By Ian Carruthers and Noel Harper
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Thank you for continuing to read In This Case and answer our weekly knowledge-testing questions. As we wrap up our series on the Limitations Act, we hope that you will stick around, as we have many more topics and cases to cover going forward. For now, let’s look at the solution for our final case in the series, and if you haven’t seen Monday’s post about the key facts and events of the case, you can read it here.
This week, we are reviewing Moore’s Industrial Service Ltd. v. Kugler, 2019 ABCA 178, in which the plaintiff raised an issue of privacy with his former employer after they accessed his personal emails through a work laptop, and sued the company. The defendant company applied to have the lawsuit thrown out on the grounds that it was filed outside of the limitation period – more than four years after the plaintiff said he became aware of the breach.
However, the application was dismissed. The correct answer for the start date of the limitation period here is c) November 29th, 2013. Because the plaintiff filed his claim on January 15th, 2015, the limitation clock was still running.
As always, here is a reminder of section 3 of the Limitations Act:
3(1) Subject to subsections (1.1) and (1.2) and sections 3.1 and 11, if a claimant does not seek a remedial order within, if a claimant does not seek a remedial order within
(a) 2 years after the date on which the claimant first knew, or in the circumstances ought to have known,
(i) that the injury for which the claimant seeks a remedial order had occurred,
(ii) that the injury was attributable to conduct of the defendant, and
(iii) that the injury, assuming liability on the part of the defendant, warrants bringing a proceeding, or
(b) 10 years after the claim arose,
whichever period expires first, the defendant, on pleading this Act as a defence, is entitled to immunity from liability in respect of the claim.
However, there is another relevant law to consider: the Personal Information Protection Act, or PIPA. After Mr. Kugler determined that Moore’s had unlawfully accessed his email account, he filed a complaint with the Office of the Information and Privacy Commissioner. OIPC later made an order against Moore’s under section 52 of PIPA, allowing the plaintiff to pursue a claim, as per section 60 for Breach of this Act:
60(1) If the Commissioner has made an order under section 52 against an organization and the order has become final as a result of there being no further right of appeal, an individual affected by the order has a cause of action against the organization for damages for loss or injury that the individual has suffered as a result of the breach by the organization of obligations under this Act or the regulations.
Last week, we reviewed what “injury” means in the context of the Limitations Act. Here, it refers to the defendant breaching its obligations to the plaintiff under PIPA, as determined by the commissioner’s order.
Approximately two years passed between when the plaintiff filed his complaint with OIPC and when the section 52 order was issued, and yet the limitation period was not affected, because the order was a critical step for the plaintiff being permitted to commence an action. Under the Limitations Act, the seeking of a remedial order for “injury” compensation “cannot occur until such time as section 60 of PIPA is triggered following the investigation by the Commissioner.”
Therefore, the limitation period began to run when OIPC issued the order, rather than when the plaintiff first discovered the privacy breach, and his claim was in fact filed within the period.
Here is a review of the possible answers to this week’s question:
a) October 2010
This is when the plaintiff first realized that his personal emails were forwarded to an employee of his former company. At this time, the plaintiff was unaware of his legal options and whether he had a cause of action.
b) December 2010
This is when the plaintiff determined that his email account was unlawfully accessed by the defendant company, but he had not yet made a complaint to OIPC, so he still could not have known he had a cause of action until section 60 of PIPA had been satisfied.
c) November 29, 2013
On this date, the privacy commissioner issued an order under section 52 of PIPA. Section 60 states that a cause of action arises only after such an order has been made, meaning this was the start of the period in which the plaintiff could pursue a lawsuit.
d) The date on which the period to appeal the order of November 29, 2013 expired
Section 53 of PIPA states that “an order made by the Commissioner under this Act is final,” meaning there is no right of appeal.
Legal Malpractice
Expired limitation deadlines and missed statutory provisions are two of many potential risks in civil litigation. While most unsuccessful cases or applications occur despite a civil litigator’s reasonable efforts, or for reasons beyond the lawyer’s control, they occasionally result from legal malpractice.
Have you or someone you know possibly suffered a loss due to the negligence of a lawyer or former lawyer? Carruthers Law can help you identify how to repair the damage or, alternatively, help you determine whether you should pursue a professional negligence claim. Contact us for a complimentary consultation to discuss your situation.