Perehudoff v Christiano, 2013 ABQB 390

Court of Queen ’ s Bench of Alberta Citation: Perehudoff v Christiano, 2013 ABQB 390 Date: 20130711 Docket: 1001 07118 Registry: Calgary Between: David Perehudoff Plaintiff/Respondent - and - Sandi Christiano Defendant/Applicant _______________________________________________________ Memorandum of Decision of the Honourable Mr. Justice C.M. Jones _______________________________________________________ I. Action [ 1 ] This matter came before me in morning chambers on December 18, 2012. Mr. Perehudoff (hereinafter referred to as the Plaintiff and/or Respondent) had commenced an action alleging that Ms.

Christiano (hereinafter referred to as the Defendant and/or Applicant) held an interest in her residence as a trustee or constructive trustee for his benefit. The Applicant sought

summary dismissal of the Respondent’s action. II. Background [ 2 ] The Applicant and the Respondent had briefly lived together in a relationship. They were never married.

[ 3 ] The Applicant asserts at paras. 2 and 32 of her Affidavit sworn November 19, 2012 (the “Applicant’s Affidavit”) that the relationship between the parties ended in June or July of 2006. The Respondent's action was commenced on May 12, 2010. [ 4 ] The Respondent asserts that he contributed to the down payment for a property acquired in the name of the Applicant (the "Residence") and that he contributed to mortgage payments in respect of the Residence.

He alleges the parties had an oral agreement that the Residence was to be owned by them jointly. [ 5 ] The Applicant responds that the Residence was purchased by her in 2006, after the relationship ended. She asserts that purchase moneys came from her corporation, 1235230 Alberta Ltd., and that the Respondent did not contribute to the purchase price, mortgage or other costs associated with the Residence. [ 6 ] The Applicant alleges at para.10 of the Applicant’s Affidavit that the Respondent never resided in the Residence.

The Respondent appears to contradict this assertion at lines 22 through 26 on p. 16 of the transcript of his examination for discovery dated April 27, 2010, though the reference is not very explicit. [ 7 ] The Residence was sold in the summer of 2010. The proceeds of sale were and continue to be held in trust by the Applicant's counsel. [ 8 ] Counsel for the Applicant advised the Court that, since entry of pleadings by both parties, no steps had been taken to prosecute the action.

Indeed, he advised that "there has been no affidavit of records filed, no questioning and no other substantive steps, or, frankly, any steps of any degree". III. Relief Sought [ 9 ] The Applicant seeks

summary dismissal of the Respondent's action on the basis that the action is statute-barred. Specifically, she alleges that the Limitations Act , RSA 2000, c L-12 ("Limitations Act") bars the Respondent's action because it was commenced more than two years after the parties’ relationship ended. [ 10 ] She also seeks: 1. An order relieving her from the implied undertaking over portions of the Questioning transcripts of the Respondent in Action No. 0901-08036 and allowing her to rely on those transcripts in connection with the matter before me; 2. An order allowing her to amend her Statement of Defence in the manner set forth in

Schedule "A" to her application filed November 30, 2012 (the "Amendment Application"); 3. A direction that her counsel may immediately release funds at issue in this action which are held in trust pursuant to agreement between the parties; 4. If

summary dismissal is denied, an order directing the Respondent to post security for costs in an amount to be prescribed by this Court within two months, failing which the Respondent's action shall be dismissed without further notice or order of this Court; and 5. Costs of her application before me in any event of the cause and, if applicable, costs of this Action. IV. Discussion A. Amendment of the Statement of Defence

[ 11 ] With respect to item 2 above, the Applicant did not plead the Limitations Act in her Statement of Defence. She sought a preliminary Order allowing her to do so and submitted a draft Statement of Defence adding a reference to the Limitations Act and her contention that it operates to render the Respondent's claim against her statute-barred. [ 12 ] In support of her request, she cites the decision of this Court in John Barlot Architect Ltd. v. 973189 Alberta Ltd. , 2008 ABQB 458 , 73 CLR (3d) 44 (" Barlot ").

I am satisfied from my review of the decision in Barlot that an amendment of the kind requested should be granted pursuant to Rules 3.62 and 3.65 of the Alberta Rules of Court. [ 13 ] Justice Graesser noted as follows at para. 22 of Barlot : From a review of the case law, the following principles emerge:

a) amendments will be presumptively allowed, no matter how late, provided there is no prejudice that cannot be adequately compensated in costs;

b) the onus is on the person opposing the amendment to show that the amendment will result in prejudice that cannot be adequately compensated;

c) it is trite law that an amendment will be permitted where it can be made without prejudice;

d) mere delay or procrastination in amending pleadings are not sufficient reasons in themselves to deny the amendment; and

e) generally, amendments ought to be allowed in order to assure a full resolution of the controversies between the parties. [ 14 ] Counsel for the Respondent did not aggressively dispute the appropriateness of permitting the requested amendment. I grant permission to amend the Applicant's Statement of Defence as provided for in

Schedule "A" to the Amendment Application. The Amended Statement of Defence must be filed and served within ten (10) days of the date of these reasons. B. What is the Applicable Limitation Period and Does it Depend on the Characterization of the Parties' Relationship? [ 15 ] The relevant portions of the Limitations Act provide as follows: 3(1) Subject to

section 11, if a claimant does not seek a remedial order within (a) 2 years after the date on which the claimant first knew, or in the circumstances ought to have known, (

I) that the injury for which the claimant seeks a remedial order had occurred, (ii) that the injury was attributable to conduct of the defendant, and (iii) that the injury, assuming liability on the part of the defendant, warrants bringing a proceeding, or (b) 10 years after the claim arose, whichever period expires first, the defendant, on pleading this Act as a defence, is entitled to immunity from liability in respect of the claim.

[ 16 ] The Applicant cites the decision of this Court in Johansson v Fevang , 2009 ABQB 573 , 80 CPC (6 th ) 27 ( “Johansson ” ) as authority for the proposition that the Limitations Act applies to equitable claims, such as the Respondent's claim against the Applicant for constructive trust and unjust enrichment. As noted by Justice Ouellete at para. 11, there is a 2 year time period in which a claim for constructive trust must be commenced. In that case, his Lordship concluded that the date of separation of the parties was the relevant date in determining when the limitation period began to run. [ 17 ] In that case, however, an application for

summary dismissal of the plaintiff's claim for a constructive trust was dismissed. His Lordship determined that, since the parties might have been adult interdependent partners, the relevant limitation period might have started to run, not when the parties ceased to co-habit, but rather, one year later when they become former adult interdependent partners by virtue of the provisions of the Adult Interdependent Relationships Act , R.S.A. 2002, c. A-4.5. (" AIRA ").

His Lordship believed there to be a triable issue as it related to the meaning of the date of separation and whether the AIRA imposed a date of separation other than the date of physical separation for purposes of determining the commencement of the limitation period. [ 18 ] In this case, the Applicant alleges that separation occurred in June or July of 2006.

She asserts at para. 4 of the Applicant’s Affidavit that the parties did not live together long enough to have formed an adult interdependent relationship. [ 19 ] Assuming separation did occur in June or July of 2006, even if the AIRA applies to the parties' relationship and operates to cause the limitation period not to start until one year after separation (that is, June or July of 2007), s. 3(1) (

a) of the Limitations Act could apply to extinguish the Respondent's claim against the Applicant. [ 20 ] The Applicant alleges that the Respondent offered no evidence to support the assertion that their relationship ended less than two years before he commenced his action. C. What Evidence May I Consider in Determining When the Relationship Between the Parties Ended? [ 21 ] The Applicant alleges that the Respondent gave evidence in another matter before this Court which supports her version of the termination of the relationship. That action, Action No. 0901-08036, ended when the Applicant’s application for

summary judgment was granted by Order of Madam Justice Hunt McDonald on December 1, 2011. She wishes to rely upon that evidence in support of her application for

summary dismissal in this action. This requires me to consider the scope of the “implied undertaking rule”. [ 22 ] The Supreme Court of Canada in Juman v Doucette , 2008 SCC 8 , 1 SCR 157 (" Doucette ") discussed the implied undertaking rule, which Mr. Justice Binnie described at para. 1 as the rule “under which evidence compelled during pre-trial discovery from a party to civil litigation can be used by the parties only for the purpose of the litigation in which it was obtained”.

Justice Binnie described the rationale for the implied undertaking rule as follows at paras. 25-27: The public interest in getting at the truth in a civil action outweighs the examinee's privacy interest, but the latter is nevertheless entitled to a measure of protection. The answers and documents are compelled by statute solely for the purpose of the civil action and the law thus requires that the invasion of privacy should generally be limited to the level of disclosure necessary to satisfy that purpose and that purpose alone. ... There is a second rationale supporting the existence of an implied undertaking.

A litigant who has some assurance that the documents and answers will not be used for a purpose collateral or ulterior to the proceedings in which they are demanded will be encouraged to provide a more complete and candid discovery. ...

For good reason, therefore, the law imposes on the parties to civil litigation an undertaking to the court not to use the documents or answers for any purpose other than securing justice in the civil proceedings in which the answers were compelled (whether or not such documents or answers were in their origin confidential or incriminatory in nature). [ 23 ] Justice Binnie made clear, however, that a party could apply to the court for leave to use the information or documents from a

civil action for purposes other than that action. He referred to the court's discretion to grant relief from the implied undertaking at paras. 35 and 36: The case law provides some guidance to the exercise of the court's discretion. For example, where discovery material in one action is sought to be used in another action with the same or similar parties and the same or similar issues, the prejudice to the examinee is virtually non-existent and leave will generally be granted. ...

On the other hand, courts have generally not favoured attempts to use the discovered material for an extraneous purpose, or for an action wholly unrelated to the purposes of the proceeding in which discovery was obtained in the absence of some compelling public interest. [ 24 ] The Applicant argues that the principles set out in Doucette should be applied to the evidence given by the Respondent in a different action involving "substantially the same parties".

In the Respondent’s Questioning on April 19, 2010 in Action No. 0901-08036, the following exchange appears at line 15 on p. 16: Q Do you recall when that relationship ended?

A I don't know what you call a relationship ending, but I think the last time we were in it together was March 2007 or 2008, in Lethbridge. [ 25 ] At this point it is noteworthy that counsel for the Respondent, while expressly objecting to blanket relief from the implied undertaking arising from Action No. 0901-08036, helpfully agreed to a partial relief therefrom as it relates to the specific issue of when the parties’ relationship may have ended.

Counsel for the Applicant agreed with that limitation on relief from the implied undertaking. [ 26 ] Accordingly, for purposes of the matter before me, I grant the Applicant partial relief from the implied undertaking imposed on her in respect of Action No. 0901-08036 as it relates to the specific issue of when the parties’ relationship may have ended. [ 27 ] The Respondent's evidence at his Questioning on April 27, 2010 suggests that the parties were not adult interdependent partners.

As noted above, the Respondent indicated at that time that the relationship ended, at the latest, in March 2008. [ 28 ] If the parties had been adult interdependent partners and if, as the Respondent stated, they ceased to be such in March 2008, then, following Justice Ouellette’s reasoning in Barlot , the limitation period for an action in constructive trust would have started to run one year later in March 2009 and the Respondent would have brought his action within the limitation period. [ 29 ] On the evidence before me, it is not entirely clear when the parties’ relationship commenced.

However, the Respondent indicated at lines 19 to 20 on p. 16 of the transcript of his Questioning on April 27, 2010 that the parties resided together for almost two years. [ 30 ] In the absence of an agreement between the parties and in light of the fact that they did not have or adopt a child, cohabitation of less than two years is not sufficient to give rise to an adult interdependent relationship: s. 3 AIRA .

As set out above, the Respondent's own evidence in respect of the duration of cohabitation supports the Applicant's assertion that they were not adult interdependent partners. [ 31 ] However, the absence of an adult interdependent relationship is only fatal to the Respondent's action from the limitation period perspective if: 1. his action is based on constructive trust; and

2. the limitation period for constructive trust begins when parties to a relationship which is not an adult interdependent relationship separate. D. Assuming the Existence of a Constructive Trust, when Does the 2 Year Limitation Period in Respect of a Constructive Trust Claim Commence? [ 32 ] Counsel for the Respondent took issue with the suggestion that the limitation period for a constructive trust action begins on separation.

He noted that in Johansson , the parties appear to have agreed that the date of separation was the relevant date in determining when the limitation period begins to run, but that no such agreement exists in this case. [ 33 ] In addition, counsel for the Respondent pointed to two other considerations. First, the Court of Appeal’s observation at para. 26 of its decision in Milavsky v.

Milavsky , 2011 ABCA 231 , 513 AR 282 ( "Milavsky" ) that "Generally speaking, a claim for unjust enrichment arises at the date of the parties' separation…" leads to the inference that specific factual circumstances, which might be expected to emerge at trial, could alter that conclusion. [ 34 ] Second, counsel for the Respondent noted Justice Ouellette's observation at para. 14 of Johansson that: There is very little, if any, case law which specifically sets out at which point a limitation period beings to run in a constructive trust action.

As a result, I am of the opinion that there is a triable issue as it relates to the meaning of the date of separation…. [ 35 ] To the extent the Respondent's action is based in constructive trust, the commencement of the applicable limitation period is a triable issue. E. Trust Relationship Based Not on Constructive Trust but on Course of Conduct [ 36 ] The Respondent's Statement of Claim, filed May 12, 2010, advances more than one basis for the existence of a trust relationship.

It provides at para. 8 that: The Plaintiff claims that the said property is held by the Defendant to the benefit of the Plaintiff as the result of an implied trust or alternatively as a resulting trust. [ 37 ] Further, it provides at para. 9 that: Alternatively, if the Defendant does not hold title to the property to the benefit of the Plaintiff, in an implied or resulting trust there is a constructive trust in favour of the Plaintiff, in that the Plaintiff has been deprived of the property and that there has been a corresponding and unjust enrichment of the Defendant. [ 38 ] The Respondent asserted that, notwithstanding the end of the relationship, he believed that a trust relationship existed and that Ms.

Christiano was the trustee. At para. 10 of his affidavit sworn December 12, 2012 (the “Respondent's Affidavit”), the Respondent swears that: As to the

Summary Judgment Application, my claim is that the property is being held in trust for me and there is no point in time when a limitation period would have commenced as it was always understood and agreed between the parties that the property was still being held in trust up to and including the date of me filing my Statement of Claim in the within action.

[39] Counsel for the Respondent argued that if an implied or resulting trust existed, the limitation period would begin when abreach of that trust occurred, not when the parties separated. The breach, he asserted, occurred when the Applicant refused to give effectto the trust relationship. [40] It is clear that a trust relationship can arise by conduct: see Waters’ Law of Trusts in Canada (4th Ed.) (Thomson ReutersCanada Limited) at p. 142 and the discussion under footnote 9, particularly the case of Northguard Financial Group v. Wah, (BC SC), [1977] 3 WWR 3 (BCSC).

Thus, quite apart from the assertion that a constructive trust might arise based onalleged unjust enrichment of the Applicant, the Respondent's action is also based on the assertion that the Court may reasonably implyintention to act as a trustee based on factual circumstances which will be more particularly discussed at trial. [41] Counsel for the Applicant did not address the possibility of a trust based on conduct.

He did, however, argue that the end ofthe parties’ relationship should have alerted the Respondent to the beginning of a limitation period in which to commence an action andthat, by any measure of when the relationship ended, he was outside the limitation period. [42] With respect, I am not aware of any jurisprudence which would suggest that a limitation period in which to commence anaction for breach of trust alleged to have arisen in respect of a trust arising through conduct commences when the trustee and her cestuique trust cease to have a romantic relationship. F. Conclusion on

Summary Dismissal [43] Under the circumstances, I find that there are triable issues in this case including, but not limited to: 1. what the "relationship" between the parties was and how it should be characterized for purposes of determining when a limitationperiod should commence, should the Respondent's action be limited to one founded in constructive trust; 2. assuming the action is founded in constructive trust, given the qualification added by our Court of Appeal in Milavsky as to whenthe limitation period for an action founded in constructive trust should start, when did the relevant limitation period start in this situation; 3. if the action is based on breach of a trust alleged to have arisen through conduct, when, if at all, did that breach occur; 4. did such a breach in fact occur; and 5. if such a breach occurred, when did the Respondent know (or when ought he have known) that the breach had occurred. [44] The Applicant refers to Rules 7.2 and 7.3(1)(

b) of the Alberta Rules of Court. These Rules provide as follows: 7.2 On application, the Court may at any time in an action give judgment or an order to which an applicant is entitled when (

a) admissions of fact are made in a pleading or otherwise, or (

b) the only evidence consists of records and an affidavit is sufficient to prove the authenticity of the records in which the evidence iscontained. 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 followinggrounds: (

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

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

© the only real issue is the amount to be awarded. [45] I find that the Applicant is not entitled to

summary dismissal on the basis of any admission by the Respondent that therelationship ended not later than March 2008. I reach this conclusion based on (1) the discussion above regarding the possibility of anaction based on a trust arising through conduct; and (2) the uncertainty surrounding the type of relationship required to allow a party tobring an action for constructive trust within two years of the end of that relationship. [46] Turning to the Applicant's assertion that Rule 7.3(1)(

b) applies, I note that in Poliquin v. Devon Canada Corporation, 2009ABCA 216, 454 AR 61 ("Poliquin"), our Court of Appeal considered the application of "old" Rule 159(2), the predecessor to Rule7.3(1). At para. 11, the Court quoted as follows from the decision of the Supreme Court of Canada in Canada (Attorney General) v.Lameman, 2008 SCC 14, 1 SCR 372: The [Supreme Court of Canada] confirmed the applicable test for

summary judgment at para. 11: The defendant who seeks

summary dismissal bears the evidentiary burden of showing that there is "no genuine issue of material factrequiring trial"…the defendant must prove this; it cannot rely on mere allegations or the pleadings…If the defendant does prove this, theplaintiff must either refute or counter the defendant's evidence, or risk

summary dismissal… [47] At para. 12 of Poliquin, the Court of Appeal noted as follows: To meet the evidentiary burden and either refute or counter the defendant's evidence, a plaintiff must "establish his claim as being onewith a real chance of success": Guarantee Co. of North America v. Gordon Capital Corp., (SCC), [1999] 3 S.C.R. 423at para. 27, 178 D.L.R. (4th) 1; and Hercules Managements Ltd. v. Ernst & Young, (SCC), [1997] 2 S.C.R. 165 at para.15, 146 D.L.R. (4th) 577. [48] Lastly, at para. 13, the Court of Appeal noted as follows: What principles therefore guide the courts' application of the

summary judgment rules? First, the bar to

summary judgment remains ahigh one: Lameman at para. 11. Second, if the bar is met,

summary dismissal is not an extraordinary remedy nor an indulgence to theparty moving for it. Third, if the evidence conflicts on a material point, or is hearsay, the party resisting

summary judgement candemand a trial as of right. There is no discretion to refuse the trial. [49] I have identified above five genuine issues of material fact the resolution of which I consider important to the determination ofthis matter. Accordingly, the Applicant has not met the burden required to obtain

summary dismissal and her application for

summarydismissal of the Respondent's action is dismissed. As a consequence, the Applicant's request noted in item 3 above under "Relief Sought"is also dismissed. G. Security for Costs [50] In the event

summary dismissal of the Respondent's action was not granted, the Applicant sought security for costs inaccordance with Rule 4.22. That Rule provides that: The Court may order a party to provide security for payment of a costs award if the Court considers it just and reasonable to do so, takinginto account all of the following: (

a) whether it is likely the applicant for the order will be able to enforce an order or judgment against assets in Alberta;

(

b) the ability of the respondent to the application to pay the costs award; © the merits of the action in which the application is filed; (

d) whether an order to give security for payment of a costs award would unduly prejudice the respondent's ability to continue the action; (

e) any other matter the Court considers appropriate. [ 51 ] Counsel for the Respondent asserted that, as contemplated in para. (

d) of Rule 4.22, such an order would unduly prejudice his client's ability to continue the action. [ 52 ] The Applicant's arguments for requesting security for costs may be summarized as follows: 1. The Respondent is impecunious; 2. The Transcript of questioning of the Respondent in April and June of 2010 indicated that the Respondent was in bankruptcy and did not have a bank account; 3. The Respondent has disregarded a costs order in a separate action involving the Respondent; 4. The Applicant has advanced a strong and meritorious defence; and 5.

The Applicant has posted de facto security by paying the proceeds of sale of her residence into trust. [ 53 ] The Respondent replies by simply noting at para. 9 of the Respondent’s Affidavit that: The Plaintiff is also asking for security for costs. I am a resident of the Province of Alberta. There is no reason for security for costs to be given.

I have appealed the decision in the other matter and that has not yet been decided. [ 54 ] However, contrary to the Respondent's assertions in his Affidavit, counsel for the Applicant advised me that the Respondent’s appeal of Justice Hunt McDonald's decision in Action No. 0901-08036 had been deemed abandoned. Counsel for the Respondent did not challenge that assertion. [ 55 ] Has the Applicant has made a case for security for costs?

I note that an unpaid costs award is not, by itself, grounds for security for costs unless those costs arose in the same cause as the cause in question: Watts Estate v Contact Canada Tourism Services Ltd., 1998 ABCA 57 , 212 AR 207. By contrast, however, I note that Action No. 0901-08036 and this action involve substantially the same parties. [ 56 ] As noted in the Alberta Civil Procedure Handbook, 2012 Stevenson and Cote (Juriliber Limited, Edmonton), Volume 1 ("Handbook"), page 4-17: That the plaintiff cannot raise money or security must be clearly proved.

Undue prejudice to the plaintiff cannot be found from ordering security if the plaintiff gives no evidence of inability to put up security. [ 57 ] The authors of the Handbook note at footnote 8 on page 4-17 that: Vague statements do not suffice: exact income, details of assets and ability to borrow must all be shown: Dagher v. Thompson, 2011 ABQB 499 .

[ 58 ] As further noted at page 4-17 of the Handbook: And a lack of money is not itself enough reason to deny security, and can be among the reasons to give it. [ 59 ] The Applicant has made a good case on its face for security for costs. She raises an arguable defence to the Respondent's action in her Statement of Defence filed November 5, 2010.

She casts doubt on the Respondent's ability to satisfy a costs award, based on evidence pointing to impecuniosity, thus raising the spectre of the Respondent electing to litigate at no consequence to him if he loses. [ 60 ] The Respondent has offered no meaningful evidence in response to these assertions or in support of his assertion that he is unable to provide security. Counsel for the Respondent, without providing evidence of solvency, asserted only that: If this order of costs were given, he would not be able to continue this action.

It would severely prejudice his ability to do so. [ 61 ] In light of the foregoing, I am prepared to order the Respondent to post security for costs. [ 62 ] With respect to the quantum of security for costs, the Handbook notes a page 4-20 that: Where the party-party costs alleged by the defendant seeking security will be largely based upon

Schedule C, then no evidence of them is needed and a pro-forma bill of costs will suffice. [ 63 ] The Applicant attached a draft Bill of Costs as Exhibit "N" to the Applicant’s Affidavit. It reflects anticipated costs computed in accordance with Column 2 of Division 2,

Schedule C to the Rules. [ 64 ] Counsel for the Respondent did not comment on that draft Bill of Costs. Accordingly, I assume he has no objection to computation of various line items in accordance with Column 2, as opposed to some other column. Column 2 would be consistent with the statement of the Applicant’s counsel that his firm holds $52,500 in his trust account pending resolution of this matter. [ 65 ] I have reviewed the draft Bill of Costs, but I think it appropriate to apply some reductions for the purposes of security for costs.

I hasten to add, however, that by applying these reductions for this limited purpose, I am in no way deciding or determining what amounts might be calculated and awarded, based on actual events relating to any trial which proceeds. I am simply deciding what amounts I believe are appropriate for this limited purpose, given my understanding of where matters currently stand. 10(1) - preparation for trial Amount suggested Amount determined for this limited purpose $4,000.00 $2,000.00 11(2) - additional ½ days for attendance for trial Amount suggested Amount determined for this limited purpose $11,250.00 $6,000.00

[ 66 ] Fees thus calculated would be $14,500 instead of $21,750.00. This adjustment reduces the aggregate amount of the Applicant's draft Bill of Costs to $17,011.67. [ 67 ] Accordingly, I direct that: 1. The Respondent post security for costs in the amount of $17,011.67; 2. The sum of $17,011.67 shall, not later than two (2) months after the date of this judgment, be paid into Court by the Respondent; 3. This Action shall be stayed until security for costs is provided as directed herein; and 4.

If the Respondent fails to post security as directed herein, this Action is dismissed. [ 68 ] If the parties cannot agree on costs in respect of the application before me, they are directed to provide me with written submissions in that regard within thirty (30) days of the date of these reasons. Heard on the 18 th day of December, 2012. Dated at the City of Calgary, Alberta this 11 th day of July, 2013. C.M. Jones J.C.Q.B.A. Appearances: Jordan C. Milne Rose LLP for the Plaintiff/Respondent Jeffrey B. Woodruff Low, Glenn & Card for the Defendant/Applicant