Condominium Corporation No, 2016 ABQB 63

Court of Queen ’ s Bench of Alberta Citation: Condominium Corporation No 0225118 v Tamarack Ventures Inc, 2016 ABQB 63 Date: 20160127 Docket: 1203 11418 Registry: Edmonton Between: Condominium Corporation No. 0225118 Plaintiff - and - Tamarack Ventures Inc., Span West Construction Ltd., PGA Architects Ltd., Ed Bouthillier and John Doe Defendants Corrected judgment: A corrigendum was issued on February 5, 2016; the corrections have been made to the text and the corrigendum is appended to this judgment. _______________________________________________________ Reasons for Judgment of W. S.

Schlosser , Master in Chambers _______________________________________________________ [ 1 ] This is a Defendant’s

Summary Judgment application based on the ultimate limitation period set out in section 3(1) (

b) of the Limitations Act, RSA 2000, c. L-12. The application was dismissed in court with reasons to follow. The application turns on a fairly fine evidentiary point. The Defendant’s application was opposed by all of the other parties. Authorities 1) 776826 Alberta Ltd. v Ostrowercha , 2015 ABCA 49 2) The Limitations Act, RSA 2000 c L-12 s. 2; 2007 c22

3) Krook v. Cold Lake (City), 2010 ABCA 324 4) Krook v. Cold Lake (City), 2012 ABCA 120 5) Rai v. 1294477 Alberta Ltd. (c.o.b. Vinyl Retro Dance Club) 2015 ABQB 349 6) 1214777 Alberta v. 480955 Alberta Ltd, 2014 ABQB 301 7) Munroe v. Levin, 20l5 ABQB 512 8) Amack v Wishewan, 2015 ABCA 147 9) Attila Dogan Construction and Installation Co. v.Amee Americas Ltd. 2015 ABQB 120 10) Bowes v.

Edmonton (City) 2007 ABCA 347 11) Photinopoulos v Photinopoulos (1988), 1988 ABCA 352 , 92 AR 122 (CA) 12) Milavsky v Milavsky, 2011 ABCA 231 13) Frydman v Pelletier, 2015 ABQB 14) Atlanta Industrial Sales Ltd v Emerald Management, 2006 ABQB 255 15) Windsor v. Canadian Pacific Railway Ltd., 2014 ABCA 108, 94 Alta LR (5th) 301 16) Canada (Attorney General) v Lameman, 2008 SCC 14 at para. 10, [2008] 1SCR372. 17) WP v. Alberta (No.1), 2013 ABQB 295. Facts [2] The Defendant was the structural Engineer for the Plaintiff’s Condominium Complex in Wainwright. The project wascompleted in 2002.

The lawsuit was started July 31, 2012. [3] The Engineer said he sent his

schedule C-2; ‘Assurance of Professional Field Review and Compliance’, to the Architect June26, 2002. The completed

schedule C-2 would normally signal the end of the Engineer’s involvement with the project, subject to anyfollow-up by the Architect and there was none. [4] The Engineer said that the C-2 was resent November 22, 2002. [5] If the C-2 signals the end of the Engineer’s involvement with the project, the date the C-2 was sent is crucial: June 26, 2002is outside the ten year ultimate period; November 22, 2002 is within it. [6] If the C-2 was sent in June of 2002, the July, 2012, lawsuit is about a month out of time. If it was sent in November (perhapsas opposed to simply being resent), the limitation defence will fail.

Course of Conduct [7] The Limitations Act provides: 3(3) For the purposes of subsections (1)(

b) and 1.1)(b), (

a) a claim or any number of claims based on any number of breaches of duty, resulting from a continuing course of conduct or a seriesof related acts or omissions, arises when the conduct terminates or the last act or omission occurs; (

b) a claim based on a breach of a duty arises when the conduct, act or omission occurs; [8] In my view, the Engineer’s involvement with the project constituted a course of conduct for the purposes of 3(3)(a). Forlimitations purposes it is not a case of identifying and isolating discrete acts or omissions over the course of the project, and then startingthe clock with each one. Rather, the ultimate period begins when the Engineer’s involvement with the project terminates. The otherparties argue that the C-2 was deficient and misleading; that the C-2 is itself a breach of the Engineer’s duties.

However you look at it,the timing of it is crucial to the limitations defence. Burden [9] This case is somewhat unusual in terms of burdens. The Limitations Act provides: 3(5) Under this

section (b)The defendant has the burden of proving that a remedial order was not sought within the limitation period provided by subsection (1)

(

b) or (1.1)(b). [ 10 ] If this case were to go to trial, the Defendant (now Applicant) would have to meet this burden on the ordinary civil standard; the balance of probabilities. For the purpose of this application the Defendant/Applicant can show that his position is ‘unassailable’ if he can show that he can plainly discharge the burden imposed on him by section (3)(5)(

b) on the evidence now before the Court. [ 11 ] This lawsuit has gone through disclosure of information (at least to the point where the Affidavits of Records are complete). The evidence is not likely to be any different at trial. The Applicant has sworn an affidavit in support of his application and he has been cross examined on it. For the purposes of this application I am going to assume that the evidence given in his affidavit and the cross examination mirrors the evidence that he would give at trial on direct and in cross.

The assumption for this type of application is also that the parties are putting their best foot forward. [ 12 ] The evidence may be summarized as follows: 1. The Engineer believes he sent the C-2 by fax on June 26, 2002. There is nothing on the document itself to indicate its transmission. There is no fax transmission cover sheet of that date, or anything tangible to corroborate the Engineer’s belief. 2. The Engineer believes the C-2 was sent on June 26 because there is on his file a C-2 signed and dated June 26, 2002. It is his usual practice to send the Certificate on the date that it was completed.

Although the Certificate of Substantial Completion did not come until later (November 21, 2002), the Engineer’s involvement with the project was essentially at an end in June. There was nothing more for him to do unless some follow-up was required by the Architect. 3. The only C-2 on the Architect’s files is dated June 26, 2002, but with a fax cover sheet dated November 22, 2002. There isn’t a C-2 dated November 22, 2002.

The Architect’s counsel notes that the Architect has sworn in its Affidavit of Records that it never had any relevant documents other than the ones listed in the schedules and a C-2 that was faxed on June 26, 2002 is not among them. 4. The Engineer believes that the C-2 must have been ‘re-sent’ on November 22, 2002. He infers that the Architect must have lost or misplaced the earlier copy. 5.

The Architect’s request for a C-2 in November corresponds with the date of the Certificate of Substantial Completion but this fact is neutral in terms of corroborating either version. [ 13 ] On the evidence now before the Court, the balance is nearly even. [ 14 ] The Court has to choose between two versions of events. If the Engineer’s version is correct, his argument is that the June C-2 ended his involvement and that re-sending it in November is de-minimis – at least in terms of extending his course of conduct to within the ultimate period. [ 15 ] There is direct evidence that the C-2 was sent in November.

There is no direct evidence that it was sent in June; only its date and the circumstantial corroboration of the Engineer’s standard practice. [ 16 ] It is not known whether there would be better evidence if this case were started earlier. It illustrates the sort of danger the ultimate period is designed to prevent. [ 17 ] In my view, this evidence does not satisfy the burden imposed on the Engineer by section 3(5) (

b) of the Limitations Act . It comes very close but, in my view, falls just short of the mark. Disposition [ 18 ] The Engineer’s Application for

Summary Dismissal of the claim against him is dismissed. There was no cross-application to have the limitation issue determined once and for all (perhaps via Rule 7.2) so the limitation issue remains a live issue for trial. Heard on the 14 th day of January, 2016. Dated at the City of Edmonton, Alberta this 27 th day of January, 2016. W. S. Schlosser M.C.C.Q.B.A. Appearances:

Paul Greep Reynolds Mirth Richard & Farmer LLP for the Plaintiff Peter Gilchrist Brownlee LLP for the Defendant, Edward Bouthillier Sigurd Delblanc Bryan & Company LLP for the Defendant, PGA Architects Richard Hunka Chatwin LLP for the Defendant, Span West Construction _______________________________________________________ Corrigendum of the Reasons for Judgment of W. S. Schlosser W. S. Schlosser, Master in Chambers _______________________________________________________ The Appearances were revised to correct a spelling error to counsel’s name from Bryan & Company LLP.