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PROCEEDINGS - Practice and procedure - Limitation periods

Thursday, May 18, 2017 @ 8:49 AM  


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Appeal by the plaintiff, Breitkreuz, from summary dismissal of his action against the defendants, the Minister of Infrastructure and Soneff. The plaintiff claimed that the Crown's wrongful conduct in failing to disclose a purchase offer deprived him of the opportunity to exercise his right of first refusal to purchase certain lands that he leased from the Crown at $10,000 per acre. He was informed of the sale, but not the sale price, in 1994. He asserted he was led to believe by a Crown employee, the defendant Soneff, that his offer of $10,000 per acre was insufficient. He claimed he discovered the loss in 2009 when he learned eventual purchasers had paid $10,000 per acre. He commenced his action in 2011. The Crown applied for summary judgment. The chambers judge dismissed the claim on the basis of a limitations defence. Even assuming the facts asserted by the plaintiff to be true, the plaintiff was aware of the Crown's alleged breach of its obligations when he received notice of the sale in 1994. The fact of the sale was not concealed from the plaintiff. Application of the 10-year limitation period was not suspended by fraudulent concealment. The plaintiff appealed.

HELD: Appeal dismissed. There was no fraudulent concealment, as the plaintiff knew of any alleged breach of contract, negligence or breach of statutory authority when he learned of the sale. There was a reasonable basis for the chambers judge to conclude the plaintiff knew or ought to have known that if he had been granted a right of first refusal, it had been breached when he found out in 1994 that the property had been sold without having been formally offered to him first, at whatever the eventual selling price. In summarily dismissing the action, the chambers judge did not misstate the law of summary judgment, or misapply the requisite standard of proof.

Alberta (Minister of Infrastructure) v. Breitkreuz, [2017] A.J. No. 447, Alberta Court of Appeal, B.K. O'Ferrall, S.L. Martin JJ.A. and J. Strekaf J. (ad hoc), May 3, 2017. Digest No. TLD-May152017007