Winship v Stantec Consulting Ltd, 2016 ABQB 468

Court of Queen’s Bench of Alberta Citation: Winship v Stantec Consulting Ltd, 2016 ABQB 468 Date: 20160823 Docket: 0603 09507 Registry: Edmonton Between: Robert Winship Plaintiff - and - Stantec Consulting Ltd. and Keen Engineering Co. Ltd. Defendants Corrected judgment: A corrigendum was issued on September 27, 2016; the corrections have been made to the text and the corrigendum is appended to this judgment.

Corrected judgment: A corrigendum was issued on August 24, 2016; the correction has been made to the text and the corrigendum is appended to this judgment. _______________________________________________________ Reasons for Judgment of the Honourable Madam Justice J.H. Goss _______________________________________________________ Introduction [ 1 ] The Plaintiff, Robert Winship (Winship), brought an action against the Defendants, Stantec Consulting Ltd. (Stantec) and Keen Engineering Co. Ltd. (Keen) for damages for breach of contract, negligent performance of a service, and negligent misrepresentation.

He alleges that the Defendants’ delay in providing him with mechanical design and construction documents (the Engineering Documents) for his dream home caused him to suffer serious financial harm, emotional stress, loss of enjoyment of life, and depression. Winship seeks $2 million in damages.

[ 2 ] The trial commenced in June of this year, nearly a decade after Winship commenced his action. At the close of Winship’s case, the Defendants applied for a non-suit, pursuant to rule 8.20 of the Alberta Rules of Court .

Test on a Non-Suit Application [ 3 ] Rule 8.20 states: At the close of the plaintiff's case, the defendant may request the Court to dismiss the action on the ground that no case has been made, without being asked to elect whether evidence will be called. [ 4 ] The test on a rule 8.20 (non-suit) application is set out in Prudential Securities Credit Corp, LLC v Cobrand Foods Ltd , 2007 ONCA 425 at para 35 , 85 OR (3d) 561: On a non-suit motion, the trial judge undertakes a limited inquiry. Two relevant principles that guide this inquiry are these.

First, if a plaintiff puts forward some evidence on all elements of its claim, the judge must dismiss the motion.

Second, in assessing whether a plaintiff has made out a prima facie case, the judge must assume the evidence to be true and must assign "the most favourable meaning" to evidence capable of giving rise to competing inferences. ... [ 5 ] Our Court of Appeal adopted this test in Capital Estate Planning Corp v Lynch , 2011 ABCA 224 at para 19 , 510 AR 244 [ Capital Estate ]; and recently cited it with approval in Elan Construction Ltd v South Fish Creek Recreational Assn , 2016 ABCA 215 , [2016] AJ No 710 at para11 (QL). [ 6 ] In Capital Estate at para 20 , the Court rephrased the test this way: In short, a non-suit application will fail if the plaintiff has adduced some evidence on each of the essential elements of her claim.

In making this assessment, the trial judge does not weigh the evidence or assess credibility. Furthermore, the trial judge must assume that the plaintiff's evidence is true, and draw all reasonable inferences from it. ... Parties’ Arguments [ 7 ] The Defendants argue that their non-suit application should be allowed because Winship has not made a case for any of his three claims.

They say there is: • no evidence that the parties agreed to a deadline for the provision of the Engineering Documents; • no evidence that the Defendants made any representations regarding the deadline for the provision of the Engineering Documents; • no expert evidence suggesting when the Engineering Documents should have been provided; and • no evidence of damages. [ 8 ] Winship argues that the Defendants’ non-suit application should be dismissed because he has adduced some evidence on each of the essential elements of all three of his claims.

In the alternative, he argues that the non-suit application should be dismissed because he has adduced some evidence on each of the essential elements of at least one of his claims. Non-contentious Facts [ 9 ] At the beginning of the trial, Winship’s counsel provided me with a Notice to Admit Facts, prepared by the Defendants’ counsel, and Winship’s Statement – Reply to the Notice to Admit Facts. These documents were admitted into evidence as Exhibit 1.

Combined with other documents that were made full exhibits during the trial, Exhibit 1 evidences the following non-contentious facts. [ 10 ] On or around August 31, 2003, Winship purchased a parcel of land (the Land) for $104,500. [ 11 ] In or around December 2003, Winship approached Kensington Homes (Kensington), a builder, about building a specialized home and greenhouse on the Land (the Project). [ 12 ] In or around March 2004, Kensington provided Winship with building plans and a $600,000 estimate for the Project.

Winship could not afford the estimate, so he did not proceed with Kensington. [ 13 ] In or around April 2004, Winship approached a second builder, Dabrro Homes Ltd. (Dabrro) about the Project. Winship dealt with Dale Rott (Rott) of Dabrro. He also dealt with George Chrunik (Chrunik) of GC Designs, a design contractor. Winship never entered into a written agreement with Dabrro, Rott, GC Designs nor Chrunik. [ 14 ] On or about January 7, 2005, Winship met with Lindsay Weppler (Weppler) of Keen to discuss Keen’s potential involvement in the Project.

A few days later, on January 10, 2005, Keen proposed that it would provide “mechanical professional services” for the Project for $100 per hour (the Proposal). The Proposal said Keen would “develop a schematic design and scope of work” for Winship to review and sign off on, and then “proceed to complete the detailed mechanical design and construction documents.” The Proposal provided estimates of the time it would take Keen to complete each stage of its work.

It estimated that the “schematic design” would take about four hours, the “energy modelling” would take about fifteen hours, and the “detailed mechanical design and construction

documents” (that is, the Engineering Documents) would take about forty hours. The Proposal noted that “changes in scope may increase the design time required to complete the project.” It did not provide a date by which Keen’s work would be completed: Exhibit 3. [ 15 ] On or about January 17, 2005, Dabrro provided Winship with a $384,769.65 estimate for the Project (the First Dabrro Estimate). The First Dabrro Estimate specified that it was an initial estimate, to be used for financing reasons, and not a final price.

It included a few allowances, one of which was a $30,000 allowance for a heating, ventilation and air conditioning (HVAC) system. There was no mention of geothermal units in the First Dabrro Estimate: Exhibit 2. [ 16 ] In or around February 2005, Winship met with Gerry Gobeil (Gobeil), the principal and co-founder of Infinity Geothermal (Infinity). After talking with Gobeil, Winship decided to use geothermal heating, and involve Infinity, in the Project.

Winship never entered into a written agreement with Infinity nor Gobeil. [ 17 ] On March 14, 2005, Weppler emailed Winship to say she was working on the schematic design options for the Project and would send her report, and some questions, to him later that week. She asked Winship to review the report and provide his feedback.

She also asked Winship to return a signed copy of the Proposal to Keen: Exhibit 16. [ 18 ] On or about March 16, 2005, Winship returned a signed copy of the Proposal to Keen: Exhibit 8. [ 19 ] On March 19, 2005, Weppler sent Winship the schematic design report for the Project (the Schematic Design Report).

The last page of that report set out a number of questions that Weppler required Winship to answer to “assist [Keen] in detailing the intent and design parameters for the systems.” Winship provided responses to Weppler’s questions on March 25, 2005, but noted that he did “not have all the answers yet.” Winship explained that he had been out of town and unable to talk to the builder. He suggested that he and Weppler get together the following week to discuss the Schematic Design Report: Exhibits 10, 11 and 19. [ 20 ] On April 8, 2005, Winship met with Weppler and her colleague, Chad Musselwhite (Musselwhite).

During their meeting, Winship advised Weppler and Musselwhite that he would speak to the builder about getting the electronic plans redrafted. [ 21 ] On May 16, 2005, Winship met with Weppler, Musselwhite, Rott, Chrunik and Gobeil at Keen’s offices (the May Meeting). [ 22 ] On June 22, 2005, Weppler emailed Winship to tell him she had followed up with Chrunik regarding the updated drawings; Chrunik had completed the floor plans and would send them to Keen; the elevations and sections were in progress (based on information Rott had provided about the concrete floor); Keen would use the floor plans to complete load calculations and work with Infinity to complete the heating and ventilation portion; and she would contact Rott to confirm the window glazing information (for use in the load calculations): Exhibit 12. [ 23 ] On July 29, 2005, Musselwhite emailed Winship to ask him to pay his outstanding invoices for professional services “so that [Keen] may proceed to completion on this project.” Winship responded on August 2, 2005.

He complained about Keen’s delay in completing its work and said he had spoken to Weppler that morning and asked if Keen “could get this wrapped up as soon as possible.” Winship also said he would mail Keen the money he owed them that day. Musselwhite responded to Winship’s message the same day. He said, “We will proceed in good faith.

Our aim is to provide you with a set of review drawings next week”: Exhibit 9. [ 24 ] On August 9, 2005, Weppler emailed Winship to tell him she had done load calculations based on his original plans and elevations, the updated floor plans GC Designs provided and the building envelope data Dabrro provided. She then said: Final calculations will be completed once the updated building

section and elevation drawings are provided to Keen. We will then complete updated equipment selections and layouts (coordinated with Infinity Geothermal) based on these final load values. [Chrunik] at GC Designs indicated that he was planning to review the plans with you soon, and that elevations are in progress. We will complete our design as quickly as possible once we receive them: Exhibit 13. [ 25 ] On or about October 4, 2005, Stantec acquired Keen and assumed Keen’s responsibilities under the Proposal. [ 26 ] Musselwhite and Gobeil exchanged emails in February, March and April 2006.

Musselwhite sent Gobeil a message on February 7. He acknowledged that it had been awhile since they had spoken and reminded him about the Project. He said, “We’ve got drawings and a design strategy” but “still need your help with the ground-source bit as long as you are still interested.” Gobeil responded the next day, saying that he had seen Winship the weekend before, Winship was anxious for the Project to move forward, and he would be happy to get involved in the Project.

He agreed to meet with Musselwhite: Exhibit 21. [ 27 ] On February 12, 2006, Musselwhite sent Gobeil a message listing and explaining “the load calculations for the Winship House.” At the end of his message, Musselwhite said, “If you don’t mind, please keep me up-to-date with the progress of your contract discussions with Mr. Winship”: Exhibit 23. [ 28 ] On March 3, 2006, Gobeil sent Musselwhite a message saying he had met with Winship the day before and they had “some questions about the heat loss numbers” they received from Stantec.

Gobeil also said he needed “to know what the cooling loads would be.” In closing, he said: I don’t want to spend a lot of time on this project until we have a signed contract, so I think the best thing would be for you to have another meeting with [Winship] and really iron out the requirements and the heat loss/gain. Once that has been done, we can prepare a quote for [Winship]. [ 29 ] Winship was copied on Gobeil’s message. Musselwhite sent a reply to Gobeil the same day, saying he would call Winship to discuss the loads.

He also offered Gobeil a brief explanation of Stantec’s load calculations: Exhibit 17. [ 30 ] Musselwhite sent Gobeil a follow-up message on March 8, 2006. He said, Winship “mentioned that he had given you a copy

of his own load calculations. Can you please forward a copy of that to me for review?” Musselwhite also confirmed his explanation of Stantec’s load calculations and said he would review Stantec’s work. Gobeil sent Musselwhite a reply the next day, saying, “It just seems that your peak load is high.” It appears that Gobeil attached Winship’s calculations to his message: Exhibit 17. [ 31 ] On or about April 20, 2006, Dabrro provided Winship with a $596,143.19 estimate for the Project (the Second Dabrro Estimate).

Like the First Dabrro Estimate, the Second Dabrro Estimate specified that it was an initial estimate, to be used for financing reasons, and not a final price.

It included a “number of allowances which” were “subject to change upon final pricing and selections.” One of those was a $72,500 allowance for an HVAC system that included geothermal units: Exhibit 5. [ 32 ] On April 21, 2006, Musselwhite sent Gobeil a message saying he had “reviewed the load calculations for the Winship House”, “revised a few things based on discussions with [Winship] about R-values,” and “found a few things in the load calculation that [he] was able to streamline a little.” He then listed and explained the revised results.

At the end of his message, Musselwhite said, “If you don’t mind, please keep me up-to-date with the progress of your contract discussions with Mr. Winship.” Winship was copied on Musselwhite’s message: Exhibit 17. [ 33 ] On April 22, 2006, Gobeil sent Musselwhite a message saying he had submitted an estimate to Dabrro a few weeks before but had not heard anything. He said he would contact Dabrro that week to find out what the situation was.

He also said, “I won’t be spending any more time on this project until we have a signed contract.” Winship was copied on Gobeil’s message: Exhibit 18. [ 34 ] On June 9, 2006, Stantec provided Winship with a set of stamped mechanical drawings (that is, the Engineering Documents). [ 35 ] CIBC was the only potential lender Winship approached about financing for the Project.

Between November 4, 2004 and July 26, 2006, CIBC advised Winship “that a $360,000 mortgage would be the maximum [he] would likely qualify for”: Exhibit 7. [ 36 ] On or about April 20, 2008, Dabrro provided Winship with a $953,473.58 estimate for the Project (the Third Dabrro Estimate). Like the other Dabrro estimates, the Third Dabrro Estimate specified that it was an initial estimate, to be used for financing reasons, and not a final price.

And, like the Second Dabrro Estimate, the Third Dabrro Estimate included a “number of allowances which” were “subject to change upon final pricing and selections.” One of those was a $110,000 allowance for an HVAC system that included geothermal units: Exhibit 6. [ 37 ] In or around the spring of 2010, Winship contacted Julian Szklarz (Szklarz) to ask for his help in selling the Land. [ 38 ] On or about July 28, 2010, Winship sold the Land for $209,000. Trial Testimony and Discovery Evidence [ 39 ] Winship’s counsel called five witnesses at the trial: Winship, Gobeil, Szklarz, Darren Graff (Graff), and Dr.

Alexander Jenkins (Jenkins). Portions of the transcript from the examination for discovery of Robert Kavanagh (Kavanagh), deceased, were also entered into evidence: Exhibit 26. Robert Winship [ 40 ] Winship has been retired for nearly six years. Although he does not have an engineering designation, he had a long career working in the materials engineering field. [ 41 ] Winship testified that he bought the Land (in 2003) expecting to design and build a house/greenhouse on it in the following year or so. In other words, he confirmed that he bought the Land to pursue the Project.

Winship said his idea for the Project dated back to the nineties and that he had done a lot of research on the technology necessary to operate a greenhouse on a year-round basis in Alberta. Winship wanted to use the greenhouse to grow tomatoes, which he would then sell. [ 42 ] Winship said he came up with his own design plans for the Project. He said his plans were like a blueprint; they included the walls, floors, windows, heating and cooling systems, and technology that he wanted to use.

Winship provided his plans to Kensington, and Kensington used those plans to develop its plans (the Kensington Plans). [ 43 ] Winship said that, after deciding not to proceed with Kensington, he talked to Rott, who he described as Dabrro’s officer manager, and met with Chrunik of GC Designs. Winship understood that GC Designs was responsible for preparing Dabrro’s drawings and plans. Winship gave the Kensington Plans to Chrunik. He said Chrunik told him that, if he wanted anything done differently, he would have to tell Chrunik.

Winship also said Dabrro told him to address all issues with Chrunik, who would then raise them with Dabrro. Winship followed this advice, and met with Chrunik on several occasions. He said he did not make or request any major design changes, but Chrunik recommended changes and he agreed to them. During cross-examination, Winship agreed that he asked Dabrro to make two changes to the Kensington Plans: he wanted to use insulated concrete form (ICF) and expand the basement. [ 44 ] Winship said he met with Weppler, and retained Keen, because he needed stamped mechanical drawings for the Project.

He also said he routinely sought the advice of Gobeil, of Infinity, because Gobeil had a good understanding of engineering calculations. [ 45 ] During cross-examination, Winship acknowledged that the Proposal he signed (prepared by Keen) did not include a deadline by which Keen had to complete its work. He also agreed that the Proposal did not require Keen to provide him with project management services. He agreed that Keen’s role was to produce a mechanical engineering plan, based on his house plan. [ 46 ] Winship said Dabrro would have used the Kensington Plans to come up with the First Dabrro Estimate.

He said he could have afforded that estimate. He acknowledged that he knew that the First Dabrro Estimate did not reflect what the Project’s final price would be, and that the final price would depend on the options he included in the Project.

[ 47 ] Winship explained that the heat exchanging pool specifically excluded from all three Dabrro estimates was something that would have been put in after his house was built. He said it was going to be put just outside the greenhouse area and used to heat and cool the greenhouse. [ 48 ] During cross-examination, Winship confirmed that he received the Schematic Design Report from Weppler in March 2005, and provided Weppler with some responses to the questions in that report. [ 49 ] During cross-examination, Winship said he could not recall when he introduced geothermal and Infinity into the Project.

However, he acknowledged that the evidence he gave during his examination for discovery (in December 2006) was that the first time he discussed geothermal and Infinity with Keen was during an April 2005 meeting with Musselwhite and Weppler; and that Gobeil, Musselwhite and Weppler did not meet, or start working together, until the May Meeting. [ 50 ] Winship said he called for the May Meeting because Keen needed more people to discuss the engineering plans with. Winship wanted to make sure that, if Keen had any questions about the engineering plans, they knew who to talk to. He said it wouldn’t always be him.

Winship said Chrunik knew much more about certain details than he did, and Chrunik was much better equipped to provide Weppler with the answers she needed than he was. In cross-examination, Winship also suggested that it was Musselwhite and Weppler who asked Gobeil to do certain things, not him. However, he subsequently agreed that it was him who introduced the various parties to the Project. [ 51 ] During cross-examination, Winship said he thought that, after introducing everyone to each other at the May Meeting, things would go a lot quicker and smoother and that the people involved would be paid.

Winship admitted that he made a number of assumptions about the roles of the various people involved, and that having contracts with each of them would have helped define their roles. [ 52 ] Winship said he gave Weppler the original Kensington Plans the day after the May Meeting (on May 17, 2005). He couldn’t recall what he had given Weppler before that. He said he gave Keen everything they asked for and put Weppler in touch with Chrunik. [ 53 ] Winship was asked what needed to be accomplished, after the May Meeting, in order to get the Project underway.

He answered: Well, we still needed to get the design plans all ready to go, before the end of May because I told the people for Keen Engineering that the contractor, Dabrro Homes, wanted to start building the place and have it finished by the end of 2005, by December. That was the plan. But it all got screwed up in the financing part ... [ 54 ] Winship went on to explain that, because Dabrro wanted to start building at the end of May 2005, they needed the plans from everybody. However, it never happened. They never got everything they required and they never started to build.

Winship explained that, later on in 2005, housing costs went way up and he could no longer afford to build. He couldn’t get the requisite financing from the CIBC. [ 55 ] Winship was asked when he told Keen about the May 2005 building start time. He answered: Well, at [the May Meeting], it was discussed amongst everybody that the plan was to try and start at the end of May so that we had everything finished by the end of the year. Everybody was told at the meeting that was the plan ... But, they never did because there were still issues that had to be resolved.

And then one of the biggest ones later on was my bank telling me that I could no longer afford the place ... Winship did not recall anyone suggesting that the proposed end of May 2005 start time was a problematic deadline. [ 56 ] Winship said he wasn’t sure what the outstanding issues were after the May Meeting, but Dabrro never got their final plans completed to start. Winship said he wasn’t happy about that, but he had no choice.

Then he said, “when they finally got everything going, the costs they submitted were way higher than what the bank would allow me to get.” [ 57 ] During cross-examination, Winship acknowledged that he needed stamped mechanical drawings for financing purposes; that is, it was the bank that required the drawings, in order to provide him with financing for the Project. Winship also acknowledged that he understood that he would have to enter into a contract with Dabrro after obtaining financing.

Finally, he acknowledged that he understood that building permits would have to be obtained before any building could commence. Winship agreed that, at the May Meeting, when Dabrro proposed that building commence at the end of the month, he had no financing in place and no building permits had been obtained for the Project. [ 58 ] Winship suggested that, after the end of May 2005, it was Keen’s work that was holding up the Project. He said that, until Keen came up with their estimates and plans, nothing was going on.

Winship said Dabbro told him they were putting his project on hold, to work on other projects, and they wouldn’t be able to start work on his project until December 2005. Winship hoped all the issues would be resolved by then and that Dabrro would be able to start construction. [ 59 ] During cross-examination, Winship was referred to the email Weppler sent him on June 22, 2005. Winship acknowledged that Keen was still waiting to receive design information from Chrunik at GC Designs at that point. [ 60 ] Winship was also referred to the email Weppler sent him on August 9, 2005.

He acknowledged that Keen was still waiting for information (that is, the updated building

section and elevation drawings) at that time, and that Weppler would have more work to do once she received the information. Winship agreed that he would have met with Chrunik after this to review the plans. He also agreed that, at some point in the fall of 2005, he followed up with Chrunik regarding the status of the elevations, sections and getting the updated drawings to Keen. [ 61 ] During cross-examination, Winship identified a set of plans Chrunik prepared for the Project in January 2006 (Chrunik’s

Plans): Exhibit 14. Winship agreed that Chrunik provided Stantec with updated drawings (with elevations and sections) and the CAD drawings in January 2006. [ 62 ] During cross-examination, Winship acknowledged that he met with Gobeil in March 2006 to discuss the use of geothermal in the Project. Winship admitted that he understood that Gobeil was looking to enter into a contract with him before doing any further work on the Project, but he did not enter into a contract with Gobeil. [ 63 ] Winship said that, when he saw the Second Dabrro Estimate, he knew it was too expensive for him.

He was not in a position to borrow enough money to meet the estimate. In cross-examination, Winship acknowledged the differences between the First and Second Dabrro Estimates. He couldn’t explain why the costs increased so dramatically. However, he acknowledged that the new costs would have reflected the new plans and that any options he added would have increased the costs. [ 64 ] Winship said that, during the time between the Second and Third Dabrro Estimates, the designs never did get completed, so Dabrro could not start to build.

Winship did his best to help everybody overcome the outstanding issues but they were never truly overcome, “because the builder kept putting it off and the price went way up.” When asked why the builder kept putting it off, Winship said, “It must have been because some of the plans weren’t finished and completed so they couldn’t start to build anyway.” [ 65 ] Winship said he and Gobeil thought the Engineering Documents Stantec provided to him in June 2006 were deficient. [ 66 ] During cross-examination, Winship agreed that he did not take any steps to build on the Land, or sell the Land, between December 2006 and July 2010. [ 67 ] Winship said that, after he received the Third Dabrro Estimate, he knew he could not proceed with the Project.

Consequently, he took the money he had in the bank and invested it in lab trailers, which he rented out to various consultants and a few contractors. Winship said this was probably one of the best investments he ever made. He didn’t think his greenhouse business would have been as successful. [ 68 ] Winship confirmed that he sold the Land in 2010. Darren Graff [ 69 ] At all relevant times, Graff worked for Dabrro. He described Dabrro as an energy-efficient, custom, high-end builder. While working for Dabrro, Graff was in charge of estimating and project management.

Project management involved scheduling projects, obtaining development and construction permits, organizing trades and dealing with customers. Graff was trained by Dale (presumably Rott), but then worked on his own. [ 70 ] Graff was referred to the three Dabrro estimates. He testified that he prepared each of them based on the information in the blueprints Winship provided. He could not tell from the estimates whether the blueprints he used for each of them were the same, nor could he recall the blueprints for the Project.

He explained that if the blueprints changed (for example, if there was a change in the home’s square footage), the prices would have changed accordingly. [ 71 ] Graff said Dabrro wasn’t in the business of preparing blueprints. It never did this. Dabrro did refer some of its customers to architects, but Dabrro would not have direct dealings with those architects. That was left to the customer. [ 72 ] Graff explained that he built the three Dabrro estimates using an Excel-based software program. The program did the price calculations.

He was responsible for updating the program’s price page each month, to ensure that it reflected the current market prices for materials and labour. [ 73 ] Graff said the First Dabrro Estimate was based on Dabrro’s standard, or base-level, package. It included work that Dabrro routinely did, and materials that Dabrro routinely used. Graff said the only non-standard item in the First Dabrro Estimate was the stipulation that the under slab insulation was to be “Ayrfoil double layered.” He suggested that, while this was not standard, it was a typical request.

The allowances in the First Dabrro Estimate, including the $30,000 allowance for an HVAC system, were standard. Graff could not explain this item in the First Dabrro Estimate: “Heat exchanging pool not included.” He said it was not a normal line in Dabrro’s standard estimate. He couldn’t remember what it referred to.

Regarding the note at the bottom of the First Dabrro Estimate (explaining that it was an initial estimate, to be used for financing reasons, and not a final price), Graff explained that final pricing was based on a customer’s final selections. [ 74 ] Graff was asked to compare the First Dabrro Estimate with the Second Dabrro Estimate. He noted one significant change in the Second Dabrro Estimate: the “Advantage wall systems ICF” for the garage. He said that selection would probably have cost about 25% more. He also noted that the HVAC system allowance in the Second Dabrro Estimate included geothermal units.

Graff said, assuming the blueprints for the Project did not change, the different prices in the estimates were attributable to the materials selections Winship had made (or indicated he might make) and the fact that the cost of materials and labour increased significantly during “the big boom in Edmonton,” between 2005 and 2008.

During cross-examination, Graff agreed that another difference between the estimates was that the Second Dabrro Estimate provided that the concrete floor would be troweled finish in the basement and on the main floor. [ 75 ] Graff was also asked to compare the Third Dabrro Estimate with the Second Dabrro Estimate. He could not see that anything had changed about how the home would be built.

Assuming the blueprints for the Project did not change, he thought the higher prices and allowances reflected market changes; that is, the increasing costs of materials and labour. [ 76 ] Graff explained what would happen when a potential customer wished to proceed with a project after receiving a Dabrro estimate. He said the customer would sign a contract and pay a deposit to get their project in line to be built. Graff explained that the contracts between Dabrro and its customers were prepared by the National Home Warranty Program, based on Dabrro’s most recent estimate for the project.

Dabrro would not start incurring costs on a project until a Home Warranty contract was signed and the

customer’s deposit was received. Graff would then do a site visit and make efforts to obtain the necessary building permits. He said the permit process usually took between two and eight weeks. [ 77 ] Graff said Dabbro never got to the contract signing stage with Winship. Gerry Gobeil [ 78 ] Gobeil is an engineer. He does electrical and mechanical engineering work through his own engineering company. [ 79 ] Winship’s counsel applied to have Gobeil qualified as an expert on the standard of care of the reasonably competent engineer.

I refused that application, so Gobeil was not permitted to give opinion evidence. [ 80 ] Gobeil testified that he met Winship at a trade show in around 2004. He was running Infinity, a geothermal contracting company, at that time. [ 81 ] Gobeil said that, after they met, Winship contacted him to discuss the Project. Winship told Gobeil he was considering geothermal heating and Gobeil said he would be happy to provide Winship with a quote. Nothing happened for a while after that, and then Winship contacted Gobeil again and said he was proceeding with the Project.

Gobeil couldn’t recall when he started working with Winship, but he estimated that it was a few months after the trade show. [ 82 ] Gobeil recalled attending the May Meeting (on May 16, 2005). He said he was in waiting mode after that because there was no contract in place between Infinity and Winship. Gobeil explained that he did not like to engage in a project without a contract because Infinity needed to know its scope of work, what it was delivering and what the agreed to price was.

Gobeil said he felt uncomfortable discussing a geothermal system design before getting a contract. [ 83 ] Gobeil said his role in the Project would have been that of a contractor. Infinity would have installed a geothermal system designed by someone else. Gobeil said he was never asked to design a geothermal system for the Project; Keen was the designer. Gobeil said he and Winship never entered into a contract because the design was never completed.

Infinity could not provide Winship with a quote without the design, including the load calculations. [ 84 ] Gobeil said Keen (Musselwhite and Weppler) contacted him a few times, saying they were putting together a system for Winship. They inquired about Infinity’s capabilities and indicated they would be working together. However, Infinity never received a contract from Winship and, consequently, it did not install a geothermal system for the Project. [ 85 ] Gobeil also recalled having some direct discussions with the draftsman from GC Designs (Chrunik).

He said they spoke about whether the drawings were available; that sort of thing. Gobeil did not provide GC Designs with any advice about geothermal. He said they were doing the architectural drafting, not producing mechanical or engineering drawings. [ 86 ] Gobeil was referred to his email communications with Musselwhite. He explained that determining load calculations is the first step of designing an HVAC system. He said that process involves looking at a building’s envelope and R-values and examining the efficiencies of the walls, the roof and the windows.

He said you put all that information into a software program to get the heating and cooling loads at a certain temperature. Gobeil said Infinity usually outsourced load calculations. He could not recall doing any load calculations for the Project. [ 87 ] Gobeil said Winship paid him to review the HVAC design plans for the Project. There was no geothermal in the plans he reviewed, and a note on the plans indicated that the geothermal would be done by others. Goebel said the plans he reviewed were at a preliminary stage; they were not issued for construction. He recalled having some questions about the heat loads.

He said Winship had gone to a lot of effort to see if the numbers were valid. He had some discussions with Winship about this, but never did a formal heat loss analysis on the Project himself. [ 88 ] When asked what happened next, Gobeil said there was a big concern about the escalating price of the Project. He did not have much further involvement after that because Winship needed to sort out the budget. [ 89 ] Gobeil confirmed that Infinity submitted an estimate of the price for a geothermal system for the Project to Dabrro (the Geothermal System Estimate): Exhibit 24.

The Geothermal System Estimate was prepared by Gobeil’s business partner and dated March 6, 2006. It outlines the Project’s heating and cooling requirements and how Infinity would meet those requirements. Under the heading “Assumptions,” the Geothermal System Estimate says, “No heat loss statement has been done yet.

The heat loss system is just an estimate.” And, under the “Pricing” heading, it proposes a price ($43,500 plus tax) and says: Should you find this estimate acceptable, the next steps are: • Order a heat loss statement • You review and sign the contract • A project plan is created, your equipment is ordered, and work begins! [ 90 ] Gobeil explained that the Geothermal System Estimate was an estimate for budgetary purposes, and not a quote. It was based on the size of the Project’s rooms and floors. Infinity could not prepare a quote until a heat loss statement was done, usually by a third party.

Infinity did not hire a third party to do a heat loss statement for the Project. Robert Kavanagh (from Exhibit 26)

[ 91 ] On December 12, 2006, Kavanagh was examined for discovery as an officer of Stantec. He confirmed that the work outlined in the Proposal was assigned to Weppler. He said Weppler “was an engineer in training, acting as a mechanical designer,” at the time. [ 92 ] Kavanagh said the Schematic Design Report Weppler provided to Winship in March 2005 contained the schematic design referenced in the Proposal.

He confirmed that the Schematic Design Report was dated March 18, 2005 and that Keen had received a signed copy of the Proposal from Winship two days earlier, on March 16. [ 93 ] Kavanagh said the Schematic Design Report was prepared by Weppler, in conjunction with Musselwhite, a professional engineer. Kavanagh agreed that Musselwhite was charged with overseeing Weppler’s work. [ 94 ] Kavanagh was referred to the questions posed in the Schematic Design Report and the responses Winship provided Weppler on March 25, 2005.

He was then asked, “That’s your understanding, sir, is that between the months of March and May, Ms. Weppler didn’t have the information she needed from Mr. Winship, correct?” He answered, “I never ever did see all the answers.” [ 95 ] When asked about the May Meeting, Kavanagh said he believed the meeting “was an attempt to get everything together to get all the information finalized.” [ 96 ] Kavanagh acknowledged that Stantec’s final product (that is, the Engineering Documents) were provided to Winship in June 2006.

He was then asked, “So between May 2005 and June 2006, you’re not aware of any further delays in that time frame?” He answered, “Not, delays as such. Obviously more information was required.” Later, Kavanagh agreed that it was fair to say that it was “the lack of information [that] was causing delays.” [ 97 ] Kavanagh was referred to an email Weppler sent Chrunik in which she inquired about window sizes.

He was then asked, “[T]hat’s important in terms of calculating the loads, is that correct?” He answered, “Certainly.” [ 98 ] Winship’s counsel and Kavanagh then had this exchange: Q On a project such as this, is it typical to do those calculations right at the beginning or more towards the end of the project or again that depend on – A Well, to a certain extent, the calculations would have been done for the report, the preliminary report. But then they’ve all got to be refined and finalized for the final design.

You can get by with a certain amount of loose information in doing the report but when you’re going to do the final design, you’ve got to have the exact information. Q And perhaps you could educate me. I know very little about load calculations. What key components would be necessary in order for [Weppler] to have done a load calculation in this case, sir, do you know? A Well, I don’t know specifically but this is a unique building. You’ve got a pool which there is questions as to whether it would be used as a heat sink or a source of heat.

There’s a greenhouse which is, according to the documents, for special plants. There’s also this ground duct that is talked about. And then there is the straightforward building materials, the R values of the walls, the floors, et cetera. Key also is the materials that are being used for this house and this house is quite unique in that you’ve got a concrete floor between the main and second floor. This was not your usual tracked (phonetic) home. Q I take it then it’s Stantec’s position again that these final calculations were – [Weppler] wasn’t able to do them for lack of information, correct? A Correct.

Q And because there were ongoing changes, correct? A Or Mr. Winship has not made up his mind about certain things. [ 99 ] After he was referred to a document that is not before me, Kavanagh said it was Stantec’s understanding that Winship wanted to build his house sometime in the summer of 2005 or later. Julian Szklarz [ 100 ] Szklarz testified that he sold the Land to Winship in 2003, and helped Winship sell the Land in 2010. He said Winship got a very good deal on the Land in 2003 because he was one of the first purchasers to buy in the high-end subdivision.

He said Winship also did well when he sold the Land in 2010; however, he noted that the markets continued to go up after Winship sold. Dr. Alexander Jenkins [ 101 ] Jenkins, an economist, was qualified as an expert in economic loss and damages. He testified, and his expert report (prepared in February 2011) was entered into evidence as Exhibit 25. Analysis [ 102 ] I must determine whether Winship has put forward some evidence on each of the essential elements of his claims.

In making that determination (that is, in assessing whether Winship has made out a prima facie case), I must assume his evidence is true, and draw all reasonable inferences from it. See Capital Estate at paras 19 and 20 .

[103] Winship alleges three causes of action: breach of contract, negligent performance of a service and negligent misrepresentation.He claims that the Defendants’ delay in providing him with the Engineering Documents constituted a breach of their contract with him.He also claims that the Defendants’ delay was unreasonable and constituted negligence in the performance of a service. Finally, heclaims that the Defendants’ representations as to the timeframes in which they would provide him with the Engineering Documentsconstituted negligent misrepresentations.

Winship says he has suffered serious financial harm, emotional stress, loss of enjoyment of life,and depression as a result of the Defendants’ alleged wrongful actions. [104] I will now proceed to review the essential elements of each of Winship’s claims and assess whether he has put forward someevidence on each of those elements. 1. Breach of Contract [105] A successful breach of contract action requires “(

a) a contract, (

b) a breach of the contract, and (

c) damages flowing from thebreach”: Becker Developments Ltd v Alberta (1996), (AB KB), 185 AR 20, [1996] AJ No 341 (QL) at para 16(QB). (

a) Is there a contract? [106] The Defendants admit that Keen and Winship had a contract, and that Stantec assumed Keen’s responsibilities under thecontract when it acquired Keen. The contract was formed when Winship accepted the Proposal (that is, Keen’s offer): Statement ofDefence at paras 2-3. [107] The Defendants also acknowledge that, while the Proposal did not fix a time for their performance, they were required toperform their part of the contract within a reasonable time, having regard to the circumstances: Linesteel

(1973) Ltd v APMConstruction Services Inc, 2015 ONSC 5802, [2015] OJ No 4877 (QL) at paras 147 and 149, citing Stamm v Ratz (1990), 37 CLR 233,[1990] OJ No 375 (QL) at para 19 (Dist Ct). Also see Banister Construction Co v Central-Del Rio Oils Ltd, [1972] AJ No 4 (QL) atpara 11 (CA) [Banister], citing Hick v Raymond, [1893] AC 22, Herschell and Watson LJJ. (

b) Did the Defendants breach the contract? [108] Therefore, the first issue for me to determine is whether there is some evidence that the Defendants breached their impliedobligation to perform their part of the contract within a reasonable time. In other words, I must determine whether there is some evidencethat the Defendants failed to provide Winship with the Engineering Documents within a reasonable time.

In determining this issue, I mustexamine the evidence of the relevant circumstances to assess what a reasonable time would have been for the Defendants to provideWinship with the Engineering Documents: Banister at para 12. [109] The circumstances relevant to a determination of whether a party’s “performance has taken place within a reasonable time” are“not limited to what the parties contemplated or ought to have foreseen at the time” they entered into their contract: HG Beale, ed, Chittyon Contracts, 32nd ed (London, UK: Sweet & Maxwell, 2015) at 21-021 [Chitty].

They might also include: any estimate given by the performing party of the time which it would take for it to perform, whether the party for whose benefit therelevant obligation was to be performed needed to participate in the performance, whether it was necessary for a third party to collaboratewith the performing party in order to enable it to perform, and the nature of the cause, or causes of any delay in performance: Chitty at21-021. [110] In this case, there is evidence of the following relevant circumstances: • The Proposal (dated January 10, 2005) estimated that it would take Keen four hours to complete the “schematic design,” fifteenhours to complete the “energy modelling,” and forty hours to complete the “detailed mechanical design and construction documents”(that is, the Engineering Documents). • The Proposal noted that “changes in scope may increase the design time required to complete the project.” • The Proposal did not provide a date by which Keen’s work would be completed. • Winship did not return a signed copy of the Proposal to Keen until mid-March 2005. • A few days later, on March 19, 2005, Weppler sent Winship the Schematic Design Report.

The last page of that report set out anumber of questions that Weppler required Winship to answer in order for Keen to do its work. • On March 25, 2005, Winship provided partial answers to Weppler’s questions and suggested he would not have complete answersuntil he talked to the builder (Dabrro). • On April 8, 2005, Winship met with Weppler and Musselwhite and advised them that he would speak to the builder (Dabrro)about getting the electronic plans for the Project redrafted. • The first time Winship discussed geothermal and Infinity with Keen was during an April 2005 meeting. • The May Meeting took place at Keen’s offices on May 16, 2005.

Winship, Weppler, Musselwhite, Rott, Chrunik and Gobeil wereall in attendance. Winship called for the May Meeting because he knew Keen had to collaborate with, or get information from, thirdparties (Rott of Dabbro, Chrunik of GC Designs, and Gobeil of Infinity) in order to complete its work. • It was Winship who introduced the third parties to the Project. He did not have contracts with any of them, but made a number of

assumptions about the roles they would play. With hindsight, Winship realized that having contracts with the third parties would have helped define their roles. • Everyone at the May Meeting knew that Dabrro wanted to start building at the end of May 2005.

Stantec’s understanding, at least prior to the May Meeting, was that Winship wanted to build his house in the summer of 2005 or later. • On June 22, 2005, Weppler emailed Winship to tell him she had followed up with Chrunik regarding the updated drawings; Chrunik had completed the floor plans and would send them to Keen; the elevations and sections were in progress (based on information Rott had provided about the concrete floor); Keen would use the floor plans to complete load calculations, and work with Infinity to complete the heating and ventilation portion; and she would contact Rott to confirm the window glazing information (for use in the load calculations).

Thus, in late June 2005, Keen was still in a position that it needed to collaborate with, and get information from, third parties in order to complete its work. Winship acknowledged this in his testimony. • On July 29, 2005, Musselwhite emailed Winship to ask him to pay his outstanding invoices for professional services so Keen could proceed with its work. • On August 2, 2005, Winship responded to Musselwhite.

He complained about Keen’s delay in completing its work and said he had spoken to Weppler that morning and asked if Keen “could get this wrapped up as soon as possible.” Winship also said he would mail Keen the money he owed that day. Winship testified that he paid Keen the money he owed, with two $3,000 cheques. • Musselwhite responded to Winship’s message the same day. He said, “We will proceed in good faith.

Our aim is to provide you with a set of review drawings next week.” • A week later, on August 9, 2005, Weppler emailed Winship to tell him she had done load calculations based on his original plans and elevations, the updated floor plans GC Designs provided and the building envelope data Dabrro provided. She then said: Final calculations will be completed once the updated building

section and elevation drawings are provided to Keen. We will then complete updated equipment selections and layouts (coordinated with Infinity Geothermal) based on these final load values. [Chrunik] at GC Designs indicated that he was planning to review the plans with you soon, and that elevations are in progress. We will complete our design as quickly as possible once we receive them: Exhibit 13. • Thus, in early August 2005, Keen was still in a position that it needed to collaborate with, and get information from, third parties in order to complete its work.

Winship acknowledged this in his testimony. • At some point in the fall of 2005, Winship followed up with Chrunik regarding the status of the elevations and sections, and getting the updated drawings to Keen/Stantec. • In January 2006, Chrunik prepared a set of plans for the Project, and provided Stantec with the updated drawings (with elevations and sections) and the CAD drawings. • Musselwhite and Gobeil exchanged emails regarding the Project in February, March and April 2006. o On February 7, Musselwhite told Gobeil that Stantec had “drawings and a design strategy,” but still needed Gobeil’s “help with the ground-source bit.” Gobeil responded the next day, saying he had had a conversation with Winship and “would be happy to get involved in the project.” o On February 12, Musselwhite sent Gobeil Stantec’s load calculations for the Project. o On March 3, Gobeil told Musselwhite that he and Winship had taken a close look at the Project the day before, and had some questions about Stantec’s heat loss numbers.

Gobeil said he also needed “to know what the cooling loads would be.” In closing, Gobeil said he did not want to spend much time on the Project until Infinity had a contract in place.

Gobeil suggested that Musselwhite meet with Winship to “iron out the requirements and the heat loss/gain.” Winship was copied on Gobeil’s message; thus, he was aware that, in March 2006, Stantec still needed to collaborate with, and get information from, him and Gobeil in order to complete its work. o Musselwhite spoke to Winship and then, on March 8, he asked Gobeil to provide him with a copy of the load calculations that Winship did.

Gobeil provided Musselwhite with Winship’s calculations the next day. o On April 21, Musselwhite told Gobeil that he had “reviewed the load calculations for the Winship House,” “revised a few things based on discussions with [Winship] about R-values,” and “found a few things in the load calculation that [he] was able to streamline a little.” He also provided Gobeil with the revised results.

Winship was copied on Musselwhite’s message; thus, he was aware that, in April 2006, Stantec was still collaborating with Gobeil in order to complete its work. o On April 22, Gobeil told Musselwhite that he had submitted an estimate to Dabrro a few weeks before but had not heard anything back. Winship was copied on Gobeil’s message. • When Winship saw the Second Dabrro Estimate, dated April 20, 2006, he knew it was too expensive for him. • Stantec provided Winship with the Engineering Documents on June 9, 2009.

Kavanagh said the Defendants could not complete their work (that is, provide Winship with their final product) before this date because “more information was required” and Winship had “not made up his mind about certain things.” [ 111 ] There is no evidence of the date on which Stantec had all the information it required to complete its work. [ 112 ] In light of the evidence of the relevant circumstances, I agree with the Defendants that there is no evidence that they failed to

provide Winship with the Engineering Documents within a reasonable time. In the Proposal, Keen estimated that its work would takeapproximately sixty hours to complete, as long as the scope of its work did not change. The scope of Keen’s work did change, after itproduced the Schematic Design Report; Winship introduced geothermal and several third parties that he expected Keen to collaboratewith.

Thereafter, Keen (and then Stantec) had to collaborate with, and get information from, Winship and the third parties, in order tocomplete their work. [113] Despite the efforts the Defendants made to obtain the information they required from others, the information was not alwaysforthcoming. Thus, although the Defendants knew about the proposed spring and summer building start dates, their hands were tied. Thetiming of their performance under the parties’ contract depended on the timing of their receipt of the information they required toperform their part of the contract.

In other words, the Defendants could not complete their work until they had the information theyrequired. [114] There is no evidence of the date on which the Defendants had all the information they required to complete their work.However, there is evidence that Musselwhite was still collaborating with Gobeil in late April 2006, in an effort to complete Stantec’swork. Winship had received the Second Dabrro Estimate by then, and knew the Project was too expensive for him.

There is no evidencesuggesting that Stantec’s delay in performance between late April 2006 (when Musselwhite was still collaborating with Gobeil) and earlyJune 2006 (when Stantec provided Winship with the Engineering Documents) was unreasonable. That period, of approximately a monthand a half, is not out of line with the Proposal’s time estimates. [115] The evidence indicates that the Defendants’ delay in performance prior to late April 2006 was attributable to the increasingscope of their work and the fact that they were not being provided with the information they needed to complete their work.

There is noevidence suggesting that the Defendants did not do what they could to prepare the Engineering Documents as they received theinformation they required to prepare them. [116] In conclusion, there is no evidence that the Defendants breached their implied obligation to perform their part of the parties’contract within a reasonable time. (

c) Are there damages flowing from the Defendants’ breach? [117] In light of my conclusion that there is no evidence that the Defendants breached their contract with Winship, I need not assesswhether there is any evidence of damages flowing from such a breach. Winship has not made out a prima facie case for his breach ofcontract claim. 2. Negligent Performance of a Service [118] I will now consider whether Winship has adduced some evidence on each of the essential elements of his negligent performanceof a service claim. [119] A successful action in negligence requires that (

a) the defendant owed the plaintiff a duty of care; (

b) the defendant’s behaviourbreached the relevant standard of care; and (

c) the defendant’s breach caused the plaintiff to sustain damage: Mustapha v Culligan ofCanada Ltd, 2008 SCC 27 at para 3, [2008] 2 SCR 114. (

a) Did the Defendants owe Winship a duty of care? [120] “[A] duty of care in tort may arise coextensively with a contractual duty”: Winnipeg Condominium Corporation No 36 v BirdConstruction Co, (SCC), [1995] 1 SCR 85 at para 23, citing Central Trust Co v Rafuse, (SCC),[1986] 2 SCR 147 at 204-5 [Rafuse]. In Rafuse at 204-5, the Supreme Court explained: 1. The common law duty of care that is created by a relationship of sufficient proximity, in accordance with the general principleaffirmed by Lord Wilberforce in Anns v.

Merton London Borough Council, is not confined to relationships that arise apart from contract.... [T]he question is whether there is a relationship of sufficient proximity, not how it arose. ... [A] common law duty of care may becreated by a relationship of proximity that would not have arisen but for a contract. 2.

What is undertaken by the contract will indicate the nature of the relationship that gives rise to the common law duty of care, butthe nature and scope of the duty of care that is asserted as the foundation of the tortious liability must not depend on specific obligationsor duties created by the express terms of the contract. It is in that sense that the common law duty of care must be independent of thecontract. The distinction, in so far as the terms of the contract are concerned, is, broadly speaking, between what is to be done and how itis to be done.

A claim cannot be said to be in tort if it depends for the nature and scope of the asserted duty of care on the manner inwhich an obligation or duty has been expressly and specifically defined by a contract.

Where the common law duty of care is co-extensivewith that which arises as an implied term of the contract it obviously does not depend on the terms of the contract, and there is nothingflowing from contractual intention which should preclude reliance on a concurrent or alternative liability in tort. ... [emphasis added] [121] In this case, the parties’ contract is evidence that the Defendants owed Winship a duty to exercise reasonable care, skill, anddiligence in performing the services they were retained to perform: Trizec Equities Ltd v Ellis-Don Management Services Ltd, 1998ABQB 1133 at para 419, 227 AR 1 [Trizec], quoting BM McLachlin, WJ Wallace & AM Grant, The Canadian Law of Architecture andEngineering, 2d ed (Toronto: Butterworths, 1994) at 101-102.

More specifically, the Proposal (that Winship accepted) is evidence thatthe Defendants owed Winship a duty to exercise reasonable care, skill, and diligence in providing him with the Engineering Documents.This surely included an obligation to provide Winship with the Engineering Documents within a reasonable time: Banister at para 11. (

b) Did the Defendants’ behaviour breach the relevant standard of care? [122] The next issue to be determined is whether there is some evidence that the Defendants’ behaviour (that is, their delay in

providing Winship with the Engineering Documents) breached the relevant standard of care. The relevant standard of care is that of thereasonably competent engineer: Trizec at para 419. [123] The Defendants argue that expert evidence is required to determine the issue of whether they breached the reasonablycompetent engineer standard, and there is no such evidence (because I denied Winship’s application to have Gobeil qualified as anexpert).

Winship disagrees, arguing that expert evidence is not necessary in this case, as the issue of what a reasonable time would havebeen for the Defendants to provide him with the Engineering Documents is a non-technical issue, or “a ‘question of common sense andfairness on which the court is competent to rule’”: Kelly v Lundgard, 2001 ABCA 185 at para 115, 286 AR 1, quoting Veit J (the trialjudge) in (1996), (AB KB), 189 AR 34 at 41. [124] In Tran v Kerr, 2014 ABCA 350 at para 21, 584 AR 306 [Tran], our Court of Appeal held that, “[w]hen a suit is brought forprofessional malpractice (either in the form of a breach of contract claim, or for negligence) it is customary, and usually necessary, forthere to be expert evidence on the standard of care,” citing Krawchuk v Scherbak, 2011 ONCA 352 at para 130, 106 OR (3d) 598 andKopp v Halford, 2013 SKQB 128 at para 102, 418 Sask R 1.

However, the Court went on to acknowledge that “[t]here are cases wherethe breach of the standard of care will be apparent without expert evidence”: Tran at para 21, citing ter Neuzen v Korn, (SCC), [1995] 3 SCR 674 at paras 44 and 51-2. [125] I do not think the absence of expert evidence on the reasonably competent engineer standard is determinative of the issue ofwhether there is some evidence that the Defendants’ delay in providing Winship with the Engineering Documents breached thatstandard.

I agree with Winship that the issue of what a reasonable time would have been for the Defendants to provide him with theEngineering Documents is one that may be decided in the absence of expert evidence. [126] So, is there some evidence (other than expert evidence) that the Defendants’ delay in providing Winship with the EngineeringDocuments breached the reasonably competent engineer standard? The Defendants say there is not.

It is their position that the evidenceindicates that they provided Winship with the Engineering Documents within a reasonable time, having regard to the circumstances; thatis, having regard to the fact that they lacked the information they required to complete their work.

The Defendants say the evidenceshows that the required information was in the hands of third parties that Winship brought to the Project (including GC Designs, Dabrroand Infinity); that the required information was not forthcoming; and, therefore, that their delay in providing the Engineering Documentsto Winship was attributable to the third parties, and not to any negligence on their part. [127] I agree with the Defendants, for the reasons I gave in

section 1(

b) of this decision. In this case, the circumstances relevant to adetermination of whether there is any evidence that the Defendants breached their contract with Winship are the same circumstances thatare relevant to a determination of whether there is any evidence that the Defendants’ behaviour breached the standard of care of thereasonably competent engineer. My conclusion on both issues is that, having regard to the evidence of the relevant circumstances, thereis no evidence that the Defendants failed to provide Winship with the Engineering Documents within a reasonable time. (

c) Did the Defendants’ breach cause Winship to sustain damage? [128] In light of my conclusion that there is no evidence that the Defendants breached the standard of care of the reasonablycompetent engineer, I need not assess whether there is any evidence of damages flowing from such a breach. Winship has not made out aprima facie case for his negligent performance of a service claim. 3. Negligent Misrepresentation [129] A successful action for negligent misrepresentation requires the following: (

a) a duty of care based on a "special relationship" between the representor and the representee; (

b) an untrue, inaccurate, or misleading representation (that is, a misrepresentation); (

c) negligence, on the part of the representor, in making the misrepresentation; (

d) reasonable reliance, by the representee, on the negligent misrepresentation; and (

e) a detriment (that is, damage) to the representee, resulting from the reliance: Sharbern Holding Inc v Vancouver Airport Centre Ltd,2011 SCC 23 at para 121, [2011] 2 SCR 175, citing Queen v Cognos Inc, (SCC), [1993] 1 SCR 87 at 110 [Cognos]. (

a) Did the Defendants owe Winship a duty of care based on a “special relationship” between them? [130] As I determined above, the parties’ contract is evidence that the Defendants owed Winship a duty to exercise reasonable care,skill, and diligence in performing the services they were retained to perform; and that duty included an obligation to provide Winshipwith the Engineering Documents within a reasonable time: Trizec at para 419 and Banister at para 11. In my view, the parties’ contractis also evidence that the Defendants owed Winship a duty of care based on a “special relationship”.

The fact that the Defendants wereretained to provide Winship with the Engineering Documents is evidence that they ought to have reasonably foreseen that Winship wouldrely on representations they made about the timing of their work; it is also evidence that Winship’s reliance on such representationswould be reasonable: Albionex (Overseas) Ltd v Conagra Ltd, 2011 MBCA 95 at paras 93-95 and 97, 270 Man R (2d) 293 [Albionex],quoting Hercules Management Ltd v Ernst & Young, (SCC), [1997] 2 SCR 165 at paras 22 and 24 and Lewis N Klar,QC, Tort Law, 4th ed. (Toronto: Thomson Canada Limited, 2008) at 237. [131] The duty of care the Defendants owed Winship, based on their “special relationship,” was “a duty to exercise such reasonablecare as the circumstances require[d] to ensure” that their representations were “accurate and not misleading”: Cognos at 121.

Morespecifically, the Defendants had a duty to exercise reasonable care to ensure that their representations about when they would provide

Winship with the Engineering Documents were accurate and not misleading. (

b) Did the Defendants make an untrue, inaccurate, or misleading representation? [ 132 ] The next issue to be determined is whether there is some evidence that the Defendants made an untrue, inaccurate or misleading representation. The Defendants argue there is none.

Winship argues there is some evidence that the Defendants made express and implied misrepresentations. [ 133 ] In making his arguments, Winship relies on the following evidence: • his evidence that, at the May Meeting, held at Keen’s offices, it was discussed amongst everybody, including Musselwhite and Weppler, that the plan was to try to start building at the end of May 2005; • his evidence that he could not recall anyone suggesting that the proposed building start date (of the end of May 2005) was a problematic deadline; • Kavanagh’s evidence that it was the Defendants’ understanding that he wanted to build his house sometime in the summer of 2005 or later; and • the email he received from Musselwhite on August 2, 2005, which said, “Our aim is to provide you with a set of review drawings next week.” [ 134 ] Winship says the evidence indicating that the Defendants failed to advise him that they could not provide him with the Engineering Documents by the end of May 2005 is evidence of a misrepresentation by omission.

Likewise for the absence of any evidence suggesting the Defendants advised him that they could not provide him with the Engineering Documents by the summer of 2005, when they understood that he wanted to start building. [ 135 ] Winship also says that Musselwhite’s August 2, 2005 email is some evidence of an express misrepresentation on the part of the Defendants. He notes that Musselwhite’s message was a response to a message he sent Musselwhite indicating that he was dissatisfied with the length of time Keen was taking to complete its work.

He also notes that Musselwhite’s message did not suggest that Keen lacked the information it required to complete its work, and provide him with the review drawings. [ 136 ] A misrepresentation need not be express or direct; “in appropriate circumstances, implied misrepresentations can, and often do, give rise to actionable negligence”: Cognos at 130-1, citing other authorities.

As the Manitoba Court of Appeal noted in Albionex at para 115 , “when determining whether a representation is untrue, inaccurate or misleading, there is no real difference between an inaccurate representation and a failure to inform.” [ 137 ] I agree with Winship that the evidence he relies on is some evidence that the Defendants made express and implied misrepresentations about when they would provide Winship with the Engineering Documents. (

c) Did the Defendants act negligently in making the misrepresentation? [ 138 ] The next issue to be determined is whether there is some evidence that the Defendants breached their duty to exercise reasonable care to ensure that their representations were accurate and not misleading: Cognos at 125-6 and Albionex at para 116 . In determining this issue, I must examine the evidence of the relevant circumstances. [ 139 ] Again, I refer back to

section 1(

b) of this decision, because the evidence I reviewed in that

section is also relevant to the determination of whether there is any evidence that the Defendants acted negligently in making their alleged misrepresentations (outlined above). [ 140 ] The evidence shows that: • Winship knew the Defendants could not complete their work until they had the information they required to complete it. • Winship also knew that, in order to get the required information, the Defendants would have to collaborate with, and get information from him and the third parties he brought to the Project. • Notwithstanding this, Winship did not bring all the parties together until the May Meeting, which took place on May 16, 2005. • Weppler kept Winship apprised of the progress she made in obtaining the information Keen required from the third parties: June 22, 2005 email. • Weppler followed up with Winship one week after Musselwhite told him that Keen’s aim was to provide him “with a set of review drawings next week.” She outlined the progress Keen had made; explained that Keen required more information from Chrunik; explained that, once that information was received, Keen would have to collaborate with Infinity; and expressed Keen’s desire to complete its work “as quickly as possible” once the required information was received. • Winship did not follow up with Chrunik regarding the information Keen required to complete its work until sometime in the fall of 2005, and Chrunik did not provide Keen with the required information until January 2006. • Musselwhite began collaborating with Gobeil shortly after that, in early February 2006. [ 141 ] In light of the evidence of these relevant circumstances, I cannot conclude that there is any evidence that the Defendants acted negligently in failing to expressly advise Winship that they could not provide him with the Engineering Documents by the end of May

2005, or the summer of 2005. The evidence shows that Winship knew, prior to, and in mid-May 2005, that the Defendants could not complete their work until they had the information they required to complete it and that, in order to get the required information, the Defendants would have to collaborate with, and get information from, him and the third parties he brought to the Project. Moreover, the evidence demonstrates that Winship was kept apprised of the progress Keen was making in obtaining the information it required to complete its work.

It was not negligent for the Defendants to fail to state the obvious; that is, that they could not provide Winship with the Engineering Documents by the end of May 2005, or the summer of 2005, because they did not have the information they required to complete their work. [ 142 ] Nor can I conclude that there is any evidence that the Defendants acted negligently in advising Winship, on August 2, 2005, that their aim was to provide him “with a set of review drawings” the following week.

The evidence shows that Weppler followed up with Winship the following week, with an explanation of why the review drawings were still in progress: Keen could not complete its work until it obtained information from, and collaborated with, the third parties that Winship brought to the Project. There is no evidence that the Defendants breached their duty to exercise reasonable care to ensure that their representations were accurate and not misleading. (

d) Did Winship reasonably rely on the Defendants’ negligent misrepresentation? (

e) Did Winship sustain damage as a result of his reliance? [ 143 ] In light of my conclusion that there is no evidence that the Defendants breached their duty to exercise reasonable care to ensure that their representations were accurate and not misleading, I need not assess whether there is any evidence of reasonable reliance on the part of Winship, or damages flowing from any such reliance. Winship has not made out a prima facie case for his negligent misrepresentation claim. Conclusion [ 144 ] Winship has not made a case against the Defendants.

Consequently, the Defendants’ non-suit application is allowed and Winship’s action is dismissed with costs. Costs [ 145 ] If the parties cannot agree on costs, they may be spoken to within sixty days of the date of this decision. Heard on the 20 th through the 27 th days of June , 2016. Dated at the City of Edmonton, Alberta, this 23 rd day of August, 2016 . J.H. Goss J.C.Q.B.A. Appearances: Hugh G. Slocombe, Natalie Way, Student-at-Law Low, Glenn & Card LLP for the Plaintiff Taryn C. Burnett, Kyle Harder Gowling WLG (Canada) LLP

for the Defendants _______________________________________________________ Corrigendum of the Reasons for Judgment of The Honourable Madam Justice J.H. Goss _______________________________________________________ In paragraph [2] the rule number has been corrected to read 8.20. _______________________________________________________ Corrigendum of the Reasons for Judgment of The Honourable Madam Justice J.H. Goss _______________________________________________________ The style of cause in the citation on page 1 has been corrected to read Winship v Stantec Consulting Ltd.