Keyland Development Corporation v Rocky View (Municipal District No 44), 2016 ABQB 735

Court of Queen’s Bench of Alberta Citation: Keyland Development Corporation v Rocky View (Municipal District No 44), 2016 ABQB 735 Date: 20161222 Docket: 0401 16761 Registry: Calgary Between: Keyland Development Corporation Plaintiff - and - The Municipal District of Rocky View No 44, the Town of Cochrane, Julian De Cocq and Sandra Wong Defendants Docket: 0701 01325 Registry: Calgary And Between: Keyland Development Corporation Plaintiff - and - Her Majesty the Queen in Right of Alberta Defendant

________________________________________________ Reasons for Decision of the of the Honourable Mr. Justice K.D. Yamauchi _______________________________________________________ I. Introduction [ 1 ] On November 3, 2004, the Plaintiff Keyland Development Corporation ("Keyland") commenced an action against the Town of Cochrane (the "Town"), the Municipal District of Rockyview No. 44 (the "MDR"), the Town’s Chief Administrative Officer Julian de Cocq, and Sandra Wong, a member of the Town’s planning staff. [ 2 ] The statement of claim raises numerous allegations against Mr. de Cocq and Ms.

Wong, the Town, and the MDR, relating to Keyland's efforts to develop a new residential subdivision ("Cochrane Crossing") on property it owned within the Town (the "Lands") from 2000 to 2006. [ 3 ] On February 5, 2007, Keyland commenced a related action against Her Majesty the Queen in Right of Alberta (“HMQ”). [ 4 ] In these applications, which this Court heard over a period of 3 days, the Town, the MDR, and HMQ (collectively, the “applicants”) ask this Court to dismiss Keyland’s actions against them by way of

summary judgment. II. Background [ 5 ] In early 2000, Keyland acquired the Lands from Southland Development Corporation (“Southland”) with a view to subdividing, developing and building residential homes on the Lands. The Lands are located in the Town, south of the Bow River and east of Highway 22. The property to the east of the Lands is owned by John Robinson.

The Lands and the Robinson property are known as the “South Ridge” area. [ 6 ] Immediately to the southwest of the Lands is the Bow Valley High School (“BVHS”), which was being built by the Rocky View School Division No. 41 (“School Division”) when Keyland acquired the Lands. [ 7 ] In December of 1999, there were 2 access points to the Lands. One was an old, one-way bridge over the Bow River, known as the River Avenue Bridge. Obtaining access from the River Avenue Bridge to the Lands had significant challenges, as the existing road, River Heights Rise, was closed and barricaded.

A more direct road would have to go through a parcel of land between the Lands and the River Avenue Bridge owned by the Elliott family. The Elliotts were not amenable to having a road constructed on their land, meaning that Keyland could not build an access road through that parcel. The Town would not permit Keyland to build a road south of the Elliott’s lands because of sloping issues. [ 8 ] The other access point to the Lands was from Highway 22 along River Heights Drive (“RH Drive”).

When Keyland purchased the Lands, the western portion of RH Drive was within the MDR’s jurisdiction, and not the Town’s jurisdiction. Initially, RH Drive intersected with Highway 22, west of BVHS. [ 9 ] Southland, as well as Mr. Robinson, the owner from whom Southland acquired the Lands, had the same difficulty in developing the Lands, viz , access to them. These difficulties were evident as early as 1995, when Mr. Robinson sought to develop the Lands, but was thwarted in his efforts. Although the Town supported Mr. Robinson’s plans, the MDR and the residents along RH Drive opposed them. [ 10 ] Mr.

Robinson sold the Lands to Southland in 1996. After it purchased the Lands, Southland, as well, was thwarted in its efforts to develop the Lands because of inadequate access to them.

Southland obtained conditional subdivision approval from the Town’s subdivision approval authority, the Cochrane Planning Commission (“CPC”), but Southland was dissatisfied with the conditions, which included the following: • resolving access from Highway 22, to the Town’s satisfaction; and • replacing the River Avenue Bridge before first occupancy of phase 1, or immediately provide construction access if access from Highway 22 is unavailable. [ 11 ] Southland began proceedings to appeal these conditions, but did not proceed with the appeal because of its sale of the Lands

to Keyland. [ 12 ] Before it purchased the Lands from Southland, Keyland was aware of the access difficulties that Mr. Robinson and Southland had faced. A letter that Keyland had prepared, dated November 1, 2001, which attached a chronology dated October 29, 2001, includes a reference to Southland’s "many delays, costs and frustrations" in its dealings with the Town, the MDR, and HMQ. As well, Keyland’s consultant, IBI Group, was well-aware of the access challenges, as it had advised Mr.

Robinson during his attempts to develop the Lands, and it had advised the Town during its preparation of the South Ridge Area Structure Plan (“SRASP”) in relation to the Lands. [ 13 ] Development of the Lands was, at all material times, regulated by the Town’s planning policy documents, including its municipal development plan (“MDP”), the SRASP, and a land use bylaw (“LUB”). [ 14 ] Since May of 1995, the SRASP contained the following requirements: • the Lands were accessible from Highway 22 and the River Avenue Bridge, • additional access would be required as development proceeds, including new bridge crossings, • initial access to the Lands would be by the River Avenue Bridge and a connection to the Bow Vista Road, which was the name by which RH Drive was then known, • in the long term, a new Highway 22 connection would be required, • an additional bridge crossing would be required when density approaches one-thousand units, and • transportation infrastructure improvements outside the Town would be the subject of development agreements and negotiations with HMQ, the MDR, and affected landowners. [ 15 ] Since October of 1998, the Town’s MDP required the Lands’ developer to replace the River Avenue Bridge, at the developer’s cost, before it could proceed with development of the Lands.

As well, it required a comprehensive transportation study before any further re-designation of the Lands for development. The other access challenge involved the residents who lived along RH Drive. They opposed any additional traffic along RH Drive. The MDR was also opposed to further traffic along RH Drive. These objections were not new, as they existed long before Keyland acquired the Lands. [ 16 ] HMQ was as the highway authority for Highway 22. The Minister was responsible for the management and control of Highway 22, including the development of all access to and from Highway 22.

HMQ considered the intersection of Highway 22 and RH Drive to be unsafe for increased traffic. HMQ’s position existed well-before Keyland acquired the Lands. [ 17 ] Before Keyland purchased the Lands, it conducted its due diligence as it related to the Lands. IBI Group conducted the due diligence on Keyland’s behalf.

During its due diligence, Keyland argues that it received certain assurances from Mr. de Cocq and Frank Wesseling, the Town’s Director of Planning and Engineering in December of 1999, concerning the timing and nature of various approvals that Keyland required to facilitate its development of Cochrane Crossing.

These included the following: • the Town would “fast track” Keyland’s development applications, and that all necessary approvals would be in place within 6 months; • while the Town’s MDP required the first developer in the South Ridge area to replace the River Avenue Bridge before any development could proceed, the requirements in the MDP were too onerous and they would be changed; • an application was needed to build a new intersection from RH Drive on to Highway 22, but the School Division was working on that application; and • while the residents along RH Drive and the MDR opposed increased use of RH Drive, the MDR could not legally deny access to a public road but, in any event, the Town’s annexation of lands south of the Bow River would be completed, thereby giving the Town jurisdiction and control over RH Drive. [ 18 ] Based on these assurances, Keyland argues that it completed its purchase of the Lands, which closed on March 6, 2000.

Mr. de Cocq and Mr. Wesseling deny that they made any such assurances to Keyland, especially as they related to timing of the various approvals. In particular, they advised Keyland of the past history of attempts to develop the Lands by Southland and Mr. Robinson. [ 19 ] Keyland proposed that it would upgrade RH Drive and build a new intersection and “Stub Road” connecting RH Drive to Highway 22, at its cost. The MDR initially responded favourably to this proposal.

A transportation study by Morasch Transportation Consultants Ltd (“Morasch”) concluded that the proposed upgrades would accommodate additional traffic generated by new residents during the first 5 years of Cochrane Crossing’s development. [ 20 ] On April 17, 2000, IBI Group applied to the Town for subdivision approval, and amendments to the MDP, the SRASP, and the LUB. It also sought approval of the Cochrane Crossing concept plan and approval of phase 1 of the subdivision, which dealt with the upper portion of Cochrane Crossing.

The application sought to defer the additional bridge requirement such that construction would be completed 5 years following the registration of the phase 1 subdivision. The Town’s council was the authority responsible for amending the MDP and the SRASP. CPC was the subdivision authority that could provide subdivision approval. [ 21 ] In May of 2000, IBI Group submitted an application to the MDR to permit Keyland to upgrade RH Drive, and to have the MDR apply to HMQ, on Keyland’s behalf, to allow it to build a new intersection from RH Drive on to Highway 22.

In July of 2000, the MDR advised IBI Group that the design must be done to a major urban collector standard and that it must meet HMQ’s approval. [ 22 ] Keyland made many other applications for various approvals and amendments to existing bylaws. All of these applications

met with the same concerns about access to the Lands, which this Court will discuss further, without addressing the various applications particularly. Throughout, the MDR’s major concern was the use of RH Drive by construction and additional residential vehicles. HMQ’s concern was the safety of access to and from Highway 22. [ 23 ] While Keyland was making its applications for subdivision approval and amendments to the MDP, the SRASP, and the LUB for its proposed development, the School Division was working towards completing construction of the BVHS.

BVHS was constructed in 2000. [ 24 ] The MDR had, at all material times, imposed road bans on RH Drive that restricted the weight of the vehicles that could use the roadway. These road bans were in force before Keyland purchased the Lands. Particularly, the road bans were in force as against the previous owners of the Lands, being the Robinson family and Southland. The MDR was opposed to the re-designation of Cochrane Crossing. In particular, it opposed any developer accessing the lands using RH Drive.

RH Drive was intended to function as a local residential access road, and, since 1995, had automatic 75% road bans. [ 25 ] The School Division wanted to use RH Drive for construction purposes and access. Initially, the MDR opposed this use, as well. [ 26 ] Keyland argues that during a meeting it had with Mr. de Cocq and Mr. Wesseling in August of 2000, it was advised that once the Town’s annexation of RH Drive was completed, access to the Lands from Highway 22 along RH Drive would no longer be an issue.

As well, the timing of the River Avenue Bridge replacement would not be an issue. [ 27 ] Keyland and the School Division wanted access to their properties from Highway 22 via RH Drive. During 2000, there were several meetings involving multiple parties on the subject. HMQ was concerned about the safety of the access from Highway 22 to RH Drive for either BVHS or Cochrane Crossing traffic. [ 28 ] On October 17, 2000, Keyland applied to the MDR to have the MDR apply for a permit from HMQ to construct an upgraded intersection and road seven hundred metres south of the existing intersection (the “Stub Road”).

This would allow for construction vehicles and a relaxation on the MDR’s road ban, as it related to RH Drive. HMQ was in favour of the Stub Road upgrade as an interim solution, but still wanted a long term access arrangement involving Highway 22. The MDR, however, denied Keyland’s request.

Residents who lived on RH Drive were lobbying to preclude additional traffic on RH Drive for construction of Cochrane Crossing and the increase in traffic that would result from the development. [ 29 ] Knowing that the MDR had denied its request to make an application to HMQ for a permit to construct the Stub Road, Keyland hoped that the MDR would approve the School Division’s application to construct the Stub Road. As a result, in October and November of 2000, Keyland asked the School Division to apply to the MDR to upgrade RH Drive and to construct the Stub Road.

To assist the School Division, Keyland provided the School Division with its engineering designs and the work done by the IBI Group for construction of the Stub Road. The School Division and Keyland hoped that the MDR would allow the application if the School Division made the application, instead of Keyland. The MDR denied the School Division’s application. [ 30 ] By November of 2000, Keyland felt that the Cochrane Crossing development was in jeopardy because of the MDR’s refusal to allow the construction of the Stub Road.

In a letter to the Member of the Legislative Assembly for Banff-Cochrane, Keyland said, “The MD’s position is delaying the inevitable and placing many of the stakeholders in jeopardy.” [ 31 ] By June of 2001, the issues regarding access to and from Highway 22 for BVHS and Cochrane Crossing remained unresolved.

Keyland advised HMQ that it may have to abandon the Cochrane Crossing project if safe access could not be found. [ 32 ] By July of 2001, BVHS had already been open for one year and traffic to and from BVHS was continuing to use the interim access arrangement to Highway 22, with elaborate signage at the intersection of highway 22 and RH Drive, that was originally intended to have been used for only 2 months. A safer access was necessary from HMQ’s perspective. To resolve the safety issues for access to and from BVHS, HMQ facilitated a mediation among the MDR, the Town and the School Division.

The Town argues that the sole purpose of the mediation was to resolve the issue of safe access to BVHS using RH Drive. [ 33 ] The mediation took place July 30, 2001, without Keyland. The MDR was not in favour of Keyland’s participation in the mediation, so Keyland was not invited; nor were the residents along RH Drive. [ 34 ] Although the mediation itself was confidential, the fact of the mediation and its results were not.

HMQ and the Town advised Keyland and the IBI Group of the mediation before the mediation took place. [ 35 ] The mediation resulted in a memorandum of understanding entitled “Recommendations for Bow Valley High School Access” (“MOU”). The MOU provided the following: The Municipal District of Rocky View No. 44, the Rocky View School Division No. 41, the Town of Cochrane, Alberta Transportation and Alberta Infrastructure have a common concern to provide safer vehicle access to Bow Valley High School.

The increased enrolment and resulting increase in traffic to Bow Valley High School exacerbates safety concerns and requires immediate action. After exploring several access options, the representatives of the parties agree to recommend to their governing bodies the following: 1(

a) A new access from Highway 22 to River Heights Drive will be built approximately 300 meters south of the existing access as soon as possible. (

b) Upon completion of the new access, the existing River Heights Drive access will be closed.

2 The cost of the new intersection on Highway 22 will be negotiated by the Province of Alberta and the Rocky View School Division. 3 In order to address concerns over the volume and nature of vehicle traffic on River Heights Drive, the parties agree that the town will, as part of any development agreement relating to Cochrane Crossing subdivision: Require a suitable public access road from River Avenue Bridge to Bow Valley High School before development starts; Require a new bridge to be built within five (5) years of commencement of development with irrevocable guarantees; Require the developer to use the old bridge subject to its structural limitations; Encourage phasing of development to promote use of River Avenue Bridge. [ 36 ] The Town and the MDR adopted the MOU and disclosed it to the public.

The MOU was not kept a “secret” from Keyland. [ 37 ] Keyland argues that the MOU was contrary to the Town’s representations that it had made to Keyland, and to the MDP and SRASP. Keyland was under the impression that RH Drive would be used for construction of and access to Cochrane Crossing. As well, it argues that the MOU was contrary to HMQ’s representation that Keyland could use the new intersection and Stub Road that IBI Group had designed.

In other words, Keyland argues that the Town, the MDR, and HMQ had bargained away Keyland’s right of access to RH Drive to secure a more favourable access to BVHS. [ 38 ] In September and October of 2001, Keyland sent letters to the Town and HMQ, respectively, seeking clarification of the MOU’s terms. Specifically, Keyland asked the Town to clarify if the MOU meant that Keyland could not access the Lands for its development of Cochrane Crossing by using RH Drive.

The Town’s response on October 4, 2001, was as follows: The language agreed to in the mediation process does not exclude River Heights Drive from being used as a public access. More to the point, it removes the condition that the Developer provide safe access. What it does allude to is the current standard won’t be changed to accommodate anything more than what is already moving along that road, which is generally light traffic but also includes school buses.

Any traffic falling into this category will be able to use the road. [ 39 ] HMQ’s response on November 21, 2001, was as follows: The Minister believes the mediation process was successful and the affected parties are implementing the resulting agreement.

However, the school board’s decision to hire engineering consultants was not part of the agreement and did not involve the mediators. … Through the mediation process, it was decided to pursue an interim access arrangement for the 2001/2002 school year until a long term access arrangement is realized. … The new access route, which is only to be used for access to the Bow Valley High School and the residences along River Heights Drive, will be under the jurisdiction, control and management of the Municipal District of Rocky View No. 44. [ 40 ] Keyland never applied to the MDR before or after the MOU for permits that would allow its construction vehicles to use RH Drive and the Stub Road. [ 41 ] Keyland argues that the Town continued to express to Keyland that its annexation of the area, including RH Drive, would resolve the access issue, and that the Town would move the subdivision process forward.

Based on these assurances, Keyland concluded that its best course of action was to continue to pursue approval of phase 1 of its subdivision. [ 42 ] As part of its applications, Keyland provided the Town with its transportation studies. On November 20, 2001, the Town advised Keyland that it wanted its own transportation study, and that subdivision approval would be held in abeyance pending completion of that study.

This delay caused Keyland concern, which it expressed to the Town. [ 43 ] In early 2002, the School Division’s consultant advised Keyland that the MDR instructed the School Division to downgrade the Stub Road and RH Drive to a rural standard to maintain a fifty percent road ban. This road ban would restrict potential construction traffic. This was, Keyland argues, contrary to the MDR’s position in 2000, when the MDR insisted that Keyland construct the Stub Road and RH Drive to a highway standard.

The School Division offered to pay for the cost to upgrade the surface and weight capacity of RH Drive, but the MDR refused the School Division’s offer. Instead, the MDR insisted that the Stub Road and RH Drive upgrades be built to a rural standard.

Keyland argues that the MDR did so because it wanted to prevent increased residential and construction traffic. [ 44 ] On February 8, 2002, the Town assured Keyland that the Town’s position remained that RH Drive would be part of the access to Cochrane Crossing and that the jurisdictional issues would be reduced following annexation. [ 45 ] On July 4, 2002, HMQ granted the MDR a “Roadside Development Permit” so that the School Division could construct the new intersection and Stub Road.

The first general condition for that permit provided as follows: The application involves a request for the permanent re-alignment of the Highway 22 / River Heights Drive intersection for school bus traffic destined for the Bow Valley High School and existing local area residents. [ 46 ] Keyland did not receive a copy of the Roadside Development Permit until May 2004. Thus, Keyland was not aware of the conditions until that time.

[ 47 ] Late in 2002, the School Division built the new intersection and Stub Road at the location IBI Group had proposed. Keyland argues that the new intersection and Stub Road were substantially based on the design that the IBI Group had prepared on Keyland’s behalf, that HMQ had previously approved. [ 48 ] The Town passed amendments to the MDP and SRASP in September 2002, and gave first reading to Keyland’s proposed amendments to the LUB on October 15, 2002. [ 49 ] The Town circulated the proposed LUB amendments for comment on November 6, 2002.

On November 25, 2002, HMQ advised the Town that it could not support the proposed amendments because the MOU intended that the new intersection and Stub Road could only be used by existing residents and BVHS. [ 50 ] Between August 2001 and November 2002, HMQ expressed concern about Keyland’s intended use of the new intersection and Stub Road, but HMQ had not foreclosed such use. Further, at no time before November 2002, did HMQ indicate that its concern was based on the MOU. For example, in August 2002, HMQ provided the Town with its views in relation to its consent to the SRASP, by stating the following: 2.

The department recognizes that the access to Highway 22 from River Heights Drive is currently being re-constructed to accommodate the Bow Valley High School. From the information provided, it appears that this new intersection of River Heights Drive and Highway 22 is intended to provide short-term access to the plan area. The use of this new access is not acceptable to Alberta Transportation, without some form of traffic study that has been completed by a qualified professional and accepted by the department. 4.

If the Town wishes Ministerial consent for the SRASP, the document should be forwarded to this office prior to final reading. [ 51 ] In 2002, the Town and the MDR began formal talks concerning the annexation of the MDR lands into the Town. These lands included, among other areas, RH Drive and the land along RH Drive between Cochrane Crossing and Highway 22. The Town and the MDR entered into an annexation protocol agreement, which would govern the annexation process. The parties agreed that the annexation mediation proceedings would be confidential.

However, the fact that the mediation was taking place was not a secret and the resulting annexation agreement was publicly disclosed.

On October 18, 2002, the parties issued a media release describing the goals of the annexation process and announcing a “public input opportunity” that they had scheduled for October 30, 2002. [ 52 ] During the early stages of the annexation process, the Town’s council and the MDR’s council resolved that the processing of all subdivision applications in their respective jurisdictions within the annexation territory would be suspended until after the conclusion of annexation negotiations.

The reason for the suspension was that some decisions reached during the annexation negotiations might directly affect the subdivisions. [ 53 ] On November 12, 2002, the Town’s council passed a resolution in camera that Keyland’s LUB amendment and phase 1 subdivision applications would be postponed until it completed the annexation with the MDR. The Town advised Keyland. Keyland had been aware that an annexation was intended to take place, but was surprised when it learned of this postponement, given the Town’s representations that the annexation process would not adversely affect Cochrane Crossing.

Keyland expressed its concern to the Town with respect to this further delay as follows: The above application was submitted on September 9, 2002. To date we have not received the circulation comments. The time it takes Cochrane to deal with our applications and respond to letters is unnecessarily long and very costly to Keyland. This has affected the financial feasibility of this project substantially. [ 54 ] Keyland argues that it continued to rely on the Town’s representations that the access issues involving RH Drive would be resolved through the annexation.

It learned, however, that one of the basic principles of the continuing relationship between the Town and the MDR was to minimize the impact of the annexation on RH Drive. [ 55 ] HMQ did not take

part in the annexation negotiations and had no role in the development of the resulting agreement. [ 56 ] The Town and the MDR entered into an annexation agreement that the Town approved in principle in May of 2003 (the “Annexation Agreement”). The parties signed the Annexation Agreement on September 9, 2003. The Town and the MDR submitted the Annexation Agreement to the Lieutenant Governor for issuance of an order to annex the land as contemplated by the Annexation Agreement under

section 125 of the Municipal Government Act , RSA 2000, c M-26 [ MGA ]. Order in Council 431/2004 effective July 4, 2004, annexing land was issued. [ 57 ] One of the Town’s objectives of annexation was to address the concern about the MDR's objections to the use of RH Drive for the Cochrane Crossing development. The Town thought it could resolve this concern by bringing RH Drive within its jurisdiction. After annexation the Town was given the ability to manage RH Drive through, among other things, appropriate road bans. The Town did not deploy road bans on RH Drive at any time.

Annexation Agreement ss 13.1 and 13.3 provided as follows: 13.1 [The Town] shall provide a bridge for vehicles traveling between Cochrane lands located north and south of the Bow River and promote the use of the bridge for vehicular traffic rather than River Heights Drive, except as set out in

Part 13 and Clause 14.1 herein. ... 13.3 [The Town] shall restrict South Ridge construction traffic on River Heights Drive to the transportation of large construction equipment and vehicles by permit , until the relevant road use conditions set out in the River Heights structure plan, as outlined in Clause 14.1 herein, have been met. [Emphasis added]. [ 58 ] Thus, at all material times after annexation, Keyland could apply to the Town for special use permits to allow it to use RH

Drive for construction traffic. Keyland never made any such application for any special use permits. Others did, and the Town granted those permits. [ 59 ] The Annexation Agreement restricted construction traffic on RH Drive, and provided that the Town and the MDR would promote the use of a bridge for vehicular traffic, rather than RH Drive. Keyland was troubled by the clauses of the Annexation Agreement that related to RH Drive.

Keyland wrote to the Town expressing the concern that these clauses precluded construction vehicle access along RH Drive, and would force future residents of Cochrane Crossing to use the River Avenue Bridge. The Town responded in a letter dated August 5, 2003, that it expected the majority of traffic generated by the first phases of Cochrane Crossing to use the River Avenue Bridge.

This concerned Keyland, as the Town previously considered that the River Avenue Bridge to be unsafe, and it was only accessible by River Heights Rise, which did not connect to the Lands, and was also unsafe and therefore closed by barricade. [ 60 ] In September 2003, the Town resumed its processing of Keyland’s application to amend the LUB. In a report to the Town’s council regarding those amendments, the Town indicated the following: The recent annexation agreement between the Town of Cochrane and the MD of Rocky View will allow limited access, by permit only, using the existing bridge at River Avenue.

This bridge can be used to bring equipment into the construction area, where the equipment is to remain until the grading and servicing is complete. This construction equipment can then be removed from the site using the existing bridge. Prior to use of the existing bridge, improvements must be undertaken to prepare the bridge for this use.

These improvements will be the responsibility of the developer. [ 61 ] In a subsequent report dated October 29, 2003, the Town quoted Annexation Agreement cls 13.1 and 13.3 and stated that “these clauses are in keeping with a mediated agreement dated July 2001, accepted by the MD of Rocky View, the Town of Cochrane and Alberta Transportation.” [ 62 ] The Town passed the LUB amendments on November 24, 2003. Following the Town’s adoption of amendments to its LUB, it circulated Keyland’s application for phase 1 subdivision approval for comments.

HMQ provided the following comments to the Town in its letter of January 5, 2004: From the information provided, it appears that the proposed subdivision is for Phase 1 of the Cochrane Crossing concept. It appears from this information provided that access for Phase 1 is proposed via Highway 22 by utilizing River Heights Drive. This access route, which includes the recently installed intersection onto Highway 22, was only intended to be used for access to the Bow Valley High School and the residences along River Heights Drive.

This was a key part of the mediation process that occurred between the Rocky View School Division No. 41, the Town of Cochrane, and the Municipal District of Rocky View No. 44. [Emphasis added]. [ 63 ] Accordingly, HMQ declined to support Keyland’s subdivision application. The Town advised Keyland that its consideration of the subdivision application would be put on hold because of the MDR’s request to discuss the subdivision application in the light of the Annexation Agreement provisions.

The Town advised Keyland that it could appeal the deemed refusal of the subdivision application to the Municipal Government Board (“MGB”). [ 64 ] Keyland decided to take this approach. Shortly thereafter, Keyland’s vice-president received a telephone call from the Town’s mayor, who said that if Keyland held off on its appeal, the Town would provide subdivision conditions that would allow Keyland’s subdivision application to proceed. Among other things, the mayor agreed that construction and residential access to Cochrane Crossing would be provided by way of RH Drive.

Based on this, Keyland decided not to pursue its appeal. [ 65 ] On February 18, 2004, CPC provided Keyland with its subdivision approval, which contained conditions. Among other things, the conditions required the Town to restrict construction traffic on RH Drive, and required Keyland to build an access road to the River Avenue Bridge. Keyland appealed this ruling to the MGB. [ 66 ] By a letter dated April 23, 2004, Keyland advised HMQ that Keyland’s legal counsel viewed HMQ as effectively closing RH Drive as an access point to Cochrane Crossing from Highway 22.

Specifically, it stated the following: We have obtained numerous documents confirming that a 3 party agreement [presumably the MOU] exists amongst Alberta Transportation, The Town of Cochrane and The Municipal District of Rocky View #44 for the purpose of eliminating access to Keyland’s property – as described in Alberta Transportation’s letter of January 5, 2004 ... [ 67 ] HMQ confirmed its position by a letter to Keyland dated May 5, 2004, that the new intersection and Stub Road was an interim access arrangement that was intended only to be in place until long-term access arrangement could be approved.

HMQ’s position in this regard was consistent from 2000 through 2004. [ 68 ] The MGB declined to take jurisdiction to hear this appeal, as the parcel of land that was the subject of the appeal was not adjacent to the Bow River. Hence, it found that an appeal would properly be brought before Cochrane’s Subdivision Development and Appeal Board. Rather than appealing to that board, Keyland decided to consolidate the Lands and, on August 24, 2004, re-applied for subdivision approval, so an appeal could be made to the MGB if it was not satisfied with its subdivision approval.

The Town circulated Keyland’s subdivision application for comment. The MDR did not object to the application “provided the provisions of

Part 13 of Town of Cochrane/Municipal District of Rocky View No. 44 Annexation Agreement regarding the South Ridge Area Structure Plan Access and River Heights Drive are adhered to.” HMQ declined to support the subdivision on the basis that the new intersection and Stub Road were only intended for access to BVHS and existing residences along RH Drive. [ 69 ] On October 15, 2004, the Town drafted a report to the CPC concerning Keyland’s subdivision application. The report said, “the annexation agreement between the MD of Rocky View and the Town of Cochrane has placed restrictions on River Heights Drive.” It goes on to say the following:

At present, the only legal access to the area is by way of River Heights Drive. Although River Heights Drive is now entirely within the Town’s jurisdiction, the Town must still adhere to the intent of the annexation agreement… [ 70 ] After quoting Annexation Agreement cls 13.1 and 13.3, the report goes on to say, “these clauses are in keeping with a mediated agreement, dated July 2001, which was accepted by the MD of Rocky View, the Town of Cochrane and Alberta Transportation.” [ 71 ] On October 20, 2004, the CPC provided its tentative approval of Keyland’s phase 1 subdivision with conditions.

Those conditions included the following: 3. Additional access to the Phase I Subdivision is to be obtained by means of a road to be constructed from the River Avenue bridge to the subject property at a location and to a quality satisfactory to the Subdivision Engineer prior to registration; … Notes:

a) The Town of Cochrane may restrict South Ridge construction traffic on River Heights Drive to the transportation of large construction equipment and vehicles by permit , until the relevant road use conditions set out in the River Heights Area Structure Plan have been met. [Emphasis added]. [ 72 ] The difficulty with the condition that additional access to Cochrane Crossing would be over the River Avenue Bridge along a road that Keyland would be required to build prior to construction was that Keyland did not own and could not acquire the land for that road.

As well, access along RH Drive would be restricted until the conditions of the River Heights Area Structure Plan (“RHASP”) had been met. However, the RHASP had not yet been created. In fact, the committee to develop the RHASP would not be struck until October 2005 and its mandate was intended to last until June 2007. [ 73 ] Keyland decided to appeal CPC’s decision. Keyland wanted to know HMQ's position on the use of the new intersection and the Stub Road before the hearing in front of the MGB. On November 4, 2004, Keyland met with HMQ.

At that meeting, the Deputy Minister stated that Keyland could not use the new intersection for construction of Cochrane Crossing or for future residents of Cochrane Crossing.

HMQ then denied saying this in subsequent correspondence, but HMQ’s own minutes of that meeting (first produced to Keyland during the course of this litigation) confirmed HMQ’s stated position that “the existing interim access could not be used by the Cochrane Crossing development.” The minutes explicitly state that HMQ had refused to provide that position in writing. [ 74 ] On December 4, 2004, the Town’s transportation experts, Urban Systems, issued a memorandum concluding that the new intersection and Stub Road would be sufficient for the increased traffic to and from Cochrane Crossing until 2010. [ 75 ] On March 14, 2005, HMQ was provided with a report by DA Watt Consulting, which agreed with the earlier conclusions of Finn Transportation Consultants, that the new intersection and Stub Road could accommodate increased traffic. [ 76 ] HMQ explained the following to the MGB: Due to the mediation agreement for the recent annexation bringing River Heights Drive from the jurisdiction of the MD to the jurisdiction of the Town, the second goal of the original 3-point plan [which was to make interim access arrangements for traffic to the High School and Cochrane Crossing] could not be realized and use of the intersection is now restricted to users of the High School and the existing residents along River Heights Drive. [ 77 ] During the appeal hearing, HMQ advised the MGB that it had a report showing that the new intersection was unsuitable for additional users.

HMQ was, however, unable to produce any such report. Instead, HMQ produced a letter dated the day after it advised the MGB that a study was completed in February of 2005. There was no actual report. [ 78 ] Keyland relied on a Finn Transportation Consultants’ study to argue that the new intersection was safe and adequate for use during construction and by future residents of Cochrane Crossing.

Keyland also argued that the use of the River Avenue Bridge for access to phase 1 would not be feasible because neither Keyland nor the Town had title to the lands necessary to build the required access road, and because the existing bridge might not be able to withstand the anticipated traffic. [ 79 ] Even though the Town’s transportation experts agreed with the Finn Transportation Consultants’ study, the Town took the position that it could not support RH Drive for construction or residential access to Cochrane Crossing, because it was “honouring the terms of the mediated annexation agreement with the MD of Rocky View.” [ 80 ] On May 16, 2005, the MGB issued its decision on Keyland's appeal of the phase 1 subdivision conditions.

The MGB concluded that the new intersection and Stub Road could accommodate traffic volumes in excess of those that would be generated by phase 1 of Cochrane Crossing, and that the intersection was safe to use. It went on to say the following: As the Subdivision Authority, the MGB is not bound by the annexation agreement and was not convinced that the use of River Heights Drive can be legally restricted to only those parties already living along the road and the users of the Bow Valley High School.

Indeed, the annexation agreement carries no status as a statutory plan or other bylaw adopted by the Town and subject to public scrutiny. In the MGB’s view, restrictions on the use of River Heights Drive are not enforceable even if it could be considered legal. [ 81 ] The MGB also found that access to the River Avenue Bridge would be impractical and perhaps impossible. [ 82 ] As such, the MGB deleted the subdivision condition requiring Keyland to build an access road via the River Avenue Bridge.

Instead, the MGB required Keyland to contribute to the cost of any necessary upgrades to RH Drive, something that Keyland had always been willing to do. The Town also attached certain “Notes” to the conditions, one of which indicated that the Town may restrict construction traffic and other vehicles on RH Drive by permit. The MGB held that it did not have authority to rule on the Notes.

Thus, the indication from the Town that access to RH Drive would continue to be restricted remained in the subdivision conditions. [ 83 ] The subdivision conditions, as modified by the MGB, were operative for one year, meaning they would expire on May 16, 2006. [ 84 ] Keyland argues that despite the MGB’s ruling, its use of RH Drive remained in doubt during 2005 and 2006. The MDR maintained its opposition to the use of RH Drive by any additional users, including construction traffic.

Indeed, the MDR continued to assert its position that the Town had committed to restrict traffic on RH Drive. [ 85 ] HMQ also continued to object to Keyland’s use of RH Drive and the new intersection to Highway 22. HMQ maintained that position through at least 2006. [ 86 ] The Town’s stated position was that Keyland would be permitted to use RH Drive. Having heard that promise several times, by 2005, however, Keyland argues that it had doubt that RH Drive was and would remain available for Keyland’s use.

For example, the Town created doubt about its position when it indicated that it would require a further transportation study prior to proceeding with LUB amendments for phase 2 even though several previous transportation studies had confirmed that the new intersection and Stub Road could accommodate traffic well in excess of what was needed to accommodate phase 1 of Cochrane Crossing. [ 87 ] Keyland argues that there were other conditions that attached to the subdivision approval of phase 1 of Cochrane Crossing that had to be met.

Keyland was required to enter into a subdivision services agreement (often called a development agreement) with the Town. That development agreement would cover topics such as an off-site levy Keyland would pay, and the engineering details relating to the roads and sewer system within Cochrane Crossing. Keyland's solicitor indicated that the standard form development agreement would be suitable. The Town disagreed, and said that it would draft a different development agreement, which never occurred, despite numerous requests from Keyland throughout 2005.

The parties never did finalize the development agreement. [ 88 ] Keyland needed certain reports, such as geotechnical and storm water reports, which, it argues, the Town delayed in providing. [ 89 ] In late 2005, the Town passed an off-site levy bylaw that included a levy to collect money for construction of the new bridge. Keyland informed the Town many times that it was unfair to expect Keyland to incur a disproportionate share of the cost of the new bridge.

Yet, the 2005 off-site levy bylaw did so by charging a levy for the new bridge on the basis that only areas south of the Bow River would benefit from the new bridge. Keyland challenged the 2005 off-site levy bylaw, but the court's decision striking that part of the bylaw was not issued until 2007. [ 90 ] As a result of these issues, the conditions that the MGB imposed expired before Keyland could obtain the information necessary to enter into a development agreement with the Town and register the phase 1 subdivision.

Keyland continued to negotiate with the Town after that date, but they never reached an agreement on the development. [ 91 ] Despite these set-backs, Keyland continued to push forward with the Cochrane Crossing development through 2005 and 2006. For example, it pursued finalization of the necessary technical reports, and obtained a grading and stripping permit. It commenced its grading and stripping of the Lands. It used RH Drive to transport the grading and stripping equipment to the Lands without a special use permit.

The Town did not object to Keyland’s use of RH Drive for this purpose. [ 92 ] The MDR continued to oppose Keyland’s use of RH Drive for Cochrane Crossing into November 2005. In a letter to the MDR dated November 4, 2005, the Town advised that Keyland had the right to use RH Drive. Keyland was provided with a copy of that letter. Keyland was sceptical of the Town’s position because in mid-2005, the Town advised Keyland that it would require another transportation study before Keyland could obtain a land use bylaw amendment for phase 2.

Further, Keyland was also made aware that HMQ continued to object to Keyland’s use of the new intersection and Stub Road following the MGB's decision. [ 93 ] Once the subdivision conditions, as modified by the MGB expired, Keyland had been attempting to develop the Cochrane Crossing subdivision for 6 years, but it had faced numerous delays and obstacles. Because of the difficulties Keyland encountered following the MGB's decision, Keyland concluded that trying to work with the Town would continue to be a frustrating waste of time and money. [ 94 ] As a result, Keyland decided to sell the Lands.

It entered into an agreement of purchase and sale on December 6, 2006. As a result, Keyland argues, it was deprived of the opportunity to develop the Cochrane Crossing subdivision, including building and selling homes, and the profit that it would have generated from those activities. [ 95 ] Keyland argues that it was also deprived of the opportunity to enter into the home building market because it lacked a portfolio of recently-built homes. [ 96 ] On November 3, 2004, Keyland filed its statement of claim against the MDR, the Town, Mr. de Cocq, and Ms. Wong.

The claim against the Town and the MDR alleges a breach of duty by restricting Keyland’s access to the Land. The claim further alleges civil conspiracy and misfeasance in public office related to the MOU and Annexation Agreement, and claims that the parties have been unjustly enriched by the use of Keyland’s engineering designs for the new intersection and Stub Road. The statement of claim further pleads negligence and gross negligence, bad faith, wilful misconduct, breach of common law right of access, and misrepresentation. Keyland has discontinued, or intends to discontinue, its claims against Ms.

Wong and Mr. de Cocq. [ 97 ] On February 5, 2007, Keyland filed a statement of claim against HMQ. Keyland claims that HMQ knew of all the alleged breaches that the Town and the MDR had committed, as more particularly set forth in its action against the Town and the MDR. In addition, Keyland claims that HMQ closed access to Highway 22, participated in civil conspiracy, committed misfeasance in public

office, and was unjustly enriched by use of Keyland’s engineering designs in construction of the new intersection and Stub Road. III. Discussion [ 98 ] There are many issues before this Court. The parties have provided this Court with many affidavits to support their arguments, and all parties have provided this Court with their briefs of law, as well as reply briefs. The briefs are extensive. [ 99 ] This Court will begin with a discussion of the limitations arguments.

It will then discuss the nature of the applications, and the standards the applicants must meet to satisfy this Court that they are entitled to the relief they seek. It will then discuss the arguments the parties have presented to determine whether they have met the tests for

summary judgment. A. Limitation of Actions [ 100 ] The sections of the Limitations Act , RSA 2000, c L-12 [ Limitations Act ], that are important for the purposes of this decision are as follows: 1.(e) “injury” means … (iii) economic loss, (iv) non-performance of an obligation, or (

v) in the absence of any of the above, the breach of a duty; (i) “remedial order” means a judgment or an order made by a court in a civil proceeding requiring a defendant to comply with a duty or to pay damages for the violation of a right, but excludes … (iii) judicial review of the decision, act or omission of a person, board, commission, tribunal or other body in the exercise of a power conferred by statute or regulation, or … 3(1) Subject to subsections (1.1) and (1.2) and

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

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

(5) Under this section, (

a) the claimant has the burden of proving that a remedial order was sought within the limitation period provided by subsection (1)(

a) or (1.1)(a), and … 6(1) Notwithstanding the expiration of the relevant limitation period, when a claim is added to a proceeding previously commenced, either through a new pleading or an amendment to pleadings, the defendant is not entitled to immunity from liability in respect of the added claim if the requirements of subsection (2), (3) or (4) are satisfied.

(4) When the added claim adds or substitutes a defendant, or changes the capacity in which a defendant is sued, (

a) the added claim must be related to the conduct, transaction or events described in the original pleading in the proceeding, and (

b) the defendant must have received, within the limitation period applicable to the added claim plus the time provided by law for the service of process, sufficient knowledge of the added claim that the defendant will not be prejudiced in maintaining a defence to it on the merits.

(5) Under this section, (

a) the claimant has the burden of proving

(

i) that the added claim is related to the conduct, transaction or events described in the original pleading in the proceeding, and (ii) that the requirement of subsection (3)(c), if in issue, has been satisfied, and (

b) the defendant has the burden of proving that the requirement of subsection (3)(

b) or (4)(b), if in issue, was not satisfied. [ 101 ] Keyland commenced its actions against the Town and the MDR on November 3, 2004, through its filing of a statement of claim. Thus, the Town and the MDR argue, Keyland is barred from recovering any claim for an injury of which Keyland first knew, or in the circumstances ought to have known, before November 3, 2002: Limitations Act s 3(1).

The alleged "injury" or injuries in the case at bar are Keyland's economic loss, the non-performance of an obligation to Keyland by the Town and the MDR, and their breach of a duty to Keyland. [ 102 ] Although there are similarities between the claims that Keyland makes against the Town and the MDR, and those it makes against HMQ, the additional issue that involves HMQ is that Keyland commenced its action against HMQ on February 5, 2007.

It seeks to add HMQ to the action it commenced against the Town and the MDR pursuant to Limitations Act s 6, and will discontinue its separate action against HMQ. [ 103 ] Because Keyland seeks to join HMQ in the action against the Town and the MDR, this Court will examine that action as it relates to all the applicants. [ 104 ] The Town argues that Keyland was aware that the mediation among the Town, the MDR, HMQ, and the School Division was going to occur before the mediation took place. As well, it was aware of the content of the MOU by the Fall of 2001.

Keyland sought clarification of the MOU’s terms from the Town and HMQ in the Fall of 2001. Keyland does not allege a separate conspiracy for the Annexation Agreement, but ties it to the MOU. Thus, it knew of the alleged injurious nature of both well before November 3, 2002, and made the Town aware of its concerns before that time. As for the claim for unjust enrichment, the new intersection and the Stub Road were completed before November 3, 2002. [ 105 ] Similarly, the MDR argues that the issue of the road bans that it imposed on RH Drive existed from 1995 to 2001.

Thereafter, the MDR’s council had made a decision on October 17, 2000, not to upgrade RH Drive. It makes arguments similar to the Town’s arguments with respect to the MOU and the Annexation Agreement. These were known to Keyland before November 3, 2002. [ 106 ] In a nutshell, Keyland argues that its various claims against the applicants are not statute-barred because it had no way of knowing whether the applicants’ conduct warranted bringing a proceeding until February 5, 2004, when it received its subdivision approval and the conditions on which the approval was granted.

The approval crystallized the events leading up to it. Therefore, Keyland argues, it filed its claim well within time. [ 107 ] A starting point for this discussion is contained in the Alberta Law Reform Institute report that contained recommendations on limitations. It said the following: The limitations strategy at law results in limitation periods which are too often unreasonable, either to claimants or defendants. A limitations period may be unreasonable if does not provide an adequate discovery period, or an adequate negotiation period within which to avoid legal action by settling differences.

It should prevent a claimant from bringing a claim unduly late, but it should not require him to bring one with undue haste. A limitations system should not encourage unnecessary civil proceedings or unnecessary legal costs. All three of the essential elements on which the strategy at law is based – the commencement of the limitation period at the time of accrual, the use of different limitation periods of fixed duration, and the assignment of different limitation periods to different categories of claims - contribute to the unreasonable results.

Alberta Law Reform Institute, Limitations , Report No. 55 (December 1989) [ALRI Report] at 24. [Emphasis added]. [ 108 ] Despite this, there are subjective and objective elements in an analysis of when a claimant must commence its action. Master Hanebury said the following in RP Choma Financial and Associates Inc v McDougall , 2008 ABQB 359 at para 51 , 451 AR 278, 94 Alta LR (4th) 191: The court cannot simply bow to the claimant's determination of when it thinks a proceeding is warranted. In the case of a mortgage, it cannot await the triggering of the acceleration clause by the plaintiff. That may never happen.

The court must examine the fact situation from the plaintiff's perspective, which is the subjective part of the court's analysis, and then determine objectively when a proceeding is warranted. The plaintiff's decision that a proceeding was not warranted must be found to be reasonable. [ 109 ] The ALRI Report goes on to discuss Limitations Act s 3(a)(iii), when it says the following: ... [T]he discovery period will not begin until the claimant first knew that his injury was sufficiently serious to have warranted bringing a proceeding, that is, there must be relatively serious harm.

This criterion will protect litigants from incurring unnecessary legal expenses, and bringing unnecessary legal action. The discovery rule will, in effect, invite the judge to put himself in the claimant's shoes, to consider what knowledge he had at the relevant time, and to make the cost-benefit analysis which would be reasonable for the actual claimant .

ALRI Report at 33. [Emphasis added]. [ 110 ] The Alberta Court of Appeal spoke of the cost-benefit analysis in Boyd v Cook , 2013 ABCA 27 at para 13 , 542 AR 160, 84 Alta LR (5th) 359, when it said the following: There might be a number of things which might mean that a lawsuit for an undoubted injury caused by a defendant would not be warranted. ... Some lawsuits are, or appear to be, uneconomical. The likely legal fees and disbursements may be less than the likely recovery. Maybe a big risk of paying costs to the other side is also relevant. And sometimes the amount of work which the plaintiff

would have to put into the suit and preparing for it would be undue in relation to the likely recovery.

See also Condominium Plan 9421549 v Main Street Developments Ltd, (AB KB), 2004 ABQB 962 at paras 71-72,365 AR 162, 41Alta LR (4th) 386. [111] In the case at bar, the applicants must establish that it is plain and obvious that Keyland’s claim is barred by the provisions ofthe Limitations Act: Quadrangle Holdings Limited v Coady, 2012 ABQB 22 at para 28; De Shazo v Nations Energy Company, 2005ABCA 241 at para 19, 367 AR 267, 48 Alta LR (4th) 25. [112] Keyland was aware of the access issues involving the River Avenue Bridge and RH Drive even before it purchased the Lands.As well, it was aware of the MOU and the Annexation Agreement, and the limitations placed on its use of RH Drive before November 3,2002.

After the applicants entered into the MOU, Keyland was still hopeful that the annexation would resolve its problems of accessinasmuch as the Town would have jurisdiction over RH Drive. Because the Annexation Agreement contained a provision that theapplicants would, essentially, abide by the terms of the MOU, Keyland’s hopes were deteriorating. Despite that, it was optimistic that thesubdivision approval would allay its concerns about its use of RH Drive. It argues as follows: ...

It remained possible that the CPC would follow the MDP and ASP, and/or sound engineering advice, and permit Keyland to use RHDfor its subdivision. However, once the restrictions on RHD were incorporated into the subdivision conditions of February 18, 2004, thepotential harm to Keyland from the Defendants’ conduct crystallized into an actionable injury.

Keyland’s Brief filed on July 29, 2016, para 499. [113] Before the conditional subdivision approval, Keyland could not proceed to develop the Lands, so it had suffered no injury.However, after the approval, the alleged injury became manifest. [114] This Court finds that it is not “plain and obvious” that Keyland’s claims are statute-barred. [115] This Court will address the Limitations Act s 6 issue later in these reasons. A.

Summary Dismissal 1. Rules of Court [116] Rule 7.3 of the Alberta Rules of Court, Alta Reg 124/2010 [Rules] provides as follows: 7.3(1) A party may apply to the Court for

summary judgment in respect of all or part of a claim on one or more of the following grounds: (

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

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

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

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

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

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

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

c) if judgment is given for part of a claim, refer the balance of the claim to trial or for determination by a referee, as the circumstancesrequire. [117] The applicants rely on Rules r 7.3(1)(

b) in their applications. The Alberta Court of Appeal has dealt with the test for

summaryjudgment in many of its recent decisions. After citing several decisions that the Supreme Court of Canada has issued on this topic, theAlberta Court of Appeal provided the following principles in Windsor v Canadian Pacific Railway, 2014 ABCA 108 [Windsor]: (

a) in

summary judgment applications, the test is whether there is "a reasonable prospect that the claim will succeed," not whether it is"plain and obvious" that no claim is disclosed; (

b) a trial is not required if a

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

c) the modern test for

summary judgment is therefore to examine the record to see if a disposition that is fair and just to both partiescan be made on the existing record; (

d) Rules r 7.3 calls for a more holistic analysis of whether the claim has "merit," and is not confined to the test of "a genuine issue fortrial" found in the previous rules; and

(

e) when the resolution of the dispute turns primarily on issues of law,

summary judgment is often appropriate. Windsor at paras 12-15. [118] The Alberta Court of Appeal has not completely dismissed the “no genuine issue for trial” test. Rather, it said in Windsor thatthe test is not “confined” to that test. In Amack v Wishewan, 2015 ABCA 147 at para 26, 24 Alta LR (6th) 44, 602 AR 62, it said thefollowing: … Following the recent Supreme Court of Canada decision in Hryniak v Mauldin, [Hryniak], this Court has held that

summary judgmentcan be granted if a disposition that is fair and just to both parties can be made on the existing record: [citations omitted]. This does not,however, detract from the requirement that there be “no genuine issue for trial”: [citations omitted]. Rather, the two concepts arethemselves linked, as noted in Hryniak, supra… [Emphasis added]. [119] What does it mean when a claim has “no merit”? In P (

W) v Alberta, 2014 ABCA 404 at para 25, 588 AR 110, 7 Alta LR (6th)319, the Alberta Court of Appeal said the following, citing Access Mortgage Corporation

(2004) Limited v Arres Capital Inc, 2014ABCA 280 at para 45, 584 AR 68: A party's position is without merit if the facts and law make the moving party's position unassailable and entitle it to the relief it seeks. Aparty's position is unassailable if it is so compelling that the likelihood of success is very high. [120] More recently, that court said the following: From the substantive perspective,

summary judgment can be granted if, in light of what that fair and just process reveals, there is nomerit to the claim. No "merit" means that, even assuming the accuracy of the position of the non-moving party as to any material andpotentially decisive matters — matters which would usually require ordinary forensic testing through a trial procedure with viva voceevidence and which could not be resolved through the fair and just alternative — the non-moving party's position viewed in the roundhas no merit in law or in fact. 776826 Alberta Ltd v Ostrowercha, 2015 ABCA 49 at para 10.

See also Mraiche Investment Corporation v McLennan Ross LLP, 2012 ABCA 95, 524 AR 151, 60 Alta LR (5th) 92 [Mraiche] at para11. [121] The Alberta Court of Appeal expanded on these principles in Condominium Corp No 0321365 v Cuthbert, 2016 ABCA 46 atparas 27-29, 33 Alta LR (6th) 209, 612 AR 284 [citations excluded], when it said the following: When deciding a

summary judgment application, there are two considerations.

With respect to the process, the court must ask, "whetherexamination of the existing record can lead to an adjudication and disposition that is fair and just to both parties" … With respect to thesubstantive issues, the court must ask "whether there is any issue of merit that genuinely requires a trial or, conversely, whether the claimor defense is so compelling that the likelihood it will succeed is very high such that it should be determined summarily" … An issue ofmerit is established when the respondent's (non-moving party) case discloses a "genuine issue of a potentially decisive material fact inthe case which cannot be summarily found against the non-moving party on the record revealed by the 'fair and just [summary] process'"…

Summary judgment is not possible if opposing parties' affidavits and evidence conflict on material facts because a chambers judge cannotweigh evidence or credibility on a

summary judgment application … Complex legal questions may be sufficient to deny

summary judgment. A full trial is required when the

summary record cannot be usedto decide legal issues that are unsettled, complex or intertwined with facts … A trial is also required when an applications judge is notsatisfied she can fairly resolve the dispute on the record before her … [122] As mentioned at the outset of this discussion, the parties have provided this Court with volumes of materials. Does sheervolume create complex legal issues? It is this Court’s view that it does not. What this Court must do is examine those materials todetermine whether the issues are complex, whether there are conflicting points of material fact, and whether, in the end,

summaryjudgment is fair and just in the light of Keyland’s claims. [123] For the purposes of these applications, this Court must examine the record before it, as it is Keyland’s responsibility to “put itsbest foot forward.” The Alberta Court of Appeal said the following: A party faced with an application for

summary judgment must put its best foot forward, and present evidence to show sufficient "merit"to establish a genuine issue requiring a trial with respect to the outstanding issues … Speculating that evidence might be available at atrial is not sufficient to create a genuine issue requiring a trial. Windsor at para 21 [citation excluded]. [124] In the affidavits that the parties have presented to this Court, there is no doubt that there are many self-serving statements.

TheSupreme Court of Canada dealt with how this Court must deal with such evidence in Guarantee Co of North America v Gordon CapitalCorp, (SCC), [1999] 3 SCR 423, 178 DLR (4th) 1 at para 31, when it said, “a self-serving affidavit is not sufficient initself to create a triable issue in the absence of detailed facts and supporting evidence.” [125] Of course, this Court may consider only admissible evidence. It will not consider inadmissible evidence, such as hearsayevidence: Rules r 13.18(3); 1214777 Alberta Ltd v 480955 Alberta Ltd, 2014 ABQB 301 (Master) [1214777] at para 17(3). As well, the

affidavits and other evidence that contain argument, inferences, opinion, or conclusions, are not properly before this Court as “[a]nyconclusion based on the evidence is the function of the court”: Alberta (Human Rights Commission) v Alberta Blue Cross Plan, 1983ABCA 207, 28 Alta LR (2d) 1, 48 AR 192 at para 8. See also Rau v Edmonton (City), 2015 ABCA 5 at para 19. [126] As for the burden of proof, Master Schlosser summarized it as follows: ... The legal or persuasive burden is on the Applicant throughout. The Respondent is not obliged to furnish evidence.

However, if anApplicant discharges the evidentiary burden imposed upon it on a balance of probabilities, the evidentiary burden then falls to theRespondent to show that there is arguable merit to the case: Murphy Oil Co. v. Predator Corp., 2006 ABCA 69 (Alta. C.A.), Proper Catat paras. 66-7, 70, and Dasilva v. McLean, 2011 ABQB 618 (Alta.

Master), and, now, that there is a compelling reason that it should goto trial. 1214777 at para 19 [127] Master Schlosser summarized his analysis, when he said, “[t]he court is to look at the record and the dispute to decide whetherit is essential to the resolution of the dispute that the court see the witnesses.

If the answer is yes, the matter must go to trial”: 1214777 atpara 17. [128] Accordingly, this Court must consider each of the causes of action to determine whether the applicants have discharged theirevidentiary burden to show this Court, on a balance of probabilities, that their positions are unassailable. If they discharge thisevidentiary burden, the burden then falls on Keyland to show the arguable merit of its case. 2.

Conflicting Evidence and Misrepresentations [129] One of the key determinations that this Court must make is whether there is conflicting evidence concerning the material factson which it, or a trial court, must make its decision. The Alberta Court of Appeal said that “Trials are for determining facts, and the factsunderlying the dispute are not seriously in issue”: Windsor at para 16. The Town argues that despite the substantial record, there is littleconflict in the evidence.

Keyland argues otherwise. [130] Although Keyland chose not to argue the issue concerning the alleged representations that Mr. de Cocq and Mr. Wesselingmade during their meetings in December of 1999, these alleged representations serve to illustrate whether there is a conflict in theevidence. [131] Keyland alleges that Mr. Wesseling and Mr. de Cocq made the following representations: (

a) they would “fast track” the development; (

b) all necessary approvals would be in place within 6 months; and (

c) they and Cochrane wanted construction to commence within 6 months. [132] Keyland argues that these representations were important in its decision to purchase the Lands. The Town says that it is notseeking

summary dismissal on the basis that the representations were not made, although it denies that they were. [133] For the representations that Mr. Wesseling and Mr. de Cocq made to be actionable, they must be of representations of facts, andnot how they or the Town intended to act in the future. In Motkoski Holdings Ltd v Yellowhead (County), 2010 ABCA 72, 20 Alta LR(5th) 1, 474 AR 367 [Motkoski] the Alberta Court of Appeal said the following: Actions for negligent misrepresentation usually rest on misrepresentations of fact: Queen v. Cognos Inc. ...

Sometimes representationsare made about the future that depend on the facts as they exist at the time of the representation. If those existing facts are inaccuratelyand negligently stated, the words may be actionable, as in Cognos. Sometimes people are retained to give opinions about the future, andif those predictions are negligent (having due regard that perfection in future projections cannot be expected) they may be actionable, asin Kelly v. Lundgard, 2001 ABCA 185 , 2001ABCA 185 (Can LII), 95 Alta. L.R. (3d) 11, 286 A.R. 1.

There is therefore some room for an action for negligent misrepresentation about the future, although it is more difficult to prove thatpredictions about the future are "inaccurate". However, an action for misrepresentation generally cannot be based on a representationabout how the speaker intends to act in the future, unless the representation amounts to a covenant that the speaker will act in that way.As it was stated in Arrow Construction Products Ltd. v. Nova Scotia (Attorney General) (1996), (NS CA), 150 N.S.R.( 2d) 241, 1996 NSCA 88 , 27 C.L.R. (2d) 1(C.A.): . . .

The Hedley Byrne Principle deals with representations, not promises. It is important to distinguish between a representation and apromise. A representation is a statement relating to some existing fact or past event. A promise is a statement of intention to dosomething in the future . . . . Unless consideration has been given, the plaintiff is generally not entitled to rely on a representation about how the defendant intends toconduct itself. That liability sounds in contract, if at all. Motkoski at para 43-44 [emphasis added]. [134] The alleged representation that Mr.

Wesseling and Mr. de Cocq will “fast track” the development is a statement of intention offuture conduct. It is not a statement of an existing fact or past event. Keyland gave no consideration for the alleged representation abouthow Mr. Wesseling and Mr. de Cocq intended to act. [135] The alleged representation that all necessary approvals would be in place within 6 months is arguably also a statement of

intention of future conduct, which, for the foregoing reason, would not be actionable. If it is not a statement of future intention, it mightbe actionable if Mr. Wesseling or Mr. de Cocq made the statement negligently. A person who makes a representation has a duty toensure that they exercise such reasonable care as the circumstances require that the representation is accurate and not misleading: R vCognos Inc, (SCC), [1993] 1 SCR 87 [Cognos, cited to SCR] at 121-22, 14 CCLT (2d) 113, 99 DLR (4th) 626.

InCognos, the court provides the following quotation from Lewis N Klar, Tort Law (Toronto: Thomson Professional Publishing Canada) at160: An advisor does not guarantee the accuracy of the statement made, but is only required to exercise reasonable care with respect to it. Aswith the issue of standard of care in negligence in general, this is a question of fact which must be determined according to thecircumstances of the case.

Taking into account the nature of the occasion, the purpose for which the statement was made, the foreseeableuse of the statement, the probable damage which will result from an inaccurate statement, the status of the advisor and the level ofcompetence generally observed by others similarly placed, the trier of fact will determine whether the advisor was negligent.

Cognos at 121-22. [136] In the case at bar, the circumstances relevant to this analysis are as follows: • At the time Keyland was conducting its due diligence before purchasing the Lands, the MDP required the developer to provide abridge over the Bow River to replace the River Avenue Bridge before development; • Providing that bridge before development would avoid the conflict with the MDR about using RH Drive; • The Town made Keyland aware of these requirements in the Town's MDP and SRASP, and Keyland, through its own duediligence, was aware of these requirements; • Keyland, through its own due diligence and through the Town’s advice, was aware of the history that had inhibited and delayeddevelopment of the Lands by Southland and Mr.

Robinson; • Southland had received conditional subdivision approval for the lower bench Lands; • The lower bench Lands had already been re-designated for residential development under the LUB; • Keyland knew or had the means to know that changes to the MDP and SRASP were policy matters that the Town’s councildecided. [137] Keyland’s knowledge of the actual state of affairs and damage it might suffer as a result of its reliance on this alleged statementwould not be foreseeable by the Town.

As well, because the Town did not know the content of Keyland's development proposal and thebylaw changes that it intended to seek, the Town could not have breached any standard of care by making the alleged representations.Thus, if Mr. Wesseling or Mr. de Cocq made the representations on the Town’s behalf, they were not made negligently. [138] The alleged representation “that Mr. de Cocq, Mr. Wesseling and the Town wanted construction within 6 months” is arepresentation of fact. That fact, however, is framed in the nature of a desire. It is not surprising that these individuals and the Town hadthat desire.

This Court fails to see how Keyland can show that a statement of desire is an actionable misrepresentation. [139] Had this Court found that the alleged representations were representations of fact, for the Town to be liable for itsrepresentatives’ negligent misstatements, Keyland must show that it relied on those representations and its reliance was reasonable in allof the circumstances.

In Serendipity Ventures Ltd v White Rock (City) (1990), (BC CA), 43 BCLR (2d) 90 (BCCA)[Serendipity], the plaintiff developer was unsuccessful in obtaining land use re-designation from the defendant city that would allow itsproposed development to proceed. The developer alleged that city staff were liable for negligent misrepresentations they made duringthe course of working with the developer to put proposals before city council. The trial judge rejected the claim. The British ColumbiaCourt of Appeal upheld the trial judge’s decision against the developer.

In so doing, the court emphasized the developer's awareness thatcity council was not bound by the recommendations of city staff, and that the city had its own and the public interests to consider. It saidthe following: It is clear that the developers were well aware that any proposal for rezoning required council's approval regardless of therecommendation of the City staff.

It is also clear that the development of this particular parcel of land and its effect on the adjoining parklands was of considerable public concern, as evidenced by the community plan and the views expressed at the public meeting of April21, 1981 when the proposal to construct 138 units was rejected.

Furthermore, the circumstances were such that the developers must havebeen aware, from the time they considered applying for rezoning, that the City had its own interest to advance, namely, enhancing thequality of the park, which objective was likely to conflict with the developers' objective of obtaining a rezoning which would permit themaximum permitted residential density.

The evidence of the participation of the City staff and the various proposals put forward cannot be characterized as representations thattheir efforts would result in the approval of a rezoning application - - rather, it was advice to the developers as to how they might frametheir various proposals so that they would be more likely to receive favourable consideration by council. There is no suggestion in theevidence that the advice of City staff members amounted to an assurance that any particular proposal would achieve a successfulrezoning.

The developers were aware that any suggestions put forward by the planner or members of the City staff could not bind theindividual councillors when it came for them to decide whether a certain proposal should be approved. In all the circumstances, therefore, it would be unreasonable for the developers to rely upon the advice proffered by the City staffmembers as if it were an assurance that any particular proposal would receive council's approval, let alone the approval of a publicmeeting. Serendipity at paras 93-94 [emphasis added].

See also Neufeld v Mountain View (County), 2014 ABQB 443, 26 MPLR (5th) 184 (Master) [Neufeld] at para 117. [140] That situation is not unlike the situation before this Court. The alleged representations, or statements, that Mr. Wesseling andMr. de Cocq made could not amount to an assurance that the Town’s council was of the same view as those of its staff members.

As thisCourt will discuss later in these reasons, the Town and the MDR had other interests and constituents they had to consider in making theirrespective decisions. [141] Besides, Keyland had retained the IBI Group, experienced consultants, to advise it of the potential for development of theLands, the development process, and the timing during the due diligence period, before it concluded the purchase. Keyland relied onadvice from its consultants. Neither the IBI Group nor Keyland anticipated that approval in 6 months was likely, and Keyland wasfamiliar with the requirements of the SRASP and the MDP.

Keyland had received "full disclosure" of documents from Southland and,through its due diligence, Keyland was familiar or had the means to be familiar with the past history and challenges that Southland facedwhen it was attempting to develop the Lands. Keyland was aware or had the means to be aware of the opposition of the MDR and theresidents along RH Drive to construction traffic using RH Drive, and that RH Drive and the intersection at Highway 22 were outside ofthe Town’s jurisdiction. [142] Keyland was aware that its development proposal required land use re-designation of the

[…]