Condominium Corporation No, 2017 ABQB 51

Court of Queen’s Bench of Alberta Citation: Condominium Corporation No 0213028 v Pasera Corporation, 2017 ABQB 51 Date: 20170126 Docket: 0801 12997 Registry: Calgary Between: Condominium Corporation No. 0213028, also known as The Solarium Condominium Corporation Plaintiff - and - Pasera Corporation, Pasera Solarium Properties Inc., Pasera Group Inc., Form 3 Designs

(2004) Ltd., G.A.L. Plastering Ltd., G.A.L. Plastering & Sons Inc., Wiebe Forest Engineering Ltd., ABC Corporation, ABC1 Corporation, ABC2 Corporation, ABC3 Corporation, ABC4 Corporation, ABC5 Corporation and ABC6 Corporation Defendants _______________________________________________________ Memorandum of Decision of the Honourable Madam Justice J. Strekaf _______________________________________________________ I.

Introduction [ 1 ] The Plaintiff is applying pursuant to rule 9.13 of the Alberta Rules of Court , Alta Reg 124/2010, to correct errors in a decision issued by me in this action ( 2016 ABQB 477 ) on August 30, 2016 (the “Prior Decision”). The errors involve an incorrect date for the filing of the Statement of Claim. The application that gave rise to the Prior Decision had been brought by the Plaintiff to amend the Statement of Claim to add various parties, including HCI Architecture Inc. (“HCI”), as defendants in the action.

The errors do not affect any of the proposed defendants other than HCI and none of them take any position on this application. The error was that the

correct filing date for the Statement of Claim of October 22, 2008 was set out in the recitation of the facts in the Prior Decision but was later incorrectly referred to as October 8, 2008. This latter date had been mistakenly identified as the filing date in one instance in one of the briefs and this error was unfortunately repeated by me in portions of the decision. [ 2 ] The Prior Decision addressed statutory limitation periods pursuant to the Limitations Act , RSA 2000, c L-12. The application to add HCI as a defendant was dismissed because it was too late to do so pursuant to

section 6 of the Limitations Act because HCI had not received sufficient knowledge of the claim within 3 years of the date when the Plaintiff knew, or ought to have known, they had suffered an injury attributable to HCI that warranted bringing proceedings. [ 3 ] Assessing issues surrounding limitation periods necessarily requires correct dates.

The Plaintiff and HCI agree that the Prior Decision should be corrected pursuant to rule 9.13 to reflect the correct filing date for the Statement of Claim throughout, but disagree about the consequences of such a change. [ 4 ] The Plaintiff submits that changing the Prior Decision to reflect the October 22, 2008 filing date means it is no longer necessarily statute barred from proceeding against HCI, and accordingly asks the Court to grant its application to add HCI as a defendant.

Alternatively, it suggests that the Court should re-hear argument relating to the original application. [ 5 ] HCI submits that correcting the filing date of the Statement of Claim would not affect the outcome of the Prior Decision and that no further re-hearing is needed. II. Analysis [ 6 ] Rule 9.13 states: At any time before a judgment or order is entered, the Court may (

a) vary the judgment or order, or (

b) on application, and if the Court is satisfied there is good reason to do so, hear more evidence and change or modify its judgment or order or reasons for it. [ 7 ] The Plaintiff is not seeking to adduce additional evidence on this application.

Having regard to the nature of the error, and having considered the submissions on this application, I do not consider that there is any need to hear any further argument on the original application. [ 8 ] For the reasons that follow, I find that correcting the filing date of the Statement of Claim from October 8, 2008 to October 22, 2008 does not affect the substance or result of the Prior Decision. [ 9 ] HCI acknowledged receiving notice of the Plaintiff’s intention to add them as a defendant to the action on October 21, 2011.

By operation of section 6(4) of the Limitations Act , the action against HCI would not be statute barred if the limitation period had commenced within three years of that date, that is, on or after October 21, 2008. [ 10 ] Paragraph 34 of the Prior Decision states: As a result, I am satisfied that the Plaintiff could have identified the involvement of HCI in the design of the condominium had it exercised reasonable diligence prior to the issuance of the Statement of Claim on October 8, 2008, rather than apparently relying on the incorrect information contained in the January 24, 2008 email from its property manager.

The limitation period began running against HCI sometime between November 16, 2007 and October 8, 2008. [emphasis added] [ 11 ] The Plaintiff correctly points out that the date October 8, 2008 is of no significance, other than that it was the mistaken date for filing of the Statement of Claim. It submits that if October 22, 2008 was substituted for October 8, 2008 in the last sentence of paragraph 34 then it would not be obvious that the Plaintiff was statute barred. This is because October 22, 2008 is one day after the three year cut-off date of October 21, 2008 pursuant to

section 6 of the Limitations Act . As a result, the Plaintiff could potentially be within the three-year period to add a defendant to an action and, therefore, whether their claim was statute barred is a matter that should be left to be determined at trial. [ 12 ] I disagree with this reasoning. While I had been under the mistaken impression that the Statement of Claim was issued on October 8, 2008, it was apparent to me that the action was statute barred against HCI because the limitation period had clearly commenced well prior to that date.

As a result, there was no need to decide more precisely when the limitation period began to run.

The essence of my decision was not that I was unable to determine when prior to the filing of the Statement of Claim the Plaintiffs knew or ought to have known of their claim against HCI, but that it was unnecessary in the circumstances to do so. [ 13 ] Paragraph 33 of the Prior Decision states in part: I am satisfied that the Plaintiff knew it had a claim against the architect by sometime prior to October 8, 2008 when it issued the Statement of Claim and that by that date it ought to have known or discovered that HCI was the architect or involved in the design of the building for several reasons: (

a) The Plaintiff, through its property manager MCM Property Management Ltd., had commissioned a Reserve Fund Study, dated March 2004 by Madden Matthews, which stated that one of the items made available to assist in the preparation of its report was "a set of original architectural drawings, produced by H.C.I. Architecture Inc., dated August 2001"; (

b) The minutes of the December 19, 2007 meeting of the Plaintiff's Board of Directors identified the "Proposed plan of action is to get a

quote from engineering firm and provide full scope of repair to legal team before action is taken. Architectural (Firm: HCI Architectural) drawings are needed for engineering."; and (

c) HCI was the entity identified in the City of Calgary Alberta Building Code documents as the Registered Professional of Record providing assurances regarding the design of the architectural components on plans. [emphasis added] [ 14 ] Further, as noted in the Prior Decision, the Plaintiff obtained two reports from their consultant Morrison Hershfield Limited (“MH”).

MH’s November 16, 2007 report confirmed water penetration into the exterior sheathing of the west elevation and recommended complete replacement of the west elevation wall system “due to the overall poor design of the wall system” at a cost of $1.7 million. The date of this report determined the starting point of the range for commencement of the limitation period.

MH’s second report dated August 27, 2008 identified further problems on each of the other elevations for a total probable repair cost of $6.8 million. [ 15 ] I am, and was at the time of the Prior Decision, of the view that the Plaintiff knew or should have known well prior to October 8, 2008 that they had a claim against HCI that merited proceeding. In particular, the Plaintiff should have known that by August 27, 2008 at the latest, and likely by December 19, 2007. It is unfortunate that I was not as precise as I could have been in the Prior Decision.

However, I was, and continue to be, satisfied that the Plaintiff’s claim against HCI is statute barred and that HCI should not be added as a defendant for that reason. III. Conclusion [ 16 ] In

summary, I do not consider it necessary to hear any further argument on the application that served as the basis for the Prior Decision. The Prior Decision is varied pursuant to rule 9.13 of the Alberta Rules of Court to reflect the correct date of filing of the Statement of Claim throughout the decision as October 22, 2008 instead of October 8, 2008. This change will not affect the outcome in the Prior Decision. [ 17 ] The attached corrigendum to the Prior Decision will be issued to correct the filing date of the Statement of Claim and clarify the reasoning as outlined in this decision.

A few other typographical errors will also be corrected. [ 18 ] There shall be no costs awarded as this application was the result of an unfortunate error made by me. Heard on the 7 th day of December, 2016. Dated at the City of Calgary, Alberta this 26 th day of January, 2017. J. Strekaf J.C.Q.B.A. Appearances: Perry Mack, Q.C., Peacock Linder Halt & Mack for the Applicant Donald J. McGarvey, Q.C., McLennan Ross LLP For the Respondent, HCI Architecture Inc.