Case citation: Sabir v. Gill, 2023 ABKB 679
Limitation periods are strict standards that have the potential to destroy a claim if not followed. For the first time in Alberta, an application's judge allowed a back date of the filing date – not the submission date – of a statement of claim in order to bring it within the limitation period. Although this should not be seen as a general practice, Sabir v. Gill clarifies the Court's discretion in this regard.
The Plaintiff submitted their Statement of Claim four days before the two-year limitation date, which was not 'filed' until five days later. At the time of filing, there were two systems for the electronic filing of documents: (1) the Email Filing System, and (2) the FDS Filing System. In the Email Filing System, a party attaches the Statement of Claim to an email which is sent to a designated courthouse email address. Documents were then 'filed' according to the date they were emailed, and not on the date they were processed.
In the FDS Filing System, the process required users to follow a series of online steps, including filing the request on the FDS portal, uploading the document, reviewing and finalizing the request to file, as well as providing payment and a final submission. Users would then receive a confirmation of their submission and a subsequent notification from the Clerk's office that the filing had been accepted or rejected.
An assistant from the Plaintiff's law firm attempted to file the Statement of Claim on Thursday, September 29, 2022 on the FDS portal, with the expectation it would be processed the next day. She submitted it as an 'originating document,' but mistakenly chose a 'discontinuance of action' in the next step. If 'statement of claim' had been correctly indicated, the FDS system would have then presented her with a box indicating the 'next court date, filing deadline or limitation date (optional).' She would have then been presented with a summary of the submission which would have shown the mistaken 'discontinuance of action' with no filing fee. However, the assistant did not notice this error. She likely approved the submission and clicked 'payment,' which showed a charge of $6 for discontinuance, instead of a $250 charge for a statement of claim.
A system error resulted in the submission not being processed until Monday, October 3, 2022, which was the last day for filing under the Limitations Act, RSA 2000, c L-12. She was notified of the incorrect submission, submitted the Statement of Claim for October 4, 2022, and requested for a back-date filing. This was rejected by the clerk's office because the documents were submitted as a Discontinuance of Claim and was not prioritized. The Plaintiff subsequently changed legal counsel.
The Applications Judge determined this was a clerical error of the assistant. Nonetheless, the Clerk was not responsible for reviewing statements of claim for upcoming limitation dates, nor were they at fault for the submission being processed on October 3, 2023. The Clerk also had no notice of any urgency. If the system had been designed differently, the assistant's errors would have likely been avoided. Of note, the courthouse policy permitted the Emailed Filings to be filed according to the date the documents were emailed, but not for the FDS Filings.
The decision relied on the principles of Patkaciunas v. Economical Mutual Insurance Company, 2021 ONSC 5945 set out in Norman Towing v. Riordan Leasing Inc., 2022 ONSC 7167. In Norman Towing, the defendant Riordan filed a statement of defence and counterclaim on the last day of the limitation period. The Ontario procedure requires the documents to be filed and issued. Riordan was unaware of the issuing requirement, resulting in it being statute barred. Because all the necessary preparation steps were taken and that Riordan was "ready to argue," the Court granted the application.
Citing Patkaciunas, the Court in Sabir
highlighted its jurisdiction to control its own
processes by back dating the statement of claim to
show it as 'filed' on the date submitted. This control was
exercised by determining no prejudice against the defendant –
were it not for the assistant's errors, the defendant would
have responded to the claim in the ordinary course. If refused, the
plaintiff would have been faced with pursuing a lawyer negligence
claim instead of the intended motor vehicle accident claim, which
was considered more complicated for the plaintiff. Moreover, the
statement of claim was submitted within the limitation
period.
Key Takeaways
The Court is not strictly bound by statutory limitation periods. Public confidence in the administration of justice requires the court to intervene when necessary to protect a client's right to a fair procedure, despite procedural gaps or irregularities.
A statement of claim can be back dated only in instances where it is in its complete and final form and was submitted to the Clerk's office for filing prior to the expiry of the limitation period.
As always, parties should submit any documents well before the expiry of a limitation period to leave room for error.
* * *
Brownlee LLP is a member of the Canadian Litigation Counsel, a nationwide affiliation of independent law firms .
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
