Canada: Court Of Appeal Endorses Summary Dismissal Of Statute Barred Actions

In its recent decision in Boyd v. Cook, the Alberta Court of Appeal stressed the importance of limitation periods, the means by which to determine when the limitation period starts to run, and of the need to dismiss, at a preliminary stage of litigation, those actions which have been filed beyond the applicable limitation period.

The action arose out of a personal and professional relationship between the plaintiff Boyd and the defendant Cook. The two knew each other well. Mr. Boyd was educated, holding an engineering degree, and a sophisticated businessman with extensive experience in land development. Mr. Cook tried on numerous occasions to persuade Mr. Boyd to invest in a particular land development project, which Mr. Boyd refused repeatedly. Mr. Cook was, however, eventually able to induce Mr. Boyd to invest in shares in a mortgage company. However, unknown to Mr. Boyd, about 60% of those funds were later invested in the very land development project in which Mr. Boyd had previously refused to invest. That project became insolvent and it appeared that a large fraction of Mr. Boyd's funds were likely lost.

Mr. Boyd sued Mr. Cook on June 16, 2011. In turn, Mr. Cook brought an application seeking to have Mr. Boyd's claim summarily dismissed because it had been brought after the two year limitation period had expired.

Generally, in order for the Court to summarily dismiss an action due to a limitations issue, it must be "plain and obvious" that the claim is barred by the Limitations Act. Under s. 3(1)(a) of the Act, the two year limitation period only starts to run when the plaintiff knows (or in the circumstances ought to have known) all of the following: (i) that the plaintiff has sustained an injury; (ii) that the injury was attributable to the conduct of the defendant; and (iii) that the injury, assuming liability on the part of the defendant, warrants bringing a proceeding.

Master Hanebury dismissed Mr. Cook's application for summary dismissal, which was upheld on appeal to a Chambers Justice.

On further appeal, the Court of Appeal held that it was clear that Mr. Boyd knew, before June 16, 2009, that he had sustained an injury and that the injury was attributable to the conduct of Mr. Cook. Therefore, the appeal hinged on whether, by June 16, 2009, Mr. Boyd knew, or in the circumstances ought to have known, that the injury, assuming liability on the part of Mr. Boyd, warranted bringing a proceeding.

The Court of Appeal reversed the decision and summarily dismissed Mr. Boyd's action on the basis that it had been commenced beyond the expiration of the limitation period.

The Court of Appeal began by emphasizing the importance of limitation periods, stating at paragraph 4:

...Limitations statutes exist for a purpose. They are not mere tidiness, nor a trick to give defendants windfalls or bargaining points. Limitations legislation, so-called "statutes of repose" exist to give some certainty in their lives to all those who may at some time be sued. That is not only true of businesses and professional people, but also ordinary citizens who can ill afford the mental and emotional stress of threats or lawsuits. It is a nuisance and an expense to have to keep voluminous records in perpetuity. Allowing large potential threats to hang over heads for a generation sterilizes capital and impoverishes businesses. What is worse, it is unjust to sue people once their former ability to defend themselves has evaporated...

Turning to the merits of the particular case, the Court of Appeal then underscored that, under s. 3(1)(a)(iii) of the Limitations Act, all the plaintiff had to know, or in the circumstances ought to have known, is that the injury warranted suing. Liability, on the other hand, is not something that the plaintiff had to know; it is assumed.

Mr. Boyd argued, and the evidence showed that, by June 2009, he was aware that he was likely going to lose money as a result of Cook's conduct, but he was unsure as to exactly how much. The Court of Appeal did acknowledge that there may be a number of factors which might make a lawsuit unwarranted, such as where the lawsuit is, or appears to be, uneconomical – namely, where the costs of bringing the action are likely to exceed the likely recovery.

At the same time, however, the Court noted that the legal test is not whether the plaintiff actually knew that the situation warranted suing. Rather, the test involves two branches: whether the plaintiff knew or whether in the circumstances the plaintiff ought to have known that the injury, assuming liability on the part of the defendant, warrants bringing a proceeding.

In addition, while the test is largely objective, as signaled by the words "ought to have known", the Court affirmed that there is also a small objective element – the "circumstances" require an assessment of the knowledge and interests of the particular plaintiff. In short, the test is that of the reasonable person in the same circumstances.

As a result of the subjective component of the test, the Court focused on the particular knowledge and circumstances of Mr. Boyd, including the fact that he was an experienced, knowledgeable and sophisticated businessman. In these circumstances, the Court found that Mr. Boyd had ample information, prior to June 16, 2009, to allow him to determine that the amounts likely lost would be large enough to warrant suing.

The Court of Appeal's decision in Boyd is important to both claimants and defendants alike. For those considering filing an action, the following points are key from the decision:

  • To determine whether an action is statute barred, the Court will look not only into what a reasonable person ought to have known, but also into the plaintiff's particular circumstances. In Boyd, the Court of Appeal's decision turned on the particular knowledge and expertise of Mr. Boyd. Had Mr. Boyd been inexperienced in business, or unsophisticated, the result would have likely been different.
  • The Court of Appeal has clearly signaled that plaintiffs cannot avoid a limitations defence by arguing that they were unclear on exactly how much their claim was worth - such certainty is not necessary. Rather, potential claimants are expected to determine whether the likely recovery exceeds the potential litigation costs and, therefore, warrants bringing an action.
  • Where the expiry date of a limitation period is in doubt, potential claimants should err on the side of caution and file a Statement of Claim to preserve their rights and to avoid a limitations defence and the potential of having their claim summarily dismissed.
  • While not addressed in the Boyd decision, not all types of actions are governed by the Limitations Act, but rather by other statutes which impose much shorter limitation periods. Potential claimants should speak with legal counsel to determine which limitation period applies to their particular matter.

The Boyd decision is equally important to defendants named in a lawsuit. The Court of Appeal has clearly emphasized the significance of limitation periods and has reaffirmed that Courts should be prepared to deal with limitations issues and, in appropriate cases, summarily dismiss statute barred actions at the preliminary stages of litigation.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Events from this Firm
19 Dec 2017, Webinar, Calgary, Canada

McLennan Ross previously conducted a webinar on June 6, 2017 about the passage of Bill 17, during which we reviewed the changes to the Employment Standards Code and the Labour Relations Code. During that webinar, we identified a number of issues which would depend upon the language of the Regulations, which had not yet been developed.

24 Oct 2018, Webinar, Calgary, Canada

A written employment agreement is an often ignored best practice for non-union employers. A written agreement can be a critical risk management tool if it properly sets out duties, rights and expectations both during the employment relationship and after it ends.

5 Nov 2018, Webinar, Calgary, Canada

Who Should Attend: This webinar is intended for superintendents of schools, central office personnel, HR personnel, in house counsel and school board trustees.

In association with
Related Topics
Related Articles
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of

To Use you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions