Executive Summary: Key Legal and Evidentiary Issues

• The dispute concerned whether the Thompsons’ claims were barred by the Limitation of Actions Act or preserved by the discoverability principle.

• ScotiaMcLeod asserted that the limitation period expired as the claims arose from Chabassol’s conduct which ended by October 14, 2014.

• The Thompsons argued they did not discover the potential claims until 2018, after advice from a financial planner.

• Material factual disputes arose about when Thompson knew or ought to have known he had a claim.

• The motion judge found these disputes precluded summary judgment, a decision upheld on appeal.

• The Court of Appeal confirmed correct legal principles were applied, and no injustice would result from proceeding to trial.

Facts of the case

Charles Thompson and his late wife Glenda became clients of Scotia Capital Inc. (operating as ScotiaMcLeod) in September 2001. Their investment advisor, David Chabassol, had been their advisor before joining ScotiaMcLeod in July 2001. He remained with ScotiaMcLeod until October 14, 2014, when he went on medical leave and never returned to work. Following Chabassol’s departure, David Bugden became their advisor, and after Bugden left in 2016, Wayne Fraser took over.

On August 19, 2019, the Thompsons commenced a lawsuit against ScotiaMcLeod and Chabassol, later amending it on October 3, 2019. They alleged damages against ScotiaMcLeod for breach of contract, negligence, and breach of fiduciary duty based on alleged misconduct by Chabassol. They also sought repayment of a personal loan of $1,050,000 advanced to Chabassol in 2008 and 2009. The Thompsons alleged no wrongdoing on the part of Bugden or Fraser. Chabassol died on May 6, 2021, and the claim against him was discontinued on November 1, 2021.

Discussion of policy terms and clauses at issue

The key legal issue involved the Limitation of Actions Act, S.N.S. 2014, c. 35, specifically the discoverability rule under section 8. ScotiaMcLeod argued that the limitation period expired two years after Chabassol’s last involvement (October 14, 2014), making the August 2019 claim too late. The Thompsons relied on the discoverability principle, stating they did not know they might have a claim until 2018. This was when a financial planner, after reviewing their records, advised them to seek legal counsel following a conversation Thompson had with his nephew.

Outcome of the decisions

The Nova Scotia Supreme Court (2023 NSSC 409) denied ScotiaMcLeod’s motion for summary judgment, finding material facts in dispute about discoverability that required a trial. The Court of Appeal (2025 NSCA 17) dismissed the appeal, confirming that the motion judge applied the correct legal principles, identified genuine issues of material fact, and that no injustice would result from the matter proceeding to trial. Costs of $2,500 were awarded to the Thompsons.