{"id":518,"date":"2016-11-05T16:49:03","date_gmt":"2016-11-05T20:49:03","guid":{"rendered":"http:\/\/limitations.ca\/?p=518"},"modified":"2016-11-05T16:49:31","modified_gmt":"2016-11-05T20:49:31","slug":"alberta-adding-claims-to-a-proceeding","status":"publish","type":"post","link":"http:\/\/limitations.ca\/?p=518","title":{"rendered":"Alberta: adding claims to a proceeding"},"content":{"rendered":"

This post marks\u00a0the return of non-Ontario jurisprudence to Under the Limit. \u00a0Our\u00a0goal of\u00a0reviewing appellate jurisprudence from\u00a0all common law provinces proved overly ambitious for one person. So, I enlisted the assistance\u00a0of my talented colleague Tyler Wentzell,<\/a>\u00a0and with his help we’re going to gradually\u00a0return to the national scope we intended.\u00a0<\/em><\/p>\n

Acielo v. Condominium Plan 9022497<\/a><\/em> 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<\/a>.\u00a0 <\/em>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.\u00a0 The added defendant must have \u201csufficient knowledge\u201d of the claim within this three-year period.<\/p>\n

This is the relevant portion of s. 6:<\/p>\n

Claims added to a proceeding<\/strong><\/p>\n

6(1) Notwithstanding the expiration of the relevant limitation<\/p>\n

period, when a claim is added to a proceeding previously<\/p>\n

commenced, either through a new pleading or an amendment to<\/p>\n

pleadings, the defendant is not entitled to immunity from liability<\/p>\n

in respect of the added claim if the requirements of subsection (2),<\/p>\n

(3) or (4) are satisfied.<\/p>\n

[\u2026]<\/p>\n

(4) When the added claim adds or substitutes a defendant, or<\/p>\n

changes the capacity in which a defendant is sued,<\/p>\n

[\u2026]<\/p>\n

(b) the defendant must have received, within the limitation<\/p>\n

period applicable to the added claim plus the time provided<\/u><\/p>\n

by law for the service of process<\/u>, sufficient knowledge of<\/p>\n

the added claim that the defendant will not be prejudiced in<\/p>\n

maintaining a defence to it on the merits.<\/p><\/blockquote>\n

The Court determined that \u201cthe time provided by law for the service of process\u201d means the time period provided for in the rules to serve a statement of claim once issued.\u00a0 Under Alberta\u2019s Rule 26, this is one year.\u00a0 This is a marked increase from other case law which had only added 20 days, the time period provided to serve a counterclaim.<\/p>\n

Background and Chambers Decision<\/strong><\/p>\n

Ms. Acielo lived in a condo unit.\u00a0 In 2009, her landlord brought an action against her in Provincial Court for unpaid rent.\u00a0 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.<\/p>\n

In 2010, Mc. Acielo learned that her lung condition was likely permanent.\u00a0 Her physician told her that she had to move out.\u00a0 She provided her notice to move out.\u00a0 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.\u00a0 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.\u00a0 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.\u00a0 The chambers judge dismissed the claim against the Condo Corporation as out of time. Ms. Acielo appealed the decision.<\/p>\n

The Appeal<\/strong><\/p>\n

The Alberta Court of Appeal discussed the discord in the case law regarding the length of time afforded under s. 6(4).\u00a0 The problem principally arises from the uses of the words “process” and “pleading” in the Limitations Act.<\/em><\/p>\n

The Court concluded that the rule permitted two possible interpretations.\u00a0 The chambers judge had adopted the “narrow” interpretation: adding the amount of time required to serve the counterclaim.\u00a0 The “broad” interpretation, however, would add the length of time required to serve an originating process: one year.\u00a0 The Court held that a broad reading of the language was correct and more in line with public policy considerations.<\/p>\n

The full year of additional time meant the claim against the Condo Corporation was timely.\u00a0 The Court allowed the appeal.<\/p>\n

 <\/p>\n","protected":false},"excerpt":{"rendered":"

This post marks\u00a0the return of non-Ontario jurisprudence to Under the Limit. \u00a0Our\u00a0goal of\u00a0reviewing appellate jurisprudence from\u00a0all common law provinces proved overly ambitious for one person. So, I enlisted the assistance\u00a0of my talented colleague Tyler Wentzell,\u00a0and with his help we’re going to gradually\u00a0return to the national scope we intended.\u00a0 Acielo v. Condominium Plan 9022497 is the … Continue reading Alberta: adding claims to a proceeding<\/span><\/a><\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"closed","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[16],"tags":[281,282,18,283],"class_list":["post-518","post","type-post","status-publish","format-standard","hentry","category-alberta","tag-alberta-act-s-6","tag-alberta-act-s-64","tag-alberta-court-of-appeal","tag-clausewitz-on-limitations"],"_links":{"self":[{"href":"http:\/\/limitations.ca\/index.php?rest_route=\/wp\/v2\/posts\/518","targetHints":{"allow":["GET"]}}],"collection":[{"href":"http:\/\/limitations.ca\/index.php?rest_route=\/wp\/v2\/posts"}],"about":[{"href":"http:\/\/limitations.ca\/index.php?rest_route=\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"http:\/\/limitations.ca\/index.php?rest_route=\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"http:\/\/limitations.ca\/index.php?rest_route=%2Fwp%2Fv2%2Fcomments&post=518"}],"version-history":[{"count":2,"href":"http:\/\/limitations.ca\/index.php?rest_route=\/wp\/v2\/posts\/518\/revisions"}],"predecessor-version":[{"id":520,"href":"http:\/\/limitations.ca\/index.php?rest_route=\/wp\/v2\/posts\/518\/revisions\/520"}],"wp:attachment":[{"href":"http:\/\/limitations.ca\/index.php?rest_route=%2Fwp%2Fv2%2Fmedia&parent=518"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"http:\/\/limitations.ca\/index.php?rest_route=%2Fwp%2Fv2%2Fcategories&post=518"},{"taxonomy":"post_tag","embeddable":true,"href":"http:\/\/limitations.ca\/index.php?rest_route=%2Fwp%2Fv2%2Ftags&post=518"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}