644036 Alberta Ltd. Plaintiff - v. -, 2017 ABQB 303

Court of Queen’s Bench of Alberta Citation: 644036 Alberta Ltd v 625494 Alberta Ltd, 2017 ABQB 303 Date: 20170501 Docket: 0603 12941 Registry: Edmonton Between: 644036 Alberta Ltd. Plaintiff - and - 625494 Alberta Ltd., Federal Mortgage Corporation Ltd., H.M.E. Evans & Company Limited, Kay McVey Smith & Carlstrom LLP; Sherry B. Heikel, Sherry B. Heikel Professional Corporation, Dobko Logan Innes & Hougestol; Bruce Logan, Bruce Logan Professional Corporation Defendants _______________________________________________________ Supplemental Decision of the Honourable Mr. Justice Sterling M.

Sanderman _______________________________________________________ [ 1 ] On October 31, 2016, I released a Memorandum of Decision in relation to this matter. The trial had been held in Edmonton, Alberta the previous month. The evidence had been presented economically mainly through a lengthy Agreed Statement of Facts. In the

Agreed Statement of Facts there was reference to the appraised value of land not conveyed to the Plaintiff. This valuation took place at a time considerably later than the time of the negligent behaviour I found. [ 2 ] I rejected this approach in relation to assessing the damages that should flow from the negligent act. The latter valuation adopted the methodology of valuing the lots not transferred using the sub-divided values proposed by the expert who prepared the report. [ 3 ] I rejected this approach.

I concluded that there were too many intervening factors that could affect the valuation of the land with the passage of time. The latter date was too remote from the time of the negligence. I preferred to determine the loss as the value of land not conveyed as the non-subdivided value of the square footage. I performed a mathematical calculation to arrive at this figure. [ 4 ] The Plaintiff took issue with this approach. An application to reopen was made. I allowed this.

In January of 2017, a further court appearance resulted in a ruling to determine how the Plaintiff can establish its claim through further evidence. I ruled that expert evidence could be called by the Plaintiff but it had to be in the form of viva voce evidence so that the Defendants’ right of cross examination was assured. [ 5 ] In a letter dated March 23, 2017, I responded to a request from counsel to clarify my reason for choosing the methodology of assessing damages. A copy of that letter to counsel is attached as an Appendix to this Supplemental Decision. [ 6 ] On April 11, 2017, counsel appeared before me.

At that time, I was informed that the Plaintiff will not be calling further evidence. That would appear to conclude the matter except for one further modification. It certainly would not surprise my high school mathematics teacher to learn that I still make errors in calculation. The damages that I calculated were twice what they should have been. The damages owed to the Plaintiff are $67,500.00. [ 7 ] One of the Defendants, 625494 Alberta Ltd., was noted in default. Equal apportionment of the liability should be made. The Plaintiff is entitled to recover the Judgment amount from either defendant.

Heard on the 11 th day of January and 11 th day of April, 2017 . Dated at the City of Edmonton, Alberta this 1 st day of May, 2017. Sterling M. Sanderman J.C.Q.B.A. Appearances: Daniel L. Morrow, Mathieu J. Lafleche, Bennett Jones LLP for the Plaintiff Damian Shepherd, Amani Abdu, CBM Lawyers for the Defendants, Kay McVey Smith & Carlstrom LLP, Sherry B. Heikel, and Sherry B. Heikel Professional Corporation APPENDIX A March 23, 2017 SENT VIA EMAIL

Daniel L. Morrow Bennett Jones LLP 3200, 10020 – 100 Street Edmonton, AB T5J 0N3 FAX: (780)421-7951 Damian A. Shepherd Chomicki Baril Mah LLP 1201, 10088 - 102nd Avenue Edmonton, AB T5J 4K2 FAX: (780) 420-1763 Dear Counsel: RE: 644036 Alberta Ltd. v. Sherry Heikel et al Action No. 0603 12941 I am sorry that I have not been able to respond to Mr. Morrow’s letter of February 14, 2017, until now. Up until last week, I was involved in two lengthy pieces of criminal litigation that required my attention. I have had an opportunity to read Mr. Morrow’s letter where he puts out the respective positions of counsel.

Counsel filed a lengthy Agreed Statement of Facts prior to the commencement of the trial which expedited matters greatly. In the Agreed Statement of Facts, there was reference to the appraised value of Lots 12 and 56A as of June 15, 2007. Unless counsel agreed that these were the damages that would result if negligence was proven, I felt it inappropriate to use this date for the assessment of damages. I believed that the assessment of damages should be tied to the time of the proven negligence.

As I have acknowledged to the two of you in open court, I adopted a mechanism to assess the damages without giving the parties an opportunity to respond to my course of action. To compound the problem, it appears, according to Mr. Shepherd, that I have made a mathematical error in relation to the area of the land not conveyed. I concede that I did not unequivocally indicate that the appropriate methodology for determining the value of the land not conveyed was the non-subdivided value of the square footage. By implication though, this was the methodology I preferred.

I considered but rejected the methodology of valuing the lots using the sub-divided values. I did not feel it was appropriate in this case having regard to the passage of time between the failure to convey and the valuation of the sub-divided land. I apologize for complicating this litigation. It is not fair to the parties. The two of you will have to decide where we go from here. I await your advice. I can accommodate you in court at just about any time during the month of April to determine future process.

I start a three-week murder trial beginning April 10, 2017, but 9:00 am appearances would not be difficult during that trial. Yours truly, Sterling Sanderman SS/bn