Case information

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The relevant facts as found by the courts below are as follows. On May 10, 1998, the Appellant and Respondent, who are wife and husband, were involved in a single vehicle accident in or around Fresno, California, while travelling on a holiday. The Respondent was driving when the accident occurred; the Appellant was a passenger and suffered injuries as a result of the accident. Both parties were, at all material times for the purposes of this action, resident in Calgary, Alberta. The wife sued the husband by filing a Statement of Claim in Calgary on May 9, 2000, claiming damages for her injuries caused by the California accident. The husband applied under the Alberta Rules of Court (ARC's) to summarily dismiss the claim on the basis that the California limitation period, assumed (but not proven) to be one year for the purpose of the application, operated to bar the action and is a complete defence to it. Alternatively, the husband, also under the ARCs, sought determination on a point of law, namely, whether California or Alberta law applied to the action. The wife submitted that the two year Alberta limitation period, and not the one year California limitation period, applies in this case. She relied upon the wording of s. 12 of the Alberta Limitations Act, which provides that the Alberta limitation period shall apply "notwithstanding" that the matter will be adjudicated under the "substantive law of another jurisdiction".

The matter hinges upon the interpretation of s.12 of the Limitations Act, enacted in 1996 and, in particular, whether its enactment changed the common law as decided by this Court in Tolofson v. Jensen, [1994] 3 S.C.R. 1022, as contended by the Appellant. The import of Tolofson was to change the choice of law rule to apply the law of the place of the tort, the lex loci delicti, and not the law of the forum to the statute of limitations issue. In rejecting the Appellant's arguments, the Court of Queen's Bench determined on a point of law on application under the ARC's that, if the Appellant failed to file her action in time in California, then her action is statute barred. The Court of Appeal dismissed the Appellant's appeal.