INNES v FERGUSON, 2018 ABQB 959
2.11: Litigation representative required
The Plaintiff, by her Litigation Representative, made an Application to add Defendants to the Action. The Application was heard more than three years after the Action had been commenced, and more than five years after the Plaintiff was alleged to have suffered the injuries claimed in the Action.
The Plaintiff argued that, as a person under a disability, the limitation period had been suspended pursuant to Section 5(1) of the Limitations Act, RSA 2000, c L-12 (the “Limitations Act”): “The operation of the limitation periods provided by this Act is suspended during any period of time that the claimant is a person under disability.” The proposed new Defendants conceded that the Plaintiff was a person under a disability, but argued that the limitation period nonetheless ran from the time that a Litigation Representative had been appointed pursuant to Rule 2.11, which occurred more than three years prior to the Plaintiff’s Application.
Master Schlosser addressed head on that the Plaintiff’s position, taken to its logical conclusion, would allow indefinite suspension of a limitation period for an individual under a permanent disability. Reference was made to Knibb v Foran, 2013 ABQB 754 (CanLII), decided under the old Rules by Eidsvik J., which had accepted this logical conclusion as intended by the Legislature. Master Schlosser, though pausing to observe that the new Rules increased the authority of Litigation Representatives, ultimately found that the applicability of Section 5(1) of the Limitations Act did not turn on the involvement of a Litigation Representative, but rather, was exclusively concerned with a claimant’s status as a person under a disability.
The Application to add Defendants was granted.View CanLII Details