ASENIWUCHE WINEWAK NATION OF CANADA v ACKROYD LLP, 2021 ABQB 728
3.26: Time for service of statement of claim
4.33: Dismissal for long delay
7.3: Summary Judgment (Application and decision)
The Applicant law firm appealed a Master’s decision to dismiss their Summary Dismissal Application. The Applicant sought Summary Dismissal on the basis that the Respondent’s claim in Professional Negligence was barred by Rule 4.33.
The Applicant had formerly represented the Respondent on a matter that was ultimately dismissed for long delay under Rule 4.33. The Respondent brought an Action against the Applicant seeking damages for Professional Negligence. The Applicant submitted that the filing of the 4.33 Application in the underlying Action gave rise to potential losses of which the Respondent was aware. As such, the Applicant took the position that the limitation period had began to run at this point, when the Respondent first gained knowledge of the potential loss.
The Respondent conceded that, when served with the 4.33 Application in the underlying Action, they were aware of concerns that the underlying Claim had not been significantly advanced. However, the Respondent took the position that, because that Application involved mixed fact and law, the Respondent was unaware of the negligence until the underlying 4.33 Application was dismissed.
After canvassing the relevant case law, Justice Fagnan concluded that the provisions of the Limitations Act, RSA 2000, c L-12, should be interpreted to promote diligent actions of the parties. As such, given the facts, the Respondent correctly should have filed and served a Statement of Claim in accordance with Rule 3.26 when they became aware of the Application, rather than waiting for the result of the underlying Application.
As a result, Justice Fagnan dismissed the Respondent’s Claim against the Plaintiff as a Summary Dismissal under Rule 7.3.View CanLII Details