[2] The appellant, Robert Homersham, and his professional corporation had a solicitor-client relationship with the respondents, who are related limited partnerships involved in land development.

[3] On April 2, 2015, the appellant commenced an application to review his lawyer’s accounts for outstanding accounts from 2012 to 2015 issued to the respondents pursuant to a 2012 Memorandum of Understanding (MOU) which the parties describe as a retainer agreement. The MOU between the appellant and the respondents provided for payment and lease of office space in exchange for legal services.

[4] On January 21, 2016, the appellant filed a statement of claim and amended the claim on December 16, 2016. The parties describe the details of the amendments differently, but in general, by the end of 2016, the appellant’s statement of claim initially claimed for the same accounts brought in the review and assessment application, added a defendant claiming liability as a related partner of the other respondents and claimed the respondents breached the 2012 MOU.

[5] On March 26, 2018, pursuant to a consent order, the appellant further amended his statement of claim to add a claim for breach of the respondents’ obligation to grant a lease of office space arising from an offer to lease from the respondents to the appellant, which was entered into in 2013 (Offer). The consent order provided that “Nothing in this order shall be an admission of the validity of the amended claims, and the Defendants are at liberty to file a Statement of Defence to the Amended Amended Statement of Claim”.

[6] On April 30, 2018, the respondents filed an amended statement of defence pleading the Limitations Act, RSA 2000 c L-12, in response to the breach claim.

[8] The respondents applied for a summary dismissal and on November 19, 2019, the applications judge granted a summary dismissal.

[9] The appellants appealed.

[10] On November 9, 2021, the chambers judge dismissed the appeal (which was conducted as a desk application).

Analysis

[11] The issues on this appeal are all mixed fact and law reviewable on a deferential standard.

[12] The consent order is clear on its face that the validity of any claims was not admitted and any rights of the respondents were preserved. The chambers judge did not err in concluding the respondents were permitted to defend on the basis that the added claim was out of time.

[13] Neither the applications judge nor the chambers judge erred in determining the added claim failed to meet the test under section 6(2) of the Limitations Act. They both correctly stated the test in section 6(2) which requires the added claim “be related to the conduct, transaction or events described in the original pleading in the proceeding”. Whether a new claim arises from the same conduct, transaction or events requires “an assessment of the whole factual and legal context”: DeSoto Resources Limited v EnCana Corporation, 2010 ABCA 110 at para 8.

[16] Both the applications judge and chambers judge considered and assessed the factual and legal context and while they came to their conclusions by different routes, the appellants have not shown any palpable and overriding error in their assessments.

Conclusion

[17] The appeal is dismissed.

Reasons for Judgment of The Honourable Chief Justice Ritu Khullar, The Honourable Justice Barbara Lea Veldhuis, The Honourable Justice Bernette Ho

Appeal from the Decision by The Honourable Justice K.D. Yamauchi, Dated the 1st day of November, 2021

(Full Decision)

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