Edited by Amanda Kostek
Last week’s Court Rulings from the Alberta Court of King’s Bench, Court of Appeal and SCC.
Sabir v Gill, 2025 ABKB 402
Backdating Claims and Limitations
Center Street Limited Partnership v Nuera Platinum Construction Ltd, 2025 ABCA 290
Whether advancements in a coverage action are sufficient to avoid dismissal for delay in a collateral tort action against subcontractors
Bains v Adam, 2025 ABCA 235
Security for Costs on Appeal
Sabir v Gill, 2025 ABKB 402
An Applications Judge granted an order backdating a Statement of Claim in order to fit within the limitation period on the basis of a legal assistant’s error in submitting the original claim for filing. The limitation was October 3, 2022. The Claim was sent for filing September 29, 2022, but the legal assistant coded it as a discontinuance as opposed to a Statement of Claim. Instead of paying the filing fee of $250, she paid $6, which was the fee to print a discontinuance. Due to the error the claim was not filed until after the limitation expired. 7 months later, after a defence pleading the limitation was filed, the Plaintiff sought to backdate the claim by one day. This was granted by the Applications Judge, but on Appeal the decision was reversed on the basis that Rule 1.5 did not give the Applications Judge the ability to issue the order on the following basis:
- the Plaintiff did not file her application to backdate the Statement of Claim within a reasonable time;
- aware of the prejudice to her ability to prosecute a statute-barred claim, the Plaintiff contravened rule 1.5(3) when she took a further step in the litigation by adding a third-party defendant before commencing an application to deal with the filing date of the Statement of Claim;
- backdating the Statement of Claim caused irreparable harm to the Defendant by extinguishing the Defendant’s right to claim statutory immunity;
- the overall interests of justice favoured dismissing the Plaintiff’s application to backdate the Statement of Claim; and
- granting the order had the effect of extending a time period the Court was prohibited from extending.
Center Street Limited Partnership v Nuera Platinum Construction Ltd, 2025 ABCA 290
In Center Street Limited Partnership v Nuera Platinum Construction Ltd, 2025 ABCA 290 the issue was whether the parties’ agreement that the respondent would pursue their coverage action against its insurer amounted to a standstill agreement in the collateral action, and whether advances in the coverage action should be considered advances in the action against sub-trades such that the rules dealing with delay do not apply. The parties had an agreement that if the Plaintiff was successful in the coverage action, they would discontinue the claim against the trades in the tort action. The Court of Appeal concluded that the agreement to pursue coverage was not a standstill, but that activities taken in the coverage action advanced the claim against contractors. Key was whether the advance of the coverage action “moves the lawsuit forward in an essential way considering its nature, value, importance and quality”. In this case, the Court of Appeal concluded that a resolution of the coverage action would put an end to the tort action, and therefore the claim should not be dismissed for delay. The Court was clear that their decision was limited to the facts of this case and should not be taken as suggesting that advancements in secondary actions are a workaround for dismissal applications:
[38] We agree with the respondent’s approach. The appellants’ argument places form over function. Here, while resolution of the coverage action is not a “condition precedent” to the trades action, the fact that resolution of the coverage action in favour of Center Street would put an end to the trades action is a sufficient basis for dismissing the r 4.33 application. In the unique circumstances of this case, particularly the expectations and understanding of the parties reflected in the letter agreement as to how the two actions would proceed and the appellants’ representations to the court below that they would seek an order to have the coverage action heard first, the advancement of the coverage action constitutes a significant advance in the trades action, as it would move the trades action forward, either towards a trial on the merits or abandonment. In this case, the ultimate usefulness of the discovery evidence in relation to the trades action is irrelevant to the question of whether the discovery evidence moved the coverage action closer to its conclusion. It did. Therefore, r 4.33(2) does not apply.
[39] However, this should not be taken as suggesting that parties can rely on advancements in secondary related litigation as a workaround for mandatory dismissal under r 4.33(2). As in Round Hill, this appeal involves a specific sub-class of cases where an advance in one action may be said to significantly advance another: at para 11. Unlike Round Hill, which involved a claim and counterclaim that proceeded in tandem or at least in no particular order, we are dealing with a situation where the parties agreed to proceed sequentially as it was most efficient or otherwise appropriate to resolve one case before proceeding with the next. This is entirely consistent with the foundational rules of court, particularly r 1.2(3), that require parties to manage their litigation, and makes eminently good sense.
Bains v Adam, 2025 ABCA 235
In Bains v Adam, 2025 ABCA 235 the Plaintiff appealed 3 underlying personal injury actions related to 3 separate collisions in 2017. The 3 matters were tried together and dismissed resulting in a costs award of over $440,000 to the Defendants. In response to the Plaintiff’s appeal, the Defendants brought a motion for security for costs of the appeal in the amount of $76,905.48. The Court declined to exercise its discretion to award security for costs noting that there was conflicting evidence on his ability to pay a costs award and the mere fact that he was on AISH does not necessarily establish an inability to pay:
[19] Having regard for the evidence and record, I am not satisfied that I should exercise my discretion to order Dr. Bains to post security for costs in the circumstances. While Dr. Bains has expressed an unwillingness to pay the costs awards imposed by the trial judge, there is conflicting evidence before me regarding his ability or means to pay those awards, and any other costs award. In addition, the fact that Dr. Bains receives benefits from the Assured Income for the Severely Handicapped program does not necessarily establish an inability to pay.