Feldman v Bendle Glass Co, 2016 ABQB 219

Court of Queen ’ s Bench of Alberta Citation: Feldman v Bendle Glass Co

(1975) Ltd, 2016 ABQB 219 Date: 20160414 Docket: 0603 14851 Registry: Edmonton Between: Rakhmiel Feldman and Nekhama Feldman Plaintiffs - and - Bendle Glass Co.

(1975) Ltd., Qualiglass Windows & Doors Ltd., Rehau Industries Inc., The Owners: Condominium Plan No. 832 1384 and The Owners: Condominium Plan No. 8321384 (Grandview Ridge Condominium Corporation) and Marshall Ursulak, Sole Proprietor, Operating as Renew Exteriors Defendants Corrected judgment: A corrigendum was issued on June 20, 2016; the corrections have been made to the text and the corrigendum is appended to this judgment. _______________________________________________________ Reasons for Judgment

of the Honourable Mr. Justice Donald Lee _______________________________________________________ Introduction [ 1 ] This is an appeal from the Master’s decision to grant the Defendant Grandview Ridge Condominium Corporation (“Condominium Corporation”)

summary dismissal. When the Master heard this matter on August 25, 2015 she determined that the Plaintiffs’ claim had no merit on the basis of the clear and uncontested evidence that the Plaintiffs had extensive knowledge of the requisite facts within the meaning of s.3(1)(

a) of the Limitations Act . [ 2 ] Section 3(1) reads as follows: 3(1) Subject to subsections (1.1) and (1.2) and

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. [Underlining Added] [ 3 ] Furthermore the Master held that no standstill agreement was entered into within the meaning and requirements of the Limitations Act which would have had the effect of preserving the Plaintiffs’ claims, since the Plaintiffs were already out of time pursuant to the Limitations Act when the so called standstill agreement was reached.

Background and Facts [ 4 ] The Grandview Ridge Condominium Development was constructed in St. Albert in the early 1970’s. The windows of the development are common property. In the 1990’s the development required repairs to the exterior and common property due to issues with ice damming. The Condominium Corporation retained the Plaintiff Rakhmiel Feldman (“Mr. Feldman”) or his corporation to conduct some of those repairs, which included amongst other things work on Unit #83, which is the subject matter of the present appeal.

The work on Unit #83 conducted by the Plaintiff and/or his company was billed out at more than $200,000.00 for the ice damming problem. The work on Unit #83 included the removal of the drywall, cutting out and removing mould, and the replacement of new drywall in the unit. [ 5 ] The Plaintiffs purchased Unit #83 in the development in June 2002. Their daughter and son-in-law moved into the unit and they paid rent to Plaintiffs shortly after it was purchased by them.

At the time the Plaintiffs purchased Unit #83 from the previous owner, none of the windows had yet been replaced, even though in or about 2001, the Condominium Board of Directors (“Condominium Board”) decided that it would be prudent to replace all of the windows in the development. Subsequently the Condominium Board hired the Defendants Qualiglass Windows & Doors Ltd. (“Qualiglass”) to supply windows, and the Defendant Bendle Glass Co.

(1975) Ltd. (“Bendle”) to install the new windows. Their work began in the fall of 2001. [ 6 ] The windows in Unit #83 were replaced in September 2002 as part of the overall window project. There were moisture and humidity problems in the unit in 2003 as the Plaintiffs had to replace carpet and underlay in the living room due to deterioration caused by moisture saturation, and because the carpets were mouldy. The subfloor was also damaged and the windows were dripping profusely. [ 7 ] In his Examination on Affidavit in this lawsuit, Mr.

Feldman acknowledged that the leaky windows caused a persistent problem of excessive moisture in Unit #83, and that during the period of time from October 2002 onward the residents of Unit #83 suffered from “respiratory and other discomforts”. [ 8 ] In early 2004, the condominium corporation retained professional consultants Building Science Engineering Ltd. to assist with respect to the issue of moisture penetration and window failure arising from the window project. Mr.

Feldman was aware of these window failure issues because he was a member of the Condominium Board, and was involved in the decision to hire the professional consultants to deal with the issue. Mr. Feldman participated in an inspection of Unit #83 by representatives of the consultant in February of 2004. He acknowledged in his Examination that the February 2004 inspection was done because of moisture penetration and window failure. [ 9 ] During the February 2004 inspection, which Mr. Feldman was present at, high humidity in the unit was noted as well as

moisture penetration issue such that mushrooms were found growing on the carpet. Mr. Feldman also told the consultants that the fresh air intake duct in the basement of his unit was full of water. [ 10 ] By early May 2004, the Condominium Board which included Mr. Feldman, concluded that the window failure issues and resulting moisture and water damage to the development were so serious that they warranted commencing a law suit.

A Statement of Claim was filed on May 21, 2004 in which the Condominium Corporation named Qualiglass, Bendle, and another window manufacturer Rehau Industries Inc. (“Rehau”) as Defendants. [ 11 ] By a letter dated January 17, 2005, the Plaintiffs requested the Condominium Corporation to conduct an investigation of their unit due to the ill effects being experienced by occupants of that unit.

The letter reads as follows: As per our previous discussions and as per inspection of the unit by the Engineers in regards of window replacements you already had a good understanding that this unit suffered extensive damages caused by old and new windows. I do understand that the window replacement is postponed due to the legal process, but the circumstances at the present time calls for immediate actions to rectify the situation. My daughter resides on the premisses together with her family. On January 13, 2005, she delivered a baby and to place the baby in such conditions are not proper.

We took them both to our house for a short while, but the family wants to live in their own place. I would like to describe the conditions of the property at the moment: 1. The picture window in the Living Room was replaced before our time and most likely was not properly installed (was it done by Bendle Glass ???). It freezes constantly and water drips on the walls and carpet, damaged the vertical blinds. The carpet was so molded, that it needed to be removed and discarded together with the blinds. The new blinds are already all stained. They live right now on the sub-floor. 2.

The Dining Room windows are still the old ones. Because it faces North, the same as the picture window, it is constantly shut frozen. It damaged the walls, sub-floor and linoleum, which was just as few years old (same as the carpet). 3. The Master Bedroom new windows are completely frozen, walls and carpet are damaged and molded, (a molded strip of carpet was cut out), sub-floor is damaged. 4. The Second Bedroom new windows are completely frozen, walls and carpet are damaged and molded. 5. The Loft Bedroom old window is completely frozen. 6.

The new stair skylight windows are dripping on the stairs below and can cause someone to slip and fall. 7. The Basement furnace fresh air supply line is full of water and adds to the humidity. The cause of the water penetration needs to be determined. There are just a few items mentioned above. The repairs and renovations at the present time are out of the question until the window problems are resolved. The renovations will not be possible to be conducted with the residents in the premisses due to the scope of work and vastness of affected areas.

A full scope of damages and scope of work will be provided to you in the future, but in the meantime, I would like to ask you to approach the Corporation’s Attorney to contacted the other party to investigate and to resolve the matter. The situation is extremely bad and something has to be done immediately before any health problems to the residents and especially to the children occur due to mold and humidity. I hope the above is in order.

If you have any questions, please contact me at the numbers provided. [ 12 ] In August 2005, servicemen working for the Condominium Corporation told the Plaintiff’s daughter that he smelled mould in the unit. Mr. Feldman communicated that conversation to the president of the Condominium Corporation. In the fall of 2005 the Condominium Corporation installed an ozone machine in the unit, and hired another consultant DF Technical & Consulting Services Ltd. (“DFT”) to investigate. [ 13 ] DFT issued a report dated November 23, 2005, which was given to Mr.

Feldman on December 7, 2005, which confirmed the presence of toxic mould in the unit as follows: Results: • Biological Counts Bolded counts are deemed to be higher than desired.

Italic counts indicate species varied from typical outdoor air compositions, having the potential to produce health responses Air Samples — Air-O-CelI Mould Species Sample location and count #83 Crawlspace Sample location and count #83 Main Sample location and count #83 Upper Sample location and count Outdoor Raw count 1531 Ct/m 3 718 Ct/m 3 33412 Ct/m 3 679 Ct/m 3 Cladosporium sp. 186 Ct/m 3 53 Ct/m 3 640 Ct/m 3 386 Ct/m 3 Arthrinium 53 Ct/m 3

Ascospores 120 Ct/m 3 120 Ct/m 3 Basidospores 53 Ct/m 3 53 Ct/m 3 120 Ct/m 3 53 Ct/m 3 Chaetomium 386 Ct/m 3 53 Ct/m 3 53 Ct/m 3 Penicillium/Aspergillus 906 Ct/m 3 506 Ct/m 3 26240 Ct/m 3 Stachybotrys 53 Ct/m 3 5893 Ct/m3 Myxornycete/Rust/Smut 120 Ct/m 3 120 Ct/m 3 Ulocladiuml/Stemphylium 120 Ct/m 3 Mildew 53 Ct/m 3 Attached are copies of the Laboratory results for the types of mould present in the collected samples. Many of the mould species identified produce allergenic reactions and toxins . General Comments and Conclusions: 1.

All north windows on main level and upper levels should be addressed to insure no further water infiltration can occur. 2. Main level and upper level windows on the north wall should have all affected materials removed under a level 2 standard. This would mean containments at each window and air filtration devices. 3. Remaining homes main floor and upper level should also be cleaned and disinfected due to the levels of contamination present. 4.

After all work has been preformed retesting of this home should be preformed to insure all spores have been removed. [Underlining Added] [ 14 ] As a result the unit had to be evacuated and remedial work undertaken. Advanced Remediation Solutions were retained by the Condominium Corporation, and they cleaned up and decontaminated the unit in December 2005 and January 2006. [ 15 ] On May 18, 2006 the Plaintiffs and their lawyer Aaron Oshry attended a meeting with legal counsel and another representative of the Condominium Corporation. Mr. Oshry and Mr.

Stachnik come to an agreement, but the actual agreement and its legal effect are in dispute. [ 16 ] In a without prejudice letter dated May 19, 2006 Mr. Oshry sets out in writing what he believes was agreed upon at the May 18, 2006 meeting which reads as follows: I set out hereunder what I believe to be what was agreed upon at the May 18th, 2006 meeting, which I thank you for attending at my office. 1. The remedial work to be done to the condominium in question is to be done expeditiously, Mr. Feldman, or his company, is to provide a list of the items to be dealt with and an estimate.

It will be provided to me and intern to you. 2. Within seven (7) days of receipt by you, you will advise whether your clients will accept the estimate. 3. If the estimate is accepted, subject to what I have to say hereunder regarding the obtaining of an engineers report within thirty (30) days from today’s date and the work of the engineer being done by someone obviously nominated by the engineer or your client, my client will do the remaining work at the costs specified. 4.

The “contract price” to my client would be paid via my office and $5,000.00 of it is to be held in my trust account pending final resolution of all matters between or respective clients, or a Court order. 5. My client is to not attend to the flooring structure which is a mater for the engineers and your client is to attend to the installation of the windows and the panel or panels in the garage door. 6. The mould clearance is to be attended to by your clients. 7.

All of the foregoing and especially the construction, the payment and the contract, is to be without prejudice to the rights of the parties and no adverse inference is to be drawn thereby. That means that it is without prejudice to the rights of your client and/or Mr. and Mrs. Feldman and/or Mr. Feldman’s construction company. 8. It is agreed that limitation periods, with respect to any claim between or respective clients, “stands still” as at May 18, 2006 but only for a period of one (1) year. In that regard, on reflection, could you please prepare a short document for signature by all . 9.

The engineers are to call Mr. Feldman at (780) 481-7146 or on his cell phone (780) 445-0088 to arrange for access to the premises. I would ask you to kindly confirm that the foregoing confirms your understanding of what was agreed upon and I am hoping to get you my clients specs and estimate in the very near future. [Underlining Added] [ 17 ] Counsel for the Condominium Corporation writes to Mr. Oshry on July 6, 2006 setting out certain instructions that he received from the Condominium Corporation as follows:

Further to your letter of June 28, 2006, the writer wishes to confirm the following instructions I have from Grandview Ridge: 1. The Board of Directors has accepted the quote of R. F. Design, Drafting & Development Ltd. in the amount of $23,635 89 plus GST of $1,654.51 for a total amount of $25,290.40. These monies are to repair Unit 83. 2. The Board of Directors will require a representative be given access to the unit to inspect the same from time to time to confirm the work is being done to satisfactory construction standards. 3.

As previously discussed in our meeting, the respective responsibilities of our mutual client to the cost of repairs is yet to be determined. The payment in paragraph 1 is without prejudice and without any admission of liability. 4. In relation to the linoleum floors, the critical issue on this point is whether the linoleum floors have been damaged as a result of the mould. We were not trying to be argumentative with your client in raising the fact that the people involved in clean up advised Grandview that soap and water on linoleum will address the concerns of mould. 5.

In terms of your client’s letter of June 15, 2006, he raises a number of issues including a letter advising that total elimination of mould particles could be secured. Due to the presence of mould under normal conditions, this seems like an unreasonable request. 6. In terms of your client’s price he states he did not include profit for his company; however, his price is very similar to one other quote that our client has received. In any event, the price that has been accepted is the price that was quoted.

Finally, as discussed in the meeting, the agreement to proceed to clean up the premises was dictated by your reasonable suggestion that this property should be fixed up and that issues of liability and responsibility for the damages can be dealt with at a later point in time. Our client has agreed to front end these costs notwithstanding issues of concern about the state of repair of the premises and issues with respect to the owner’s failure to carry his own insurance, In any event, the threatening nature of Mr.

Feldman’s communication is not productive towards trying to resolve matters between our respective clients . Can you please confirm receipt of this letter and your client’s intentions to proceed with the repair . [Underlining Added] [ 18 ] An Affidavit sworn by Mr.

Oshry in support of this appeal on October 7, 2015 states that there was an agreement reached specifically that the limitation period with respect to any claims brought by the Plaintiffs against the Condominium Corporation “stands still” as of May 18, 2006 for one year. [ 19 ] I note that no formal standstill agreement was ever prepared or signed. [ 20 ] The Plaintiffs’ Statement of Claim was then issued on the 28 th of November 2006.

The Applicable Rules [ 21 ] Rule 6.14 governs appeals from Masters and it reads: 6.14(1) If a master makes a judgment or order, the applicant or respondent to the application may appeal the judgment or order to a judge.

(2) A notice of appeal in Form 28 must be filed and served within 10 days after the judgment or order is entered and served and returnable within a reasonable time, not exceeding 2 months, after the date the notice of appeal is filed.

(3) An appeal from a master’s judgment or order is an appeal on the record of proceedings before the master and may also be based on additional evidence that is, in the opinion of the judge hearing the appeal, relevant and material.

(4) The record of proceedings is (

a) the application before the master, (

b) affidavits and other evidence filed by the parties respecting the application before the master, (

c) any transcript of proceedings before the master, which must be ordered and paid for by the appellant, unless the Court determines, or the parties agree, that transcripts are not needed, and (

d) the master’s judgment or order and any written reasons given for the decision.

(5) The appellant must file and serve on the respondent to the appeal, within one month after service of the notice of appeal, (

a) any transcript of proceedings described in subrule (4)(c), (

b) any additional evidence referred to in subrule (3), and (

c) any further written argument.

(6) The respondent to the appeal must file and serve on the appellant, within 20 days after service of the documents referred to in subrule (5),

(

a) any further written argument the respondent wishes to make, and (

b) any additional evidence referred to in subrule (3).

(7) The appellant may, within 10 days after service of the documents referred to in subrule (6), file a brief written argument responding to any unanticipated additional evidence or further argument raised by the respondent.

(8) A party may rely on its original written argument, if any, that was before the master or any further argument filed under subrule (5) (

c) or (6)(a), or both the original argument and the further argument. [ 22 ] Rule 7.3 governs applications for

summary judgment, and it reads as follows: 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 following grounds: (

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

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

c) the only real issue is the amount to be awarded.

(2) The application must be supported by an affidavit swearing positively that one or more of the grounds described in subrule (1) have been met or by other evidence to the effect that the grounds have been met.

(3) If the application is successful the Court may, with respect to all or part of a claim, and whether or not the claim is for a single and undivided debt, do one or more of the following: (

a) dismiss one or more claims in the action or give judgment for or in respect of all or part of the claim or for a lesser amount; (

b) if the only real issue to be tried is the amount of the award, determine the amount or refer the amount for determination by a referee; (

c) if judgment is given for part of a claim, refer the balance of the claim to trial or for determination by a referee, as the circumstances require. Standard of Review [ 23 ] Our Court of Appeal stated in Bahcheli v. Yorkton Securities Inc. , 2012 ABCA 166 at paragraph 30 that the standard of review was correctness, and that there is no deference owed to the Master’s decision: 30 In my view, the standard of review on appeal from a Master to a judge, on all issues, is still correctness. [ 24 ] My own view is that given this is a de novo hearing, no standard of review is actually applicable. Analysis [ 25 ] Alberta’s

summary judgment rule establishes for a “merit based” test, which essentially is an analysis of whether the claim has “merit”. As for the meaning of “merit”, our Court of Appeal very recently defined it as follows in 776826 Alberta Ltd. v Ostrowercha , 2015 ABCA 49 at paragraphs 10 to 13 : 10 From the substantive perspective,

summary judgment can be granted if, in light of what that fair and just process reveals, there is no merit to the claim.

No "merit" means that, even assuming the accuracy of the position of the non-moving party as to any material and potentially decisive matters -- matters which would usually require ordinary forensic testing through a trial procedure with viva voce evidence and which could not be resolved through the fair and just alternative -- the non-moving party's position viewed in the round has no merit in law or in fact. 11 Stated another way, in order for the non-moving party's case to have merit, there must be a genuine issue of a potentially decisive material fact in the case which cannot be summarily found against the non-moving party on the record revealed by the "fair and just process".

The mere assertion of a position by the non-moving party in a pleading or otherwise, or the mere hope of the non-moving party that something will turn up at a trial, does not suffice.

The key is whether the circumstances require a viva voce evidence in order to properly resolve the case: see Canada v Lameman , 2008 SCC 14 at paras 10 to 11 , [2008] 1 SCR 372. 12 The concept of "merit" in this respect is to be distinguished from the test for striking out pleadings under Rule 3.68 which involves deciding "whether there is any reasonable prospect that the claim will succeed, erring on the side of generosity in permitting novel claims to proceed.": compare Ernst v Alberta (Energy Resources Conservation Board) , 2014 ABCA 285 at paras 13 to 15 , 85 CELR (3d) 39, under motion [2014] SCCA No 497 (QL). 13 As to the substantive aspect of the test, then, this Court has also put the test for

summary dismissal into the following terms in W.P., at para. 26:

Summary judgment is therefore no longer to be denied solely on the basis that the evidence discloses a triable issue. The question is whether there is in fact any issue of "merit" that genuinely requires a trial, or conversely whether the claim or defence is so compelling that the likelihood it will succeed is very high such that it should be determined summarily: Windsor at para 16; Beier at paras 56, 59-68

and 70. [26]

Summary judgment is not to be denied solely on the basis that the evidence discloses a triable issue. The question is whetherthere is any issue of “merit” genuinely requiring a trial, or in other words, is there a reasonable prospect or high likelihood that the claimwill succeed: P.(W.) v Alberta, 2014 ABCA 404 at paragraph 26.

Preliminary Matters [27] Both parties made a number of preliminary comments and objections. [28] The Plaintiffs questioned whether the Condominium Corporation had satisfied the evidentiary requirements of Rule 7.3(2).There is some merit to this complaint. [29] The Condominium Corporation pointed out that the Plaintiffs were guilty of noncompliance with the procedural requirementsfor appeals, and for providing new evidence.

It is correct that the Plaintiffs were well outside the deadlines set in Rule 6.14 in filing thetranscript of the proceedings before the Master, and in filing new evidence. [30] However the Plaintiffs have an application before me for leave to extend any timelines, and Counsel for the CondominiumCorporation graciously allowed this appeal to proceed notwithstanding the Plaintiffs procedural requirements were completed welloutside the deadlines set out in the Rule. [31] I am also satisfied that Counsel for the Plaintiffs was simply not as diligent as he could have been in complying with the timedeadlines, but that nothing prejudicial or substantial flows from his tardiness.

Did the Plaintiffs have Actual Knowledge Sufficient to Triggerthe Commencement of the Limitation Period Such that theywere Out of Time when they issued Their Claim [32] The limitation period specified in this matter begins to run when the claimant either discovered, or ought to have discovered,specific knowledge about his claim namely: a. that the injury for which he seeks a remedial order has occurred; b. that the injury was to some degree attributable to the conduct of the Defendant; and c. that the injury, assuming liability on the part of the Defendant, was sufficiently serious to have warranted bringing a proceeding. [33] An example of the extent of a Plaintiff’s knowledge sufficient to trigger a limitation period is as described in De Shazo vNations Energy Co., 2005 ABCA 241.

However more importantly the relationship between the common law discoverability rule and thestatutory limitation period is found in paragraphs 25 to 28 of De Shazo as follows: 25 The relevant provision of the Limitations Act is section 3(1), which provides: 3(1) Subject to

section 11 [not applicable here], 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, ... the defendant, on pleading this Act as a defence, is entitled to immunity from liability in respect of the claim. 26 This provision codifies the common law discoverability rule and applies it to all actions for remedial orders. The common law rulewas described by the Supreme Court of Canada in Central Trust Co. v.

Rafuse, (SCC), [1986] 2 S.C.R. 147 at 224: "[A]cause of action arises for purposes of a limitation period when the material facts on which it [the cause of action] is based have beendiscovered or ought to have been discovered by the plaintiff by the exercise of reasonable diligence." 27 The Supreme Court revisited the common law discoverability rule in Peixeiro v. Haberman, (SCC), [1997] 3S.C.R. 549, confirming that since the decisions in Kamloops (City of) v.

Nielsen, (SCC), [1984] 2 S.C.R. 2 and CentralTrust, discoverability is a "general rule applied to avoid the injustice of precluding an action before the person is able to raise it.":Peixeiro at 563.

The court emphasized the concept of reasonable discoverability: "In balancing the defendant's legitimate interest inrespecting limitations periods and the interest of the plaintiffs, the fundamental unfairness of requiring a plaintiff to bring a cause ofaction before he could reasonably have discovered that he had a cause of action is a compelling consideration": Peixeiro at 565. 28 The appellants submit that the same principles pertain whether the common law discoverability rule or the provisions of the newLimitations Act apply, relying on Mahan v. Hindes, 2001 ABQB 831, 308 A.R. 1 at para. 25.

The common law statement of the

discoverability principle will inform the application of section 3(1)(a), but courts must also be mindful of the three criteria listed in thatsection: J.N. v. G.J.K., 2004 ABCA 394, 248 D.L.R. (4th) 245; Owners: Condominium Plan 9421549 v. Main Street Developments Ltd., (AB KB), 2004 ABQB 962. The statute specifies the type of knowledge that must have been available to theclaimant in order to trigger the running of the limitation period. The claimant must know or have been reasonably able to discover that:(

i) the injury occurred; (ii) the injury was attributable to the conduct of the defendant; and (iii) the injury warrants bringing a proceeding. Underlining Added [34] In the present application, I conclude that it was obvious the Plaintiffs had certain knowledge that there was a moistureproblem in their unit as early as 2002. However until Mr.

Feldman received the DFT Report in December 2005 when the unit then had tobe vacated, cleaned and decontaminated, the presence of toxic mould may well have been unknown to the Plaintiffs. [35] While it is correct that mould and moisture problems were present much earlier, there are obviously varying and differenttypes of mould and moisture problems. The Plaintiffs are not required to be experts in the area of the various forms and toxicity of mouldand moisture.

They were arguably only aware of the very problematic mould and moisture from the DFT Report in December of 2005,when they knew that the unit needed to be vacated as a result. The Statement of Claim was filed November 28, 2006, within the two yearlimitation time following that discovery. [36] The Plaintiffs’ tenants were suffering from respiratory and allergy problems much earlier as well, but once again the Plaintiffsare not medical experts as to why those problems were occurring.

They may not therefore be reasonably expected to connect the healthissues of their tenants, with the ultimate problems that required evacuation of the unit. [37] By analogy Counsel for the Condominium Corporation argues that the present case is similar to an arm fracture that becomesarthritic over time. With respect, a better analogy could be the individual who suffers multiple arm fractures over time, but who only suesafter suffering a subsequent compound fracture to the same arm. [38] I conclude that a trial is necessary to determine the extent of the Plaintiff’s knowledge relative to the limitation period.

Was there a Standstill Agreement [39] Counsel for the Condominium Corporation, and the Master, concluded that one cannot have a standstill agreement when therewas nothing left to “standstill”, or in other words where an applicable limitation period has already expired, any subsequent agreement to“standstill” is of no affect. [40] However no binding authority, or for that matter any case authority, is cited by the learned Master or by Counsel for thisconclusion.

This is especially important given that it is not clear or obvious that the limitation period has actually ever expired in thiscase. [41] The Limitations Act does not actually state this proposition either, as it specifically allows that a limitation period can beextended in s.7, as long as there is a standstill agreement in writing and signed by the party to be charged with it in s.9(1) or by its agentin s.9(2). [42] Section 7(1), s.9(1) and (2) read as follows: 7(1) Subject to

section 9, if an agreement expressly provides for the extension of a limitation period provided by this Act, the limitationperiod is altered in accordance with the agreement. ... 9(1) An agreement and an acknowledgment must be in writing and signed by the person adversely affected.

(2) An agreement made by or with an agent has the same effect as if made by or with the principal. [43] Furthermore, the Limitations Act specifically prohibits shortening of the limitation period in s.7(2) which states:

(2) An agreement that purports to provide for the reduction of a limitation period provided by this Act is not valid. [44] Presumably the Limitations Act would be just as specific if it intended that an agreement to extend a limitation period after ithad already expired was not valid. The fact it does not so state means that that restriction may not have been intended. [45] Here the standstill agreement, if it exists in fact, was in writing and signed by Counsel through two separate letters dated May19 and July 6, 2006. [46] From Mr.

Oshry’s May 19, 2006 letter with respect to the May 18, 2006 meeting that there was a clear agreement with respectto the limitation period standing still for a period of one year from that meeting. Although this was contained in a without prejudiceletter, Mr.

Oshry’s further supplemented his understanding of the situation in an Affidavit in support of this appeal on October 7, 2015where he states and repeats that there was an agreement specifically reached that the limitation period with respect to any claims broughtby the Plaintiffs against Condominium Corporation standstill as of May 18, 2006 for one year. [47] Under Rule 6.14(3) the Court is entitled to hear additional evidence in this appeal that I consider to be relevant and material,which I consider Mr. Oshry’s Affidavit to contain. [48] On the other hand Mr.

Stachnik does not produce any further evidence with respect to what was agreed upon in the May 18,

2006 meeting, since he remains counsel for the Condominium Corporation in this appeal and cannot also be a witness. However it is clear that his own letter dated July 6, 2006 agreed to the following: Finally, as discussed in the meeting, the agreement to proceed to clean up the premises was dictated by your reasonable suggestion that this property should be fixed up and that issues of liability and responsibility for the damages can be dealt with at a later point in time.

Our client has agreed to front end these costs notwithstanding issues of concern about the state of repair of the premises and issues with respect to the owner’s failure to carry his own insurance, In any event, the threatening nature of Mr. Feldman’s communication is not productive towards trying to resolve matters between our respective clients. Can you please confirm receipt of this letter and your client’s intentions to proceed with the repair. [ 49 ] Accordingly there was a clear intention of the parties based on Mr.

Stachnik’s letter alone to deal with the damages arising from mould contamination at a later date, which is likely consistent with the existence of a standstill agreement between the parties. Additionally what is before me is Mr. Oshry’s clear evidence that has not been challenged or directly contested by Mr. Stachnik. [ 50 ] As such the existence and scope of the potential standstill agreement, which is a question of fact largely, is very much still in issue.

I conclude that such a question of fact should be determined at trial, given that the Statement of Claim was filed on the 28 th day of November, 2006, well within the one year alleged standstill agreement that was reached. Promissory Estoppel [ 51 ] Furthermore promissory estoppel in this case may also apply notwithstanding the limitations defence, as stated in Bharwani v Chengkalath , 2008 ABCA 148 at paragraph 24 : 24 In Brar v. Roy , 2005 ABCA 269 , 371 A.R. 290, this Court applied the principles in Kenora in confirming that promissary estoppel in that case precluded reliance upon a limitations defence.

It held that more explicit language would be required in the Limitations Act to exclude the application of promissory estoppel. [ 52 ] Arguably promissory estoppel as defined in Brar v Roy , 2004 ABQB 383 as follows in paragraphs 19-20, and 25 may apply here: 19 The existence and scope of a Standstill Agreement is a question of fact which the Court may infer based on the words and conduct of the parties. 20 A Standstill Agreement obliges a Plaintiff to take no further prejudicial steps in consideration of ongoing settlement negotiations Wasyleshko v. Chamakese, [1999] A.J. No. 77 (Alta.

C.A.) at para. 3 . ... 25 The Plaintiff believed that the Defendant had accepted liability for the accident and that negotiations would continue in the future resulting in a settlement. The Defendant is estopped therefore from relying on the relevant limitation period. Is this a Case to which the Modern

Summary Judgment/Summary Dismissal Rules Should Apply To [ 53 ] Windsor v Canadian Pacific Railway Ltd. , 2014 ABCA 108 at paragraphs 13 and 14 enumerates from the Alberta process point of view the Supreme Court of Canada’s current approach with respect to

summary judgment: 13 This modern trend has now been confirmed in Hryniak v. Mauldin : 1 Ensuring access to justice is the greatest challenge to the rule of law in Canada today. Trials have become increasingly expensive and protracted. Most Canadians cannot afford to sue when they are wronged or defend themselves when they are sued, and cannot afford to go to trial. Without an effective and accessible means of enforcing rights, the rule of law is threatened.

Without public adjudication of civil cases, the development of the common law is stunted. 2 Increasingly, there is recognition that a culture shift is required in order to create an environment promoting timely and affordable access to the civil justice system. This shift entails simplifying pre-trial procedures and moving the emphasis away from the conventional trial in favour of proportional procedures tailored to the needs of the particular case.

The balance between procedure and access struck by our justice system must come to reflect modern reality and recognize that new models of adjudication can be fair and just. 3

Summary judgment motions provide one such opportunity. ... 4 In interpreting these [new

summary Judgment] provisions, the Ontario Court of Appeal placed too high a premium on the "full appreciation" of evidence that can be gained at a conventional trial, given that such a trial is not a realistic alternative for most litigants. In my view, a trial is not required if a

summary judgment motion can achieve a fair and just adjudication, if it provides a process that allows the judge to make the necessary findings of fact, apply the law to those facts, and is a proportionate, more expeditious and less expensive means to achieve a just result than going to trial.

5 To that end, I conclude that

summary judgment rules must be interpreted broadly, favouring proportionality and fair access to the affordable, timely and just adjudication of claims.

Summary judgment is now an appropriate procedure where there is no genuine issue requiring a trial: 49 There will be no genuine issue requiring a trial when the judge is able to reach a fair and just determination on the merits on a motion for

summary judgment. This will be the case when the process (1) allows the judge to make the necessary findings of fact, (2) allows the judge to apply the law to the facts, and (3) is a proportionate, more expeditious and less expensive means to achieve a just result. The modern test for

summary judgment is therefore to examine the record to see if a disposition that is fair and just to both parties can be made on the existing record. 14 While Hryniak v. Mauldin applied Ontario R. 20, the principles stated in it are consistent with modern Alberta

summary judgment practice as set out in Alberta R. 7.3: 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 following grounds: (

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

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

c) the only real issue is the amount to be awarded. Ontario R. 20 and Alberta R. 7.3 are both procedures for resolving disputes without a trial (as compared with Alberta's

summary trial procedure which is a form of trial). As in Ontario, viva voce evidence may exceptionally be allowed in chambers applications: R. 6.11(1) (g). New R. 7.3 calls for a more holistic analysis of whether the claim has "merit", and is not confined to the test of "a genuine issue for trial" found in the previous rules. Since one of the objectives of class proceedings is to provide affordable access to justice, these principles relating to

summary judgment are applicable to the class procedure as well. [ 54 ] The procedural history of this case has been very lengthy: 1. The action was commenced by Statement of Claim filed November 28, 2006 as Action No. 0603 14851. 2. The Statement of Claim was amended by Consent Order dated September 30, 2008. The Amended Statement of Claim was filed on the same date, 3. Statements of Defence were filed on the following dates: Bendle Glass Co.

(1975) Ltd. April 19, 2007 The Owners: Condominium Plan No. 8321384 November 27, 2008 Rehau Industries Inc. November 26, 2008 Qualiglass Windows & Doors Ltd. November 19, 2009 4. On September 22, 2010, counsel for the Respondent brought an application to consolidate this action with Queen’s Bench Action No. 0403 09999. 5. The two actions were consolidated by Order of the court dated September 29, 2010. 6. Questioning for Discovery of the Plaintiff in the consolidated action was conducted June 22, 2012. 7. On July 30, 2013, the Plaintiffs brought an application seeking various forms of relief including:

a) An Order requiring the Respondent to make arrangements for DFT to attend at the Plaintiffs’ unit to assess the mould;

b) An Order requiring the Respondent to undertake all work and recommendations for mould remediation as identified by DFT;

c) An Order compelling various Defendants, including the Respondent, to answer undertakings. 8. The Application was supported by an Affidavit of Mr. Feldman Affirmed July 30, 2013 in which he mistakenly deposed that mould had initially been discovered in the Unit in late 2002. 9. Mr. Feldman was questioned on his Affidavit on October 9, 2013. 10. On October 21, 2013, the Respondent filed an application for

Summary Dismissal on the basis that the action had been filed beyond the two year-limitation period prescribed by the Limitation of Actions Act . 11. The Application was supported by the Affidavit of Marvin Mrychko sworn October 11, 2013. 12. The Respondent’s application for

Summary Dismissal was heard by the Master in Chambers on August 25, 2015. The Application was granted. 13. The Plaintiffs appealed that decision by way of a Notice of Appeal filed September 4, 2015.

[ 55 ] I note that the Condominium Corporation has brought this application for

summary dismissal more than seven years after the Statement of Claim was filed, and that I am now hearing this appeal more than nine years after the Statement of Claim was filed. The Condominium Corporation Statement of Defence raised their limitation argument in paragraph four in its Statement of Defence filed eight years ago. The Condominium Corporation obtained an order consolidating two actions together more than three years ago. [ 56 ] The modern

summary judgement/summary dismissal procedures are essential to the effective and timely litigation of matters, given the significant demands on court systems in Alberta. However it is difficult to see in this case after all the years that have passed in this case already how there can be a timely and just adjudication of the claims herein other than the parties proceeding to trial expeditiously, and the Plaintiffs having their day in Court.

Conclusion [ 57 ] The Plaintiffs’ appeal from the decision of the Master is allowed on the basis that there is “merit” to the Plaintiffs’ claim that should proceed to trial notwithstanding the Defendant Condominium Corporation’s limitation arguments. Heard on the 24 th day of March, 2016. Dated at the City of Edmonton, Alberta this 14 th day of April, 2016. Donald Lee J.C.Q.B.A. Appearances: Allan Garber Allan Garber Professional Corporation for the Plaintiffs Daniel C. P. Stachnik, Q.C.

Miller Thomson LLP for the Defendant Owners: Condominium Plan 8321384 (Grandview Ridge Condominium Corporation) _______________________________________________________

Corrigendum of the Reasons for Judgment of The Honourable Mr. Justice Donald Lee _______________________________________________________ We have changed the judgment by changing the date in paragraph 13 from November 23, 2015 to November 23, 2005.