Kowch v. Gibraltar Mortgage Ltd., 2013 ABQB 317

Court of Queen ’ s Bench of Alberta Citation: Kowch v. Gibraltar Mortgage Ltd., 2013 ABQB 317 Date: 20130524 Docket: 1101 15314 Registry: Calgary Between: Janice Kowch and 1237685 Alberta Ltd., on Behalf of Themselves and All Other Members of a Class Having Claims Against Plaintiffs - and - Gibraltar Mortgage Ltd., GMIC Inc., TMIC Inc., Devin Cook, A.K.A. Devon Cook, Keith Neilsen, Rita Gerritsen, Lal Narang, Sean Ablett, David Gibson and the Estate of Darrell Cook As Represented by Sheilagh Cook, or John Doe Defendants _______________________________________________________ Reasons for Decision of W. S.

Schlosser, Master in Chambers _______________________________________________________ [ 1 ] This is a

Summary Judgment application in a proposed Class Action. The lawsuit is about losses suffered by investors in two mortgage investment corporations. [ 2 ] The application raises three preliminary questions:

1. Does a Master have jurisdiction to hear a

Summary Judgment application in a matter intended to be certified as a Class Action under the Class Proceedings Act ? 2. Should a

Summary Dismissal application be heard prior to a certification application? 3. Should a

Summary Dismissal application be heard by someone other than the certification judge? [ 3 ] In this case the Statement of Claim in the proposed Class Action was filed on November 15, 2011. It was amended February 24, 2012 and served in March of that year. The Applicants ’ main argument is that the lawsuit was started out of time. Question One: Jurisdiction [ 4 ]

Section 2 of the Class Proceedings Act , RSA 2000 permits an action to be commenced as a class proceeding. Section 2(2) contemplates an application “ to the Court ” for an Order certifying the proceedings as a class proceeding. “ Court ” is defined in

section 1(

f) as ‘ the Court of Queen ’ s Bench ’ . [ 5 ] The same terms are used in sections 2 to 15 of the Act. There is no mention of ‘ Judge ’ until

section 15. Section 15(1), is as follows: 15(1) The judge of the Court who makes a certification order is to hear all the applications in the class proceeding that take place prior to the trial of the common issues , but if that judge for any reason becomes unavailable to hear an application, the chief justice of the Court may assign another judge of the Court to hear the application. (emphasis added) [ 6 ] If it weren ’ t for the use of the word ‘ judge ’ in section 15(1), the use (and definition) of the term “ Court ” suggests that a Master could hear even the certification application.

There is no bar to this expressed by the Court of Queen ’ s Bench Act . The application is fundamentally procedural and it would not typically involve weighing any evidence. [ 7 ] In this case there is no certification order and there has been no certification application. Until it is certified, a proceeding commenced as a Class Action does little else other than suspend the limitation period for the cause of action asserted in the proceeding (section 40). Until a proceeding is certified as a Class Action, there is nothing special about it and all of the other procedural rules prevail.

The Act provides (section 41) that the Rules of Court apply unless they are inconsistent with a provision of the Act . There is no express inconsistency with hearing a Rule 7.3 or 3.68 application first. (Note also Stewart v. Enterprise Universal Inc. , 2010 ABQB 259 , per S. L. Martin, J. at para. 20). There is no reason a Master cannot hear a

Summary Dismissal application prior to certification. Question Two: Timing of the Application [ 8 ] This is the Respondent ’ s main argument. [ 9 ] The Class Proceedings Act itself requires that pleadings meet the threshold requirement of disclosing a cause of action: note Hollick v. Metropolitan Toronto (Municipality), 2001 SCC 68 at para 25 ; and, most recently, Buelow v. Morrissey , 2013 ABQB 277 . Hearing dispositive, or final applications first is not inconsistent with this requirement. [ 10 ] The decided cases tell us that the timing and manner of a

Summary Dismissal application in a proposed class action is

primarily a matter of convenience rather than necessity. Kwicksutaineuk/Ah-Kwa-Mish First Nation v. British Columbia (Minister ofAgriculture and Lands, 2009 BCSC 1593 , 2009 B.C.S.C. 1593; Alves v. MyTravel Canada Holidays Inc. (c.o.b. Sunquest),2009 SKQB 77; Bellows v. Quik Cash Ltd., 2004 NLSCTD 191; Gay v. Regional Health Authority 7, 2009 NBQB 101 and Clark v.Energy Brands Inc. (c.o.b.

Glaceau), 2012 BCSC 557, (for example). [11] In Kwicksutaineuk (BC), at paras. 58 et seq, the Court suggested that it was preferable to hear the certification applicationfirst, but that the Court retained a discretion to hear other matters. One factor was the potential cost to the parties. In Alves (Sask), theCourt cited Moyes v. Fortune Financial, 2001 O.J. No. 4455 (Q.L.) and Cross v. Sask Water Corp.

(2003) Sask R. 70 (Sask QB, perKlebuc, C.J.), and acknowledged that something akin to our Rule 3.68 (significant deficiencies in claims) and preliminary points of lawmay be exceptions to a general rule that certification ought to be heard first. 2038742 Ontario Ltd. v. Quiznos Canada RestaurantCorp., 2007 45 CPC (6) 375, at para. 32, appears to acknowledge an exception for pre-certification motions could have the effect ofterminating the action. In Bellows v. Quik Cash Ltd., 2004, 4 CPC 676 (NFLD) the Court considered a motion to strike but did notallow it on the merits. In Baxter v. Canada (AG), 2005 O.J.

No. 2165, at para. 14, Winkler, J. suggests that applications for dismissal orsummary judgment may be exceptions. Clark v. Energy Brands Inc. (c.o.b. Glaceau), 2012 BCSC 557 reviews the law at paragraphs35 et seq and seems to suggest that the strength of a pre-certification application may be a relevant factor. [12] The learned author of Class Actions in Canada, Mr. Ward Branch, (Canada Law Book at paras. 4.1397 et seq)acknowledges that this is a topic of “some judicial debate”. Mr. Branch concludes that in the normal course a certification applicationought to be the first order of business.

However there is nothing in the Class Proceedings Act that prevents final applications from beingheard first. It appears really to be a question of balancing the ills of litigation by instalment (Garland v. Consumers Gas Co., 2004 SCC25 , 2004 S.C.C. 25) with the desirability of dealing with dispositive motions first: Stewart v. Enterprise Universal Inc., 2010ABQB 259 per S. L. Martin, J. which granted

summary dismissal. [13] The scale of things tends to be larger in a class action lawsuit. This, in itself, may provide an impetus to entertain dispositiveor final motions first. [14] In Papachase Indian Band No. 136 v. Canada (Attorney General), 2008 SCC 14, [2008] 1 SCR 372 (sub nom Lameman v.Canada (Attorney General), the Court said (at para. 10): ... The

summary judgment rule serves an important purpose in the civil litigation system. It prevents claims or defences that have nochance of success from proceeding to trial. Trying unmeritorious claims imposes a heavy price in terms of time and cost on the parties tothe litigation and on the justice system. It is essential to the proper operation of the justice system and beneficial to the parties that claimsthat have no chance of success be weeded out at an early stage. Conversely, it is essential to justice that claims disclosing real issues thatmay be successful proceed to trial.

It is not a principle of class action law that weeds should be allowed to ripen and grow, instead of being nipped in the bud. [15] Accordingly, it is appropriate that this dismissal application be heard and determined on its merits. Question Three: Judge, Master or Certification Judge? [16] The Class Proceeding Act contemplates a relatively short period of time (90 days) between pleadings and the certificationapplication. (Section 2). This rule is honoured more in the breach. Section 2(3)(

b) allows the Court to extend the time.

Section 6 alsoallows the Court to adjourn the application for things like amendments to pleadings. In practical terms, the judge hearing these initialmatters typically becomes seized with the action and acts as case manager; hearing all applications between certification and the commonissues trial (section 15). But this is not a reason why a dismissal application cannot be heard first, or by someone other than the judgehearing the certification application. [17] To sum up, the court retains the discretion to hear and determine a

summary dismissal application in advance of acertification application. A Master has the jurisdiction to deal with it.

Summary Dismissal [ 18 ] The Applicants argue that the lawsuit was started out of time. [ 19 ] This lawsuit is about investments that went down and not up. The underlying facts are largely undisputed, and they are not particularly complex. One of the distinguishing features of this case is that a chronology was provided by the proposed representative Plaintiff, Ms. Kowch, well over two years before this lawsuit was commenced. [ 20 ] Ms. Kowch is an accomplished person, having practiced law in Alberta for roughly 25 years by 2010. However, there is no evidence of her investment acumen or business sophistication.

In that respect she is entitled to the benefit of the doubt. Facts [ 21 ] The decline and fall of the investments may be sketched as follows: [ 22 ] The Numbered Company, ‘ 123 ’ , was incorporated April 24, 2006 by two individuals. [ 23 ] Ms. Kowch purchased an interest in the Saltspring mortgage as a syndicated investor in 2005. In 2007, she purchased shares in TMIC and, later, managed her mother ’ s shares in GMIC by way of an Enduring Power of Attorney. 123 purchased shares in GMIC in 2006. [ 24 ] The Saltspring Development went into trouble in 2007.

Gibraltar called loans it had made in this investment which, in mid 2007, were about 30 million dollars. The project was stopped when the owner (Tuan) sought CCAA protection. Then things got worse. [ 25 ] There was a fire at the resort in July of 2007. A number of the buildings were lost. Gibraltar apparently had a total of about 43 million dollars invested in the project. The real estate market, which had recently peaked, went into decline. Recreational property was particularly vulnerable. By early 2008, Gibraltar estimated Salt Spring ’ s fair market value to be just over 17 million dollars.

By that time Salt Spring was so deeply underwater it may as well have sunk into the Pacific Ocean. [ 26 ] TMIC and GMIC also had substantial investments in Salt Spring. TMIC and GMIC shareholders knew this; Ms. Kowch and 123 in particular, by the end of 2008. Ms. Kowch and 123 knew that the shares in TMIC and GMIC had suffered earnings losses for the 2007 year. TMIC lost MIC status in 2007. [ 27 ] Financial statements also show that GMIC had sold approximately10 million dollars of mortgages to TMIC; of which 5.9 million was a second mortgage for Tuan at Salt Spring.

At the time, this represented about 70% of the GMIC portfolio. The financial statements also showed that GMIC owed roughly 10 million dollars to Gibraltar, secured by a General Security Agreement. All of this was known to the Plaintiffs in early November, 2008.

In November 2009, Salt Spring was listed for sale for $18.9 million dollars. [ 28 ] An excerpt from the Applicants ’ Statement of Facts, which has ample support from the evidence, is as follows (references omitted): xiv) 2007-05-09 Gibraltar calls the loans in Salt Spring, which were then approximately $30,000,000.00. xv) 2007-05-18 Tuan, the owner of Salt Spring, filed for creditor protection under CCAA. Construction halted.

xvi) 2007-06-12 Gibraltar reports to Kowch that total Gibraltar financing on Salt Spring equals $43,500,000.00. xvii) 2007-07-07 A fire at the Saltspring Resort results in the destruction of entire main lodge, pool facility and main power distribution centre, xviii) 2007-07-26 GMIC holds annual meeting of shareholders xix) 2007-12-08 Kowch given enduring power of attorney by her mother Rose Kowch which allows her to manage the shares of GMIC owned by Rose Kowch. xx) 2007-12-20 The Bowra Group Inc. (the “ Salt Spring Receiver ” ) appointed the Receiver of Tuan Properties Inc. which order included the power to sell the Salt Spring Resort. xxi) 2008-01-28 Gibraltar reports to Kowch on status of Salt Spring.

Included in

Schedule “ A ” to letter are summaries of appraisal information including an appraisal that appraises Salt Spring ’ s Estimated Fair Market Value at $17,250,000.00. xxii) 2008-03-01 GMIC and TMIC redemption requests suspended. xxiii) 2008-04-07 Ablett resigns as director of TMIC xxiv) 2008-06-23 Gibraltar advises Kowch and 12137685 that GMIC dividends will be delayed. xxv) 2008-06-25 Gibraltar advises Kowch that TMIC dividends will be delayed. xxvi) 2008-08-12 Narang resigns as director of TMIC and GMIC. xxvii) 2008-09-10 Gibraltar reports to TMIC and GMIC shareholders, Kowch and 1237685 advised that TMIC and GMIC has substantial investment in Saltspring Resort and that the loan is “ experiencing difficulty ” ..

Gibraltar confirms that redemption of GMIC shares and TMIC shares suspended. xxviii) 2008-11-03 Gibraltar reports to Kowch. Includes report on status of TMIC and financial statements to TMIC for the year ending December 31, 2007. The Statements disclose an earning loss for TMIC of $1.06 per share for that year. xxix) 2008-11-06 Gibraltar reports to Kowch and 1237685, which includes a report on status of GMIC and financial statements of GMIC for the year end December 31, 2007. The Statement disclose an earning loss for GMIC of $4.58 per share for that year.

The Statements disclose a debt to Gibraltar of $9,006,231.00 and a debt to 1210881 of $1,024,040.00 secured by a General Security Agreement. The Statements disclose that GMIC sold $10,062,604 of its portfolio to TMIC. Of this amount TMIC purchased approximately $5,900,000.00 of the Saltspring Security from GMIC.

xxx) 2008-12-10 Gibraltar reports to Kowch on status of TMIC, confirms that redemption of TMIC shares is suspended. xxxi) 2008-12-11 Gibraltar reports to Kowch and 1237685 on status of GMIC and Saltspring, confirms that redemption of GMIC shares suspended. xxxii) 2009-02-24 Neilsen appointed director of GMIC and TMIC. xxxiii) 2009-03 Kowch advised that Salt Spring comprises 70% of GMIC portfolio by Richard Asselin of Gibralter. xxxiv) 2009-03-25 Gibraltar reports to Kowch and reports that building permits have expired.

Based on reports received Kowch forms opinion that Salt Spring Resort has been non-conforming and permits may not be issued readily. xxxv) 2009-03-27 Gibraltar reports to Kowch and 1237685 on status of GMIC Gibraltar reports to Kowch on status of TMIC. xxxvi) 2009-04-03 Kowch meets with Gerritsen and makes detailed notes immediately after the meeting. Gerritsen tells her that the expected return was 50%. xxxviii) 2009-05-07 Devan appointed a director of GMIC.

Gerritsen ceases to be a director of GMIC and TMIC. xxxix) 2009-05-13 Kowch authors and transmits an email (the “ Kowch Email ” ) to a number of GMIC and TMIC shareholders including the Fords, the principals of the Plaintiff 1237685. Kowch includes her notes from May 5, 2009 Shareholder Meeting. xl) 2009-06-05 Frank Boyd, a shareholder of TMIC proposes that a committee of shareholders be formed to take over the running of Salt Spring.

Kowch is a proposed member. xli) 2009-07-23 Kowch visits Salt Spring property. xlii) 2009-06-30 Gibraltar reports to Kowch and 1237685 on status of GMIC confirms that Salt Spring 70% of GMIC portfolio. Gibraltar reports to Kowch on status of TMIC. xliii) 2009-09-03 Kowch meets with member of the committee, Cook and Gerritsen and others. Notes at page 5 indicate that Janice said “ Real distress/distrust, lack of full disclosure, I don ’ t trust any more ” Notes at page 7 indicates that Janice said “ We ’ re pretty much wiped off the second mortgage holder ” Kowch arrives late, leaves early.

The committee does not meet again.

xliv) 2009-10-08 Counsel for Kowch and 1237685 in the First Kowch Action Macleod Dixon do Corporate Searches of Gibraltarand GMIC xlv) 2009-11-03 GMIC reports to Kowch and 1237685 on status of GMIC. TMIC reports to Kowch on status of TMIC Saltspring listed for sale for a list price of $18,900,000 based on December 2007 foreclosure appraisal. xlvi) 2009-11-05 Kowch attends at the offices of Blake Cassels, counsel for the corporate defendants, reviews corporate minutebooks and makes notes of what she sees.

She determines that redemption requests for GMIC and TMIC shareholders suspended afterMarch 1, 2008. xlvii) 2009-11-15 The date which is two years prior to commencement of the instant action. [29] This lawsuit was started November 15, 2011. For the purposes of this Application, it is assumed that by November 2009, thePlaintiffs had suffered an injury and that the injury was attributable to the conduct of some or all of the Defendants. The Limitations Actrequires the Court to proceed as if there would be liability.

The question, then, is whether the Plaintiffs knew or ought to have known byNovember 2009, or earlier, whether a proceeding was warranted. Knowledge does not have to be perfect. DeShazo v. Nations EnergyCo., 2005 ABCA 241. [30] In Boyd v. Cook, 2013 ABCA 27, a separate action on some of the same facts, the Court of Appeal said: [7] Mr. Boyd and the late defendant Mr. Cook, knew each other well. Mr. Cook several times tried to get Mr. Boyd to invest in acertain land development. Mr.

Boyd flatly refused, said he did not like the idea at all, wanted nothing to do with it, and would notrecommend that anyone else invest in it. Then Mr. Cook induced Mr. Boyd to invest his money (and that of the other plaintiffs) to investin shares in a mortgage company, which they did. Later it turned out that, unknown to Mr. Boyd, about 60% of the mortgage company’sfunds were invested (by loans) in the oft-rejected land development scheme. That scheme became seriously insolvent, and it appearedthat a very large fraction of the funds invested by the plaintiffs were probably lost.

All the funds definitely appeared to be at leasttemporarily gone. Interest payments had stopped almost one year before. [8] Mr. Boyd sued Mr. Cook on June 16, 2011. The ordinary limitation period is two years, and the plaintiff argues lack ofdiscoverability. See s. 3 of the Limitations Act, RSA 2000 c. L-12. So argument at each level of court has looked at what Mr. Boydknew, or in the circumstances ought to have known, by June 16, 2009. [31] The Court found (at para. 15) that the Plaintiff knew or ought to have known in early June 2009 that he was going to losemoney. The only question was how much.

The June 10, 2011, Statement of Claim was found to be out of time. [32] In Boyd, the Court of Appeal observed: .... The Supreme Court has introduced a small subjective element into this otherwise objective test of “ought to have known”. The“circumstances” include the knowledge and interests of this particular plaintiff. See Laasch v. Turenne, 2012 ABCA 32, 522 AR 168(paras 19-22), citing Novak v. Bond (SCC), [1999] 1 SCR 808, 239 NR 134 (para 81), and Yugraneft Corp v. RexxMgmt 2010 SCC 19 , [2010] 1 SCR 649, 401 NR 341 (paras 60-61).

So the defendant’s type of calculations are a properapproach in this case, indeed even necessary.

[ 33 ] In some cases we are left to infer who knew what when. Not here. In this case the individual Plaintiff provided a chronology, in part to inform the other investors of where things stood. [ 34 ] May 13, 2009, Ms. Kowch sent a memo to some TMIC and GMIC shareholders. The memo invited them to consider: An initial legal consultation to determine if we have a claim and what possible remedies might be - also whether there is any dollars to recover. [ 35 ] In a more extensive memo entitled; “ Time line and key facts ” , Ms.

Kowch, (ostensibly from a meeting April 3, 2009) notes: I ended by stating that I made a decision to invest individually in Saltsprings (as did my father) to a limit combined at $175,000 - that despite that for a while that seemed the only syndicated mortgage available I had made it clear to Misha that I did not want any more exposure to Saltspring and she suggested TMIC as an alternative - without disclosing the TMIC was also investing in Saltsprings. It was not our families intention to be exposed for more than $175,000 to Saltspring and now we are exposed for over $500,000. I was not happy.

Kate [Kerr of Gibraltar] acknowledged that she understood that this was not my intention but said little more. . . . [ 36 ] Even if we give the Plaintiffs the benefit of the doubt about investment acumen, there plainly appears to be sufficient facts for the Plaintiffs to make an informed decision that an action was warranted by late 2008. Exposure to the unwanted Saltspring investment was known in September 2008. The extent of it (70% of the GMIC portfolio) was confirmed in March 2009. Share earning losses for the 2007 year were known by November 2008. This was certainly the case by May 2009, when Ms.

Kowch sent a detailed e- mail to other investors. Counsel was retained in October, 2009, yet there was no lawsuit until November, 2011. [ 37 ] The Plaintiffs knew by mid 2009 (at the latest) that their shares had declined in value. They knew they had suffered significant exposure to the unwanted Saltspring investment and that this investment had proved to be a disaster. They also had reason to believe that there had been preferential dealings between the related companies and their principals. Ms.

Kowch even thought it appropriate to seek legal counsel for advice about a claim (on the same points that were used to launch a failed Application for an Inspector). [ 38 ] Ms. Kowch was a lawyer.

She may not have been a sophisticated investor - at least we should give her the benefit of the doubt - but with an exposure of roughly half a million dollars in an investment that had essentially gone under in 2007 - it is difficult to say that all of the elements necessary to start the limitations clause were not present by the spring of 2009. [ 39 ] It might be said that the actual GMIC loss was only crystalized and quantified by court approval of a Plan of Arrangement in January 2012 and that the TMIC loss has not yet been precisely quantified since there is no Plan of Arrangement and no payout for the shares.

However, this does not mean that there was no claim prior to that or that the elements of

section 3 of the Limitations Act had not been satisfied earlier. It is enough to knew that the loss is substantial. It does not have to be precisely quantified. One Final Issue: [ 40 ] There is one final point that relates to the approach that should be taken in dismissal applications in a proposed class action: ‘ Should the court consider the facts of possibl e plaintiffs (or possible class members), or just those of the proposed representative plaintiffs? ’ [ 41 ] A representative Plaintiff does not have to be a member of the class. This was recognized by Thomas J. when he certified the T.L.

Class Action in the face of otherwise compelling limitation arguments. T. L. v. Alberta , 2008 ABQB 114 (at paras. 72-78 ). But that is the exception, not the rule.

[ 42 ] Given that a proposed representative Plaintiff in a proposed class action lawsuit does not necessarily have to be a member of the class, it is conceivable there might be a class member who is not subject to the limitations arguments that pertain to the proposed representative Plaintiffs. So, should this stand in the way of dismissal? [ 43 ] Once a Defendant has discharged his evidentiary burden in any ordinary

summary judgment application, the burden passes to the Plaintiff to show there is, at least, arguable merit to the case. For this, they are required to put their best foot forward. It is not enough to say that there might be evidence in support of their position later on. Otherwise they risk not meeting their evidentiary burden. [ 44 ] In my view, the same burdens apply here. [ 45 ] The Court does not have to engage in an investigation into possible worlds which might contain class members whose claims might not be proscribed. We need only consider the facts of these two Plaintiffs.

The Court should not be left to speculate about whether there might be an in-time class member, or whether such a class member might come forward post-certification. Inherent Defects: [ 46 ] Although it is probably academic in light of the forgoing, there are two aspects of the Statement of Claim worthy of comment

i) Conflict [ 47 ] First of all, the claim, as pleaded, has a striking internal conflict. A portion of the relief claimed is based in oppression. Derivative relief is also sought. [ 48 ] The oppression remedy was most recently reviewed by Hanebury, M. in Burns Estate v. P. Burns Resources Limited , 2013 ABQB 249 . This case contains a thorough and useful review of the law. There is an earlier detailed analysis in McAteer v.

Devoncroft Development Ltd. , 2001 ABQB 917 per Rooke J. (as he then was). [ 49 ] The decided cases leave no doubt that a claim can be made against both the company and directors to rectify oppression. However, one proposed representative Plaintiff owned TMIC shares. The other owns GMIC shares. There were loans between GMIC and TMIC and potentially preferential repayments. This inherent conflict is likely to pit GMIC against TMIC. Adding derivative relief only sharpens the focus. That result is that one representative Plaintiff, (and one portion of the proposed class) may well be adverse in interest to the other.

This is certainly a problem with the way the pleadings are framed, though not one of the enumerated grounds for striking a claim under Rule 3.68. ii) Individual Defendants [ 50 ] The involvement of some of the individual Defendants is outside the time period that is said to give rise to the harm. [ 51 ] Devin Cook became a director of Gibraltar only after Daryl Cook ’ s death. Keith Neilsen became a director of GMIC, February 21, 2009 and a director of TMIC at the same time.

The proposed representative Plaintiff 123 ceased being a shareholder of GMIC on February 5, 2010 pursuant to the Court approved Plan of Arrangement on April 9, 2012. Mr. Neilsen was a director of TMIC from February 4, 2009 until June 14, 2010. By then the alleged harm had been done. Mr. David Gibson ceased being a director of GMIC November 2, 2005 before any of this happened. [ 52 ] Regardless of the limitations point, the pleadings, as they are now framed, contain significant defects against the above noted individual Defendants to the point that they may not disclose a cause of action against some of them.

Disposition [ 53 ] The pleadings contain a congenital defect. No amendment to resolve it is proposed. The claims of the two proposed representative Plaintiffs were started out of time. Accordingly, the action is dismissed. If the parties are unable to agree, they may speak to costs. Heard on the 5 th and 6 th day of December, 2012. Dated at the City of Edmonton, Alberta this 24 th day of May, 2013. W. S. Schlosser M.C.C.Q.B.A. Appearances: Clint Docken, Q.C.

Docken & Company for the Plaintiffs Jeffrey Poole Poole Lawyer for the Defendants, Gibraltar Mortgage Ltd., GMIC Inc., TMIC Inc., Devin Cook, Rita Gerritsen and The Estate of Darrell Cook David Kitchen Verjee & Associates for the Defendants, Keith Nielsen, Lal Narang, Sean Ablett and David Gibson