Nixon v. Timms, 2012 ABQB 315

Court of Queen ’ s Bench of Alberta Citation: Nixon v. Timms, 2012 ABQB 315 Date: 20120515 Docket: 0703 02447 Registry: Edmonton Between: Jason Nixon Plaintiff - and - Michael Timms Defendant Editorial Notice: On behalf of the Government of Alberta personal data identifiers have been removed from this unofficial electronic version of the judgment. _______________________________________________________ Memorandum of Decision of the Honourable Madam Justice L. Darlene Acton _______________________________________________________ Introduction

[ 1 ] Mr. Nixon sued Mr. Timms and filed a Statement of Claim. A process server, Mr. Gruschynski, swore an affidavit of service stating that he personally served the Statement of Claim on Mr. Timms. Mr. Nixon sought and obtained a Default Judgment and attempted to enforce the judgment. Upon discovering that an enforcement agency was attempting to enforce the default judgment, Mr.

Timms retained a lawyer, asserting that he was never served, that he was out of the country at the time of the purported service, and that he had no knowledge of the claim against him. [ 2 ] In his decision of January 24, 2012, Justice Michalyshyn directed that a viva voce hearing be held to determine whether Mr. Timms was served on December 19, 2007 with the Statement of Claim, and thereafter, hear the applications of Timms for a declaration:

a) that the Statement of Claim filed by the Plaintiff, Jason Nixon, has expired pursuant to Rule 11 of the former Alberta Rules of Court ;

b) in the alternative, an Order setting aside the praecipe to note in default filed on January 7, 2008, pursuant to Rule 9.15 (3) of the Alberta Rules of Court ;

c) in the further alternative, an Order setting aside the order for substitutional service, filed December 16, 2010 pursuant to Rule 9.15 (1) of the Alberta Rules of Court ;

d) in the further alternative, an Order setting aside the judgement against Timms filed January 24, 2011 pursuant to Rule 9.15 of the Alberta Rules of Court . [ 3 ] Justice Michalyshyn further directed that the costs relating to the Timms ’ December 2, 2011 application and the arguments on February 13 and 14 were to be addressed by the Chambers Judge following adjudication on the above referenced matters.

Background [ 4 ] Four witnesses gave evidence in this matter: the Defendant, Michael Timms, Jimmy Postell, a tenant in the properties which are the subject matter of this dispute, Mark Gruschynski, the process server, and Mr. Timms ’ then solicitor, Roderick J. Hall. [ 5 ] In order to understand the framework of this action, Justice Michalyshyn set out the following facts: The Plaintiff ( “ Nixon ” ) and the Defendant ( “ Timms ” ) were parties to a commercial real estate purchase contract dated September 16, 2005.

Nixon as purchaser paid deposits of $5,000 to a realtor and $25,000 to the Defendant Timms ’ , former lawyer. The deal did not close. In due course Nixon sued Timms. Timms was noted in default, the judgement was entered against him. [ 6 ] Counsel for the Defendant, Timms, now moves to have the relief set out above granted, emphasizing that Timms was never served and therefore the entire action must fail. Timms further submits that the Plaintiff ’ s remedies lie against the process server, Mr.

Gruschynski, who swore that “ The said Defendant admitted to me that he was the Defendant named in this action. ” which Timms alleges is false. [ 7 ] The Plaintiff urges me to accept Mr. Gruschynski ’ s evidence that he served the Defendant and to reject Mr. Timms ’ and Mr. Postell ’ s evidence, and to find as a fact that Mr. Timms had indeed been served by Mr. Gruschynski on December 19, 2007.

The Facts [ 8 ] Jimmy Postell, the 49 year old tenant, began living at 11[...] - 39 th Street, Edmonton, in September 2005 and has lived there continuously, except for a period between June 2009 and March 2010 when he and his wife moved to Texas. [ 9 ] Mr. Postell did not come to know Mr. Timms, or even speak to him, until after the snow was gone in the spring of 2008. Mr. Postell testified that Mr. Timms was not at the Postell household on December 19, 2007, but that Mr. Gruschynski, the process server, did come to his door. [ 10 ] Mr. Postell testified that he told the process server that he was not Mr. Timms.

However, Mr. Gruschynski insisted that he was Mr. Timms and dropped papers inside the door of his suite, insisting neighbours had told him that Mr. Postell was Mr. Timms. [ 11 ] Mr. Postell said that Mr. Gruschynski was there for at least 5 minutes and Mr. Postell got quite annoyed and repeatedly told the process server he was not Mike Timms. He pushed the documents out the door with his foot. [ 12 ] Mr.

Gruschynski, who has been serving documents and doing private investigations for 22 years, testified that he attended at the address of 11[...]-39th Street, Edmonton, Alberta, and when the door was opened he asked for “ Michael ” .

He testified the man answering the door identified himself as “ Michael ” and, when he presented the documents, the man kicked the documents out the door, got aggressive with him, and slammed the door in his face. [ 13 ] He testified he did not have an opportunity to determine whether or not it was Michael Timms. [ 14 ] He testified he was surprised that anyone would kick the documents out the door. He further testified that afterwards he went to speak to the neighbours who told him this fellow was, indeed, Michael Timms.

He also determined that a vehicle parked out front was registered to Michael Timms. [ 15 ] Counsel for the Plaintiff submits that the process server has support for his position that he had good personal service on Michael Timms. First, counsel submits the court should accept his evidence that he has better recollection now than he did at the time he was questioned on his affidavit in August 2011 as he has been thinking about it more specifically in preparation for this hearing. I reject that argument in light of the tens of thousands of people he testifies he has served.

He must have realized, once he was examined on his affidavit, that he faces some risk if a finding is made that he swore a false affidavit in this particular circumstance. [ 16 ] Mr. Postell, in his questioning in August 2011, testified that in 2007 he did not know what Mike Timms looked like and he didn ’ t know how his neighbours would know. His understanding was that Mr. Timms did not own the building when they moved into the apartment in 2005, and unless Mr. Timms had showed up and introduced himself to the neighbours before all this happened, nobody would have been familiar with Mr.

Timms at that time. [ 17 ] Mr. Postell explained that he did come to know Mr. Timms after 2007, to the extent that now he and Mr. Hollowaychuck, who worked for Mr. Timms as the building manager, came to an agreement in 2010 that Mr. Postell would keep a box and put any documents which arrived at his address into that box for safe keeping and hand them over when either Mr. Hollowaychuck or Mr. Timms arrived asking for them. Later in 2010, Mr. Timms started collecting rents and depositing rents from the other tenants into bank accounts for Mr. Hollowaychuck on behalf of Mr. Timms. Mr.

Postell describes his current relationship with Mr. Timms as friendly. [ 18 ] The Plaintiff submits that it is uncontroverted that Mr. Gruschynski went to the neighbours to confirm the identity of the person he purported to serve. The court would have to take the word of a man whose evidence itself makes clear he is prepared to swear false affidavits. There is no independent corroboration for this assertion. It is Mr.

Gruschynksi who denies that there was any level of animosity or increased negativity towards him on the repeated occasions (at least five on his own evidence) when he has attended at the properties in question. Mr. Postell testifies that he certainly has animosity towards Mr. Grushysnki. For Mr. Gruschynski to suggest there had been no such heightened level of animosity towards a process server who came knocking on doors and asking questions on minimum of five different occasions, pushes the bounds of credibility. Mr. Gruschynski is simply not believable.

[ 19 ] When Mr. Gruschynski attended upon Mr. Postell in 2010 to serve a second document, he prepared and swore an Affidavit of Attempted Service. Mr. Postell ’ s evidence of that event was that he accepted a business card, and advised Mr. Gruschynski that he would give it to Mr. Timms or Mr. Hollowaychuck when they attended to pick up the mail at the building. Mr. Postell testified that on December 30, Mr. Gruchynski came back with documents and a card and gave Mr. Postell some papers which he put in the box. This makes sense in light of the Affidavit in support of an application for Substitutional Service.

This was probably the return visit with the documents to be posted to the door. [ 20 ] Mr Gruschynski, however, says he posted the documents to the door on December 16, 2010. I accept Mr. Postell ’ s evidence that he took the documents and put them in the collection box on December 30. In my view, had documents been posted to the door, Mr. Postell would have most certainly remembered this. I reject Mr. Gruschynski ’ s testimony that he ever “ posted ” documents to that door. [ 21 ] I was not impressed with the testimony of Mr. Gruschynski.

During the course of his evidence, he was cavalier with some of his answers and contradicted the evidence in his affidavit, and there were conflicts between the evidence he gave at his questioning on his affidavit and what he said under cross examination at the hearing. He further testified that he was surprised when a person he was serving with documents became angry and kicked the documents out the door. This seems surprising to me since he testified that he has served 15,000- 20,000 people over 22 years.

It is difficult to believe that this would be an unusual experience for a process server. [ 22 ] Further, if this aggression was the Defendant ’ s response, it seems highly unlikely that he would have admitted he was the Defendant in the action, as Mr. Gruschynski swore in paragraph 3 of his Affidavit of Service. In fact, it would have also been a stretch for Mr. Gruschynski to swear he believed him to be the Defendant based on some unnamed neighbours ’ confirmation and a motor vehicle parked out on the street.

One might have expected at this point an application for substitutional service or for service ex juris after a property search disclosed Mr. Timms ’ address for service was in Courtice, Ontario. [ 23 ] I find that Mr. Gruschynski ’ s sworn statement that in 2007 the Defendant admitted that he was the Defendant in the named action is false . Even Mr. Gruschynksi ’ s testimony at trial was that all the alleged Defendant said at the door was that he admitted his name was Michael. Therefore , on Mr. Gruschynski ’ s own evidence, his affidavit is false. Mr.

Postell denies that he said his name was Michael and I accept Mr. Postell ’ s evidence that he continually and repeatedly told Mr. Gruschynski that he was not Michael Timms. I accept Mr. Postell ’ s evidence over Mr. Gruschynksi ’ s evidence. [ 24 ] Mr. Timms testified that he was not served, and that he was not in the country from December 13, 2007 - October 4, 2008, and in particular, was not in Edmonton on December 19, 2007. He has a copy of the e-ticket he purchased from Alaska Airlines to San Jose, California where he spent time with friends over the Christmas season.

He has also provided an affidavit from his friend, Mr. Hartle. Mr. Hartle ’ s physician attested to the fact that he was not well enough come to Edmonton to testify at the hearing of this matter and counsel agreed that no adverse inference would be drawn. Mr. Hartle confirmed that Mr. Timms stayed with him and his wife in San Jose, California from December 13, 2007 until the end of December, at which time Mr. Timms left for the Philippines. Mr. Timms ’ evidence was that he had left a red Oldsmobile parked outside the property while he was away, and he gave the keys to a friend.

He testified that the car was not operational while it was parked there, and that he had it repaired when he returned to Canada in 2008. [ 25 ] I am satisfied that Mr. Timms was never served. [ 26 ] On the issue of service I am satisfied that Mr. Timms is telling the truth about the service issues, that Mr. Postell had no interest in getting involved in any legal proceedings in 2007 when Mr. Gruschynki showed up at his door, and that Mr.

Gruschynski, without doing any due diligence, simply forged ahead and swore an Affidavit of Service that was false, leading to all this litigation and the problems facing the parties today. [ 27 ] Mr. Timms received notice of this claim, action and judgement from his friend Cynthia Rundle in Courtice, Ontario on May 18, 2011. At that time, he contacted counsel in Edmonton, Mr. Odishaw, and sent him a retainer. Mr. Odishaw referred the matter to Mr. Feehan who agreed to take it on. Mr. Timms made an appointment to see Mr. Feehan who told him that they had to act quickly.

Between the time of the notice, the time Mr. Odishaw received his retainer, and the time he got Mr. Feehan involved to handle the file, there had also been a postal strike. The actual application was made 69 days after Mr. Timms received notice from the enforcement agency and the application was made to set aside the judgement. Mr. Timms testified that he initially believed that someone had set up a scam against him; he had no idea what the writ of enforcement related to. While I accept that Mr. Timms ’ assertion that he was not served and that he

was unaware that judgment had been entered against him, I am not satisfied that he was entirely truthful in asserting that he had no ideathat there was a claim against him or what it was in relation to. [28] Other evidence was heard at the hearing relevant to the Defendant’s applications to set aside the noting in default, obtainingthe order for substitutional service, and discharging the judgement and orders, but the first issue that this Court must determine is theeffect of the failing to serve the Statement of Claim in the first place. The Effect of Failing to Serve the Statement of Claim (

i) Is the claim a nullity? [29] The Defendant relies on Rule 11 of the former Alberta Rules of Court, Alta Reg 390/1968, which were in force in 2007 whenthe Statement of Claim was filed.

Rule 11 stated that: 11(1) A Statement of Claim is in force for a period of 12 months commencing on the day the Statement of Claim is issued and expires atthe end of the day of the first anniversary of the day it was issued. [30] The Rules then, and the Rules now (Alta Reg 124/2010), require that a document in which an action or other proceeding iscommenced be served personally (former Rules of Court, Rule 14 - existing Rules of Court, Rule 3.26(1) and 11.5(1)).

In this case, ofcourse, the Plaintiff and the Plaintiff’s solicitor were operating on the understanding that they had good personal service on theDefendant as a result of the sworn affidavit of Mr. Gruschynski, the process server.

The Defendant argues that the Statement of Claimexpired on February 24, 2008 and for all intents purposes the action was, if not struck, in essence, “dead” after that date and any stepstaken after that date were null and void or ineffective. [31] Rule 11(9) provided for a number of exceptions under which an expired statement of claim could be revived and served – ifthe court found that if before a statement of claim expired, a defendant, anyone purporting to be a defendant, or any lawyer or personpurporting to negotiate on behalf of a defendant, caused the plaintiff to reasonably believe that the defendant had been served, thatliability would not be contested, or that the time limits in the action would not be relied on, the court could extend the statement of claimfor a period up to three months. [32] So the true question is whether a Statement of Claim can become a nullity, unbeknownst to the Plaintiff who acts in goodfaith on the basis of filing it, serving it, noting the Defendant in default, and proceeding in accordance with the Rules to carry on processunder the action until a declaration is made that he does not have service on the Plaintiff. [33] There is some guidance from the Alberta Court of Appeal in two older cases in which the effect of Rule 11 was discussed.

Inboth cases, the Alberta Court of Appeal expressly states that irrespective of the triggering of Rule 11, the Statement of Claim does notbecome a nullity. (Nagy v Phillips (1996), 1996 ABCA 280 , 137 DLR (4th) 715, 41 Alta LR (3d) 58 (CA) and Shah vChristiansen (1992), 1992 ABCA 297 , 96 DLR (4th) 644, 5 Alta LR (3d) 174 (CA). However, I note that the decision inShah should perhaps be considered with caution as noted by Slatter J (as he then was) in Hansraj v.

Ao, 2002 ABQB 385, 314 AR 262because of subsequent significant changes to Rule 11. [34] Further the Nagy decision concerned an application to substitute named defendants for pseudonymous defendants. Theparties were aware that the Statement of Claim was not in force when they brought the application to substitute the named Defendantsfor the John Does in the pleading. The Defendants argued that Rule 11 made the action against them a nullity. [35] Referring to its earlier decision of Shah v Christiansen, the Court of Appeal held that, although the Statement of Claim wasnot in force, it was not a nullity.

The Court granted the appeal in part, and ordered the Chambers Judge to consider whether theappellants were misled by the misnomer and whether the plaintiff had acted with due diligence in identifying the appellants. Inparticular, the Court relied on Rules 38 and 39, and held that they could be read together to permit an application to substitute thedefendants.

The result of such a substitution would have the effect of reviving the Statement of Claim to the extent that it affected anynew Defendants saying that “So far as they are concerned, the time referred to in Rule 11(1) begins to run on the date on which the order

to substitute them is made. ” [ 36 ] In Shah , Madam Justice Heatherington was faced with the argument that the Statement of Claim was no longer in force by August 25, 1989 and after that time there was nothing before the Court for anyone to make any application about when faced with an application to renew the Statement of Claim, in September 1989. Justice Heatherington comments as follows (at paragraph 17 & 18): I agree with the views expressed by Mr. Justice Kerans in Bridgeland Riverside Community Association v. City of Calgary et al , 1982 ABCA 138 , on this subject.

He said at 33, 34: In my view, no concept is more sterile than that which says that a proceeding is a nullity for failure of compliance with a procedural rule and without regard to the effect of the failure... In my view absent an express statutory statement of effect, no defect should vitiate a proceeding unless, as a result of it, some real possibility of prejudice to the attacking party is shown, or unless the procedure was so dramatically devoid of the appearance of fairness that the administration of justice is brought into disrepute.

The Respondents complain of a procedural defect. [ 37 ] Hetherington JA granted the appeal of the Chambers Judge ’ s decision to strike the statement of claim on the basis that the order renewing the statement of claim was valid until set aside and the respondents had not sought to set aside the order within a reasonable period of time, having taken steps knowing that the renewal of the claim was irregular. [ 38 ] The Court of Appeal more recently discussed Rule 11 in the appeal of Justice Slatter ’ s decision in Hansraj v Ao, 2004 ABCA 223 , 354 AR 91 ., C ô t é JA noted (at para 47 and 63): In ordinary circumstances, R. 11 is very strict.

A statement of claim can only be served while alive, it lasts originally only 12 months, it can be renewed but once for three months only, and it can only be renewed while still alive... The basic context is that R. 11 is mandatory, and service is impossible after the statement of claim expires at the end of 12 months (or 15 if it is renewed): Martinez v. Hogeweide (1998) 209 A.R. 388 , 1998 ABCA 34 [ 39 ] In Hansraj the issue was whether the Chambers Judge erred by striking out service that had been effected by publication in an Ontario newspaper.

The Court of Appeal held that on a motion to set aside service, the defendant should have shown both that he did not receive service and that he had no knowledge of the document. On the other hand, the motion for ex parte service was insufficient because the plaintiff failed to disclose vital facts, and there was insufficient evidence to establish that the substitutional service was sufficient.

The Court held that the plaintiff could move afresh for leave to serve ex juris with new evidence noting that the exception under Rule 11(9) applied (at para. 49): A statement of claim may be renewed (and hence served) after it has expired, in several circumstances: see subrule (9) of R. 11. The circumstance relevant here is that "another person purporting to negotiate on behalf of a defendant caused the . . . plaintiff's lawyer to reasonably believe, and to rely on that belief, that . . . liability was or would not be contested. . ." [ 40 ] The Defendant here complains of procedural defects, as in Shah .

Further, that procedural defect was unknown to both the Plaintiff and the Defendant until the investigation and examinations dug deeply into the matter and the Court determined that Mr. Gruschynski had been dishonest. Paraphrasing Justice Kerans, one must consider the effect of the failure of service and whether the administration of justice would be brought into disrepute if a false affidavit were to render all of the proceedings following its filing fail. If the Defendant is successful in his argument the Plaintiff could indeed find his action without a remedy because of the falsehood,

combined with the passage of time. [ 41 ] Thus under the former Rules of Court, an expired statement of claim was not a nullity, and could be revived in a number of circumstances, such as the addition of new plaintiffs (at least as the claim related to those plaintiffs) and the exceptions provided for in Rule 11(9). (ii) Do the new Rules apply? [ 42 ] Moreover, I find that the new Rules of Court apply here. Under the new Rules, Rule 15.1 provides that an existing proceeding means a court proceeding commenced, but not concluded, under the former Rules.

Having found that the action is not a nullity, it is an existing proceeding for the purposes of Rule 15. Rule 15(2) expressly states that, except as otherwise provided in an enactment, by this part or by order under Rule 15.6, these rules apply to every existing proceeding.

Rule 15.2(2) reads: Every order or judgement made under the former Rules and everything done in the course of an existing proceeding is to be considered to have been done under these rules and has the same effect under these rules as it had under the former rules. (iii) What is the effect of the new rules on the Claim? [ 43 ] The drafters of the new Rules replaced Rule 11 with Rule 3.27. The relevant portion of Rule 3.27 reads as follows: 3.27

(1) The Court may, at any time , grant an extension of time for service of a Statement of Claim in any of the following circumstances:

c) special or extraordinary circumstances exist resulting solely ... from the conduct of a person who is not a party to the action . (Emphasis added) [ 44 ] The Alberta Law Reform Commission in its Alberta Rules of Court Project discussed the application and problems associated with the old Rule 11, noting at : Rule 11's short time period for serving a statement of claim can be a problem when dealing with an untraceable defendant.

If a plaintiff truly has no idea where find a defendant who has disappeared and cannot be traced, the plaintiff will have to get a court order dispensing with service (very rare) or an order of substitutional service (more common). Default judgment would then follow. But if the defendant reappears later, the defendant may be able to set aside both the default judgment and the order for substitutional service or the order dispensing with service.

If the defendant can set aside the order for substitutional service or the order dispensing with service, the plaintiff will by then usually be unable to get an extension under Rule 11 to serve the expired statement of claim on the newly-surfaced defendant. If the limitation period has also expired, the plaintiff ’ s claim will be defeated. In these circumstances, the strictness of Rule 11 merely serves to reward defendants who disappear in order to avoid service. [ 45 ] Such a result occurred in Hansraj v.

Ao , referred to above. [ 46 ] ALRI recommended a general rule to replace Rule 11 (at para. 94): Instead of trying to list in the Rule all the specific scenarios justifying an exception to Rule 11, the Committee wonders if there should be a general exception to Rule 11 that would give a court the discretion, at any time, to extend the time for service for a specified period if there are special or exceptional circumstances to justify the extension.

Such an exception would allow a court to remedy the problem when dealing with a truly untraceable defendant in any type of litigation, but not when dealing with other situations where

service has been legitimately set aside. It would also cover other circumstances where it would be unfair not to let a plaintiff serve a statement of claim despite the passage of time.

This general exception would also eliminate the need to list the exceptions currently contained in Rule 11(9) relating to waiver and estoppel, as they would be subsumed in the general exception's concept of exceptional circumstances. [ 47 ] Rule 3.27 represents such a general exception, and in my view, Rule 3.27 specifically contemplates the kind of unusual and entirely unanticipated consequence of a false affidavit being sworn upon which an entire case would stand or fall.

It is such an unusual and extraordinary circumstance that one could hardly imagine occurring, let alone expect it to arise shortly after the implementation of Rule 3.27 which provides the obvious remedy in order that neither party be prejudiced. [ 48 ] Rule 3.28 better captures in words the effect of a failure to serve within the required one year time limit. It states: 3.28 If a Statement of Claim is not served on a defendant within the time or extended time for service,

a) no further proceeding may be taken in the action against the defendant who was not served in time... [ 49 ] Accordingly, it is more appropriate to describe the action as “ suspended ” rather than “ struck ” or “ dead ” . This is, of course, because of the law which under both the old rules and the new, might cause the action to be revived if the facts were such that such an order was made by the Court. [ 50 ] In my view, the evidence provides a reasonable explanation for the delay between when Mr. Timms learned of the action and when the application was brought. Moreover, it is clear that Mr.

Timms has addressed the factors raised by the Court of Appeal in Hansroj – he was not served and he had no knowledge of the document. [ 51 ] I conclude that in these extraordinary circumstances, it is reasonable to extend the time for service of the Statement of Claim to the date of this decision under Rule 3.27, which permits extension “ at any time ” resulting “ solely ... from the conduct of a person who is not a party to the action ” . [ 52 ] When I say neither party is prejudiced, 3.27 provides an extension of time for service such that the Plaintiff could then properly serve the Defendant and the Defendant can defend on the basis of the points he set out regarding his position on his claim to have meritorious defence to the action.

Both parties can come to the Court to have their dispute over the merits of this commercial real estate matter properly adjudicated. Conclusion [ 53 ] In conclusion then, as directed by Justice Michalyshyn, I have heard the testimony of the witnesses and the applications and find: 1. The Defendant Michael Timms was never served. 2. The service failed because of a false affidavit sworn by Mark Gruschnyski, process server. 3.

The Statement of Claim which commenced the proceeding was suspended as a result of the fraud on both parties and under Rule 3.27 is hereby extended and, in light of the applications and proceedings in the action:

a) The Defendant is deemed now to be properly served with the Statement of Claim.

b) All subsequent praecipes and orders are set aside.

c) The Defendant has 20 days to file his Statement of Defence. 4. The parties shall advise the Attorney General for the Province of Alberta of the actions of Mr. Gruschynski in swearing a false affidavit and provide the Attorney General with a copy of my Reasons for Decision and the Plaintiff ’ s bill of costs for the steps taken thus far in the matter. 5. The costs relating to the Timms application, the February 13 and 14, 2012 hearing and the Plaintiff ’ s action prior to this ruling shall be costs in the cause, awaiting the outcome of the investigation of the Attorney General.

Heard on the 13 th and 14 th day of February, 2012. Dated at the City of Edmonton, Alberta this 15 th day of May, 2012 L. Darlene Acton J.C.Q.B.A. Appearances: Edward R. Feehan Duncan & Craig LLP2800 Scotia Place10060 Jasper AvenueEdmonton, Alberta T5J 3V9 for the Applicant Terri Lynn Bougie Steven Ho Ahlstrom Wright Oliver & Cooper LLP200, 80 Chippewa RoadSherwood Park, Alberta T8A 4W6 for the Respondent