ASENIWUCHE WINETAK NATION OF CANADA v ACKROYD LLP, 2023 ABCA 60
SLATTER, WAKELING AND PENTELECHUK JJA
7.3: Summary Judgment (Application and decision)
This was an Appeal from an Application to summarily dismiss an Action brought against solicitors for negligence.
The Respondents were the Appellant’s solicitors in an Aboriginal land claim Action against Alberta and Canada. The land claim Action failed to progress and both Canada and Alberta applied to strike, pursuant to Rule 4.33. The Application was unsuccessful at the Court of King’s Bench, but succeeded at the Court of Appeal. After the Court of Appeal’s Decision, the Appellant sued its solicitors for negligence. The Respondent solicitors applied pursuant to Rule 7.3 to summarily dismiss the Action on the basis that it was barred by the Limitations Act, RSA 2000, c. L-12 (the “Limitations Act”).
At the Court of King’s Bench, the Court concluded that the Appellant’s failure to initiate a claim within two years from the date of the first 4.33 Application placed the solicitor’s negligence claim outside the time required by the Limitations Act. Accordingly, the Appellant’s claim was dismissed.
The Court of Appeal disagreed with the Court of King’s Bench’s application of the test, finding that the Appellant had only been aware of circumstances warranting an Action after the Court of Appeal had struck the land claim Action. Since the solicitor’s negligence claim was initiated within two years of the Court of Appeal Decision, the claim was not barred by the Limitations Act. In the result, the summary dismissal was overturned, and the Appeal was allowed.View CanLII Details