Breitkreuz v Alberta (Infrastructure), 2016 ABQB 12

Court of Queen ’ s Bench of Alberta Citation: Breitkreuz v Alberta (Infrastructure), 2016 ABQB 12 Date: 20160106 Docket: 1103 15781 Registry: Calgary Between: Her Majesty the Queen in Right of Alberta, as represented by the Minister of Instructure (formerly the Minister of Public Works, Supply and Services) and Carl Soneff Applicants/Defendants and Walter Breitkreuz Plaintiff/Respondent _______________________________________________________ Reasons for Judgment of the Honourable Mr. Justice C.M. Jones _______________________________________________________ I Introduction [ 1 ] The Plaintiff/Respondent, Mr.

Breitkreuz (“Breitkreuz”), has brought an action against the Defendants/Applicants for damages of $2,050,000.00, plus interest and costs. Breitkreuz claims he enjoyed a right of first refusal (“ROFR”) in respect of certain lands that he leased from Her Majesty the Queen in Right of Alberta (the “Crown”). He alleges that, in 1994, the Crown’s wrongful conduct, implemented through the actions of Mr. Soneff (“Soneff”), deprived him of the opportunity to purchase a portion of those lands (the “Subject Land”) for $10,000.00 an acre.

Soneff had been engaged by the Crown on a contract basis to assist in the disposal of surplus Crown lands. [ 2 ] Breitkreuz claims he discovered that injury in 2009, some fifteen years after the alleged wrongful conduct occurred, when he learned that the City of Edmonton paid the then-owners of the Subject Land $134,064.59 per acre. He commenced an action against the Applicants on October 5, 2011. [ 3 ] The Applicants seek

summary judgment dismissing Breitkreuz’s action. They allege that his action is statute-barred by virtue of the ultimate limitation period set forth in s. 3(1)(

b) of the Limitations Act , RSA 2000, c L-1 (“ LA ”). The Applicants assert that the events giving rise to Breitkreuz’s alleged injury occurred in 1994 and that the ultimate limitation period began at that point, not some fifteen years later. [ 4 ] The Applicants also raise the two-year limitation period in s. 3(1)(

a) of the LA, arguing that Breitkreuz’s personal circumstances do not excuse his failure to inquire further regarding the terms of any offer to purchase the Subject Land in respect of which he claims a ROFR. II Background [ 5 ] Breitkreuz’s Statement of Claim, filed October 5, 2011, provides his version of events. It alleges, inter alia , the following: 1. He entered into a lease (the “Lease”) of certain lands with the Crown on November 13, 1992. The term of the Lease was January 1, 1993 to December 31, 1997.

2. In a letter from the Crown dated April 16, 1993 (the “First Letter”), he was advised that the Crown would list the Subject Land for sale. He was asked to cooperate in facilitating a showing of the Subject Land and advised that if he did not wish to purchase the Subject Land, the Lease would be cancelled, unless whomever purchased the Subject Land wished to continue it. 3. The First Letter was signed by Soneff, who Breitkreuz alleges was an employee of the Crown with actual or ostensible authority to represent and bind the Crown in matters involving the Lease and the sale of the Subject Land. 4.

At some point after he received the First Letter, Breitkreuz claims to have received a telephone call from Soneff (the “First Conversation”) indicating that the Crown’s policy was to give tenants a ROFR to purchase land offered for sale by the Crown during the term of the their tenancy. 5. Sometime in the spring of 1994, Soneff called Breitkreuz, inquiring as to how much he would be willing to pay for the Subject Land (the “Spring 1994 Conversation”). Breitkreuz alleges that he stated he would pay $10,000.00 per acre and that Soneff laughed at him and said he would have to pay a lot more than that. 6.

In a letter from the Crown dated June 17, 1994 (the “Second Letter”), Breitkreuz was advised of the sale of the Subject Land and given notice of the assignment of the Crown’s interest in the Lease to the purchasers of the Subject Land (“Purchasers”). 7. The Crown did not notify him of the Purchasers’ offer. This, he asserts, denied him the opportunity to make an offer to purchase the Subject Land for a price equivalent to the amount of the offer made by the Purchasers. 8. On October 7, 2009, Breitkreuz learned that the Purchasers had purchased the Subject Land for $10,000.00 per acre. 9.

The Crown’s failure to notify him that the Purchasers were willing to pay $10,000.00 per acre contravened Breitkreuz’s ROFR. He was denied the opportunity to pay that amount, which he claims he had advised Soneff he was willing to pay. 10. Alternatively, Breitkreuz asserts the Crown represented that he would have the right to purchase the Subject Land at the price another potential purchaser would be willing to pay and he relied to his detriment on that representation in not making an offer at $10,000.00 per acre. 11.

In the further alternative, Breitkreuz alleges deliberate misconduct by Crown officials, including Soneff, using statutory authority for the improper purpose of selling the Subject Land to the Purchasers without giving him an opportunity to purchase it at the same price. He alleges reckless indifference or willful blindness on the part of the Crown to this lack of statutory authority. He further alleges intention to harm or reckless indifference or willful blindness to the harm that befell him. 12.

In the further alternative, Breitkreuz alleges breach of a duty of care owed to him by Soneff in not giving him the opportunity to purchase the Subject Land at a price equivalent to that offered by the Purchasers, knowing that he was willing to pay it. The Crown, he asserts, is vicariously liable for this breach. 13. Noting that in the fall of 2009, the Subject Land was sold by the Purchasers for an amount in excess of $2,214,000.00, Breitkreuz asserts economic loss arising from the Crown’s failure to honour the ROFR. 14.

He further assets that the Crown fraudulently concealed the occurrence of the injury he suffered. [ 6 ] The Applicants, in their Statement of Defence filed December 7, 2012, assert that: 1. The Lease provisions did not include a ROFR. 2. The Crown did not have a policy of offering its tenants a ROFR. 3. Soneff made no representation to Breitkreuz regarding a ROFR. 4. The Crown did not exceed its statutory authority in effecting the sale to the Purchasers and neither the Crown nor Soneff owed Breitkreuz a duty of care in connection with the sale of the Subject Land. 5.

If an offer to extend a ROFR was made by Soneff, Breitkreuz provided no consideration for it and did not accept it. 6. If an offer to extend a ROFR was made by Soneff, Breitkreuz did not reasonably rely on it to his detriment. 7. The Crown, its agents and Soneff did not engage in deliberate or reckless misconduct, nor did they conceal, fraudulently or otherwise, any facts. 8. Any duty of care which may have existed was not breached and Breitkreuz did not suffer loss or damage. 9. Breitkreuz’s claim is barred by the provisions of the LA . [ 7 ] The Applicants seek

summary judgment dismissing Breitkreuz‘s action on the basis that a limitation period bars his claim. They focus primarily on the application of the ultimate limitation period and secondarily on the two-year limitation period. [ 8 ] The Applicants assert that this matter is appropriate for

summary judgment. They allege that the facts before the Court establish all of the elements of a limitations defence. The Applicants are prepared, for the limited purpose of this

summary judgment application, to accept Breitkreuz’s assertion that he was told he would be given a ROFR in respect of the Subject Land. III Evidence

[ 9 ] The evidence before the Court on this application consists of two affidavits and the various exhibits thereto, including certain read-ins from questioning. Breitkreuz swore an affidavit on March 9, 2015 (the “Breitkreuz Affidavit”) while the Applicants provided an affidavit sworn by Dave Bentley on August 12, 2014 (the “Bentley Affidavit”). [ 10 ] The Applicants invite the Court to review the history of communications between Soneff and Breitkreuz. They acknowledge that Soneff sent the First Letter, which is attached as Exhibit “C” to the Bentley Affidavit.

The First Letter states: In the event that you are not interested in purchasing the said property, the Lease will be cancelled in accordance with the terms of the Lease unless the purchaser should wish to assume an assignment of the Lease. You will be advised further at the appropriate time. [ 11 ] At para. 20 of the Breitkreuz Affidavit, Breitkreuz refers to the Spring 1994 Conversation, in which he claims that he told Soneff he would pay $10,000.00 acre for the Subject Land and Soneff laughed and told Breitkreuz “you’ll have to do much better than that”.

Breitkreuz asserts at para. 21 of the Breitkreuz Affidavit that he believed Soneff had called because he had received an offer for substantially more than $10,000.00 per acre and that Breitkreuz’s unwillingness to pay more than that meant his ROFR was at an end. [ 12 ] Exhibit “G” to the Bentley Affidavit is a copy of a fax dated May 12, 1994 from Soneff to Mr. Raj of Ranger Reality, with whom the Subject Land had been listed for sale. In it, Soneff indicates that he would be prepared to recommend $10,000.00 per acre to the Crown and advises Mr.

Raj to contact Breitkreuz, who he mentions had made a previous offer. [ 13 ] On May 13, 1994, Mr. Raj’s clients offered $10,000.00 per acre; this offer was accepted by the Crown on June 8, 1994.

I note there is nothing in either the Listing Agreement with Ranger Realty or the Offer to Purchase which suggests that the sale of the Subject Land is subject to a ROFR. [ 14 ] The Breitkreuz Affidavit at para. 23 states that Breitkreuz learned of the sale when the Purchasers visited him, advised that they had purchased the Subject Land and asked if he would be interested in continuing to lease the Subject Lands from them. [ 15 ] The Second Letter, from Alex Jacob, Director of Land Planning and Management, is attached as Exhibit “J” to the Bentley Affidavit.

It advised Breitkreuz that the closing date for the sale was July 8, 1994. It did not mention the sale price for the Subject Land but did invite Mr. Breitkreuz to contact Mr. Bentley if he had questions or concerns. [ 16 ] The Breitkreuz Affidavit attached as Exhibit “F” certain read-ins from the questioning of Soneff and of Mr. Bentley. The read-ins from Mr. Bentley’s questioning establish that Breitkreuz was not given an opportunity to match the offer for the Subject Land accepted on June 8, 1994. [ 17 ] The read-ins from Soneff’s questioning establish the following: 1.

Soneff has no recollection of Breitkreuz contacting him after he sent the First Letter; 2. The First Letter was sent to Breitkreuz as a tenant as a courtesy in case he wished to buy the Subject Land; 3. He does not remember Breitkreuz phoning him; 4. He did not ask Mr. Raj if he had contacted Breitkreuz; 5. He did not contact Breitkreuz after he received an offer at $10,000.00 per acre from the Purchasers to see if he would match that offer; 6. He does not recall receiving a telephone offer from Breitkreuz in January of 1994; and 7.

He does not recall a conversation with Breitkreuz in April or May of 1994 in which he asked Breitkreuz what he would pay for the Subject Lands. [ 18 ] During questioning, Soneff indicated he had no recollection of his discussions with Breitkreuz. Counsel for the Applicants argues that, given Soneff’s inability to remember the conversation in question, the evidence of what Soneff actually said to Breitkreuz is not likely to improve at trial. The Applicants assert that all the evidence needed to determine the reasonableness of Breitkreuz‘s

interpretation of the Spring 1994 Conversation and the availability of a limitations defence, is before the Court. [ 19 ] Breitkreuz appears not to have made further inquiry over the ensuing fifteen years. On October 7, 2009, he requested a copy of the title to the Subject Land and learned that it had been sold to the Purchasers in 1994 for $10,000.00 per acre. On October 5, 2011, Breitkreuz filed this action. IV Limitation Analysis [ 20 ] As noted above, the Applicants rely on two provisions of the LA : s. 3(1)(a), the two-year limitation period and s. 3(1)(b), the ultimate ten-year limitation period.

I will address the ten-year limitation first. A Ten Year Limitation Period [ 21 ] Section 3(1)(

b) of the LA provides as follows:

Subject to subsections (1.1) and (1.2) and

section 11, if a claimant does not seek a remedial order within … (b) 10 years after the claim arose, …the defendant, on pleading this Act as a defence, is entitled to immunity from liability in respect of the claim. [22] The Applicants attempt to put the limitation issue in context, quoting from the Alberta Court of Appeal’s decision in Boyd vCook, 2013 ABCA 27, 542 AR 160 at paras 4 and 5: Limitations statutes exist for a purpose.

They are not mere tidiness, nor a trick to give defendants windfalls or bargaining points.Limitations legislation, so-called “statutes of repose” exist to give some certainty in their lives to all those who may at some time besued. This is not only true of businesses and professional people, but also ordinary citizens who can ill afford the mental and emotionalstress of threats or lawsuits. It is a nuisance and an expense to have to keep voluminous records in perpetuity. Allowing large potentialthreats to hang over their heads for a generation sterilizes capital and impoverishes businesses.

What is worse, it is unjust to sue peopleonce their former ability to defend themselves has evaporated. … And any attempt to compromise competing goals and to adopt some hybrid mechanism, often may be worse than deciding thelimitations issue initially, no matter who wins that issue. … [23] Reiterating the point that limitations legislation must be honoured, lest greater harm befall, the Appellants quote from theCourt of Appeal’s decision in Bowes v Edmonton (City), 2007 ABCA 347, 425 AR 123 at paras 120 - 122: First, people and businesses have to get on with their lives.

They should not have to store bulky or fragile records forever, even fordecades. Their savings and futures should not be founded on fading memories, or the hazard of whose witness first dies or disappears.The social cost of all that is high. People and businesses must be able to plan their affairs without keeping idle huge reserves against thepossibility of ancient claims arising. No one would buy a construction business or a professional practice if it might drag with it claimsover 30 years old. Indeed, Canadians daily use buildings, bridges, dams, roads, and railways a century or more old.

Companies dependon constituting documents drafted by long-forgotten solicitors. Wills and trusts generations old govern pensions plans and other vastsums. Many Canadians were delivered by obstetricians over 65 years ago; and got medical advice over 60 years ago. With no limitation periods, much of the country’s assets, infrastructure, and capital would be sterilized by the dead hand of history. SeeAlberta Law Reform Institute, Limitations 1-2, 70 (Report #55, December 1989).

The second aspect of the harm is that trying to find and test evidence about events decades old is usually roulette, not a seriousexploration of the truth. After some years, a defendant cannot prove a proper defence, or even disprove the plaintiff’s allegations. [24] The Applicants assert that discoverability of harm or injury does not apply to the application of this limitation period and pointto the Court of Appeal’s insights at paras 150 and 151 of Bowes: Section 3(1)(b), the unconditional limitation period, has its own express

interpretation section. Section 3(3)(

b) says:

(3) For the purposes of subsection (1)(b), . . . (

b) a claim based on a breach of a duty arises when the conduct, act or omission occurs; That paragraph is plain. It says that the time under the alternative absolute period starts to run from the negligent or wrongful act oromission itself. Therefore, one should not wait until the harm occurs. Where the Legislature adopts a specific event to start time running,that displaces the former discoverability rule: Ryan v.

Moore, 2005 SCC 38, [2005] 2 S.C.R. 53, 334 N.R. 355 (para. 27). [25] The Applicants’ position is that, even if Breitkreuz had a ROFR, the wrongful act occurred on June 8, 1994, when the SubjectLand was sold to the Purchasers. The same date applies if the wrong complained of is negligence or misuse of statutory authority.

In thecase of negligent misrepresentation, the latest date would be February 28, 1994, the date of the telephone conversation in whichBreitkreuz alleges Soneff told him he would call when he had an offer. [26] Breitkreuz challenges the Applicants’ assertion that a limitation period bars his claim. With respect to the ultimate limitationperiod, he argues that the Applicants fraudulently concealed the fact that the injury for which he seeks a remedial order had occurred.

Heargues the Applicants denied him information which would have allowed him to exercise his ROFR and acquire the Subject Land. [27] Fraudulent concealment is contemplated in s. 4 of the LA: 4(1) The operation of the limitation period provided by section 3(1)(

b) or (1.1)(

b) is suspended during any period of time that thedefendant fraudulently conceals the fact that the injury for which a remedial order is sought has occurred.

(2) Under this section, the claimant has the burden of proving that the operation of the limitation period provided by section 3(1)(b)or (1.1)(

b) was suspended. [28] Breitkreuz’s arguments in this respect may be summarized as follows: 1. Fraudulent concealment, as contemplated in

section 4 of the LA, imports the concept of equitable fraud, which is broader inscope than its common law equivalent: M(

K) v M(H), (SCC), [1992] 3 SCR 6 at para 57; Huet v Lynch, 2000 ABCA97, 255 AR 359 at para 26, citing Kitchen v Royal Air Forces Assn, [1958] 2 All ER 241 (CA) at 249. 2. Equitable fraud can arise from unconscionable conduct: M(

K) v M(H); Lynch.

3. A party’s unconscionable conduct, where there is a “special” relationship between the parties, may be such that it would be inequitable to allow a claim to be defeated by asserting the ultimate limitation period: M(

K) v M(H) ; Lynch . 4. Unconscionable conduct can be either active concealment of or passive failure to inform the plaintiff of some wrongdoing the defendant knowingly or recklessly committed: Lynch at para 35 . 5. Fraudulent concealment need not be deliberate or volitional: Beaman v ARTS Ltd [1949] 1 All ER 465 . 6. Suspension of the ultimate limitation period in Alberta requires: (

i) The defendant must have perpetrated some kind of fraud; (ii) That fraud concealed a material fact; and (iii) The plaintiff exercised reasonable diligence to discover the fraud: Ambrozic v Burcevski, 2008 ABCA 194 , 433 AR 25 at para 21 . 7. Fraudulent concealment in Alberta requires some abuse of a confidential position, some intentional imposition, or some deliberate concealment of facts: Burcevski at para 23 , citing M(

K) v M(H) . [ 29 ] Breitkreuz asserts that a “special” relationship allowing for a finding of unconscionable behavior does not require a fiduciary relationship. The circumstances must only be such that they created a reasonable expectation of a certain type of behavior. Breitkreuz argues that the Court requires evidence of how the relationship between the Crown and Breitkreuz and his family evolved over many years in order to understand whether there was a special relationship.

The characterization of that relationship influences the determination of what steps Breitkreuz might reasonably have been expected to take in the circumstances to pursue his ROFR. [ 30 ] The Applicants refer to WP v Alberta, 2014 ABCA 404 , 588 AR 110 at para 33 , in which the Court of Appeal, citing Burcevski , set out the above three factors required for suspension of the limitation period by fraudulent concealment. [ 31 ] First, the Applicants dispute that the Crown or Soneff engaged in any fraudulent concealment.

They assert that Soneff neither knowingly failed to disclose nor fraudulently concealed the Purchasers’ offer of $10,000.00 per acre. They point to Soneff’s suggestion that the real estate agent contact Breitkreuz to see if he was interested as manifesting an intention both to disclose what was happening and possibly to engage Breitkreuz in the process.

They refer to the Court of Appeal’s statement in Burcevski at para. 23 , citing King v Victor Parsons & Co , [1973] 1 All ER 206 (CA) , that a defendant unaware that he has committed a wrong is protected by the ultimate limitation period and to Soneff’s evidence that he did not think it was his role to contact Breitkreuz after the Purchasers made their offer. [ 32 ] The Applicants go on to suggest that Breitkreuz failed to take appropriate steps to inquire.

If there is fraudulent concealment, which the Applicants deny, did Breitkreuz exercise reasonable diligence to uncover it? [ 33 ] The Applicants argue that if Breitkreuz thought he had exercised his ROFR, he reasonably should have been expected to inquire as to the price actually paid. They argue that Breitkreuz had all the information he needed to make further inquiry but did not do so and that his own inadvertence engages a limitation defence. [ 34 ] The Applicants take the position that the basis for Breitkreuz‘s action against them depends, in large part, on the reasonableness of his assumptions and of his

interpretation of the Spring 1994 Conversation. According to Breitkreuz, that phone call led him to believe that he was being invited to exercise his ROFR but that he was unsuccessful in doing so because $10,000.00 per acre was insufficient to match an existing offer. The Applicants argue that a reasonable

interpretation of the Spring 1994 Conversation is that Soneff was looking for offers, that one had not yet been made but that he thought $10,000.00 per acre would be too low. If that is the proper

interpretation, Breitkreuz would have known that his ROFR was still extant and he was at liberty to follow up with the Crown, either before or after learning of a successful offer. The Crown, through Soneff, would then have disclosed, rather than fraudulently concealed, the purchase price. [ 35 ] The Applicants acknowledge that what constitutes reasonable diligence depends, in part, on the relationship between the parties. They assert that no special relationship existed between them and Breitkreuz which would cause their conduct here to be viewed as unconscionable.

The Crown was his landlord and he was their tenant. There is nothing in the relationship between the Crown and Breitkreuz that would relieve him of the responsibility for making reasonable inquiries to satisfy himself that his ROFR had been unsuccessfully engaged. Breitkreuz, they note, is a former Master of this Court. As such, he is a sophisticated party with a strong background and understanding of contract law and rights of first refusal. [ 36 ] Breitkreuz argues that the wrongful conduct consists of concealment of material facts, notably that the Crown had received an offer of $10,000.00 per acre.

He asserts that, given that the First Letter says Breitkreuz “will be advised further”, he had a reasonable expectation that the Crown would be proactive in keeping him fully apprised of developments. His position is that Soneff’s failure to advise him was wrongful and that wrongful conduct can itself give rise to fraudulent concealment: Beaman . [ 37 ] Breitkreuz takes the position that he had no reason to make further inquiry because he thought he had attempted, but failed, to exercise his ROFR. He asserts that a trial is needed to reconcile uncertainties surrounding the timing of the Spring 1994 Conversation.

He argues that further evidence, including an assessment of Soneff’s demeanor as a witness, might shed some light on whether Soneff had an existing offer (which, if Breitkreuz did have a ROFR, should have been made clear) or was just trying to promote some competitive bidding. He argues that a trial is required to determine both the relationship that existed between the parties and the extent to which the Crown may have engaged in unconscionable, reckless or careless conduct. B. Two Year Limitation Period [ 38 ] The Applicants assert that the two year limitation period in s. 3(1)(

a) of the LA should also apply to bar Breitkreuz‘s claim.

That provision denies relief if a remedial order is not sought within 2 years of the date upon which the claimant first knew, or in the circumstances ought to have known: (

a) of the occurrence of the injury; (

b) that the injury was attributable to the conduct of the defendant, and (

c) that the injury, assuming liability on the part of the defendant, warrants bringing a proceeding. [ 39 ] The Applicants argue that, had Breitkreuz been denied the opportunity to exercise a ROFR, he should have discovered that he had been injured within this limitation period. He was alerted to the sale of the Subject Land by the Second Letter. He could have asked what the terms of the sale were. He could have raised the terms of sale with the Purchasers when they visited his property to see if he wished to continue to lease the Subject Land.

Citing De Shazo v Nations Energy Co , 2005 ABCA 241 , 367 AR 267 at para 31 , the Applicants argue that the principle of discoverability does not require perfect knowledge, but only that that “the material facts on which [the cause of action] is based ... ought to have been discovered by the plaintiff by the exercise of reasonable diligence”. [ 40 ] Breitkreuz argues that the question of whether he discovered or ought to have discovered the three criteria requires application of a subjective/objective approach.

Citing Gayton v Lacasse , 2010 ABCA 123 , 482 AR 179, he argues that the “ought to have known” threshold requires reference to a claimant’s personal circumstances. He asserts that evidence at trial would shed light on the nature of the relationship between the parties and could serve to frame the degree of responsibility owed by the Crown to Breitkreuz and the reasonable expectations the parties might have had of each other.

His position is that a trial is required to enable the Court to determine how the requirements of the above provision should be applied in this context. [ 41 ] The Applicants argue it was not reasonable in the circumstances for Breitkreuz to conclude that his ROFR had been unsuccessfully engaged. They argue that if that is what Breitkreuz concluded after the Spring 1994 Conversation, he acted unreasonably in coming to that conclusion and his unreasonable actions were exacerbated by not taking steps to satisfy himself in that regard.

They assert that anyone actually believing he enjoyed a ROFR would have wanted to know what offer he would have had to meet and that no further evidence of the relationship is necessary to come to this conclusion. V Disposition [ 42 ] I may grant

summary judgment if I determine there is no genuine issue requiring a trial. That will be the case if I am able to identify the applicable legal principles governing resolution of the issue and, on the existing record, am able to make findings of fact which enable me to apply those legal principles. As well, I must be satisfied that

summary judgment affords a more expeditious and less expensive means to achieve a just result: Windsor v Canadian Pacific Railway , 2014 ABCA 108 , 572 AR 317; 776826 Alberta Ltd v Ostrowercha , 2015 ABCA 49 , 593 AR 391. [ 43 ] Additional context to the application of these principles is found in Beier v Proper Cat Construction Ltd, 2013 ABQB 351 , 564 AR 357.

Summary judgment will be granted if the nonmoving party’s position is without merit, which will be the case if the law applied to the facts makes the moving party’s position unassailable.

That will be the case when that position is so compelling that the likelihood of success is very high. [ 44 ] From my consideration of the law applied to the existing record, I conclude the Applicants’ likelihood of success at trial in invoking a limitation period is very high. [ 45 ] It is important, in my view, to keep the ten-year and two-year limitation periods analytically distinct, particularly in respect of the requirement of diligence.

To some extent, Breitkreuz conflates the two; indeed, in oral argument regarding fraudulent concealment, his counsel spoke of “overlap” between the two issues. [ 46 ] While diligence is a factor in respect of both limitation periods, the application of that requirement is quite different under the current legislation. [ 47 ] The Court of Appeal discussed this in WP v Alberta , 2014 ABCA 404 , 588 AR 110 at para 33 . They noted that Burcevski was, in some respects, based on the decision in Lynch .

That case was decided, not under the LA , but under predecessor legislation ( Limitations of Actions Act , RSA 1980, c L-15 ).

Section 57 of that legislation provided that fraudulent concealment was concealment of a cause of action . In contrast, the Court of Appeal noted as follows in WP : This is no longer the case under the [ LA ]: section 4(1) refers to fraudulent concealment of the “the fact that the injury…has occurred.” This is a substantive legislative change: concealment of the right to claim for an injury is not the same thing as concealment of the fact of an injury. The former goes to discoverability which, as already explained, does not affect the operation of the ultimate limitation period. Further, “injury” is defined by

section 1(

e) to include not only positive personal injury, property damage or economic loss, but also non- performance of an obligation or the breach of a duty – which, taken together, cover all the allegations of fraud advanced by the appellants in this case. [ 48 ] Applying this approach to the evidence before me, I am satisfied that the Applicants did not engage in fraudulent concealment. [ 49 ] Though Breitkreuz asserts that a trial is needed to resolve the factual issues, I am prepared to make the following assumptions in his favour for purposes of this application: 1.

Breitkreuz reasonably understood from the First Conversation that he would be offered an opportunity to match any offer tendered in respect of the Subject Land.

2. He reasonably understood that Soneff would contact him if there was an offer for the Subject Land; 3. As a consequence of a conversation with Soneff on January 24, 1994, he was aware that the Subject Land had been listed at $12,000.00 per acre but that no offers had been received; 4. As a consequence of a conversation with Soneff on February 28, 1994 he was again assured that he would be given an opportunity to match any offers; 5. In the Spring 1994 Conversation, when Breitkreuz advised that he would pay $10,000.00 per acre, Soneff said “you’ll have to do much better than that”; and 6.

Breitkreuz became aware on or about June 17, 1994 that the Subject Land had been sold with closing of that sale transaction to take place on July 8, 1994. [ 50 ] From this I conclude that Breitkreuz’s understanding of the Crown’s obligations to him included the right to be informed of and to match any extant offers. It follows that he should be expected to understand the difference between an inquiry regarding how much he would be prepared to pay and a clear indication of an extant offer with a price certain which he had been informed he would have the opportunity to match.

Breitkreuz cannot reasonably assert that the Spring 1994 Conversation constituted notice of an extant offer. His evidence confirms that he was not informed that an offer had been made, nor of a price a third party purchaser was willing to pay, nor of any terms that might govern the payment of purchase price. [ 51 ] The evidence, including Soneff’s questioning, establishes to my satisfaction that Soneff was trying to interest parties to bid up the price per acre. I have been given no reason to believe that this evidence would be challenged at trial.

Perhaps Soneff did this after he was in possession of a firm offer from the Purchasers. Perhaps not. It does not matter for purposes of this application for

summary judgment. In either case, Breitkreuz knew, when he received the Second Letter advising him the sale of the Subject Lands, that the Crown had not complied with its alleged undertaking to him to advise him of any offer for the Subject Land and to afford him the opportunity to match that offer. The Spring 1994 Conversation, as described by Breitkreuz, cannot be interpreted to be fulfillment of that undertaking. [ 52 ] It is hard to accept that Soneff concealed anything, intentionally or otherwise, given that he directed the real estate agent to contact Breitkreuz to ascertain his interest.

But in any event, the fact of the sale to the Purchasers was not concealed from Breitkreuz. It was made plain to him by the Second Letter. That gave him notice of any breach of the Crown’s obligations in this regard. The occurrence of that breach was confirmed when the Purchasers appeared at his home. [ 53 ] Breitkreuz’s evidence does not satisfy me that his family’s historical dealings with the Crown elevate the relationship above landlord/tenant.

But even if they did and he was entitled to expect that the Crown would fully disclose the terms of any extant offer, he should have been aware that the Crown failed to do so. He cannot, on the one hand, argue that the Crown owed him an enhanced duty and, on the other, credibly assert that he thought the Spring 1994 Conversation went far enough in discharging that duty to allow him to conclude his ROFR had been unsuccessfully engaged.

While Breitkreuz’s history of dealing between his family and the Crown may have allowed him to take a more relaxed approach to his exercise of a ROFR, that history should not allow him to recast what objectively looks like an attempt to bid up the price of the Subject Land as formal notice of a firm offer at a price certain. [ 54 ] Breitkreuz, for reasons unknown, did nothing to respond to a clear breach of what he claims the Crown had agreed to do. I am satisfied that Breitkreuz would not succeed at trial in establishing that fraudulent concealment was one of those reasons.

I am not satisfied that there was any such fraudulent concealment and, even if there was, it is clear that Breitkreuz easily could have discovered it by making inquiries of Soneff, Bentley and/or the Purchasers. Accordingly, I find that the application of the ten-year limitation period was not suspended by fraudulent concealment and that Breitkreuz’s Statement of Claim was filed outside that period. [ 55 ] In addition, I find that Breitkreuz ought to have known of the injury he allegedly suffered within the two-year limitation period.

Irrespective of whether that injury arises from breach of contract, negligence or misuse of statutory authority, Breitkreuz had sufficient knowledge of the material facts to permit him to discover the injury through the exercise of reasonable diligence. [ 56 ] In the result, the Applicants’ Application for

summary judgment dismissing Breitkreuz‘s Statement of Claim is granted. If the parties are unable to agree on costs they may make written submissions to me within thirty days of the date of this judgment. Heard on the 14 th day of May , 2015 Dated at Calgary, Alberta this 6 th day of January, 2016. C.M. Jones J.C.Q.B.A. Appearances:

Marta Burns and Stephanie Bowes Alberta Justice Legal Services Division for the Applicants/Defendants Brian P. Kaliel, Q.C. and Monique Petrin Nicholson Miller Thomson LLP for the Plaintiff / Respondent