Briggs v Orlowski, 2017 ABQB 724

Court of Queen’s Bench of Alberta Citation: Briggs v Orlowski, 2017 ABQB 724 Date: 20171128 Docket: 1403 02735 Registry: Edmonton Between: Shawn Briggs Plaintiff/applicant - and - Virginia Orlowski Defendant/respondent _______________________________________________________ Reasons for Judgment of the Honourable Madam Justice D.C. Read _______________________________________________________ Overview: [ 1 ] The basic issue before me is whether a limitation period for commencing an action for unjust enrichment has passed.

On the particular facts of this case, Goss, J ordered that there were credibility issues in respect to when the limitation period began and these had to be resolved by hearing oral evidence from the parties. [ 2 ] The Goss order was made after the written decision of Master W.S. Schlosser, Q.C, reported as Briggs v. Orlowski , 2016 ABQB 476 . He heard an application to determine the limitation issue but concluded he must dismiss it because he could not find the

facts necessary to determine the issue on conflicting affidavit evidence. [3] I have now heard oral evidence and am able to resolve the credibility issues sufficiently to determine the issue on its merits. Background Facts: [4] Some background facts are necessary. [5] The Plaintiff Shawn Briggs and the Defendant Virginia Orlowski lived together in what is sometimes called a ‘common law’relationship from about August 1, 1999 until February 1, 2009. [6] During the currency of their relationship, Ms. Orlowski purchased property (the “Land”) on which she and Mr. Briggs residedand Mr.

Briggs asserts that he did much work and expended his own funds to improve the Land. [7] He asserts that, as a result, Ms. Orlowski has been unjustly enriched by an increase in value of the Land resulting from hiswork and investment. [8] Mr. Briggs says after they separated, Ms. Orlowski’s mental health was so fragile that he decided not to do anythingrespecting his property claim and that they both agreed they would delay division of matrimonial property until she felt better.

He saysthat there was an express agreement between them that she would not rely on any limitation period if he delayed bringing an action. [9] He asserts that when he drove by the Land on September 16, 2013, he saw that it was for sale, he realized that Ms. Orlowskidid not intend to deal with his claim. He then filed a caveat against title to Land on September 26, 2013, and filed a Statement of Claimon February 21, 2014. [10] Ms. Orlowski defended asserting, among other things, that a limitation period had passed and Mr. Briggs claim was out oftime. Her Statement of Defence caused Mr.

Briggs to amend his Statement of Claim to allege the agreement not to rely on the limitationperiod and waiver by Ms. Orlowski. The amendment was filed on September 4, 2015. [11] Ms. Orlowski brought an application before Master Schlosser to strike the Statement of Claim and to discharge the caveat. [12] Goss, J of this Court granted an application made by Mr. Briggs for a special chambers hearing with viva voce evidence todetermine the credibility of the parties as it pertains to the limitation issue. The Applicable Law: [13] Mr.

Briggs’ claim for an interest in property is based upon a remedial constructive trust. Section 3(1) of the Limitations Act,R.S.A. 2000, c. L-12 applies: see Johansson v. Fevang, 2009 ABQB 573 , [2009] A.J No 1063 at para 11. [14] This provision reads as follows: 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 toimmunity from liability in respect of the claim. [15] In his written materials, the Plaintiff also alleged that s. 7 of the Limitations Act is also a relevant provision, because the partieshad an express agreement pursuant to which the limitation period was extended.

However, as he acknowledged through his counsel inoral argument, under s. 9(1) of the Act, any such agreement must be in writing and “signed by the person adversely affected” and no suchwriting exists. Therefore, s. 7 of the Limitation Act has no applicability. [16] In Johansson, the Court concluded that because the constructive trust claim arose where the parties were or might have beenadult interdependent partners, the relevant limitation period is affected by the provisions of the Adult Interdependent Partners Act,R.S.A. 2002, c.

A-4.5 (“AIRA”). [17] In the case before me, there is no doubt that AIRA applies to the relationship between Mr. Briggs and Ms. Orlowski as bothparties agree they cohabited for a continuous period of almost ten years. Thus, theirs was defined as an ‘adult interdependentrelationship’: s. 3(1)(a)(i) ; s1(1)(a), s. 1(1)(

c) AIRA. [18] A claim in constructive trust for division of property does not arise during the course of a relationship but only when it breaksdown. Does the limitation period for unjust enrichment begin to run at the date of separation? In Milavsky v. Milavsky 2011 ABCA 231,the Court of Appeal concluded that generally speaking, it does.

[ 19 ] However, in Johansson the Court concluded that because of the operation of AIRA , the limitation period might not have begun to run when the parties separated. Instead, it might have commenced a year after the separation. It was for this reason that Justice Ouellette declined to summarily dismiss the claim. [ 20 ] Justice Ouellette’s analysis of why the terms of AIRA affect limitations in a claim of unjust enrichment, was as follows. Under AIRA, an ‘adult interdependent partner’ does not include a ‘former adult interdependent partner’: see s. 1(1) (

a) Section 10 of the Act describes the circumstances in which someone becomes a ‘former adult interdependent partner. The applicable

section is s. 10(1)(

b) which provides: 10

(1) An adult interdependent partner becomes the former adult interdependent partner of another person when ... (

b) the adult interdependent partners live separate and apart for more than one year and one or both of the adult interdependent partners intend that the adult interdependent relationship not continue. [ 21 ] In the case at bar, it does not matter whether the unjust enrichment claim arose at the date of separation or a year thereafter. Even if the unjust enrichment claim arose a year after the separation, it would have arisen on February 1, 2010. [ 22 ] Mr. Briggs did not issue his Statement of Claim until February 21, 2014. If the claim arose on separation, he was more than three years late.

If it arose a year later, he was two years late. In either case he was out of time. Analysis: [ 23 ] However, that does not end the matter. A number of issues were raised by the Plaintiff which he says, extends the limitation period in this case. [ 24 ] Mr. Briggs alleges that the date of separation is extended if the parties are considering reconciling and have not yet finally decided to separate. The provision relied upon in support of this argument is that portion of s. 10(1)(

b) of the AIPA which specifies that adult interdependent partners do not become former adult interdependent partners until the happening of two things – firstly a separation of more than one year and secondly the “intention of one or both... that the relationship not continue. [ 25 ] This argument does not aid Mr. Briggs. [ 26 ] Ms. Orlowski was very clear in her testimony that at no time did she ever want to reconcile after the February, 2009 separation and at no time did she tell Mr. Briggs anything that would have led him to believe that she did. Mr.

Briggs’ evidence was that they did discuss reconciliation and that Ms. Orlowski told him they could reconcile if he took counselling. He said, however, that he did not agree to go to counselling because he did not think he needed it. [ 27 ] Their viva voce testimony on this issue mirrors the evidence each swore to in affidavits. Where it differs, I prefer the evidence of Ms. Orlowski. I conclude that Ms. Orlowski intended that the relationship would no longer continue at the time of separation. Whether Mr. Briggs wanted to reconcile or not is irrelevant. Whether he believed subjectively that Ms.

Orlowski might consider reconciliation is also irrelevant. Only one interdependent partner needs to have the intention not to reconcile pursuant to s. 10(1)(

b) and Ms. Orlowski’s evidence that she did not want to, is determinative. Only she can give evidence about her state of mind at the relevant time. Thus, by February 2010, the parties fit the definition of “former interdependent partners”. [ 28 ] The second question respecting when the limitation period commenced stems from the wording of s. 3(1) (

b) of the Limitations Act . When did Mr. Briggs know 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 [ 29 ] I agree with Master Schlosser that the onus is on the proponent Mr. Briggs to show on a balance of probabilities that he filed his Statement of Claim within the time set in the Limitation Act and thus it is for him to show when he knew or ought to have known about the three requirements. [ 30 ] Ms.

Orlowski says that the “injury” occurred on separation when the property was not divided since that is when Mr. Briggs claim for a sharing in the accumulated property arose. [ 31 ] Mr. Briggs says that, because of the talk about reconciliation and because of Ms. Orlowski’s ill health, he did not realize that the “injury” “attributable to the conduct of” Ms. Orlowski had occurred until he happened to drive by the Land on September 13, 2013 and saw that it was for sale. His evidence was that he telephoned Ms. Orlowski after seeing the for sale sign. [ 32 ] Mr.

Briggs argument rests on the proposition that the test is subjective. It is only when he came to the realization that the parties would not reconcile that the “injury” occurred. [ 33 ] However, neither the wording of the

section or the case law support his assertion. The legal test has two branches: whether he knew or “whether in the circumstances ought to have known”. As the Court of Appeal pointed out in Boyd v. Cook, 2013 ABCA 27 at para 28 : The test is largely objective that of the reasonable person in the same circumstances...[the plaintiff’s] actual state of mind ..at best is one alternative arm of the test. What the reasonable person would have known or discovered with some diligence, could equally start the

limitation period running. [ 34 ] Counsel for Mr. Briggs attempted to distinguish Boyd on the basis that Mr. Boyd was described as an experienced and sophisticated business man whereas Mr. Briggs is not. That argument merely muddies the waters by attempting to introduce a subjective element into the objective branch of the test. [ 35 ] Further, Mr. Briggs’ oral testimony makes it clear he subjectively knew at the time of separation that he had a claim (an ‘injury’ in the terms of the Act).

In cross-examination, he said that when the parties separated, “I knew that it was a property that both of us had together” and “I believed I was entitled to property”. Ms. Orlowski’s evidence also leads to the conclusion that he knew he had a cause of action. On the very day of the separation, she said Mr. Briggs warned her “you separate from me and you won’t have a pot to piss in”.

She said, as well, that shortly after the separation, he told her that if she tried to go after his assets or any kind of support, he would go after her house, telling her he had an appointment with a lawyer. [ 36 ] On the same basis, a reasonable person in Mr. Briggs’ circumstances at the date of the separation ought also to have had the necessary information to meet the two further requirements of s.3(1)(b) -- that the injury was attributable to the actions of Ms. Orlowski in failing to divide the property and that the injury warranted bringing a proceeding. [ 37 ] Mr. Briggs’ alternative argument is that Ms.

Orlowski fraudulently concealed facts so as to lull Mr. Briggs into not suing. [ 38 ] There is simply no air of reality to this assertion. The basis for the argument is an allegation that Ms. Orlowski agreed with Mr. Briggs to wait to deal with their property matters until she was in a proper mental state and that she fraudulently concealed from him that she no longer required mental health counselling. [ 39 ] This claim has no evidentiary basis. Ms. Orlowski denies any such agreement. Mr. Briggs’ assertion was vague and his evidence on this and other matters was contradictory and evasive.

At one point in his testimony, he said they reached such an agreement during one of their telephone conversations. A short time later in cross-examination, he admitted that after he had his vehicles returned to him shortly after the separation, he never broached the subject of further property division with Ms. Orlowski. [ 40 ] Further, Mr. Briggs’ evidence about Ms. Orlowski’s mental state was obtained only during the discovery process when he received copies of her mental health records. Thus, at the relevant time, he could not have known any details about Ms. Orlowski’s mental health.

He was vague in his assertion that Ms. Orlowski said anything to him about her mental health. At one point, he said he inferred it from his familiarity with Ms. Orlowski gained during their cohabitation. [ 41 ] By contrast, Ms. Orlowski’s evidence was that she never told him of her attempted suicide and gave Mr. Briggs no information that she was attending counselling. [ 42 ] Mr. Briggs’ points to the records of telephone records as evidence of the “concealment” These records do show a number of telephone discussions between them.

There is little evidence from him, however, of what transpired in these various conversations that led him to believe she was mentally ill or still mentally ill. He asks me to assume the conversations must have contained some such discussions that had the effect of lulling him into inaction, even though he can point to nothing she said that did so. [ 43 ] Ms. Orlowski’s evidence was that the telephone discussions were largely initiated by Mr. Briggs and often consisted of threats and attempts by him to get her to reconsider the separation.

She said that her responses were merely an attempt to calm him and to maintain a reasonable relationship so that she could lessen her fear of his returning uninvited to the property. She said she lived alone and her closest neighbour was about half a mile away so she thought it would be better to leave on good terms. [ 44 ] In conclusion, none of Mr. Briggs’ evidence or his arguments extend the limitation period. It passed, at the latest, by February 1, 2012. Mr.

Briggs was out of time when he issued his Statement of Claim on February 21, 2014. [ 45 ] As discussed at the conclusion of argument, both parties may submit a letter setting out their position on costs. I request that these letters be provided by no later than December 20, 2017. As Ms. Orlowski has been largely successful, I direct that her letter be provided first and by no later than December 15, 2017. These letters should be scanned and sent by email through my assistant. Heard on the 24 th day of November, 2017. Dated at the City of Edmonton, Alberta this 27 th day of November, 2017. D.C. Read J.C.Q.B.A.

Appearances:

Darlene M. St. Jean, Triune Law for the Applicant, Mr. Briggs Darren K. Queck, Kurie Queck for the Respondent, Ms. Orlowski