This was an estate matter involving various Applications. One of the Applications was pursuant to section 10 of the Powers of Attorney Act, RSA 2000, c P-20 (the “PAA”), commenced by way of Originating Application, seeking that the Respondent be directed to pass accounts pursuant to the PAA.

In her written argument in response to the Applicant's Originating Application, the Respondent raised the issue of limitations for the first time and contended that the relief sought by the Applicant was barred by the Limitations Act, RSA 2000, c L-12 (the “LA”). The Applicant argued that the Respondent cannot rely on the LA as a defence since she did not expressly plead it and only raised it in her written argument long after the parties had already spent two years litigating the issues.

The Court observed that according to section 3(1) of the LA, a party can only avail themselves of a limitations defence if they expressly plead the LA. The Court referred to the Rules, specifically Rule 13.6(3), which mandates that a party relying on a limitations defence must specifically plead it. The reason for this requirement, as stated in the Rule, is to prevent surprises. The Court stated that pleading the LA is a requirement under both the LA and the Rules.

Justice Reed further analyzed that since the Applicant initiated the Application through an Originating Application, the Respondent, in the absence of a consent Order or Court Order to the contrary, had no right under the Rules to file a response pleading. The Applicant relied on the decision of Master Hanebury in Geophysical Service Incorporated v Devon ARL Corporation, 2015 ABQB 137, which supports the argument that the statutory requirement also applies to Actions commenced by way of Originating Application.

Justice Reed's analysis emphasized the importance of notifying the Applicant in writing if a limitations defence is to be relied upon when an Originating Application is the commencement document, and where the Respondent doesn’t necessarily have an opportunity to file a response Pleading, as they would if the Action had been started by Statement of Claim. Justice Reed noted that the Respondent must seek relief under Rule 3.12 to allow the filing of a defence to the Originating Application, at the very least. Failing to do so would undermine the purpose of that section of the LA and result in significant procedural unfairness towards the Applicant. The Court held that it was the Respondent's responsibility to inform the Applicant of their intention to rely on a limitations defence under the LA. Additionally, the Respondent could have sought leave from the Court to treat the Originating Application as a Statement of Claim, but they neglected to do so. Justice Reed emphasized that pleading the LA when relying on it is crucial to prevent surprise and prejudice to the claiming party.

The Court dismissed the Respondent’s attempt to rely upon the LA, noting that the Respondent failed to comply with the Rules and with the LA.