Aseniwuche Winewak Nation of Canada v Ackroyd LLP, 2021 ABQB 728

Court of Queen’s Bench of Alberta Citation: Aseniwuche Winewak Nation of Canada v Ackroyd LLP, 2021 ABQB 728 Date: 20210913 Docket: 1603 19000 Registry: Edmonton Between: Aseniwuche Winewak Nation Of Canada, a Fellowship of Aboriginal People Plaintiff/Respondent - and - Ackroyd LLP, William L. McElhanney and Penny Frederiksen Defendants/Appellants _______________________________________________________ Reasons for Judgment of the Honourable Madam Justice J. A. Fagnan _______________________________________________________ Introduction [ 1 ] A Master dismissed the Appellant’s (collectively, Ackroyd’

s) application for

summary dismissal of a professional negligence action based on a limitations argument. The Appellants appeal the Master’s decision. Background [ 2 ] Ackroyd was retained by the Respondent, Aseniwuche Winewak Nation (AWN), around 2004 to pursue the underlying lawsuit which concerned status, recognition and compensation of the AWN, consisting of the descendants of those persons expelled from Jasper National Park at its inception. Initially, Mr.

McElhanney at Ackroyd had primary carriage of the file. [ 3 ] On September 2, 2004, Ackroyd filed a Statement of Claim on behalf of AWN. [ 4 ] On November 29, 2013, Canada filed a Rule 4.33 application to dismiss the land claim, alleging that no significant advance had occurred in the litigation for three years.

[ 5 ] On January 14, 2014, Ackroyd and AWN met to discuss Canada’s Rule 4.33 application, during which one of the AWN members wrote a note that “AWN does not have much defense” to the application. [ 6 ] On January 17, 2014, Mr. MacPhee, then President of AWN, left Ms. Frederiksen of Ackroyd a voicemail message, which she had transcribed and put on the file. She deposed that she understood Mr. MacPhee to be instructing her to seek a discontinuance without costs from Canada and Alberta. To confirm these instructions, she sent Mr.

MacPhee an email on the same day: Further to our conversation a moment ago, I confirm your instructions to proceed with seeking a Discontinuance against [AWN] and all of the individuals named in the above action ... from both Canada and Alberta. We are to seek this Discontinuance on a without costs basis which means that [AWN] and, in particular, none of the individuals who put their names forward to stand as plaintiffs in this matter would have costs claimed or assessed against them by either Canada or Alberta.

I confirm that your instructions are to seek a Discontinuance and that you know that this ends the law suit and does not put it on hold or into abeyance. [ 7 ] Mr. MacPhee responded to the email on January 21, 2014 confirming the instructions. [ 8 ] By January 30, 2014, AWN retained new counsel at Janes Freedman Kyle Law (JFK). [ 9 ] On January 30, 2014, counsel for Canada wrote a letter to Ms. Frederiksen offering to waive the costs it had incurred defending the land claim if AWN would agree to sign a release and a consent dismissal.

Counsel for Canada stated the taxable costs it had incurred defending the land claim were at least $100,000 at that point. [ 10 ] Internal communications at AWN occurred regarding whether there were any defences to Canada's application, and what effect the application may have on the rights asserted in the land claim. [ 11 ] On February 6, 2014, following a call with several members of AWN, Ms. Frederiksen left a voicemail for Mr.

McElhanney and then drafted a memo to file outlining what she had stated in the voicemail: The gist of what I said was that the teleconference with [AWN] was ugly, they were threatening to sue us and that they had raised the issue of our firm (Neil) advising them that the litigation was and could be held in abeyance.

I told him that they wanted a "second opinion" on this. [ 12 ] AWN received an opinion from the JFK firm on February 24, 2014 which considered, among other things, the likelihood of success of the 4.33 motion: We have reviewed the pleadings provided to us in order to comment on the potential for your claim to survive a motion of strike.... If nothing has been done to advance the action in two years, the wording of the rule makes clear that the judge must dismiss the action. ...

Therefore, it is clear that if AWN is found to have failed to take any steps to significantly advance this case for two or more years and none of the four exceptions listed above apply, the case will be dismissed . [ 13 ] On March 20, 2014, Mr. MacPhee notified Ms. Frederiksen that JFK would be defending Canada's application on behalf of AWN. [ 14 ] On March 29, 2014, JFK sent an email to Ackroyd, indicating that AWN was of the view that steps should have been taken to ensure that Rule 4.33 was not triggered and that this: “obviously gives rise to concerns about potential losses, including losses related to: i.

Potential limitation period issues that may arise if the action is dismissed and has to be recommenced in whole or in part; ii. Potential costs (fees and disbursements) associated with responding to the Rule 4.33 motion; iii. Costs associated with the Rule 4.33 motion being granted or the action being discontinued with costs due to the loss of bargaining position due to the circumstances leading to the Rule 4.33 motion”. [ 15 ] On April 14, 2014, Alberta filed a Rule 4.33 application. [ 16 ] The Rule 4.33 applications were heard on March 11, 2015.

On April 13, 2015, Germain J. dismissed both applications: Delorme v Canada (Attorney General) , 2015 ABQB 240 . [ 17 ] The appeals by Canada and Alberta were heard on November 30, 2015. [ 18 ] On July 5, 2016, Germain J.’s decision was overturned by a majority of the Court of Appeal and the lawsuit was dismissed for long delay: Canada (Attorney General) v Delorme , 2016 ABCA 168 . [ 19 ] On October 28, 2016, AWN filed a Statement of Claim against Ackroyd outlining the steps taken in the litigation. In paragraph 25, it alleged that Ackroyd breached fiduciary and contractual duties owed to AWN by: (

a) failing to advise AWN about the implications and application of Rule 4.33; (

b) failing to seek and obtain instructions to avoid the Rule 4.33 applications;

(

c) failing to resolve the various conflicts in a timely manner, or advising AWN to seek alternative representation; and (

d) failing to significantly advance the litigation to avoid the Rule 4.33 applications, or failing to secure an abeyance agreement. [ 20 ] The Statement of Claim sets out the following allegations with respect to loss and damages: 46. As a result of these breaches of the duty of care, the Client was forced to incur significant costs to avoid the potential dismissal of the action and, upon the failure of these efforts; the Client and AWN has incurred, and will incur, significant costs, expenses and damages resulting from the dismissal of the action. 47.

In particular, the Dismissal gives rise to a claim for costs by Canada and Alberta against the Plaintiffs for which the Client is responsible in relation to the Rule 4.33 Appeals and the Litigation. 48. Further, the Client and AWN has suffered loss and damage and has been prejudiced as a result of the foregoing actions and inactions by the Lawyers and Ackroyd including: a. Legal fees and disbursements associated with the Rule 4.33 Applications; b. Legal fees and disbursements associated with the transfer of the matter to JFK; c. Legal fees and disbursements associated with the Rule 4.33 Appeals; d.

Liability for costs relating to the Rule 4.33 Applications; e. Liability for costs relating to the Rule 4.33 Appeals; and f. Liability for costs to Canada and Alberta relating to the dismissal of the Litigation. 49. In addition, the Client and AWN will have to incur additional expenses in order to advance a claim for the recognition of its rights and status in new proceedings which it otherwise would not have had to incur if the Litigation had been advanced in a timely manner and not dismissed pursuant to Rule 4.33. 50.

Further, the Dismissal prejudices AWN's ability to advance the claims made in the Litigation, or some of them, due to the application of limitations statutes, or equitable doctrines relating to delay. [ 21 ] Ackroyd outlines evidence that AWN did subsequently commence a new claim against Canada related to traditional land use and is currently in negotiations in relation to that claim. Master’s Decision [ 22 ] On October 30, 2020, a Master dismissed an application for

summary dismissal of AWN’s professional negligence action against Ackroyd: Aseniwuche Winewak Nation of Canada v Ackroyd LLP , 2020 ABQB 666 . [ 23 ] The Master reviewed the steps taken in the litigation and the decisions by Germain J. and the Court of Appeal, noting a strong dissent on the appeal. [ 24 ] The Master observed that by the time of Germain J.’s decision, AWN was already a year less a day into the 2-year limitation period for suing Ackroyd.

He reasoned that Germain J.’s decision was binding unless set aside or quashed, and that it informed AWN that a professional negligence proceeding was not warranted. Therefore, it was difficult to see how a proceeding could be warranted in the face of it or how there could still be an injury consisting of the loss of the underlying action.

He opined that a placeholder action would have resulted in a multiplicity of proceedings, and would have been vulnerable to being struck out. [ 25 ] The Master stated that in some cases it is the facts that start the limitations clock, citing HOOPP Realty Inc v Emery Jamieson LLP , 2020 ABCA 159 at para 55 , leave denied [2020] SCCA No 204 and Clark Builders and Stantec Consulting Ltd v GO Community Centre , 2019 ABQB 706 at paras 258 ff; and in other cases, it is the legal result of a set of facts that provides the fact that starts the clock, citing Currie v Craig , 2018 ABQB 46 at paras 45 ff. [ 26 ] The Master held that this case was much more like Currie than HOOPP and Clark , and that until the Court of Appeal decision, no rational person could have thought that an action was necessary.

He reasoned that in cases where the facts have to be evaluated in accordance with a legal test, the law cannot expect a potential litigant in the position of AWN to be smarter than half of the judges who heard the motions to strike for delay. Standard of Review [ 27 ] The standard of review of the Master's decision is correctness: Bahcheli v Yorkton Securities Inc , 2012 ABCA 166 . Argument Ackroyd

[ 28 ] Ackroyd submits that - at the latest - the filing of the second Rule 4.33 application on April 14, 2014 gave rise to potential losses of which AWN was aware; the details of Ackroyd's conduct are the facts at issue in the professional negligence action and that conduct had ended by April 2014. [ 29 ] Ackroyd asserts that s. 3(1)(

a) of the Act is clear that the limitation period starts to run at the time when the claimant first gained the requisite knowledge. There is no requirement that the requisite knowledge has to be consistently held over the entire two-year period in order for it to expire, nor is there any provision for “removal” of the injury so as to re-set the limitation clock. [ 30 ] Ackroyd argues that HOOPP is analogous and binding. In HOOPP , the application to strike was refused, on appeal the matter was remitted for reconsideration, the claim was then dismissed and the dismissal was upheld on appeal.

Like a Rule 4.33 application, the effect of a mandatory arbitration clause is not always clear.

Ackroyd says HOOPP stands for proposition that a decision on a dispositive motion, final or otherwise, is not required in order to start the limitation clock for claims against counsel where counsel’s conduct is implicated in the dispositive motion and the plaintiff has received legal advice that there is at least a possibility the application will succeed. [ 31 ] Ackroyd argues that the facts in Currie v Craig , 2018 ABQB 46 are not analogous to those in the present case, as there could be no action at all on the promissory note in that case until the mortgage was discharged.

Further, the injury for non-payment under the promissory note was the same as the injury under the mortgage.

As a claim had been brought for that debt in time, the application to amend was not out of time. [ 32 ] Ackroyd further submits that the Supreme Court’s “plausible inference” test recently enunciated in Grant Thornton LLP v New Brunswick , 2021 SCC 31 is analogous to Alberta’s statutory requirement. [ 33 ] Ackroyd cites examples of other cases where uncertainty as to the legal outcome did not suspend the limitation period or stop it from running ( Sosnowski v MacEwen Petroleum Inc , 2019 ONCA 1005 , Gravelle (CodePro Manufacturing) v Denis Grigoras Law Office , 2018 ONCA 396 , Ewing v Allen , 2015 ABQB 264 ) and other cases in which parallel proceedings in other forums were held not to forestall the commencement of limitation periods ( Fitzpatrick v College of Physical Therapists of Alberta , 2018 ABQB 989 , aff’d 2020 ABCA 164 , Capital Power PPA Management Inc v TransAlta Corporation , 2018 ABQB 1036 , Richards v Richards , 2019 ABQB 908 ). [ 34 ] As for any suggested inability to proceed, Ackroyd submits that AWN’s professional negligence claim for failing to advance the land claim would not be an attempt to impugn Germain J.’s order, as AWN claimed compensation for effects extending beyond mere dismissal of the land claim, such as costs associated with changing counsel and defending the Rule 4.33 motions.

Further, Germain J.’s decision was appealed within 30 days and therefore AWN could not rest content that its claim was safe from being struck.

Ackroyd opines that AWN could have attempted to negotiate a standstill agreement with it, or filed a placeholder claim on November 13, 2015 and wait the full year to serve it as permitted under the Rules. [ 35 ] From a policy perspective, Ackroyd argues that the approach advocated by AWN would encourage a plaintiff to wait as long as possible after a dispositive motion is filed in the hope of receiving a favourable decision, and would lead to uncertainty as to when exactly filing of the claim is warranted.

AWN [ 36 ] AWN argues that the appropriate approach is to start from the date when the claim was filed and look back to determine whether all the requisite factors were present for more than two years prior to that date. AWN submits its claim against Ackroyd was not warranted until the Court of Appeal overturned Germain J.’s decision and dismissed the land claim as there was no serious injury until that time. [ 37 ] AWN concedes that it knew when it was served with Canada's Rule 4.33 application that there was a question as to whether the land claim had been significantly advanced.

However, that application involved a matter of mixed fact and law requiring a highly contextual and fact driven analysis. Once Germain J. issued his decision, AWN did not know the negligence claim was warranted as there were no losses in relation to the land claim until it was actually dismissed. Germain J. rendered his decision prior to when the limitation period would have expired under Ackroyd’s analysis.

The functional effect of adopting Ackroyd’s approach would be to significantly shorten the limitation period in this case. [ 38 ] AWN argues that s. 3(1)(a)(iii) requires a highly contextual cost-benefit analysis, encompassing a wide range of considerations, including that: the costs and strains of litigation would be overwhelming to the claimant, the possible damages recoverable would be minimal or speculative at best, and other personal circumstances combine to make it unfeasible to initiate an action: Clark at para 261ff, Gayton v Lacasse , 2010 ABCA 123 at para 30 . [ 39 ] AWN submits that the case is very similar to Currie in which both a master and the justice on appeal found that the mortgagee could have amended his claim to plead the replacement note in the alternative, but that such an amendment was not warranted until the master’s order was reversed on appeal at which point the limitation on the replacement note began to run. [ 40 ] AWN argues that filing the negligence claim while Germain J.’s order was in force would have been inconsistent with the integrity of the adjudicative system.

That order was binding upon the parties until it was overturned, and it was not possible to second guess this decision in collateral proceedings. The notices of appeal raised a possibility that Germain J.’s order would be set aside, but that was entirely speculative until it occurred.

The suggestion that AWN could have pursued other options - such as negotiating a standstill agreement, or filing a placeholder claim - underscore that the negligence claim could not be litigated while Germain J.’s order was in force. [ 41 ] AWN distinguishes HOOPP as there was no binding order in that case within the limitation period that avoided the key injury and rendered the claim unwarranted while that order was in force. Further, AWN says that the question in HOOPP as to whether or not

the arbitration was mandatory was not as factually complex as the question on the Rule 4.33 applications. AWN submits that thearguments in HOOPP almost entirely concerned when HOOPP had sufficient knowledge of the injury, whereas the question at the heartof the present case is whether or not a proceeding was warranted.

In Sosnowski, the related litigation did not address the central issue inthe civil claim, nor was a binding order made within the asserted limitation period that effectively precluded bringing the claim.Similarly, the decisions in Ewing and Gravelle did not address whether or when the injury warranted bringing a proceeding. InFitzpatrick, the findings of the Court of Appeal were not a necessary fact or part of the plaintiffs' claims. Capital Power did not involve abinding court judgment determining that no injury had occurred and effectively precluding the claim.

The plaintiff in Richards knew orought to have known upon receiving a letter that he would be indebted to the CRA unless he succeeded in his appeals, which he failed todo. [42] AWN cites various cases where claims were found to be warranted only when certain facts were clear: Points West LivingRed Deer Inc v Rockliff Pierzchajlo Kroman Architects Ltd, 2021 ABQB 589; Winmill v Woodstock (Police Services Board), 2017ONCA 962. [43] AWN also submits that its negligence claim was not warranted while AFN sought to resolve the potential problem through aneffective judicial process, citing Ontario cases: Presidential MSH Corp v Marr, Foster & Co LLP, 2017 ONCA 325, Brown v Baum,2016 ONCA 325, Independence Plaza 1 Associates, LLC v Figliolini, 2017 ONCA 44, Fercan Developments Inc v Canada (AttorneyGeneral), 2021 ONCA 251. [44] In terms of policy, AWN argues that its approach achieves a balance between not allowing a cause of action to linger and notrequiring lawsuits to be commenced prematurely.

Issues A Limitations [45]

Section 3 of the Limitations Act, RSA 2000, c L-12 provides in part: 3(1) …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. 1.

When did AWN know, or ought it to have known, that the injury for which it sought a remedial orderhad occurred? [46] Since the Master’s decision, the Supreme Court has issued its decision in Grant Thornton LLP v New Brunswick, 2021 SCC31. The Court held that the standard to be applied in determining whether a plaintiff had the requisite degree of knowledge to discover aclaim under s. 5(2) of the Limitation of Actions Act, SNB 2009, c.

L-8.5 and thereby trigger the limitation was whether the plaintiff hadknowledge, actual or constructive, of the material facts upon which a plausible inference of liability on the defendant's

part could bedrawn. [47] The Court noted at para 35 that s. 5 of the New Brunswick legislature expressly modeled s. 5 on similar limitation provisionsfound in Ontario, Saskatchewan and Alberta, all of which have been found to codify the common law rule of discoverability, citing DeShazo v Nations Energy Co, 2005 ABCA 241 at para 26. [48] The Court further observed at para 46 that the plausible inference of liability requirement ensures that the degree ofknowledge needed to discover a claim is more than mere suspicion, while ensuring the standard does not rise so high as to requirecertainty of liability or "perfect knowledge" or "perfect certainty", citing De Shazo at para 31 and Hill v South Alberta LandRegistration District (1993), 1993 ABCA 75 , 8 Alta LR (3d) 379, at para 8. [49] The Court at para 46 cited HOOPP Realty Inc v Emery Jamieson LLP, 2018 ABQB 276 at para 213 for the well-establishedprinciple that a plaintiff does not need to know the exact extent or type of harm it has suffered, nor the precise cause of its injury, in orderfor a limitation period to run.

It concluded at para 48 that a plaintiff alleging negligence does not need knowledge that the defendantowed it a duty of care or that the defendant's act or omission breached the applicable standard of care, and that finding otherwise couldhave the unintended consequence of indefinitely postponing the limitation period as knowledge of these things is often only discernablethrough the litigation process. [50] These statements are in keeping with other Alberta appellate jurisprudence. In HOOPP Realty Inc v Emery Jamieson LLP,

2020 ABCA 159 at para 57, the Court of Appeal held that discovery relates to the facts, not the applicable law or any assurances ofsuccess, nor does discoverability require perfect knowledge or certainty that the claim will succeed. It cited Sun Gro HorticultureCanada Ltd v Metal Building Sales Inc, 2006 ABCA 243 at para 11 for the proposition that the Limitations Act is focused onknowledge of an injury, not the cause of action, a statement reiterated in Geophysical Service Inc v Encana Corp, 2018 ABCA 384 atpara 31 and Saito v Lester Estate, 2021 ABCA 179 at para 21.

The Court in Boyd v Cook, 2013 ABCA 27 at para 16 said that the Actasks whether the injury (assuming liability) warrants bringing a proceeding; it does not ask whether the particular statement of claim suitwhich later was finally issued had warranted filing at the relevant time; it asks about whether some court proceeding had been warranted.In Fitzpatrick at para 37, the Court held that limitation periods begin to run even though the effects of an injury may not have been fullycrystallized.

In Gratton v Shaw, 2011 ABCA 175 at para 22, the Court cited with approval the chambers judge’s conclusion that thematerial facts known to the plaintiff who sued his lawyer amounted to much more than a mere suspicion that a claim might exist becauseclearly the plaintiff was aware that the defendant had acted for him and the full particulars of how the defendant carried out his retainerwere known. [51] It is clear from the record that AWN had knowledge, actual or constructive, at the latest by April 2014 of the material factsupon which a plausible inference of liability on the defendant's

part could be drawn, being the failure to take steps to advance thelitigation over a period of time. AWN knew Ackroyd had acted for AWN and the full particulars of how it carried out the retainer.Neither Germain J.’s decision, nor the Court of Appeal’s decision, changed those facts. Therefore, the same “injury” was at issue bothbefore and after the Rule 4.33 applications and appeals. 2.

When did AWN know, or ought it to have known, that the injury was attributable to the conduct ofAckroyd? [52] There is no dispute that by April 2014, AWN knew that it was Ackroyd who had failed to take steps over a period of time. 3. When did AWN know, or ought it to have known, that the injury, assuming liability on the part ofAckroyd, warranted bringing a proceeding? [53] The Alberta Limitations Act requires the plaintiff to assume liability on the part of the defendant.

It also requires knowledgethat the injury “warrants bringing a proceeding”. [54] Despite the Supreme Court’s comments in Grant Thornton regarding Alberta’s codification of the common law rule ofdiscoverability, s. 5 of the New Brunswick Limitation of Actions Act, SNB 2009, c L-8.5 does not expressly require the plaintiff toassume liability on the part of the defendant, nor does it require, for the limitation period to be triggered, knowledge that the injury“warrants bringing a proceeding”. [55] Ontario’s Limitations Act, 2002, SO 2002, c 24, Sch B is also distinguishable from Alberta’s Act.

It does not expressly requirethe plaintiff to assume liability on the part of the defendant. Section 5(1)(a)(iv) provides that a claim is discovered upon knowledge ofcertain things, including that “having regard to the nature of the injury, loss or damage, a proceeding would be an appropriate means toseek to remedy it”.

This might be construed as being similar to Alberta’s requirement that the plaintiff have knowledge that the injurywarrants bringing a proceeding. [56] G Mew in The Law of Limitations (3rd ed) Markham, Ontario: LexisNexis Canada, 2016 at § 6.131 notes that only Ontariohas a provision suspending the running of the limitation period where parties engage an independent third party to resolve the claim orassist in resolving it (s. 11). [57] Alberta’s Act expressly sets out certain facts or conditions that will suspend the running of a limitation period.

There is noexpress provision for suspension as suggested by AWN in this case. It has been held that reliance on the possible efficacy of otherprocedures does not have the effect of delaying commencement of the limitation period: Weir-Jones Technical Services Inc. v PurolatorCourier Ltd, 2019 ABCA 49 at para 56 and cases cited therein. [58] It is clear that from at least April 2014, AWN knew of the injury being the full particulars of how Ackroyd carried out theretainer and the consequent delay in advancing the litigation, and knew that both Canada and Alberta were moving to dismiss the actionunder Rule 4.33.

It had received opinions from both Ackroyd and JFK, as reflected in communications regarding the lawsuit, as toliability, the chances of success on the Rule 4.33 applications and types of anticipated losses. [59] AWN says that Germain J.’s decision changed AWN’s knowledge that a proceeding was warranted, distinguishing HOOPPon the basis that by the time HOOPP finally filed its claim against the lawyers, the strike application had not yet been heard at the firstinstance: HOOPP, 2018 ABQB 276 at paras 17 and 112-119. [60] Novak v Bond, (SCC), [1999] 1 SCR 808 has been cited by Alberta courts in relation to the “warrantsbringing a proceeding” requirement.

In that case, the plaintiff’s physician told her not to worry about a lump in her breast. She wasdiagnosed with breast cancer and had a mastectomy. Her cancer recurred and spread four years later and she started an action a year afterthat. The majority interpreted a the somewhat convoluted postponement provision in s. 6(4)(3)(

b) of the BC Limitation Act, RSBC 1996,c 266 which took the person's own interests and circumstances into account, in determining when the person ought to be able to bring anaction.

The majority concluded that that delay beyond the prescribed limitation period was only justifiable if the individual plaintiff'sinterests and circumstances were so pressing that a reasonable person would conclude that, in light of them, the plaintiff could notreasonably bring an action at the time his or her bare legal rights crystallized. [61] In JN v Kozens, 2004 ABCA 394, the Court of Appeal summarized the reasoning in Novak: 14 In Novak v.

Bond, supra, Major, J. noted that the critical time is one "at which a reasonable person would consider that someone inthe plaintiff's position, acting reasonably in light of his or her own circumstances and interests, could - not necessarily should - bring an

action. This approach is neither purely subjective nor purely objective.

The question becomes: 'in light of his or her own circumstancesand interests, at what point could the plaintiff reasonably have brought an action?'" (at para. 81) McLachlin, J. (as she then was),speaking for the majority in the same case, also espoused a variant of a "restrictive subjective/objective approach" that takes into accountthe plaintiff's "important and substantial interests." (at para. 38), adding that "[p]urely tactical considerations have no place in thisanalysis." (at para. 81) Time begins to run, she explained, when, "in light of the plaintiff's particular situation, the bringing of a suit isreasonably possible, not when it would be ideal from the plaintiff's perspective to do so." (at para. 84) 15 McLachlin, J. in Novak provided the following as examples of when a plaintiff may not reasonably be able to bring an action whenviewed objectively but with regard to the plaintiff's own situation: (

a) the costs and strains of litigation would be overwhelming to him or her, (

b) the possible damages recoverable would be minimal or speculative at best, or (

c) other personal circumstances combined to make it unfeasible to initiate an action. [62] Alberta Courts following Novak found relevant factors relating to whether an action was “warranted” in situations where theunderlying facts of the claim similarly resulted in some personal vulnerability or disadvantage on the part of the plaintiff: Gayton vLacasse, 2010 ABCA 123, in which a domestic assault resulted in the plaintiff’s permanent brain injury; Kozens, 2004 ABCA 394, acase of historical sexual assault and fraudulent concealment; and Photinopoulos v Photinopoulos, 1988 ABCA 352 , [1988] 54DLR (4th) 372 (Alta CA), a case involving fraudulent concealment in a suit where the wife was alleged to have arranged an assault onthe husband by masked assailants. [63] Courts in other cases have focused on economic factors, holding that whether an injury warrants bringing an action dependson a cost-benefit analysis in relation to potential litigation (for example, as discussed in Boyd v Cook, 2012 ABQB 284 at paras 42-44(Master), and on appeal 2013 ABCA 27; Environmental Metal Works Ltd v Murray, Faber & Associates Inc, 2013 ABQB 479 at para65, Clark at para 261ff and cases cited therein), including whether there existed subjectively and objectively relatively serious harm (forexample, Toronto Dominion Bank v Letendre, 2014 ABCA 232 at para 25).

Some of these cases cite comments in the Alberta LawReform Institute’s Limitations, Report No. 55 (December 1989). [64] In HOOPP Realty Inc v Emery Jamieson LLP, 2020 ABCA 159 at paras 53-59, the Court of Appeal discussed HOOPP’sposition that there was merely a suspicion that Clark Builders intended to file an application to strike HOOPP's action and that theapplication might result in injury to HOOPP, that the chance that Clark Builders' application would not be successful militated againstbringing an action, and that the injury it suffered amounted to "economic loss" only when the Clark Builders action was struck.

TheCourt at para 56 cited Novak, holding that knowledge of when an injury “warrants” bringing a proceeding speaks not to the legalstrength of a plaintiff's case for recovery, but to the circumstances of the plaintiff. The Court noted that HOOPP's arguments focused onthe legal consequences of the facts known, not the facts, and observed that discovery relates to the facts, not the applicable law or anyassurances of success, nor does not require perfect knowledge or certainty that the claim will succeed.

It also noted that HOOPP had notput forward any personal circumstances which were serious, significant and compelling that made it unfeasible to initiate an actionearlier. Waiting until the Clark Builders action was actually struck focused on the strength of the claim and tactical concerns that haveno place in the "warrants bringing a proceeding" analysis. [65] AWN submits that HOOPP is distinguishable as Germain J.’s order essentially truncated the limitation period, and that thepresent case is very similar to Currie.

While Hunt McDonald J. did find in that case that the limitation on the replacement note did notstart to run until the mortgage was discharged, the plaintiff had been diligent in suing the defendants within the limitation period on thefacts known to him that gave rise to the injury. When the mortgage was discharged on appeal, the legal basis for his claim shifted and hesought to amend his claim. Hunt McDonald J. would have granted leave to amend the claim in any event.

Therefore, the result in thatcase is not inconsistent with the approach whereby it is the facts that give rise to the action, not the legal cause of action or legaloutcome. The Court of Appeal has never commented on the limitations analysis in Currie, including the potential impact of HOOPP onits precedential value. [66] Limitations statutes serve important goals of promoting finality and certainty in legal affairs, ensuring the reliability ofevidence, and promoting diligence in encouraging litigants to pursue claims with reasonable dispatch: Independent Plaza 1 AssociatesLLC v Figlioni, 2017 ONCA 44 at para 19.

The purpose of the rule of reasonable discoverability (including that the injury warrantsbringing a proceeding) introduces an important element of fairness into the mix: it ensures that plaintiffs have sufficient awareness of thefacts to be able to bring an action: KLB v British Columbia, 2003 SCC 51 at para 55, cited with approval in Thornton at para 48. [67] In this case, unlike the situation in Currie, AWN was not diligent in suing Ackroyd on the facts known to it, being thatAckroyd was responsible for delay in advancing the action which had resulted in a change of law firms, costs associated with defendingthe Rule 4.33 applications, and potential dismissal of the land claim. [68] On the reasoning in HOOPP, which similarly concerned the limitation with respect to a professional negligence action againstlawyers, if Germain J.’s order had issued after April 2016, the limitation would have expired in the interim. [69] AWN says that Germain J.’s decision had the practical effect of preventing AWN from being able to commence an action.AWN speculates that such an action would have been met with an application to strike based on Germain J.’s decision, it would haveimpugned Germain J.’s order which was binding, and in any event, no progress on such a claim could be made until the Court ofAppeal’s decision. [70] The Act should be interpreted so as to promote diligence, while avoiding unfairness. [71] On Ackroyd’s proposed analysis, AWN could have filed the negligence action as late as April 2016.

Rule 3.26(1) requiresservice on the defendant within one year of filing, which in this scenario would have been April of 2017, well after the Court of Appeal’sdecision.

[ 72 ] There is nothing in the record before the Court, nor was it argued, that the personal circumstances or interests of AWN had the practical effect of preventing it from being able to commence an action. AWN knew at least by April 2016 of the facts underlying its claim. AWN knew within the appeal period from Germain J.’s decision that Ackroyd was continuing to seek dismissal of the land claim for delay. The determination as to whether or not to file a professional negligence claim by April 2016 amounted to a strategic decision. AWN ought to have known by that time that the injury, assuming liability on the part of Ackroyd, warranted bringing a proceeding. B

Summary Dismissal [ 73 ] Rule 7.3 of the Alberta Rules of Court , Alta Reg 124/2010 provides in part: 7.3(1) A party may apply to the Court for

summary judgment in respect of all or part of a claim on one or more of the following grounds: … (

b) there is no merit to a claim or part of it… [ 74 ] Section 3(1) of the Limitations Act , RSA 2000 c L-12 mandates that a claimant seek a remedial order within two years of these requirements being met. If the claim is not brought within that time, the defendant has an absolute defence upon pleading the Act . [ 75 ] Ackroyd submits that as AWN’s claim was not filed until October 27, 2016, more than two years after the second Rule 4.33 application was filed, the Limitations Act , RSA 2000 c L-12 provides a complete defence; the record is clear, and there are no uncertainties or other factors in this case that raise a genuine issue for trial. Therefore,

summary judgment under Rule 7.3 is appropriate. [ 76 ] AWN concedes that in the event the Court finds the limitation period expired, there are no facts in dispute that would militate against a

summary dismissal in this case. [ 77 ] Therefore, a disposition that is fair and just to both parties can be made on the existing record: Hryniak v Mauldin , 2014 SCC 7 . [ 78 ]

Summary dismissal is granted under Rule 7.3(1)(b). Conclusion [ 79 ] The appeal is allowed. Heard on the 10 th day of September, 2021. Dated at the City of Edmonton, Alberta this 13 th day of September, 2021. J. A. Fagnan J.C.Q.B.A. Appearances: Tim Dickson Naomi Moses for the Plaintiff/Respondent David Marshall Robyn Graham for the Defendants/Applicants