Court Extends Limitation Period in Alberta Contamination Case

The Alberta Court of Queen’s Bench has recently had opportunity to consider an infrequently invoked section of the Environmental Protection and Enhancement Act (“EPEA”), which provides an exception to the ultimate 10 year limitation period contained in the Limitations Act.

Section 218 of EPEA permits a judge to extend a limitation period where the basis for the proceeding is that the release of a substance into the environment resulted in an adverse effect. Adverse effect is defined by EPEA as impairment of or damage to the environment, human health or safety or property.

Noting the paucity of case law considering section 218, the court adopted the following two-step approach to determine whether the limitation ought to be extended in the circumstances:

1. Is there sufficient evidence on the section 218 factors to grant an extension of the limitation period?
2. If there is not enough evidence to make that determination, or if there is sufficient evidence but an issue for trial could be determined prematurely, has the claimant shown a good arguable case for an extension? If so, the claimant is entitled to an extension of the limitation period subject to a final determination of the issue at trial.

Applying the two-step approach the court found that the time frame involved was not so significant that it would be unfair to allow the action to proceed against either Commonwealth or Suncor. On balance, the court concluded that the limitation period should be extended, subject to a final determination of the issue at trial.

Because the two-step approach allows a court to conclude on a preliminary basis (subject to a final determination of the issue at trial) that the matter should proceed, there is risk that a Plaintiff could successfully obtain an extension pursuant to section 218 only to have the court rule at trial that the 10 year ultimate limitation period ought not be extended. Obviously, this level of uncertainty is undesirable for a party contemplating litigation. It remains to be seen what constitutes “sufficient evidence” to warrant an outright extension of the limitation period as contemplated by the court.

This is an extract from a guest post from our friends and colleagues at the Calgary office of McLennan Ross LLP, where the authors: Gavin Fitch, Q.C. is a partner and Marco Baldasaro is an associate.

To read the full post, please click here.

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Manning Environmental Law is a Canadian law firm based in Toronto, Ontario. Our practice is focussed on environmental law, energy law and aboriginal law. 

Paul Manning is a certified specialist in environmental law. He has been named as one of Canada’s leading Environmental Lawyers by Who’s Who Legal: Canada and ranked by Lexpert as one of Canada’s Leading Energy Lawyers.

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