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The Revival Of Forum Shopping for Limitations Deadlines.

Article Excerpt
Article by Bryan Duguid, [c]2006 Blake, Cassels & Graydon LLP

This article was originally published in Blakes Bulletin on Litigation - May 2006

Parties should exploit the strategic opportunities and be mindful of the potential pitfalls that arise from the double limitation period resulting from section 12 of the Alberta Limitations Act, section 27 of the Saskatchewan Limitations Act, and the recent decision of the Supreme Court of Canada in Castillo.

Limitations deadlines are unforgiving. If they are missed, the claim is extinguished. This raises important strategic considerations in connection with section 12 of the Limitations Act, R.S.A. 2000, c. L-12 (Alberta Section 12) and the related decision released in late December 2005 by the Supreme Court of Canada in Castillo v. Castillo (Castillo). Alberta Section 12 states:

"Conflict of Laws ... 12 The limitations law of the Province shall be applied whenever a remedial order is sought in this Province, notwithstanding that, in accordance with conflict of law rules, the claim will be adjudicated under the substantive law of another jurisdiction."

As confirmed in Castillo, the effect of Alberta Section 12 is to provide, perhaps unexpectedly, a double-layered limitations defence to defendants in Alberta court proceedings that are governed by the substantive law of another jurisdiction. This represents a significant change in the rules for the choice of the limitations laws to be applied by the courts in Alberta and Saskatchewan, with ramifications beyond the borders of those provinces. (Although not identical to Alberta Section 12, to the same effect is section 27 of the Saskatchewan Limitations Act, S.S. 2004, c-L-16.1 (Saskatchewan Section 27), enacted relatively recently. Accordingly, this article applies equally to Saskatchewan Section 27 and Saskatchewan limitations laws.)

Background

A key choice of law issue is whether a particular question is a matter of substantive law or procedural law and,...