422252 Alberta Ltd. et al. v. Messenger et al., 2013 ABQB 399

• Court: Court of Queen's Bench of Alberta (Canada)
• Case Date: March 28, 2013
• Citations: 2013 ABQB 399;(2013), 565 A.R. 130 (QBM)

422252 Alta. Ltd. v. Messenger (2013), 565 A.R. 130 (QBM)

MLB headnote and full text

Temp. Cite: [2013] A.R. TBEd. JL.079

422252 Alberta Ltd. and Robert F. MacRae (plaintiffs) v. Robert Messenger, Real Pro Consultants Ltd., Farris Vaughan Wills & Murphy (A Firm) and Felesky Flynn (A Firm) formerly known as Bell Felesky Flynn (defendants)

(0003 22636; 2013 ABQB 399)

Indexed As: 422252 Alberta Ltd. et al. v. Messenger et al.

Alberta Court of Queen's Bench

Judicial District of Edmonton

Schlosser, Master

July 12, 2013.

Summary:

Plaintiffs applied to amend their statement of claim 23 years after the events that gave rise to the lawsuit.

A Master of the Alberta Court of Queen's Bench dismissed the application except for amendments of a housekeeping nature which were conceded by the defendants.

Limitation of Actions - Topic 1904

Actions - General - Ultimate limitation period - The plaintiffs commenced an action in 2000 respecting events that occurred in 1990 that the plaintiff asserted resulted in an unexpected tax assessment - A standstill agreement was in effect from 2000 to 2008, while the plaintiffs settled with Canada Revenue Agency - The plaintiffs applied to amend their statement of claim - Section 6 of the Limitations Act provided that "Notwithstanding the expiration of the relevant limitation period, when a claim is added to a proceeding previously commenced, either through a new pleading or an amendment to pleadings, the defendant is not entitled to immunity from liability in respect of the added claim if the requirements of subsection (2), (3) or (4) are satisfied." - A Master of the Alberta Court of Queen's Bench noted that there were two relevant limitation periods, one of which was the ultimate 10 year limit in s. 3(3) - There was an uneasy, unreconciled tension inherent in reading "the relevant period" as including the ultimate period, but the plaintiffs were entitled to the benefit of the doubt - The added claims related to the events originally pleaded (s. 6(2)) in the broadest sense, but they were troublesome because they were transformational - However, the court could not say that they were unrelated - That being said, the Rules and the court's discretion prevailed over the s. 6 exceptions - Generally, any amendment, however late or careless, should be allowed if there was no prejudice which could not be compensated in costs - An exception was where there was serious prejudice to the opposing party - The ultimate limitation period had passed which raised a rebuttable presumption of serious prejudice - The presumption was borne out by the evidence - It was offensive to the new Rules that the parties should be litigating 23 years after the events in question, let alone seeking to amend their pleadings - Except for amendments of a housekeeping nature, the court dismissed the application.

Practice - Topic 2105

Pleadings - Amendment of pleadings - Prejudice or presumed prejudice - What constitutes - [See Limitation of Actions - Topic 1904 ].

Practice - Topic 2111

Pleadings - Amendment of pleadings - Prohibition against adding new action or "claim" which is statute barred (incl. exceptions) - [See Limitation of Actions - Topic 1904 ].

Practice - Topic 2143

Pleadings - Amendment of pleadings - Circumstances when amendment denied - [See Limitation of Actions - Topic 1904 ].

Cases Noticed:

Milfive Investments Ltd. et al. v. Sefel et al. (1998), 216 A.R. 196; 175 W.A.C. 196 (C.A.), refd to. [para. 20].

Balm v. 3512061 Canada Ltd. et al. (2003), 327 A.R. 149; 296 W.A.C. 149; 2003 ABCA 98, refd to. [para. 21].

Dow Chemical Canada Inc. et al. v. Nova Chemicals Corp. (2010), 495 A.R. 338; 2010 ABQB 524, refd to. [para. 21].

C.H.S. et al. v. Director of Child Welfare (Alta.) (2006), 403 A.R. 103; 2006 ABQB 528, affd. (2006), 401 A.R. 215; 391 W.A.C. 215; 2006 ABCA 355, refd to. [para. 21].

Hunter Financial Group Ltd. et al. v. Maritime Life Assurance Co. (2007), 428 A.R. 150; 2007 ABQB 263, refd to. [para. 21].

Ruzicka v. Costigan (1984), 54 A.R. 385; 33 Alta. L.R.(2d) 21 (C.A.), refd to. [para. 23].

98956 Investments Ltd. (Receivership) v. Fidelity Trust Co., [1988] 6 W.W.R. 427; 89 A.R. 151; 61 Alta. L.R.(2d) 193 (C.A.), refd to. [para. 23].

Luscar Ltd. and Norcen Energy Resources Ltd. v. Pembina Resources Ltd. (1991), 122 A.R. 83; 85 Alta. L.R.(2d) 46 (Q.B.), refd to. [para. 23].

Central Trust Co. v. Rafuse and Cordon, [1986] 2 S.C.R. 147; 69 N.R. 321; 75 N.S.R.(2d) 109; 186 A.P.R. 109; 31 D.L.R.(4th) 481, refd to. [para. 24].

Perez v. Galambos et al., [2009] 3 S.C.R. 247; 394 N.R. 209; 276 B.C.A.C. 272; 468 W.A.C. 272; [2009] 12 W.W.R. 193; 2009 SCC 48, refd to. [para. 27].

Weldon v. Neal (1887), 19 Q.B.D. 394; 56 L.J.Q.B. 621 (C.A.), refd to. [para. 48].

Hill v. Hill Family Trust et al., [2007] A.R. Uned. 355; 2007 ABCA 293, refd to. [para. 49].

Madill v. Alexander Consulting Group Ltd. et al. (1999), 237 A.R. 307; 197 W.A.C. 307; 1999 ABCA 231, refd to. [para. 49].

Laasch et al. v. Turenne et al. (2012), 548 A.R. 79; 2012 ABQB 566, refd to. [para. 59].

321665 Alberta Ltd. v. Mobil Oil Canada Ltd. et al. (2010), 507 A.R. 140; 2010 ABQB 522, refd to. [para. 59].

Milfive Investments Ltd. et al. v. Sefel et al. (1998), 216 A.R. 196; 175 W.A.C. 196 (C.A.), refd to. [para. 60].

Communications, Energy and Paperworkers Union, Local 707 v. Suncor Energy Inc. et al. (2012), 539 A.R. 206; 561 W.A.C. 206; 2012 ABCA 373, refd to. [para. 61].

Statutes Noticed:

Limitations Act, S.S. 2004, c. L-16.1, sect. 6(1) [para. 36]; sect. 6(2) [para. 37].

Counsel:

Graham McLennan, Q.C. (McLennan Ross), for the plaintiffs;

P. Smith, Q.C. (Emery Jamieson), for the defendant, Farris Vaughan;

J.M. Hope, Q.C., and Vivian Stevenson, Q.C. (Duncan & Craig), for the defendant, Felesky Flynn.

This application was heard in chambers on March 28, 2013, by Schlosser, Master, of the Alberta Court of Queen's Bench, Judicial District of Edmonton, who delivered the following memorandum of decision on July 12, 2013.