SINGH v KALER, 2017 ABCA 275


3.12: Application of statement of claim rules to originating applications
14.16: Filing the Appeal Record – standard appeals

Case Summary

At the Trial of a real estate Action, the Trial Judge held that the claims of one Plaintiff, Mr. Sihota’s were time barred by operation of by the Limitations Act, RSA 2000, c L-12, but the claims by the other Plaintiff, Ms. Singh, were not out of time. The underlying dispute related to whether the Plaintiffs were lenders or investors in real estate. Both Plaintiffs appealed the Trial Judge’s Decision. The Defendants cross-appealed on Costs, and on the basis that even if a resulting trust arose Ms. Singh’s claim was statute barred.

In order to determine the limitations issue, Rowbotham and Greckol J.J.A. considered the procedural history of the case, which was commenced by Statement of Claim and consolidated with a parallel Action which had been commenced by Originating Application. Mr. Sihota was then granted an Order that he was “at liberty” to file a Statement of Claim to “stand in the place of” the Originating Application, which he did. Justices Rowbotham and Greckol noted that Rule 3.12 applied in the circumstances. Pleadings which have the effect of converting an Originating Application to a Statement of Claim should be filed in the existing Action, but such a filing does not start a new proceeding. Because Mr. Sihota’s “Statement of the Claim” was a continuation of the Originating Application, it was filed in time, and Mr. Sihota’s Appeal on this point was allowed. The Court ultimately held, Slatter J.A. dissenting in part, that the Plaintiffs were beneficiaries of a resulting trust and the Plaintiffs’ respective Actions were brought in time and were not limitations barred. The Cross-Appeal was dismissed.

With respect to Costs, the Trial Judge held that each party should bear their own Costs for the Trial. The Court of Appeal allowed Costs to Mr. Sihota and Ms. Singh for Trial and the Appeal, but noted that the Appellants had failed to file electronic transcripts as required by Rule 14.16(1)(c), so disbursements for photocopying the transcripts was disallowed.

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