It is critical to address limitation dates and other
deadlines when opening a file. Missing a date or deadline can have significant
consequences. Your client may lose all recourse to advance or protect their
interests, and a financial claim and complaint may be made against you. The
information in the following sections can help you avoid the two most common
reasons lawyers miss dates and deadlines: lack of knowledge and poor practice
management.
Know your Limitation Dates and Deadlines
There can be several limitation dates and deadlines to
address in a matter, depending on the facts and issues to be resolved. It is
imperative to have a thorough understanding of the legislation and rules common
to your practice areas and know where to access this information when needed.
There are three main sources to consider when opening
and moving a matter forward.
Legislation is reviewed
to determine the application limitation dates. CanLII provides free online access to all provincial and
federal legislation. The Alberta Limitations Manual and Federal Limitations Manual are fee-based products that may be worth considering
if you are new to a practice area or looking for a comprehensive resource, as
it allows you to identify limitation periods by subject and provides annotated
sections. Both Manuals can be accessed through the Alberta Law Libraries.
LAWPRO’s Common Limitation Period Pitfalls and How to Avoid
Them provides valuable
insight on things to watch out for when determining limitations dates and
protecting client interests.
Court rules are reviewed
to determine procedural deadlines, such as time for filing and service of
pleadings, disclosure of records and entry of judgments and orders. The Alberta Rules of Court is a key reference document for lawyers whose
practice includes matters in the Court of King’s Bench of Alberta or the Court
of Appeal of Alberta; if your practice includes these type of matters it might
be helpful to save or print a copy so that it is easily accessible. You may
want to consider doing the same with the Federal Courts Rules if your practice involves federal court matters. The
Alberta Limitations Manual and Federal Limitations Manual are also helpful when
reviewing court rules as each include annotated sections for select rules.
One important consideration in the Alberta Rules of
Court that is sometimes overlooked is the dismissal for long delay, or “drop
dead” rule (4.33), which provide litigants an opportunity to seek to dismiss an
action based on a period of inactivity from the opposing party. Using Master
File Lists, described in more detail later in this module, or a similar system
is crucial to identifying and acting on matters before they become inactive for
a lengthy period.
Practice notes and
directives are reviewed to determine the governing court practices and
procedures relating to the specific matter, which can include deadlines for
filing and service. The Alberta Courts publish the relevant notes and directives based on
the level of court and area of law.
These documents are periodically amended, and
subscribing to the courts’ mailing lists can help to ensure you stay current on
these changes.
Diarizing Limitation Dates and Deadlines
While some circumstances may require you to
immediately address an impending limitation date or deadline upon being
retained, it is common to delay commencing an action on behalf of your client.
Investigation into the matter may be necessary. Commencing an action is often
not conducive to parties engaging in certain types of alternative dispute
resolution or otherwise trying to settle their matter out of court. There may
also be strategic reasons for not immediately commencing an action. Whatever
the reason, you should implement a standardized diary schedule across your
practice to ensure that you are reminded of the limitation as they approach.
The diary schedule you implement should consider
repetition and timing. Lawyers are busy and have many distractions, which can
sometimes result in reminders being overlooked. Having multiple reminders will
help to ensure the deadline is not missed. When to diarize a matter involves
considering how long it may take you to review the matter, prepare draft
pleadings, provide a copy of the pleadings for your client’s review, make any
necessary revisions and file the pleading with the court. Also consider that
circumstances out of your control, such as illness, technological issues and
emergencies arising on other files, can arise. Give yourself ample time so you
do not find yourself in the stressful situation of trying to file a pleading at
the last minute.
While the diary schedule you implement should be
personal to your practice and circumstances, consider at minimum having a
reminder date that is six months, three months, and one month prior to the
limitation date. In the last month, consider weekly and/or daily reminders. A
similar schedule can be implemented for addressing other deadlines that arise
as the matter progresses.
Diary Systems
Limitation dates and deadlines can be tracked using a
manual system, electronic calendar application or software designed to track
limitations.
Manual systems involve entering the limitation date
and deadlines into a physical diary or calendar. This system requires someone
manually calculating the various dates for entry which increases the chance of
an error occurring. It also does not allow for ease of sharing information
among staff. As dates cannot be backed up, misplacing the physical diary can
result in needing to review every file to create a new diary and potentially
missing deadlines in the meantime. While a manual system can still serve as a
backup, it is not recommended as your primary diary system.
Most lawyers already have an electronic calendar
application by virtue of having Microsoft Office, but any electronic calendar
application could potentially work. This system addresses many of the downfalls
of a manual system without adding to your overhead: when entering the date it
allows for recurring reminders to automatically be set, it allows other staff
to access the same calendar on their computer or smartphone to jointly manage
dates, and depending on the version of Microsoft the data can be backed up to
your server or the cloud. Microsoft’s Calendar resource provides a good overview of how to manage, customize and share
your calendar.
Software systems designed to track limitations can
provide a more simplified and sophisticated approach. See the Law Society’s What to Look For in Limitations Software and Limitations Software Options resources for more information and the benefits of
this type of system.
The following are important considerations when
determining the type of system(s) to use:
- Be consistent with the
information that is entered. The entry should be detailed enough so that the
nature of the deadline is clear.
- Take care when
determining deadlines and entering dates. A miscalculation can easily result in
missing a limitation date or other deadline, so this is not a step that should
be rushed. Consider restricting this work to include yourself and your primary
assistant.
- The system should be
easily accessible by all involved staff. Ensuring others can access the
calendar is important from a contingency planning perspective in case you fall
ill or are otherwise away from the office.
- A primary designated
person should be responsible for reviewing and following up on entries each
morning, with a secondary designated person stepping in if the primary person
is away from the office. Having multiple people simultaneously responsible for
a task can result in misunderstandings and mistakes happening.
- Avoid relying on just
one system to manage your deadlines and address them in multiple places. This
will prove invaluable in the unfortunate event that your server or internet is
down, or your office is inaccessible. As
part of your file opening procedure, you can ensure all dates are noted on your
checklist or other opening file document that you reference. You can use a
combination of the above diary systems. Creating and maintaining a Master File
List, described in detail later in this module, also serves as an essential
tool as you are reviewing the status of each your files weekly.