Limitation periods give insurers certainty, but Nova Scotia law still leaves a narrow route for a court to prevent a deadline from producing a disproportionate result. Avery v. The Personal Insurance Company, 2026 NSSC 181, applies that route to an SEF 44 underinsured motorist claim.
The insured was injured in a 2017 collision and eventually pursued the Family Protection Endorsement commonly known as SEF 44. The Personal was not notified until 2024 because counsel had initially pursued the wrong insurer. By the time the correct insurer was brought into the claim, the ordinary two year period had expired.
The Court agreed that the claim was late. It also considered when the SEF 44 claim became discoverable. In this setting, discoverability depended on when the insured had enough evidence to have a reasonable chance of proving the loss exceeded the minimum liability coverage available from the at fault motorist.
That did not end the analysis. Nova Scotia's Limitation of Actions Act allows a court in some circumstances to disallow a limitation defence after weighing the relative hardship to the parties. The Court found that balance favoured the insured. The Personal had not shown substantial prejudice from the delay, while enforcing the limitation would end a potentially significant underinsured motorist claim without a merits determination.
The ruling should not be read as making SEF 44 deadlines optional. The Court first found that the limitation had expired. Relief depended on a separate statutory discretion and the particular evidence about hardship and prejudice.
For claims professionals, Avery is a reminder to separate three questions that can easily blur together. When was the claim discoverable, did the limitation expire, and if it did, does the governing statute permit the court to relieve against that result? The answer to one does not automatically decide the others.
The limitation defence was disallowed and the SEF 44 claim can continue. Ultimate entitlement and quantum remain to be determined.