Alberta Court Of Appeal Sets The Guideline For Extending Limitation Period For Environmental Claims Under The Environmental Protection And Enhancement Act

Introduction

In Brookfield Residential (Alberta) LP (Carma Developers LP) v Imperial Oil Limited, 2019 ABCA 35 ("Brookfield"), the Alberta Court of Appeal unanimously confirmed the Court of Queen's Bench treatment of the test that applies when an application is made to extend a limitation period under Alberta's Environmental Protection and Enhancement Act RSA 2000 c.E-12 ("EPEA"). This decision overruled the approach proposed in Lakeview Village Professional Centre Corp. v Suncor Energy Inc. 2016 ABQB 288 and has significant implications for parties to environmental claims. While the law in this area has advanced in a short period of time, there is an issue of whether contractual limitation period can be extended under section 218.

Background

Brookfield Residential (Alberta) LP formerly known as Carma Developers LP ("Brookfield") brought a claim in negligence for environmental liability against Imperial Oil Limited ("Imperial"). Brookfield had acquired a property that had been a well site drilled and operated by Imperial 60 years prior to the action.

Imperial brought an application for summary dismissal, on the basis that the claim was statute barred under the Limitations Act RSA 2000, c L-12. Brookfield cross applied for an extension of the limitation period under section 218 of the EPEA.

The Court of Queen's Bench Decision

The Court of Queen's Bench dismissed Brookfield's application to extend the limitations period pursuant to s.218 of the EPEA and granted Imperial Oil's summary dismissal application on the grounds of no merit to the claim given the ultimate limitation period expiry. The Court applied the section 218 factors: (a) when the adverse effect occurred, (b) whether the claimant exercised due diligence in discovering it, (c) whether there would be prejudice to the defendant's ability to defend the claim; and (d) any other criteria the court considers relevant.

The Court considered when the environmental damage occurred and determined that there was insufficient evidence to pinpoint when the damage had occurred. The Court found that Brookfield's expert's report contained instances of "mere speculation" and that the report "ignore[d] the years when the well was a flowing oil well and the years when it was used for salt water disposal." The Court found that Brookfield had exercised a reasonable amount of due diligence in ascertaining environmental damage. The Court, having found no additional criteria was required to be considered...