Isfeld v. Petersen Pontiac Buick GMC (Alta.) Inc., 2012 ABQB 444

Court of Queen ’ s Bench of Alberta Citation: Isfeld v. Petersen Pontiac Buick GMC (Alta.) Inc., 2012 ABQB 444 Date: 20120710 Docket: 0403 01390 Registry: Edmonton Between: Lawrence Robert Isfeld and 257353 B.C. Ltd. Plaintiffs - and - Petersen Pontiac Buick GMC (Alta.) Inc. and John J.K. Campbell Defendants Corrected judgment: A corrigendum was issued on June 10, 2013; the corrections have been made to the text and the corrigendum is appended to this judgment. _______________________________________________________ Supplemental Reasons of the Honourable Mr. Justice R.A.

Jerke _______________________________________________________ [ 1 ] Oral reasons for Judgment were given on May 17, 2012. The parties have requested clarification on four matters. Several Liability

[ 2 ] In my Reasons I stated as follows: Mr. Campbell and Petersen Pontiac were not acting in concert or in furtherance of a common purpose. The causes of action against them are separate and distinct, and therefore their liability to the Plaintiffs is several. This is the case even though the nature and quantum of the damages claimed against each defendant are identical. Here, both Petersen Pontiac’s breach of contract and Mr. Campbell’s negligence and breach of contract led to the same result: the Easement amendments are not effective against the Purchaser of Lot 4A.

I am of the view that where one defendant is found liable for professional malpractice in a case where separate causes of action lead to the same consequence, plaintiffs who are the defendant’s former clients are not bound to exhaust all remedial efforts against the other contracting party before claiming from their professional advisor. Therefore, as in 789538 Ontario Ltd v Gambin Associates , I find that the nature of Mr. Campbell’s liability is secondary, but this does not prohibit the Plaintiffs from collecting judgment against him first. Once Mr.

Campbell makes the Plaintiffs whole, he is entitled to an assignment of the Plaintiffs’ Judgment against Petersen Pontiac. [ 3 ] Paragraph 5 of the draft Judgment Roll as proposed by Mr. Cranston, Q.C. is appropriate. Commencement Date for Interest [ 4 ] In my Reasons I stated as follows: Petersen Pontiac moved off Lot 4B in July 2003, and Park Mazda moved in. Mr. Isfeld testified that when Park Mazda took possession of Lot 4B in July 2003, it would not agree to purchase at that time due to the existence of the unamended Easement. ...

The Plaintiffs are entitled to Pre-judgment Interest from August 1, 2003. [ 5 ] The commencement date for interest is August 1, 2003. The Rate of Interest [ 6 ] In my Reasons I stated as follows: The Plaintiffs are entitled to Pre-judgment Interest from ... [ 7 ] After delivery of my Reasons a question was raised concerning interest. I directed that interest would be as per the rate prescribed by the Regulation.

While my intention was to make an award of interest under s. 4 of the Judgment Interest Act , further analysis is required to determine whether the award is non-pecuniary (so s. 4(1) applies) or pecuniary (so s. 4(2) applies). While no definition is found in the Judgment Interest Act , Pecuniary loss refers to loss of financial benefit such as loss of future income or loss of support. Non-pecuniary loss refers to those losses

traditionally viewed as intangible ones. ... Ferraiuolo Estate v Olson, (2004), 2004 ABCA 281 , 357 AR 68 (Alta CA), para 18 [8] Applying this definition, the diminution in value due to the easement ($108,333.00) and the loss due to Operational Impact($50,000.00) are pecuniary, where s. 4(2) applies to them. The intangible losses ($50,000.00) are non-pecuniary where s. 4(1) applies tothem. Costs [9] After delivery of my Reasons there was discussion about costs. I directed that the usual rules would apply and costs wereawarded under the appropriate column in accordance with the award.

Accordingly, the Plaintiffs are not entitled to costs for first orsecond counsel for the 9.5 estimated trial days not used for trial. Heard on the 17th day of May, 2012. Dated at the City of Lethbridge, Alberta this 6th day of July, 2012 R.A. Jerke J.C.Q.B.A. Appearances: Fraser Milner Casgrain LLP Richard J. Cotter, Q.C. For the Plaintiffs Nicholl & Akers George H. Akers for the Defendant Petersen Pontiac Buick GMC (Alta.) Inc. Bennett Jones LLP Donald Cranston, Q.C.

for the Defendant John J.K. Campbell _______________________________________________________ Corrigendum of the Supplemental Reasons of The Honourable Mr. Justice R.A. Jerke _______________________________________________________ 1. On page 1, in the style of cause and throughout the Judgment changed the spelling of the Defendant “Peterson” to “Petersen”.