In my naiveté, I thought that it was now trite law in Canada that limitation periods are substantive law and thus are governed by lex loci delicti, i.e. the law of the place where the wrong has occurred. However, life is never this simple. As a recent decision of the Nova Scotia Court of Appeal in Vogler v. Szendroi, 2008 NSCA 18 shows, even when it comes to limitation periods, some things can still be deemed to be procedural and thus be governed by lex fori.
At issue in this case was not a foreign limitation period, which the parties conceded was a matter of substantive law and thus governed by lex loci delicti, i.e. Wyoming, but rather the rules for service and commencement of an action. Specifically, R. 3(a) of the Wyoming Civil Procedure Rules provided that “for purposes of statutes of limitation, an action shall be deemed commenced on the date of filing the complaint … If … service is not made within 60 days the action shall be deemed commenced on the date when service is made.” As service was not made within 4 years of the accident, the defendant succeeded in chambers in arguing that the claim was statute barred because the action was not commenced within the limitation period.
On appeal, the court disagreed. After reasonably holding that the distinction between procedural and substantive law is evaluated from the perspective of lex fori, the court concluded that because the Wyoming rule described the how, rather than when the action was to be commenced, from the perspective of Nova Scotia law it was properly characterized as procedural and thus inapplicable in N.S. courts:
26 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 s. 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 appellant 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.
28 Respectfully, I believe that the Chambers judge erred by misreading the provision’s true subject matter. He found that Rule 3(b) prescribed when an action had to be commenced. In other words, he found it to be integral to the four-year limitation provision and thus substantive in nature. Respectfully, despite its title, “When commenced”, I do not read the provision that way. Instead I view it as simply directing the manner in which an action is commenced. Let me elaborate.
34 … 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.
Alas, it is exactly as my conflict of laws professor told us: there is always more than one way to characterize a matter, even if apparently the same matter has been characterized before.
Update: this case has also been discussed at conflictoflaws.net, an international conflict of laws journal/blawg.