3.68: Court options to deal with significant deficiencies

Case Summary

The Defendant applied under Rule 3.68 to strike the Statement of Claim, alleging the Action was statute-barred because it was not commenced within two years, and alleging that the Court had no jurisdiction to deal with allegations of discrimination brought by the Plaintiff.

The Plaintiff had initially filed an Action against the Defendant in the Saskatchewan Court of Queen’s Bench. However, the Defendant successfully applied to the Saskatchewan Court for an Order that the Action be transferred to Alberta and be refiled in Alberta on the basis that Alberta was forum conveniens.

The Plaintiff’s Statement of Claim had been filed in Saskatchewan two days short of the two-year limitation period. Consequently, the Court noted that unless there was some law or Rule preserving the Plaintiff’s claim and protecting it from a limitation defence, the transfer of the Action from Saskatchewan to Alberta sentenced the Action to an immediate death in Alberta, if the Defendant chose to raise that defence. While some Canadian provinces have legislation that prevents a matter being transferred from another Court from being statute barred, Alberta does not.

However, the Court found that granting the Defendant’s Application to strike the Statement of Claim would be manifestly unjust and in direct contradiction to the intention of the Saskatchewan Judge who ordered the Action to be transferred. As a result, Master Summers dismissed the Application.

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