Alberta plaintiffs face lawsuit deadline

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The Alberta government's Limitations Act took effect on March 1 and people who are contemplating a lawsuit against the province for harm they may have suffered in residential schools, or as a result of state-sponsored sterilization under the province's old eugenics laws, should be aware the clock is now ticking.

Implementation of the private members bill which became law in 1996 was delayed until this year so the various government agencies could prepare for the change.

The Merchant Law Group, a Regina, Sask. law firm which is aggressively signing up Aboriginal clients in Alberta, Saskatchewan and British Columbia, placed an advertisement in Windspeaker's provincial sister paper - Alberta Sweetgrass - in the February issue, urging those who have unfiled claims to contact them before they discover it's too late, saying the government was imposing a March 1 deadline on legal claims against the provincial Crown.

Liberal MLA Sue Olsen, the Opposition's Aboriginal Affairs critic in the Alberta legislature, says there's a bit of marketing in that claim, but also a lot of truth.

"There can be a problem down the road," Olsen said. "The legislation has been passed and it's in effect and we believe there needs to be some public education."

Olsen then suggested there will be no government-funded public education programs because it's in the government's interest to let the limitation period run out on legal claims in which the government will be named as a defendant. She urged Aboriginal people who may have a claim to contact a lawyer right away.

Peter Cadman, the director of communications for Alberta's Justice minister, says the legislation was designed to simplify life for those who deal with the province's legal system. He explained there has been no attempt to close off litigation against the government, but just to set reasonable limits on when someone can sue. A person, in many areas of law, is expected to take action within a reasonable time or else give up the right to take legal action, he said, and now the limitations period in Alberta is the same in almost all areas of law.

"This is something that actually is not all brand new," Cadman said. "All of this was recommended by the Alberta Law Reform Institute and it goes back to 1996 when it was given royal assent. Then it was approved by an order-in-council in 1998 and now it's coming into force. There's nothing really new about this. It's been out in the public and so on. The idea is to consolidate the law on limitations. There were a number of different limitations periods and no reason for them being different. This just creates a single limitation period for all acts in Alberta."

If you have a legal claim against the province you must act within two years from the moment you become aware of it. If you don't become aware that you have a legitimate legal gripe and 10 years pass, you're out of luck.

"If you discover it today, you have two years to file your claim. And you've got to be able to make your discovery 10 years after the fact," he said. "So, if something happened to you 10 years ago, you have to become aware [within] 10 years . . . and then you've got two years to proceed with it."

Tony Merchant, the lawyer who leads the Merchant Law Group, says his firm handles more residential school claims than any other firm in Canada.

"We act for 1,800 clients from Newfoundland to British Columbia; from the Arctic to some parts of the United States," he said. "For us, with about 400 clients in Alberta, this is a very serious development."

Merchant said he suspects the provincial government will use the new legislation as much as it possibly can to cut off legal claims against itself. He not only wanted to warn Aboriginal people that this development was upon them, he vowed to fight should the government attempt to use it to deny Aboriginal people the right to sue.

"If we are right in our interpretation and this proceeds as we suspect it will, we will fight the legislaion," he said. "I cannot imagine that the courts will find that it is fair and just for First Nations people in Alberta to be denied while those in Saskatchewan and British Columbia can sue."

The act has an exemption that allows land claims to proceed as if the act had not been passed. It also stops the clock for people who are unable to press a claim because of disability.