The Appellant applied in Application Judge’s Chambers for Summary Dismissal of the Action on the grounds that it had been added as a Party after the expiry of the relevant limitation period. The Application was dismissed, and the Appellant appealed.

Justice Feasby considered whether the limitation period had expired prior to service, being the two-year limitation period under the Limitations Act, RSA 2000, c L-12, plus the one year for service provided by Rule 3.26.

The issues alleged in the Statement of Claim were first discovered in late 2014. Reports were obtained from consultants in the fall of 2015 indicating potential liability. The Statement of Claim was filed in September 2016, and was amended to add the Appellant in October 2018. The Amended Statement of Claim was served on the Appellant in November 2018, a little more than three years after the delivery of the reports from the consultants.

Justice Feasby held that there was some evidence that the Respondent had exercised reasonable diligence in attempting to learn the proper Parties to the Action. He found that such steps may not have been possible until after the other Parties defended, which would have been some time after the claim was commenced in 2016. He therefore held that there was a triable issue, and the Appeal was dismissed with Costs.