Canada: Alberta Court Of Queen's Bench Clarifies The Test For Extending A Limitation Period For An Environmental Contamination Claim

Last Updated: June 28 2016
Article by Matti Lemmens and Leanne Desbarats

Most Read Contributor in Canada, September 2016


Environmental contamination often goes undiscovered for many years, potentially making it difficult for plaintiffs to bring a claim to recover damages for environmental contamination within statutory limitation periods. Under the Limitations Act, RSA 2000, c L-12 (the "Limitations Act"), the limitation period applicable to remedial orders is two years from the date a claimant discovers a claim or ten years after the claim arose, whichever period expires first. However, the Alberta Environmental Protection and Enhancement Act, RSA 2000, c E-12 ("EPEA") recognizes the difficulties in discovering environmental contamination and provides that the limitation period for an action claiming an "alleged adverse effect resulting from the alleged release of a substance into the environment" can be extended on application to the Court of Queen's Bench. In a recent decision, Justice Martin set out a two-part test for determining when such an extension is warranted.

The mechanism to extend the limitation period for environmental contamination claims under EPEA has not been frequently used. However, this decision is a reminder of the availability of such an extension and clarifies the procedure that governs these applications. In the context of the purchase and sale of a property, the practical take-away from this decision is that parties should take steps to contractually allocate liabilities for environmental contamination to avoid the possibility of potential liability unlimited by statutory time constraints. This can be done through the use of carefully drafted representations and warranties and indemnities in purchase and sale agreements.


In Lakeview Village Professional Centre Corporation v Suncor Energy Inc., 2016 ABQB 288, the defendant, Suncor Energy Inc. ("Suncor"), owned certain lands (the "Lands") from 1969 until the mid-1980s. Suncor operated a retail gas station on the Lands.

In 1988, the defendant, Commonwealth Business Management Ltd. ("Commonwealth"), purchased the Lands. In 1998, Commonwealth sold the Lands to the plaintiff, Lakeview Village Professional Centre Corporation (the "Plaintiff"). At the time of purchase, the Plaintiff knew that a gas station was formerly on the site and, as a condition of its offer, the Plaintiff asked Commonwealth to provide information regarding the environmental status of the Lands. Commonwealth commissioned an Environmental Assessment Report which concluded that there was no evidence of significant contamination and no further investigation was warranted. Relying on this assurance, the Plaintiff acquired the Lands.

In 2013, the Plaintiff received an offer to purchase the Lands prompting another environmental assessment. This assessment found contamination at levels that required remediation of the Lands. The Plaintiff, wishing to recoup some or all the costs spent on remediation, brought an action against the Defendants as the former owners of the Lands.

Normally, the action would be out of time under the Limitations Act as the claim was well outside of the 10 year-ultimate limitation period. However, Section 218 of EPEA provides that a judge may extend the limitation period under certain circumstances.


Section 218 of EPEA authorizes a judge, on application, to "extend a limitation period provided by a law in force in Alberta for the commencement of a civil proceeding where the basis for the proceeding is an alleged adverse effect resulting from the alleged release of a substance into the environment". EPEA defines adverse effect to mean "impairment of or damage to the environment, human health or safety or property".

Section 218 sets out a number of factors for a judge to consider, including:

  • when the adverse effect occurred;
  • whether the adverse effect ought to have been discovered by the claimant through the exercise of due diligence;
  • whether the defendant will be prejudiced from maintaining a defence to the claim on the merits; and
  • any other relevant criteria.

However, there was no guidance in EPEA as to the procedure that governs applications under Section 218. In particular, there was no guidance on whether a Section 218 application was a final determination as to the availability of an extension or whether a limitation argument could still be left to trial.

The Court outlined the following two-step analysis for considering when a Section 218 extension should be granted:

  1. Is there sufficient evidence on the Section 218 factors to grant an extension of the limitation period?
  2. If there is not enough evidence to make that determination, or if there is sufficient evidence but an issue for trial could be determined prematurely, has the claimant shown a good arguable case for an extension? If so, the claimant is entitled to an extension of the limitation period subject to a final determination of the issue at trial.

The Court noted that the test respects the purpose of Section 218 "while acknowledging the legitimate interest of a claimant to know whether to spend further resources on their claim" and "allows the court to extend the limitation period for obviously meritorious s 218 cases or to weed out cases that are attempting to 'abuse the system'".

Justice Martin found that, in this case, the time frame involved was not so long ago that it would be unfair to allow the action to proceed against either party, the Plaintiff exercised diligence in ascertaining the presence of the alleged adverse effect, there was no evidence that an extension of the limitation period would prejudice their ability to maintain a defence on the merit, and Commonwealth had not persuaded the court that Section 218's scope is limited to parties that cause or contribute to the contamination of lands. Justice Martin held that the Plaintiff had shown a good arguable case on the Section 218 factors, and granted an extension of the limitation period subject to a final determination of the issue at trial.


Prior to this decision, there was very limited judicial consideration of Section 218 of EPEA and no guidance as to what procedure governed applications under Section 218 (some of the few cases considering an application for an extension under Section 218 are Wainwright Equipment Rentals v Imperial Oil Ltd., 2003 ABQB 898 and Jager Industries Inc. v Canadian Occidental Petroleum Ltd., 2001 ABQB 182). This created the risk that a plaintiff who discovered environmental contamination outside of the 10-year ultimate limitation period would need to expend significant resources in pursuing an action that could ultimately be barred by limitations. This decision sets out how a court will consider such actions and will provide certainty to plaintiffs in considering whether to pursue a claim. The decision also clarifies the requirements for a defendant to resist such an extension and clarifies that where there is insufficient evidence to support the Section 218 factors, and no arguable case for an extension, an extension can be denied prior to trial.

In the context of the purchase and sale of a property, parties can take steps to avoid the possible use of the extension under Section 218 by expressly allocating liability for environmental contamination in a purchase and sale agreement. This can be done through representations and warranties and indemnities in agreements that expressly provide for the timelines of liability of the vendor and purchaser of a property. Further, parties should take steps to assess potential environmental contamination on properties they are considering purchasing and use remediation certificates to lessen the associated risks. While such certificates do not directly limit potential liability for civil claims for migration of contamination to adjoining properties, they do serve as a mechanism to decrease contamination costs for the property granted a certificate. In practice, civil claims for contamination often follow a determination of regulatory liability as parties seek to recover costs spent for reclamation and remediation work. Accordingly, by managing regulatory risk, civil liability risk is in turn also managed to some extent.

About BLG

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.

In association with
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
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). 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 & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd 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 or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.