Condominium Corporation No., 2018 ABQB 963

Court of Queen’s Bench of Alberta Citation: Condominium Corporation No. 0613782 v Country Hills Landing Limited Partnership, 2018 ABQB 963 Date: 20181122 Docket: 1601 15903 Registry: Calgary Between: Condominium Corporation No. 0613782 Plaintiff - and - Country Hills Landing Limited Partnership by its Limited Partners Cardel Homes Limited Partnership, Sherjen Developments Ltd, Brad Remington Holdings Ltd, Country Hills Landing Ltd, Abugov Kasper Architecture Interior Design, Tomecek Roney Little & Associates Ltd, Cardel Construction Ltd, Brad Remington Project Management Ltd, Brad Remington Holdings Ltd, Bow Valley Exteriors Ltd, Peter Ross Ab Ltd, Peter Ross Roofing Ltd, City Of Calgary Defendants _______________________________________________________ Endorsement of J.T.

Prowse, Master in Chambers _______________________________________________________ [ 1 ] The defendant, Tomecek Roney Little & Associates Ltd. (“TRL”), one of numerous defendants in this action, applies for

summary dismissal of the action against itself. [ 2 ] The lawsuit concerns damage from water intrusion into a number of buildings known collectively as Lighthouse Landing and owned by the plaintiff condominium corporation. TRL says that none of the damage is attributable to TRL as structural engineer. [ 3 ] The plaintiff responds that TRL has not adduced sufficient evidence to meet the onus on it to establish that there is no merit to the claim against it. [ 4 ] For the reasons which follow I decline to grant

summary dismissal. Onus of proof [ 5 ] The outcome of this application revolves around the question of onus of proof. [ 6 ] Where a defendant such as TRL applies for

summary dismissal, it must adduce evidence indicating, on a balance of probabilities, that the action against it lacks merit. [ 7 ] As stated by the Alberta Court of Appeal in Condominium Corp. No. 0321365 v 970365 Alberta Ltd. , 2012 ABCA 26 , 2012

CarswellAlta 58 at para 43 :, 2012 ABCA 26: In the first instance, a

summary judgment application involves two steps. First, the moving party must adduce evidence to show there is no genuine issue for trial. This is a high threshold. If there is no genuine issue for trial, then there will be no merit to a claim. Accordingly, if the evidentiary record establishes either that there are missing links in the essential elements of a cause of action or that there is no cause of action in law, then there will be no genuine issue for trial.

The fact there is no genuine issue for trial must be proven; relying on mere allegations or the pleadings will not suffice: Papaschase Indian Band No. 136 v. Canada (Attorney General), 2008 SCC 14 (S.C.C.) at para 11 , [2008] 1 S.C.R. 372 (S.C.C.). Second, once the burden on the moving party has been met, the party resisting

summary judgment may adduce evidence to persuade the court that a genuine issue remains to be tried: Murphy, supra at para 25. That effectively means showing that the claim has what is often referred to as "a real chance of success". This may be accomplished by establishing the existence of disputes on material questions of fact, including inferences to be drawn therefrom, or on points of law that cannot be readily resolved given the factual disputes. [emphasis added] [ 8 ] See to the same effect: Papaschase Indian Band No. 136 v Canada (Attorney General) , 2004 ABQB 655 (Alta.

Q.B.) at para 52 ; Sullivan v Golden Intercapital (GIC) Investments Corp. , 2010 ABQB 338 , 2010 CarswellAlta 2137 at para 15 ; Carbone v Whidden , 2013 ABQB 434 at paras 9-10 ; Lay v Lay , 2017 CarswellAlta 125, 2017 ABQB 29 at para 50 ; and Stefanyk v Sobeys Capital Incorporated , 2018 ABCA 125 at para 16 .

Evidence submitted by TRL to show that the action lacks merits [ 9 ] The ideal evidence for the defendant TRL would have been opinion evidence from an expert in structural engineering and construction to the effect that, in his/her opinion, none of the damages claimed by the plaintiff resulted from faulty structural engineering or inspection by TRL. [ 10 ] Instead, what TRL submitted was an affidavit from Jason Finell.

No effort is made to qualify him as an expert, yet he opines on the central issue in this application, as follows: The alleged damage suffered by the Plaintiff was caused by a building envelope failure and is not related to any structural deficiency [ 11 ] Further, Mr. Finell seems to base his opinion on an unsworn letter report from Read Jones Christoffersen (“RJC”) which is attached to his affidavit. [ 12 ] Mr. Finell obtained the RJC letter report from the plaintiff’s affidavit of records. The letter report had been obtained by the plaintiff prior to the commencement of these proceedings. [ 13 ] Mr.

Finell’s affidavit is of no evidentiary value because it consists of an opinion from someone not qualified to provide opinion evidence, and it is based on an unsworn letter report. [ 14 ] TRL has thus not met the burden on it as applicant for

summary dismissal to show, on the evidence, that there is no genuine issue for trial. [ 15 ] Accordingly I dismiss TRL’s application for

summary dismissal. [ 16 ] I award the plaintiff costs of $4,000 plus disbursements. The normal party and party fees would be $3,500 but I have added an extra $500 due to counsel for the applicant not providing an additional case on which he was relying to the plaintiff’s counsel as early as possible. Heard on the 06 th day of November, 2018. Dated at the City of Calgary, Alberta this 22 nd day of November, 2018. J.T. Prowse M.C.C.Q.B.A. Appearances: Michael P. Cashion

DBH Law for the Plaintiff Nabeel Peermohamed Brownlee LLP for the Defendant TRL