Travaglione v. Wawanesa Mutual Insurance Company, 2013 ABQB 104

Court of Queen ’ s Bench of Alberta Citation: Travaglione v. Wawanesa Mutual Insurance Company, 2013 ABQB 104 Date: 20130215 Docket: 0803 17990 Registry: Edmonton Between: Bruno Travaglione Plaintiff - and - Wawanesa Mutual Insurance Company and James Burkinshaw Defendants _______________________________________________________ Memorandum of Decision of the Honourable Madam Justice D. L. Shelley _______________________________________________________ Appeal from the Decision of L. Smart, Master in Chambers Dated the 12 th day of April, 2011 [ 1 ] This matter first came before me on June 21, 2011. At that time, there were three issues:

1. Did the alleged defects in Mr. Burkinshaw ’ s affidavit render the hearing before the Master procedurally unfair? 2. Did the Master err in finding that the amendment to the Statement of Claim, which added Mr. Burkinshaw as a defendant, was outside the limitation period? and 3. Does Mr. Travaglione ’ s claim lack merit? [ 2 ] The transcript of the application before the Master was not before me. Both parties urged me to proceed without it. However, without the transcript, I determined I could only rule on the first issue. My reasons are set out in Travaglione v.

Wawanesa Mutual Insurance Company and Burkinshaw, 2011 ABQB 604 . [ 3 ] As the facts of the case are also set out in my earlier decision, I will not repeat them, except as necessary to set the background for these reasons. [ 4 ] This matter arises from a series of events which took place primarily in 2007 and 2008. Mr. Travaglione had retained Mr. Burkinshaw in relation to the purchase of a property in Sherwood Park, Alberta (the “ Property ” ). The purchase was completed on April 13, 2007. [ 5 ] In August of 2007, the Property was broken into. Mr. Burkinshaw assisted Mr. Travaglione with this matter.

He provided Mr. Travaglione with certain documentation, such as a notice of proof of loss, which would be required by the insurance company, Wawanesa, should Mr. Travaglione wish to make a claim under his house insurance policy (the “ Policy ” ). [ 6 ] On September 23, 2007, Mr. Travaglione wrote a letter to the Law Society of Alberta regarding Mr. Burkinshaw. In that letter, he alleged that he told Mr. Burkinshaw to have the locks on the Property changed and to hire a property management firm to look after it. Mr.

Burkinshaw denied these allegations, but did confirm that his assistant lived next door and she had been supervising the Property. [ 7 ] The letter to the Law Society contained allegations of failing to follow instructions on property management, for mishandling rental income and in relation to attempts to sell the Property. After it was sent, Mr. Burkinshaw claims he did no more work for Mr. Travaglione, other than to complete some tasks relating to a defaulting tenant and to complete the sale of the Property in April of 2008. [ 8 ] On December 23, 2007, the Property was broken into a second time. Mr.

Burkinshaw stated that he had no involvement with Mr. Travaglione regarding any issues arising from this event. [ 9 ] On January 15, 2008, Mr. Travaglione wrote to Mr. Burkinshaw and offered to withdraw his complaint to the Law Society if Mr. Burkinshaw would assume certain liabilities relating to utility bills, property taxes and the sale of the Property. The letter did not mention anything about either break-in. [ 10 ] On May 13, 2008, Mr. Travaglione submitted a proof of loss from the first break-in to Wawanesa. The claim was rejected, as he had not filed the claim within one year of the date of loss. Mr.

Travaglione did not commence an action in relation to that claim. [ 11 ] On September 19, 2008, Mr. Travaglione submitted a proof of loss in relation to the second break-in. Wawanesa denied the claim, this time on the basis that he: had overstated the values of certain items; claimed for items stolen or lost during the first break-in; claimed for the loss of items which had been taken with his permission; and was in breach of the terms of his insurance for having left the Property vacant, without making arrangements for regular inspections, for more than 30 days prior to the loss.

[ 12 ] Mr. Travaglione commenced an action against Wawanesa on December 19, 2008. On March 15, 2010, he amended the Statement of Claim to add Mr. Burkinshaw as a defendant. In March of 2011, Mr. Burkinshaw applied to have the Statement of Claim dismissed, either because it was served outside the limitation period or because it had no merit. This application was heard by Master Smart on April 12, 2011, and the claim was summarily dismissed on the basis of being brought out of time under the Limitations Act . The Master did not deal with the issue of whether or not the claim had merit.

Standard of Review [ 13 ] In my earlier reasons, I applied the standard of review set out by Macklin J in Janvier v. 834474 , 2010 ABQB 300 at para 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 facts accepted by the Master or factual inferences drawn by the Master from the evidence is reasonableness. The finding must amount to a palpable and overriding error. The imputed error must be plainly identified and must be shown to have affected the result.

On a question of mixed fact and law, if the principle of law cannot be extricated from the question, then the standard of review is again one of reasonableness only to be interfered with if a palpable and overriding error can be shown. If the principle of law can be extricated from the question, then the standard of review on the principle of law is correctness. Limitations [ 14 ] As I had no transcript of the proceedings before the Master, I did not know the basis for his conclusion that the claim against Mr. Burkinshaw was barred under the Limitations Act.

I therefore requested that a copy of the transcript be provided to me. I also invited further submissions from the parties in relation to issues arising from my Decision. [ 15 ] Having now been provided with and having reviewed the transcript, I note that s. 6 of the Limitations Act was not argued before the Master, nor does he refer to it in his reasons, which are as follows: It strikes me that although the secondary aspect of the request to dismiss the action - Mr. Cox, you can sit --the secondary aspect may be the limitations aspect.

That is the one which I can safely rely on for today for dismissal of the action. The reason I say that, if we get into whether or not it is meritorious or not, perhaps he has some evidence based on obviously very sketchy pleadings that would suggest that perhaps there is some merit to the claim. Having said that, given the history of matter, obviously his complaints and understanding of what was going on when he was complaining to the Law Society IS about Mr.

Burkinshaw's misconduct, it seems plain to me that he certainly fits within the test of having adequate knowledge and understanding that he had a cause of action, that he failed to act on that, and so on that basis, I am prepared to conclude that his action ought to be dismissed on the basis that he was out of time on the Limitations Act. [ 16 ] The Master was correct in finding that the usual 2 year limitation period for a suit against Mr. Burkinshaw had expired, but erred in failing to address

Section 6 of the Limitations Act . The Master was aware that the claim against Mr. Burkinshaw had been added to the claim against Wawanesa, thus engaging s. 6. [ 17 ]

Section 6 provides in part as follows: Claims added to a proceeding 6

(1) Notwithstanding the expiration of the relevant limitation period, when a claim is added to a proceeding previously commenced, either through a new pleading or an amendment to pleadings, the defendant is not entitled to immunity from liability in respect of the added claim if the requirements of subsection (2), (3) or (4) are satisfied. ...

(4) When the added claim adds or substitutes a defendant, or changes the capacity in which a defendant is sued, (

a) the added claim must be related to the conduct, transaction or events described in the original pleading in the proceeding, and (

b) the defendant must have received, within the limitation period applicable to the added claim plus the time provided by law for the service of process, sufficient knowledge of the added claim that the defendant will not be prejudiced in maintaining a defence to it on the merits.

(5) Under this section, (

a) the claimant has the burden of proving (

i) that the added claim is related to the conduct, transaction or events described in the original pleading in the proceeding, and (ii) that the requirement of subsection (3)(

c) if in issue, has been satisfied, and (

b) the defendant has the burden of proving that the requirement of subsection (3)(

b) or (4)(b), if in issue, was not satisfied. [ 18 ] The issue, then, is the effect of this error. The Master did not have the opportunity to consider this issue and therefore made no factual findings concerning whether the claim against Mr. Burkinshaw is related to the conduct, transaction or series of events described in the original pleading. Therefore, ought this matter be returned to the Master for further consideration? I have concluded that it is not necessary to do so and that, in keeping with the foundational rules set out in

section 1.2 of the Alberta Rules of Court , I am able to dispose of the matter at this time. [ 19 ] The original statement of claim was issued by Mr. Travaglione against Wawanesa, in relation to Wawanesa ’ s denial of this claim under a specific contract, the Policy. The claim against Mr. Burkinshaw asserts that he “ acted in breach of ” and “ in wrongful breach of ” the Policy. But Mr. Burkinshaw is not a party to the Policy. He could not have breached it. The allegations against Mr.

Burkinshaw in the amended claim must arise from tort, or from a separate contract related to the solicitor-client relationship between Mr. Burkinshaw and Mr. Travaglione. The amendments, therefore, added both a new defendant and a new claim. [ 20 ] In these circumstances, the onus is on a claimant to demonstrate that the new claim is related to the conduct, transaction or series of events described in the original pleading. Mr.

Travaglione does not provide particulars of the alleged “ negligent actions ” , nor of the “ legal matters dealing with the Property in respect to the plaintiff ’ s home insurance policy ” . On an evidentiary basis, it is not possible to conclude that Mr. Burkinshaw ’ s alleged actions are related to the conduct, transaction or series of events described in the original statement of claim. Furthermore, employing the same rationale as Justice Thomas employed in Crawford v. Acta General Inc ., 2007 ABQB 338 , Mr. Travaglione ’ s claim for professional negligence against Mr.

Burkinshaw is not sufficiently proximate to his breach of contract claim against Wawanesa under the Policy. The first requirement of

section 6 is not met, in that Mr. Travaglione has failed to establish relationship proximity. [ 21 ] Furthermore, neither Mr. Travaglione ’ s letters to The Law Society, nor his letter to Mr. Burkinshaw, written after the first and second break-ins respectively, alleged that Mr. Burkinshaw was responsible for filing the proof of loss and had refused or failed to do so. Mr. Travaglione made other allegations against Mr. Burkinshaw and requested that Mr. Burkinshaw undertake other actions. There is no evidence that Mr. Travaglione was expecting Mr. Burkinshaw to file proofs of loss. To the contrary, Mr.

Burkinshaw provided the proof of loss forms to Mr. Travaglione. There is no evidence that Mr. Burkinshaw undertook to do anything further in relations to the proof of loss or that Mr. Travaglione instructed him to do so. Nor does the amended claim allege Mr. Burkinshaw ’ s obligation or failure to do so, which would have to be presumed to be the basis of the claim since, even as of the date of his submissions on this application, Mr. Travaglione has failed to specify the particulars of the claim. There is no evidence that Mr. Burkinshaw has ever had specific knowledge of Mr.

Travaglione ’ s claim against him in relation to the Policy. [ 22 ] I therefore conclude that, although the Master did not deal with the application of

section 6 of the Limitations Act , the outcome would have been no different. Having failed to satisfy the requirements necessary to extend the limitation period under

section 6

of the Limitations Act , Mr. Travaglione ’ s claim against Mr. Burkinshaw is statute barred. [ 23 ] The other ground argued by Mr. Burkinshaw ’ s solicitors in support of their application for

summary dismissal was that Mr. Travaglione ’ s claim against Mr. Burkinshaw lacked merit. As I am able to dispose of the application on the basis of the Limitations Act , it is not necessary to address this issue. Conclusion [ 24 ] Mr. Burkinshaw ’ s application for

summary dismissal is granted. Dated at Edmonton, Alberta this 15 th day of February, 2013 D. L. Shelley J.C.Q.B.A. Appearances: Bruno Travaglione, Plaintiff on his own behalf by Telephone P. A. Smith, QC for the Defendant James Burkinshaw F. V. Cox for the Defendant Wawanesa Mutual Insurance Company