BACANORA MINERALS LTD v ORR-EWING (ESTATE), 2021 ABQB 670
1.3: General authority of the Court to provide remedies
7.9: Decision after summary trial
The Court in this matter considered whether the Plaintiff/Defendant by Counterclaim’s claim was limitation-barred.
In a lengthy decision, Justice McCarthy considered whether the remedy sought by the Plaintiff was “remedial” (such that the Limitations Act would apply) or “declaratory” (such that the Limitations Act would not apply). On this issue, the Defendant argued that the Plaintiff’s prayer for “any further and other relief as may be appropriate” amounted to the potential for a remedial remedy, such as an award of damages.
In discussing this argument, the Court noted that, pursuant to Rule 1.3, the Court has discretion to grant any remedy to which the parties appear to be entitled as a right, whether or not it is claimed or whether or not the boilerplate language, above, is used. The Court held that an alternate claim for damages may exist, but that this is not dispositive of the issue. Rather, a determination regarding the nature of the primary remedy being sought is required.
The Court ultimately held that the Plaintiff’s claim in this case was statute-barred.
Finally, the Plaintiff argued that if the claim was statute-barred, the Court should nonetheless exercise its discretion not to award judgment on the basis that it would be unjust to do so as per Rule 7.9(2)(c). Essentially, the Plaintiff argued that, due to an existing Counterclaim by the Defendant, the substantive issue that was statute-barred would need to be decided in any event, notwithstanding the Court’s finding on the limitations issue. The Court held that the decision on the limitations issue left the Defendant in the “driver’s seat” regarding the continuation of its Counterclaim, and it was therefore not a matter of fact that the substantive issue needed to be decided then and there.View CanLII Details