Infante v Dzogov, 2016 ABQB 41

Court of Queen ’ s Bench of Alberta Citation: Infante v Dzogov, 2016 ABQB 41 Date: 20160120 Docket: 1201 05247 Registry: Calgary Between: Thelma M. Infante and Silvestre Infante Appellants - and - Mussa Dzogov, Gilbert S. Lumaban, Marietta P. Lumaban, and R. Michael Birnbaum Respondents Corrected endorsement: A corrigendum was issued on January 22, 2016; the corrections have been made to the text and the corrigendum is appended to this Memorandum of Decision. _______________________________________________________ Memorandum of Decision of the Honourable Madam Justice C.L. Kenny _______________________________________________________

Appeal from the Judgment by J.T. Prowse, Master in Chambers Provided Orally the 24 th day of February, 2015 ( Docket: 1201 05247) Overview [ 1 ] The Plaintiffs appeal a Master’s decision granting

summary dismissal of their claim against their former lawyer for his allegedly negligent advice relating to a real estate transaction. The Master granted

summary dismissal on the basis that the limitation period had expired. He found the Plaintiffs knew or ought to have known of their claim against the lawyer more than two years before filing their Action. For the reasons that follow, this Court reverses the Master’s decision and finds there is uncertainty on material facts in the record about when the Plaintiffs discovered their claim sufficient to deny granting

summary dismissal. A full trial is required to fairly and justly determine the limitation period issue in this matter. Background A. Facts [ 2 ] Thelma Infante and Silvestre Infante (“the Infantes”) entered into an agreement with their friends Gilbert Lumaban and Marietta Lumaban (“the Lumabans”). The Infantes lent the Lumabans a sum of approximately $30,000 (“the Loan”), which, in addition to financing from the Scotia Mortgaging Corporation (“Scotia”), the Lumabans used to purchase a home. [ 3 ] The Infantes state that they retained Mr.

Birnbaum in May 2007 to represent and advise them with respect to the loan to the Lubamans. Mr Birnbaum also represented the Lubamans in this transaction. The version of the agreement prepared by Mr Birnbaum includes a

section acknowledging that they have been advised to seek independent legal counsel. [ 4 ] The Infantes state that Mr Birnbaum advised them to accept a registered ownership interest on the title to the home as protection for the loan they had made to the Lumabans and they followed that advice. The Defendant submits that it was Mrs. Infante’s idea to go on title to protect their investment.

Mr Birnbaum registered the Transfer of Land subject to the Scotia Mortgage. [ 5 ] The Infantes received a Demand Letter from McLeod & Company LLP for the arrears in monthly payments on the Lubamans’ mortgage on September 28 th , 2009. The Infantes’ faxed Mr. Birnbaum a handwritten letter from Mrs Infante and the Demand Letter on September 30 th , 2009 . They state that they contacted Mr Birnbaum because they did not understand why they would receive a Demand Letter if they were not on the Lumabans’ mortgage. The Infantes state that Mr Birnbaum never replied to their inquiry.

Mr Birnbaum has filed no evidence in this regard. [ 6 ] The Infantes then made arrangements with the Lumabans to pay the arrears by loaning them a further amount of money to do so. The Infantes believed that the issue was dealt with, and they left the country in December 2009 for the Philippines, returning in March 2010. The Lumabans never paid the amount owing, as had been arranged. [ 7 ] The Infantes were served with a Statement of Claim at the end of March 2010.

The Statement of Claim, filed by Scotia Mortgage Corp. on January 14 th , 2010, alleged that the Infantes were liable for defaults on the Scotia Mortgage under section 58(1) of the Land Titles Act , RSA 2000, c L-4. The Infantes state that they called Mr Birnbaum after being served with the Statement of Claim, that he told them he could not act for them, and that he referred them to other counsel. They state that he did not inform them that they may have a claim against him because of his advice about the transaction with the Lumabans.

[ 8 ] The Infantes met with another lawyer, Charlotte Christopherson, to try to get help with their situation in April 2010 and again in June 2010. According to the Infantes, Mr Birnbaum’s involvement and potential liability was not discussed with Ms Christopherson until the second meeting on June 2 nd , 2010. In mid-May, between the first and second meetings with Ms Christopherson, the Infantes met with another lawyer, Charles Hotzel.

According to them, it was at this meeting with Mr Hotzel in mid-May 2010, that the Infantes first became aware that they had liability to Scotia Mortgage Corp. under the mortgage, and that they might have a claim against Mr Birnbaum because of the advice he gave them. [ 9 ] The Infantes state that in June 2010, they paid approximately $34,000 to bring the Scotia Mortgage into good standing. In November 2010, the Infantes ceased their ownership interest in the home, and Mussa Dzugov became a registered owner alongside the Lubamans.

Dzugov and the Lubamans defaulted on the mortgage and in August 2011, a deficiency judgment of $112,002.65 plus costs was made against the Infantes.

The Infantes have paid this amount. [ 10 ] A Statement of Claim naming Mr Birnbaum as a Defendant was filed on April 28 th , 2012. [ 11 ] The Infantes have sworn by way of affidavit evidence that they did not have an understanding of the nature of Scotia’s claim against them at the time that they received it, nor did they have an understanding of their potential claim against Mr Birnbaum at that time. [ 12 ] The Infantes swore that as immigrants from the Philippines, English is their second language, they have limited legal knowledge, and that they had never been sued before the action brought against them by Scotia Mortgage Corp.

The Infantes have obtained default judgment against the Lumabans and Dzugov. B. Master’s

Summary Judgment Decision Below [ 13 ] Mr. Birnbaum sought

summary judgment to dismiss the claim against him on the basis that either the delivery of the Demand Letter in September 2009 or the service of the Statement of Claim on March 31 st , 2010 gave the Infantes full knowledge of the existence of their claims against him and that the limitation period began to run as of one of those dates. At or shortly before the Application for

Summary Judgment, Mr Birnbaum argued that discovery of the claim actually took place in October 2009 during a conversation between Mr Birnbaum and Thelma Infante. [ 14 ] On February 24 th , 2015, Master Prowse found that the September 30 th , 2009 letter from Thelma Infante to Mr Birnbaum revealed that the Infantes had knowledge of their action against Mr Birnbaum before April 28 th , 2010 – specifically that they knew or ought to have known about the claim in December 2009.

He reached the date of December 2009 by finding that the Infantes were allowed “reasonable time” to obtain legal advice after receiving the letter in September 2009. [ 15 ] Master Prowse summarily dismissed the Infantes’ claim on the basis of the “new grounds.” C. New Evidence [ 16 ] Master Prowse did not have the benefit of reviewing the Affidavit of Thelma Infante sworn April 30 th , 2015, in making his decision. This Affidavit was sworn in response to the “new grounds” upon which the Defendants argued the Application.

That Affidavit outlines the following positions of the Appellants: - The Defendant, Mr Birnbaum, did not respond to the Plaintiffs’ fax in September 2009, which enclosed the Demand Letter from Scotia Mortgage Corp; - The Infantes then concluded that the problem with Scotia bank was non-payment of the monthly mortgage payments. They contacted the Lumabans, who told the Infantes that they did not have enough funds to pay the arrears, but that if the Infantes lent them further funds, the issue would be resolved; - The Plaintiffs lent the Lumabans the additional funds in order to pay the mortgage arrears.

They then went to the Philippines for approximately 4 months, believing that the problem was resolved. They left in December 2009 and returned in March 2010;

- Upon their return, the Infantes were contacted by a process server and served with a Foreclosure Action; - Mrs Infante called Mr Birnbaum, who informed her that he could not act for her any longer and referred the Infantes to other counsel; - Mr Birnbaum did not inform Mrs Infante that they may have a legal action against him or that he may have made an error in advising them; - Mrs Infante explains that she was confused during the Questioning in June 2014; - The Infantes are immigrants from the Philippines with no understanding of the Canadian legal system and a limited understanding of English; - Mrs Infante is certain that she did not speak to Mr Birnbaum about the issue of the demand letter until after their trip to the Philippines.

Argument A. Plaintiffs’ Argument [ 17 ] The Infantes appeal the Master’s decision on the following grounds: - That there was no amendment to the Notice of Application, and no notice to the Plaintiffs that the Defendant would be amending the Application; - That the Plaintiffs received the Defendant’s new brief only shortly before argument took place; - That the motion was argued based on Rule 7.2 (admissions) and not Rule 7.3, as the Plaintiffs had expected.

The Affidavit evidence of the Plaintiffs focused on the grounds laid out in the original Notice of Application, which centred on Rule 7.3; - That the Plaintiffs objected at the time, arguing that they had no opportunity to respond to these new arguments; - That Rule 6.3(2)(

b) holds that the moving party must state the grounds for an application, and the grounds stated in the Notice of Motion holds that the discovery date was March 2010; - That the application proceeded despite the above was procedurally improper and allowed Mr. Birnbaum to gain unfair advantage; - That it would not be prejudicial to the Defendant to enforce these rules, as there was opportunity for the Defendant to enter a new or amended Notice of Application; - That the Application does not reference any admission of fact as required by Rule 7.2(a); - That there was no notice to the Respondent that the Application would be supported by other material.

B.

Defendant’s Argument [18] The Defendants argue that the appeal ought to be dismissed on the following grounds: - That the Infantes knew that they had been injured in September 2009; - That this is clear because they wrote that they want to solve the problem of being “included in the liability, even [sic] we are not the responsible person” in their letter faxed September 30th, 2009; - Mr Birnbaum gave the Infantes no legal advice in September 2009, and gave them referrals to other counsel at that time, asopposed to after they received the Statement of Claim in 2010; - They had a duty at that time to take reasonable steps to discover their claim; - The Infantes ought to have known at that time that they had a claim – actual knowledge is not required; - The Infantes had not signed a mortgage, and they therefore should have known that something was wrong when they received theDemand Letter in September 2009; - The Infantes waited too long (8.5 months) before speaking to another lawyer about the problem with their liability; - The Infantes learned that they were liable for the Scotia Mortgage when they were served with the Demand letter in September2009; - That the Infantes understood that they were then liable for the Scotia Mortgage even though the Lumabans had signed themortgage and they had not; - That the assurance from Mr Lumaban that the problem would be solved if the Infantes lent him more money did not postpone thelimitation period; - That the Infantes should have obtained legal advice before they left for the Philippines or while they were away; - That the Infantes were not entitled to wait until a judgment was granted against them before acting.

Analysis A. The Applicable Law 1. Standard of Review [19] When reviewing a Master’s decision, this Court owes no deference and can determine the issue afresh. An appeal from aMaster is a de novo hearing: Canada (Attorney General) v Chak, 2008 ABQB 103; Comcorp Life Insurance Co v Harvard DevelopmentsLtd (1996), (AB KB), 47 Alta LR 97, [1996] AWLD 1129; Discount Auto Sales v Cash Store Inc, 2005 ABQB 212. However, the decision of the learned Master should not be disturbed on appeal unless there is a clear error in the

interpretation of thelaw, a palpable and overriding error of fact, or some other appropriate reason to vary the decision: Matwychuk v Western UnionInsurance Co, [1993] 2 WWR 4 at para 4; rev'd on other grounds (1994), (AB CA), 162 AR 182. 2. Legislation

[20] The Limitations Act, RSA 2000, c L-12, provides as follows in

section 3: 3(1) Subject to

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

i) that the injury for which the claimant seeks a remedial order had occurred (ii) that the injury was attributable to conduct of the defendant, and (iii) that the injury, assuming liability on the part of the defendant, warrants bringing a proceeding, or (b) 10 years after the claim arose, whichever period expires first, the defendant, on pleading this Act as a defence, is entitled to immunityfrom liability in respect of the claim. [21] Hall, J correctly stated the test for

summary judgment in Condominium Corp No 0321365 v Prairie Communities Corp, 2015ABQB 753, at paragraphs 6-8: 6 [...]the decision of the Supreme Court of Canada in Hryniak v. Mauldin, 2014 SCC 7 (S.C.C.), as followed by the Alberta Court ofAppeal in Windsor v. Canadian Pacific Railway, 2014 ABCA 108 (Alta. C.A.) and Whitecourt Power Limited Partnership v. ElliottTurbomachinery Canada Inc., 2015 ABCA 252 (Alta. C.A.). 7 The test for

summary judgment was recently considered by the Alberta Court of Appeal in 776826 Alberta Ltd. v. Ostrowercha,2015 ABCA 49 (Alta. C.A.), at paras 9-13 (Tab 5). The following principles emerge from this judgement: •

Summary judgment can be given if a disposition that is fair and just to both parties can be made on the existing record and if, in light ofwhat 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 no-moving party as to any material and potentially decisivematters — matters which would usually require forensic testing through a trial procedure with viva voce evidence — the moving party'sposition viewed in the round has no merit in law or in fact. • In order for the non-moving party's case to have factual merit, there must be a genuine issue of a potentially decisive material fact in thecase, which cannot be summarily found against the non-moving party on the record. 8 The Court is to ask whether there is any issue of merit that genuinely requires a trial or, conversely, whether the claim or defenceis so compelling that the likelihood it will succeed is very high, such that it should be determined summarily; with a second considerationbeing whether examination of the existing record can lead to an adjudication and disposition that is fair and just to both parties.

Thedecision to grant or deny

summary judgment is an exercise of the chambers judge's discretion, based upon those principles. [22] There has been a cultural shift in Canadian case law toward expanding

summary judgment. In Hryniak v Mauldin, 2014 SCC7, the Supreme Court of Canada stated that

summary judgment ought to be granted where there is no genuine issue requiring trial. Whenthe judge or master is able to reach a fair and just determination on the merits on a motion for

summary judgment, there is no genuineissue requiring a trial: Hryniak at para 63. [23] This Court also has the benefit of a number of judgments from the Alberta Court of Appeal released since Hrnyiak. Theseinclude: Windsor v Canadian Pacific Railway at para 13 [Windsor]; Sherwood Steel Ltd v Odyssey Construction Inc, 2014 ABCA 320 atpara 7-8 [Sherwood Steel]; WP v Alberta, 2014 ABCA 404 at para 26 [WP]; 776826 Alberta Ltd v Ostrowercha, 2015 ABCA 49 at paras9-11 [Ostrowercha]; Whitecourt Power Limited Partnership v Elliott Turbomachinery Canada Inc, 2015 ABCA 252 at para 9[Whitecourt]. [24] While the modern approach to

summary judgment has expanded its applicability, the test for granting

summary judgment isstill high: Stout v Track, 2015 ABCA 10 at para 9; P (

W) v Alberta, 2014 ABCA 404 at para 25; Can v Calgary Police Service (2014),2014 ABCA 322 , 315 CCC (3d) 337 at paras 375 & 402; Access Mortgage Corp

(2004) Ltd v Arres Capital Inc, 2014 ABCA280 at para 45; Orr v Fort McKay First Nation, 2014 ABQB 111 at para 29; Beier v Proper Cat Construction Ltd (2013), 2013 ABQB351; O'Hanlon Paving Ltd v Serengetti Developments Ltd (2013), 2013 ABQB 428; Deguire v Burnett, 2013 ABQB 488 at para 20. [25] On an application for

summary judgment, the court must consider “whether examination of the existing record can lead to anadjudication and disposition that is fair and just to both parties”: Whitecourt at para 9. The court must also consider “whether there is anyissue of merit that genuinely requires a trial, or, conversely, whether the claim or defense is so compelling that the likelihood it willsucceed is very high such that it should be determined summarily”: Whitecourt at para 9.

When the non-moving party’s case bares a“genuine issue of a potentially decisive material fact which cannot be summarily found against the non-moving party on the recordrevealed by the fair and just [summary] process” an issue of merit is established: Ostrowercha at para 11. [26] Where the affidavits or evidence of the parties conflict on material facts,

summary judgment will not be possible, and a

chambers judge cannot weigh evidence or credibility in a

summary judgment hearing: De Shazo v Nations Energy Company, 2005 ABCA 241 at paras 17-18 ; Sherwood Steel at paras 7-8 ; Whitecourt at paras 31, 40-41; Grayton v Lacasse, 2010 ABCA 123 at para 12 . [ 27 ] A trial is in order where a motions judge is not confident that they can fairly decide the issues on the record before them: Templanza v Wolfman , 2016 ABCA 1 at para 20 [ Templanza ] .

A full trial is required where the record cannot be used to fairly decide legal issues that are unsettled, complex, or intertwined with facts: Templanza at para 20 ; Amack v Wishewan , 2015 ABCA 147 at para 36 ; Tottrup v Clearwater (Municipal District No 99) , 2006 ABCA 380 at para 11 . B. Application of Law [ 28 ] The parties’ arguments raised the following issues to be determined: 1. When did the Infantes discover their claim against Mr Birnbaum? 2.

Had the limitation period for their claim expired before they filed the Statement of Claim on April 28 th , 2012? [ 29 ] The master was required to assess whether he was able to decide each of these issues in a just and fair way on the record before him, and whether there was any issue of merit genuinely requiring a trial, or whether the Defendant’s case was so strong that it was very likely to succeed at trial. The master found that he could assess the issues in a fair and just way on the record before him, and summarily dismissed the Plaintiffs’ claim. I do not agree.

I will deal with each of the issues in order. 1. When did the Infantes discover their claim against Mr Birnbaum? [ 30 ] The question of discoverability is central to determining whether the limitation period had expired before the Plaintiffs filed their Statement of Claim. If there is ambiguity on material facts related to discoverability, including the Plaintiffs’ knowledge, then it would be improper to grant

summary judgment on the basis that the limitation period had expired. As the Alberta Court of Appeal explained, it is improper to weigh evidence or make credibility findings in a

summary process: Sherwood Steel at paras 7-8 ; Whitecourt at paras 31, 40-41. [ 31 ] There are a number of contested material facts in the record on the question of what the Plaintiffs knew about a potential claim with respect to Mr. Birnbaum’s advice, and when they knew that information. These contested material facts are relevant to the Court’s ability to grant

summary dismissal to Mr Birnbaum on the basis of an expired limitation period. [ 32 ] There is new evidence before me that Master Prowse did not have in making his decision to grant

summary dismissal. The new evidence presented has added further ambiguity to one of the central issues in Mr. Birnbaum’s application for

summary dismissal – namely when the Infantes discovered their claim. [ 33 ] What the Infantes knew at the material times seems to be limited, if not wholly unclear on the incomplete record before me. It seems that they received a letter demanding that they pay arrears on a mortgage for the Lumabans’ property. They took immediate steps by contacting Mr Birnbaum in the fall of 2009 and received no response.

They made arrangements to pay the arrears by giving the Lumabans the amount owing, which the Lumabans did not pay to Scotia. [ 34 ] The Infantes then left for the Philippines without having received a response from Mr Birnbaum, which their evidence suggests they did because they believed the matter was resolved. There is no evidence before me from Mr Birnbaum to contradict the Infantes’ evidence on that point.

Further, the Infantes did not receive any information explaining that they were liable because the mortgage was in default, or that they would be served with a deficiency judgement, before they left for the Philippines. [ 35 ] When the Infantes returned, they were served with a Statement of Claim from Scotia. The Infantes had never signed the mortgage. It is possible that they did not comprehend why they might be responsible for the Lumabans’ mortgage or that this was related to Mr Birnbaum’s advice.

What knowledge the Infantes possessed and when they possessed it will be for the trial judge to decide. [ 36 ] The facts in this case are somewhat similar to those in Templanza , where the Court of Appeal upheld a decision to grant

summary dismissal where the motions judge below found the Plaintiffs had discovered they had a claim for negligence against their former lawyer more than two years before they filed the claim. However, this case is distinguishable from Templanza in several ways, as noted above. The differences between the record before the court in Templanza and the record before me allow for a different finding on the facts of this case with respect to the limitation period and whether it can be determined summarily.

[37] Further, a higher level of deference was owed to the motion judge’s decision by the Alberta Court of Appeal in Templanzathan this Court owes to the decision of Master Prowse because the law and the facts in that case were not disputed. Significant portions ofthe evidentiary record before me are either disputed or absent.

i) Actual Knowledge [38] The Court of Appeal confirmed that the standard to be applied to discoverability is one of actual knowledge, and not apresumption of knowledge: Gratton v Shaw, 2011 ABCA 175; Photinopoulos v Photinopoulos, 1988 ABCA 352 , [1989] 2WWR 56.

The Defendants have argued that Mrs Infante not only had actual knowledge, but perfect knowledge, after she received theletter in the fall of 2009. [39] However, on the record before me, there was potential for a lack of clear communication between Mrs Infante and counsel inthe June 2014 questioning, and there is a lack of evidence from Mr Birnbaum as to what he told the Infantes or what questions theyasked him during their conversation after the Infantes returned from the Philippines in March of 2010. [40] Master Prowse chose an earlier discoverability date based on a presumption of knowledge, not actual knowledge.

TheTranscripts of the Questioning on Mrs. Infante’s Affidavit of June 6, 2014, do not indicate a clear answer to the question of when sheknew or ought to have known she had a claim against Mr. Birnbaum for his advice. It seems unlikely that if the Infantes knew that theyhad been injured by Mr. Birnbaum’s advice in the fall of 2009, that they would have called Mr. Birnbaum in March 2010 for legaladvice. These are the sorts of considerations that are best left to a trier of fact, as the determination of knowledge possessed is a highlyfact-specific one. [41] Mr.

Birnbaum and the Infantes disagree about when they had the telephone conversation in which he told them he could nothelp them and referred them to other counsel. The Infantes hold that this happened in March 2010 after they received the Statement ofClaim, while Mr. Birnbaum’s counsel has argued that Mrs. Infante’s Questioning implies that the conversation took place in September2009. [42] The Defendant has argued that the Plaintiffs understood that they were liable for the mortgage in September of 2009 eventhough the Lumabans had signed the mortgage and they had not. This is not clear on the record before me.

It is possible that the Infantesthought that their receipt of the letter was a mistake, and no questions were asked that resolved the issue of what they understood orbelieved when they received the Demand Letter. It is also possible that contacting Mr. Birnbaum himself in September 2009 uponreceipt of the letter was an adequate step for the Infantes to take toward discovering their claim, and that his failure to alert them at thattime meant that the clock was not triggered.

These are determinations for the trier of fact to make. [43] It is not clear that the question of actual knowledge for the purpose of determining the date of discoverability was uncontestedon this record. ii) Conclusion on Discoverability [44] It is unclear on the record when Mrs Infante, an immigrant whose second language is English and who works as a janitor, firstknew or ought to have known that she had a potential claim against Mr Birnbaum. There are conflicting dates for the discoverability ofthe claim in the record.

The potential dates of discoverability were the fall of 2009, December 2009, and the spring of 2010. The formertwo dates would result in the expiry of the limitation period, while the latter might not. [45] The Defendant has also argued that the Plaintiffs were not entitled to rely on the assurance from Mr Lumaban, the wrongdoer,that the problem would be solved if they lent him more money, to postpone the limitation period.

However, this case can bedistinguished from Boyd v Cook, as it is not one involving mortgage fraud and Mr Lumaban is not clearly the wrongdoer: 2013 ABCA 27at para 12. [46] As such, the issue of discoverability remains a genuine issue of merit requiring a trial with respect to the Plaintiffs’ claimsagainst Mr Birnbaum. These are issues that can only be fairly and justly resolved by the trier of fact after trial with the benefit of a fullevidentiary record and the ability to weigh the evidence and assess the credibility of the witnesses. 2.

Had the limitation period for their claim expired before they filed the Statement of Claim on April 28th,2012? [47] Determining when the limitation period began to run and when it expired requires determining when the Plaintiffs’ claim wasdiscoverable. As discussed above, the question of discoverability is a genuine issue of merit requiring trial, since there are contestedmaterial facts on the record before me regarding when the Plaintiffs had sufficient information that they had a potential claim againstMr.

Birnbaum. [48] Mr Birnbaum holds that the Infantes ought to have known about their claim in the fall of 2009 and that they waited over 8months before taking any steps, while the Infantes position is that they were only triggered as to their potential liability in late March2010, and that they took appropriate steps to discover their claim by contacting Mr Birnbaum and other counsel shortly after.

[ 49 ] Consequently, whether the limitation period expired before the Plaintiffs’ filed their Statement of Claim is also a genuine issue requiring a trial and cannot be determined summarily on the record before me. Conclusion [ 50 ] For the reasons above, I find that the plaintiffs have shown that their case presents a genuine issue requiring a trial. The Plaintiffs have argued a number of issues which deal with procedural fairness. I find it unnecessary to address those issues in order to dispose of this matter.

Master Prowse did not have the benefit of a full record or of the new evidence presented by the Appellants. A genuine issue merits a fair and just adjudication on a full evidentiary record. Appeal allowed. Heard on the 20 th day of November, 2015. Dated at the City of Calgary, Alberta this 20 th day of January, 2016. C.L. Kenny J.C.Q.B.A. Appearances: Brian N. Clark for the Appellants/Plaintiffs Richard Van Dorp for the Respondents / Defendants Corrigendum of the Memorandum of Decision of The Honourable Madam Justice C.L. Kenny ____________________________________________________________________________

Page: 12: Insert Para No.: [50]