Champagne v Sidorsky, 2017 ABQB 557

Court of Queen’s Bench of Alberta Citation: Champagne v Sidorsky, 2017 ABQB 557 Date: 20170914 Docket: 1001 18773 Registry: Calgary Between: Douglas K. Champagne, Cheri L. Champagne and Cindy L. Champagne Plaintiffs/Defendants by Counterclaim - and - Ryan Sidorsky Defendant/Plaintiff by Counterclaim _______________________________________________________ Reasons for Judgment of the Honourable Mr. Justice C.M. Jones _______________________________________________________ I. Introduction [ 1 ] This decision relates to an application by the Defendant for

summary dismissal or striking of the Plaintiffs’ claim. At the oral hearing, the focus narrowed and the Defendant now seeks partial

summary dismissal of some of the claims on the grounds that they are statute barred by the limitation period. [ 2 ] This decision also addresses the costs of an earlier application to amend the Plaintiffs’ pleadings. The decision on that issue was released on May 19, 2015, Champagne v Sidorsky , 2015 ABQB 305 (the “2015 Decision”), but the question of costs was never resolved. II. Factual background [ 3 ] The facts of this case are set out in detail in the 2015 Decision.

The essence of the action is a claim for compensation and equitable relief in relation to alleged breaches of restrictive covenants arising from construction and development on land the Defendant, Mr. Sidorsky, purchased from Mr. Champagne, one of the Plaintiffs. The Plaintiffs claim that Mr. Sidorsky constructed his residence and landscaped his property in violation of the restrictive covenants agreed to by the parties at the time of the sale of the property. The Plaintiffs also make a claim in nuisance. [ 4 ] The restrictive covenants sought to govern use and development activities on the property.

They reference the style of the

home (one level, one storey bungalow); the roofing material (roof tiles or cedar shakes); the design of accessory buildings (straight wall construction, no more than 10 feet in height, with an exterior finish matching the home); storage (no outdoor storage of equipment, machinery or materials), etc. The restrictive covenants also limit the use of the property, stating that it cannot be used for any profession, trade, employment, service or business of any description. [ 5 ] Restrictive covenant #19 prohibits construction of any building on the lands prior to building plans being submitted to Mr.

Champagne for approval. Restrictive covenant #13 broadly prohibits anything from being done or built on the lands that “shall be a nuisance to the occupants of any neighboring lands or buildings.” [ 6 ] Mr. Sidorsky’s property was created through a subdivision of Mr. Champagne’s property in 2003. The parties entered into a Real Estate Purchase Agreement (the “Purchase Agreement”) on March 22, 2003. The land was transferred to Mr. Sidorsky on August 5, 2003 and the restrictive covenants were registered against the property. [ 7 ] Mr. Sidorsky began construction on his property in June 2005.

The evidence suggests that Mr. Champagne expressed his displeasure about the nature of the construction a number of times in a variety of ways, including by disputing the placement of survey stakes, moving a rusty fuel tank to a location within view of Mr. Sidorsky’s property, and turning off power to the construction site. In spite of these self-help remedies and protests, only some of which it seems came to Mr. Sidorsky’s attention, construction continued, and Mr. Sidorsky and his family moved into the completed house in May 2007. [ 8 ] There was no further development on Mr.

Sidorsky’s property and no changes to the residence or grounds between May 2007 and April 2010. At that time, Mr. Sidorsky began landscaping, including paving the driveway and constructing outdoor sports and entertainment facilities. [ 9 ] The Plaintiffs allege that Mr. Sidorsky breached the restrictive covenants and Purchase Agreement in a variety of ways, in relation to the design, construction, and occupation of the residence, as well as the landscaping and placement of outbuildings. I will not itemize each and every allegation as a few examples will suffice.

The Plaintiffs allege that the design of the home itself is in breach; the roofing material is not of the type specified; an accessory building does not match the exterior finish of the home as required; and, a tall wooden fence along the property line is in breach. [ 10 ] The Plaintiffs also allege that during construction, Mr. Sidorsky permitted outdoor storage of various equipment, materials and machinery in violation of the restrictive covenants; that material was removed from the lands when it should not have been; and, that there has been obstruction of natural drainage causing flooding of their property.

They further allege that Mr. Sidorsky has used the home as a place of employment for a housekeeper or nanny in breach of the restrictive covenants against it being a place of business and that he has constructed a multi-purpose complex which causes or which will cause a nuisance to the neighbors. There are also allegations of failing to submit site and building plans for approval prior to construction. [ 11 ] The Plaintiffs also allege breaches of the Purchase Agreement. In particular, they assert that Mr.

Sidorsky permitted occupation of the dwelling unit by his family in violation of the term that he would not permit occupation until Mr. Champagne was satisfied that the restrictive covenants were fulfilled. [ 12 ] Mr. Champagne filed his Statement of Claim on December 20, 2010. Eventually, he added his two daughters, Cheri Champagne and Cindy Champagne, as Plaintiffs. The Plaintiffs amended their claim on June 24, 2015, in accordance with my reasons in the 2015 Decision. [ 13 ] Mr. Sidorsky filed his original application for

summary dismissal on August 11, 2014. In that original application, he sought

summary dismissal of the Plaintiffs’ entire claim or in the alternative, striking of the Plaintiffs’ entire claim, or in the alternative,

summary dismissal of those parts of the Plaintiffs’ claim related to the design, construction and occupation of the residence on the grounds that they are statute barred by virtue of section 3(1) (

a) of the Limitations Act , RSA 2000, c L-12 (the “ Act ”). The Defendant submits that Mr. Champagne knew, or ought to have known, of the alleged breaches more than two years before he brought his claim. At the oral hearing, counsel limited their arguments to this more narrow aspect of the dismissal application. [ 14 ] Initially, the Plaintiffs disputed Mr. Sidorsky’s right to rely upon a limitations defense, since he had not pleaded limitations when he filed his Statement of Defence on January 7, 2011. Under rule 3.62(3)(a), however, Mr.

Sidorsky was permitted to file an Amended Statement of Defence as a result of my decision to permit the Plaintiffs to file an Amended Statement of Claim. In accordance with this rule, Mr. Sidorsky filed an Amended Statement of Defence on September 11, 2015 containing the limitations defense. III. Position of the parties [ 15 ] Mr. Sidorsky submits that the Plaintiffs’ claims relating to the design, construction and occupation of the residence are out of time because Mr.

Champagne had the requisite knowledge of the injury, the alleged breaches of the restrictive covenants and Purchase Agreement, by as early as June 2005 or, at the latest, by May 2007. [ 16 ] Mr. Sidorsky points to evidence that Mr. Champagne objected to the placement of the survey stakes delineating the planned outline of the property on June 1, 2005. Mr. Champagne, in reply, suggests that Mr. Sidorsky told him the placement of the stakes was in error. [ 17 ] Mr. Sidorsky also relies on evidence showing that Mr.

Champagne expressed his displeasure with the ongoing construction by moving a rusty fuel tank and shutting off power. Mr. Sidorsky argues the evidence is uncontroverted that Mr. Champagne had actual knowledge of the alleged breaches of the restrictive covenants during the two-year construction phase and took no legal action. At the latest, he suggests Mr. Champagne had actual knowledge in May 2007 when construction was complete and Mr. Sidorsky’s family moved into the residence. He submits Mr.

Champagne has provided no evidence of any change in his knowledge between May 2007 and December 20, 2010, the date he filed his claim.

[ 18 ] Mr. Sidorsky denies that the construction is in breach of the restrictive covenants, although his counsel conceded that he did not submit a plan for Mr. Champagne’s approval in advance of construction, nor did he seek permission from Mr. Champagne as required by the Purchase Agreement to move in once construction was complete. [ 19 ] Regardless of the potential validity of the Plaintiffs’ claim, which he denies, Mr. Sidorsky argues that the alleged breaches should have been plain and obvious to Mr. Champagne no later than May 2007. Yet Mr.

Champagne did not file his action until December 2010, making all claims in relation to design, construction and occupation of the residence statute barred. [ 20 ] The Plaintiffs reject the division of their claim into its component parts. They submit the construction and landscaping issues are connected and that it is inappropriate to separate this continuum into two phases, particularly since all the restrictive covenants are contained in one document. [ 21 ] The Plaintiffs view Mr.

Sidorsky’s breach as a totality, as a breach of the restrictive covenant associated with the sale, construction and use of the home and adjoining buildings. They argue the breach is ongoing, purposeful and continuous and that the limitation period continuously refreshes itself each day the breach continues. As such, they submit that their claim is not limitations barred. [ 22 ] Mr. Sidorsky rejects the Plaintiffs’ characterization of the entire action as a continuous and ongoing breach.

In particular, he asserts the construction phase did not flow into the landscaping phase, as there was an intervening three-year break between them. [ 23 ] Mr. Sidorsky also raises arguments pursuant to the doctrine of laches and acquiescence. He submits that Mr. Champagne had a positive duty to take steps before May 2007 to obtain some form of injunctive relief. The Plaintiffs argue in reply that Mr. Sidorsky does not come to the table with clean hands, in that he did not live up to his contractual obligations in the restrictive covenants and Purchase Agreement. IV. Legal Principles A.

Summary Judgment [ 24 ]

Summary judgment is governed by Rule 7.3 of the Alberta Rules of Court , Alta Reg 124/2010. A party may apply for

summary dismissal in respect of all or part of a claim on the ground that there is no merit to the claim or part of it. [ 25 ] In Hyrniak v Mauldin , 2014 SCC 7 , the Supreme Court of Canada advocated for the use of

summary judgment as an appropriate procedure when the interests of justice do not require a trial. Following Hryniak , the Alberta Court of Appeal, in Windsor v Canadian Pacific Railway Ltd. , 2014 ABCA 108 at para 13 , reformulated the test for

summary judgment: “The modern test for

summary judgment is therefore to examine the record to see if a disposition that is fair and just to both parties can be made on the existing record.” [ 26 ] There will be no genuine issue requiring a trial when the judge is able to reach a fair and just determination on the merits. This is possible where there are no material facts in serious dispute such that the court can apply the law to the settled facts to achieve a just result by a process that is proportionate, more expeditious and less expensive than a trial: Condominium Corporation No. 0321365 v Cuthbert , 2016 ABCA 46 at paras 27-28 . B.

Limitations [ 27 ] Section 3(1) of the Act sets out the limitation periods that apply to all actions: 3(1) Subject to subsections (1.1) and (1.2) and sections 3.1 and 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. [ 28 ] Under section 3(5), the Plaintiff has the burden of proving that a remedial order was sought within the 2 year limitation period, whereas the Defendant has the burden of proving that a remedial order was not sought within the ultimate 10-year limitation period. [ 29 ] There is no question the Plaintiffs have brought their claim within the 10-year ultimate limitation period contained in section 3(1) (b).

Despite Plaintiffs’ counsel’s arguments to the contrary in seeking to apply the ten-year limitation period, the only limitations question at issue here is whether the Plaintiffs brought their claim within two years of when they had actual knowledge of their claim or

within two years of when their claim was reasonably discoverable under section 3(1) (a). [ 30 ] In Gayton v Lacasse , 2010 ABCA 123 at para 21 , the Court explained that a claimant is not required to bring a claim for a remedial order until two years after the discovery of the three criteria enumerated in section 3(1) (a).

Moreover, these three criteria must be examined taking into account the circumstances, including the personal circumstances of the claimant. [ 31 ] In Airdrie (City) v Silvercreek Development Corporation , 2013 ABQB 357 at para 33 , Master Hanebury dissected some of the statutory language and noted that a “claim” is a matter that gives rise to a civil proceeding in which a “remedial order” is sought. An “injury” is defined as a personal injury, property damage, economic loss, non-performance of an obligation, or if none of the foregoing, the breach of a duty.

The Master went on to note at para 34 that section 3(1) (

a) links the issue of discoverability to the injury, not to the cause of action. In the case at bar, the injury is the alleged non-performance of obligations under the restrictive covenants and Purchase Agreement. [ 32 ] Thus, the two-year limitation period in section 3(1) (

a) starts to run as soon as a Plaintiff has actual knowledge of the three criteria set out in that section. If the Plaintiff did not have actual knowledge, then the court must determine what a reasonable person would have known or could have discovered with the exercise of reasonable diligence. It is at this point that the subjective aspects of the assessment come into play.

The knowledge and interests of the particular Plaintiff are relevant in determining if the Plaintiff “ought to have known” of the criteria in section 3(1) (a): Another Look Ventures Inc. v 642157 Alberta Ltd. , 2012 ABCA 253 at para 11 , citing Gayton . [ 33 ] The Alberta Court of Appeal first noted in N.(J.) v Kozens , 2004 ABCA 394 at para 14 that the phrase “warrants bringing a proceeding” involves determining the point at which a Plaintiff could reasonably have brought an action.

In Amack v Yu , 2015 ABCA 147 at para 44 , the court explained that the analysis is not narrowly confined to economic considerations. The phrase “could reasonably have brought an action” raises the question of practical ability.

In each individual case, the Court explained, the judge must determine whether particular circumstances or interests have the practical effect of preventing a plaintiff from being able to commence an action. [ 34 ] In Gayton , the court quoted from para 15 of Kozens to provide some examples of when a Plaintiff may not reasonably be able to bring an action, when viewed objectively with regard to the Plaintiff’s own situation. These include when: (

a) the costs and strains of litigation would be overwhelming to him or her; (

b) the possible damages recoverable would be minimal or speculative at best; or, (

c) other personal circumstances combined to make it unfeasible to initiate an action. [ 35 ] A Plaintiff need not have perfect knowledge of the facts to start the clock running under the Act : De Shazo v Nations Energy Company Ltd ., 2005 ABCA 241 at para 31 . However, more than mere suspicion is required; there must be some support for the suspicion: De Shazo at para 29 . [ 36 ] Under

section 5 of the Act , the running of a limitation period is suspended during the period of time that a claimant is under a disability. The claimant has the burden of establishing the application of that section. For purposes of

section 5, para 1(

h) defines “person under disability” as (

i) a represented adult as defined in the Adult Guardianship and Trusteeship Act or a person in respect of whom a certificate of incapacity is in effect under the Public Trustee Act , or (ii) an adult who is unable to make reasonable judgments in respect of matters relating to a claim. [ 37 ] The Plaintiffs have suggested that Mr. Champagne was under a disability. I will discuss this argument in more detail below. C. Laches and Acquiescence [ 38 ] The parties also argued that the equitable doctrine of laches and acquiescence are relevant to this proceeding. Laches and acquiescence are a very fact based defense that is not necessarily amenable to the

summary judgment context in which there are discrepancies in the evidence requiring an assessment of credibility. Given my conclusions on limitations, I need not decide if laches or acquiescence applies in this matter. V. Analysis A. Characterization of the Alleged Breaches of The Restrictive Covenants [ 39 ] The parties have very differing views on how to characterize the alleged breaches of the restrictive covenants. The Plaintiffs submit that the restrictive covenants apply to the property as a single block, since they relate to the same property and they relate to each other.

They point to the fact that all the restrictive covenants are in the same document, not separate documents. They submit the restrictive covenants were part and parcel of the sale, construction and occupation of the home and adjoining buildings. The Plaintiffs see the breach of the restrictive covenants as purposeful, continuous, and ongoing. [ 40 ] The Plaintiffs characterize the construction and landscaping issues as part of a totality, namely, the breaches of the restrictive covenants. The Plaintiffs rely on a copy of the house and landscaping plans attached to Mr.

Sidorsky’s affidavit to support their argument that the construction and landscaping are all part of one seamless project, involving design, construction, occupation, and landscaping. The Plaintiffs took the position that the date on this plan is 2003. Mr. Sidorsky argued the date is 2009. Irrespective of the date, the Plaintiffs submit this document shows that the house plans and landscaping plans are tied together. They argue that 2003 is the starting point from which to examine the continuum of what they allege is a series of continuing breaches by Mr. Sidorsky.

[ 41 ] The Plaintiffs assert that because the various phases of the project were contemplated as part of a whole, a breach during any single phase gives rise to a continuing cause of action. Following upon this characterization, the Plaintiffs submit that a new limitation period starts every day the breach continues. Relying upon section 3(3) of the Act , they argue that the legislation provides that a claim arising from a number of breaches of duty, a continuing course of conduct, or a series of related acts or omissions arises when the conduct terminates.

They submit that since the breaches of the restrictive covenants continue, the conduct has not terminated thus they maintain a continuous right to bring an action. In essence, they submit the limitation period continually refreshes itself so long as the breach is un-remedied; the limitations clock starts only when the breaches cease. [ 42 ] The Plaintiffs submit that the separation of this continuum into two phases, construction and landscaping, as advocated by Mr. Sidorsky, is not appropriate.

I queried counsel for the Plaintiffs on whether I am at liberty to separate out various phases of the project and apply 3(1)(

a) to alleged breaches of those various phases separately from alleged breaches that took place during other phases, but he rejected any such analysis. [ 43 ] Yet in their written submissions the Plaintiffs acknowledge that their claim is based on a “number of” continuing breaches of the restrictive covenants. The Plaintiffs argue that Mr. Sidorsky, by his actions, has been in continuous breach of the restrictive covenant and that he should not have expected Mr. Champagne to confront him with it. [ 44 ] Mr. Sidorsky disputes that this matter represents a continuing stream or a continuous cause of action.

He submits that construction did not flow into landscaping. There was an intervening break of some three years. He also argues it is not fair to look back with the benefit of hindsight to arbitrarily link distinct phases. [ 45 ] Furthermore, Mr. Sidorsky rejects the application of section 3(3) and its concepts of continuing causes of action. He argues that the only applicable limitation period in this case is section 3(1) (a).

He submits section 3(3) and its assessment of when a claim for a continuous series of actions arises applies only to the ultimate limitation period in section 3(1)(b). [ 46 ] I directed the issue of the date on the plan to come back before me on June 23, 2016 for further argument. The Plaintiffs continued to take the position that the landscape plan was dated August 2003, while Mr. Sidorsky said it was dated August 2009. The Plaintiffs argued that this discrepancy gives rise to a material contradiction in the evidence that precludes me from being able to make a fair and just determination on the record in a

summary judgment application. [ 47 ] Mr. Sidorsky asserts that a date of August 2003 as opposed to August 2009 is neither material nor relevant. He argues that what matters is the date Mr. Champagne discovered the alleged breaches of the restrictive covenants. [ 48 ] I determined that the plan attached to Mr. Sidorsky’s Affidavit was dated August 2003. The plan later provided by Mr. Sidorsky dated August 2009 had additions to it that were not part of the 2003 plan.

Regardless of the date, however, I reject the Plaintiffs’ arguments that breaches of a restrictive covenant are all or nothing, in that they must apply to the property as a single block. [ 49 ] A restrictive covenant is a burden upon land, but it is, in essence, a contractual document and the general principles of contractual

interpretation apply: Hofer v Guitonni , 2011 BCCA 393 at para 14 . And like with a contract, there can be a breach of a single provision, at a single point in time. An un-remedied breach of contract usually does not create a continuing cause of action. The injury, the non-performance of the obligation, occurs at a distinct point in time.

It is at that time that the claimant has the right to pursue a remedial order to ensure performance of the obligation or to seek compensation for the breach. [ 50 ] There is no language in the restrictive covenant as a whole to suggest that the ability to enforce one or more covenants depends on the ability to enforce all of them. Common sense indicates this cannot be the case.

Why should the enforcement of the covenant about the roof tiles, which clearly would arise when the roof is constructed or replaced, have anything to do with the enforcement of the covenant not to use the residence as a place of business, which could only occur once the residence is occupied? These are distinct covenants that can be enforced at different times as the situation arises.

It is incorrect to suggest that a breach of the business covenant five years post-construction would entitle a claimant to then make a claim for breach of the roof tile covenant, which occurred five years earlier. [ 51 ] In my view, each breach in relation to design, construction, occupation and landscaping, is a separate breach of the restrictive covenants and has its own limitation period.

If this were not the case, then the owner of the dominant tenement could ignore serious breaches, such as the construction of a non-compliant house, and wait for years until a trivial breach in relation to landscaping arose to bring a claim for the whole. [ 52 ] In finding that each breach of the restrictive covenants is its own act with its own limitation period, I conclude that the design, construction, occupation and landscaping aspects of the claim can be separated. [ 53 ] Also, as indicated earlier in these reasons, I accept Mr.

Sidorsky’s argument that the only limitation period applicable in this case is found at section 3(1) (a). The 10 year limitation period found at section 3(1) (

b) has no application to this case, thus neither does section 3(3) . Section 3(1) clearly states that the limitation period is whichever of these dates comes first. This application must be resolved pursuant to section 3(1) (a), based on an assessment of the Plaintiffs’ actual state of knowledge or the time at which they reasonably should have been able to discover their claim. B. When Did Mr. Champagne Discover The Injury, or When Should He Have Discovered It? [ 54 ] The next step in the analysis is to determine, based on the evidence before me, when the Plaintiffs had knowledge of the injury caused by Mr.

Sidorsky’s alleged breaches sufficient to warrant bringing a proceeding. [ 55 ] Among their allegations, the Plaintiffs claim that the design of the residence, its placement, and the materials used in its

construction and the occupation of the residence breached the restrictive covenants and/or the Purchase Agreement. These are some of the injuries for which the Plaintiffs seek a remedial order. [ 56 ] According to Mr. Sidorsky, the limitation period began to run, at the earliest, on June 1, 2005 when the property was staked for construction. On that date, Mr. Champagne objected to the placement of the survey stakes that marked the intended or presumed placement of the residence. Mr. Champagne disputes having knowledge at this time. He says that Mr.

Sidorsky told him the stakes were positioned there in error. [ 57 ] Nonetheless, the evidence is clear that Mr. Champagne knew that there were restrictive covenants on the land and that he expected Mr. Sidorsky to abide by them. In Questioning, Mr. Champagne acknowledged that he knew Mr. Sidorsky was about to breach the restrictive covenants: I went out. I had to put on rubber boots. I was sick, I had to walk out there. I called him over and that’s the ensuing—and the last thing I said to him, I turned around and I pointed to him and I said “There are restrictive covenants on this land.

You know it and you’re expected to abide by them”. [ 58 ] If the Plaintiffs cannot be held to this start date, since it is arguable Mr. Champagne may not have known whether Mr. Sidorsky would ultimately perform his obligations under the restrictive covenants or proceed with construction as staked out, then Mr. Sidorsky argues the limitation period started at the latest in May 2007, when construction was complete and Mr. Sidorsky’s family moved in. By this time, Mr. Champagne knew that he had suffered an injury at Mr. Sidorsky’s hands and that the injury warranted bringing a proceeding. [ 59 ] In Questioning, Mr.

Champagne also had the following exchange with Mr. Sidorsky’s counsel: Mr. Champagne: And when he started building that home, sir, I did more than just calling the lawyer. I took action myself. I put up that tank and I shut the power right off. He come up and asked, why did you shut the power off, why did you shut the power off, three different times. I told him. Counsel: What did you tell him? Champagne: I wasn’t paying. I said -- I’m not paying to have this illegal structure built. [ 60 ] Mr. Sidorsky submits that Mr.

Champagne should have had actual knowledge of the alleged breaches in relation to design and construction by the time construction was complete, in particular the alleged breaches in relation to the placement of the home on the lot, the style of home (two storey vs bungalow with walkout), the roofing material, etc. Further, Mr. Sidorsky submits that Mr. Champagne had actual knowledge that he had started construction without submitting plans, in contravention of

article #19, and that he had moved in with his family, in violation of para 2 of the Purchase Agreement. [ 61 ] Mr. Sidorsky argues there is no evidence that anything else transpired to put Mr. Champagne on notice with respect to design, construction or occupation of the house between May 2007 and December 2010, when Mr. Champagne filed his Statement of Claim. [ 62 ] Mr. Sidorsky argues that all aspects under section 3(1) (

a) of the Act were met by May 2007 at the latest. Mr. Champagne knew of the injury and who had committed it. He also, as the primary drafter of the restrictive covenants, had a sense of the true scope and significance of the injury. There is little doubt that Mr. Champagne would have believed the restrictive covenants were worth enforcing to ensure he retained their benefit. [ 63 ] Perfect knowledge of how that claim might be articulated is not required. All that is necessary is that Mr. Champagne understood that Mr. Sidorsky, in Mr.

Champagne’s view, had failed to perform an obligation and that the injury warranted intervention by the Court to obtain some form of remedial order. There is no evidence to suggest that Mr. Champagne’s personal circumstances were such that he could not, for economic or personal reasons, bring a proceeding at that time. [ 64 ] When limitations are raised as a defense, the Plaintiff bears the burden under section 3(5) of showing that the claim was brought on time. Mr. Champagne has not met this burden. He has not provided any satisfactory evidence to explain why he did not take action sooner.

It is clear he was aware of the breaches of the restrictive covenants. It is also clear that he took self-help remedies and actions to express his displeasure. He even threatened legal action, but he did not take any. [ 65 ] Subject to my discussion of Mr. Champagne’s alleged disability below, I find that Mr. Champagne had actual knowledge of the breaches of the restrictive covenants in relation to design, construction, and occupation by May 2007, when construction was complete and Mr. Sidorsky and his family moved into the residence.

His claim for a remedial order in relation to those acts is out of time. [ 66 ] The remedies sought for breaches of the restrictive covenants in relation to the landscaping, however, are not limitations barred. The landscaping commenced in April 2010, so the December 2010 action is well within the limitation period for those alleged injuries. Also, the allegations regarding the employment of a nanny must go to trial since there was not enough evidence specific to this claim to make a decision on this application. 1. Was Mr. Champagne Under A Disability? [ 67 ] The Plaintiffs assert in their written brief that Mr.

Champagne was under a disability, thus unable to appreciate his injury or that it warranted bringing a proceeding, thereby extending the limitation period. [ 68 ] I am mindful of two medical reports forming part of the record. The first, dated November 28, 2012, was provided by psychiatrist Dr. John D. deVries. In that report, he indicates that Mr. Champagne suffers from social anxiety disorder with an underlying Asperger’s disorder. He indicates that Mr. Champagne was not then able to attend court proceedings. Dr. deVries reported that Mr.

Champagne is not cognitively impaired. [ 69 ] Dr. Marius Conradie provided the second report, dated December 5, 2012. He also indicated that Mr. Champagne suffers from social anxiety. Both reports indicate that Mr. Champagne was, as of the date of each report, unable to participate in court proceedings. [ 70 ] I note that both of these reports post-date Mr. Champagne’s initiation of legal proceedings. Further, his circumstances did not prevent him from commencing an action on December 20, 2010. Nor did they prevent him from cutting off power to Mr.

Sidorsky’s lot during construction or from moving a rusty fuel tank to the boundary between the two properties in protest of Mr. Sidorsky’s actions. [ 71 ] While I acknowledge that these actions are substantively different from commencing legal proceedings, they nonetheless manifest an awareness of the alleged breaches of the restrictive covenants. I cannot accept the premise that Mr. Champagne would have considered those actions to be his only recourse. [ 72 ] Mr. Champagne’s evidence is that he adamantly warned Mr. Sidorsky about his potential breaches of the restrictive covenants. He denies accepting Mr.

Sidorsky’s alleged breaches silently and without objection. Thus, how can it be said that Mr. Champagne did not know that the injury he claims to have suffered warranted bringing a proceeding? [ 73 ] Mr. Sidorsky argues that this court should not conclude that Mr. Champagne lacked the capacity to understand that a remedy was available, given his participation in the drafting of the restrictive covenants, his ability to apply for subdivision and negotiate a purchase agreement. He must be taken to have known he had a remedy. [ 74 ] Mr. Champagne does not meet the

definitions of being under a disability under

section 1 (

h) of the Act . He is not a represented adult as defined in the Adult Guardianship and Trusteeship Act , nor has a certificate of incapacity been issued in respect of him under the Public Trustee Act. This leaves the final category of whether he is or was unable to make reasonable judgments in respect of the matters relating to a claim. [ 75 ] I cannot find that Mr. Champagne’s social anxiety and psychological challenges rise to the level contemplated by section 5(1) of the Act .

In my 2015 Decision, I explained that the Act requires a claimant to appreciate the nature of the wrong done to him and requires an understanding of who bore responsibility. In my view, there is no dispute that by May 2007 Mr. Champagne understood the nature of the wrongs he alleges were committed and the identity of who had committed them. [ 76 ] Dr. deVries’ Capacity Assessment Report indicates that Mr. Champagne did not have capacity to carry on legal proceedings as of November 28, 2012. The report states that Mr.

Champagne’s Asperger’s disorder and social anxiety disorder prevented him from dealing with a complex court proceeding. [ 77 ] Yet this does not mean he was not able to bring a claim to pursue his legal rights to address an alleged wrong before December 2010. Mr. Champagne has provided no evidence to suggest that his psychological state was so different between May 2007 and December 20, 2010, that he could not make reasonable judgments in respect of his claim prior to that date. [ 78 ] Mr. Champagne took great care to prepare the restrictive covenants.

He can be presumed to have intended these provisions to be respected. It would be disingenuous to suggest that he went to such lengths to secure Mr. Sidorsky’s adherence to various requirements only to conclude that he was incapable of understanding that he would have rights in the event of a breach. Mr. Champagne does not appear to be unable to make reasonable judgments in respect of matters relating to a claim. [ 79 ] In my view, Mr. Champagne has not met the burden explicit in

section 5 of the Act . While he may suffer from social anxiety, I am not satisfied that whatever disability he may have, or have had, deprived him of the ability to assess his circumstances, formulate a course of action and pursue that course of action, including a course of action that involved legal proceedings. C. Is Partial

Summary Dismissal Appropriate? [ 80 ] Mr. Sidorsky submits that in the circumstances of this case, partial

summary dismissal is a proportionate, more expeditious and less expensive means than a trial to achieve a just result. It will mean the trial judge will be required to deal with fewer issues related primarily to the landscaping claims. [ 81 ] The Plaintiffs submit that granting partial

summary dismissal will not operate to save trial time. They suggest the trial judge will still have to understand the parties’ entire history, starting with negotiations of the Purchase Agreement in 2003. The Plaintiffs also argue that the factual discrepancies on the record make this an inappropriate application for

summary judgment, in particular, the dispute described above about the date on the house and landscaping plans. [ 82 ] The Plaintiffs cite Luzia v Baptista , 2015 ABQB 736 at para 22 , in which the court held that

summary judgment was not appropriate where contentious facts were at issue and in dispute such that they obscured the operation of the Act . Until those facts are resolved with viva voce evidence at trial, the Court cannot determine whether a claim was commenced in time. [ 83 ] The question here is whether the determination of 2003 or 2009 as the date of the house and landscape plan is a decisive material fact in determining when the two-year period started under section 3(1) (

a) of the Act . Mr. Sidorsky disputes the Plaintiffs’ assertion of materiality. He submits that the date the house and landscape plan was created is not material because it is not the substance of the lawsuit. The substantive issue, he argues, is the alleged breaches of the restrictive covenants. [ 84 ] I find that the conflict in the date on the landscape plan is neither material nor relevant in the context of the application before me. In this application for partial

summary dismissal on limitations grounds, the only facts that need to be determined are the state of the Plaintiffs’ knowledge of their claim. I find there are no material facts in dispute in relation to this issue.

[ 85 ] I conclude that I should grant partial

summary dismissal in this case. Questions remain about the validity of the registration of the restrictive covenant as a whole, about the proper

interpretation of some of the specific restrictive covenants, about the application of laches and acquiescence and so forth. Regardless, there is no need for claims that are beyond the limitation period to proceed to trial, only to be dismissed at that time. Narrowing and focussing the matter will simplify it and eliminate the need for evidence specific to the dismissed claims, even if some of the general background evidence will still be necessary. [ 86 ] Simplifying the claim at this stage of the proceedings also may serve to encourage settlement. In sum,

summary dismissal of some of the Plaintiffs’ claims that are statute barred by the limitation period is a proportionate, more expeditious and less expensive means than trial to achieve a just result. VI. Conclusion on

Summary Judgment Application [ 87 ] I am satisfied that there is no genuine issue requiring a trial in terms of the design, construction and occupation of the residence that occurred up to and including May 2007, as the Plaintiffs had actual knowledge of any alleged breaches by that time. Mr. Sidorsky is entitled to immunity pursuant to section 3(1) (

a) of the Act against the Plaintiffs’ claims arising from the design, construction, and occupation of the residence. VII. Costs Application A. Position of the Parties [ 88 ] The parties were unable to agree on costs arising from the 2015 Decision. The Plaintiffs submit they were successful in their amendment application, so they should receive costs. [ 89 ] Rule 3.66(2) provides that costs of a contested application to amend a pleading are at the discretion of the Court, in accordance with the usual costs principles set out at rule 10.29.

Rule 10.29 provides a general presumption that a successful party to an application should have his or her costs, but always subject to the overriding discretion of the Court. [ 90 ] Mr. Sidorsky argues that the Plaintiffs did not proceed with the entirety of their original amendment application because, at our September 23 and 25, 2014 case management meetings, everyone agreed that some forms of relief were not the appropriate subject matter for discussion that day. The Plaintiffs did not adjourn the application, nor did they give the Defendant advance notice that they would not be proceeding.

Rather, the Defendant submits the Plaintiffs effectively abandoned that portion of the application, for which he seeks compensation in costs. [ 91 ] The Plaintiffs concede that a portion of their application did not proceed, but that this is analogous to an adjournment of a claim. They submit that this was a small component of the larger amendment proceeding, which the Plaintiffs submit ultimately was decided in their favour, in spite of the Defendant’s opposition. [ 92 ] Further, Mr.

Sidorsky argues that his opposition to the Plaintiff’s amendment application had merit, since the amendments related largely to the conduct of others (faulty registration of the restrictive covenant in 2003 by Mr. Champagne or his then counsel), over which Mr. Sidorsky had no knowledge or control. Even the Plaintiffs did not learn of the registration problem until 2011 or 2012. He argues it would be inappropriate to award costs against him in relation to an amendment arising from a defect caused by miscommunication between Mr.

Champagne and his conveyancing lawyer, particularly since the defect occurred before Mr. Champagne had any dispute with Mr. Sidorsky. B. Disposition of Costs Application [ 93 ] I agree with Mr. Sidorsky. The amendments to the Plaintiffs’ Statement of Claim were necessitated by a combination of poor drafting before the Plaintiffs’ current counsel became involved and problems arising in connection with the registration of the restrictive covenant that appear to have had little to do with Mr. Sidorsky. [ 94 ] Even though the Plaintiffs were partly successful in their amendment application, Mr.

Sidorsky’s opposition was reasonable in the circumstances. I agree with Mr. Sidorsky that the proposed amendments were complex and ultimately required significant and lengthy analysis by this Court to decide. [ 95 ] Further, some of the Plaintiffs’ requests were premature. This Court needed to make a decision regarding the amendments to the original claim before it could deal with the other relief sought in the Plaintiffs’ application. [ 96 ] For this reason, Mr. Sidorsky shall have his costs in relation to the 2015 Decision, calculated in accordance with Column 1 of

Schedule C of the Alberta Rules of Court . Heard on the 30 th day of November, 2015 and the 23 rd day of June, 2016. Dated at the City of Calgary, Alberta this 14 th day of September, 2017.

C.M. Jones J.C.Q.B.A. Appearances: Desmond MacMillan Knight LLP for the Plaintiffs B. Adam E. Brener Leon Brener Law for the Defendant