Embee Diamond Technologies Inc. Appellant (Respondent) v. I.D.H. Diamonds NV, 2017 SKCA 79

Court of Appeal for Saskatchewan Docket: CACV3058 Citation: Embee Diamond Technologies Inc. v I.D.H. Diamonds NV , 2017 SKCA 79 Date: 2017-09-19 Between: Embee Diamond Technologies Inc. Appellant (Respondent) And I.D.H. Diamonds NV Respondent (Applicant) Before: Ottenbreit, Caldwell and Ryan-Froslie JJ.A. Disposition: Appeal dismissed (orally) Written reasons by: The Honourable Mr. Justice Caldwell In concurrence: The Honourable Mr. Justice Ottenbreit The Honourable Madam Justice Ryan-Froslie On Appeal From: 2017 SKQB 79 , Saskatoon Appeal Heard: September 19, 2017 Counsel: Peter V.

Abrametz for the Appellant Jennifer D. Pereira for the Respondent Caldwell J.A. (orally): [ 1 ] Embee Diamond Technologies Inc. [Embee] appeals against the dismissal of its application before a Court of Queen’s Bench Chambers judge to strike or dismiss the claims of IDH Diamonds NV [IDH] on the basis they are statute-barred (see 2017 SKQB 79 ). The two issues in this appeal are: (

i) whether the Chambers judge erred by reversing the burden of proof with respect to the expiry of a limitation period under The Limitations Act , SS 2004, c L-16.1; and (ii) whether the Chambers judge erred in law in his

interpretation of the in writing and signed requirements under The Limitations Act and The Electronic Information and Documents Act, 2000 , SS 2000, c E-7.22. [ 2 ] The first of these issues arises because the Chambers judge wrote in his judgment: [15]

Section 18 of The Limitations Act sets out that the burden of proving a missed limitation period falls upon the claimant, in this case, Embee. This is either a palpable error of fact or an incorrect statement of the law in that it identifies the claimant as, and therefore places the burden of proof on, Embee. [ 3 ]

Section 18 of The Limitations Act provides: Burden of proof 18 If, in a proceeding, a limitation period is raised against a claimant, the claimant has the burden of proving that: (

a) the limitation period has not expired; or (

b) there is no limitation period that applies to the claim. [ 4 ] Although Embee had applied for an order dismissing or striking IDH’s claims, it was not the claimant in these proceedings.

Rather, since Embee had raised the s. 11 limitation period in its statement of defence (at paragraph 6), it fell to IDH, as the claimant, to prove the limitation period had not expired. [ 5 ] However, we find that nothing turns on this because the Chambers judge assessed the evidence before him in a way that neutralised the effect of the error and he correctly interpreted and applied the law to the facts as he found them, notwithstanding the misstatement as to who had held the burden of proof. [ 6 ] The question of whether the limitation period under s. 11 of The Limitations Act barred IDH’s claim turned on whether Embee had factually and legally acknowledged its indebtedness to IDH through a number of emails.

To answer this question, the Chambers judge assessed the whole of the evidence before him and determined Embee had in fact acknowledged the debt through emails it had sent to IDH.

The Chambers judge then turned to The Electronic Information and Documents Act, 2000 and the common law determine whether the electronic nature of the acknowledgement had satisfied the legal in writing and signed requirements for an acknowledgement under s. 11 of The Limitations Act , ultimately deciding that it had. [ 7 ] By approaching the evidence in this way, regardless of who had held the burden of proof, the Chambers judge properly adjudicated the issue before him.

In plain terms, that issue came down to what the evidence had established; and, in that regard, we find nothing that could undermine the Chambers judge’s findings of fact or the legal conclusions he drew on the basis of those facts. That is, regardless of who had held the burden of proof, the evidence before the Chambers judge undoubtedly established the facts necessary to conclude that the limitation period had not expired. As such, we find no reason to set aside the Chambers judge’s decision under the first

ground of appeal. [ 8 ] As to the correctness of the law applied by the Chambers judge, which is the second ground of appeal, we find no error in the Chambers judge’s

interpretation and application of The Electronic Information and Documents Act, 2000 or in his identification and application of the common law principles engaged by the facts of this case. For the reasons given by the Chambers judge, we find no merit to the second ground of appeal. [ 9 ] The appeal is dismissed. IDH shall have its costs in the usual manner.