Following the Alberta Court of Appeal's decision in Joarcam, LLC v Plains Midstream Canada ULC, 2013 ABCA
118 ("Joarcam"), plaintiffs should
think twice before characterizing their claim as declaratory as a
mechanism to avoid the two year limitation period set out in
section 3(1) of the Limitations Act, RSA 200 c L-12 (the
"Act"). The Court of Appeal in Joarcam
unequivocally confirmed that section 1(i)(i) of the Act was to be
"construed narrowly so as to discourage litigants from
claiming declaratory relief merely to avoid the limitation
Although the Court of Appeal's conclusion in
Joarcam recognizes claims for declaratory relief are an
exception to the two year limitation period, Joarcam
strongly suggests that an element of coercion or enforcement will
be sufficient to preclude the characterization of a claim as
The plaintiff, and appellant, Joarcam, claimed it was the
rightful owner of a pipeline system and other assets used to carry
crude oil from Camrose to Edmonton. Joarcam's against Plains
Midstream was summarily dismissed on the basis that Joarcam's
claim was remedial and not declaratory in substance, and therefore
was subject to the two year limitation period.
The Court of Appeal applied the following test established in
Yellowbird v Samson Cree Nation No 444, 2008 ABCA 270
If the Court granted the declaration, and the defendant
resisted the implementation of the declaration, could the plaintiff
'leave the court in peace' and enjoy the benefits of the
declaration 'without further resort to the judicial
process'? (at para 47).
The Court of Appeal in Yellowbird also considered that
the question of whether "the relief is executory or coercive,
it is not declaratory" (at para 5) was part of the test.
If the declaration had been granted, Joarcam would have been
able to enforce the declaration and ultimately regain possession of
the pipeline and other assets it had claimed in the first action.
The key consideration of the summary trial judge was the wording
used in the amended statement of claim which stated the remedy
sought was a declaration it was "entitled to recover immediate
possession of the pipeline assets" (at para 7). In other
words, what the appellant really wanted was an order to coerce
Plains Midstream as the defendant to return the pipeline and assets
to Joarcam. This was an enforceable remedy, not a declaration of
the appellants' rights, and as a result the Court of Appeal
held Joarcam's claim was barred by statute under the Act.
While the Court of Appeal's decision is not surprising, it
draws the attention to the ultimate effect of the declaration and
whether such effect is to coerce the defendant or to give the
claimant a right it would not otherwise have. Joarcam
narrows the test set out in Yellowbird by interpreting the
"without further resort to the judicial process" aspect
of the test as necessarily precluding any element of coercion or
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guide to the subject matter. Specialist advice should be sought
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