Krook v. Cold Lake (City), 2012 ABQB 120

Court of Queen ’ s Bench of Alberta Citation: Krook v. Cold Lake (City), 2012 ABQB 120 Date: 20120222 Docket: 0714 00296 Registry: St. Paul Between: David Alan Krook and Shelley Grace Krook Plaintiffs - and - City of Cold Lake and Perry Whan Defendants Editorial Notice: On behalf of the Government of Alberta personal data identifiers have been removed from this unofficial electronic version of the judgment. _______________________________________________________ Reasons for Judgment of the Honourable Madam Justice J.H.

Goss _______________________________________________________ Introduction [ 1 ] The Plaintiffs , David and Shelley Krook, purchased a residence from the defendant, Perry Whan, the original owner and builder of the house. The Plaintiffs became aware of damage to the foundation and filed a claim on December 3, 2007, alleging negligence on the part of Perry Whan and the City of Cold Lake (the “City”). The City alleges that the claim against it is statute barred.

[ 2 ] On November 23, 2009, Whan and the City applied for

summary judgment or alternatively for an order directing the trial of a preliminary issue as to whether the action was statute barred. The action against Whan was found to be statute barred: Krook v Cold Lake (City) , 2009 ABQB 737 , 2009 AJ No 1425. However, the claims against Whan were restored on appeal: Krook v. Cold Lake (City) , 2010 ABCA 324 . [ 3 ] The action against the City was initially framed in both negligence and nuisance. The City was successful in its

summary judgment application with respect to the claim of nuisance against the City alleging a failure of an environmental reserve adjoining the Plaintiffs ’ property. That claim was dismissed: Krook v. Cold Lake (City) , 2010 ABQB 2 , [2010] AJ No 4 and the decision was not appealed. [ 4 ] The limitations issue as it relates to the City was directed to a preliminary trial, as the materials filed on the

summary judgment application were not sufficiently clear to allow for a determination: Krook v. Cold Lake (City) , 2009 ABQB 737 , [2009] AJ No 1425 . [ 5 ] This Court heard the preliminary trial of the City’s limitations issue . Facts [ 6 ] The house in question is located at [...] - 28 Street in Cold Lake, Alberta on Block 12, which was created in 1965 and subdivided in 1995 into three lots. It was zoned for single family residence. No further subdivision has taken place. [ 7 ] The property was purchased by Whan in 1996. He applied for development approval on July 28, 1997.

The Town of Cold Lake Municipal Planning Commission approved his application on August 14, 1997. [ 8 ] On August 21, 1997, Whan applied for and obtained a building permit from the Town of Cold Lake. It was approved on the basis that the construction plans complied with the Alberta Building Code. [ 9 ] The General Manager of Public Services for the City of Cold Lake, Douglas Parrish, gave evidence. He stated that a geo- technical engineering assessment is typically done, if one is done at all, at the subdivision or development permit stage. Such an assessment was not done in this case.

There was no other evidence before me on this point. [ 10 ] Whan acted as the general contractor. Construction on the house began in the summer of 1997. The foundation was completed by mid September 1997. By November 21, 1997 construction of the foundation, including weeping tiles and backfill, was complete. Whan moved in before Christmas of 1997.

According to the completion inspection conducted on behalf of the mortgagee, the house was 97% complete on December 29, 1997. [ 11 ] The City’s Quality Management Plan (QMP) provides that a construction review is to be carried out to determine whether or not the construction complies with the appropriate codes and standards. The minimum construction review is to be in accordance with the QMP. The QMP provides for five areas of review for single and two family dwellings and four possible inspections on a construction review: - footing/ foundation/drainage

- framing/insulation/vapour barrier - final - remedial. [ 12 ] The City carried out one inspection during construction. This inspection on December 8, 1997 was for framing, insulation, and vapour barrier. There is no evidence that any other inspection took place. [ 13 ] In April 1998, Whan built a retaining wall on the property, approximately 30 to 40 feet from the house. The retaining wall is not connected to the house. In the summer of 1998 a sprinkler system was installed, topsoil was spread and sod was laid.

The City does not require, nor did it issue, a building permit or any other kind of permit for the landscaping, including the retaining wall. The City also does not require, nor did it issue, an approval once the landscaping, including the retaining wall, was completed. [ 14 ] The Plaintiffs purchased the property from Whan on March 30, 2001. [ 15 ] In late April or early May 2004, the Plaintiff David Krook observed a noticeable crack on the exterior foundation wall on the north side of the residence. He also discovered cracks forming on interior walls and cracked floor tiles in the front entry.

Bathroom doors had to be planed on a couple of occasions, and water entered the downstairs bathroom on the north wall on one occasion in the early spring of 2004. [ 16 ] In May 2004, the Plaintiffs hired a foundation specialist to investigate and fix the crack that appeared in the exterior foundation wall. A letter from the foundation specialist, entered as an exhibit, describes that it was obvious from a first look at the major cracks that there was significant movement and that further assessment was required.

The foundation specialist retained a professional civil engineer for this purpose. [ 17 ] The north side of the house was hand excavated by the foundation specialist. It was determined that the problem was caused by improperly installed weeping tiles, which were allowing water to penetrate under the footing, thus undermining the soil and causing portions of the footing to collapse. The problem was compounded by the fact that the stepped footings were not tied together. [ 18 ] The engineer made recommendations for repair work.

Repairs included excavating along the north foundation wall, reinforcing the existing foundation footings, tying the stepped footings together and installing new weeping tile with a down slope drainage outlet. [ 19 ] The foundation specialist completed the foundation repairs in accordance with the engineer’s recommendations on or about June 10, 2004 at a total cost of $13,631.75. The Plaintiffs were not happy about the bill but “left it alone”. They understood that the repairs had rectified the problems identified by the specialist. [ 20 ] In 2007, Mr.

Krook noticed that a baseboard had popped in his basement and saw cracks between his basement walls and floor. He immediately contacted the civil engineer who had recommended and overseen the repair work in 2004. Krook also called another foundation specialist who suggested that a geo-technical engineering specialist be called in.

A geo-technical engineering specialist was retained, did some testing and advised the Plaintiffs that the problems included the fill under the foundation and footings, fluctuating water table levels, lack of drainage around the foundation walls and footings, and the retaining wall. [ 21 ] The Plaintiffs filed the Statement of Claim on December 3, 2007 against the City and Whan. Legislation

[ 22 ]

Section 1 (

a) of the Limitations Act , RSA 2000, c L-12 defines “claim” as “a matter giving rise to a civil proceeding in which a claimant seeks a remedial order”. This definition has been considered in a number of cases. In Stuffco v Stuffco , 2006 ABCA 317 at para 25 , 397 AR 111 (CA), the Court held that “claim” refers to the facts giving rise to the injury or offence for which a remedial order is sought . The Court cited the Alberta Law Reform Institute Report No. 55 on Limitations at 50 which states that when considering the ultimate limitation period, most claims accrue at the time of the defendant's conduct; in other words, at the time when the defendant did, or failed to do, something. [ 23 ]

Section 3 of the Limitations Act sets out the relevant limitation periods: 3(1) Subject to

section 11, if a claimant does not seek a remedial order within (a) 2 years after the date on which the claimant first knew, or in the circumstances ought to have known, (

i) that the injury for which the claimant seeks aremedial order had occurred, (ii) that the injury was attributable to conduct of the defendant, and (iii) that the injury, assuming liability on the part of the defendant, warrants bringing a proceeding, or (b) 10 years after the claim arose, whichever period expires first, the defendant, on pleading this Act as a defence, is entitled to immunity from liability in respect of the claim.

(2) The limitation period provided by subsection (1)(

a) begins (

a) against a successor owner of a claim when either a predecessor owner or the successor owner of the claim first acquired or ought to have acquired the knowledge prescribed in subsection (1)(a)...

(3) For the purposes of subsection (1)(b), (

a) a claim or any number of claims based on any number of breaches of duty, resulting from a continuing course of conduct or a series of related acts or omissions, arises when the conduct terminates or the last act or omission occurs; (

b) a claim based on a breach of a duty arises when the conduct, act or omission occurs... Two Year Limitation Position of the City [ 24 ] The City submits that the action is barred against it under s. 3(3) (

a) of the Limitations Act , as the Plaintiffs launched their claim more than two years after they discovered the injury in 2004. The Plaintiffs were clearly aware of structural damage to the

foundation of the house by early 2004 through Mr. Krook’s own observations, and information provided by the foundation specialistsretained by him that year. The foundation specialists identified major cracking and advised that significant movement had occurred. Anengineer was also consulted to determine what repairs were necessary and how best to make those repairs. The repairs included repairsto the footings supporting the residence.

It should have been apparent to the Plaintiffs at the time of these repairs in 2004 that the injurywas sufficiently serious to warrant bringing proceedings. [25] The City further submits that the Plaintiffs undertook a fairly major construction and rehabilitation project in 2004, and thatthey knew or ought to have known that the injury for which they now seek a remedial order had occurred. The injury affected thefootings of the foundation, a component of the support for the entire residence, and was attributed to improperly installed weeping tile,affecting the drainage of groundwater around the foundation.

The issue of drainage of groundwater, which reappeared in 2007, wassimply a continuation of that same injury. The 2004 foundation issues were a critical first indication of the underlying cause of the problem.

Based on this initialsequence of events in 2004, the Plaintiffs - using reasonable diligence - ought to have known that they had a potential cause of action. [26] Furthermore, the Plaintiffs ought to have known that the alleged injury was arguably attributable at least in part to theconduct of the City, as they ought to have known that the City had been involved in approving the original development and constructionpermits. [27] The City notes that “ought to have known” implies reasonable diligence, citing Hill v South Alberta Land RegistrationDistrict (1993), 1993 ABCA 75 , 135 AR 266, 1993 Carswell Alta 307 (CA), leave denied [1994] 1 SCR viii: [8] ... the discoverability rule of limitations...does not call for perfect certainty.

It does not require discovery at all: it says something elsewill do instead. It suffices that "the material facts on which [the cause of action] is based... ought to have been discovered by the plaintiffby the exercise of reasonable diligence...: Central Trust v. Rafuse (SCC), [1986] 2 S.C.R. 147, 224. If the plaintiff istold a fact by someone who is likely to know, surely that makes the fact known or discoverable, even if someone else disputes the fact.Very few people who sue have perfect certainty.

Therefore, while the full extent of the cause of the injury or the full extent of the damages may not have been known to the Plaintiffs in2004, they had sufficient knowledge of the cause of the injury: a drainage issue affecting the foundation. Position of the Plaintiffs [28] The Plaintiffs concede that they knew in 2004 that there was a problem with cracks in the house and that Mr. Krookinvestigated those cracks by bringing in experts. Mr. Krook was told by the experts that the footings had been undermined by water inthe area, causing them to fail which in turn caused the cracking.

He was told by the experts that the problem was caused by improperlyinstalled weeping tiles, compounded by the fact that the stepped footings were not tied together. He was told the problem could be fixed.He took all of the steps the experts recommended to remedy the problem, and was assured by the experts that the problem was fixed. [29] The Plaintiffs did not further pursue the question. Krook was not happy with the $13,000 bill for repairs but “left it alone”. Itwas not until 2007, when problems reemerged, that the Plaintiffs discovered that the issue was much larger, involving the fill and theretaining wall.

This was when they became aware that the defendants had not fulfilled their duties. [30] The Plaintiffs argue that “discoverability” is defined subjectively in the context of the two year limitation. The Court mustconsider the persons who discovered or ought to have discovered the injury. What is their station in life? Could they be expected to havediscovered the injury? [31] The Plaintiffs assert that they had never before dealt with foundation issues.

They could not have been expected to know in2004 that the fill or the Allan block walls were causing the problem, as they were not so advised by the experts they had retained. Analysis

[ 32 ] In Seidel v Kerr , 2003 ABCA 267 , 2003 CarswellAlta 1339 , the Court held: 57 ...it was inadvisable to determine the limitations issue as a preliminary point.... [the] issue is more appropriately determined in the context of all the facts. ...no determinations have been made on the matters such as the acts of concealment, and whether discontinuing first action was also an oppressive act. 58 The trial judge took the approach that the limitation period would be determined by what Seidel knew or could have learned from the means available to him.

The trial judge did not attempt to define the causes of action and made little attempt to determine when they precisely arose. By asking what Seidel should have known or could have known if he availed himself of the information in the financial statements and records, the trial judge imbedded legal conclusions in his question. His approach to the issue assumed that the discontinued first action and the concealment of the facts did not themselves constitute oppressive conduct.

He focused on the management fees, which he states were manifest in the financial records by 1981 and by 1985 at the latest. 59 Seidel is a carpenter with grade eight education. It should not be assumed that merely because he was shown some financial statements in 1981 he could have determined that the repayment of the loans was being set off against management fees. Nor should it be assumed he could or should have figured out what the tax write-offs actually were.

The legal conclusions might be apparent to the trial judge and counsel, but inquiries should have been made regarding what Seidel, given his background and education, actually knew. Authorities such as Calmont , supra , have held that s. 4(1)(

e) of the Limitation of Actions Act refers to actual discovery, not discoverability. [ 33 ] As stated by Mr. Krook, the 2004 bill for the assessment and repairs was high. They were not happy about it but they “left it alone”. I am satisfied on the evidence before me that the Plaintiffs believed in 2004 that the specialist had isolated and addressed the problem. Clearly they were not aware of the real causes and full extent of the problem in 2004 and had reason to be confident that it was resolved.

There was no evidence that the Plaintiffs’ confidence in the specialist’s advice and repair was unreasonable. [ 34 ] The causes and full extent of the problem were not discovered by the foundation specialists and the engineer in 2004, or perhaps had not fully manifested, or some combination thereof. Indeed, the Plaintiffs could not be expected to know or discover in 2004 what two experts in the industry, specifically retained for that very purpose, had not discovered.

Further, it would be entirely speculative on the evidence before me to infer that pursuing the City in 2004 in relation to improperly installed weeping tile would have led to earlier discovery that the ultimate problem, as detected in 2007, was in fact attributable to other causes, including the fill under the foundation and footings. [ 35 ] On the limited evidence before me, I find that the Plaintiffs were reasonably diligent in their efforts in 2004, but that the real causes and the full extent and seriousness of the problem were not apparent to them until 2007, despite their reasonably diligent efforts.

Ultimate Limitation Period Position of the City [ 36 ] Regarding the ultimate ten year limitation, the City argues immunity from six particular claims of distinct, one time acts or omissions, where the alleged wrongful conduct, act or omission occurred more than ten years before the filing of the claim. The six particular claims are: 1) negligent supervision, approval and regulation in placement and compacting of backfill (para. 6) 2) failure to exercise reasonable care in issuing a Residential Construction Permit to the Builder on or about August 21, 1997,

notwithstanding the dangerous conditions caused by instability of the soil, which dangerous and unsuitable building conditions were known or ought to have been known by the City (para. 12(a)) 3) improper issuance of building permits authorizing the completion of the Residence (para. 12(h)) 4) failure to exercise the care reasonably expected of a competent municipality by consulting and employing a geotechnical engineering professional to provide advice to the Builder in relation to the Residence and the Lands (para. 12(d)) 5) failure to adopt and carry out a reasonable system of inspection of the Lands prior to allowing the redistricting of lands, including the Land and the Environmental Reserve (para. 12(f)) 6) failure to ensure that the Developer followed industry approved practices relating to, inter alia , the proper preparation of Lands for the construction of single family residential dwellings and the usage of engineered backfill (para. 12(i)). [ 37 ] The City argues inspection of the placement and compacting of backfill or soil within the excavation would have occurred before the construction of the footings and the walls of the foundation, which was completed before November 21, 1997.

The claim was filed on December 3, 2007. [ 38 ] The development and building applications were approved by the City on August 14 and 21, 1997 respectively. The issuance of a development permit by the City does not necessarily mean that a building permit will necessarily follow. Similarly, the fact that the City issues a building permit does not necessarily mean that building will commence. The process is driven by the builder/land developer and cannot therefore be seen as one continuous course of conduct involving issuance of the permit.

Any negligent or wrongful act or omission on the part of the City culminates on the date that the permit is granted. [ 39 ] Regarding the need to engage a geo-technical consultant, Mr. Parrish, the General Manager, gave evidence that the need for geo-technical examinations is determined at either the subdivision stage or at the time development approval is being considered and granted. The subdivision of the lands in this case occurred in 1995, and development approval was granted on August 14, 1997. [ 40 ] The City argues that the term "redistricting" as used in para. 12(

f) logically refers to either subdivision or zoning of the lands. The lands were subdivided in 1995, and were zoned at that time for residential construction. [ 41 ] As to any failure to ensure that the developer followed industry approved practices relating to the proper preparation of lands, Mr. Whan’s evidence is that construction began in the summer of 1997. [ 42 ] The City argues that its involvement in the development of the lands and construction of the residence did not constitute a continuing course of conduct. Any deliberations, actions or omissions on the part of the City took place prior to approval.

Once approved, construction commenced. The harm occurred years later. The City was not involved in the development of the lands and construction of the residence other than at various specific stages in the project. Any alleged negligent or wrongful conduct, act or omission arose at the time of the specific and did not form part of a series of related acts or omissions, nor of a continuous course of conduct. [ 43 ] Further, the City argues that an inspector attending the project to inspect the installation of plumbing or electrical work would not necessarily re-inspect the foundation.

Therefore, any negligent or wrongful act or omission of the inspector in inspecting the foundation is not continuously repeated in the future just because the inspector attends for another purpose. Position of the Plaintiffs

[ 44 ] The Plaintiffs rely on the City’s Quality Management Plan which provides for a number of inspections for single and two-family dwellings. They argue that this multi-part duty to inspect is one continuous obligation until completed. The City failed to inspect at all the points when they ought to have inspected, culminating in a failure to do a final inspection in December 1997, just before Mr. Whan moved in.

The Plaintiffs submit that the claim is not statute barred as this omission, within the series of duties and omissions, occurred within ten years of the filing of the Statement of Claim. [ 45 ] The expert evidence points to the disturbance of the soil when the Allan block wall was constructed as one of the causes of the injury. Mr. Krook testified that he was asked to remove the retaining wall as part of the solution to the problem.

The Plaintiffs assert, however, that there is no evidence before the Court to establish that the construction of the retaining wall disturbed the soil around the house or the foundation, nor that it did not do so. Further, the construction of the house, including the construction of the Allan block wall, was a series of continuing acts or omissions. The Court of Appeal on Whan’s appeal concluded that it was arguable that all of the actions are connected as part of a series of acts of construction.

Analysis [ 46 ] Pursuant to s. 3(3) (b), where a claim is based on a breach of a duty, the ultimate ten year limitation period begins to run from the time of the negligent or wrongful act or omission itself. It starts running regardless of when the plaintiff could have reasonably discovered its claim because discoverability principles do not apply to the ultimate limitation period: James H Meek Trust v San Juan Resources , 2005 ABCA 448 , 2005 CarswellAlta 1880 at para 36 .

The Court of Appeal in Bowes v the City of Edmonton , 2007 ABCA 347 , 2007 CarswellAlta 1851 stated: 151 ...the time under the alternative absolute period starts to run from the negligent or wrongful act or omission itself. Therefore, one should not wait until the harm occurs. Where the Legislature adopts a specific event to start time running, that displaces the former discoverability rule: Ryan v.

Moore , 2005 SCC 38 , [2005] 2 S.C.R. 53, 334 N.R. 355 (para. 27 ). [ 47 ] Regarding approval of development and building permits, the Alberta Court of Appeal in Bowes held: 170 For each house, the City's (supposedly negligent) omission occurred on one date when a permit was given. The reliance occurred and was completed shortly thereafter, by construction and occupation. The harm occurred suddenly years later. The situation was inevitable once the last permit was issued (for a given house), and irreparable when each house was built. Cf. Meek v.

San Juan Res. , supra . 171 Permits were not reissued, and harm did not occur evenly day by day over a long period. Quite the contrary. This tort was less continuous than most torts. 172 Separation of the wrongful act (or omission) and the harm does not mean a continuous tort. [ 48 ] In my view, three claims in this case are analogous to the claims in Bowes . First, the Plaintiffs claim negligence in the issuance of a Residential Construction Permit and building permits. The City approved the development permit on August 14,1997, and subsequently approved a building permit on August 21, 1997.

As determined by our Court of Appeal in Bowes , such an omission occurs on one date when the permit is given and is not a continuing course of conduct or a series of related acts or omissions. Those dates are more than 10 years before the date the Statement of Claim was filed on December 3, 2007 and are clearly statute barred. The claims set out in paragraphs 12(

a) and 12(

h) of the Statement of Claim are therefore dismissed. [ 49 ] Secondly, the Plaintiffs also allege that the City failed to exercise reasonable care by consulting and employing a geo- technical engineering professional to provide advice to the builder (paragraph 12(d) ). As the need for geo-technical examinations is determined at either the subdivision stage (in 1995), or at the time development approval is being considered and granted (in August 1997), more than 10 years had passed before the Statement of Claim was filed. The City is entitled to immunity from liability and the claim set out in paragraph 12(

d) of the Statement of Claim is therefore dismissed.

[ 50 ] Thirdly, paragraph 12(

f) of the Statement of Claim alleges that the City failed to adopt and carry out a reasonable system of inspection of the lands prior to allowing the redistricting of lands, including the land and the environmental reserve. The only

interpretation offered for this claim is that it relates to subdivision or zoning of the lands which occurred in 1995, more than 10 years before the Plaintiffs filed the Statement of Claim. The claim set out in paragraph 12(

f) is therefore dismissed. [ 51 ] With respect to the remaining claims, the Plaintiffs have argued that the City’s negligence is part of a continuing course of conduct.

The Court of Appeal in Seidel v Kerr explained the policy behind the limitation running from the end of a continuing course of conduct or series of related acts: 45 ...Insofar as the objectives of limitations law are concerned, it doesn't matter how many breaches of duty there were, how many different duties were breached, how many claims there are, or when they accrued, if the claims all resulted from a continuing course of conduct or a series of related acts or omissions. The policy issue is when should the ultimate period begin: when the legally wrongful conduct began or when it ended.

If the ultimate period were to begin when the conduct started, the defendant would be entitled to assert his immunity from liability under the claimant's claims a moment after the defendant's conduct stopped. The reasons for a limitations system based on evidence and repose do not require this harsh result. Stale evidence should not present a significant problem, for the evidence will have continually renewed itself with the defendant's repetitive conduct.

Justice does not require giving the defendant repose for wrongful conduct which just stopped. [ 52 ] Certain claims may fall within the ultimate limitation period while others fall outside of it. Those claims falling outside of the ultimate limitation period, unless they are continuing claims, are statute barred.

Even if some claims are barred by the expiry of the limitation period, a plaintiff may have a remedy for acts or damages arising within the limitation period: Seidel v Kerr at para 54 . [ 53 ] Unlike a case such as Meek where successive non-payment of royalty payments gave rise to separate claims, a change in ownership of a home does not give rise to a new claim on the part of the new owner where the builder was negligent in constructing the home years before the new owner had any ownership interest in the property.

To hold otherwise would defeat the purpose of an ultimate limitation period in latent defect cases: Armstrong v West Vancouver (District) , 2003 BCCA 73 , [2003] BCJ No 303 (CA) at para 22 . [ 54 ] The key questions are therefore when the alleged negligence occurred and whether the acts or omissions in question formed a continuing course of conduct or a series of related acts or omissions. [ 55 ] In Seidel v Kerr at paras 57-60 , our Court of Appeal held that it was necessary to make inquiries as to what Seidel, given his background and education, actually knew, and approach that question not as one of law, but as a determination to be made in the context of all the facts. [ 56 ] The Court of Appeal in Krook v Cold Lake (City) , 2010 ABCA 324 , held: 19 ...In this case, it is at least arguable that the acts are related as they all concerned the construction of the house.

More importantly, there is an obvious relationship between backfilling and levelling a lot. In many cases, weather permitting, these aspects of home construction are accomplished by the same workers at the same time. The fact that the Allan Block wall was built and the lot levelled in the spring following occupation of the house was likely attributable to weather because in Northern Alberta little landscaping is done in the dead of winter.

In fact, other work on the home was completed after it was occupied.... 20 Here, the construction of the Allan Block wall and levelling of the yard in the spring of 1998 are arguably part of a series of acts that include the other claims advanced in the statement of claim. [ 57 ] The question here is whether the City’s inspections on construction review under its QMP form part of a continuous obligation until completed. The QMP provides that the minimum construction review is to be in accordance with the QMP.

The QMP provides for five areas of review for single and two family dwellings and a possible four inspections on a construction review. Where remedial work is required

of review for single and two family dwellings and a possible four inspections on a construction review. Where remedial work is required on a construction review, the City may or may not require a re-inspection in order for construction to continue to proceed. [ 58 ] As noted above, there was evidence of only one inspection, which took place on December 8, 1997 for framing, insulation, and vapour barrier. The claim was filed on December 3, 2007.

It would appear, from the limited information before me, that the City’s own QMP contemplates compliance monitoring of construction on an ongoing basis, in stages, through to final inspection “before occupancy, building and HVAC” and any remedial work identified and required for compliance. It contemplates a minimum review on four inspections.

Therefore, I find based on the material before me that the City’s inspections on construction review form part of a continuous course of conduct as contemplated in its QMP, and they may thus form a continuing course of conduct or a series of related acts or omissions. [ 59 ] The Plaintiffs claim negligent supervision and regulation of the placement and compacting of backfill by a City engineer, as well as failure to ensure that the developer followed industry approved practices relating to, inter alia , the proper preparation of the lands and the usage of engineered backfill. Mr.

Whan gave evidence that the construction of the foundation including the walls and footings was completed before November 21, 1997. [ 60 ] I am satisfied that such supervision and oversight falls within the scope of “foundation before backfilling” which the City is to review regarding compliance during construction for single and two family dwellings according to its QMP. As mentioned above, the City carried out one inspection during construction on December 8, 1997 for framing, insulation, and vapour barrier. It was not marked as the final inspection.

The final inspection or stage of the compliance monitoring of construction should have occurred before occupancy. Occupancy occurred before Christmas 1997. I find this falls within the City’s continuous obligation to conduct inspections and review compliance during construction and are a continuing course of conduct or a series of related acts or omissions. Accordingly, I find that paragraphs 6 and 12(

i) of the statement of claim filed on December 3, 2007 are not statute barred under s. 3(1) (

b) of the Limitations Act . [ 61 ] With respect to the landscaping, Mr. Parrish gave evidence that the City does not require nor did it issue an approval for the landscaping, including a retaining wall, either before or after the work was done. No such inspection is provided for in the Quality Management Plan. There was no evidence before me that such approval is required or expected by the City. It is therefore argued that there was no duty on the part of the City that was or could be breached at the landscaping stage of the development of this property.

Given my findings above, this issue is best addressed at trial. Costs [ 62 ] The parties may speak to costs within 60 days of this decision. Heard in the City of Edmonton on the 20 th day of January, 2012. Dated at the City of Edmonton, Alberta this 22 nd day of February, 2012. J.H. Goss J.C.Q.B.A.

Appearances: Omolara Oladipo Fraser Milner Casgrain LLP 10180 101 Street Manulife Place Edmonton, AB T5J 3V5 for the Plaintiff Steven J. Marcellus Parlee McLaws LLP 1500 Manulife Place 10180 101 Street Edmonton, AB T5J 4K1 for the Defendants