May 19, 2016
Alberta Court of Appeal decides when statutory limitation period against a lawyer starts.
42662871 Investments Ltd. v. Jomha
2016 CarswellAlta 731, 2016 ABCA 120, Frederica Schutz J.A., Patricia Rowbotham J.A., Ronald Berger J.A. (Alta. C.A.); affirming (2014), 2014 CarswellAlta 2309, 2014 ABQB 748, Sterling M. Sanderman J. (Alta. Q.B.) [Alberta]
Alberta Court of Appeal
Limitation of actions -- Actions in tort -- Specific actions -- Actions against particular parties -- Barristers and solicitors
Defendant lawyer acted for personal and corporate plaintiffs with respect to purchase of combined gas station and convenience store -- Plaintiffs experienced issues with fuel leakage and contamination and eventually ceased operation of service station -- Plaintiffs became involved with respect to contamination -- Defendant ceased to act for plaintiffs -- Plaintiffs brought action against defendant, alleging that business failed because defendant failed to adequately protect their interests and ignored their instructions with respect to fuel tanks, environmental report and other issues -- Preliminary determination was made, on parties' request, concluding that defendant had complete defence under Limitations Act -- Chambers judge found that all necessary information was known to plaintiffs more than two years before statement of claim was filed, that two-year limitation period did not start when defendant stopped acting for them and that personal plaintiff was not under disability so as to suspend operation of limitation period -- Plaintiffs appealed -- Appeal dismissed -- Chambers judge properly rejected plaintiffs' argument that clock began to ran when solicitor-client relationship was severed -- Statutory limitation period began to run when plaintiffs knew or should have known that negligence and resulting damages warranted bringing proceeding -- Plaintiffs' decision to defer decision to terminate relationship with lawyer could not operate to extend limitation period as then plaintiffs alone would determine and control when limitation began and ended -- Chambers judge's characterization of plaintiffs' evidence of "disability" as self-serving and falling short of requisite standard was within range of reasonable conclusion.
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