Canada: Similar Fact Evidence — Can It Be More Than Just "Icing On The Cake?"

A recent decision from the Alberta Court of Queen's Bench raises the issue of whether similar fact evidence may be useful in a limitations defence.

In Capital Power PPA Management Inc. v. TransAlta Corporation, 2018 ABQB 1036, Justice Rooke summarily dismissed Capital Power's action on limitation grounds.

Capital Power and TransAlta were parties to the (now terminated) Sundance C Power Purchase Arrangement, a regulation under which TransAlta, the Owner, sells electricity that it generated from two generation units at the Sundance power plant to Capital Power, the Buyer. 

Capital Power's claim arose from an allegation that TransAlta decided in 2010 and 2011 to take into account its overall portfolio position (as opposed to stand-alone single unit economics) when taking six forced plant outages. These plant outages were the subject of a two week hearing before the Alberta Utilities Commission (AUC) in December 2014. The AUC rendered its decision on July 27, 2015.

Capital Power filed a Statement of Claim commencing an Action against TransAlta on November 27, 2015—several months after the AUC decision was released. Capital Power claimed $12 million in damages and $5 million in punitive damages for TransAlta's outage behaviour.

While the claim was started in 2015, it came almost five years after Capital Power:

  • knew the plant outages took place, and
  • made a complaint to the AUC.

Capital Power also participated in the AUC investigation by preparing a will say statement in the spring of 2012 (finalized and signed in 2014), in which, among other things, it described its alleged damages, and gave evidence at the AUC hearing.  

TransAlta filed an application to summarily dismiss the claim because it was barred by the limitations period, arguing that more than two years before filing its claim, Capital Power:

  • knew of TransAlta's outage behavior (which Capital Power thought improper),
  • knew it had suffered immediate, substantial damages as a result,
  • made significant changes to its own trading behaviour to react to TransAlta's actions, and
  • complained to the regulator about it.

Justice Rooke found that Capital Power knew of its claim by 2010 or the latest 2012 and dismissed the claim entirely on the basis that Capital Power filed its claim outside the limitation period.

Capital Power's strategy to wait for the outcome of the regulatory hearing, and the need for "certainty about whether it would win" was detrimental to its claim.

Before the summary judgment application was heard, Capital Power tried, unsuccessfully, to block TransAlta from reliance on relevant evidence through various procedural applications that took two years to resolve.

One of the contested applications was for the use of similar fact evidence. The similar fact evidence was records that showed the steps and actions of another party to preserve its right by making a standstill agreement with TransAlta for a virtually identical claim. 

This other party was:

  • sophisticated, like Capital Power
  • bought electricity from TransAlta, like Capital Power,
  • had access to information about TransAlta's generation units, like Capital Power, and
  • claimed to have suffered harm from the outage behaviour, like Capital Power.

Capital Power argued that no inference can be drawn from the steps taken by the other party because evidence of what one party did or did not do in terms of commencing an action against TransAlta is not relevant or material to either the subjective or objective element of the limitation test.

But the limitations test is clear. In determining whether the plaintiff "ought to have discovered", the test is whether a reasonable person in the circumstances of the plaintiff would have known that the injuries occurred, were arguably attributable to the defendant, and warranted bringing a claim.

With respect to the similar fact evidence Justice Rooke commented that:

"...the evidence of what another party did may not be suggestive of Capital Power's actual knowledge as an objective question, but it may demonstrate what a reasonable plaintiff would do (and did) in the circumstances at bar...the evidence in this regard is merely "icing on the cake..."1

The fact that the evidence was permitted in the action and mentioned in the decision merits some attention. While Justice Rooke did not have to make a determination on whether the similar fact evidence was sufficient for a limitations defence (since there was plenty already against Capital Power), his comments suggest that this type of evidence may support what a "reasonable person" in the same circumstances would have known. If another party in a similar situation knew, then Capital Power should have known too—or at minimum, exercised some due diligence to investigate the facts.

This decision shows that if a party has a suspicion of a potential claim, it should:

  • exercise some reasonable diligence and investigate;
  • not delay or wait for the outcome of any sort of parallel/related action or regulatory proceeding;
  • enter into tolling agreements if necessary to preserve its rights; and
  • recognize that what other parties do in similar circumstances, may influence what the court determines "ought to have" been discovered and when.

Lawson Lundell's litigation team successfully represented TransAlta in having Capital Power's claim dismissed. The decision has been appealed by Capital Power.  


1 Paragraph 38 of the decision

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
Related Topics
Related Articles
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Mondaq Sign Up
Gain free access to lawyers expertise from more than 250 countries.
Email Address
Company Name
Confirm Password
Mondaq Newsalert
Select Topics
Select Regions
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