Plaintiff, Nova Scotia resident injured in Wyoming auto
accident where limitations law requires filing suit within four years of
accident sued U.S. residents in own provincial court where Plaintiffs (unlike
in Wyoming) may commence civil actions merely by filing complaint; Nova Scotia
Court of Appeal rules that suit was timely since Plaintiff had filed his
pleadings in compliance with Nova Scotia procedural rules within four years of
collision in obedience to Wyoming substantive law
Back in 2000, a motor vehicle accident in Wyoming, U.S.A.
injured Richard Vogler (Plaintiff), a Nova Scotia resident. In January 2003, he
filed an action in the Nova Scotia courts against the Defendants Christopher
Szendroi, the driver, and Carole Sheehan, the owner of the vehicle in which
Plaintiff was riding at the time. Service of these pleadings has been, at the
very least, delayed. It was not until May of 2006, some three years after the
filing of the action and six years after the accident, that the Plaintiff
served Defendant Sheehan in California. It appears that the Plaintiff has not
yet served Defendant Szendroi, a resident of Quebec.
A Wyoming statute requires a Plaintiff to file a civil
action such as this within four years of the accident. At the heart of this
appeal is Wyoming’s Rule of Civil Procedure 3 which seems to link the
commencement of an action to service of process. Subparagraph (a) provides that
a Plaintiff commences an action by filing a complaint with the court.
Subparagraph (b) then specifies that, if Plaintiff fails to serve the pleadings
within 60 days of filing, Plaintiff does not “commence” the action until the
date of service:
In Nova Scotia, on the other hand, a Plaintiff starts an
action simply by filing the appropriate pleadings. Civil Procedure Rule 9.01
provides: “Subject to rule 9.06(2) every proceeding, ... shall be commenced by
filing an originating notice and a copy thereof in the prothonotary’s office,
and the notice is deemed to have been issued on the day it is filed.”
The following basic choice‑of‑law principles govern this
appeal. Regardless of where Plaintiff files an action, the substantive laws of
the jurisdiction where the alleged tort took place (the lex loci delicti) apply
– here the State of Wyoming. The law generally classifies limitation periods as
“substantive.” In this case, all parties acknowledge that Wyoming’s four‑year
rule is substantive and does apply to the Plaintiff’s case.
On the other hand, forum law and/or rules will govern
procedures in such a case as this, i.e., the rules of Nova Scotia procedure.
From this flows an important corollary. Wyoming’s rules of procedure have no
application in Nova Scotia. This leads to the ultimate issue on appeal: Is
Wyoming Rule 3(b) substantive or procedural in nature? If it is substantive,
then it applies to the Plaintiff and bars this Nova Scotia action. On the other
hand, if it is procedural, it does not apply in this case and the Plaintiff’s
action remains timely because it complied with Wyoming’s substantive four‑year
rule.
The lower court granted Defendant’s motion to quash and
Plaintiff appealed. The Nova Scotia Court of Appeal decides it need only
address the first two of Plaintiff’s claims of error: [1] that the trial judge
erred in law in failing to apply the law of Nova Scotia in determining whether
Wyoming R. Civ. P. Rule 3(b) was substantive or procedural in nature; [2] that
the trial judge erred in law in finding that Rule 3(b) was substantive rather
than procedural in nature. Finding merit in Plaintiff’s contentions, the Court
allows Plaintiffs appeal and sets aside the dismissal order.
The lead opinion then sets forth the Court’s rationale. “The
second ground identifies the ultimate issue that I have noted above, namely: Is
Rule 3(b) substantive or procedural in nature? As observed, the Plaintiff
asserts that the judge erroneously found it to be substantive. As the analysis
of that ultimate issue also addresses the first ground, I will deal with them
as a single ground of appeal.” [¶ 14]
“Let me begin by initially addressing the standard upon which
we should review the judge’s decision. This is an appeal from a discretionary
interlocutory order which normally would attract significant deference.
However, because the effect of this order was to finally dispose of
[Plaintiff’s] action, less deference is owed. Our review, therefore, examines
whether there was an error in law resulting in an injustice.”
“In considering this question, it is noteworthy that there
was no factual dispute before the Chambers judge. He was engaged strictly in
legal analysis involving a question of private international law. In other
words, if the judge did err in his analysis, it would be an error of law that
would leave us free to substitute what we would view as the proper result.
[Cites].”
“I begin my analysis by explaining, in some detail, the
distinction between substantive law and procedural law. Consider the respective
definitions as set out in Black’s Law Dictionary, 8th ed. (St. Paul, MN:
Thomson West, 2004). Substantive law involves a litigant’s rights or obligations.
[It is] the part of the law that creates, defines, and regulates the rights,
duties, and powers of parties. On the other hand, procedural law involves the
process by which a litigant’s rights or obligations are enforced or defended.
Thus, procedural law is defined as: [t]he rules that prescribe the steps for
having a right or duty judicially enforced, as opposed to the law that defines
the specific rights or duties themselves.”
“Thus, as noted over 60 years ago by John Salmond in
Jurisprudence 476 (Glanville L. Williams ed., 10th ed. 1947), these two
concepts are inextricably linked: ‘So far as the administration of justice is
concerned with the application of remedies to violated rights, we may say that
the substantive law defines the remedy and the right, while the law of
procedure defines the modes and conditions of the application of the one to the
other.’”
“This court has described the distinction between
substantive and procedural law in these terms: ‘[S]ubstantive law creates
rights and obligations and is concerned with the ends which the administration
of justice seeks to attain, whereas procedural law is the vehicle providing the
means and instruments by which those ends are attained. It regulates the
conduct of Courts and litigants in respect of the litigation itself whereas
substantive law determines their conduct and relations in respect of the
matters litigated.’” [¶¶ 16‑20]
“... [T]here is no dispute that Wyoming’s substantive law
applies in this matter. As the parties have acknowledged, Wyoming’s statutory
four‑year limitation period is a matter of substantive law. See Tolofson v.
Jensen, [1994] 3 S.C.R. 1022 (S.C.C.) at ¶¶ 86 ‑88. Therefore, [Plaintiff] had
four years to commence his action. His present Nova Scotia action was filed within
four years.”
“...[T]here is no question that matters of procedure, on the
other hand, are governed by the law of the domestic forum, in this case Nova
Scotia (see Tolofson at ¶ 41). Thus, the consequences of determining [Wyoming]
Rule 3(b) as either substantive or procedural come to the fore. If Rule 3(b) is
substantive, it applies in this case and [Plaintiff’s] action, because of the
late service, will have lapsed. If it is procedural, Rule 3(b) has no
application in this case and the Nova Scotia action is preserved.”
“There exists this further underlying question. When
approaching and resolving this issue, is our analysis governed by domestic Nova
Scotia law or does Wyoming’s jurisprudence on this provision apply? The
undisputed answer is that Nova Scotia jurisprudence governs the analysis. Thus,
we should ask: If such a provision existed in Nova Scotia, applying Nova
Scotia’s jurisprudence, would it be considered substantive or procedural? See
Somers v. Fournier , [2002] O.J. No. 2543 (Ont. C.A.) at ¶¶ 20 &31, and
Brown v. Flaharty, [2004] O.J. No. 5278 (Ont. S.C.J.) at ¶ 9.
“Returning to the ultimate question of whether Rule 3(b) is
substantive or procedural, we must draw our attention to the true subject
matter of the impugned provision. In other words, is Rule 3(b) about timing as
the respondents suggest, i.e., concerning when an action must be commenced? If
so, and given its alignment with Wyoming’s four‑year statutory rule, it would
appear to be more substantive than procedural in nature. On the other hand, the
Plaintiff suggests that this provision is not about timing but about
methodology. In other words, it describes the manner in which an action is (or
is deemed to have been) commenced. That would be a subject matter more akin to
procedure.”
“In summary, when approaching questions such as these, I
would advocate a three‑step analysis: 1. identify the exact subject matter
covered by the impugned foreign provision; 2. determine whether, in the
domestic forum (in this case Nova Scotia), this subject matter would be
considered procedural or substantive; and, 3. if the subject matter would be
characterized as substantive, then the foreign provision should be applied. On
the other hand, if the subject matter is characterized as procedural, then the foreign
provision should not be applied.” [¶¶ 24‑28]
“By tying Rule 3(b) to the Wyoming Statute of Limitations,
the judge, erroneously I believe, concluded that Rule 3(b) involved filing
deadlines – i.e., when an action must be started. However, in my view, Rule
3(b) does not involve when an action must be commenced. That issue is clearly
set out in Wyoming’s Statute of Limitations, which prescribes four years. As
acknowledged, this four‑year rule, like most limitation period provisions, is
substantive in nature. Instead I view Rule 3(b) as directing how an action is
commenced. In Wyoming this task involves both filing and service. In Nova
Scotia, as noted, the task is completed simply by filing the relevant
documentation.” [¶ 32]
“I disagree with this submission. In my view, this
introductory phrase in Rule 3(b) simply identifies the rationale for the
provision. In other words, Rule 3(b) sets out the process for complying with
statutory deadlines for filing actions. In this case, the limitation period is
four years and that is prescribed by statute. Nothing in Rule 3(b) changes
that. Again, it simply directs how one can comply with this prerequisite. In
summary, Rule 3(b) is not about how long you have to file a claim; it is about
how a plaintiff commences a claim.” [¶ 35]
“[T]wo substantive rights are at stake in this appeal:
[Plaintiff’s] right to sue the [Defendants] in negligence and the [Defendants’]
corresponding right not to be sued after four years.... Rule 3(b) sets out the
manner in which [Plaintiff’s] right is pursued. Viewed in this light, Rule 3(b)
does not alter, nor is it linked to, the [Defendants’] rights not to be sued
after four years. All this, in my opinion, leads to the inescapable conclusion
that Rule 3(b) is procedural and not substantive in nature.”
“In summary, the Chambers judge erred in concluding that
Rule 3(b) was substantive in nature and thereby enforceable as a bar to
[Plaintiff’s] Nova Scotia action. Instead, Rule 3(b) is a Wyoming Rule of Civil
Procedure and therefore has no application to this case. Pursuant to Nova
Scotia Civil Procedure Rule 9.01, [Plaintiff] commenced his action by filing
it. He did so within four years. His claim should not have been dismissed.” [¶¶
40‑41]
Citation: Vogler v. Szendroi, 2008 CarswellNS 85; 2008
N.S.C.A. 18; 50 C.P.C. (6th) 264 (2008).
*** About Sarah Ellen Cox: Sarah E. Cox is a Personal Injury attorney in Fort Myers, Florida. Ms. Cox received her Juris Doctor from Whittier School of Law in 2005, and was admitted to the Florida Bar in 2008. News about Sarah E. Cox are at: https://attorneygazette.com/sarah-ellen-cox# Attorney Profile at: https://solomonlawguild.com/sarah-ellen-cox Blog at: http://SarahECoxBlog.blogspot.com
