Digest: Metcalfe v 101102382 Saskatchewan Ltd., 2018 SKCA 84

• Date: October 18, 2019

Reported as: 2018 SKCA 84

Docket Number: CA18083 , CACV 2872

Court: Court of Appeal

Date: 2019-10-18

Judges:

• Jackson
• Whitmore
• Ryan-Froslie

Subjects:

• Statutes � Interpretation � The Limitations Act, Section 5, Section 20

Digest: The appellant, the executor for the estates of his wife and daughter, appealed from the decision of a Queen�s Bench chambers judge to deny his application to amend a statement of claim alleging a breach of contract, originally filed under The Small Claims Act, 1997. The appellant�s first claim on behalf of his wife was filed in and issued by Provincial Court in November 2012 against the defendant, 382 Sask Co. operating as Stonebridge Partnership. The defendant did not file a statement of defence. On November 8, 2013 the appellant filed another claim, with his wife as plaintiff, against the defendant 299 Sask Co. operating as Swift Current Partnership and another claim, with his daughter as plaintiff, against the same defendant 299 Sask Co. operating as Swift Current Partnership. When these two claims came before a Provincial Court judge, he refused to issue them for a variety of reasons including: the existence of the first action; portions of the claims were properly within the jurisdiction of the Court of Queen�s Bench; and they should be brought in the judicial district of Swift Current. The appellant then attempted to have both claims issued in the Provincial Court in Swift Current, but they were not received until after December 31, 2013, by which time the limitation period had expired. For other reasons, though, the Provincial Court judge there also refused to issue them. After more confusion, the appellant applied to the Provincial Court in Saskatoon for an order amending the first action to incorporate the two other claims and an order under s. 11(3) of The Small Claims Act transferring the whole of the action to Queen�s Bench. The Provincial Court judge did not grant the order to amend but transferred all the files to Queen�s Bench. The appellant then applied to that court for an order pursuant to Queen�s Bench rule 3-72(1)(a) to amend the claim to incorporate the two other claims with the original claim, as the defendant had not yet filed a defence. The defendants� counsel argued that they could not be added by amendment because as they had not been issued in Provincial Court, the claims had expired unless the appellant could bring them within s. 20 of The Limitations Act...