3.58: Status of counterclaim
3.62: Amending pleading
3.65: Permission of Court to amendment before or after close of pleadings
3.68: Court options to deal with significant deficiencies
7.3: Summary Judgment (Application and decision)

Case Summary

The underlying Action arose out of the collision between a fuel tanker truck hauling gasoline and a logging truck hauling full-size logs (the “Collision”) on a snow-covered highway in November of 2014 (the “Underlying Action”). More than two years later, in late November of 2016, the Plaintiff filed a Statement of Claim to commence the Underlying Action. The Defendants filed a Counterclaim in August of 2017 (the “Counterclaim”). The parties each brought Applications to strike or summarily dismiss the other party’s claim, pursuant to Rules 3.68 and 7.3, as having been filed outside the applicable limitation period (the “Applications”).

After an extensive review of the facts and first principles, it was clear to Master Birkett that with the exception of the Plaintiff’s claim for remediation costs arising after the Collision (the “Exception”), the Underlying Action and Counterclaim (including amendments) were all brought outside of the 2-year limitation period proscribed by the Limitations Act, RSA 2000, c L-12 (the “Limitations Act”). Master Birkett emphasized that pursuant to Rule 3.58, a Counterclaim is an independent Action subject to the same limitation periods as the Underlying Action. Master Birkett invoked Rules 3.58, 3.62, 3.68 and 7.3 in light of sections 3 and 6 of the Limitations Act and concluded that the parties did not seek a remedial order within two years after the date on which they knew or ought to have known that these injuries had occurred, and accordingly there was no merit to their claims. With the one Exception, the Application to strike and for Summary Dismissal of the Underlying Action and Counterclaim were all granted.

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