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The Court of
Appeal decision
The Court of Appeal overturned the Chamber
Judge’s decision, finding the claim was commenced
outside the limitation period and was
statute-barred. According to the Court, the
limitation period began to run in July 2011
because this was when the discoverability requirements
were first met, specifically:
(a) Venture suffered the loss identified in the
claim as soon as it was required to undertake
remediation work. The fact Venture
had hope, or an expectation, it would
be compensated by the Ministry under
the contract does not change the fact
Venture knew it suffered a loss as a result
of incurring the cost of remediating the
subgrade work; and
(b) It was appropriate for Venture to
commence a legal proceeding against
the Ministry because there was no evidence
that:
(i) Venture actually sought to invoke
the provisions of the contract,
such as the Extra Work clause, prior
to requesting compensation in
December 2013;
(ii) Venture’s delay in bringing the action
was because it pursued an alternative
dispute mechanism; and
(iii) Venture’s ability to complete work
on the project would have been impacted
or delayed by issuing and
prosecuting a claim.
In other words, all the facts accepted by the
Chambers Judge illustrated, as of July 2011,
the four discoverability requirements of the
Act were satisfied, specifically:
(a) Venture’s loss was identifiable;
(b) The Ministry’s conduct appeared to have
caused Venture’s loss;
(c) The Ministry was responsible for the
loss; and
(d) As of July 2011, it was appropriate for
Venture to commence an action.
The Court of Appeal reversed the lower
court’s decision and dismissed Venture’s
claim against the Ministry in its entirety. The
Ministry was awarded a portion of its legal
costs at both levels.
The Court of Appeal overturned the
Chamber Judge’s decision, finding the claim
was commenced outside the limitation
period and was statute-barred.
Key takeaways
Missing a limitation period is fatal to your
claim. If you suspect you have suffered a loss
or damages, you should always ask yourself
the following questions to ensure you meet
the applicable limitation period:
• Can you identify: (1) the loss or damage;
(2) the cause of the loss or damage; and, (3)
the party responsible for the loss or damage?
• Does your contract contain an alternative
dispute mechanism and, if it does, have you
advised the other party of your intention to
pursue such mechanism?
• If you made a request for payment, did
your request specifically reference which
contractual provision you were relying on?
If you experience any issues during a project
related to the questions above, you should
reach out to your counsel to determine whether
a limitation period has begun.
Disclaimer: This publication is provided
as an information service and may include
items reported from other sources. We do not
warrant its accuracy. This information is not
meant as legal opinion or advice. If you have
any questions, please contact Troy Baril at
tbaril@millerthomson.com or 306-667-5630.
thinkbigmagazine.ca | Quarter 3 2020 | Think BIG 43
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