Limitations Remain Even After Death

A Plaintiff whose limitation period has run out and who is faced with a Defendant who relies on section 3 of the Limitations Act, RSA 2000, c L-12, will find it next to impossible to escape the Act’s effect. Edna Saito ran into precisely this problem, among others, in Saito v Lester Estate, 2021 ABCA 179.

“The test for discoverability is largely objective and looks at what a reasonable person in the same circumstances would have either known or discovered with some diligence”.

Ms. Saito was potentially a common law or adult interdependent partner (AIP) of the deceased, Sydney Lester, at some point in their lives. Whatever relationship they did have seemed to become more complicated when Mr. Lester took on a new partner and moved away from Ms. Saito to a different province in 2008, while allowing Ms. Saito to continue to reside in a house he owned.

Mr. Lester died in 2015 with Ms. Saito making several claims against his estate in 2016. Mr. Lester’s new partner, Norma Gutierrez, claimed they had begun dating in 1999 and became common law partners from 2004 until Mr. Lester’s death. Mr. Lester’s will and other financial documents agreed, with Ms. Gutierrez referred to as “my loving common law wife” and Ms. Saito as a “friend” or “a very special friend”.

As it had certainly been more than two years since Ms. Gutierrez was involved, the Lester Estate claimed, inter alia, that Ms. Saito was time-barred from making claims by the Limitations Act. Ms. Saito disagreed, without corroborating evidence as required by section 11 of the Alberta Evidence Act, RSA 2000, c A-18, and claimed implausibly that she only learned of the relationship’s demise by a 2014 phone call with Mr. Lester.

The Court of Appeal of Alberta found the special chambers justice below made no reviewable error in determining that Ms. Saito was indeed time-barred. It depended not on her cause of action but rather the discoverability of her claim. Ms. Saito should have discovered her relationship was over at least when Mr. Lester moved away from her. Even if Ms. Saito was not time-barred, there was no evidence of weight to support her position that she was an AIP of Mr. Lester until that point and considerable corroborated evidence to the contrary.


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