Green v. Strathcona County, 2011 ABQB 149

Court of Queen ’ s Bench of Alberta Citation: Green v. Strathcona County, 2011 ABQB 149 Date: 20110308 Docket: 0403 13098 Registry: Edmonton Between: Carrie Green and Evan Green Plaintiffs - and - Strathcona County, Darrell Lazarenko and Nina Lazarenko Defendants - and - Russell Edward Belseth and Christopher Lee Belseth Third Parties - and - Alexander Engineering Ltd. Third Party _______________________________________________________ Memorandum of Decision

of L. A. Smart, Master in Chambers _______________________________________________________ The Application [1] The Applicant Alexander Engineering Ltd. (“Alexander”) applies for

summary dismissal of third-party proceedings againstit by the Strathcona County (“Strathcona”) against it. Alexander and Strathcona agree that the test applicable for granting

summaryjudgment is no different in the case of a third-party application and application by any other party; the same legal and evidentiarystandards apply. Chief Justice Moore, as he then was, stated in Northland Bank v. Willson (1997), (AB KB), 201A.R. 23 that: A Third Party Notice should only be struck or dismissed on a

summary judgment application in the clearest possible case. Any doubtmust be resolved in favour of the party issuing the Third Party Notice. It must be manifestly clear that there is no triable issue of fact orlaw and that the claim being challenged has no chance of success at trial. If there is a triable issue of fact or law,

summary judgmentshould be refused and the matter should proceed to trial. Background [2] Russell Belseth commenced construction of a residence (the “Residence”) in the 1992/ 93 in the County of Strathconawithout first obtaining a development or building permit. Strathcona first became aware of the Residence in November 1993 after it was90% complete and its foundation fully covered and backfilled. Mr. Belseth was given the opportunity to apply for a development andbuilding permit or have the Residence demolished. [3] On January 4, 1994 Mr.

Belseth applied to Strathcona for the permits and included design drawings of the completedfoundation. The foundation was built using footings and piles and as this was not typical Strathcona required an engineer to reviewed theconstruction of the foundation and provide certification that the foundation met the requirements of the Alberta Building Code (1990). The design drawings including the foundation plans were provided to Alexander and it was represented that the design drawingsrepresented what was constructed in the field. Mr.

Belseth requested Alexander to review the drawings provided and stamp thefoundation plans to satisfy the requirements of Strathcona. [4] Alexander did not affix its stamp to the plans but by its principal Bruce Alexander provided a letter to Strathcona certifyingthat the foundation of the residence was adequate to provide safety to the occupants. He states that he reviewed the drawings and that heunderstood that the foundation had been installed and had behaved satisfactorily since construction. He noted that the soil described byMr.

Belseth seem typical of the soil generally found in Strathcona County and if the soil was typical the piles were believed to beadequate to support gravity loads but that longer piles would have been preferable to prevent frost jacking, a process which causesheaving of piles during the winter season. Furthermore the rear wall was supported by a combination of strip footing and piles whichwas not recommended as the piles could not resist up the forces caused by a frost action on the underside of the footing should suchforces develop.

Following further discussion regarding the construction including a recommendation for proper construction heconcludes that “Frost heave, should it occur, will affect future performance of the structure but will not affect the safety.” [5] In 2002 the Plaintiffs Carrie and Evan Green (the “Greens”) purchased the property from Darrell and Nina Lazarenko. Theallegations in the statement of claim are that in 2003 the Greens discovered that the foundation of the Residence was cracking andsinking, resulting in uneven floors and cracks in the walls.

In 2004, the Greens were informed that the cracking and sinking of thefoundation of the Residence was caused by the inadequate construction and design of the foundation footings and piles, resulting in theoccurrence of frost jacking, caused by seasonal freezing and thawing of the soil supporting the foundation of the Residence.

Argument [ 6 ] Strathcona says the issue before the Court will be whether Strathcona took reasonable and adequate steps in the circumstances in issuing the building permit. One of the main allegations against Strathcona was that it failed to take adequate steps to inspect the foundation to ensure it was properly built and would provide safety to the residence. Strathcona defends the claim on the basis that it relied on the opinion of Alexander to review the foundation construction and advise if construction met the purpose and intent of the Alberta Building Code (1990).

The plaintiffs alleged that Strathcona should have taken further steps in the circumstances to inspect the foundation and review the soil characteristics surrounding the foundation before issuing the building permit.

If found liable the issue arises as to whether in the circumstances Alexander owed a duty to perform an inspection and confirm the soil characteristics knowing the County would rely on its opinion. [ 7 ] Alexander says that the County did not rely on its letter in making its decision to issue a development or building permit; the information and cautions contained in the letter were accurate; and Strathcona ’ s claim is out of time and barred by the Limitations Act, RSA 2000 c. L-12 .

Discussion and Conclusion [ 8 ] At this point there appears to be limited evidence of reliance upon the letter provided by Alexander. Although there is no question that there must be reliance for there to be liability, the receipt of the letter and the issuance of the standard “ pro forma open quote Building Code Analysis ” is sufficient to establish reliance for purposes of resisting the

summary dismissal application. [ 9 ] Alexander in its letter to Strathcona identified the risk of frost heaving based on the drawings presented to it. It set out what it would have recommended for constructing the foundation. Recognizing that the foundation could not be inspected it went on to recommend prophylactic measures to be taken to potentially avoid circumstances which would lend itself to the risk of frost heaving actually occurring in the future.

Finally, it commented that it was not a safety issue. [ 10 ] On a careful examination of the Statement of Claim contrary to Strathcona ’ s argument there is no allegation that safety is an issue whatsoever. The allegations and complaints made by the Greens are remarkably similar to the very concerns raised by Alexander. It is obvious that further inspections of a filled in foundation and an analysis of the soil would result in precisely the same conclusions. Strathcona wanted an opinion. They got one that has proven to be entirely accurate.

There is no need to complete a lengthy detailed legal analysis in this case. Alexander having liability to Strathcona under these circumstances defies common sense and logic. [ 11 ] Having reached the foregoing conclusion I need not consider the issue of the Limitations Act defence. [ 12 ] Accordingly, the application by Alexander for a

summary dismissal is hereby granted. Alexander will have its costs of the action to date including costs for this application without an allowance for a brief Heard on the 07 th day of September, 2010. Dated at the City of Edmonton, Alberta this 8 th day of March, 2011.

L. A. Smart M.C.C.Q.B.A. Appearances: George (Joe) Chivers Brownlee LLP for the Defendants Paul Sharek, Q.C. Emery Jamieson LLP for the Third Party - Alexander Engineering Ltd.