The Plaintiffs applied for Certification in a proposed Class Proceeding under the Class Proceedings Act. The Defendant (Alberta) made a cross Application for Summary Judgment on the basis that the Plaintiffs’ claims were barred under the Limitations Act.

Associate Chief Justice Rooke, citing Jackson v Canadian National Railway, 2012 ABQB 652, confirmed that summary judgment is available on the basis of a limitations defence. Rooke A.C.J. stated that the test for Summary Dismissal is as follows:

(a) the applicant must show evidence that there is no genuine issue for trial; and

(b) if the applicant meets this burden, the responding party may bring evidence  to persuade the court that there is a genuine issue to be tried.

Associate Chief Justice Rooke further noted that “[t]he defendant who seeks summary judgment must prove there is no genuine issue of material fact requiring trial and cannot simply rely on mere allegations or the pleadings”. If the Defendant is able to prove this, then the burden will shift to the Plaintiff, who must either refute or counter the Defendant's evidence, or risk Summary Dismissal. Withrespect to Summary Dismissal in the context of a limitations defence, RookeA.C.J. cited Papaschase Indian Band No 136 v Canada (Attorney General), 2008 SCC 14, and stated that where a Claim “is barred by the operation of a limitation period, there is no genuine issue for trial”.

After reviewing the Limitations Act, the relevant case law and the facts, Rooke A.C.J. granted Alberta’s Summary Dismissal Application because the Defendant had established that the Plaintiffs claims were barred by the 10 year ultimate limitation period, and the Plaintiffs were not able to refute or counter the Defendant’s evidence.