The Applicant applied for Summary Dismissal of a professional negligence Action pursuant to Rule 7.3. The Applicants were solicitors for the Respondent First Nation in an Action that was dismissed for long delay under Rule 4.33.

In the underlying Action, the Respondent First Nation commenced an Action against the Attorney General of Canada (“Canada”) and Her Majesty the Queen in Right of the Province of Alberta (“Alberta”). Canada and Alberta applied to strike the underlying Action for long delay per Rule 4.33. The Court of first instance denied the Application. The Alberta Court of Appeal overturned this Decision, and the underlying Action was struck.

In this case, the issue was when the limitations clock started to run for the Respondent to commence an Action in professional negligence against its former lawyers in the underlying Action. Section 3 of the Limitations Act, RSA 2000, c L-12 requires knowledge of an injury attributable to the conduct of the Defendant and that proceedings are warranted. The Applicants argued that the limitations clock started to run with the Applications to dismiss the underlying Action at the Court of first instance.

Master Schlosser rejected the Applicant’s limitations argument and dismissed the Applicant’s Application. The Court noted that the Decision by the Court of first instance was binding and conclusive unless set aside on Appeal. As such, Master Schlosser stated that it is difficult to see how a proceeding could be warranted in the face of the Decision of first instance or how there could be an injury consisting of the loss of the underlying Action.

Further, Master Schlosser noted that the Court of Appeal’s Decision contained a strong dissent. The Court held that in cases where the facts need to be evaluated in accordance with a legal test, a potential litigant cannot be expected to correctly anticipate the final result. In this case, the dissenting Justice of the Court of Appeal who heard the motions to strike for long delay did not agree with the final result. Master Schlosser concluded that the law cannot require such a high standard on litigants. Thus, the limitations clock did not start to run with the Applications to dismiss the underlying Action, and the Applicant’s Summary Dismissal Application was dismissed.