In Nipshank v Trimble, 2014 ABQB 120 (the “Decision”), the Court of Queen’s Bench assessed whether or not Section 3(1)(a)(iii) of the Limitations Act (Alberta) (the “Act”) delayed the running of the limitations period until a plaintiff had secured legal advice about her claim. This Section states that a plaintiff is barred from bringing a claim unless they do so within two years after the date on which the plaintiff knew, or in the circumstances ought to have known, that the injury, assuming liability on the part of the defendant, warrants bringing a proceeding.

Nipshank and Trimble were in a common-law relationship from 1994 until 2007 when Nipshank moved out of the home. Nipshank did not seek legal advice until 2010 when she discovered that she had to file a claim to preserve her interests in the joint property and assets. Nipshank did not file a claim until 2012. Trimble brought a summary judgment application to dismiss Nipshank’s claim.

Analysis

The court discussed that Section 3(1)(a)(iii) of the Act speaks not to the legal strength of the plaintiff’s case, but rather to the circumstances of the plaintiff herself. The court reinforced that this analysis is neither subjective nor objective, but rather, the test is: in light of all the circumstances and interests of the plaintiff, at what point would she reasonably have brought an action?

In order to "delay" the two-year limitations clock from starting, a plaintiff must show that practical considerations arising from her own circumstances and interests made her reasonably unable to bring the action. The court provided the following examples that may satisfy this requirement:

  1. where the costs and strains of litigation would overwhelm the plaintiff;
  2. where the prospect for recovery is minimal or speculative; or
  3. where other personal circumstances combined make it unfeasible to commence the action.

Nipshank was unable to prove that she fell into any of the above categories and therefore her failure to seek timely legal advice did not delay the start of the limitations clock and therefore her claim was struck.

Time is of the Essence: The Importance of Promptly Seeking Legal Advice

In Alberta, the general rule is that you have two years from the date that you knew, or (in the circumstances) ought to have known, that your claim arose. The Decision notes that limitations periods are designed as an "incentive" for plaintiffs to bring their claim in a timely fashion and reinforces that plaintiffs are expected to act diligently in exercising their rights. Although the Act enumerates slightly modified circumstances, such as in Section 3(1)(a)(iii), which may permit some degree of flexibility with respect to the running of the limitations clock, a successfully pleaded limitations defence is an absolute and complete bar to a claim. This Decision demonstrates the harsh reality of missing a limitations period and underscores the importance of seeking prompt legal advice.