StraightVac Services Ltd. v Sunshine Oilsands Ltd., 2024 ABCA 8

In the Court of Appeal of Alberta Citation: StraightVac Services Ltd. v Sunshine Oilsands Ltd., 2024 ABCA 8 Date: 20240110 Docket: 2201-0184AC Registry: Calgary Between: StraightVac Services Ltd. Appellant - and - Sunshine Oilsands Ltd. Respondent - and - Zhengwei International Investment and Management Co., Limited Not a Party to the Appeal _______________________________________________________ The Court: The Honourable Chief Justice Ritu Khullar The Honourable Justice Jo'Anne Strekaf The Honourable Justice Bernette Ho _______________________________________________________ Memorandum of Judgment

Appeal from the Order by The Honourable Justice S.M. Bensler Dated the 11th day of July, 2022 Filed on the 28th day of July, 2022 ( Docket: 2101 12815) _______________________________________________________ Memorandum of Judgment _______________________________________________________ The Court: I. Introduction [ 1 ] This appeal is about the

interpretation of Ministerial Order 27/2020 issued during the COVID-19 pandemic, which suspended the running of the limitation period under s 3(1)(

a) of the Limitations Act , RSA 2000, c L-12 . We conclude that the Ministerial Order suspended s 3(1)(

a) limitation periods that were running while the Ministerial Order was in force regardless of when the action commenced. [ 2 ] A chambers judge interpreted the Ministerial Order more narrowly and, as a result, summarily dismissed the appellant’s action. This was an error, and the appeal is allowed. II. Background A. StraightVac’s Action [ 3 ] In April 2019, the appellant, StraightVac Services Ltd, entered into an agreement with the respondent, Sunshine Oilsands Ltd, and a shareholder of Sunshine, Zhengwei International Investment and Management Co. Ltd, to settle a dispute about unpaid invoices.

Under the settlement agreement, Zhengwei had a duty to transfer shares in Sunshine to StraightVac, the number established by a formula in the agreement. [ 4 ] Zhengwei transferred shares, but StraightVac was not satisfied with the number transferred. StraightVac took the position that the formula in the settlement agreement contained a mistake and demanded further shares. [ 5 ] On October 9, 2019, Sunshine told StraightVac that no further shares would be transferred. October 9, 2019 is the latest date on which StraightVac learned the facts that started the two-year limitation period under s 3(1)(

a) of the Limitations Act . [ 6 ] Two years and six days later, on October 15, 2021, StraightVac filed a statement of claim seeking rectification of the settlement agreement or damages for breach of contract against Sunshine and Zhengwei. Sunshine filed a statement of defence asserting, among other things, that it was immune from liability because StraightVac filed its action out of time. B. The COVID-19 Pandemic [ 7 ] The COVID-19 pandemic reached Alberta in March 2020. On March 17, 2020, the government declared a state of public emergency under s 52.1(1) of the Public Health Act , RSA 2000, c P-37 , which came to an end on June 15, 2020. [1] [ 8 ]

Section 52.1(3) of the Public Health Act authorized the Minister responsible for an enactment to make orders to suspend its application if satisfied that its application was not in the public interest. [ 9 ] On March 30, 2020, exercising that authority, the Minister of Justice and Solicitor General issued Ministerial Order 27/2020 retroactive to March 17, 2020. There is no issue in this appeal about its validity, only its meaning. The relevant parts of the Ministerial Order stated:

1. Limitation periods are suspended in the enactments under Appendix A from March 17, 2020 to June 1, 2020. 2. Any period of time within which any step must be taken in any proceeding or intended proceeding is suspended subject to the discretion of the court, tribunal, or other decision-maker from March 17, 2020 to June 1, 2020. 3. For clarity, the limitation period or period of time resumes running on June 1, 2020 and the temporary suspension period shall not be counted.

Appendix A includes the Limitations Act . [ 10 ] The Ministerial Order lapsed by its own terms on June 1, 2020, before StraightVac filed its statement of claim. [ 11 ] On March 20, 2020, the Court of Queen’s Bench pronounced Master Order #2 Relating to the Court’s Response to the COVID-19 Virus , later replaced by Master Order #3 on April 21, 2020. The relevant parts of the Master Orders can be characterized as the exercise of discretion referred to in

part 2 of the Ministerial Order : All filing deadlines under the Alberta Rules of Court , including Rule 13.41(4) are suspended ... with the exception of those Rules applicable to the commencement of proceedings , including originating applications. (emphasis added). C. Application for

summary dismissal [ 12 ] On June 20, 2022, Sunshine applied to summarily dismiss StraightVac’s action on the ground that it was commenced more than two years after the start of the limitation period in s 3(1)(

a) of the Limitations Act . The application was heard in morning chambers. [ 13 ] StraightVac argued that the Ministerial Order suspended the running of the s 3(1)(

a) limitation period for 75 days (between March 15 and June 1, 2020) and that it filed its statement of claim before expiry of the extended limitation period. [ 14 ] Sunshine argued that the Ministerial Order did not suspend the running of the limitation period. It made two alternative arguments for that position at the oral hearing. First, the Ministerial Order did not suspend the limitation period in s 3(1)(

a) of the Limitations Act at all, in any circumstances. Alternatively, if it did, it did so only in respect of actions that had been commenced before the Ministerial Order lapsed on June 1, 2020. [ 15 ] The chambers judge granted

summary dismissal of StraightVac’s action but gave no reasons. [ 16 ] StraightVac now appeals the

summary dismissal decision to this Court. III. Issue on appeal [ 17 ] StraightVac argues that the chambers judge erred in concluding that the Ministerial Order did not suspend the applicable s 3(1)(

a) limitation period for 75 days. This is a question of law attracting a standard of review of correctness. IV. Analysis [ 18 ]

Part 1 of the Ministerial Order states that “Limitation periods are suspended in the enactments under Appendix A from March 17, 2020 to June 1, 2020”. The Limitations Act is an enactment included in Appendix A, and s 3(1)(

a) of the Limitations Act undoubtedly sets out a “limitation period”. Thus,

Part 1 of the Ministerial Order suspended the limitation period in s 3(1)(

a) between March 17, 2020 to June 1, 2020 for some actions at least. [ 19 ] Sunshine argues that this

interpretation of the Ministerial Order is too simple. It offers a more complicated

interpretation according to which the Ministerial Order (together with the Master Orders ) did not suspend the running of the s 3(1)(

a) limitation period at all. The argument has two key steps: Step 1: Parts 1 and 2 of the Ministerial Order , together, made suspension of the s 3(1)(

a) limitation period subject to the court’s discretion. Step 2: The Court of Queen’s Bench exercised that discretion when it issued the Master Orders that exempted limitation periods (including the s 3(1)(

a) limitation period) from suspension. In our view, both steps are incorrect. [ 20 ] At the first step, Sunshine argues that

Part 1 of the Ministerial Order is qualified by

Part 2. The two parts appear to be distinct rules –

Part 1 suspends “limitation periods” without qualification, and

Part 2 suspends “any period of time within which any step must be taken in any proceeding” subject to the court’s discretion. Sunshine argues that the appearance is misleading. It says that

Part 1 and

Part 2 are actually parts of a single rule because “limitation periods” in

Part 1 are also “period[s] of time” referred to in

Part 2. As a result,

Part 2 subjects the suspension of “limitation periods” to the court’s discretion. Sunshine says that

Part 2 must qualify

Part 1 or else

Part 2 is wholly or partly redundant. [ 21 ] There are several problems with this analysis.

i. It is inconsistent with this Court’s decision in O’Chiese First Nation v DLA Piper (Canada) LLP , 2022 ABCA 197 at paras 9 and 13 , which held that the suspension of “limitation periods” by the Ministerial Order is mandatory (not subject to the court’s discretion). ii. It ignores the textual difference between

Part 1 and

Part 2. If the Minister intended the suspension of “limitation periods” in

Part 1 to be subject to the court’s discretion in

Part 2, the Ministerial Order could have said so directly. Why use different descriptions in Parts 1 and 2 (“limitation periods” and “period[s] of time within which any step must be taken”) if they are to refer to the same thing? No answer is apparent, and Sunshine provided none. iii. The redundancy objection fails.

Part 2 addresses some periods that are not “limitation periods” in

Part 1; for example, r 13.41(4)(

c) of the Rules , which sets a period for submitting a paper affidavit when the party has filed an electronic version, and the clerk has requested the original. iv. It ignores

Part 3 of the Ministerial Order which reinforces the

interpretation of

Part 1 by referring only to limitation periods.

Part 3 states that the limitation period “resumes running” on June 1, 2020 and the “temporary suspension period shall not be counted”. [ 22 ] The second step of Sunshine’s argument — the Master Orders exempted the s 3(1)(

a) limitation period from suspension — is demonstrably incorrect. The Master Orders suspended “all filing deadlines under the Alberta Rules of Court ... with the exception of those Rules applicable to the commencement of proceedings …”. They dealt with filing deadlines under Rules of Court and did not purport to suspend (or exempt from suspension) any time periods under the Limitations Act . This is as one would expect. The Court of Queen’s Bench did not have authority to issue a general order about the running of limitation periods under the Limitations Act . [ 23 ] In the alternative, Sunshine argues that even if the Ministerial Order suspends the s 3(1)(

a) limitation period, it only applies for actions commenced before the Ministerial Order lapsed on June 1, 2020. Since StraightVac issued the statement of claim on October 15, 2021, it does not benefit from the Ministerial Order . [ 24 ] We reject this

interpretation for the following reasons: i.

Part 1 of the Ministerial Order does not connect the suspension of limitation periods to the date actions are commenced. ii. The text of the Ministerial Order indicates that the Minister intended to suspend limitation periods for actions commenced after it lapsed.

Part 1 suspends limitation periods from March 17, 2020 to June 1, 2020.

Part 3 clarifies that a limitation period suspended by

Part 1 “ resumes running on June 1, 2020” (emphasis added). The only circumstance in which a limitation period can “resume running” after the Ministerial Order lapsed (June 1, 2020) is if the action has not been commenced by that date. iii. This Court has ruled that, given the extraordinary circumstances of the COVID-19 pandemic and the concern about the impact it would have on Albertans’ ability to take steps to preserve their rights, the Ministerial Order should be interpreted “purposively, and with a fair, generous and liberal” approach, resolving any ambiguities in favour of the claimant: O’Chiese at paras 10, 13. An

interpretation of the Ministerial Order that restricts the suspension of limitation periods to actions commenced before it lapsed on June 1, 2020 would frustrate that purpose. [ 25 ] In our view, the correct

interpretation of the Ministerial Order’s temporal reach is that it suspended the s 3(1)(

a) limitation period for 75 days only if that period was running while the Ministerial Order was in force. More precisely, the extension of 75 days applies if the period had started but not finished before the Ministerial Order came into force (March 17, 2020) or if the period started during its currency (March 17 – June 1, 2020). V. Conclusion [ 26 ] The two-year limitation period for StraightVac’s action began, at the latest, on October 9, 2019 and had not expired when the Ministerial Order came into force on March 17, 2020.

Therefore, the Ministerial Order suspended the limitation period between March 17, 2020 and June 1, 2020, a period of 75 days. StraightVac commenced its action within the extended limitation period. As a result, the chambers judge erred in law in summarily dismissing StraightVac’s action on limitation grounds. [ 27 ] Sunshine’s factum raised some additional grounds for summarily dismissing StraightVac’s action. They were not argued before the chambers judge, and were not properly before this Court, so we make no comment on them. [ 28 ] The appeal is allowed, and the

summary dismissal order is set aside. Appeal heard on September 13, 2023 Memorandum filed at Calgary, Alberta this 10th day of January, 2024

Khullar C.J.A. Strekaf J.A. Authorized to sign: Ho J.A. Appearances: J.M. Blanchard M. Bobawsky for the Appellant A.K. McLeod M. Riley for the Respondent