Gratton v. Shaw, 2010 ABQB 299

Court of Queen ’ s Bench of Alberta Citation: Gratton v. Shaw, 2010 ABQB 299 Date: 20100504 Docket: 0403 20577 Registry: Edmonton Between: Albert Joseph Gratton Appellant (Plaintiff) - and - Warren R. Shaw Respondent (Defendant) _______________________________________________________ Reasons for Judgment of the Honourable Mr. Justice R.P. Belzil _______________________________________________________

Part 1 The Application [ 1 ] The Plaintiff appeals an order of the Master granting

summary dismissal of his claim.

Part 2 The Facts [ 2 ] On July 21, 1990 the Plaintiff was allegedly injured while exiting a ride at the Exhibition grounds during the Klondike Days festival.

He alleges that an operator of the ride assaulted him resulting in personal injuries being sustained. [ 3 ] The Defendant is a lawyer and was retained by the Plaintiff to advance a personal injury claim on his behalf for damages. [ 4 ] The Defendant commenced the action as instructed and entered into settlement discussions with the lawyer representing the Defendants in the Klondike Days action. [ 5 ] The claim was settled for the amount of $75,000 without any admission of liability. In exchange for this amount, the Plaintiff executed a release dated August 8, 1995.

The Defendant then closed his file. [ 6 ] In the summer of 2002, the Plaintiff called the Defendant’s office advising that he had retained a new lawyer, who is currently counsel for the Plaintiff, who could recover more compensation for him regarding the Klondike Days incident. [ 7 ] In August 2002 current counsel for the Plaintiff requested production of the Defendant’s file but was advised that it had been destroyed.

Counsel for the Defendants in the Klondike Days action made his file available for inspection on September 24, 2002 and current counsel received a complete copy of it on October 4, 2002. [ 8 ] On October 17, 2002 current counsel for the Plaintiff wrote the Defendant advising that he had been retained to represent the Plaintiff respecting another injury claim and that in the process of investigating the subsequent claim formed the opinion that the Defendant had failed to properly represent the Plaintiff in the Klondike Days action.

He particularized the alleged inadequacies in the Defendant’s handling of the Klondike Days action including the alleged failure to properly advance a loss of income claim. [ 9 ] The Statement of Claim against the Defendant was filed on October 19, 2004. A Statement of Defence was filed wherein it was pled that the action was barred by the provisions of s. 3 of the Limitations Act . [ 10 ] On November 18, 2009 an application for

summary dismissal of the claim was granted by the Master on the basis that the claim was barred by the Limitations Act . It was agreed by counsel that the

summary dismissal application was governed by the Alberta Court of Appeal decision in Murphy Oil Company Ltd. v. Predator Corporation Ltd., 2006 ABCA 69 at para. 24 . That is, the defendant must prove that there was no genuine issue for trial such that it is plain and obvious that the action cannot succeed.

Part 3 Standard of Review [ 11 ] An appeal from the Master to a Justice in Chambers is de novo . The standard of review on an appeal from the Master is correctness on questions of law.

Part 4 Discussion [12] Section 3(1) of the Limitations Act R.S.A. 2000, c. L-12 reads as follows: 3(1) Subject to

section 11, if a claimant does not seek a remedial order within (a) 2 years after the date on which the claimant first knew, or in the circumstances ought to have known, (

i) that the injury for which the claimant seeks a remedial order had occurred, (ii) that the injury was attributable to conduct of the defendant, and (iii) that the injury, assuming liability on the part of the defendant, warrants bringing a proceeding or (b) 10 years after the claim arose, whichever period expires first, the defendant, on pleading this Act as a defence, is entitled to immunity from liability in respect of theclaim. [13] In De Shazo v.

Nations Energy Company Ltd., 2005 ABCA 241 the Alberta Court of Appeal at para. 26 confirmed that thisprovision codifies the common law discoverability rule: This provision codifies the common law discoverability rule and applies it to all actions for remedial orders. The common law rule wasdescribed by the Supreme Court of Canada in Central Trust Co. v.

Rafuse, (SCC), [1986] 2 S.C.R. 147 at 224: “[A]cause of action arises for purposes of a limitation period when the material facts on which it [the cause of action] is based have beendiscovered or ought to have been discovered by the plaintiff by the exercise of reasonable diligence.” [14] At para. 31 the court observed that discoverability does not require perfect knowledge: The principal of discoverability does not require perfect knowledge. As this court noted in Hill v. Alberta (South Alberta LandRegistration District) (1993), 1993 ABCA 75 , 100 D.L.R. (4th) 331 at 336 (Alta.

C.A.) (leave to appeal to S.C.C. denied): Even if the discoverability rule of limitations applied to this case (which I need not decide), it does not call for perfect certainty. It doesnot require discovery at all: it says something else will do instead. It suffices that “the material facts on which [the cause of action] isbased ... ought to have been discovered by the plaintiff by the exercise of reasonable diligence...”: Central Trust v. Rafuse... . If theplaintiff is told a fact by someone who is likely to know, surely that makes the fact known or discoverable, even if someone else disputesthe fact.

Very few people who sue have perfect certainty. [15] Current counsel for the Plaintiff submits that the Plaintiff did not have sufficient information to advance the claim against theDefendant earlier than two years prior to the actual date of filing of the Statement of Claim being October 19, 2004.

[16] I do not agree. In his affidavit of August 20, 2009, filed in opposition to the

Summary Dismissal application, the plaintiffdeposed that his current counsel reviewed the file of the Defendants in the Klondike Days action which included medical reports, expertreports, tax information as well as correspondence between counsel. [17] The affidavit also alleges that the Defendant was aware of the nature of the Plaintiff’s business as well as his medical statusincluding arthritic and cardiac issues. [18] Accordingly, by the Plaintiff’s own admission, by the end of September 2002, at the latest, the Plaintiff had actual knowledgeof what the Defendant had claimed or had not claimed on his behalf in the Klondike Days action.

In other words, the material factsgrounding a cause of action against the Defendant for the alleged failure to properly represent the Plaintiff were known by that date. [19] The Statement of Claim against the Defendant was filed on October 19, 2004 thus by operation of s. 3 of the Limitations Act,the issue is reduced to whether the Plaintiff knew or ought to have known that there was a cause of action against the Defendant byOctober 19, 2002?

Clearly the answer is in the affirmative and it is not necessary for me to decide when the cause of action actuallyaccrued. [20] Current counsel for the Plaintiff submits that he was merely suspicious that a cause of action against the Defendant existedbefore October 19, 2002. In support of this submission he cites the Alberta Court of Appeal decision in Photinopoulos v.

Photinopoulos,(1988) 1988 ABCA 352 , 54 D.L.R. (4th) 372 at p. 377 wherein it was held that a mere suspicion that a claim exists is notsufficient to trigger a limitation period. [21] In this factual context, the material facts known to the Plaintiff before October 19, 2002 amounted to much more than a meresuspicion that a claim might exist because clearly the Plaintiff was aware that the Defendant had acted for him and the full particulars ofhow the Defendant carried out his retainer were known. [22] It was then argued that the impact of other medical issues affecting the Plaintiff’s claims had not been fully developed beforeOctober 19, 2002.

While I accept that causation issues were not fully developed by that date this does not mean that material factsgrounding the cause of action against the Defendant were not known. As observed in De Shazo, the discoverability rule does not requireperfect knowledge of the claim.

Part 5 Conclusion [23] The material facts supporting a cause of action against the Defendant were discoverable before October 19, 2002. ThePlaintiff failed to seek a remedial order before that date. The Defendant, having specifically pled s. 3 of the Limitations Act, is entitled toimmunity from the claim. [24] The Master correctly concluded that it is plain and obvious that there was no genuine issue for trial such that the claim shouldbe summarily dismissed. The appeal is dismissed with costs. Heard on the 29th day of April, 2010. Dated at the City of Edmonton, Alberta this 4th day of May, 2010.

R.P. Belzil J.C.Q.B.A. Appearances: Allan M.G. Botan Botan Law Office for the Plaintiff (Applicant) Joseph Rosselli Fraser Milner Casgrain LLP for the Defendant (Respondent)