, 1980 plaintiff's action for negligence instituted. The relevant limitation legislation provided that such an action should be commenced "within six years after the cause of any such action arose". The Appeal Division of the Nova Scotia Supreme Court had held the plaintiff's cause of action for negligence arose when the

negligence occurred and not when it was discovered or ought to have been discovered by the plaintiff with the exercise of reasonable diligence. As to when the damage occurred, Jones J. A. said that it occurred on January 17,1969, when the solicitor gave the certificate of title. "(T)he mortgage was void when it was delivered. The loss at that point was the face value of the defective mortgage." 17 Le Dain J., like the court below, rejected the submission that the damage occurred when the mortgage was declared void by the Supreme Court of Canada. He was of the opinion that the damage occurred when the defendants took the mortgage on December 31, 1968, because, as a result of it being void ab initio, the company acquired no interest in the property as security for the loan. Clearly therefore, if time began to run from 1968 or 1969 the plaintiff's action was statute barred after a maximum of six years only if the claim was based on contract. However more and more superior courts in common law jurisdictions, including Ireland, have acknowledged At Ansbacher you will always receive not only the best exchange rate, but also the personal, efficient and prompt service your business deserves. We quote all major currencies both spot and forward, and offer infor- mation and advice on interest rates and foreign currency risk. Ring our dealers direct, at 760165, 766313, 766168, 766267. I ;t if ANSBACHER BANKERS 52 Lower Leeson Street, Dublin 2 Ik v - y

the "harshness" and "injustice" of a rule that a cause of action for the tort of negligence may arise for the purpose of a statute of limitations before the injured party has discovered or could have discovered the damage. 18 Carroll J., in Morgan -v- Park Developments Ltd ., 19 was of the opinion that to bar a plaintiff's action in tort before he knew he had one was "indefensible" in the light of the Constitution and said, albeit obiter, that s. 11 (2) of the Statute of Limitations 1957, was to be inter- preted as permitting the postpone- ment of the running of time until such time as the damage could be discovered. In City of Kamioops -v- Nielson 20 Wilson J., speaking for the majority of the Supreme Court of Canada in the course of deciding a claim against a municipality for negligent failure to prevent the construction of a house with defective foundations, was of a similar opinion. In Pafuse, Le Dain J., was of the view that the judgment of the majority in Kamioops laid down a general rule that a cause of action arose for purposes of a limitation

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