This post marks the return of non-Ontario jurisprudence to Under the Limit. Our goal of reviewing appellate jurisprudence from all common law provinces proved overly ambitious for one person. So, I enlisted the assistance of my talented colleague Tyler Wentzell, and with his help we’re going to gradually return to the national scope we intended.
Acielo v. Condominium Plan 9022497 is the first Alberta Court of Appeal decision to consider the meaning of the language, “the time provided by law for the service of process” in s. 6(4) of Alberta’s Limitations Act. It settles conflicting jurisprudence and means that the limitation period for a claim added to a proceeding is the two-year general limitation period, plus one year. The added defendant must have “sufficient knowledge” of the claim within this three-year period.
This is the relevant portion of s. 6:
Claims added to a proceeding
6(1) Notwithstanding the expiration of the relevant limitation
period, when a claim is added to a proceeding previously
commenced, either through a new pleading or an amendment to
pleadings, the defendant is not entitled to immunity from liability
in respect of the added claim if the requirements of subsection (2),
(3) or (4) are satisfied.
[…]
(4) When the added claim adds or substitutes a defendant, or
changes the capacity in which a defendant is sued,
[…]
(b) the defendant must have received, within the limitation
period applicable to the added claim plus the time provided
by law for the service of process, sufficient knowledge of
the added claim that the defendant will not be prejudiced in
maintaining a defence to it on the merits.
The Court determined that “the time provided by law for the service of process” means the time period provided for in the rules to serve a statement of claim once issued. Under Alberta’s Rule 26, this is one year. This is a marked increase from other case law which had only added 20 days, the time period provided to serve a counterclaim.
Background and Chambers Decision
Ms. Acielo lived in a condo unit. In 2009, her landlord brought an action against her in Provincial Court for unpaid rent. Ms. Acielo’s defence and counterclaim pleaded that she had stopped paying rent because there was mold in her condo that had given her a lung condition.
In 2010, Mc. Acielo learned that her lung condition was likely permanent. Her physician told her that she had to move out. She provided her notice to move out. She applied to the Provincial Court to transfer the matter to the Court of Queen’s Bench, and to add the Condo Corporation as a defendant to her counterclaim. The Provincial Court allowed the transfer and amendment, and the Condo Corporation applied for a summary dismissal of the claim against it on the basis that it was out of time. The chambers judge held that the limitation period for the addition of the counterclaim was the two-year general limitation period plus 20 days, the period of time for service of a counterclaim. The chambers judge dismissed the claim against the Condo Corporation as out of time. Ms. Acielo appealed the decision.
The Appeal
The Alberta Court of Appeal discussed the discord in the case law regarding the length of time afforded under s. 6(4). The problem principally arises from the uses of the words “process” and “pleading” in the Limitations Act.
The Court concluded that the rule permitted two possible interpretations. The chambers judge had adopted the “narrow” interpretation: adding the amount of time required to serve the counterclaim. The “broad” interpretation, however, would add the length of time required to serve an originating process: one year. The Court held that a broad reading of the language was correct and more in line with public policy considerations.
The full year of additional time meant the claim against the Condo Corporation was timely. The Court allowed the appeal.