Phoenix Land Ventures Ltd. v. FIC Investments USA Corp., 2013 ABQB 614

Court of Queen ’ s Bench of Alberta Citation: Phoenix Land Ventures Ltd. v. FIC Investments USA Corp., 2013 ABQB 614 Date: 20131018 Docket: 0903 10462 Registry: Edmonton

Between: Phoenix Land Ventures Ltd. Plaintiff and FIC Investments USA Corp. Defendant And between: FIC Investments USA Corp. Plaintiff by Counterclaim and Phoenix Land Ventures Ltd., Malcolm D. Lennie, 1098872 Alberta Ltd., Crown Capital Corporation and John Tansowny Defendants by Counterclaim _ ________________________________________ ______________ Reasons for Judgment of the Honourable Madam Justice J.H. Goss

_________________________________________ ______________ Introduction [ 1 ] Malcolm Lennie applies for

summary dismissal of the counterclaim filed by FIC Investments USA Corp. (FIC) against him on the grounds that there is no merit to the counterclaim. [ 2 ] FIC is a foreign corporation registered and conducting business in Alberta. [ 3 ] Lennie is an Alberta solicitor who acted for FIC in connection with FIC’s acquisition of certain lands. [ 4 ] In 2007, 1098872 Alberta Ltd. (109) sold a piece of land near Devon, Alberta (Lands), to Phoenix Land Ventures Ltd. (Phoenix) pursuant to a written agreement (Purchase Agreement). [ 5 ] On the same day, Phoenix sold the Lands to FIC (Sale Agreement).

Title to the property was transferred directly from 109 to FIC on September 13, 2007 pursuant to the agreements between the parties. [ 6 ] Phoenix subsequently filed a Statement of Claim against FIC claiming default by FIC in the payment of the amount of $600,000 to Phoenix.

Phoenix alleges in its Statement of Claim that the purchase price for the Lands in the Purchase Agreement between Phoenix and 109 was incorrectly recorded by the parties because it failed to reflect an additional $600,000 payable on closing or, in the alternative, the parties had entered into an oral agreement such that the actual purchase price for the Lands was $2,200,000 and not $1,600,000. [ 7 ] Phoenix further alleges that the purchase price for the Lands in the Sale Agreement between Phoenix and FIC also failed to reflect the additional $600,000 payable on closing or, in the alternative, that the parties had entered into an oral agreement whereby the actual purchase price for the Lands was $2,550,000 and not $1,950,000. [ 8 ] FIC denies these allegations and pleads that it was an express term of its Letter of Intent and Sale Agreement with Phoenix that the purchase price for the Lands was $1,950,000, inclusive of the purchaser’s covenant to provide a penthouse suite or $600,000 in lieu thereof.

FIC denies that it entered into any written or oral agreement to increase the purchase price to $2,550,000. [ 9 ] FIC also alleges that the Letter of Intent confirmed that Phoenix committed to arrange and engage certified consultants to provide FIC with a Stage I Environmental Report on or before April 28, 2007.

It alleges that Phoenix received a completed Phase I Environmental Evaluation on March 15, 2007 which noted that “the visual nondestructive inspection has revealed potential contamination on the subject property and further action is warranted at this time”, but that Phoenix did not disclose the existence of the Phase I Report to FIC in advance of the Sale Agreement or prior to closing.

FIC alleges that it did not become aware of the environmental issues referenced in the environmental reports until after the execution of the Sale Agreement and the closing of the sale transaction. [ 10 ] FIC also filed a Counterclaim against Phoenix, Lennie, 109, Crown Capital Corporation and John Tansowny (Tansowny). FIC alleges breach of contract and duty of care specifically against Lennie. It alleges conspiracy against all of the Defendants by Counterclaim. It is this counterclaim that Lennie seeks to have dismissed against him on the grounds that there is no merit to the counterclaim.

Law [ 11 ] Pursuant to Rule 7.3(1)(b), a party may apply to the court for

summary judgment in respect of all or part of a claim on the ground that there is no merit to a claim or part of it. [ 12 ] The test for

summary judgment is well established. It requires the applicant “to show that there is no genuine issue for trial” ( Onischuk v Alberta , 2013 ABQB 89 , [2013] AJ No 138 at para 38 , Rooke ACJ). The test has not changed from the one applied under the old rules ( Encana Corp v ARC Resources Ltd , 2011 ABQB 431 , 523 AR 108 at para 7 , Kent J). [ 13 ] As stated by our Court of Appeal in Murphy Oil Co v Predator Corp , 2006 ABCA 69 , 384 AR 251: 24 …It must be "plain and obvious" that the action cannot succeed… the "beyond doubt" standard.

When a chambers or case management judge must necessarily assess the quality and weight of evidence to come to a decision, the failure of the case is not beyond doubt... [ 14 ] The court has an obligation to conduct a careful review of the facts to determine whether there are undisputed facts sufficient to resolve the matter ( Encana at para 9). If the facts are not in dispute and the legal issues are straightforward enough that they can be fairly decided on the record before the court, then

summary judgment is appropriate. If the legal issue is unsettled or complex or intertwined with the facts, it may be necessary to have a full trial to provide a proper foundation for the decision ( Tottrup v Clearwater No 99 (Municipal District) , 2006 ABCA 380 , 401 AR 88 at para 11 ). [ 15 ] In conducting this factual assessment in the context of a

summary dismissal application, the court must accept as true the facts averred by the party opposing the application, unless those alleged facts have been contradicted or disturbed by evidence elicited in questioning on their affidavits, for example by an admission contrary to the facts alleged in an affidavit, or at Questioning in the lawsuit itself. In other words, the Court assumes that the facts deposed to or elicited by the party opposing are true, and then determines whether, on that assumption, a

summary dismissal of the claim and/or

summary judgment on the counterclaim should be granted ( Peters v Wilson

Estate, 2011 ABQB 665, 528 AR 368 at paras 6-7, Hall J). [16] Once the applicant has shown that there is no genuine issue of material fact requiring trial, the onus shifts to the respondent toestablish on the evidence that there is a genuine issue to be tried (Onischuk at para 38). If opposing affidavits clash on facts, the courtcannot prefer one over the other and cannot weigh the evidence. If credibility is at issue regarding a triable issue, a trial will be necessary(Espey v Chapters (1998), (AB KB), 225 AR 68, [1998] AJ No 1518 (QB), Fruman J). If, after weighing thatevidence, the court is left with some doubt concerning whether the applicant is entitled to

summary judgment, the matter must proceed totrial (Torode Realty Ltd v Redcliff Realty Management Inc, 2003 ABQB 1037, [2003] AJ No 1594, Clark J). An arguable issue ofmaterial fact requiring trial is sufficient. The bar on a motion for

summary judgment is high (Canada (Attorney General) v Lameman,2008 SCC 14, [2008] 1 SCR 372 at para 11). Issue [17] The question for this Court is whether there is a genuine issue for trial in FIC’s claim against Lennie. Analysis 1. Breach of duty and Conspiracy a. Lennie’s Position [18] Lennie argues that he met the standard of care of a reasonably competent solicitor. Lennie argues that his duty was to closethis real estate transaction in accordance with FIC’s instructions.

FIC’s instructions were provided to him by Tansowny, who had theauthority to seek out real estate properties, to purchase them, and to agree to a change in price if that was necessary to make the purchaseon behalf of FIC. [19] Tansowny deposes in his affidavit that he was at all material times a contract consultant engaged by FIC as Vice-President,Business Development and Real Estate. He represented FIC in connection with FIC’s acquisition of the Lands, and was Lennie’s soleFIC contact. Tansowny was expressly authorized by FIC to execute on its behalf and bind FIC to agreements.

Indeed, the affidavit ofEarle Pasquill, President of FIC, confirms the consulting services agreement for services to be provided by Tansowny to FIC, including: ...overall management and supervision of the financial and business elements of FIC’s real estate acquisitions, including withoutlimitation,…

a) negotiating and arranging purchases;

b) sourcing, engaging and coordinating the work of third party consultants as maybe required in Tansowny’s sole discretion to facilitate the completion of any given project or development as and where required;

c) incooperation with FIC, negotiating, arranging and providing documentation to facilitate the interim and long term financing for thepurchase and/or development of acquired purchases;…

k) consulting with all requisite professionals, including accountants, auditors,engineers, solicitors and surveyors… [20] Tansowny executed the Sale Agreement for the Lands dated March 23, 2007 on behalf of FIC for the total purchase price of$2,550,000 (Exhibit “B”). [21] Lennie argues that the manner in which the Sale Agreement for $2,550,000 was executed by Tansowny is not specificallyrelevant, as Tansowny intended to bind FIC to the purchase of the Lands for $2,550,000, which he did.

This Sale Agreement for$2,550,000 was also executed by Phoenix and was provided to Lennie by Tansowny with instructions to act on behalf of FIC so as toclose the transaction pursuant to the executed Sale Agreement. Lennie argues that no contradictory evidence has been put before theCourt. FIC is bound by the instructions Tansowny provided to Lennie. [22] Tansowny further deposes that there is a second Sale Agreement (Exhibit “C”) for the Lands dated March 23, 2007, executedonly by FIC, in which the purchase price was inaccurately stated to be $1,950,000.00.

Tansowny deposes that Phoenix did not executethis Sale Agreement for $1,950,000 (Exhibit “C”) because the purchase price was inaccurately stated. [23] William Baker (Baker), Chief Financial Officer for FIC, states in his affidavit that FIC never approved any change in thepurchase price from $1,950,000.

However, Lennie argues that there is no executed Purchase Agreement for purchase of the Lands at$1,950,000, and therefore there can be no argument that the purchase price was changed from $1,950,000 to $2,550,000. [24] In his affidavit, Baker refers to pleadings filed in this and other actions wherein allegations are raised over the manipulation ofthe purchase price of the Lands by Tansowny and Crown Capital Corporation from $1,950,000 to $2,550,000 without FIC’sauthorization.

Baker does not swear to the truth of these allegations in his affidavit, not does he state any source for his information andbelief with respect to these allegations. Lennie submits that allegations are not evidence, and these allegations are against Tansowny andCrown Capital Corporation, not Lennie. [25] Lennie submits that there is no evidence that he did not close this transaction in accordance with Tansowny’s instructions andthe executed Sale Agreement (Exhibit “B”). He also submits that FIC has failed to show that Lennie participated in any conspiracy toimproperly benefit from the impugned transaction.

Lennie has specifically deposed that he did not participate in any such conspiracy andthat the only benefits that he received from the transaction were the legal fees paid by FIC in connection with the legal services rendered. b. FIC’s Position [26] FIC argues that there are several genuine issues for trial, and there is much conflicting evidence that cannot be resolved on a

summary judgment application.

Therefore, the matter must go to trial. [ 27 ] FIC argues that the primary issues in this action are the change in the purchase price for the Lands stated in the Sale Agreement, and whether or not that change was brought to the attention of, and agreed to by, FIC. [ 28 ] FIC relies upon the affidavits filed in this matter, the questioning of Tansowny on his affidavit, the questioning of Lennie on his affidavit, and the paper documentation in Lennie’s file showing irregularities. [ 29 ] The essence of FIC’s argument is that the signature page to the Sale Agreement (Exhibit “B”) for $2,550,000 ($1,950,000 plus construction of the $600,000 condominium) was slipped in at a later date using a photocopied signature page from the Sale Agreement (Exhibit “C”) for $1,950,000, and was not originally executed on March 23, 2007 or at all.

FIC submits that the following must be determined at trial: Lennie’s involvement, awareness, failure to exercise the care and skill expected of a solicitor practicing in the area of commercial real estate transactions, and negligent breach of his obligations to FIC. [ 30 ] FIC’s difficulties in this litigation are acknowledged in that Tansowny was the sole source of information for FIC at the time. [ 31 ] Baker swears to the information FIC now has in its possession.

He deposes in his affidavit that FIC never approved any change in the purchase price of $1,950,000 (inclusive of construction of the $600,000 condominium) as set out in the Letter of Intent and the original Sale Agreement. [ 32 ] Baker further deposes that FIC retained the services of a handwriting expert to compare the signature on the original Sale Agreement stating a price of $1,950,000 (Exhibit “C”) with the signature on the purportedly amended Sale Agreement stating a price of $2,550,000 (Exhibit “B”).

In an opinion dated April 12, 2013, the expert concluded: On the basis of the comparative analysis of the subject purchaser signatures and corresponding handwritten dates as appearing on the signatory pages of the two photocopy versions of the subject Real Estate Purchase Agreement [the Sale Agreement], it is the firm finding of this examiner that the purchaser signatures are identical each to the other; and the corresponding handwritten dates are identical each to the other; and each were derived from one and the same original signature and handwritten date. [ 33 ] FIC argues that the comparative signature opinion contradicts the evidence of Lennie and Tansowny concerning the purported execution of the Sale Agreement for $2,550,000 (Exhibit “B”) on or about March 23, 2007. [ 34 ] It is Tansowny’s evidence that he executed, on one occasion, the Sale Agreement (Exhibit “C”) reflecting a purchase price of $1, 950,000, which Phoenix did not execute, and that he executed the Sale Agreement (Exhibit “B”) reflecting a purchase price of $2,550,000 on another occasion.

Tansowny then clarified that he did not know if he signed the Sale Agreement (Exhibit “C”) reflecting a purchase price of $1, 950,000. He only recalled signing a signature page which is now attached to the Sale Agreement (Exhibit “B”) reflecting a purchase price of $2,550,000. Tansowny did not specifically recall when he signed it, although it is dated March 23, 2007.

The handwriting analysis concludes that the signature page on the Sale Agreement (Exhibit “B”) reflecting a purchase price of $2,550,000 is simply a photocopy of the signature page with Tansowny’s signature from the Sale Agreement (Exhibit “C”) reflecting a purchase price of $1,950,000.

Therefore, according to the handwriting analysis, it was not signed by Tansowny on two separate occasions. [ 35 ] Lennie confirmed in questioning on his affidavit that he believed, but could not say with certainty, that the Sale Agreement (Exhibit “C”) reflecting a purchase price of $1, 950,000 is the real estate purchase contract referred to in his Statement of Account as having been received and reviewed by him. The Statement of Account may or may not have been entirely chronological.

It contains, further down, another entry regarding receipt and review of the real estate purchase contract between August 29 and August 31. FIC submits that this time frame is consistent with when the issue of the need to amend the Purchase Agreement was brought to Lennie’s attention.

FIC argues that this second review of the real estate purchase contract referred to in Lennie’s Statement of Account is Lennie’s review of the Sale Agreement (Exhibit “B”) reflecting a purchase price of $2,550,000. [ 36 ] Lennie was unable to recall in questioning on affidavit whether this second review related to Exhibit “B” or Exhibit “C”.

Lennie confirmed in questioning on affidavit that he did not communicate in writing with anyone at FIC to obtain instructions with respect to the clarification about which counsel for Phoenix notified him in late August 2007 to the effect that the Purchase Agreement involved $1,600,000 in cash plus the $600,000 condominium to be constructed for a total price of $2,200,000, and which Lennie was asked by counsel for Phoenix to confirm agreement to in writing. [ 37 ] Lennie also confirmed in questioning on affidavit that he did not communicate in writing with anyone at FIC regarding the change in the purchase price in the Sale Agreement from $1,950,000 to $2,550,000.

FIC argues that there is no indication in the Statement of Account that the second Sale Agreement (Exhibit “B”) reflecting a purchase price of $2,550,000 was ever sent to FIC for re-signature or approval.

FIC further suggested that the signature page from the Sale Agreement (Exhibit “C”) reflecting a purchase price of $1, 950,000 was somehow slip sheeted into the Sale Agreement (Exhibit “B”) reflecting a purchase price of $2,550,000, as the two signature pages are identical each to the other, the corresponding handwritten dates are identical each to the other, and each one was derived from the same original signature and handwritten date.

Lennie denied this suggestion. [ 38 ] FIC also argues that the evidence of Tansowny and Lennie regarding execution of the amended Sale Agreement (Exhibit “B”) for $2,550,000 ($1,950,000 plus construction of the $600,000 condominium) on or about March 23, 2007 is incompatible with the timing or sequence of other events involving the Purchase and Sale Agreements of the Lands, as the inaccuracy regarding the price in the Purchase Agreement was not identified until July and was brought to Lennie’s attention in August 2007.

In late August 2007, Lennie was aware of and agreeable to the clarification that the Purchase Agreement involved a total price of $2,200,000, not $1,600,000. Such clarification, it is argued, would not have been required if the facts were as portrayed by Lennie and Tansowny in their evidence. FIC argues that this incompatibility goes directly to the question of credibility of those witnesses and lends support to FIC’s position.

More importantly for this application, it establishes that there is a triable issue which must be determined at trial with respect to the execution of the Sale Agreement and the adjustment to the purchase price. Lennie’s evidence is that he relied entirely upon communications with Tansowny and communicated with no one else at FIC regarding the Sale Agreement transaction. Baker deposes in his affidavit that FIC

never approved any change in the purchase price of $1,950,000 as set out in the Sale Agreement (Exhibit “C”) and the Letter of Intent. b. Conclusion [ 39 ] Lennie bears the onus of establishing that there is no genuine issue for trial. The test is very high. It must be plain and obvious or beyond doubt that the action against Lennie cannot succeed on the basis of undisputed facts. [ 40 ] In conducting this factual assessment, the Court assumes that the facts deposed to or elicited by the opposing party are true, and then determines whether a

summary dismissal of the counterclaim should be granted. If the facts are in dispute or credibility must be assessed to determine the issues, then

summary dismissal is not appropriate. [ 41 ] It was Lennie’s duty to close this real estate transaction in accordance with FIC’s instructions. Any instructions Lennie received were provided by Tansowny. Lennie did not communicate in writing with anyone at FIC to obtain instructions regarding clarification of the Purchase Agreement for a higher amount than originally understood, or with respect to the change in the purchase price in the Sale Agreement.

There is evidence before this Court raising the issue of irregularities involving the signature page to the Sale Agreement (Exhibit “B”) for $2,550,000. [ 42 ] There is evidence which is relevant to the level of care and skill exercised by Lennie and the extent to which he met his obligations to FIC. This is a triable issue which can only be properly determined at trial. 2. The Environmental Reports a.

Lennie’s Position [ 43 ] Lennie submits that there is no evidence that he withheld any environmental reports from FIC. [ 44 ] The March 1, 2007 Letter of Intent provides that Phoenix was to arrange and engage certified consultants to provide FIC with a Stage I Environmental Report on the Lands on or before April 28, 2007. [ 45 ] Clause 12.1 of the March 23, 2007 Purchase Agreement provides: The Vendor hereby represents and warrants to the Purchaser as follows, and acknowledges that the Purchaser is relying upon such representations and warranties in connection with the purchase of the Lands…To the best of its knowledge, the Vendor is not aware of any environmental issues affecting the Lands. [ 46 ] Baker deposes that on March 15, 2007, Phoenix had the Phase I Environmental Evaluation prepared by Venture Engineering Consultants Ltd. [ 47 ] Lennie specifically denies that he withheld any environmental reports from FIC, and gave evidence that he was never provided with a copy of and was not aware of the contents of any environmental reports.

Lennie states that Tansowny advised him that he had received the environmental report and that FIC intended to proceed with the purchase. Tansowny gave evidence that he received the report from Lennie. b.

FIC’s Position [ 48 ] FIC argues that Lennie did not, as would a competent solicitor representing FIC’s interests, deal with, document or report on the environmental condition included in the Letter of Intent and contemplated as part of the Sale Agreement. [ 49 ] Lennie acknowledged that he was aware of this purchase condition and had specifically made a note that Phoenix was to give a Phase I Environmental Report to FIC within 30 days.

Lennie gave evidence in questioning on affidavit that Tansowny informed him that he had received and reviewed the Environmental Report(s), but Lennie did not recall when that conversation took place. Lennie does not have a record of that conversation, has no notation in his file of such a conversation, and does not refer to that conversation in his Statement of Account. [ 50 ] Lennie stated that he did not ever see any environmental reports and made no inquiries of counsel for Phoenix to obtain copies of any environmental reports or to find out the contents of an environmental report.

He also did not obtain instructions in writing from anyone at FIC with respect to waiving any environmental conditions. c. Conclusion [ 51 ] Lennie was aware of the purchase condition regarding the environmental report. However, there is evidence which suggests that he made no inquiries to obtain copies of any environmental reports, or to apprise himself of the contents of any environmental reports. He did not obtain instructions in writing from anyone at FIC with respect to waiving any environmental conditions.

Tansowny informed Lennie at some point that he had received and reviewed the Environmental Report(s), but Lennie did not recall when that conversation took place. [ 52 ] Again, I conclude that this evidence is potentially relevant to the level of care and skill exercised by Lennie and the extent to which he met his obligations to FIC. This is a triable issue which is properly determined at trial. 3. The Limitations Act

a. Lennie’s Position [ 53 ] Lennie argues that FIC's claim against him is barred by the operation of the Limitations Act , RSA 2000, c L-12. [ 54 ] Section 3(1) of the Limitations Act provides that, subject to

section 11 , if a claimant does not seek a remedial order within 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 10 years after the claim arose, whichever period expires first, the defendant, on pleading the Limitations Act as a defence, is entitled to immunity from liability in respect of the claim. [ 55 ] Lennie argues that the relevant limitation period for FIC's claim against him would have expired on September 13, 2009, as the injury for which the claimant seeks a remedial order had occurred on September 13, 2007 when the transaction closed and FIC became the registered owner of the Lands subject to Phoenix's Unpaid Vendor's Lien Caveat for the unpaid balance of the $2,550,000.00 purchase price.

The knowledge that Tansowny had throughout is attributed to FIC, as Tansowny was expressly authorized by FIC to execute and bind FIC on its behalf. [ 56 ] Alternatively, Lennie argues that FIC has acknowledged, through its officers, the purchase price it paid for the Lands on several occasions since the closing, which dates certainly trigger the two year limitation period. On March 29, 2008, Graham Woods, FIC's Chief Financial Officer, confirmed in an email that $1,950,000 had already been paid for the Lands and that FIC still needed to pay another $600,000.

In addition, William Baker refers in his affidavit to a Colliers Report, which was requisitioned by FIC in April 2008. That report refers to the Lands acquired on September 13, 2007 at a value of $2,550,000. The two year limitation period for FIC's claim against Lennie would have expired on September 13, 2009, and certainly no later than April, 2010. [ 57 ] Lennie submits that as he was the solicitor who had been retained in connection with the transaction, FIC would have known immediately that Lennie was potentially responsible for the alleged injury.

Lennie argues that FIC would have known that the alleged injury warranted bringing a proceeding upon learning that it had occurred. [ 58 ] Further, Lennie argues that s. 6 of the Limitations Act is also relevant because FIC's claim against Lennie was brought by way of counterclaim, adding Lennie as a defendant by counterclaim. Therefore, Lennie 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 he would not be prejudiced in maintaining a defence to it on the merits.

Lennie argues that if the time provided by law for the service of process is presumed to be one year ( Pagnucco (Next Friend of) v Sears Canada Inc , 2011 ABQB 810 , 528 AR 209 at para 38 ) , Lennie would have needed to have knowledge of FIC's added claim by September 13, 2010 and at the latest by April 2011. FIC did not file its Counterclaim until June 13, 2011. b.

FIC’s Position [ 59 ] FIC argues that the date on which it first knew, or in the circumstances ought to have known, that the injury for which FIC seeks a remedial order had occurred was not the date of closing, nor the dates upon which the price of $2,550,000 was specifically referenced by officers or directors of FIC, but some time later. [ 60 ] The information that these officers and directors had on the price paid for the Lands was provided by Tansowny, FIC’s Vice- President, Business Development and Real Estate. He was the source of this information as their representative in Alberta.

It was not until irregularities began to be identified that FIC representatives started to investigate and unravel the Alberta transactions. They then found issues with documents, such as the Sale Agreement, and began to determine, or in the circumstances ought to have suspected, that the injury was attributable at least in part to Lennie’s conduct. [ 61 ] The date or time period during which irregularities began to be identified by FIC is not in the evidence before this Court.

FIC argues that the extent to which or the time during which those irregularities and/or the difference in price from the Letter of Intent to the executed Sale Agreement could, or should, have been first identified by senior management within FIC is a matter for trial. c. Conclusion [ 62 ] The date upon which the limitation period for FIC's claim against Lennie started to run pursuant to ss.3(1) and 6 of the Limitations Act is in issue. The determination is not plain and obvious based on the evidence before this Court. It also must go to trial.

Cconclusion [ 63 ] Given the foregoing conclusions on the issues raised by the parties, the application for

summary dismissal of FIC’s counterclaim against Lennie is dismissed. Heard on the 5th day of September, 2013.

Dated at the City of Edmonton, Alberta this 18th day of October, 2013. J.H. Goss J.C.Q.B.A. Appearances: Richard B. Drewry, Q.C. B.S.M. Amirie for the Applicant Kenneth W. Fitz for the Respondent