Terrigno v. Kretschmer, 2012 ABQB 750

Court of Queen ’ s Bench of Alberta Citation: Terrigno v. Kretschmer, 2012 ABQB 750 Date: 20121206 Docket: 1101 01724 Registry: Calgary Between: Maurizio Dante Terrigno Plaintiff - and - Monica Valerie Kretschmer, Constable K. Oberg Badge # 3961, Constable Gramntik Badge # 3383, and Rick Hanson in his capacity as the Chief of Police of the City of Calgary Defendant _______________________________________________________ Reasons for Decision of the Honourable Mr. Justice P. R. Jeffrey _______________________________________________________ [ 1 ] Monica Kretschmer, one of a number of defendants in this action, applies for

summary dismissal of the claims against her. The remaining defendants take no position on this application. [ 2 ] The claims she asks this Court to dismiss are brought by her now ex-husband, Maurizio Terrigno. Terrigno and Kretschmer were together for approximately 38 months, until their separation in February 2007. In early March 2007, Kretschmer commenced two lawsuits against Terrigno, seeking divorce, custody of their son, distribution of matrimonial property and related relief. Terrigno

defended those actions. [ 3 ] While those actions advanced toward trial, approximately nine separate civil actions were commenced against Kretschmer by Terrigno or persons closely connected to him. Those actions claimed such things as replevin, damages for defamation, grand- parenting access to the child of the marriage, restraint and declaration that certain matrimonial property was subject to a trust in favour of Kretschmer ’ s in-laws. [ 4 ] Of the dozen or so separate legal proceedings, only two remained outstanding in September 2010 when the parties proceeded through a month long trial.

The trial judge reserved his decision, rendering it in April and June 2011. [ 5 ] This new civil suit, that is the subject of this application, was filed on February 4, 2011. This was after trial and before judgment on the other lawsuits. In this claim Terrigno alleges that Kretschmer is liable to him for malicious prosecution or, in the alternative, for abuse of process. [ 6 ] The events at the heart of Terrigno ’ s claims in this action relate to criminal prosecutions of Terrigno during the period of time after the parties separated and before their trial.

Terrigno was charged with criminal harassment, breach of recognizance, perjury, fraud and mischief. None of those charges resulted in a conviction. In fact, four of the five charges were stayed by the Crown. The breach of recognizance charge was stayed on July 21, 2008. The fraud, mischief and perjury charges were stayed on February 25, 2009. Only the criminal harassment charge proceeded to trial.

That ended on October 31, 2008, after a successful non-suit application by Terrigno. [ 7 ] Terrigno alleges that Kretschmer, maliciously and/or for ulterior purposes, instigated and actively encouraged these criminal prosecutions. Terrigno alleges her real motive was to advantage her position in the array of civil proceedings.

He says, in effect, that she fabricated the information that she reported to the police and then relentlessly followed up to ensure they acted on that information. [ 8 ] The parties have agreed that Terrigno ’ s malicious prosecution allegations in respect of the criminal harassment and breach of recognizance charges were commenced out of time, thus barred by the Alberta Limitations Act , RSA 2000, c L-12, because this tort action was filed February 4, 2011, more than two years after those two charges were stayed.

Therefore I need not deal with them further. [ 9 ] The remaining charges (the “ perjury , fraud, and mischief charges ” ) were that Terrigno: Count 1 On or about the 29th day of May, 2006, at or near Calgary, Alberta, did with intent to mislead, make before Sandra Ayramenko a false statement under oath to the effect that he was not driving a motor vehicle, when in fact he was, and that it was stolen knowing that the said statement was false thereby committing perjury contrary to

section 131 of the Criminal Code of Canada . Count 3 On or about the 11th day of May, 2004, at or near Calgary, Alberta, did by deceit, falsehood or other fraudulent means, unlawfully defraud Peace Hills Insurance of property, money, valuable security or a service, to wit: money, of a value exceeding $5,000.00, contrary to section 380(1) (

a) of the Criminal Code of Canada . Count 5 On or about the 13th day of May, 2004, at or near Calgary, Alberta, did with intent to mislead, unlawfully cause a peace officer to enter on or continue an investigation by reporting that an offence had been committed when it had not been committed, thereby committing public mischief, contrary to section 140(1) (

c) of the Criminal Code of Canada .

[ 10 ] The perjury, fraud, and mischief charges were stayed by the Crown on February 25, 2009. Terrigno was not out of time when he commenced this malicious prosecution action in respect of those three charges. He was aware much earlier of Kretschmer ’ s conduct, that he alleges in this action constituted the tort of malicious prosecution or else abuse of process. He became aware of it no later than March 31, 2008 because, sometime prior to that, his criminal defence counsel received disclosure from the Crown containing details of Kretschmer ’ s reports to and dealings with the Calgary Police Service ( “ CPS ” ).

But the law is clear that, for time limitation purposes in malicious prosecution actions, the limitation period does not begin to run until the prosecution terminates: Montreal (City) v Hall (1885), 1885 CanLII 50 (SCC) , 12 SCR 74 at para 13 ; Simanek v Ontario , 2006 CarswellOnt 5598 (WL Can) at para. 3 (CA) . [ 11 ] At the oral hearing of this application, I first asked whether in bringing her

summary dismissal application Kretschmer had satisfied the requirements of Rule 7.3(2) of the Alberta Rules of Court , Alta Reg 124/2010, which provides:

(2) The application must be supported by an affidavit swearing positively that one or more of the grounds described in subrule (1) have been met or by other evidence to the effect that the grounds have been met. [ 12 ] The relevant part of subrule (1) provides: 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: ... (

b) there is no merit to a claim or part of it; ... [ 13 ] Kretschmer maintained that she had satisfied these requirements. With her application Kretschmer filed an affidavit attesting to her belief, based upon what she had been informed, that Terrigno ’ s cause of action was statute barred, but nothing more. She did not swear positively to any other evidence demonstrating that her application in the alternative would succeed. Her own affidavit only addressed the limitations defence. Her argument in the alternative in support of the

summary dismissal, however, relied on grounds other than the limitations defence. No affidavit evidence was filed in support of that portion of her application. [ 14 ] Terrigno argued that the little bit of evidence Kretschmer did file in support of her application was inadequate for purposes of subrule 7.3(2) , since it was not positive evidence but merely statements based upon information and belief. Further, he argued that Kretschmer did not satisfy the requirements of subrule 7.3(2) regarding her argument in the alternative to her limitations argument. He submits the proper construction of that subrule requires an affidavit swearing positively to those matters. That

interpretation is made clear, he argues, by placing the word “ either ” after the first “ that ” , such that the rule would read: The application must be supported by an affidavit swearing positively that EITHER (

i) one or more of the grounds described in subrule (1) have been met or (ii) by other evidence to the effect that the grounds have been met. [bold portions added] [ 15 ] He says that Kretschmer did not support her application with an affidavit swearing positively to either of the two options available to her. He says that is fatal to her application. [ 16 ] The alternate possible

interpretation would place the word “ either ” after the first instance of the word “ by ” , such that it would read: The application must be supported by EITHER (

i) an affidavit swearing positively that one or more of the grounds described in subrule (1) have been met or (ii) by other evidence to the effect that the grounds have been met. [bold portions added] [ 17 ] Under this

interpretation, even though Kretschmer did not swear positively to anything more than that Terrigno ’ s claim was statute barred, other evidence on the record of the application could be relied upon to satisfy the requirements of the subrule. Here there is such other evidence.

[ 18 ] In my view the latter is the better

interpretation. First, the words “ other evidence ” suggest that the last part of the subrule is stating an alternative to “ an affidavit swearing positively ” , not to “ one or more grounds ” , since an affidavit is evidence but a “ grounds ” of an argument is not. In other words, only the second

interpretation makes sense in the context of the full subrule. [ 19 ] Second, the

interpretation that Terrigno urges upon me would have the effect of the court being unable to strike matters even though there is admissible evidence on the record demonstrating those actions have no hope of succeeding, merely because no affiant swears positively to that in affidavit form. Perhaps a party opposite makes a fatal admission under oath in questioning. Perhaps a third party swears a determinative admissible statement to the police or in open court. Terrigno ’ s

interpretation would preclude these forms of positive sworn evidence from forming the evidentiary basis for a

summary disposition. In my view the requirement in this rule ensures that no claim is struck in the absence of admissible evidence. [ 20 ] As to whether hearsay evidence alone might suffice, I am mindful of the statement of the Alberta Court of Appeal in Murphy Oil Co. v Predator Corp. , 2006 ABCA 69 at para 39 thereof, rendered before the existence of Rule 7.3(2) , which provides: ... Although it is possible to admit hearsay at a

summary judgment stage, the admission is predicated on the expectation that the source of the evidence will be available at trial. When statements are made by unknown persons, that expectation does not exist. [ 21 ] In the context of this application I need not determine whether that statement of law is varied by subrule 7.3(2) . That issue does not arise; Kretschmer is not relying upon hearsay evidence. For this application it is enough that I conclude that sworn positive evidence in the record placed before me on this application may suffice for a successful

summary dismissal application, even though it is not in an affidavit “ swearing positively that one or more of the grounds described in subrule (1) have been met ” . That evidence in other forms can constitute “ other evidence to the effect that the grounds have been met. ” [ 22 ] In respect of the

summary dismissal application itself, the test I am to apply was summarized in Tottrup v Clearwater (Municipal District No. 99) , 2006 ABCA 380 . In that decision, the Alberta Court of Appeal delineates three types of

summary disposition applications. The application before me falls into the second category. In respect of that category, the Alberta Court of Appeal stated at para 10 as follows: An analogous approach is used where the defendant applies for

summary dismissal. It is in the context of this type of

summary judgment application that the cases sometimes say it must be “ plain and obvious ” , or “ clear ” or “ beyond real doubt ” that the action should be summarily disposed of: ... . The Supreme Court has stated that it must be shown that there is a “ real chance of success ” to avoid

summary dismissal of the action: ... . If the record raises genuine factual or credibility issues, for example if there is conflicting evidence, then

summary judgment generally cannot be granted... [citations omitted] [ 23 ] In De Shazo v Nations Energy Co. , 2005 ABCA 241 , at paras 17-19 , the Alberta Court of Appeal stated: ...

Summary judgment should not be granted if opposing affidavits clash on relevant facts: ...The chambers judge should not assess the quality and weight of the evidence; that is a function reserved for a trial judge: ... The chambers judge dismissed the application for

summary judgment on the basis that the facts were too much in dispute to permit a

summary determination of the limitations issue. We agree that courts are loathe to dismiss an action summarily where it appears factual matters are in dispute. An action is not to be dismissed unless it is beyond doubt that the claim cannot succeed. Nevertheless, the court has an obligation to conduct a careful review with an eye to determining whether there are undisputed facts sufficient to resolve the matter, even when the action is complex. ... When faced with a

summary judgment application of this type the court must ascertain whether there are undisputed facts that necessarily lead to the conclusion that it is plain and obvious the plaintiff ’ s claim is statute barred. [citations omitted]

[24] Terrigno is correct when he states that there are factual matters in dispute between these parties. A prime example is: Whatwas Kretschmer’s motivation when providing information to the CPS adverse to Terrigno? Was the information she provided to the CPSfalse? If so, did Kretschmer know or ought she to have known that it was false? Did she have reason to fear for her safety and engage theCPS?

Did Kretschmer have a history of removing their child from the jurisdiction without Terrigno’s consent, contrary to court orders?Was Kretschmer laughing or alarmed upon discovering she was under surveillance by a stranger? Who assaulted whom, if at all, inFebruary 2007? The parties disagree on these points. In some if not all of those factual disputes the court will be called on to assess thecredibility of the sources of the relevant evidence.

Determining these issues warrants the trial process. [25] However, the recognition that there are disputed issues of fact between the parties is not dispositive of this application, whichis the position Terrigno urges upon me. As the Alberta Court of Appeal stated in the excerpt quoted above, from De Shazo: ... courts are loathe to dismiss an action summarily where it appears factual matters are in dispute. An action is not to be dismissed unlessit is beyond doubt that the claim cannot succeed.

Nevertheless, the court has an obligation to conduct a careful review with an eye todetermining whether there are undisputed facts sufficient to resolve the matter, even when the action is complex. [emphasis added] [26] In other words, a determination that there are some factual matters in dispute between the parties does not end the matter. Itdoes not relieve me of the obligation to conduct a careful review to determine whether, nevertheless, it is beyond doubt that the claimcannot succeed. In so doing, I am to determine whether there are other undisputed facts sufficient to resolve the matter.

Has Terrignoshown that he has a “real chance of success” to avoid

summary dismissal of his claim against Kretschmer? As Justice Slatter stated inGayton v Lacasse, 2010 ABCA 123 at para 50: “A party resisting

summary judgment must bring forward evidence to disclose somemerit in its position warranting the continuation of the action.” [27] To succeed in his action against Kretschmer for malicious prosecution, Terrigno must establish at trial, on a balance ofprobabilities, that the perjury, fraud, and mischief prosecutions were: (

a) initiated by Kretschmer, (

b) terminated in his favour, (

c) undertaken by Kretschmer without reasonable and probable cause, and (

d) motivated by malice or a primary purpose other than that of carrying the law into effect. Miazga v Kvello Estate, 2009 SCC 51 at para 3; Nelles v Ontario, (SCC), [1989] 2 SCR 170 at para 42. [28] The second element is not disputed, the charges terminated in Terrigno’s favour. I am also satisfied that the fourth element,the issue of Kretschmer’s motivations, should not be decided adverse to Terrigno at this stage given the highly charged context in whichthese events arose and the evidence, in the transcript of Constable Oberg’s questioning, of Kretschmer’s repeatedly initiating furthercontact with the CPS.

For example, Oberg states: “She would show up at the office unannounced wanting to talk to me about more issuesinvolving the two ...”. [29] More difficult for Terrigno are the first and third elements. [30] Regarding the first element, that Kretschmer initiated the prosecution, at trial Terrigno will have to demonstrate thatKretschmer was “actively instrumental” in commencing the process: Miazga at para 53. [31] Where, as here, the Defendant is not the actual prosecutor, she may nevertheless be treated as the prosecutor in exceptionalcircumstances.

The Ontario Court of Appeal put it this way in Kefeli v Centennial College of Applied Arts and Technology, [2002] OJNo 3023 at paras 24-25(CA):

I specifically reject the moving party ’ s submission that the issue of whether Mr. White and Centennial were responsible for setting the prosecution in motion should have been left for trial. The moving party acknowledges that a claim for malicious prosecution requires that the defendant must have initiated the prosecution or set it in motion, and that, ordinarily, the court will view the police officer who laid the charge as being the person who set the prosecution in motion.

However, he also submits, correctly, that the complainant may be treated as the prosecutor in exceptional circumstances, including the following: • the complainant desired and intended that the plaintiff be prosecuted; • the facts were so peculiarly within the complainant ’ s knowledge that it was virtually impossible for the professional prosecutor to exercise any independent discretion or judgment; and • the complainant procured the institution of proceedings by the professional prosecutor, either by furnishing information which he knew to be false, or by withholding information which he knew to be true, or both.

In addition, the moving party submits that the courts will consider other circumstances in determining whether a particular defendant set a prosecution in motion, and that the core issue is whether there is any evidence to show that “ the defendant was actively instrumental in putting the law in force ” .

Put another way, the issue is whether the defendant “ had caused everything to be done which could be done wrongfully to set the law in motion against the [plaintiff] on a criminal charge ” . [citations omitted, emphasis in the original] [35] The perjury, fraud, and mischief charges all link back to Terrigno ’ s vehicle damage in 2004. He said that his vehicle was stolen and he claimed compensation for the damage from his insurer. The vehicle was found in a casino parking lot. His insurer investigated. Terrigno ’ s complicity in the matter was suspected, also by the CPS, but no further actions were taken.

It appears that he recovered from his insurer. [36] Early February 2007, while the parties were still together, Kretschmer found among Terrigno ’ s belongings a DVD from surveillance cameras recording the events in the casino parking lot the night the damaged vehicle was found there by the CPS. Terrigno had the DVD in connection with some other legal proceeding. Kretschmer watched it.

She was certain it depicted Terrigno exiting the damaged vehicle at the casino parking lot, and being escorted away by someone else in a pick-up truck, despite him earlier maintaining the vehicle was stolen from him before it was damaged. [37] She confronted him about it on February 11, 2007, asking what else he had lied about. She said later that at the time she was concerned for what this apparent lying meant about Terrigno ’ s mental state, about his earlier assurances to her of his changing, and about their relationship. [38] The parties differ on what occurred next.

Kretschmer reported to the CPS on February 22, 2007 that Terrigno assaulted her. Four months later, when answering the CPS ’ questions about the incident, Terrigno said that it was actually Kretschmer that assaulted him. [39] During her report to the CPS in February 2007, as part of her background narrative to her altercation with Terrigno, Kretschmer made mention of the DVD, her watching it and confronting Terrigno about its contents.

The synopsis portion of the CPS intake report states: Once it was explained to Kretschmer that [Terrigno] would have to be investigated prior to any charges being laid, as there is currently insufficient evidence for a charge, she became adament [sic] that she did not want charges laid nor give a statement. Kretschmer was advised to contact a lawyer and obtain a restraining order ... [40] By June 2007 the parties had separated, there was a civil restraining order in place and Kretschmer went to the CPS alleging Terrigno had breached it. During that exchange mention was made of the February 11, 2007 incident.

The CPS asked why she never

reported it. She said she did and that at the time she provided an eight-page written account. The CPS officer that checked back into the accuracy of Kretschmer ’ s statement was aware of the 2004 incident. Upon review of the Kretschmer statement he learned of the existence of the DVD and Kretschmer ’ s belief that it depicted Terrigno.

He re-opened that matter. [41] Thereafter the evidence suggests that Kretschmer ’ s only other involvement in the events leading to the perjury, fraud, and mischief charges was responding to follow-up questions from the CPS. [42] Terrigno argues that this evidence demonstrates that Kretschmer initiated the legal process leading to his wrongful prosecution stemming from the 2004 vehicle damage, or at least revived the prosecution process, absent which he would not have faced the wrongful prosecution. [43] On the evidence presently before me, Terrigno has no hope of establishing at trial the “ exceptional circumstances ” that he must show to prove that Kretschmer initiated the prosecution, by showing that: • she “ desired and intended that [Terrigno] be prosecuted ” – here her contact with the authorities was about the alleged assault and later an alleged restraining order breach, not about the 2004 incident.

It was mentioned by Kretschmer only to explain what precipitated the parties ’ February 11, 2007 altercation, and her express wish at the time was that the CPS not take further action. She obviously desired in June 2007 that the CPS would act on the alleged breach, but there is no evidence that she compelled them or even asked them to revisit the 2004 incident. The evidence only speaks of Constable Oberg deciding to do so. He says it was his decision to investigate the matter in light of this new information.

She may well have desired and intended that the CPS act on matters tied to their high conflict domestic issues, but those are not the basis of the perjury, fraud, and mischief charges. • “ the facts were so peculiarly within [her] knowledge that it was virtually impossible for the professional prosecutor to exercise any independent discretion or judgment ” – here the undisputed evidence is that Constable Oberg exercised his discretion independently and that he alone decided that Terrigno should be charged.

After explaining during examination under oath why he thought the person in the DVD of the casino parking lot was Terrigno, Oberg stated: If I didn ’ t believe it to be him, I wouldn ’ t have charged him for it. I believe it to be him. • she “ procured the institution of proceedings by the professional prosecutor, either by furnishing information which [she] knew to be false, or by withholding information which he knew to be true, or both ” – here the most Terrigno can point to is that a potential eye witness to the 2004 events could not, three years later in 2007, identify Terrigno in a line-up.

It does not follow therefrom that Kretschmer ’ s identification of Terrigno was false, or further that it was intentionally falsified as opposed to merely mistaken. It does raise a scintilla of doubt, but only a scintilla, as to the accuracy of Kretschmer ’ s and Oberg ’ s conclusions that it is Terrigno depicted in the DVD. Terrigno in his Statement of Claim alleges that Kretschmer fabricated and was motivated by ulterior purposes. That may well be his belief. The high conflict divorce context certainly presents the distinct possibility that she was motivated to mislead the authorities for ulterior purposes.

However, that goes to the fourth element of the tort of malicious prosecution, it cannot satisfy all four elements. That theory, unsubstantiated in any material way, does not alone warrant continuation of the action. There must be more than that theory. In my view Terrigno has not pointed me to any evidence that discloses some merit to his position on this “ exceptional circumstance ” , warranting the continuation of the action. [4] In any event there remains no evidence that Kretschmer was actively instrumental in the prosecution commencing or continuing.

All she really did was state her opinion that the person in the DVD of the casino parking lot was Terrigno. She did so before the couple had separated. She did so before she had consulted a lawyer. The only evidence on the point is that she did so to give the description of her fight with Terrigno some context. The authorities did the rest. She did not compel them to charge him. When speaking of the DVD her expressed concern was only of his alleged lying. The CPS decided on charging him with fraud and mischief as well as perjury.

There is no evidence that officers of the law and other agents of the Crown had their discretion usurped by Kretschmer or that she rendered it “ virtually impossible ” for them to exercise their independent discretion. Kretschmer has satisfied me that there is no genuine issue to be tried on this first element of the tort of malicious prosecution. [5] Regarding the third element of the tort of malicious prosecution, the absence of reasonable and probable cause, Kretschmer has similarly satisfied me that there is no genuine issue to be tried. The prosecutor must have a belief in the actual guilt of Terrigno and

that belief must be honest and reasonable in the circumstances. Terrigno has not pointed to evidence of any specific conduct or omission on Kretschmer ’ s part to support his position. In any event, the evidence, as described above in respect of the first element, overwhelmingly points to it having been Oberg ’ s decision to charge Terrigno, not Kretschmer ’ s, and the state ’ s conduct before and after the charging to not have been within Kretschmer ’ s control. The question of reasonable and probable cause pertains to the belief(

s) held by the one or ones in control at the material times. [6] In his Amended Statement of Claim, Terrigno argues in the alternative that Kretschmer is liable to him for abuse of process. Kretschmer argues that Terrigno cannot succeed in a claim that she abused the process in respect of the steps she took because of her safety concerns, given the imposition of a restraining order following the lengthy trial. That conclusion was not disturbed on appeal. That confirmed the legitimacy of her concerns and use of the legal process to address them.

Further, she argues, a restraining order was imposed earlier in the process and the February assault allegations were resolved by way of Terrigno entering into a peace bond. These further prove that her use of the legal process was warranted. [7] I agree that therefore in respect of Kretschmer engaging the legal process for the matrimonial conflict matters, Terrigno cannot succeed in his claim in the alternative on abuse of process.

But his abuse of process claim, like the main claim for malicious prosecution, is focussed on Kretschmer ’ s role in the allegedly unfounded perjury, fraud, and mischief charges, not the matrimonial litigation. No matter how meritorious her claims in the matrimonial litigation, she cannot try to help them along collaterally by engaging the criminal process. [8] In respect of these matters, given the undisputed evidence that Kretschmer (

i) did not initiate the process, or the resurrection of the process, on the 2004 vehicle matter, but merely made reference to the DVD as part of her background narrative, (ii) actually resisted the CPS taking any further action at that time on the alleged assault, the actual reason she approached them, and (iii) had no control thereafter in whatever process the authorities, in the exercise of their independent discretion, pursued, therefore it is plain and obvious that Terrigno cannot succeed in this claim at trial. [9] I say that the evidence on those points is undisputed cognizant of Terrigno ’ s belief that Kretschmer engaged the process for ulterior purposes.

But alleging that theory in the Statement of Claim is not evidence. Repeating that theory in evidence does not make it anything more than a theory. Pointing to the high conflict divorce and related litigations makes the theory plausible, but it is still not positive evidence bearing out the theory. Kretschmer is able to point to positive sworn evidence to the contrary of Terrigno ’ s theory, some of it tested by questioning under oath. This evidence is undisputed and, I find, also dispositive.

She has satisfied me that there is no genuine issued to be tried on the abuse of process claim. [10] I also observe, without deciding, that the abuse of process claim may be statute barred. This claim is in the alternative, therefore would be entertained only if the malicious prosecution action failed. It is therefore intended to be, and in many respects is, distinct from the malicious prosecution action. This claim may not therefore benefit from the later date for the limitations clock to begin running, the date the perjury, fraud, and mischief charges were determined.

Under “ normal ” limitations of actions considerations [see for example: J.N. v G.J.K. , 2004 ABCA 394 at para 14] the limitations clock begins to run when Terrigno could reasonably have first commenced his action, in light of his circumstances and interests. In this case (as stated above at para 10 of this judgment) I found that date was March 31, 2008, more than 2 years before this action was filed. [11] I therefore grant the application to summarily dismiss this action as against Kretschmer in its entirety. Heard on the 16 th day of November and the 4 th day of December, 2012.

Dated at the City of Calgary, Alberta this 6 th day of December, 2012.

P. R. Jeffrey J.C.Q.B.A. Appearances: Diane Harms Daunais McKay Harms & Jones for the Applicant/Plaintiff Gabor I. Zinner Zinner Law Office for the Respondent/Defendant