Limitation Refresher

In the recent decision Toney v Canada (Royal Canadian Mounted Police) rendered at the Court of King’s Bench of Alberta, Madam Justice E.A. Hughes reviewed limitation periods as they apply to personal injury claims.

This tragic case arose from a boating accident on September 27, 2008 that resulted in the death of a small child. The child’s family encountered difficulties with the boat and called the RCMP to assist. During the rescue, the rescue boat capsized and pinned the small child underneath causing her death. The remainder of the family and rescuers survived.

For the majority of claims, the Limitations Act in Alberta prevails and indicates that a civil claim must be filed within 2 years after the date on which the claimant first knew or ought to have known that a claim existed. However, in Marine situations, Justice Hughes accepted that this limitation period extended to 3 years. However, the Plaintiff’s in this case, being the family of the deceased child, filed the claim nearly five years after the incident. The reason provided by counsel for the family for the delay was that there was a federal inquiry ongoing with the result not known until mid-2011. Justice Hughes did not accept this argument as there was nothing stopping the claim from being filed while the federal inquiry was ongoing, if nothing else, to preserve the limitation period. As it was not done, the majority of the claim was struck, and costs would inevitably be ordered against the grieving family.

If someone is involved in an accident, it is very important to seek legal advice sooner rather than later. If a limitation period is missed, there is likely no recourse for the injured victim.