Court of Queen ’ s Bench of Alberta Citation: Sucker Creek First Nation v. Canada (Attorney General), 2013 ABQB 199 Date: 20130404 Docket: 9603 06439 Registry: Edmonton Between: Sucker Creek First Nation and Chief Fred Badger Acting on His Own Behalf of All Other Members of the Sucker Creek First Nation Appellant (Plaintiff) - and - The Attorney General of Canada and Her Majesty the Queen In Right of Alberta Respondents (Defendant) Corrected judgment: A corrigendum was issued on April 9, 2013; the corrections have been made to the text and the corrigendum is appended to this judgment.

Corrected judgment: A corrigendum was issued on April 18, 2013; the corrections have been made to the text and the corrigendum is appended to this judgment. _______________________________________________________ Reasons for Judgment of the Honourable Mr. Justice T.D. Clackson _______________________________________________________

Summary

[ 1 ] The Plaintiff extended time for the Defendants to file the defences they had undertaken to file. That forbearance agreement was expressed in the correspondence exchanged between the parties. It is reasonable to imply that the parties ’ expressed agreement constituted an agreement to extend the five year limitation by the period of forbearance. Therefore, the Plaintiffs ’ filing of an Amended Statement of Claim was timely despite having occurred over five years after the last significant advancement of the litigation. I.

Facts and Circumstances [ 2 ] This is an appeal from the decision of Master Smart granting the applications of the Respondents; Attorney General of Canada and Her Majesty the Queen in Right of Alberta (hereinafter referred to as Canada and Alberta, respectively). Master Smart accepted the arguments of Canada and Alberta and concluded that the last step taken in the action was outside the five year limitation. He considered and rejected the applicant ’ s (hereinafter the First Nation) arguments that the five year period had been extended and dismissed the First Nation ’ s action.

The First Nation had sued Canada and Alberta alleging breaches of Treaty 8, breaches of trust, breaches of fiduciary duties and breaches of constitutional duties. The action sought declarations and reparations both by grant of lands and by damages. [ 3 ] The litigation commenced in March 1996. An Amended Statement of Claim running to 117 paragraphs and 29 pages was filed in March 2004. On November 29, 2004, Mr.

Graburn, one of the counsel to the First Nation, wrote as follows to Canada and Alberta: Further to our letter dated November 5, 2004, we wish to confirm the meeting of counsel on November 23, 2004 and our agreement to establish the following time-lines for completion of the following matters: Plaintiffs to file Reply to Demands for Particulars- March 31, 2005; Canada and Alberta to file Statements of Defence - September 1, 2005; Plaintiff to file Reply to Statements of Defence (if necessary) - November 1,2005, and; Plaintiffs and Defendants to produce initial Affidavit of Documents - February 28, 2006.

We confirm our general agreement that this action need not be submitted for Case Management at this time, subject to general adherence to the above time-lines. We also confirm the willingness of the Plaintiffs to discuss having certain portions of this action proceed through the Specific Claims process notwithstanding the continuance of this action. [ 4 ] On March 31, 2005, Mr.

Graburn wrote a follow-up letter to Canada and Alberta as follows: Further to our letter dated November 29, 2005, please be advised that we are still in the process of obtaining certain specific factual information requested in your Demands for Particulars from our client. We expect to be in receipt of such information, and to then be in a position to forward our Replies to Demands for Particulars in this matter, in the next few weeks. Please advise should you have any concerns in this regard. [ 5 ] On March 31, 2005, Alberta responded as follows:

Thank you for your March 31, 2005 letter. I have no difficulty with the timing you outline. I assume all of the remaining dates will simply be extended by a comparable timeframe determined by the actual date upon which we receive the Reply to Demand for Particulars. Please confirm your concurrence with that proposal. [ 6 ] On April 1, 2005, Canada responded: Further to your letter of March 31, 2005, we are in agreement with [Alberta ’ s] proposal regarding the extension of all timelines. Should any further discussion be required, please do not hesitate to contact me. [ 7 ] On April 6, 2005, Mr.

Graburn responded to Alberta as follows: Further to our letter dated March 31, 2005, and your subsequent replies, we confirm concurrence with [Alberta ’ s] proposal for extending the remaining dates for completion of the next steps in this litigation.

As previously indicated, we anticipate being in a position to forward our Replies to Demands for Particulars in this matter in the next few weeks. [ 8 ] On February 8, 2006, the First Nation filed a Reply to Demand for Particulars which ran to 21 pages and sent the following correspondence to Canada and Alberta: Further to the above, please find enclosed for service upon you, your filed Replies to Demands for Particulars. Further to our previous correspondence, we look forward to receipt of our respective Statements of Defence in this matter by July 8, 2006. [ 9 ] On February 22, 2006, Canada wrote to Mr.

Graburn as follows: In your Amended Statement of Claim filed March 19, 2004, your clients ’ Statement of Claim names “ Her Majesty the Queen in Right of Canada ” as a Defendant. We direct your attention to section 23(1) of the Crown Liability and Proceedings Act , R.S.C. 1985,

chapter C- 50, as amended. In light of this provision, we take the position that proceedings commenced against the Federal Crown in the Court of Queen ’ s Bench of Alberta must be taken in the name of the “ Attorney General of Canada ” , and not “ Her Majesty the Queen in Right of Canada ” . There is substantial case law on this point, although, perhaps the most recent decision is that of Madam Justice Ross in Ermineskin Cree Nation v. Canada , 2005 ABQB 76 .

Prior to calling upon our office to file a Statement of Defence in this matter, we expect that you will wish to correctly name Canada as the “ Attorney General of Canada ” . Please let us know your intentions in this regard. Thank you for your attention to this matter. [ 10 ] On April 21, 2006, Mr. Graburn wrote to Canada as follows:

Further to Ms. Dickins ’ letter dated February 22,2006, we have reviewed the decision of ’ Madam Justice Ross in Ermineskin Cree Nation v. Canada , 2005 ABQB 76 , and will accordingly proceed to amend the pleadings in this matter to substitute “ Attorney General of Canada ” for “ Her Majesty the Queen in Right of Canada ” .

However, we do not believe this procedural matter need affect our agreed-upon time-lines for completion of the following steps in this action: Plaintiff to file Reply to Demands for Particulars - completed on February 8, 2006; Canada and Alberta to file Statements of Defence - July 8, 2006; Plaintiffs to file Reply to Statements of Defence (if necessary) - September 8, 2006, and; Plaintiffs and Defendants to produce initial Affidavit of Documents - January 8, 2007.

Accordingly, we continue to look forward to receipt of your respective Statements of Defence in this matter by July 8, 2006. [ 11 ] On July 7, 2006, Canada wrote to Mr. Graburn as follows: This is further to our telephone discussion this morning. I wish to confirm the following: • With respect to our earlier request that the Plaintiffs amend their Amended Statement of Claim in order to name the Defendant Canada as the “ Attorney General of Canada ” in order to comply with section 23(1) of the Crown Liability and Proceedings Act R.S.C. 1985,

chapter C-50, I confirm that: o You have recommended to your clients that the Amended Statement of Claim be amended in the manner that our office has suggested. o You have yet to receive those instructions from your clients and, indeed, at this juncture, they may be somewhat resistant to providing those instructions. o As between ourselves, it was agreed that it makes practical sense to have this change made to your clients ’ pleadings before we file our Statement of Defence (assuming, of course, that you receive the appropriate instructions). • With respect to our request for an extension of time to file our Statement of Defence, I confirm that: o On a preliminary basis, I anticipate that we will require until the end of August to file our Statement of Defence.

However, I am in the midst of confirming that time frame with our client. (As such, as soon as I hear back from our client I will be in further contact with you so that we can discuss this matter further, if need be.) o You are prepared to provide us with an extension of time to file our Statement of Defence in this matter within these general parameters (i.e., until the end of August — subject to any further agreement that we might reach in this matter)

• In general terms, you mentioned that we should aim to have both of the above matters completed by the end of summer. That seems reasonable. • As mentioned, if we get to the stage where our office is in a position to file our Statement of Defence, but we have yet to hear from you with respect to amending your clients ’ Amended Statement of Claim to conform to section 23(1) of the Crown Liability and Proceedings Act , we will contact you before we file. In this way, if you have yet to receive your clients ’ instructions about amending its Amended Statement of Claim, you can make a further inquiry of them.

I trust that I have captured the essence of our discussion accurately. [ 12 ] On that same day, Alberta wrote to Mr. Graburn as follows: I have a copy of Shaun Mellen ’ s letter to you regarding the possibility you will amend your Amended Statement of Claim and that for practical reasons it would make sense to complete that amendment before Canada files its Statement of Defence. Because the filing of our Statement of Defence will trigger certain document production deadlines, Alberta would prefer to file its Statement of Defence at the same time as Canada. I note you indicated to Mr.

Mellen you would like to have your pleadings amended and Canada ’ s Defence filed by the end of August. Alberta would certainly be amenable to following whatever timelines you set for Canada. Please advise if you are prepared to extend the same extension to Alberta that you have extended to Canada in advance of our July 12 th , 2006 filing deadline. [ 13 ] On July 25, 2006, Mr.

Graburn responded as follows: Further to your letter dated July 7,2006, and to my telephone message left with your office, I confirm we are prepared to extend the same extension to Alberta as extended to Canada with regard to the filing of Alberta ’ s Statement of Claim, as outlined in Mr. Mellon ’ s letter dated July 7, 2006. I apologize for the delay in forwarding this confirmation. [ 14 ] Following that exchange, further time passed while Rath & Company sought instructions from the First Nation.

Ultimately, the parties agreed that Statements of Defence would not be required until the Amended Statement of Claim was further amended. That position was reached by the parties by November 2006. Nothing further was exchanged or filed until February 22, 2011, when Alberta applied to dismiss the action pursuant to Rule 15.4, the pertinent part of which provides: 15.4(1) Unless subrule (2) applies, the Court, on application, must dismiss the action as against the applicant if . . . (b) 5 years has elapsed since the last thing done to significantly advance the action, . . .

(2) The Court must not dismiss the action if, (

a) the parties to the application expressly agreed to the delay, (

b) the action has been stayed or adjourned by order, an order has extended the time for doing the next thing in the action or the delay is provided for in the litigation plan, [ 15 ] The First Nation ultimately filed an Amended Amended Statement of Claim in March 2011 making the change in the style of cause as well as additional substantive amendments to the body of the pleading.

That filing is plainly a significant thing within the context of Rule 15.4(1)(b). [ 16 ] The issues are: was an agreement effected by the correspondence and if so, did it result in an extension of the five year limitation. [ 17 ] Frankly, it seems to me that there may have been a “ litigation plan ” which came into being in November 2004 and was subsequently modified in 2006. If so, Rule 15.4(2)(

b) may also be applicable.

However, since none of the parties raised that potential before me, I will not offer any further opinion on the matter. [ 18 ] Master Smart ultimately concluded that: In the light of the foregoing factual circumstances and context (here he refers to the correspondence I have previously detailed), in the absence of any supportive wording, I do not see a basis upon which I am able to clearly (or at all) find by inference or implication a stand still agreement by time tacking or otherwise. (at para. 21) [ 19 ] On October 12, 2012, in support of the appeal from that decision, the First Nation filed an additional affidavit.

That affidavit was filed to address Master Smart ’ s conclusion that an amendment to the style of cause was necessary, because the way in which Canada was named amounted to a material defect in the pleadings. Canada and Alberta have asked me to strike the affidavit in its entirety. II. Analysis A. Standard of Review [ 20 ] As a result of the amendment to the Rules of Court , appeals to this Court from the decisions of this Court ’ s Masters are “ on the record ” : Rule 6.14. If I conclude that the decision of the Master was incorrect, I must intervene: Bahcheli v.

Yorkton Securities Inc. , 2012 ABCA 166 (paras. 25-30 ). B. The Affidavit of October 12, 2012 [ 21 ] In my view, there was insufficient evidence that would allow the Master to conclude that an amended to the style of cause was a “ material defect ” . Additionally, the Master received no argument on the subject and offered no explanation as to why he came to that conclusion. Canada and Alberta conceded as much at the hearing before me. Therefore, there is no dispute to which the evidence in the October 12, 2012 First Nation affidavit could apply and it does not therefore offer anything material to the appeal.

Additionally, the affidavit contains conclusions of law, legal opinions and averments as to circumstances not germane to these proceedings.

[22] In my view, however, there is no reason to strike the affidavit. The fact that it contains inadmissible evidence and allegationsof fact and opinion which are irrelevant and immaterial does not warrant striking the document. It is very common to have evidenceproffered on an application or during a trial which is inadmissible and even obviously inadmissible. We don’t strike that “evidence” fromthe record, we simply ignore it. That is the proper course of action in this case. The dramatic action of striking an affidavit and thepejorative connotation associated with doing so achieves nothing more. C.

Was There an Express Agreement? [23] Plainly more than five years have passed without anything advancing the action, at the time Canada and Alberta brought theirapplications. However, the First Nation argues that the exchanged correspondence amounts to an expressed agreement to the delay. AsMaster Smart pointed out there is considerable authority on what is meant by “expressly agreed to the delay” and the authority is notseemingly consistent. [24] In Sinnott v. Canadian Pacific Railway (2010) 2010 ABQB 185 , 491 A.R. 394 (QB), Kent J. concluded anagreement had been reached between the parties.

In that case, settlement discussions ensued shortly after the plaintiff filed his Statementof Claim and it appears from those discussions that liability was not really in issue. The discussions stalled and then correspondence wasexchanged between counsel. The plaintiff asked for confirmation that the delay caused by settlement efforts would not compromise hisability to proceed with the litigation. The defendant gave that confirmation. Settlement discussions ensued, but they stalled again for aperiod in excess of five years.

That prompted the defendant to apply to dismiss the action for five year delay. [25] It is of note that the plaintiff had extended time to the defendant to file its defence and it was not filed at the time of theapplication. In concluding there was an agreement, Kent J. offered the following at para. 9: 9 In this case the parties are clear. The date when the standstill agreement began is clear: the date of the letters.

The relevant term ofthe standstill agreement for our purposes is properly addressed under the third issue, namely the tacking on of time. [26] While on the subject of time tacking, Kent J. offered further explanation for concluding there was an agreement. In doing soshe acknowledged that adding time to the five year period was not specifically addressed in the agreement. Nonetheless, she decided thata liberal

interpretation of the agreement was called for and that as a result the agreement did tack time onto the five year period. [27] In Morasch v. Alberta, 2000 ABCA 24, Fruman J.A. commented on the application of Rule 244.1 which is the predecessor toRule 15.4. On the subject of agreement to the delay she offered this: 15 Rule 244.1 has serious consequences. While inaction will result in dismissal of an action, the Rules contain mechanisms to dealwith delay. Rule 243.1 permits parties who anticipate long delays in prosecuting an action to avoid the consequences of R. 244.1 by anexpress agreement.

Written notice of the agreement must be given to all other parties to the action: R. 243.1(2). Parties can also makeproposals affecting the pace or timing of the action by following the procedures set out in R. 243.2. [28] In J.K. Campbell & Associates Ltd. (Trustee of) v. Lethbridge General and Auxiliary Hospital (2000), 2000 ABQB 331, 264 A.R. 107 (QB), Clarke J. had to determine whether the plaintiff had in fact taken a step to advance the action. Heconcluded that that had not occurred. As a result, he had to move on to consider if the parties had agreed to the delay.

In that case, therehad been some letters written to try to kick start settlement discussions and a meeting was also held to try and set the parameters forsettlement meetings. All of that occurred during the running of the five year period. Clarke J. concluded that those efforts did not amountto an agreement, in these words: 9 The Plaintiff says in any event the actions of the parties should be construed as impliedly waiving compliance with the Rule. It hasalready been noted that the Rule is written in absolute terms and is mandatory. In that context Rule 243.1(

a) makes sense. It says that theparties can exclude the operation of Rule 244.1 but it must be by "express agreement" and in my view Rule 243.1(

a) implies that itshould be in writing. There is good reason for reaching this conclusion. Since Rule 244.1 is absolute and mandatory there should be nodoubt when the parties have decided to waive the operation of that Rule and the Court should not be put in the position of trying to implythe parties' intention from evidence which is equivocal at best. There was not the "express agreement" by the Plaintiff and Comstock to

exclude Rule 244.1 and certainly the evidence does not meet the requirements established in Saskatchewan River Bungalows v.Maritime Life, (1994) (SCC), 155 A.R. 321 at par. 19-20. [29] In Bugg v. Beau Canada Exploration Ltd. (2006), 2006 ABCA 201 , 391 A.R. 208, (C.A.), no steps had been takenfor over five years and Bugg, the defendant, applied to dismiss the action for delay. Beau, the plaintiff, opposed the application on thebasis that Bugg had approached Beau and settlement discussions ensued.

At the outset of those discussions, or in the course thereof,Bugg asked Beau to hold off while the parties discussed settlement. Commencing at para. 8, speaking for the Court, Fruman J.A. offeredthese opinions: 8 Rule 243.1(1) dictates that a standstill agreement must be "express". Black's Law Dictionary defines that term as follows: Clear; definite; explicit; plain; direct; unmistakable; not dubious or ambiguous. Declared in terms; set forth in words. Directly anddistinctly stated. Made known distinctly and explicitly, and not left to inference ....

Manifested by direct and appropriate language, asdistinguished from that which is inferred from conduct. The word is usually contrasted with "implied". Henry Campbell Black, Black's Law Dictionary, 6th ed. (St. Paul. MN: West Publishing Co., 1990.) 9 In the context of R. 243.1(1), express means that the parties' intention is clear and not left to inference: Webber v. Canada (AttorneyGeneral), [2005] A.J. No. 1299, 2005 ABQB 718 at para. 54. A standstill agreement cannot be implied from conduct: 525812 AlbertaLtd. v. Purewal (2004), 366 A.R. 1, 2004 ABQB 938 at para. 13.

At the very least, the evidence must establish the basic elements of anagreement: for example, the identity of the parties to the contract, when the standstill began and its essential terms. 10 Beau filed a fresh evidence application in this appeal proceeding, which consisted of an affidavit from Beau's officer, appending a2001 letter from Bugg's former lawyer to Beau's present lawyer. The letter indicated Bugg's lawyer's understanding that their clientswere speaking and a statement of defence was not required at this time, but asked Beau's lawyers to let him know if he was mistaken anda pleading was required.

Bugg cross-examined on the affidavit of Beau's officer. By agreement of the parties, this evidence was admittedfor consideration by this Court. 11 The evidence filed in this case is insufficient to establish that the parties entered into a standstill agreement shortly after thestatement of claim was filed. The statement in the affidavit of Beau's officer, on which the chambers judge relied, does not establish thebasic elements of an express standstill agreement.

It contains only vague assertions, with no details about the essential terms.Accordingly, the chambers judge erred in concluding that the parties entered into a standstill agreement in 2000.

The fresh evidence, alawyer's letter which merely asks for the usual courtesies, adds little and does not change this conclusion. [30] From that it is apparent that while what had been done by the parties was inadequate to support the argument made by Beau,it is clear that Fruman, J.A. was not dismissing the claim out of hand simply because the alleged agreement was not completely writtenor because it was not completely specific. In short, she seemed to leave room for something incomplete and not crystal clear.

Indeed, shethen proceeded in exactly that fashion when she considered Beau’s second argument for the appeal. In that regard nothing had happenedfor 4 ½ years when Beau’s counsel wrote to Bugg’s counsel to ask if they still represented Bugg and demanded a Statement of Defence.Two months later Bugg’s new counsel wrote to Beau’s counsel and undertook to file a Statement of Defence but asked for time to do so.Beau’s counsel agreed to extend the time for filing of the defence.

Two months later, Bugg brought the application to strike theStatement of Claim. [31] In those circumstances, Fruman J.A. said this: 13 In our view, a standstill agreement was in place at the time of the R. 244.1 application. The standstill agreement was entered into asa result of the September 16, 2005 letter from Taylor, and the September 20, 2005 letter from Beau's lawyers. The correspondencecontained and confirmed Bugg's undertaking to file a statement of defence in the action.

A statement of defence is a "thing that materiallyadvances the action" and, therefore, filing a statement of defence would restart the five-year time period under R. 244.1: Alberta v.Morasch (2000), 250 A.R. 269, 2000 ABCA 24 at para 6. Having undertaken to do something that would materially advance the actionand restart the five-year clock, Bugg was contractually bound not to do something inconsistent; he was precluded from bringing an

application under R. 244.1 to dismiss the action for want of prosecution on the basis of the passage of time. At the same time, Beau was precluded from taking the next step and restarting the clock, because the next step would be to note Bugg in default and Beau had agreed not to do that. It is clear from the correspondence that Beau was relying on Bugg 's undertaking to defend the action and had deferred filing a notice of default because of it.

The last correspondence from Beau's counsel, the October 18, 2005 letter, indicated that Beau was still operating under that assumption. [ 32 ] It is plain that the discussions in Bugg , between the parties, initially, did not have the kind of detail or certainty that would allow the Court to conclude that there was an agreement. Equally plainly, Beau had not acted in the second time period because Bugg had undertaken to defend and the litigation stood still while he got around to doing so.

They were agreed and because they had agreed, their agreement precluded one party doing anything until the agreement had been fulfilled by Bugg filing a defence or either party gave the other party reasonable notice that the agreement was to end. Of note however, is the fact that not a single word was written by the parties about the impact of their agreement on the five year delay period.

It is in that context that Fruman J.A. offered the opinions at para. 18 of the decision: 18 It follows that a standstill agreement can be written, oral, or partly written and partly oral, as long as it is express and not based on intent or inference. This

interpretation is consistent with Webber , supra and 525812 Alberta Ltd. , supra . Because it will be more difficult to prove an oral agreement, the best course of action is to reduce the agreement to writing and specifically set out its terms. This Court has said: "when a standstill agreement is entered into, it would be preferable to describe it as such, and to state precisely what steps in the litigation process are waived or suspended pending the exploration of settlement": Wasyleshko v.

Chamakese (1999), 228 A.R. 384 , 1999 ABCA 47 . [ 33 ] From that opinion we learn that an express agreement does not have to be completely or even partly written so long as it is express and not based on intent or inference. However, when determining whether the agreement tacks time on to the five year period or stops the five year clock from running, we are told “ not all agreements that remove the need to take an immediate step automatically add time to the end of the period. The

interpretation must arise from the words used, or must be a reasonable implication or inference from them ” . [ 34 ] As a result of this synopsis it is plain that an express agreement is an agreement which is plainly demonstrated on the evidence provided. One does not have to imply its existence or essential features. However, the impact of the agreement on the five year limitation period depends upon a reasonable

interpretation of the words written or spoken which constitute the agreement and the circumstances in which they were written and spoken. The agreement need not say anything at all about the five year limitation rule or whether the time extended should be added to the five year period or whether the five year period is simply suspended while the agreement governs relations between the parties. [ 35 ] In short, the conclusion as to the impact of the agreement on the five year limitation is a matter which may be decided by inference.

It is not necessary that the “ express agreement ” expressly state anything about its impact on the five year limitation. [ 36 ] In the appeal before me, the express agreement was to hold off. That was what Canada and Alberta asked the First Nation to do and that is what the First Nation agreed to do. The implication of the impact of that express agreement for the five year limitation is a matter of inference from the whole of the circumstances. In this case, the parties plainly had an expressed agreement that Canada and Alberta would not have to file defences until July 2006.

An extension of time was plainly agreed upon. In the words of Rule 15.4(2)(a), the parties had expressly agreed to the delay between February 2006 and July 2006. At least to that point, the onus was on Canada and Alberta to file their defences. The extension of time was for their benefit. D. Does the Agreement Impact upon the Five Year Delay Period? [ 37 ] In my view the parties ’ express agreement does have the suggested implied impact on the five year limitation. In the best traditions of the bar, plaintiff ’ s counsel regularly extend time to defence counsel for filing defences.

That is particularly the case in complex litigation. To insist on strict compliance with the time limits for filing a defence may not be efficient in the long run. Yet by acting sensibly, the plaintiff is not only granting time to the defendant, the plaintiff is also exhausting its limited supply of time. That is an unfair bargain. The unfairness results solely from an inference that the parties ’ express agreement does not result in an extension of a five year limitation. It follows that such an inference is not reasonable and the only reasonable inference is one which effectively extends the five year limit.

This is not a “ stand still agreement ” or a “ tacking agreement ” rather the parties have entered into a forbearance agreement and implicit in any such agreement must be the notion that forbearance prejudices neither party. It follows that forbearance agreements necessarily imply an extension of the five year limitation for as long as the forbearance continues. There is no uncertainty in this. The parties will know exactly what that means for them and their litigation. There will be no surprises. Where there is a

forbearance agreement, there will be no applications to dismiss until the five year limitation plus forbearance period has expired. [ 38 ] Additionally, the onus to establish breach of the five year limitation as extended will ly upon the defendant, the party which benefited from the forbearance.

The period will be defined by the defendants defending as they had undertaken or the plaintiff insisting upon compliance in a time limited way. [ 39 ] Indeed, in the interests in certainty and predictability, I would go further and suggest that in the absence of proof in writing that the parties specifically agreed that a forbearance agreement would not extend the five year limitation, forbearance must always have that affect. In offering that opinion, I am cognizant of Fruman J.A. ’ s admonition in Bugg v.

Beau at para. 19: 19 Bugg's third ground of appeal questions the effect of a standstill agreement and, in particular, whether the time during which the action is suspended under a standstill agreement can be added or tacked on to the five-year time period. In a slightly different context, this Court decided that parties can create a "clock-stopping, time-tacking" standstill agreement by contract; however, not all agreements that remove the need to take an immediate step automatically add the time to the end of the period. The

interpretation must arise from the words used, or must be a reasonable implication or inference from them. In each case, the terms of the actual agreement must be considered: Martinez v. Hogeweide (1998), 209 A.R. 388 , 1998 ABCA 34 ; Kapki v.

Palace (1999), 228 A.R. 373 , 1999 ABCA 40 at para. 5 . [ 40 ] However, especially given the forthcoming change to Rule 15.4 which will reduce the long limitation from five years to three years, it seems to me that the foregoing suggestion would strike a fair balance, particularly where the step foregone is filing a timely defence in circumstances where the defendant has undertaken to file a defence. III. Conclusion [ 41 ] The appeal is allowed. The parties entered into an agreement which granted the Defendants forbearance on the timely filing of their Statements of Defence.

That forbearance impliedly added the period of forbearance to the five year limitation, thus extending that limitation. In result, the filing of the Amended Amended Statement of Claim in 2011 was timely. [ 42 ] The parties may seek to address the matter of costs by appointment. Heard on the 20 th day of February, 2013. Dated at the City of Edmonton, Alberta this 3 rd day of April, 2013. T.D. Clackson J.C.Q.B.A. Appearances:

J.P. Peacock, Q.C. and Johanna C. Price Peacock Linder & Halt LLP for the Appellant (Plaintiff) Cynthia Dickins and Linda Fleury Department of Justices, Aboriginal Law for the Respondent (Defendant) The Attorney General of Canada Thomas G. Rothwell and Sierra J. Lopetinsky Alberta Justice, Aboriginal Law for the Respondent (Defendant) Her Majesty the Queen in Right of Alberta _______________________________________________________ Corrigendum of the Reasons for Judgment of The Honourable Mr. Justice T.D.

Clackson _______________________________________________________ Please note that the Heard date should read as below: Heard on the 20 th day of February, 2013. _______________________________________________________ Corrigendum of the of The Honourable Mr. Justice T.D. Clackson _______________________________________________________ Please note that the Heard date should read as below: Heard on the 22 nd day of November, 2012.