One of the nuances of law that some people aren’t too familiar with is that of limitation periods. In both criminal and civil litigations matters, people or the police may only have a certain amount of time in which to file a lawsuit or charge someone criminally. Of course, some crimes, such as murder, don’t have a limitation period. But with other less serious matters, the law is designed to provide windows of time in which legal action can be brought against someone. Where things get tricky is in determining exactly when the “clock starts ticking.” The decision we will be discussing today looks at some of the complexities around determining when the statute of limitations is up in a civil action related to a condominium construction dispute.

A do-it-yourself construction project

The series of events leading to the litigation started in 2006 when the defendants were one-third owners of a company that owned an apartment building. They decided to cut a hole in the ceiling of their top-floor apartment and installed a spiral staircase leading to what was described as a den-loft balcony room they had constructed. They did this without any development or building permits.

Later that same year the apartment was converted into a condominium. When the plans for the condominium were drawn up, the staircase and rooftop den-loft were left out. Nevertheless, the condo owners were ok with the structure and did not object. The city issued a development plan retroactively in 2009.

Ten years later, the construction becomes problematic

In August 2016 the condo board met to discuss the structure, which had exceeded the load-bearing capability of the roof. The roof was common property, owned by the condo owners, and they filed a statement of claim to recover possession of the roof as well as permission to revert it back to its original state.

In June 2018 the city issued an order to remove the rooftop addition. This work was completed by the following month. With the roof now back in its original state, the only outstanding items were the expense of the removal and remediation as well as a claim for special damages of up to $125,000.

What is the statute of limitations?

Alberta’s Limitations Act states,

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

(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.

Since the structure was built prior to the apartment becoming  a condo, we know with certainty that the condo board was in place sometime in 2007, and as such, had the ability to deal with the structure from its inception. However, it’s the fall of 2006 that the court said “marks a fork in the road.” At that time, the apartment owners could have started a claim. They did not, and nor did the condo board (at least at first).

It was clear to anyone who looked into it that the structure was not properly built and did not have permits in place.

The court stated that the limitation period for everything except the recovery of land (the roof) would have expired in late 2008 or early 2008. While the board received a report in 2016 stating the structure was not properly constructed, this was not news to the board. The court stated, “A cause of action in contract runs from the breach. Damages, or knowledge of the damages is not required to complete the cause of action.” As a result of this, the court dismissed the action.

Condominium disputes require legal advice from knowledgeable counsel with experience addressing such matters and who understands the complex condo industry. Contact HMC Lawyers to speak with a member of our Advocacy Team and get strategic and trustworthy advice. Call 1-800-480-3534 or contact us online. We represent clients in Calgary, the province of Alberta, and across Western Canada.