{"id":62,"date":"2014-09-18T16:16:54","date_gmt":"2014-09-18T20:16:54","guid":{"rendered":"http:\/\/limitations.ca\/?p=62"},"modified":"2014-09-26T11:07:14","modified_gmt":"2014-09-26T15:07:14","slug":"alberta-trustees-of-a-person-under-disability-can-delay-commencing-an-action-indefinitely-or-at-least-for-decades","status":"publish","type":"post","link":"https:\/\/limitations.ca\/?p=62","title":{"rendered":"Alberta: Trustees of a person under disability can delay commencing an action indefinitely (or at least for decades)"},"content":{"rendered":"

Section 5 of the Limitations Act <\/em><\/a>suspends the operation of limitation periods during the time that a claimant is a \u201cperson under disability\u201d. In Knibb v. The Carstairs Battle Cats<\/em><\/a>, the Court of Appeal confirmed that \u201cperson under disability\u201d includes a claimant for whom an order of trusteeship has granted a trustee power to commence and settle litigation. Such a trustee can, in theory, rely on section 5 to delay commencing an action indefinitely.<\/p>\n

The case involved a motor vehicle accident in June 2004 (and not, as one might have hoped, battle cats<\/a>). The defendant struck Knibb while driving and seriously injured him. The injuries left Knibb cognitively and physically disabled.<\/p>\n

Knibb\u2019s mother was appointed his guardian and trustee. She filed a Statement of Claim on Knibb\u2019s behalf in May 2006 naming as defendants the driver and owner of the motor vehicle. In June 2008, the defendants filed a Third Party Notice alleging certain third parties contributed to Knibb\u2019s injuries by over-serving him beer. The third parties applied for a summary trial to have the Third Party Notice dismissed on the basis that it was barred by the Limitations Act<\/em>.<\/p>\n

At trial, the parties agreed that Knibb was a \u201cdependent adult\u201d under the Dependant Adults Act<\/em> and a \u201crepresented adult\u201d under the Adult Guardianship and Trusteeship Act, <\/em>and, accordingly, a \u201cperson under disability\u201d as defined by section 1(h) of the Limitations Act<\/em>:<\/p>\n

\n

\u201cperson under disability\u201d means<\/span><\/p>\n

(i)\u00a0\u00a0\u00a0 a represented adult as defined in the Adult Guardianship and Trusteeship Act<\/a><\/i> or a person in respect of whom a certificate of incapacity is in effect under the Public Trustee Act<\/a><\/i>, or<\/span><\/p>\n

(ii)\u00a0\u00a0\u00a0 an adult who is unable to make reasonable judgments in respect of matters relating to a claim;<\/span><\/p>\n<\/blockquote>\n

Section 5 of the Limitations Act<\/em> provides as follows:<\/p>\n

5(1)\u00a0\u00a0 \u00a0\u00a0 The operation of the limitation periods provided by this Act is suspended during any period of time that the claimant is a person under disability.<\/p>\n

(2)\u00a0\u00a0 \u00a0\u00a0 \u00a0 The claimant has the burden of proving that the operation of the limitation periods provided by this Act was suspended under this section.<\/p><\/blockquote>\n

The third parties argued that the \u201cclaimant\u201d in section 5 was Knibb\u2019s mother and not Knibb himself. The trial judge rejected this argument.<\/p>\n

On appeal, the appellants submitted that because the Limitations Act <\/em>defines \u201cclaimant\u201d as \u201cthe person who seeks the remedial order\u201d, Knibb\u2019s mother was the claimant because only she had authority and capacity to seek the remedial order. Knibb\u2019s mother wasn\u2019t disabled and so section 5 didn\u2019t apply.<\/p>\n

The appellants argued further that if section 5 does operate to suspend the limitation period during the time that a person under disability has a guardian, the guardian would be able to bring an action decades after the injury. The appellants characterised this as an \u201cabsurd\u201d result contrary to the Limitations Act<\/em>\u2019s purpose of preventing belated actions.<\/p>\n

The respondents submitted that Knibb, as the injured party, was the \u201cclaimant\u201d as a matter of common sense and section 5 did apply. Moreover, if a guardian is the \u201cclaimant\u201d under section 5, there is no situation in which the section would suspend the limitation period applicable to the claim of a person under disability. This is because it is the appointment of the guardian that defines the adult as \u201cdisabled\u201d under section 1(h) (that is, to envoke section 5, the claimant must be a person under disability, and to be a person under disaility the claimant must have a guardian, and if a claimant has a guardian, by the appellants’ reasoning she is not a claimant under section 5).<\/p>\n

The respondents also noted that the Limitations Act <\/em>in other sections distinguishes between people who are and are not represented by guardians, such as in the case of a minor. If the Legislature had intended that guardians be included in the definition of \u201cclaimant\u201d, it could have said so expressly.<\/p>\n

The Court of Appeal accepted the respondents\u2019 position:<\/p>\n

We see no basis in the Limitation Act <\/em>to hold that the \u201cclaimant\u201d is anyone other than Knibb. This interpretation can arguably lead to undesirable consequences in that the commencement of an action could be delayed for years or perhaps decades. That said, given the express wording of the current Limitations Act<\/a><\/em> and the complete absence of any provision analogous to section 59 of the former Limitations<\/em> of Actions Act <\/em>[which dealt with the situation where a trustee had been appointed for a person under disability, as discussed below], this interpretation is not \u201cmanifestly absurd, or extremely harsh, unjust, or capricious\u201d.<\/p><\/blockquote>\n

The implication of this decision is that there is effectively no limitation period for claims arising from injuries suffered by persons under disability.<\/p>\n

It’s also worth noting the Court of Appeal’s discussion of section 59 of the former Limitations of Actions of Act<\/em>, the predecessor of section 5 of the Limitations Act<\/em>. Section 59 provided as follows:<\/p>\n

(1)\u00a0 When a person entitled to bring an action to which this Part applies is under disability at the time the cause of action arises, he may commence the action at any time within 2 years from the date he ceases to be under disability.<\/p>\n

(2)\u00a0\u00a0 \u00a0\u00a0 \u00a0 Subsection (1) does not apply<\/p>\n

(a) if the person under disability is a minor in the actual custody of a parent or guardian, or<\/p>\n

(b) if the person under disability is a person in respect of whom<\/p>\n

(i)\u00a0\u00a0 a committee is appointed under The Mentally Incapacitated Persons Act<\/em>, or<\/p>\n

(ii)\u00a0\u00a0 a guardianship order under the Dependent Adults Act<\/a><\/em> is in effect and the guardianship order<\/p>\n

(A)\u00a0\u00a0 \u00a0appoints a plenary guardian
\nin respect of the person under disability, or<\/p>\n

(B)\u00a0\u00a0 \u00a0 \u00a0appoints a partial guardian who has capacity to commence an action.<\/p><\/blockquote>\n

The Alberta Law Reform Institute expressly rejected bringing section 59 forward into the new legislation:<\/p>\n

We are familiar with too many cases in which a parent, a committee, or a guardian, as the case may be, has permitted a limitation period to expire without bringing a claim, to the serious prejudice of a person under disability. Hence we will not recommend that any provisions analogous to subsection (2) be included in the new Alberta Act.<\/p><\/blockquote>\n

The trial judge in Knibb <\/em>took note of the incentive guardians have to commence actions promptly:<\/p>\n

If a guardian did not bring an action in a reasonable time then they may suffer the consequences of being removed as guardian for instance. In any event, delay harms both parties \u2013 faded memories are not very helpful to the plaintiff who has the onus of proof.<\/p><\/blockquote>\n

This observation is rather at odds with the Alberta Law Reform Institute’s position.\u00a0 It’s an unusual guardian that’s inexperienced enough to\u00a0 allow a limitation period to expire, but has the sophistication to appreciate the impact of delay in litigation.\u00a0 Regardless, one can’t fault the Court for looking to find some limit on what is otherwise a guardian’s absolute discretion to commence an action on behalf of a person under disability whenever she chooses.<\/p>\n

Section 5 is in contrast to capacity provisions like section 7<\/a> of Ontario’s Limitations Act, 2002<\/em><\/a>,<\/em> which has a similar effect to the old section 59.\u00a0 In Ontario, once the a litigation guardian is appointed, time begins to run for the person under disability’s claim.\u00a0 This is an approach that is, on its face, more consistent with the basic purposes of limitations legislation–\u201ccertainty, evidentiary and diligence\u201d (see the Supreme Court deceision in M.(K.) v. M.(H.<\/a>) <\/em>at para. 30).<\/p>\n","protected":false},"excerpt":{"rendered":"

Section 5 of the Limitations Act suspends the operation of limitation periods during the time that a claimant is a \u201cperson under disability\u201d. In Knibb v. The Carstairs Battle Cats, the Court of Appeal confirmed that \u201cperson under disability\u201d includes a claimant for whom an order of trusteeship has granted a trustee power to commence … Continue reading Alberta: Trustees of a person under disability can delay commencing an action indefinitely (or at least for decades)<\/span><\/a><\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[16],"tags":[19,25,26,18,32,31,30,29,27,28],"class_list":["post-62","post","type-post","status-publish","format-standard","hentry","category-alberta","tag-alberta-act-s-1a","tag-alberta-act-s-1h","tag-alberta-act-s-5","tag-alberta-court-of-appeal","tag-battle-cats","tag-capacity","tag-disability","tag-guardian","tag-ontario-act-s-7","tag-ontario-act-s-8"],"_links":{"self":[{"href":"https:\/\/limitations.ca\/index.php?rest_route=\/wp\/v2\/posts\/62","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/limitations.ca\/index.php?rest_route=\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/limitations.ca\/index.php?rest_route=\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/limitations.ca\/index.php?rest_route=\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/limitations.ca\/index.php?rest_route=%2Fwp%2Fv2%2Fcomments&post=62"}],"version-history":[{"count":9,"href":"https:\/\/limitations.ca\/index.php?rest_route=\/wp\/v2\/posts\/62\/revisions"}],"predecessor-version":[{"id":78,"href":"https:\/\/limitations.ca\/index.php?rest_route=\/wp\/v2\/posts\/62\/revisions\/78"}],"wp:attachment":[{"href":"https:\/\/limitations.ca\/index.php?rest_route=%2Fwp%2Fv2%2Fmedia&parent=62"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/limitations.ca\/index.php?rest_route=%2Fwp%2Fv2%2Fcategories&post=62"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/limitations.ca\/index.php?rest_route=%2Fwp%2Fv2%2Ftags&post=62"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}