Schneider v Scandinavian Management and Realty Ltd, 2021 ABQB 139

Court of Queen’s Bench of Alberta Citation: Schneider v Scandinavian Management and Realty Ltd, 2021 ABQB 139 Date: 20210222 Docket: 1703 19181 Registry: Edmonton Between: Carl Schneider Plaintiff - and - Scandinavian Management and Realty Ltd. and Skyline Property Management Inc. Defendants _______________________________________________________ Decision of the Honourable Mr. Justice Robert A.

Graesser _______________________________________________________ Introduction [ 1 ] The Plaintiff, Carl Schneider, seeks to compel the officer of the Defendant, Skyline Property Management Inc to comply with refusals to provide or answer undertakings on questioning, as well as to require Skyline’s officer to provide further or better answers to undertakings given on the questioning. [ 2 ] Skyline cross applies to have Mr. Schneider provide further or better answers to undertakings given on questioning.

[ 3 ] The applications were deal with by written submissions rather than oral argument, by agreement of the parties at the case management conference. Background [ 4 ] This action was commenced in 2017 as an intended class proceeding. No application for certification has been brought as yet. The parties have produced their records and had a first round of questioning. Some undertakings given by the parties have been complied with; others are in dispute.

Further questioning is set for early March, 2021. [ 5 ] I was appointed case manager of this matter in January 2021, and this decision arises out of issues raised at the first case management conference. [ 6 ] Mr. Schneider was a tenant in a condominium building in north central Edmonton. The condominium corporation, Condominium Corporation No 072 6992, retained Skyline to manage the condominium property. Mr. Schneider leased the unit from its owner, Sarbjit Takhar, from 2015 to 2016. Mr. Takhar had retained Scandinavian Property and Realty Ltd. to manage the condominium unit for him.

Scandinavian, as agent for Mr. Takhar, leased the unit to Mr. Schneider. [ 7 ] Mr. Schneider claims that the unit he leased and others in the condominium property were infested by bedbugs and cockroaches, making them untenantable. He seeks damages for the consequences of bites, alleging that Scandinavian as his landlord and Skyline as property manager breached their duties to him.

His damage claims include loss of income as he claims he was unable to work for an extended period of time because of the effects of the bites. [ 8 ] Information obtained through discovery shows that Skyline retained Maritime Pest Control to inspect various units and to provide pest control treatments for bedbugs and cockroaches from 2015 to 2019 or 2020. A number of records including inspection reports and invoices were produced, which Mr. Schneider describes as incomplete for the purposes of this application. [ 9 ] Mr.

Schneider commenced this action as an intended class proceeding under the Class Proceedings Act , RSA 2003, c. C- 16.5 on behalf of himself and other tenants and owners in the condominium corporation who were harmed by the bedbugs and cockroaches and alleged negligence and breaches of duties of Skyline and Scandinavian. [ 10 ] Questioning took place in October 2020. Ms. Seang Hem was questioned as the officer of Skyline. During questioning, two undertakings were refused: 1. To provide the names of the people who were living as tenants in the units treated for bedbugs or roaches from 2015 to 2016; and 2.

To inquire of Maritime to determine what certain strike marks mean on some of the invoices Maritime provided to Skyline for pest control. [ 11 ] Skyline’s position is that it is not required to produce the tenant information partly for privacy concerns and partly because the identity of tenants is irrelevant at this stage because:

a) The action has not yet been certified as a class proceeding and there is no application for certification; and

b) The potential size of the class is not relevant and material before an application for certification has been filed. [ 12 ] Skyline says it is not required to make inquiries of its contractor Maritime as it exercises no control over Maritime and Skyline cannot be said to have any control over Skyline’s records. Skyline says there is no impediment to Mr. Schneider making such requests to Maritime himself. [ 13 ] Mr. Schneider says that Skyline has not fully complied with several undertakings given, namely: 1.

Skyline undertook to provide pest treatment reports since 2016 to 2020; it only provided reports to November 2019; 2. Skyline undertook to provide copies of treatment or inspection records or invoices; reports from June 2015 to September 2015 were not produced; 3. Skyline undertook to advise whether any inspection or treatment was done between January 26, 2016 to March 17, 2016 for any units; Skyline provided reports dated January 26, 2017 and March 2017, 2016 only and provided no information on what occurred between those dates; 4.

Skyline undertook to provide copies of any inspection reports and invoices relating to pest control treatment between January 1, 2015 and September 2, 2015; Skyline has only provided treatment reports from October 2015 to August 2016 and treatment notices from September 2015 to May 2016. [ 14 ] Skyline responds that there is no evidence before the Court that Skyline has failed to produce more than it has or is obliged to disclose; the Plaintiff is assuming or simply alleging that there is more to disclose, without affidavit evidence to support these assumptions or allegations.

The Plaintiff’s remedy is to question the officer on the undertakings. [ 15 ] As for Skyline’s application, it seeks production of records or documentation in the possession of Mr. Schneider’s accountant relating to his painting business. Skyline also seeks further and better particulars of the negligence alleged against Skyline. Skyline claims that the Plaintiff’s response was inadequate. Case Law

[16] Mr.

Schneider relies on Canadian Western Bank v Alberta, 2003 ABQB 254. [17] Skyline cites: Parks v McAvoy, 2020 ABQB 675; Tolton v Tolton, 2020 ABCA 218; McAllister v Calgary (City), 2012 ABCA 346; Rieger v Plains Midstream Canada ULC, 2019 ABQB 66; Pearson v Inco Limited, (ON SC), [2001] OJ No 4877 (ONSC); United Inc v Jacques Whitford Environmental Ltd., 2008 ABCA 158; and Wrzesien v Arnett & Burgess Pipeliners Ltd., 2013 ABQB 59 Analysis [18] Class proceedings are complicated actions, and it is often difficult for the plaintiff to obtain sufficient information to make anapplication for certification with supporting materials.

It is not uncommon for questioning or examinations for discovery to take placebefore the application for certification is brought. That is obviously what has happened here, without apparent objection from theDefendants or Third Parties. That said, Pearson v Inco holds that intervention by the Court for discovery purposes in an intended classproceeding should be “narrowly directed and sparingly employed since it serves to interfere with what would otherwise be the normalrights of the parties, and others, to conduct their affairs as they see fit” (headnote).

In Rieger v Plains Midstream Canada ULC, PoelmanJ stated at para 9 that “the court has discretion whether to order pre-certification disclosure”, referencing Pro-Sys Consultants Ltd vMicrosoft Corp, 2013 SCC 57. [19] I am also mindful of the foundational Rule of Court, 1.2, which prescribes that litigation be fairly and justly resolved in atimely and cost-effective way, as well as to identify the real issues in dispute and facilitate the quickest means of resolving the claim atthe least expense (amongst other objectives). [20] That discovery (oral and documentary) is limited to questions and records that are relevant and material to “significantly helpdetermine one or more of the issues raised in the pleadings” (Tolton v Tolton at para 24) is clear.

Undertakings - Refused 1. Identity of Tenants [21] I agree with Skyline that it is generally not up to the Defendant to do the Plaintiff’s work for them. Skyline says the identity ofany tenants is not relevant because this is not yet a certified class proceeding, nor has an application for certification been filed. Thetenants’ privacy should be respected as much as possible. [22] Certainly, the identity or even the existence of other injured parties is not relevant to Mr. Schneider’s own claim. This isrelevant only in the context of class proceedings.

Having regard to the foundational Rule 1.2 and the discretion regarding pre-certificationdisclosure recognized in Rieger v Plains Midstream Canada ULC, I think it would be impractical to require the Plaintiff to file anapplication for certification before any questions relevant and material to the certification issue can be asked. I note that Pearson v Incois a relatively early case in the history of class proceedings in Canada and the approach there may have been overtaken to some degreeby cases such as Pro-Sys Consultants. I prefer the broader approach taken by Poelman J in Rieger.

Here, there is no mystery that thePlaintiff intends this to be a class proceeding on behalf of owners and tenants in the condominium property affected by bedbugs andcockroaches, and it would be contrary to the spirit of the Foundational Rule to put exploration of this issue on hold until a certificationapplication has been brought. [23] The Plaintiff notes that Skyline has produced a list of the names of the owners of the units in the property. However,ownership is a matter of public record and can be obtained through Land Titles office searches.

There is no registry of tenants, although Iconsider the existence of a tenancy to be, in most cases, at the low end of privacy. There are exceptions to that where a tenant may havevalid security concerns if their residential address were known to others. However, tenants are required to provide their residence addressfor motor vehicle registry purposes, to utility suppliers, and likely many others. Tenants frequently display their names at buildingentrances.

There are privacy interests at play, and in the absence of a compelling reason to require that their identities be disclosed at thisstage of the proceedings, I am not satisfied that the Plaintiff has demonstrated a reasonable need to know. [24] It should be sufficient for the Plaintiff to be advised which units were occupied by tenants to the knowledge or information ofSkyline.

While the Class Proceedings Act only requires that there be two or more plaintiffs for a class proceeding, it is undoubtedlyrelevant for the certification application to have some information as to the size of the class or classes. [25] It is possible that there may be reasons for there to be an “owner” class and a “tenant” class if the action is ultimately certified. [26] There is also the practical issue of whether a class proceeding would be the “preferable procedure for the fair and efficientresolution of the common issues” (s 5(1)(d)). [27] I do not take Skyline’s submission that the number of plaintiffs is irrelevant to be an admission that they do not see thenumber of potential plaintiffs as being relevant to certification in any way at all, and in any event, Skyline is only one of two Defendantsand there are also third parties.

Others in the defence group may not share Skyline’s view as to relevance.

[ 28 ] Skyline should provide information as to the specific units occupied at various times during the relevant period. 2. Inquiries from Maritime [ 29 ] It is not exactly clear to me from the materials what the erasures or redactions in Maritime’s reports are. While I do not think that the Plaintiff has an obligation to demonstrate that Maritime is still in business before Skyline could be obliged to make inquiries (as argued by Skyline), the only evidence before me is that Maritime was an independent contractor to Skyline and not an employee.

Thus, Skyline does not exercise control over Maritime and has no legal right to require Maritime to provide it with records or information not already provided. [ 30 ] This may be contrasted with a client’s right to obtain records from a professional who provides them with services, or a government agency such as CRA who owe certain duties regarding the disclosure of government records. [ 31 ] It seems to me that the case law is clear ( United Inc v Jacques Whitford Environmental Limited ) that a party is only required to produce records or information in its power.

The 2010 Rules have not changed that position, and I do not see that Skyline should be required to make inquiries of Maritime and provide that information to the Plaintiff. Skyline has offered to consent to the release of any information by Maritime to the Plaintiff if that becomes and issue. Beyond that, it seems to me that all Skyline can be obliged to do is to identify the person or people at Maritime it dealt with.

The Plaintiff is free to seek out the information itself, and has some ability under the Rules to compel production of records from third parties. [ 32 ] I observe that Maritime is not a party; any of its records are presumptively hearsay. The Plaintiff has not demonstrated that the erasures or redactions in some of the records relate to relevant and material information. Undertakings -Incomplete Responses 3. Pest treatment reports since 2016 to 2020 [ 33 ] I do not think that the Plaintiff is required to assume that since reports were only provided to November 2019 that there are no further reports.

That may be implied, but rather than force the Plaintiff to obtain that confirmation on further questioning, an undertaking response should be fulsome and clear so that there is no necessity for assumptions. Skyline should confirm to the Plaintiff that there are no further reports, written or oral, other than the ones that have been produced. 4.

Copies of treatment or inspection records or invoices from June 2015 to September 2015 [ 34 ] As with the pest treatment reports between 2016 and 2020, I do not think the Plaintiff should be required to assume that there were no other inspections or invoices between June 2015 and September 2015 because none were provided, or to arrange a follow-up questioning to get that confirmation. It is an easy task for Skyline to confirm one way or the other whether they have produced all the inspection reports and invoices during that period. 5.

Whether any inspection or treatment was done between January 26, 2016, to March 17, 2016, for any units [ 35 ] Similar to 3 and 4 above, Skyline should confirm without the necessity of follow up questioning whether the information and documents already provided constitute all of the inspections and testing during that period. 6.

Skyline undertook to provide copies of any inspection reports and invoices relating to pest control treatment between January 1, 2015, and September 2, 2015; Skyline has only provided treatment reports from October 2015 to August 2016 and treatment notices from September 2015 to May 2016. [ 36 ] As well, Skyline should advise the Plaintiff whether it has provided all of inspection reports and invoices during the period in question.

Incomplete Compliance by Plaintiff Financial documents [ 37 ] I do not think the Plaintiff is refusing to produce the documentation he provided to his accountant relating to his business activities. Those are undoubtedly relevant to the Plaintiff’s damage claim. Anything given to his accountant are, in my view, documents in his power because of the accountant’s professional duties to him, and such records should be obtained from the accountant and provided to Skyline without delay. Further particulars [ 38 ] Skyline objects to the sufficiency of the particulars of negligence of Skyline that have been provided.

Particulars of negligence is an area where there is some cross-over between the facts and the law. I do not think that I am in a position to direct the Plaintiff to provide further or better particulars. I would simply observe that it is in a party’s best interests to provide as fulsome particulars as they can. Doing so prevents surprises down the road. Additionally, record production and questioning are governed by relevance and materiality, which in turn are informed by the pleadings.

Plaintiffs who provide skimpy particulars may find themselves disadvantaged during questioning or at trial. [ 39 ] This is one of those areas where any perceived inadequacies might be best addressed by further questioning of the Plaintiff on his undertakings. Costs [ 40 ] Both parties seek costs from the other. At this early stage of the proceedings, I am simply going to order costs in the cause.

Heard on the 25 th day of January, 2021. Dated at the City of Edmonton, Alberta this 22 nd day of February, 2021. Robert A. Graesser J.C.Q.B.A. Appearances: Akash R S Cheema, Merchant Law Group for Carl Schneider Ken Haluschak, Bryan & Company LLP for Skyline Property Management Ltd. Kate Foster, Aviva Canada Inc. for Scandinavian Management and Realty Ltd. (did not participate in application) Sukhwinder Sandhu, Purewal Law for Sarbjit Takhar (did not participate in application)