Industry Agreement regarding Limitations Alberta
The Statute of Limitations (British Columbia) does not specify whether the general limitation period can be extended or shortened by agreement. Moreover, the issue does not appear to have been decided at common law in British Columbia. In Rosas v. Toca, 2018 BCCA 191, the British Columbia Court of Appeal suggests that this may be possible: (2) Subsection (1) has no effect on an agreement entered into before the day on which this Act comes into force. Unlike Edmonton (City) and this decision, this clause does not merely set “limits to the guarantees provided for in the agreement”. Rather, the clause provides that a party “waives all rights it has, by law or otherwise, to make a claim.” Edmonton City Court found that the clause in the case does not violate the Statute of Limitations because it “does not address the issue of the limitation period for bringing an action.” However, CAPL-PTP probably has this effect. It is not clear whether such a clause would be considered invalid or whether the fact that two sophisticated commercial parties had entered into such an agreement would satisfy the requirements set out in that decision. Article 22(5) also provides that a commercial contract may modify or exclude a basic limitation period, where the `commercial contract` is defined as an agreement in which neither party is a consumer (within the meaning of applicable consumer protection laws). (1) A limitation period under this Act may be extended by agreement, but not shortened. Although, in this case, the Court applied the contractual survival periods, the reasoning used by McCarthy J. in support of this conclusion may lead to the opposite result in cases where the survival clause has slightly different wording.
For example, the wording of CAPL`s transfer of ownership proceedings (the “CAPL-PTP”) is potentially problematic because it is intended to limit a party`s ability to bring an action outside the statute of limitations. The provision reads as follows: Subsection 22(3) of the Limitation Act, 2002 (Ontario) provides that the basic limitation period may be suspended or extended by agreement. In addition to these general rules, the applicability of an agreement that purports to extend or shorten a limitation period may depend on certain factors, including the nature and wording of the agreement itself. We recommend that you seek legal advice before entering into a contract that attempts to extend or shorten a limitation period. If you have any questions about extending or shortening limitation periods in a commercial contract, please do not hesitate to contact us. In WhiteCourt Power Limited Partner v. Elliot Turbomachinery Canada Inc., 2015 ABCA 252, the Court of Appeal held that service of the claim is usually the first limitation period for contribution applications that could begin without an independent contribution application. In principle, a general limitation period in Alberta, Ontario and Saskatchewan may be extended by agreement; However, the corresponding legislation does not appear to be established in British Columbia or Manitoba.
In the meantime, a basic limitation period can be shortened by a trade agreement in Ontario, but not by an agreement in Alberta. The law is also unstable in British Columbia, Manitoba and Saskatchewan. We disagree that the termination obligation imposed in § 3.5 [of the Agreement] had no force or effect under the Limitations Act, 2002, at p. 22. N/A 2002, ca. 24, Sch.B, which provides that a limitation period prescribed by law `shall apply despite any agreement to modify or exclude that limitation period`. (Article 22 has been amended, see above 2006, c. 21, Sh. D, p. 2 with regard to the modification of statutory limitation periods in trade agreements, but this case is governed by the previous provision.) The termination provision at issue did not modify or exclude the limitation period prescribed by the Limitation Periods Act.
The right to compensation was purely contractual in a commercial agreement between demanding parties. The various rights to compensation granted were limited in time by agreement. The requirement for timely termination was a mutually agreed contractual suspensive condition for triggering a claim for compensation. With timely notification, the cause of action has appeared, and at that time the legal limitation period begins to run. Such notification provisions are permitted under demanding trade agreements between parties. This is a potentially important issue because the duration of the lawsuit is a key area of negotiation between the parties and can affect the total purchase price on which the parties agree. In particular, a buyer should carefully consider the language of survival times in their purchase and sale contracts in order to effectively manage the risk of potential future claims for breach of insurance or warranty. Although these cases appear contradictory, McCarthy J.
distinguished Shaver on the basis that it was a tort claim involving a motor vehicle accident and not, as in Edmonton (City) and in this case, a contractual right to compensation under the purchase and sale agreement between sophisticated commercial parties. However, McCarthy J. did not explicitly adopt the reasoning in Edmonton, City, referring instead to the position recently upheld by the Ontario Court of Appeal in NFC Acquisition LP v. Centennial 2000 Inc., 2011 ONCA 43, where the Court noted that the issue had been addressed by Manitoba Law Reform when it released The Restriction Commission`s Report No. 123 in July 2010. That report contained a recommendation that “the parties should be allowed to agree to extend the restrictions, but not to shorten them” (pp. 50-51 and 117). The report further proposed to include the following wording in the Share Limitation Act (Manitoba): In NOV v. Enerflow, NOV Enerflow ULC (“NOV”) and Enerflow Industries Inc. (“Enerflow”) were parties to an agreement to buy and sell entered into on March 4, 2012 (the “PSA”). The PSA contained a number of representations and warranties relating to Enerflow`s business.