Condominium Plan No., 2012 ABQB 355

Court of Queen ’ s Bench of Alberta Citation: Condominium Plan No. 0724494 v. Efuwape, 2012 ABQB 355 Date: 20120525 Docket: 1003 09744 Registry: Edmonton Between: The Owners: Condominium Plan No.724494 Plaintiff - and - Olusegun Fatai Efuwape Defendant _______________________________________________________ Memorandum of Decision of W. S. Schlosser, Master in Chambers _______________________________________________________ [ 1 ] This is an application to withdraw a Discontinuance. [ 2 ] The Defendant provided Plaintiff ’ s counsel with a bank draft in this action for (ongoing) condominium fee arrears.

The Defendant takes the position that the bank draft was offered in full and final settlement of the Plaintiff ’ s claims. However, the evidence of counsel for the Plaintiff was that the bank draft was accepted ‘ unconditionally and without prejudice, as a partial payment to be credited against his account ’ . The Affidavits disclose a history of dealings and settlement discussions between the parties. [ 3 ] After the bank draft was tendered, the Plaintiff filed a Discontinuance which it now seeks to withdraw.

[4] The test for withdrawal of a discontinuance is set out in Neis v. Yancey,

(1999) ABCA 272 at para. 27. Madam JusticeRussell, writing for the Court found: [27] [Master Funduk, in Eisenkrein v. Eisenkrein (1984) 53 A.R. 199,] adopted the test for the withdrawal of a discontinuanceequivalent to that enunciated in Barasky v. Quinlan, supra, stating that “where a limitation period has accrued, a discontinuance can bewithdrawn only if there are ‘very special circumstances”’ such as where a plaintiff discontinued the wrong action, or where the defendantbreached conditions upon which the discontinuance was given.

Special circumstances have also been defined to include cases of“inadvertence, mistake or misapprehension of relevant procedural matter”: Adam and Adam v. Insurance Corporation of BritishColumbia (1985), (BC CA), 66 B.C.L.R. 164 at p. 170 (C.A.); Morten (Litigation guardian of) v. Fanzutti, [1994]O.J. No. 1129 (Q.L.) (Gen. Div.); Singh v. Street Bernt and Traditional Holdings Ltd., (SK CA), [1990] 5 W.W.R.518 at p. 523 (Sask. C.A.). Such circumstances suggest oversight rather than the sort of substantive mistakes of law in this case.

Hence, Iagree with Master Funduk that special circumstances in the nature of a slip must be established before a discontinuance may bewithdrawn. Therefore, special circumstances must include an absence of actual prejudice to the defendant: Bararsky v. Quinlan, as wellas a consideration of the circumstances giving rise to the discontinuance. [5] The Statement of Claim in this case was filed in June, 2010. The claim appears to deal with arrears going back to 2008. Theparties are in an ongoing relationship and some payments have been made.

There may be a live issue about whether a limitation hasexpired, given the part payments. Arrears also appear to be accruing and it may be open to the Plaintiff to bring a fresh action. Rule4.36(5) provides: 4.36(5) The discontinuance of the action may not be raised as a defence to any subsequent action for the same or substantially the sameclaim. [6] Even if a limitation has passed, I am satisfied that the Discontinuance was filed inadvertently. This is one of the specialcircumstances enumerated in the case cited above.

The Defendant may be disappointed that he cannot enjoy the benefit of a settlementthat would have been very favourable to him but there is no evidence of any significant prejudice. [7] Accordingly, I am content to allow the Discontinuance to be withdrawn. [8] The Defendant will have his costs of the application which may be set off at the end of the day against any amount proved tobe owing. Heard on the 18th day of April, 2012. Dated at the City of Edmonton, Alberta this 25th day of May, 2012.

W. S. Schlosser M.C.C.Q.B.A. Appearances: John Frame Witten LLP for the Plaintiff Olusegun Fatai Efuwape self represented