Halliburton Group Canada Inc. v. Borth, 2012 ABQB 130

Court of Queen ’ s Bench of Alberta Citation: Halliburton Group Canada Inc. v. Borth, 2012 ABQB 130 Date: 20120227 Docket: 0901 13711 Registry: Calgary Between: Halliburton Group Canada Inc. Plaintiff - and - Donald Borth Defendant _______________________________________________________ Reasons for Judgment of J. L. Mason Master in Chambers _______________________________________________________ [ 1 ] A head on collision occurred on December 21, 2005 near Red Deer, Alberta involving vehicles driven by Jeffrey Krobutschek and the defendant, Donald Borth.

The plaintiff, Halliburton Group Inc. owned the vehicle operated by Mr. Krobutschek. The statement of claim was filed September 11, 2009. Mr. Borth applies to summarily dismiss the action pursuant to section 3(1) of the Limitations Act , R.S.A. 2000, c. L-12. Halliburton asserts that Mr. Borth’s insurer advised there was no need to be concerned with the limitation period and that Mr. Borth is accordingly precluded from relying on the Limitations Act in defence to the claim. [ 2 ] For the reasons that follow, the application for

summary dismissal of Halliburton’s claim is denied. There is a genuine issue for trial as to whether the principles of promissory estoppel preclude Mr. Borth from relying on the Limitations Act in defence to the claim.

The test for

summary judgment [ 3 ] Rule 7.3 of the Alberta Rules of Court provides that a party may apply for

summary judgment in respect of all or part of a claim, on the ground that there is no merit to a claim or part of it. [ 4 ] The bar on a motion for

summary judgment is high: Canada (Attorney General) v. Lameman , 2008 SCC 14 , [2008] 1 S.C.R. 372. A party bringing a motion for

summary judgment bears the legal onus of showing no genuine issue for trial: Murphy Oil Co. v. Predator Corp. , 2006 ABCA 69 , 384 A.R. 251. It must be “plain and obvious” or “beyond doubt” that the action will not succeed: Murphy Oil Co. v. Predator Corp . at paragraph 24 .

Summary judgment should not be granted if opposing affidavits clash on relevant facts. A Justice or Master in chambers should not assess the quality and weight of the evidence, as this is a function reserved for a trial judge: De Shazo v. Nations Energy Co. , 2005 ABCA 241 , (2005), 48 Alta. L.R. (4 th ) 25 (C.A.). [ 5 ] In the context of this application, Mr. Borth must establish that it is plain and obvious or beyond doubt that his Limitations Act defence will succeed. Evidence of Lori Lawrence [ 6 ] Lori Lawrence is an adjuster with Mr. Borth’s insurer, Intact Insurance Company of Canada.

She deposes that based on her review of the file materials, and her own personal memory, she believes that there was no communication given to Halliburton which would have led it to believe that Mr. Borth would not rely on the Limitations Act . Evidence of Deborah Fritzler [ 7 ] Halliburton relies on the affidavit evidence of Deborah Fritzler, the claims broker at AON Reed Stenhouse Inc. who handled the matter on its behalf throughout. [ 8 ] Ms. Fritzler deposes that she dealt with a succession of insurance adjusters appointed or assigned by Intact.

She states that in early 2006, liability for the collision was admitted. In accordance with her standard practice, upon receipt of this admission, she forwarded the subrogation documents to Intact. [ 9 ] Later in 2006, Intact issued two cheques for Halliburton’s property damage and business interruption or “down-time” claims respectively. There was some misunderstanding as to the amount of the down-time submitted and the cheque represented only a small portion of the claim. Once the correct amount was identified, Intact retained Mr.

Copeland, an accountant, to quantify the down-time claim. [ 10 ] This process took some time, involving delay on both sides. Ms. Fritzler deposes that she was “told repeatedly for many months that the down-time claim would be quantified, resolved and paid once Mr. Copeland’s report was finalized and reviewed. I was told to wait until then, so I waited.” [ 11 ] Ms. Fritzler exhibits her handwritten notes of a discussion she had with one of Ms. Lawrence’s predecessors, Michelle Roscoe, in November, 2006 as follows: I’m concerned with delays at their end...She confirms no issue.

They’re dealing [with] the claim [and] we are not to be concerned [with]

the time periods. They’ve accepted claim [and] will deal with until finalized”. [12] In August 2008, Ms. Fritzler was advised by Ms. Lawrence that Mr. Copeland’s report had been received and was underreview, and that she would have “some information” for her within a week. Ms. Fritzler continued to seek a response over the nextseveral months. [13] In February 2009, Ms. Fritzler again pressed Ms. Lawrence for a response to the down time claim.

On February 23, 2009, Ms.Lawrence responded that she had conducted a search for a statement of claim, and noting that since none had been filed, the limitationhad passed and the claim was now statute barred. [14] Ms. Fritzler promptly replied that “way back when” she had been advised by earlier examiners that “we would not have to beconcerned with filing a statement of claim. We were requested to give you time to have the matter reviewed.

We abided by your wishesand followed up regularly waiting for your response...I respectfully request your review and an offer be made to our client for the down-time loss.” [15] Ms. Fritzler sent a further email to Ms. Lawrence, referring to her November 2006 discussion with Ms. Roscoe, stating in part: ...I expressed my concern in the amount of time it was taking [Intact] to get the matter reviewed...[Ms.

Roscoe] assured me in thatdiscussion I did not have to have any concerns in regard to the dates because [Intact] had already finalized our physical damage claimand it was their experts who were being assigned to review the down-time matter on [Intact]’s behalf and as soon as the report becameavailable, [Intact] would respond to that portion of our claim... Promissory estoppel [16] The principles of promissory estoppel can apply to prevent reliance on expiry of a limitation period and thereby effectivelyextend the period: Brar v.

Roy, 2005 ABCA 269, 371 A.R. 290 at paragraph 33. [17] A party relying on promissory estoppel must establish that the other party has, by word or conduct, made a promise that wasintended to be acted on and affect their legal relationship. The representee must further establish that he acted on the promise and insome way changed his legal position. An admission of liability alone is not enough to ground promissory estoppel; there must beevidence to support an inference that it was intended to operate to extend the limitation period: Maracle v.

Travellers Indemnity Co. ofCanada, (SCC), [1991] 2 S.C.R. 61 at paragraphs 13-16. [18] Here, there is some evidence supporting promissory estoppel. As noted, there is evidence that Intact admitted liability for thecollision. Ms. Fritzler forwarded her subrogation file to Intact. Intact prepared cheques for both the property damage and down-timeclaims. Intact subsequently retained Mr. Copeland to quantify the down-time claim.

Further, there is evidence that in response to Ms.Fritzler’s expressed concern as to the passage of time, Intact’s representative advised her that she need not be concerned with timeperiods, that Intact had accepted the claim and would deal with it until it was finalized. Ms. Fritzler recorded this discussion in a handwritten note on the file. [19] This goes beyond a bald allegation, contrary to the submission of counsel for Mr. Borth. [20] Counsel also emphasized that the source of the evidence was Ms. Fritzler and the alleged discussion was not reflected onIntact’s file. It is true that Ms.

Fritzler did not confirm the discussion she had in November, 2006 with Ms. Roscoe in writing, nor adviseMs. Lawrence of that discussion when she took over. That will have to be weighed along with the other evidence, including Ms.Fritzler’s evidence that her department was severely understaffed at the time, and her credibility will have to be assessed. [21] There is a genuine issue for trial as to whether the principles of promissory estoppel preclude Mr. Borth from relying on theLimitations Act in defence of the claim.

Conclusion [ 22 ] The application for

summary dismissal is denied. If the parties cannot agree on costs, they can approach me within 30 days of the date of this memorandum. Heard on the 22 nd day of February, 2012. Dated at the City of Calgary, Alberta this 27th day of February, 2012. J. L. Mason M.C.C.Q.B.A. Appearances: Michael J. Bailey Maurice Law For the Plaintiff Jeffrey S. Brunner for the Defendant