In RVB Managements Ltd. V. Rocky Mountain House (Town), the Court of Appeal set out the special circumstances exception to statute-barred causes of action:
[21] Under the analytical approach, the court presumes that amendments adding a new cause of action after the expiry of the limitation period will not be allowed, even in the absence of prejudice, unless the party seeking amendment can show special circumstances (see Graeme Mew, The Law of Limitations, 2nd ed. (Markham: Lexis Nexis, 2004) at 69). Courts have interpreted special circumstances to mean circumstances where all the facts required to support the claim had already been pled, there is no need to reopen discoveries, and most importantly, there is no possibility that the defendant would be prejudiced (Mew at 76).
[22] In the case at bar “special circumstances” are not made out. When a trial has unfolded on the basis of evidence preferred in respect of issues set out in the pleadings, a new issue that sees the light of day for the first time in written argument post-trial, will almost inevitably operate prejudicially. (See the general rule in Cels v. Railway Passenger Assurance Co. (1909), 11 WLR 706, at page 711-712, cited in Litemor Distributors (Edmonton) Ltd. v. Midwest Furnishings & Supplies Ltd., 2005 ABQB 520 (CanLII) at paras 19-21). It follows that if, as the appellants maintain, a functional rather than an analytical approach is warranted in this case, the trial judge did not err by dismissing the appellants’ application to amend their pleadings.
Curiously, the special circumstances exception no longer exists in Ontario, though its reformed limitation regime is similar to Alberta’s.