Case information

Limitation of actions — Discoverability — Negligence action against applicant solicitors for land claims being summarily dismissed for delay — Applicant solicitors alleging limitation of negligence action – Question as to when action against solicitors was warranted under applicable provincial limitations legislation — Does the possibility of avoiding or mitigating the injury underlying an otherwise discoverable claim through an alternative proceeding have the effect of delaying the onset of the limitation period, and if so, in what circumstances? — Once a claim has been discovered and a limitation period commenced, is that limitation period subject to being paused or reset if an element of the applicable discoverability test later becomes unmet? —Limitations Act, RSA 2000, c. L-12, s. 3(1).

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In 2016, the respondent commenced a negligence action against the applicants, being their former solicitors, alleging that the applicants were negligent in allowing their land claim action to be dismissed for long delay. The applicants brought an application for summary dismissal, arguing that the negligence action had been commenced out of time. A Master dismissed the applicants’ application for summary dismissal of the negligence action, but the applicants were successful on appeal before a judge of the Court of Queen’s Bench. The Court of Appeal allowed the respondent’s appeal and restored the Master’s decision. It concluded that until the land claims were dismissed for long delay in 2016, the respondent had not suffered an injury that warranted bringing an action. As such, the professional negligence action was not prescribed or out of time in 2016 when it was filed.