Klein (Re), 2021 ABQB 488

Klein (Re), 2021 ABQB 488


Erna Klein died intestate, meaning without a Will, in June of 2012. The parties in the application are siblings and children of Erna Klein and are in dispute over events arising from their mother’s death. Since their mother died intestate, the three siblings were each entitled to 1/3 of her Estate.

The parties attended Court on January 18, 2017, May 2, 2019, May 30, 2019, October 14, 2020, January 21, 2021, and March 5, 2021, to deal with some issues. The parties believe that several issues have still not been addressed.


Both parties in the present case are self-represented, although they were represented by counsel on previous court dates. 

Ann’s claims:

Ann claims Raymond took $58,000 cash from their mother’s residence. She further believes that Raymond and Marilynn split the amount, thus excluding from receipt of any portion of these funds. Ann claims Raymond withdrew $21,500 from his mother’s bank account before she became administrator.

Ann wishes to have two items from her mother’s Estate that hold sentimental value, but Raymond and Marilynn are refusing to give them to her. 

Raymond and Marilynn’s claims:

Raymond seeks reimbursement for hauling fees, Marilynn seeks $300 for reimbursement for certain expenses. Raymond and Marilynn believe Ann took money from accounts improperly, and that she failed to properly accounts for expenses. Raymond and Marilynn also request that Ann incur $100,000 of her legal expenses personally, because that amount was depleted from the Estate due to her refusal to cooperate and her misconduct.


The Honourable Mr. Justice R. A. Graesser, noted that most of the claims are either barred by the Limitations Act, or had already been litigated.

The general rule under the Limitations Act is that a claim must be brought through the commencement of legal proceedings within 2 years from learning of the existence of the claim. 

Further, once an issue has been litigated, a person may not commence new legal proceedings to address the same issues, rather, the appropriate course of action is to apply to appeal a Court Order.

1. Ann’s claim that Raymond took $58,00 and $21,000 are barred by the Limitations Act.

  a. The Court accepted she would not have been able to act on these claims until the was Administrator of the Estate, which occurred in August of 2013, thus these claims expired in 2015

2. Ann’s claim for her mother’s personal property that were in the possession of Raymond and Marilynn are barred by the Limitations Act

  a. Similarly, the ability to bring these actions expired two years after Ann was appointed as administrator

3. Raymond and Marilynn’s claims regarding Ann’s accounting was known when they applied to pass accounts and should have been litigated then

  a. Dissatisfaction with their lawyer, or inability to pay for an appeal

4. Raymond and Marilynn’s claim that Ann incurred excessive legal expenses and should pay for those expenses personally was already litigated

  a. In 2017 Justice Topolniski Ordered both parties legal fees be paid out of the Estate

5. Raymond and Marilynn’s claim for reimbursement from the Estate has expired

The only claim not barred was related to accounts under Ann’s control when she acted as Administrator of her mother’s Estate.


The Court Ordered Ann to obtain account statements, subject to her bank’s willingness and ability, for the period from June 30, 2015, to when the account closed.  

How May a Claim be Barred before the Courts?

Several doctrines and statutory provisions prevent a Court from addressing otherwise good claims. Thus, it is important to be aware of what these rules are, to ensure one is able successfully bring a matter before the Court.

One such statutory provision to be aware of is the Limitations Act. Under the Limitations Act, a defendant may be barred from being held liable for a claim. Section 3(1)(a) provides that if a person does not bring an action through the commencement of legal proceedings within 2 years after the date the person learned of a claim. Therefore, if two years have passed since a person became aware they had a claim, then they will be without a remedy.

Another doctrine to be aware of is issue estoppel. Issue estoppel prevents a party from re-commencing legal proceedings in respect of an issue that has already been litigated in judicial proceedings.

A similar doctrine is cause of action estoppel. Cause of action estoppel prevents a party from litigating a cause of action where the basis for the cause of action was litigated, or could have been litigated in prior judicial proceedings.

The recent case, Klein (Re), heard before the Court of Queens Bench in June of this year, provides an example of how the Courts may interpret these rules and principles. In this case, three siblings Ann, Raymond and Marilynn were before the Court regarding issues relating to the administration and distribution of their deceased mother’s Estate. Several judicial proceedings had been heard between the parties in dispute before the March Court date. The parties requested the Honourable Mr. Justice R. A. Graesser make an Order on several issues that remained in dispute.

However, Justice Graesser did not issue an Order on all the claims, because some claims were:

1. Barred by the Limitations Act; 

2. Should have been brought in prior judicial proceedings that had taken place between the parties; and/or

3. A previous judge had already issued an Order in relation to the claim

Ann’s claim that Raymond had taken money from their mother’s Estate, and her claim requesting possession of personal property owned by their mother, in Raymond’s possession, were barred by the Limitations Act. More than two years had passed since she knew of these claims, and the Court did not issue an Order.

Raymond and Marilynn had several claims that Justice Graesser did not issue an Order for. Their request for reimbursement of expenses from the Estate had expired. Their claim that Ann took money from accounts improperly, and that she failed to properly accounts for expenses was barred. Justice Graerer stated they should have litigated these matters when the Court addressed issues relating to accounting.

Raymond and Marilynn’s request that Ann incur $100,000 of her legal expenses personally, because that amount was depleted from the Estate due to her refusal to cooperate and her misconduct, was barred as well. The Court had previously issued an Order that all parties’ legal fees would be paid by the Estate, and the appropriate action would have been to bring an application to appeal the decision.

This case demonstrates the importance of bringing an application quickly once one becomes aware of a claim against another party, the importance of litigation all relating issues within one application, and the importance of following proper procedure and appealing an Order on an issue rather than commencing a new claim.

NOTE: The Court in Klein does not go over the principles of the issue estoppel or cause of action estoppel. He does not cite the legal doctrines that form the basis of why the claims cannot be brought.

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