Condominium Corporation No., 2011 ABQB 653

Court of Queen ’ s Bench of Alberta Citation: Condominium Corporation No. 0311443 v. Goertz, 2011 ABQB 653 Date: 20111031 Docket: 0901 03801 Registry: Calgary Between: Condominium Corporation No. 0311443 Plaintiff/Respondent - and - Robin James Goertz Defendant/Applicant And Between: Robin James Goertz Plaintiff by Counterclaim - and - Condominium Corporation No.: 0311443 and Condominium First Management Services Ltd. and Longley Condominium Services Ltd. Defendants by Counterclaim - and - Condominium First Management Services Ltd.

Third Party to Counterclaim _______________________________________________________ Memorandum of Decision of the Honourable Madam Justice R.E. Nation _______________________________________________________ [ 1 ] I heard an application brought by the Defendant in morning chambers on September 27, 2011. The application was filed August 25, 2011 asking for “

a) Clarification of the Order of Justice Poelman of July 27, 2011, .... to reflect the proper content and direction of the Honourable Justice Poelman” and “

b) Reinstatement of the Appeal of the Order of Master Hanebury filed on June 27, 2011 ...". [ 2 ] The grounds for making the application by the Applicant, Robin James Goertz, was that the Order as filed did not properly reflect the decision of Justice Poelman.

The paragraph to which the Applicant objects is paragraph one which states: The appeal set for August 24, 2011 (adjourned from August 8, 2011 by consent) is struck in its entirety against the Plaintiff, all Defendants by Counterclaim, and the Third Party to Counterclaim. [ 3 ] In short form, the applicant’s argument is that there were two appeals filed and before Justice Poelman, an appeal of the Order of Master W.S. Schlosser dated March 30, 2011 and also an appeal of the Order Master J.B. Hanebury, Q.C. dated May 27, 2011. The applicant’s argument is that Justice Poelman dealt only with the Order of Master W.S.

Schlosser, but he did not deal with the appeal of Order of Master J.B. Hanebury, Q.C. and so that latter appeal should be reinstated. [ 4 ] The Respondent’s position is that there can be no purpose in restoring the appeal of Master Hanebury’s Order to the list, as it merely was to determine if the Order entered after the decision of Master W.S. Schlosser was correct in its wording. [ 5 ] The background of this whole matter is a lawsuit which was filed by the Condominium Corporation No. 0311443 as Plaintiff against Robin James Goertz on March 12, 2009.

It alleges that there are various condominium fees which have not been paid by the Applicant, the outstanding amount as of March 31, 2009 was a total of $8,143.73. [ 6 ] The Application filed by Mr. Goertz which was heard by Master Hanebury, Q.C. on May 27, 2011, was as a result of an Application asking for “Clarification of the Order of Master Schlosser of March 30, 2011 ... to reflect the proper content and direction of Master Schlosser”. In that application the Applicant was taking the position that the filed Order did not correctly reflect the details of what was ordered by the Master.

Master Schlosser had dismissed the application of Robin Goertz, which was about technical difficulties in relation to the Affidavits on Production. Master Schlosser directed that the Condominium Corporation No. 0311443 was to provide an accounting to Robin James Goertz, and upon provision of the accounting, the parties were directed to attend a mediation. [ 7 ] On May 27, 2011 Master Hanebury, Q.C. dealt with the Application for clarification of the Order of Master W.S. Schlosser.

The transcript indicates that Master Schlosser was not available. Master Hanebury, Q.C. went through the transcript of the hearing in front of Master Schlosser and refused to give any further Order, indicating that the Order as filed reflected what Master Schlosser directed. [ 8 ] Mr. Goertz filed an appeal of both the Order of Master Schlosser and the Order of Master Hanebury, Q.C.

He filed an Affidavit on July 25, 2011 which included as Exhibit “B” a written argument which was presented to Justice Poelman entitled: APPEAL HEARING originally set for August 8, 2011, before the presiding Justice in Chambers, adjourned by agreement to August 24, 2011. 1. Appeal of the Order of Master C.S. [sic] Schlosser dated March 30, 2011. 2. Appeal of the Order of Master J.B. Hanebury Q.C. dated May 27, 2011. [ 9 ] The Condominium Corporation No. 0311443 filed an Application July 11, 2011 returnable on July 20, 2011 for an Order that the appeal set August 8, 2011 be dismissed with costs.

The basis of the application was that the Application under appeal was made before Master Schlosser on March 30, 2011 and the appellant failed to file an appeal on time.

The Notice of Motion also pointed out that the appellant had previously set down an application to “clarify the order of Master Schlosser” which was heard by Master Hanebury on May 27, 2011. [ 10 ] Justice Poelman clearly struck the appeal which was set for August 24, 2011 in its entirety, based on the fact that it was filed out of time. [ 11 ] During the appeal, Justice Poelman addressed his mind to the Orders of the two Masters, and stated at p. 11: The notice of appeal that Mr.

Goertz has filed, which I have reviewed carefully, is expressly stated to be an appeal from the Order of Master Schlosser pronouced on March 30, 2011 filed on May 2, 2011. It is not an appeal of whatever it was that Master Hanebury did and ordered.

The only reference to Master Hanebury’s proceedings in the appeal is to refer to it as additional evidence to be relied on. [ 12 ] It is clear that Justice Poelman dismissed the Applicant’s appeal of the Order of Master Schlosser. [ 13 ] Although technically it can be argued that the appeal of the Order of Master Hanebury, Q.C. was not specically dealt with, in the unique fact situations of this case once the appeal of Master Schlosser’s Order was dismissed, there is no juristic reason to allow the appeal of the Order of Master Hanebury to proceed.

This is because Master Hanebury was merely reviewing the transcript from the Order of Master Schlosser, and determining if there was anything incorrect about the Order that was subsequently entered to reflect that decision. The affect of the striking of the appeal is that the Order of Master W.S. Schlosser stands. [ 14 ] As Master Hanebury made no decision that affect or changes the Order of Master Schlosser, there is no juristic reason in the circumstances for an appeal of the Order of Master J.B. Hanebury, Q.C. to proceed.

I am not directing that it be restored to the list. [ 15 ] In terms of reducing this written decision into an Order, pursuant to Rule 9.4(1) any Order that is entered will be signed by myself. Counsel for the Respondent will draft that Order within 10 days of the receipt of this decision, and provide it to the Applicant for approval. If the Order is returned approved it is to be provided to myself for signature. If the Order is not returned approved within 10 days, counsel for the Respondent will provide me with a copy of the Order. Mr.

Goertz shall concurrently provide me with a letter outlining why he objects to the wording of the Order and I will sign the Order with any changes that are appropriate to concur with this written decision.

[ 16 ] As a result, the application brought by the Applicant filed August 25, 2011 is dismissed. There is no need to clarify the Order of Justice Poelman of July 27, 2011 which he signed himself in chambers, nor is there a juristic reason for the reinstatement of the appeal of the Order of Master Hanebury, Q.C. filed June 27, 2011. Heard on the 27 th day of September, 2011. Dated at the City of Calgary, Alberta this 31 st day of October, 2011. R.E. Nation J.C.Q.B.A. Appearances: Richard I.

John for the Plaintiff and Defendants by Counterclaim, Condominium Corporation No. 0311443 and Longley Condominium Services Ltd. Robin James Goertz not represented by counsel Claire A. Bennett for the Defendant by Counterclaim and Third Party to Counterclaim, Condominium First Management Services Ltd.