Elzein v. Caplink Financial Corporation, 2011 ABQB 184

Court of Queen ’ s Bench of Alberta Citation: Elzein v. Caplink Financial Corporation, 2011 ABQB 184 Date: 20110318 Docket: 1003 21891 Registry: Edmonton Between: Gamila Suzanne Elzein, Dr. Leila Ellen Elzein, Martin Giesbrecht and Anneliese Giesbrecht Plaintiff/Respondents - and - Caplink Financial Corporation, Deloitte & Touche Inc. and the Royal Bank of Canada Defendants _______________________________________________________ Endorsement of the Honourable Madam Justice J.B.

Veit _______________________________________________________ [ 1 ] Deloitte & Touche Inc., the court-appointed receiver of units 1-18, 21-24 inclusive, and of the undivided one ten thousandth shares in the common property of the lands described as condominium plan 1023241 applies to strike out the statement of claim filed against it on December 29, 2010 by the respondents. The respondents are owners of condo units 19 and 20, which are not covered by the receivership order.

Although the claim is for general, special and punitive and exemplary damages, at the hearing, counsel for the respondents indicated that, on an interlocutory basis, the respondents would be satisfied if Deloitte were to turn over to them the keys to their units.

[ 2 ] Deloitte relies on para. 8 of the August 4, 2010 order appointing the receiver which states: No proceeding or enforcement process in any court or tribunal (each, a “Proceeding”), shall be commenced or continued against the Receiver except with the written consent of the Receiver or with leave of this Court. [ 3 ] Noting, as well, that there are no occupancy permits for any of the units in the condominium, Deloitte argues that, here, the “need to apply for leave” term is substantive because of the potential liability issues in relation both to the respondents and to those having an interest in the completion of the condominium. [ 4 ] Deloitte’s application is allowed: the respondents’ claim is stayed pending their bringing a leave application to proceed against the receiver.

The requirement for leave is both formal and substantive. [ 5 ] If the parties are not agreed on costs, I may be spoken to within 30 days of the release of this decision. Heard on the 17 th day of March, 2011. Dated at the City of Edmonton, Alberta this 18 th day of March, 2011. “J.B. Veit” J.B. Veit J.C.Q.B.A. Appearances: Michael J. McCabe, Q.C., Reynolds Mirth Richards & Farmer LLP for the Applicant, Deloitte & Touche Inc. Hamish J. Henderson, for the Respondents