In Nipshank v Trimble, 2014 ABQB 120 (the
"Decision"), the Court of Queen's
Bench assessed whether or not Section 3(1)(a)(iii) of the
Limitations Act (Alberta) (the
"Act") delayed the running of the
limitations period until a plaintiff had secured legal advice about
her claim. This Section states that a plaintiff is barred from
bringing a claim unless they do so within two years after the date
on which the plaintiff knew, or in the circumstances ought to have
known, that the injury, assuming liability on the part of the
defendant, warrants bringing a proceeding.
Nipshank and Trimble were in a common-law relationship from 1994
until 2007 when Nipshank moved out of the home. Nipshank did not
seek legal advice until 2010 when she discovered that she had to
file a claim to preserve her interests in the joint property and
assets. Nipshank did not file a claim until 2012. Trimble brought a
summary judgment application to dismiss Nipshank's claim.
The court discussed that Section 3(1)(a)(iii) of the Act speaks
not to the legal strength of the plaintiff's case, but rather
to the circumstances of the plaintiff herself. The court reinforced
that this analysis is neither subjective nor objective, but rather,
the test is: in light of all the circumstances and interests of the
plaintiff, at what point would she reasonably have brought an
In order to "delay" the two-year limitations clock
from starting, a plaintiff must show that practical considerations
arising from her own circumstances and interests made her
reasonably unable to bring the action. The court provided the
following examples that may satisfy this requirement:
(i) where the costs and strains of litigation would overwhelm
(ii) where the prospect for recovery is minimal or speculative;
(iii) where other personal circumstances combined make it
unfeasible to commence the action.
Nipshank was unable to prove that she fell into any of the above
categories and therefore her failure to seek timely legal advice
did not delay the start of the limitations clock and therefore her
claim was struck.
Time is of the Essence: The Importance of Promptly Seeking
In Alberta, the general rule is that you have two years from the
date that you knew, or (in the circumstances) ought to have known,
that your claim arose. The Decision notes that limitations periods
are designed as an "incentive" for plaintiffs to bring
their claim in a timely fashion and reinforces that plaintiffs are
expected to act diligently in exercising their rights. Although the
Act enumerates slightly modified circumstances, such as in Section
3(1)(a)(iii), which may permit some degree of flexibility
with respect to the running of the limitations clock, a
successfully pleaded limitations defence is an absolute and
complete bar to a claim. This Decision demonstrates the harsh
reality of missing a limitations period and underscores the
importance of seeking prompt legal advice.
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.
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