The court ruled that the plaintiff filed the claims outside the applicable limitation period
The Alberta Court of King's Bench dismissed a claim against former legal counsel in a case involving alleged negligence during a foreclosure over a forged mortgage.
The court ruled that the plaintiff filed the claims outside the applicable limitation period under the Alberta Limitations Act. The plaintiff initially retained the defendants, Francis Price and the law firm Reynolds Mirth Richards & Farmer, to pursue a foreclosure action involving a forged mortgage. The case against the borrower's surviving spouse, Lori Schenk, was dismissed in 2019 after the court found the mortgage invalid. Following the dismissal, the plaintiff pursued appeals, ultimately rejected in 2020 by the Alberta Court of Appeal.
The plaintiff amended their claim multiple times, including a January 2022 amendment to add the lawyers as defendants, alleging professional negligence. The defendants argued for summary dismissal, claiming the s. 3(1) Limitations Act barred the claim by imposing a two-year deadline from when the claimant knew or should have known of an injury caused by the defendant.
The Court of King's Bench determined that the limitation period started in September 2019, when it dismissed the initial foreclosure action. The judge ruled the plaintiff should have known at that time that any negligence on the lawyers' part warranted legal action. The court rejected the plaintiff's argument that the limitation period began after the appeals process concluded in October 2020.
Additionally, the plaintiff claimed that s. 6 of the Limitations Act, which permits amendments to pleadings to add claims or defendants under certain conditions, should save the claims. The court ruled that the claim against the lawyers failed to meet the "related to" standard for amendments because the professional negligence allegations lacked a direct connection to the original claims against the borrower and others.
Ultimately, the court granted the lawyers' application for dismissal, emphasizing the importance of balancing timely litigation with avoiding premature lawsuits.
