Provincial order addressed broad range circumstances during pandemic, including court shutdown
A provincial order suspending limitation periods during the pandemic was mandatory and applied to the Alberta Rules of Court without discretion, the Alberta Court of Appeal has ruled
In O’Chiese First Nation v. DLA Piper (Canada) LLP, 2022 ABCA 197, O’Chiese First Nation sued their long-time lawyers for several accounts amounting to $530,000.
Rule 10.10 of the Alberta Rules of Court, Alta Reg 124/2010 requires that a lawyer’s charges may not be reviewed if one year has passed after the account was sent to the client. In this case, the accounts were rendered more than one year prior to the review application, but the review application was made within the time limit prescribed in the rule.
The claims were dismissed by the review officer and the chambers judge for being allegedly filed out of time.
On appeal, O’Chiese argued that their claim was filed within the time limit given the suspension of limitation periods set out in Alberta Ministerial Order No. 27/2020 (MO 27/2020), which suspended limitation periods from March 17 to June 1, 2020.
The appellate court agreed.
“The emergency-based ‘Henry VIII’ authority manifested by the MO 27/2020 was plainly intended to address the unprecedented circumstances in Alberta during the early stages of the COVID-19 pandemic, and which included the shutdown of Alberta’s trial courts,” said the court.
Contrary to the lower court’s decisions, the suspension of limitation periods under MO 27/2020 was mandatory and applied to the one-year time limit under Rule 10.10 of the Alberta Rules of Court, said the court. This addressed the immediate problem of limitation periods continuing to run despite litigants not having access to courts, said the appeal court.
In light of the pandemic, the appellate court ruled that the Alberta Minister of Justice worded the MO to address a widespread sweep of time limits and limitation periods, considering the purposeful inclusion of the Court of Queen's Bench Act, RSA 2000, c C-31 and the Judicature Act, RSA 2000, c J-2.
While the review officer properly concluded that the MO applied, he erred in concluding that it granted him discretion to choose to grant the extension, said the court.
As such, the appellate court allowed the appeal and set aside the judgments and costs award against O’Chiese.
