Legalviews Personal

Maybe you thought that only the Legislature (or Parliament) can change limitation periods for suing. In theory maybe, but they have all shrunk in Alberta.

Lawyers cannot file anything at Court House counters. It takes days for the Clerk’s office to review and approve filing anything electronically. And even if successful, that filing is usually not backdated to the date of receipt of the document. Very small or understandable discrepancies can make the system (or a Clerk) reject a document received for filing. And the Clerk may send notice that the document was rejected, or a query about it, only after the limitation period has expired.

There is a special process for filing in a different site and way if a limitation period is close, but many lawyers have not noticed that. And if the limitation period is (say) 6 or 7 days away when the statement of claim is sent in electronically, some counsel or paralegals may assume that the limitation date is not close, because they think that ordinarily documents are accepted or rejected faster than that.

That problem is not theoretical; a recent reported case shows it happened in Calgary.

The courts usually have no power to extend limitation periods. Whether they can deem an originating document like a statement of claim to have been filed when it was received or before the Clerk ruled on it, is still not entirely clear. See Sabir v. Gill 2023 ABKB 679, JCC 2201 11259 (AJ). (For Court of Appeal filings, see R. 14.92(c).)

What should lawyers do?

Do not let your client postpone definite positive instructions to sue, appeal, or do whatever involves a time limit. Warn the client about the shorter de facto time limits.
Draft a Statement of Claim or Originating Application well before the date when you plan to submit it for filing. Do not wait to file it, without a very strong reason.
Treat 10 days before the limitation expires as if it were the last day to sue. If a certificate of pending litigation (lis pendens) is also needed, even that extra 10 days is much too short a margin for error.
Well beforehand, check carefully the processes for electronically filing any documents subject to any time limit (statutory, under the Rules, or under some court order).
Don't leave filing up to staff alone. Keep the lawyer involved in filing, when the limitation period is less than a month away.
Have a second lawyer familiar with litigation check over the document to be submitted, to ensure there are no flaws which could lead to rejection.
Have two people present and watching the computer when the document is electronically submitted for filing. The above Sabir case shows that one simple slip of a finger can silently kill everything, with no warning.
What if, by some horrible happening, a statement of claim has to be submitted on the last day for suing? Maybe you could draft it as if there were no lawyer and send the client and some helper over to the Clerk’s counter for filing? (And not just ten minutes before the counter closes, either.) The lawyer could then get onto the record, after the filing. Whether all that would be considered unethical, however, I do not know.
Pray a lot; you may need a miracle.

– Hon. J.E. Côté

LIMITATION PERIODS HAVE SHRUNK