Background / Overview
Limitation periods are a tenet of modern legal systems. At a high level, these imposed requirements provide a specific period of time within which action must be taken with respect to commencing a legal claim, failing which the claim will be permanently barred.
Alberta, like all Canadian jurisdictions, has a legislated framework in place with respect to limitation periods. This framework is set out in the Limitations Act.[1]
In addition to setting out the two-year limitation period for most types of legal claims, the Limitations Act also expressly provides that the running of a limitation period can be altered in the following circumstances:
- where there is an agreement between the parties to extend the limitation period;[2] or,
- where a claim for a debt or liquidated sum of money is concerned, if the person liable to pay the sum of money acknowledges the creditor’s claim to entitlement to payment prior to the expiry of the limitation period (in which case the limitation period will effectively be reset and start over as at the date of the acknowledgment).[3]
In both instances, the agreement or acknowledgment in question must satisfy two formal requirements in order to be effective:[4]
- it must be made in writing; and
- it must be signed by the person adversely affected.
Traditionally, a legal requirement for something to be in writing and signed would have been understood to include a physical document with a hand written signature (i.e. a physical contract, a hand written letter, etc.), and little else.
However, similar to the recent judicial determination that an emoji may constitute binding acceptance of a contract, the law in this respect has and continues to evolve so as to reflect the commercial reality of technology and communication in the digital age. This, in turn, gives rise to new considerations for commercial entities and all potential litigants in how they may want to govern themselves when considering a potential claim.
Relevant law
First, it should be noted that Alberta courts have generally interpreted the writing and signing requirements under the Limitations Act in a holistic manner and expressed a preference for giving consideration to the whole context in which an alleged agreement or acknowledgment was made.[5]
Importantly, Alberta courts have recognized that there is no specific form required in order to satisfy these requirements; for example, in addition to a sworn Affidavit or letter, they may also potentially be satisfied by electronic communication such as an email.[6]
Although Alberta courts have not yet considered whether a text message satisfies the agreement in writing requirements of the Limitations Act, this question has been answered in the affirmative by other Canadian courts in considering similarly worded legislation.
One such example is the recent Saskatchewan decision of Princess Homes Ltd. v. Guenther.[7] One of the questions before the Court was whether a text message from a debtor that was alleged to acknowledge a debt owing was an “acknowledgment” within the meaning of the Saskatchewan Limitations Act.[8] Similar to Alberta’s Limitations Act, Saskatchewan’s legislation contains a requirement that the acknowledgment of a debt be in writing and signed by the person making it.
Justice Crooks, writing for the court in Princess Homes, looked to the wording of the Saskatchewan Electronic Information and Documents Act, 2000, which includes the following provisions:[9]
8 A requirement pursuant to any law that any information or document be in writing is satisfied if the information or document:
- (a) is in an electronic form; and
- (b) is accessible so as to be usable for subsequent reference.
9 A requirement pursuant to any law for a person to provide any information or in writing to another person is satisfied if the person provides the information or document in an electronic form and the information or document:
- (a) is accessible by the other person; and
- (b) is capable of being retained by the other person so as to be usable for subsequent reference.
Based on these provisions, Justice Crooks concluded that a text message satisfied the requirement that an acknowledgment be in writing.[10] Having done so, she then considered the question of whether the text message was sufficiently “signed” so as to have legal effect.
First, she looked to the reasoning of two Ontario cases in which an email and a text message, respectively, satisfied the writing and signing requirements of Ontario’s limitations legislation.[11] Following such reasoning, she made the following pertinent comments about the practical realities and implications of electronic communications:[12]
People tend to rely on electronic communications now more than ever. Where parties may have picked up the phone or sent a letter by mail or fax, these are easily displaced by the convenience of a text message or an email. Electronic communication is integral in our lives to the extreme that it often displaces face-to-face communication — in life and in business. Communicating by email and text message is fast, convenient, and an easy way to multitask. And these communications may very well have legal consequences, just like anything a person puts in writing. In my view, the court must assess the requirements for signing a document in this modern context.
Looking to the substance of the text message in question, Justice Crooks observed that:[13]
- the defendant debtor clearly identified herself at the outset of the message;
- the telephone number from which the text message originated was present;
- the message provided personal financial details within the direct knowledge of the defendants, including a stated intention to repay the debt; and
- the defendant debtors did not deny that the defendant who sent the text message had done so and likewise did not raise any issue regarding its authenticity.
On this basis, she concluded that the text message was sufficiently “signed” and, therefore, amounted to an acknowledgment under the Saskatchewan Limitations Act.[14]
It should be noted that Alberta’s Electronic Transactions Act contains identical wording to that under consideration in Princess Homes.[15]
Takeaways
It is generally established that an electronic document, such as an email, can satisfy the Limitations Act requirement of being “in writing.” It appears likely that that a text message would be treated similarly, particularly in light of the provisions of Alberta’s Electronic Transactions Act. Applying the same principles, it is possible that a social media message, or even an emoji, may be treated similarly.
There is also emerging precedent in other provinces that emails and text messages can be sufficiently “signed,” so as to extend a limitation period. Time will tell if Alberta follows suit, but the existing legislative framework (and the pragmatic approach taken by Alberta judges in the past) suggests that a consistent result is likely.
Limitation periods are serious and errors in their calculation can be fatal to legal claims. Potential litigants should always consult a lawyer with respect to the impact that limitation periods may have on their rights (whether as a claimant or a defendant). For further questions about these issues, please contact Miller Thomson’s Commercial Litigation Group.
[1] Limitations Act, RSA 2000, c L-12 (the “Limitations Act”)
[2] Ibid, s. 7
[3] Ibid, s. 8
[4] Ibid, s. 9
[5] See, for example, Thompson Bros. (Constr.) Ltd. v. 823334 Alberta Ltd., 2012 ABQB 604, at para. 18; Twinn v. Sawridge Band, 2017 ABQB 366, at paras. 105-106 and 115-116
[6] Mitchell v. Pytel, 2021 ABQB 403, at para. 328; Thompson Bros. (Constr.) Ltd. v. 823334 Alberta Ltd., 2012 ABQB 604, at para. 18; Harvest Operations Corp. v. Obsidian Energy Ltd., 2022 ABKB 848, at paras. 33-48
[7] Princess Homes Ltd. v. Guenther, 2022 SKQB 141 (“Princess Homes”)
[8] Limitations Act, SS 2004, c L-16.1
[9] Electronic Information and Documents Act, 2000, S.S. 2000, c. E-7.22, ss. 8 and 9
[10] Princess Homes, supra, at paras. 64-65
[11] Ibid, at paras. 69-70, citing Lev v. Serebrennikov, 2016 ONSC 2093 at paras 24-25, and 1475182 Ontario Inc. v Ghotbi, 2021 ONSC 3477, at paras. 42-50
[12] Ibid, at para. 71
[13] Ibid, at para. 72
[14] Ibid, at para. 72
[15] Electronic Transactions Act, SA 2001, c E-5.5, ss. 11 and 16
