Part 9 published on 01/02/05
A helpful decision respecting limitation periods
Alberta’s new Limitations Act came into force on March 1, 1999. The act includes a general limitation period of two years which runs from the date on which the claimant first knew, or in the circumstances, ought to have known:
a) That the injury for which the claimant seeks a remedial order had occurred;
b) That the injury was attributable to conduct of the defendant; and
c) That the injury, assuming liability on the part of the defendant, warrants bringing a proceeding.”
In this case, the court conducted an analysis of these tests in seeking to determine whether or not the limitation period had expired. In the course of doing so, the court made the following statements:
- “I agree with the Plaintiff that the search for defendants is suspended until the plaintiff knows or ought to know that the injury ‘warrants bringing a proceeding’ and that this assessment involves a consideration of the seriousness of the injury.”
- “It is not every nick, bump, bruise, failing or deficiency that warrants action. Thankfully, we Canadians are still reasonably tolerant and non litigious. The question of whether an injury warrants proceedings is not strictly an issue of fault, nor even potential economic gain. What warrants proceedings embraces a consideration of the extent of the injury in comparison to the economics of prospective action. This assessment involves a blended objective/subjective analysis.”
- “In my view, it would have been reasonable to consider the following matters: the extent of the damage, the cost of remedying the damage, the likelihood of success, the cost of proceedings, the likely time necessary to achieve success, the time to be personally expended by the Board’s members in pursing action, the willingness of the individual owners to finance the litigation, the complexity of the potential litigation, whether the entire costs of the proceedings would have to be paid up front, and whether all or a portion of the litigation could be undertaken by contingency arrangement. No doubt, there are other matters which it might have been reasonable to consider in this case. However, the foregoing is representative of the kind of issues that a cost benefit analysis might reasonably encompass in this Plaintiff’s circumstances.”
[*Editorial Note: In my view, this concept – determining that a proceeding is warranted – is a key ingredient in the discovery of a claim, for purposes of any limitation period that is triggered by the discoverability principle. This decision also lists some helpful factors for determining when a proceeding is warranted.]