A Primer On Limitation Periods In Alberta

• Published date: 25 June 2021
• Subject Matter: Litigation, Mediation & Arbitration, Trials & Appeals & Compensation, Personal Injury
• Law Firm: CLC (Canadian Litigation Counsel)
• Author: Mr Jeremy Ellergodt (Whitelaw Twining)

While the limitation periods set out in the Alberta Limitations Act RSA 2000, c L-12 [Limitations Act] appear simple and straightforward, there a numerous issues that can arise when trying to determine when exactly a limitation period has begun. This article will provide an overview of the limitation periods in Alberta and how they are influenced by the Alberta Rules of Court.

Two-year Limitation Period

The Limitations Act at section 3(1)(a) sets out the basic two-year limitation period. The two-year limitation commences when the claimant knows, or ought to know, that the injury/damage has occurred and was caused by the act or omission of the defendant. The damages and injury must also warrant bringing a proceeding to seek a remedy. Once the limitation period starts, the claim will be statute-barred two years from that date. The courts have no discretion to extend the limitation period once it has begun unless there was fraud or the claimant had not obtained the age of majority.

The factor that is most often litigated when determining when the two-year limitation period is when limitation period started. Alberta case law has set out that the clock begins to run from the date the claimant knew or ought to have known that (i) the injury occurred; (ii) the injury was attributed to the defendant's conduct; and, (iii) the injury warrants bringing a proceeding. It is only when all three of these factors have been met that the limitation period commences. Thus, in a situation where a house is built improperly, the limitation period does not start when construction was finished, but rather once the homeowner discovered the defect, understood that it was caused by the defendant homebuilder, and that the defect was substantial enough that it warranted commencing an action against the homebuilder.

Ten-year Ultimate Limitation Period

The Limitations Act also sets out a second limitation period which is an ultimate limitation of 10 years. Unlike the two-year limitation period, the ten-year ultimate limitation period does not depend on discoverability. The limitation period commences when the wrong-doer commits the negligent act, conduct, or omission. The claimant's knowledge that a negligent act was committed is irrelevant. The ultimate limitation period most often is in play in construction matters where the negligent act is not immediately discoverable.

The Court of Appeal in James H. Meek Trust v San Juan Resources Inc, 2005 ABCA 448 confirmed that discoverability...