First National Financial GP Corporation v. Macro Realty & Management Ltd., 2012 ABQB 69

Court of Queen ’ s Bench of Alberta Citation: First National Financial GP Corporation v. Macro Realty & Management Ltd., 2012 ABQB 69 Date: 20120126 Docket: 0901 17381 Registry: Calgary Between: First National Financial GP Corporation Plaintiff/Defendant by Counterclaim (Applicant and Appellant) - and - Macro Realty & Management Ltd. and Mark Chen Defendants/Plaintiffs by Counterclaim (Respondents) _______________________________________________________ Reasons for Judgment of the Honourable Mr. Justice A. G. Park _______________________________________________________

Appeal from the Decision by R. B. Waller, Master in Chambers Dated the 20th day of October, 2010 (2010 ABQB, Docket: 0901 17381) [1] On October 20, 2010 the Appellant (FN) brought an application for

summary judgment pursuant to Rule 159 of the AlbertaRules of Court before a Master and the Respondents (Macro and Chen) brought a cross application for

summary judgment under aCounterclaim filed by them. The Master and all parties determined the Respondents’ cross application would be adjourned sine die. TheMaster denied FN’s application for

summary judgment and awarded the Respondents party and party costs for the application. [2] The Respondents brought their application for

summary judgment on the Counterclaim to be heard concurrently on thisappeal application but it was adjourned sine die by agreement in order that the Respondents could set it down for a hearing before eithera Master or a Justice of this Court. [3] FN appealed the Master’s dismissal of their

summary judgment application to me. Before the Master FN sought an Ordergranting

summary judgment in the amount of $161,943.07 plus interest to be determined by the Master at the date of the

summaryjudgment application. FN further sought an Order from the Master that Macro and Chen pay its legal expenses on a solicitor and ownclient basis for the recovery of the $161,943.07 and any awarded interest in accordance with express provisions allowing for suchsolicitor client costs in agreements executed between itself and the Respondents. FN brought its application before the Master under Rule159(1) initially on the basis there was no defence to its claim or on the alternative basis the only genuine issue was as to amount. [4] This appeal was heard after the new Alberta Rules of Court came into effect.

Rule 6.14, as amended, of the new Rulesapplies to the decision of the Master on this appeal. It is an appeal on the record. Counsel advised the appeal is based on an error of law.In Housen v. Nikolaisen, (2002) 2002 SCC 33 , 2 S.C.R. 235 (S.C.C.) the Supreme Court of Canada determined the standard ofreview on a question of law is one of correctness. [5] In Janvier v. 834474 Alberta Ltd.,

(2011) A.W.L.D. 1583 Macklin, J. in this Court succinctly stated the standard of reviewfor a dismissal of an application for

summary judgment. At paras. 17 and 18 he stated: 17 The standard of review from the dismissal of an application for

summary judgment is correctness in identifying the legal test forsummary judgment and reasonableness in the decision itself (Airco Aircraft Charters Ltd. v. Edmonton Regional Airports Authority,2010 ABCA 364 (Alta. C.A.) at para. 7). The Alberta Court of Appeal has said that in the absence of an error of law, the ChambersJustice "has considerable discretion in an application for

summary judgment" and interference is warranted only where "the Justice hascome to an unreasonable conclusion" (Baugh v. Faculty Assn. of Red Deer College, 2004 ABCA 203 (Alta. C.A.) at para. 6). 18 In

summary, the standard of review on a decision from the Master on a question of law is correctness. The standard of review for factsaccepted by the Master or factual inferences drawn by the Master from the evidence is reasonableness. The finding must amount to apalpable and overriding error. The imputed error must be plainly identified and must be shown to have affected the result. On a questionof mixed fact and law, if the principle of law cannot be extricated from the question, then the standard of review is again one ofreasonableness only to be interfered with if a palpable and overriding error can be shown.

If the principle of law can be extricated fromthe question, then the standard of review on the principle of law is correctness. [6] Before the Master the stated issue was whether or not there was a genuine issue for trial. Now Rule 7.3(1) states: 7.3(1) A party may apply to the Court for

summary judgment in respect of all or part of a claim on one or more of the following grounds:

(

a) there is no defence to a claim or part of it; (

b) there is no merit to a claim or part of it; (

c) the only real issue is the amount to be awarded. Facts [ 7 ] The facts placed before the Master were and continue to be non-contentious. On or about November 12, 2006 Macro, in order to purchase some land within the City of Calgary, executed a commitment letter (loan agreement) provided to it by FN. Following that execution on or about November 22, 2006 Macro executed a mortgage in favour of FN and which mortgage was registered against the land which is municipally described as 4550 - 17 th Avenue S.W., in the City of Calgary.

The loan agreement and the subsequent mortgage providing security to FN set out Macro was indebted to FN for $2,100,000.00 dollars. Chen provided to FN a guarantee of the Macro mortgage up to the sum of $1,050,000 dollars. [ 8 ] The loan agreement and mortgage set out an interest rate of 5.36% per annum. The mortgage term was for five years with the 1 st monthly payment of $12,648.00 being made on January 1, 2007 and a further payment of $12,648.00 being made each and every month thereafter until the maturity date of December 1, 2011.

The loan set out in the mortgage had an amortization period of 25 years. [ 9 ] The loan agreement under clause 7 expressly excluded the right of prepayment. [ 10 ] Clause 18 of the loan agreement further provided: 18. Due on Sale, Change of Control etc. If: (

a) the Borrower directly or indirectly sells, conveys, transfers or otherwise disposes of its interest in the lands or any part thereof or agrees to do so: . . . without the prior written consent of the Lender being obtained, such consent not to be unreasonably withheld, then the Lender may, at its option, declare forthwith due and payable the entire balance of the unpaid principal together with accrued and unpaid interest due thereon. The decision to accelerate the Loan shall be at the sole option of the Lender... [ 11 ] Clause 7 of the Mortgage expressly provided: Prepayment 7.

The Mortgagor acknowledges the Mortgage shall be closed and that the Mortgagor will have no privilege of prepaying the Principal Amount secured under the Mortgage in whole or in part during the term of this Mortgage.

[ 12 ] In support of its application before the Master, FN placed into evidence an Affidavit of Stephen Craine, the Managing Director of Mortgage Services for FN. It is important to set out clauses 18 to 23 inclusive of that Affidavit as FN relied on those clauses to support and advance its position in both the Application before the Master and in subsequent reference in the Appeal before me. Those clauses state: 18. In addition to Clause 7 of the Loan Agreement, the Mortgage contained the specific term that it was a closed mortgage.

As such, there was no right of prepayment of the Loan in whole or in part (the "Yield Term"). As a result of the Yield Term of the Mortgage, First National was guaranteed a payment of interest to the end of the Mortgage term ("Yield Payment") if interest rates changed, or if the value of the Lands substantially increased allowing sale by Macro at a profit. 19. Clause 7, the Yield Term, of the Mortgage provides: 7.

The Mortgagor acknowledges the Mortgage shall be closed and that the Mortgagor will have no privilege of prepaying the Principal Amount secured under the Mortgage in whole or in part during the term of this Mortgage. " 20. The purpose of the Yield Term, from First National's perspective was to guarantee a minimum amount of profit on the Loan for First National's investors. 21. I have thirty years of experience providing financial services to commercial interests regarding real estate investments.

Throughout my experience, I have seen that contractual terms such as the Yield Term are very common, as they allow financial institutions to invest money in the commercial lending business and earn a profit without the substantial risks associated with rising property values. For example, in a quickly rising market, borrowers can sell properties shortly after purchasing them, and in the absence of a term such as the Yield Term, such borrowers would not incur any commercial interest charges. 22.

The Yield Term, therefore, was intended to protect First National against the possibility that changes in property values would allow Macro to sell the Lands for a quick profit without having to pay enough interest to cover First National's costs of lending and profit. 23. The cost of lending for such arrangements as the Mortgage includes, among other things, interest on the sum advanced, legal fees, service charges, operational costs of running a mortgage and commercial lending institution, as well as the profit due to First National as a commercial enterprise.

As part of its business model, First National requires the Yield Term in commercial lending arrangements of certain types in order to ensure profitability. [ 13 ] FN advanced the sum of $2,100,000.00 in respect of the loan agreement about November 30, 2006. [ 14 ] On October 10, 2008 the City of Calgary served Macro with a Notice of Intention to Expropriate. On January 30, 2009 the lands were expropriated by the City of Calgary. On February 19, 2009 the City of Calgary served Macro with notice advising the lands had been expropriated at January 30, 2009.

The land was expropriated to facilitate the building of the LRT project of the City of Calgary. [ 15 ] Clause 36 of the Mortgage specifically deals with the issue of expropriation. It states: 36. The Mortgagor hereby assigns to the Mortgagee, any proceeds which may become due and payable to the Mortgagor by an expropriating authority upon an expropriation of the Lands or the proceeds of any condemnation, eminent domain or like proceeding or the sale in lieu of or in reasonable anticipation thereof of the whole or any part of the Lands, or any portion thereof.

The Mortgagor is aware of the provisions of sections 49 and 52 of the Expropriation Act , and any amendments thereto, and hereby waives the benefit of such provisions or any legislation similar thereto or in replacement thereof and hereby agrees to pay to the Mortgagee the difference, if any, between all monies secured by the mortgage at the date of the expropriation and the compensation paid to the Mortgagee by the expropriating authority plus interest at the rate provided for herein on such difference. The Mortgagor shall forward to the Mortgagee,

copies of any documentation relating to an expropriation or a proposed expropriation of the Lands or any portion thereof, forthwith upon receipt of the said documentation by it and shall execute and deliver any further or additional documentation which the Mortgagee in its sole discretion deems necessary to effect the above assignment or which is requested by the expropriating authority.

For the purposes of this clause, the "date of the expropriation" shall mean the date that the Mortgagor ceases to be the registered owner of Lands, or any portion thereof, and the "expropriating authority" shall mean the Crown or any individual or entity empowered to acquire lands by expropriation.

Notwithstanding anything to the contrary contained herein, if the Mortgagor or the Mortgagee receives a notice of intention to expropriate in relation to the Lands, or any portion thereof, at the option of the Mortgagee, the whole of the outstanding balance secured under this mortgage at the date of the expropriation, shall immediately become due and payable in like manner and to all intents and purposes as if the time for payment of the said balance had fully come and expired.

If any or all of the Land is expropriated, it is agreed that the proceeds from any such expropriation shall be paid directly to the Mortgagee in priority to the claims of any other party.

Service of a copy of this mortgage on the expropriating authority shall be sufficient authority for the expropriating authority to deliver proceeds to the Mortgagee, in accordance with the terms of the assignment contained herein. [ 16 ] In the expropriation the City of Calgary advised Macro and FN it proposed to pay $3,500,000.00 in full satisfaction of any claims Macro and FN may have with respect to their interest in the land. [ 17 ] The City of Calgary on April 9, 2009 paid $2,046,582.27 to FN as payment in full of the mortgage.

The City of Calgary calculated the payment as follows: Amount owing as of January 30, 2009 $2,019,411.91 Three months interest $27,170.36 TOTAL $2,046,582.27 [ 18 ] As contained in paras. 40 to 43 inclusive of the Affidavit of Stephen Craine, FN in this application advanced the position Macro’s debt was calculated as follows: 40. Under the terms of the Loan Agreement and the Mortgage, as of April 15, 2009, Macro owed First National the remaining principal of $1,999,759.57, having made monthly payments of principal and interest after the commencement of the Loan Agreement. 41.

Under clauses 7 and 18 of the Loan Agreement and pursuant to the Yield Term, the remaining sum of Yield Payment Macro owes to First National as of the date of expropriation is $161,943.07 (the “Debt”). 42. The Debt represents the total amount of indebtedness that Macro has for principal and interest under the Loan Agreement, less the monies paid by Macro in respect of the Loan Agreement, and less the monies paid to First National by the City after the expropriation. 43.

I have calculated the debt as follows: Principal: $1,999,759.57 Interest from April 9, 2009 to April 15, 2009: $ 4,122.59 Yield Maintenance (discounted at 1.286%): $ 204,093.18 Total owing at April 15, 2009: $2,207.975.34 Less funds advanced by City: $2,046,032.27 Total Outstanding: $ 161,943.07 [ 19 ] Demand was made by FN on October 5, 2009 for $161,943.07 plus interest accrued to October 5, 2009 and all other expenses incurred, including legal costs on a solicitor and his own client basis, by FN. To date FN has not received any further payment.

[ 20 ] Stephen Craine finally set out in his Affidavit, based on advice from FN’s counsel, there is no genuine issue to be tried in this action. [ 21 ] Chen swore an Affidavit as President of Macro and in his capacity as a personal party under the Statement of Claim and the Counterclaim. He deposed in his belief FN is not entitled to a yield maintenance fee or prepayment penalty. Para. 5 and part of para. 6 of his Affidavit are relevant to this application. They state: 5. I acknowledge that the

section 36 of the Mortgage contemplates the possibility of expropriation however neither the Loan Commitment Letter nor the Mortgage itself make any reference to the mortgagor being obligated to pay a Yield Maintenance Fee or a Pre-payment Penalty in the case of an expropriation. Moreover, I can advise that no one ever told me that I would be responsible for such charges. I do not know of any facts which would substantiate the Plaintiff’s claim and it is my belief that there is no merit to the claim of the Plaintiff. 6. . . . The Defendants did not choose to pay the mortgage out in advance.

Furthermore, the Defendants did not pay any money to the Plaintiff, First National. The Property was transferred in accordance with the Expropriation Act , R.S.A. 2000, c. E-13 (the “ Act ”) by registration of a Certificate of Approval at Land Titles Office. [ 22 ] On each of the months of February, March and April 2009 FN caused the further monthly mortgage payments of $12,648.00 to be withdrawn from Macro’s banking account. [ 23 ] The Master in denying FN’s application for

summary judgment held that a contract (the mortgage) waiving the effect of provisions related to the evaluation of the security interest under the Expropriation Act , R.S.A. 2000, c. E-13 is contrary to public policy. He further held in the alternative, if he was wrong on the aforesaid ruling,

section 36 of the mortgage does not refer to

section 61 of the Expropriation Act , and is therefore inadequate to constitute a waiver of the right in favour of Macro and Chen for the protection afforded to them by

section 61 of the Expropriation Act . FN ’s Position [ 24 ] FN submitted the Master erred in law in determining the waiver under the mortgage was contrary to public policy and further the Master in the alternative erred in law in determining that

section 36 of the mortgage agreement waived the protection of

section 61 of the Expropriation Act . [ 25 ] FN argued it should be entitled to the yield payment or penalty from January 30, 2009 to the end of the term of the mortgage which includes all interest payments that had been made by Macro, and the 3 months interest received from the City of Calgary, under

section 52 of the Expropriation Act . Sections 52(1) and (2) of the Expropriation Act reads as follows:

(1) When the expropriated land is subject to a security interest, the expropriating authority shall pay to the security holder 3 months’ interest at the rate prescribed in the security document or, if no rate is prescribed, at the rate that would normally be payable in respect of the security, on the amount of the outstanding principal.

(2) When the Board makes a determination under

section 49 , the amount payable in respect of interest under this

section to the security holder shall be in the same proportion in relation to the total payment made on account of interest that the land being expropriated and subject to the security interest bears to the entire amount of land subject to the security interest. [ 26 ] That outstanding amount is $161,943.07. In reaching this position FN pointed to section 49(3) of the Expropriation Act and argued the debt owing by Macro under the mortgage was not fully discharged by the City of Calgary’s payment to it. Section 49(3) reads as follows:

(3) When the amount owing to the security holder is greater than the market value of the security holder’s interest and there is collateral security other than the covenant of the purchaser or borrower to pay the amount of the debt, and whether that collateral is by way of security on other property or a guarantee of a third party or otherwise, the compensation shall not fully discharge the debt and the Board shall determine the balance remaining and the manner in which it is to be repaid. [ 27 ] In other words FN argued its interest in the mortgage was higher than what the City of Calgary determined the mortgage value to be.

FN stated its mortgage interest was the outstanding value contractually owing on the mortgage at January 30, 2009. That contractual value was the outstanding principal amount of the mortgage at January 30, 2009 plus the value set out in the yield clause which requires interest payments to be made by Macro for the full 5 year term of the mortgage. FN did allow, in its argument, that any interest payments made by Macro prior to January 30, 2009 and the three months interest paid by the City of Calgary under

section 52 of the Expropriation Act were to be deducted from the contractual value under the mortgage. The final amount in FN’s position came to $161,943.07. [ 28 ] In addition to the provisions of section 49(3) of the Expropriation Act , FN pointed to section 49(1) of the Expropriation Act which recognizes that not only is the land owner entitled to market value, but the security holder (FN) is as well. [ 29 ] In support of its position FN referred to

section 36 of the mortgage where Macro specifically waived the benefit of

section 49 and

section 52 of the Expropriation Act and agreed to pay to FN the difference, if any, between all of the monies secured by the mortgage at the expropriation date and the compensation paid to FN by the City of Calgary plus interest provided for such difference. [ 30 ] FN submitted before me the Master erred in law in his finding the waiver under

section 36 of the mortgage was contrary to public policy. It argued one cannot take a broad brush approach, as did the Master, in his consideration that the Expropriation Act has a public purpose and intent and that to waive any portion of the Expropriation Act would be against public policy. Rather FN noted before me that the specific provisions of

section 49 ,

section 52 and

section 61 of the Expropriation Act must be considered to define the benefits conferred by those sections. It submitted those sections are intended to ensure fair compensation to the land owner and the security holder in expropriation situations.

Due to the considerable power given to the expropriating authority with respect to a quick, expeditious mechanism for the limited determination of fair market value, FN submitted the benefits of the Expropriation Act and those sections in particular went to the individual owner of the expropriated land in his or her private capacity as a land owner, and are not benefits for the public as a whole. [ 31 ] That submission was made to demonstrate the alleged error of law made by the Master when he stated, inter alia , at ps. 54, 55 and 56 of his Reasons for Judgment: In general terms, expropriation is an compulsory acquisition of real property by the Crown or one of its authorized agencies.

The implicit basic minimum objective of the law is to make an expropriated owner economically whole. The first issue I must examine is whether a waiver resulting in the derogation of this objective is contrary to public policy and thus unenforceable. I must confess that my judicial antenna were up when I first considered the effect that a waiver would have in these circumstances. A defendant corporation and its personal guarantor would be required to receive less than full compensation in the circumstances where the compulsory taking of the land was entirely beyond their control.

The principle of free enforceability of contractual agreements is a strong one and should not likely be interfered with by the courts; yet it is surely inevitable that a court must reserve the ultimate power to decide when values favouring enforceability are outweighed by values that society holds to be more important. The Court must look to the statute, for the public policy of a society is reflected in its statutes. It is the duty of the court to adjudicate what is public policy and to determine whether the agreement sought to be enforced is contrary to the provisions and the intent of the statute.

Many statutes specifically set out the policy consideration, such as the Pensions Act , but the lack of a conduct prohibition clause is by no means determinative of whether public policy considerations apply. . . . Different considerations apply under the Expropriation Act . First, it is universal in its application. Secondly, I find that the compulsory taking and compensation elements of the statute create strong public policy concerns.

I specifically find that any waiver that derogates from the owners' right to obtain full compensation is contrary to public policy and cannot be enforced. I recognize that this is a bold pronouncement and without precedent. The field of public policy is constantly evolving. An evolving society must have changing values and the law fails in its service to society if it fails to evolve. [ 32 ] In its alternative argument that the Master erred in law in finding that clause 36 of the mortgage could not be interpreted to waive

section 61 of the Expropriation Act because clause 36 only referred to

section 39 and

section 52 of the Expropriation Act , FN submitted that it is necessary to read the entirety of

section 36. In doing so FN noted that general rules of contractual

interpretation require, inter alia , that where there is no ambiguity in a written contract, it must be given its literal meaning and words must be given their plain, ordinary meaning, at least unless to do so would result in absurdity. [ 33 ] In this connection FN argued

section 36 of the mortgage clearly specified Macro and Chen were waiving the provisions of

section 49 and

section 52 of the Expropriation Act and any provisions similar to those sections, which includes

section 61 of the Expropriation Act . In other words the parties had a clear intent to contract out of the provisions of the Expropriation Act to ensure that FN would receive the yield payment regardless of the intervention of the expropriation. [ 34 ] In rejecting FN’s argument on the inclusion of

section 61 in the waiver provisions in

section 36 of the mortgage the Master stated in part at p. 56 and p.57 of his Reasons for Judgment: The important words of waiver in paragraph 36 are contained in the phrase: The mortgagor is aware of the provisions of

section 49 and 52 of the Expropriation Act . . . and hereby waives the benefit of such provisions or any legislation similar thereto in replacement thereof. I agree with the respondent that

section 49 and 52 are sections designed to protect the interests of the plaintiff and to value their security including a bonus of three months interest. The defendant is not waiving a benefit to itself. The scheme of the statute is to value security interests and other interests separately. The respondent does not specifically waive

section 61 of the statute, which is clearly a

section which would otherwise benefit the respondent. That

section provides the right to compensation and the compensation finally awarded for any estate or interest acquired or taken under this Act in Crown or other land by an expropriating authority stands in stead of the estate or interest so acquired or taken and a claim to or an encumbrance on the estate or interest is converted as against the expropriating authority into a claim for compensation or a portion of that compensation. In essence,

section 61 provides the mortgage ceases to exist when the defined compensation under 49 and 52 is paid; the logic continues; no mortgage, no guarantee of the mortgage. However, the plaintiff argues that

section 49 and 52 and 61 are inexplicably bound together and that the language “or any legislation similar thereto is sufficient to make the waiver effective.” (sic) I have earlier stated the principles of public policy that underpin the legislation. If I am wrong in my finding that those principles reached the ascendancy of public policy they are surely supportive of a finding that any contract or waiver designed to abnegate these principles must be granted only in the clearest of circumstancesection There are all sorts of rules of

interpretation, including the doctrine of contra proferentem and the like that are available to the court to review the waiver. I prefer to deal with this matter in a much simpler way. The plaintiff has emphasized in argument the defendant’s freedom to contract. They have argued that the defendant was given the documents, took 15 minutes to review them and is accordingly bound by what he signed.

Recognizing to some extent this is a legal fiction, but one which the courts inevitably recognize even when the defendant is faced with a document with many pages, I must ask myself what the defendant would conclude by reading the waiver provision. He would be deemed to understand sections 49 and 52 , which would tell him on a careful review of these sections that in the event of expropriation the plaintiff would be paid the principle balance on this loan plus three months interest. His mind would not be directed to the fact that he would be waiving the protection afforded to him by

section 61 , without going through some tortured

interpretation which involved considering similar legislation, including in his assessment some basket of provisions of an indeterminate nature. The waiver as it is worded, in my mind, is clearly inadequate to constitute a waiver of the right in favour of the plaintiff for prepayment. [ 35 ] In conclusion in this appeal FN submitted that in no way does the waiver derogate from the rights of Macro and Chen to obtain full compensation and be made economically whole. It noted Macro and Chen received fair market value for the land and requiring the yield payment on the mortgage would place Macro and Chen in the same position if the land had been sold voluntarily. FN

submitted it is included under the definition of “owner” under the Expropriation Act and it is entitled to be made economically whole as well. Finally FN argued if I uphold the Master and find the waiver is contrary to public policy, and Macro and Chen are not required to pay the yield payment to FN, then FN will suffer a loss and would not be made economically whole and Macro and Chen will be in a better position than if the land had been sold voluntarily. Reasons [ 36 ] The Master dismissed the application for

summary judgment on the 2

interpretations of law he laid out in his Reasons for Judgment. FN submitted he erred in both of his

interpretations. [ 37 ] In determining whether or not he erred in dismissing the application I am not required under the new Rules of Court to determine whether his ultimate determination of the 2 issues he defined were correct or not correct. It is obvious that the Master researched the law and came to his decision based on sound and logical legal premises. It is not for me to determine whether he made an ultimate error of law in either of the 2 stated issues. As an aside I cannot see in his Reasons any errors of law on the record which would be set aside by me on a standard of correctness.

Nor do I uphold his findings on the stated issues by adopting his reasoning. To set aside his rulings or to uphold his rulings on the law is not my function nor my role in hearing this appeal. [ 38 ] Rather I am charged with determining on appeal whether FN demonstrated there was no genuine issue for trial on the application presented. In my opinion the rulings by the Master implicitly and inferentially present 2 genuine issues for trial.

If the Master was incorrect in his rulings on a standard of review of correctness, in my view Macro and Chen have demonstrated on the facts and the law that there are genuine issues for trial. The issues relating to public policy and the

interpretation of the wording of

section 36 of the mortgage respecting its inclusion of

section 61 of the Expropriation Act can only be resolved on a full trial or perhaps a

summary trial. There are genuine issues for trial on all aspects of FN’s claim that need to be resolved. Due to the existence of genuine issues for trial the Master was correct in denying FN’s application for

summary judgment. Accordingly its application on appeal is dismissed. [ 39 ] Counsel may make an appointment with me to speak to costs, if necessary. Heard on the 6 th day of June, 2011. Dated at the City of Calgary, Alberta this 26th day of January, 2012. A. G. Park J.C.Q.B.A. Appearances: Richard I. John for the Defendants

Dennis K. Yasui, Q.C. for the Plaintiff