Other Jurisdictions Eyeing
Alberta's New Limitations Act
By Nordahl Flakstad
Alberta is a leader in limiting the time for legal action to be taken
against professionals as a result of services they have rendered.
Eighteen months after Alberta implemented limitations legislation which
restricts to 10 years the period for discovering and making a claim against
professional services, there are signs that some other provinces are edging
in the same direction.
Nevertheless, there's hardly a stampede to follow Alberta's lead, suggests
Derek Holloway, senior vice-president of the construction department with
the ENCON Group Inc., a major Ottawa-based provider of professional liability
"Alberta legislation is being used as an argument to push various
attorneys-general departments to limit the right to claims," Mr.
Holloway told The PEGG.
Many professionals, such as engineers and architects, favour defined
limits for pursuing a claim -- rather than having no time limit, the situation
existing here prior to the March 1, 1999 implementation of the Alberta
Limitations Act. The latter is believed to be bell-wether legislation
in setting a 10-year limit. However, Mr. Holloway concedes there is some
"political sensitivity" within governments to be seen as limiting
the public's recourse against defective work by professionals.
ONLY MATERIALIZED DUE TO PERSISTENCE BY GROUPS SUCH AS APEGGA AND THROUGH
CALGARY EGMONT MLA DENIS HERARD'S CHAMPIONING OF THE CAUSE.
Alberta's legislation only materialized due to persistence by groups
such as APEGGA and through Calgary Egmont MLA Denis Herard's championing
of the cause. Mr. Herard initiated the legislation as a private member's
According to Mr. Holloway, British Columbia is considering legislation
similar to that already on the books in Alberta. Ontario has been examining
a system for certification of commercial buildings which might operate
much as new home warranties now do with residential housing. Under those
proposals, construction or design shortcomings would have to be brought
to light within a given period to be covered by the warranty.
While other provinces may be imitating Alberta, it's not clear that the
new limitations act has seriously affected behaviour in this province.
This does not surprise Mr. Holloway. The ENCON official notes that 95
per cent of design-related claims are initiated within five years of completion
of projects. He adds "most claims outside the 10 years involve situations
in which operation or maintenance, rather than design, is an issue."
As a result, he suggests, most retired professionals don't retain liability
insurance beyond six or seven years following retirement. "They will
take their chances after that, " says Mr. Halloway.
There is little evidence of cases arising from the 1999 Alberta Limitations
Act. Even so, suggests Mr. Halloway, the legislation still meets an important
need, since "it gives finality in terms of retiring or shutting down
a practice and not worrying about it 10 or 20 years down the line."