Last week’s Court Rulings from the Alberta Court of King’s Bench, Court of Appeal and SCC.
Edited by Amanda Kostek and Christie Dewar
Emmons v Alberta (Workers’ Compensation Board), 2024 ABCA 78
Limitation Period | Re-set | Repetitive Conduct
RK v GSG, 2024 ABKB 121
Application to Strike Pleadings | Amend Pleadings
Emmons v Alberta (Workers’ Compensation Board), 2024 ABCA 78
In dismissing a claim for a missed limitation, the Court of Appeal addressed the requirements for a continuing course of conduct that would re-set the limitation period. The Court directed that the conduct must be repetitive, and the injury must continue as opposed to the effects of an injury:
[36] For a claim to be “continuing” in the sense that the limitations clock repeatedly resets, the impugned conduct must be repetitive. Further, it is the legal injury itself that must continue, not merely the ill effects of the legal injury: RVB Managements Ltd v Rocky Mountain House (Town), 2015 ABCA 188 at para 18; Corbett v Ainley et al, 2007 MBCA 140 at para 34.
The Court of Appeal also addressed the requirements for suspending a limitation for a “person under disability.” The mere fact a person has an impairment does not mean that the limitation will be suspended. The threshold is whether a claimant is unable to make reasonable judgments with respect to their claim:
[39] The definition of “disability” under the Limitations Act is much narrower than its colloquial meaning. Section 1(h)(ii) of the Limitations Act defines “person under disability” to include “an adult who is unable to make reasonable judgments in respect of matters relating to a claim.” The fact that a claimant has some mental or physical impairment will not necessarily bring them under this definition. The claimant bears the burden of proving that any impairments actually rendered them unable to make reasonable judgments in relation to a claim: Limitations Act, s. 5(2).
Congratulations to CBM’s own Brian Murnaghan who successfully argued this appeal.
The Court concluded that when faced with an application to strike pleadings, a court may allow a claim to be amended even if there is no application seeking to amend the claim before the Court:
[35] I am satisfied that the cases cited by Mr. Waraich’s counsel, and also relied upon by counsel for Ajay and Manpreet, do not actually stand for proposition that an extant amendment application is a prerequisite for amendment when a party faces a striking out application. It just so happened that in Elbow River and United Petroleum both motions were before the Court. However, Perpetual Energy cites Elbow River, but does not impose a requirement that there be a concurrent amendment application. Similarly, in Gay there was no competing amendment application, but the Court of Appeal nonetheless directed amendments to a deficient Statement of Claim.
[36] I consider the process described in Perpetual Energy and used in Gay to be the governing practice on this point. Thus, I conclude that a concurrent amendment application is not necessary in order for the Court to direct amendments in response to a striking out application.