Updated: Nov 16
Background This appeal is in relation to three files started in the Saskatchewan Provincial Court under The Small Claims Act, 1997, SS 1997, c S-50.11, legislation which has since been replaced. One of the files was transferred to the Court of the Queen's Bench and was subsequently attempted to be amended to add the parties and allegations contained in the other two Provincial Court files. This appeal is filed by William Metcalfe on behalf of a deceased plaintiff. The first claim was dated October 29, 2012 and had LeElla Metcalfe as plaintiff and Stonebridge Hotel Limited Partnership ("Stonebridge Partnership") as the defendant. The second claim was dated November 8, 2013 and was had LeElla Metcalfe as plaintiff and Holiday Inn Express Partnership ("Holiday Inn Partnership") as the defendant. The third claim was dated November 8, 2013 and was between Alexandria Metcalfe as plaintiff and Holiday Inn Express Partnership as the defendant. All three claims alleged breaches of the partnership agreements concerning the operation of two different hotels.
Application for summons
6(1) Any person who has a claim to which this Act applies and who wishes to proceed pursuant to this Act may apply to a clerk to have a summons issued.
Issuing a summons
7(1) If the judge is satisfied that the plaintiff may have a valid claim, the judge shall issue a summons that:
(a) is directed to the person or persons against whom the claim is made;
(b) states the time of the case management conference or time of the trial and the court location that the judge considers appropriate.
(3.1) The judge may refuse to issue a summons if the judge considers that the claim of the plaintiff:
(a) is without reasonable grounds;
(b) discloses no triable issue; or
(c) is frivolous, vexatious or an abuse of the court’s process.
(4) Where a judge refuses to issue a summons, that refusal does not prevent a plaintiff from proceeding in the Court of Queen’s Bench or in any other manner authorized by law.
The Judge of the Provincial Court is required to view a claim before issuing it with a summons. Two of the claims were submitted to one courthouse and the third was submitted to a different courthouse. When a Judge viewed the two claims filed at the same court he decided not to issue them, citing multiple deficiencies. The plaintiff transferred the successfully filed claim in the Court of the Queen's Bench (now "Court of the King's Bench) deciding against sacrificing the remainder of the claim to fit within the, then, $20,000 monetary limit of small claims. For information on the current set up and monetary limit of small claims in Saskatchewan, click here.
The plaintiff applied to the Queen's Bench Chambers to amend one of the claims to add allegations into it from the claims that had not been issued. Defence counsel opposed the amendment, citing the fact that two of the claims had not been issued and that allowing them to be amended into the claim was statute barred by the limitation period established by the The Limitations Act, SS 2004,
Application of Act
3(1) Subject to subsections (2) to (5), this Act applies to claims pursued in court proceedings that:
(a) are commenced by statement of claim; or
(b) are commenced by originating notice and are not proceedings in the nature of an application.
Basic limitation period
5 Unless otherwise provided in this Act, no proceedings shall be commenced with respect to a claim after two years from the day on which the claim is discovered.
Amendment of pleadings in certain cases
20 Notwithstanding the expiry of a limitation period after the commencement of a proceeding, a judge may allow an amendment to the pleadings that asserts a new claim adds or substitutes parties if:
(a) the claim asserted by the amendment, or by or against the new party, arises out of the same transaction or occurrence as the original claim; and
(b) the judge is satisfied that no party will suffer actual prejudice as a result of the amendment.
The Chamber's judge refused to allow any amendments from the allegations set out in the unissued claims, citing the fact that different parties were named in the unissued claims from the issued claim and different timelines. This effectively made the issued claim a distinct claim based on distinct facts from the unissued claims. The allegations would establish a new claim, independent from the issued claim, which was statute barred because the limitation period to commence the claim had expired. This decision is based on an appeal of this Chamber Judge's decision.
The appeal Judge had 2 issues to decide on appeal. The first issue decided on appeal was whether the Chamber's Judge's interpretation of the The Limitations Act, SS 2004, c L-16.1 was correct. Part of that issue whether each of the unissued claims had arisen out of the same transaction or occurrence as the issued claim. The second issue to decided is whether the filing of a claim with a clerk under small claims procedure would temporarily halt the running of the limitation period.
The appeal court started by citing Bakaluk v. McGregor, 2003 SKQB 386 as establishing that a plaintiff that has applied to a clerk to issue a claim under the Saskatchewan small claims procedure in the Provincial Court will not have a claim statute barred based on the limitation period if everything that was required of them was completed before the limitation had expired, even if the claim is not signed and issued until the limitation period would have expired.
In coming to it's decision, the court cited The Insurance Company of the State of Pennsylvania v. Cameco Corporation, 2008 SKCA 54 as a case outlining when new parties cannot be added after the limitation period had expired:
 ... As is readily apparent, the amendments not only introduce a wholly new plaintiff and a new cause of action and abandon any claim against one defendant. They also eliminate the original plaintiff and the original cause of action and extend the proceedings to include new subject matter.
 It is readily apparent, however, that the amendments sought by Global in this case go well beyond what was involved in Dusterbeck v. Beitel. As indicated, Global does not merely seek to add itself as a party to the Cameco litigation and graft its cause of action onto Cameco’s statement of claim. It seeks to completely reinvent the statement of claim by substituting itself for Cameco as plaintiff and by substituting its claim for contribution in place of Cameco’s claim for indemnification. As well, it seeks to expand the reach of the litigation to include the B.C. Action.
The court found that a party cannot be added to a claim after the limitation period had expired if the amendments would introduce a wholly new plaintiff and cause of action, and if it would eliminate the original claim.
 ... It allows a party to be added to a claim after the expiration of a limitation period if the claim asserted by the new party arises out of the same transaction or occurrence as the original claim and if no party will suffer actual prejudice as a result of the amendment. The Chambers judge concluded both of these requirements had been satisfied and granted the application.
As recognized by the Chambers judge, the most important point for the purpose of applying s. 20(a) of The Limitations Act is that the claims advanced by Şekerbank and ABank in the Second Action have precisely the same gravamen or legal core. ...Moreover, both Şekerbank and ABank seek the same relief
 This brings me to s. 20(b) of The Limitations Act and the issue of whether either Mr. Arslan or Mr. Al-Katib would suffer “actual prejudice” as the result of ABank being added as a plaintiff to the Second Action. On this front, the Chambers judge said he was prepared to assume memories had faded to some extent during the approximately three years of ABank’s delay in stepping forward with its claim but noted there was no evidence of any witness or documentary evidence no longer being available. In light of all of this, the Chambers judge concluded that adding ABank as a plaintiff would not cause “actual prejudice” within the meaning of s. 20(b).
 ...the reality is that some amount of delay, and hence some amount of prejudice, will characterize every application to add a plaintiff pursuant to s. 20. ...As a result, the reference to actual prejudice in s. 20(b) must surely be understood as contemplating prejudice of some meaningful consequence....
 ... It would be unreasonable to suggest the party wishing to have a plaintiff added to a claim must have its application dismissed if it does not bring forward evidence proving a negative,...In the result, therefore, parties in the position of Messrs. Arslan and Al-Katib will be at obvious risk of being unable to resist an application to add a plaintiff if they fail to help the court understand the nature and significance of the prejudice they will suffer if a new plaintiff is added.
The Court in that decision found that a party could be added in an amendment if the allegations that are to be added arise out of the same transaction or occurrence as the original claim, and if no party would suffer actual prejudice as a result of the amendment. "Actual prejudice" was found to be requiring more than standard memory fade over time and that the defendant would have the burden of establishing the actual prejudice.
The court also cited Stomp Pork Farm Ltd. v. Lombard General Insurance Company of Canada, 2008 SKQB 405, in which leave for appeal was denied. The court in that decision found that a party could be added because a limitation period for a claim against an insurer was discoverable when the insurer denied the insurance claim.
The court considered if the allegations attempting to be added to the claim could be shown to “arises out of the same transaction or occurrence” as the claim that had been filed.
It was found that the only unifying aspect between the new allegations and the originally filed claim was the plaintiff and/or the plaintiff's Estate.
[46... Ms. LeElla Metcalfe claims for losses stemming from the operation of the Stonebridge Partnership according to the terms of the agreement creating that partnership. She now seeks to add her claim against the Swift Current Partnership according to losses claimed under that new agreement creating a second partnership. She is the only unifying aspect of the two claims. While she alleges that 381 Sask Co. and 299 Sask Co. can be considered the same business organizations, at law these two corporations are separate legal entities.
This claim is even further removed from the application of s. 20 of The Limitations Act. Ms. Alexandria Metcalfe, who is a stranger to the action brought by Ms. LeElla Metcalfe, seeks to graft her claim against a distinct and different legal entity onto the earlier claim. The two transactions, the two partnership agreements, as well as the parties, are wholly different in the two actions. In short, she seeks to bring into the first action a claim that is not of the same occurrence or transaction as the original claim. The Chambers judge did not err by refusing to amend the amended statement of claim as requested.
It was concluded that the Chamber's Judge's decision was correct.
Temporary halt of limitation period
The second issue to analyze is whether the limitation is "tolled" while the court considers the claim after filing. Counsel for the Appellant cited Siemon v. Kuepfer, 1973 CanLII 1265 (ON CA) as a case in favor of interpreting whether the limitation period is temporary halted after the filing of a claim that is later found to be incomplete. Bakaluk v. McGregor, 2003 SKQB 386, is the leading Saskatchewan case on the issue. In it, the plaintiff filed a claim before the limitation period had expired and it was not issued until after the limitation period had expired. On appeal, it was found that the the date of filing was the date that established whether the limitation period had expired or not provided the plaintiff had done everything that was required of them. The court cited multiple cases holding this view
The court also cited Tsang v Realty Executives Saskatoon, 2018 SKPC 30 which upheld previous case law and also considered whether amendments and revisions could be made after the limitation period had expired.
... 20 of the The Limitations Act allows for amendments, which add new parties or assert new claims, arising out of the same transaction or occurrence as the original claim after the expiry of a limitation period. The plaintiff's amendments clearly arose out of the same transaction or occurrence as the original claim. I am satisfied that the amendments made to the plaintiff’s claim are those contemplated by s. 20.
The court upheld the Chamber's decision that the two claims had not been issued or commended within the limitation period. The court found that the case law does not suggest that when the plaintiff is at fault for a claim not being issued after being filed that the running of the limitation period should be temporarily halted.
This case shows the importance of filing your claim well in advance of the limitation period expiring when filing a claim in the Provincial Court because the court may not issue the claim and you might not have another chance to file. This case also outlines that some pretty significant amendments and revisions can be made to a claim, such as adding a party, after the expiring of the limitation period if it “arises out of the same transaction or occurrence” and it does not cause "actual prejudice".
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