KARDYNAL v SHUMLICH, 2021 ABQB 357
2.11: Litigation representative required
The Plaintiff applied for Summary Judgment as litigation representative of an estate. The claim was in relation to a debt owed by the Defendant to the deceased. The Defendant resisted the Summary Judgment Application on the basis that the Action was limitation-barred.
The issue before the Court was the interpretation of an ambiguous provision of the Limitations Act, RSA 2000, c L-12 (the “Act”). Section 3(2)(c) of the Act states that a limitation period will begin to run against a personal representative of an estate when the representative “was appointed”. Neither “personal representative” nor “appointed” are defined in the Act. This created two possible interpretations: (1) the limitation period begins to run at the moment of the testator’s death, when a personal representative is “appointed” by operation of the will; or (2) the limitation period begins to run when a personal representative is “appointed” by the Court through the issuance of a grant of probate.
Justice Devlin’s analysis relied in part on Rule 2.11, which stated that an estate may launch an Action only through a personal representative appointed under a grant of probate or a Court-appointed litigation representative. His Lordship held that while the Act was indeed ambiguous, it would be illogical for the litigation period to begin running against a personal representative who cannot legally bring an Action prior to them being appointed by the Court, per Rule 2.11.
Justice Devlin therefore held that the latter of the above two possible interpretations was correct: the limitation period begins to run when a personal representative is “appointed” by the Court through the issuance of a grant of probate.
Given that the sole issue in dispute was with respect to the limitation period, Justice Devlin granted the Summary Judgment Application.View CanLII Details