The Appellant appealed an Order summarily dismissing his Action as having been brought after the expiry after the applicable limitation period. The Appellant also made submissions requesting the Court of Appeal to overturn an Order which set aside the Noting in Default of the Respondent. Despite no formal Appeal being made of the latter Order, no objection was made to the Court of Appeal ruling on the Appellant’s submissions in respect of it in the interests of completeness and finality.

The Appellant initially commenced the claim against the “Ministry of Justice Department Alberta” and attempted to serve the Statement of Claim by registered mail sent to the Minister’s office. When no Statement of Defence was filed, the Respondent was noted in default. The Appellant amended the Statement of Claim to name the correct legal entity “Her Majesty the Queen in Right of Alberta” and served the Respondent. The Master permitted setting aside the Noting in Default, which Order was upheld by the presiding Chambers Judge. The Court of Appeal found that there was no error made by the Chambers Judge as the “Ministry of Justice Department Alberta” is not an entity capable of being sued and the Appellant did not serve the Statement of Claim in accordance with the Proceedings Against the Crown Act, RSA 2000, c P-25. The Appeal on this ground was dismissed.

Regarding the Appeal of the Order summarily dismissing the Appellant’s Statement of Claim, the Court of Appeal found that the Defendant/Respondent had pleaded the Limitations Act, RSA 2000, c L-12 (the “Limitations Act”) in its Application for Summary Dismissal, however, had failed to plead the Limitations Act in its Statement of Defence. The panel noted that section 3(1) of the Limitations Act requires the Defendant to plead the Limitations Act as a defence to be able to rely on it, and that Rule 13.6(3)(q) states that a pleading must include a limitation period if the party intends to rely on it. The panel also noted that “pleading” is a defined term in the Appendix of the Rules which includes a Statement of Defence but does not include an Application. The Court of Appeal held that the pleading referred to in section 3(1) of the Limitations Act refers to a Statement of Defence. The panel held that reference to the Limitations Act in the Application did not constitute pleading the Limitations Act as a defence. As such, the Appeal of the Order summarily dismissing the Appellant’s Statement of Claim was allowed.