Condominium Corporation No, 2021 ABQB 43

Court of Queen’s Bench of Alberta Citation: Condominium Corporation No 0427067 v Aviva Canada Inc, 2021 ABQB 43 Date: 20210115 Docket: 1703 10802 Registry: Edmonton Between: The Owners: Condominium Corporation No 0427067 Appellant (Plaintiff) - and - Aviva Canada Inc, Aviva Insurance Company of Canada, Commonwealth Insurance Company, Peace Hills General Insurance Company, Lloyds Underwriters, Intact Insurance, Economical Mutual Insurance, Crawford & Company (Canada) Inc, Crawford Adjusters Canada Incorporated, Crawford Adjusters and Darren Kneller Respondents (Defendants) _______________________________________________________ Reasons for Decision of the Honourable Madam Justice Bonnie L.

Bokenfohr _______________________________________________________

Appeal from the Decision by L.A. Smart, Master in Chambers Filed on the 3 rd day of September, 2019 Dated the 3 rd day of September, 2019 ( 2019 ABQB 678 , Docket: 1703 10802 ) Introduction [ 1 ] This is an appeal by The Owners: Condominium Corporation No 0427067 [Appellant/Plaintiff] of the decision of a Master- in-Chambers granting the Defendant Insurers/Respondents’ application for

summary dismissal of the Appellant’s claim based on the expiration of the limitation period prescribed by Alberta’s Limitations Act , RSA 2000, c L-12 , s 3 [ Limitations Act ]: Condominium Corporation No 0427067 v Aviva Canada Inc , 2019 ABQB 678 [ 427 v Aviva ] [ 2 ] The primary issue in this appeal is whether an alleged fraudulent concealment will intervene to extend the limitation period in this action. At its simplest, the matter can be summarized as follows. In 2012, the Insurers denied the Plaintiff’s claim.

In 2017, the Plaintiff realized that the Insurers assessed and denied the claim relying on the wrong insurance policy. The Plaintiff then filed a Statement of Claim in 2017 challenging the 2012 denial and seeking to have the claim assessed under the correct policy. The Insurers have declined to reconsider the claim using the correct policy wording and resist the Plaintiff’s claim on the basis that it is outside the limitation period.

The Plaintiff argues that the limitation period is suspended as a result of a fraudulent concealment perpetrated by the Insurers or their agent. [ 3 ] For the reasons that follow, I find that there was no fraudulent concealment by the Insurers or their agent. Further, I agree with the decision of the Master-in-Chambers and find that it was correct. As such, I dismiss the Plaintiff’s appeal and accordingly, conclude that the Defendants are entitled to

summary dismissal of the Plaintiff’s claim. Facts [ 4 ] The Master’s decision presents the facts accurately . I have, however, captured the relevant facts below for ease of reference on this appeal. [ 5 ] The Plaintiff is the owner of a residential condominium known as Palisades Park Villas [Palisades or the Property] located in Edmonton, Alberta. [ 6 ] Renfrew Insurance Ltd. [Renfrew] was the insurance broker for the Plaintiff at all material times. York West Asset Management Group [York West] was the property manager. [ 7 ] Crawford Adjusters Canada Incorporated [Crawford] provides loss adjusting services.

Darren Kneller [Kneller] worked for Crawford as an insurance adjuster. [ 8 ] On July 15, 2009, Renfrew arranged a liability and property policy of insurance for the Plaintiff [the Policy]. The Policy was a subscription policy. From July 2009 to June 2011 the Policy was renewed, amended or updated on nine occasions with copies of the initial Policy and each revision being provided to the Plaintiff or York West and Renfrew. [ 9 ] The Policy renewed on July 1, 2011 with new property coverage wording. [ 10 ] On or around June 29, 2011, the Plaintiff discovered water damage to the Property .

On this date Aviva, Commonwealth, Lloyds, and Peace Hills were the Policy subscribers [the Insurers]. Aviva was the lead subscriber and responsible for coordinating any claims with the other subscribers. [ 11 ] On December 8, 2011, York West contacted Kneller and explained that the Property had suffered water damage with an estimate of $4.4 million dollars for repairs. York West also advised Kneller that the Plaintiff’s insurance broker, Renfrew, had advised that coverage was “a long shot.” York West asked Kneller to assess the loss and coverage and advised that York West would pay his fee.

Kneller asked York West for “the policy coverages to review if resulting damages are claimable or not.” Renfrew responded to Kneller’s request and provided him with the July 1, 2011 Policy. [ 12 ] The evidence of the Plaintiff is that it was their intention to retain Kneller directly to investigate coverage for the loss. [ 13 ] Over the course of December 12 and 13, 2011, Kneller communicated with Renfrew, York West and members of the Palisades Condominium Board and advised that the claim needed to be reported to the Insurers in order to give the Plaintiff an answer regarding coverage. [ 14 ] On December 14, 2011, both York West and the Chair of the Palisades Condominium Board advised Kneller that Palisades agreed to proceed with the claim. [ 15 ] On December 15, 2011, Kneller advised Aviva of the loss and his opinion that coverage denial was possible.

The next day –

December 16, 2011 – Aviva authorized Kneller to proceed with the denial on the basis that the damage being claimed was not the result of an insured peril. [ 16 ] On December 21, 2011 Kneller emailed York West to notify them that the insurance subscribers had received his Acknowledgment of Assignment to adjust the claim. [ 17 ] In late January 2012, Peace Hills – one of the subscribing insurers – contacted Kneller and requested a copy of Aviva’s policy wording. Peace Hills raised the possibility with Kneller that there may be coverage and Aviva may want to re-examine their position on denial.

Kneller responded by providing the July 1, 2011 Policy exclusions to Peace Hills. Peace Hill replied as follows, “That is better. Different than the ones I had. Still think that there is a loophole for the insured… But will follow lead’s discretion.

Will await final report/denial.” [ 18 ] On March 23, 2012, Crawford issued a formal letter to York West and Renfrew as agents of the Appellant advising that “upon review of your policy and consultation with your insurers, it has been noted that your policy does not provide coverage for damages sustained in relation to the above noted loss.” The letter specifically quotes policy wordings and exclusions. The letter included a blank Proof of Loss and a statement regarding the statutory limitation period.

The letter was signed by Kneller as Adjuster [the Denial Letter]. [ 19 ] The Policy wordings and exclusions used in the Denial Letter were those in effect as of July 1, 2011. Given that the water damage to Palisades occurred on or around June 29, 2011, the policy effective from July 1, 2011 did not apply to the claim. Rather, the wordings and exclusions in the policy that was placed on July 15, 2009, and as amended, was the applicable policy. [ 20 ] The Appellant/Plaintiff commenced an action in November 2012 against various entities for the damages suffered arising from alleged construction deficiencies.

That litigation is ongoing. [ 21 ] In March 2017, the Plaintiff’s counsel in the construction action requested the material on Kneller’s file which was provided by Crawford on April 13, 2017. It is only at this time that the Plaintiff realized that the wrong policy was used to assess the claim and cited in the Denial Letter. Consequently, the Statement of Claim for the within action was filed on June 7, 2017, and an Amended Claim on October 23, 2017.

In essence, the Plaintiff is now challenging the denial of coverage. [ 22 ] The Insurers and Crawford raise a limitations defence to the claim, pursuant to the Limitations Act , s 3. [ 23 ] The Insurers acknowledge that the Denial Letter erroneously refers the Appellant to the wrong policy wording and that the letter further sets out that the erroneous wordings applied to the loss. They also acknowledge that the claim was never investigated under the appropriate policy wording. [ 24 ] The Master-in-Chambers granted the applications for

summary dismissal by the Insurers and Crawford and dismissed the Plaintiff/Appellant’s action as against them. He also dismissed the Appellant’s action as against Kneller finding that “there is no basis for a claim against him personally”: 427 v Aviva at para 23 . Decision Below [ 25 ] In 427 v Aviva , the Master concluded: [21] The parties agree on the test for

Summary Judgment. Without reciting the many authorities arising from Hryniak v Mauldin , 2014 SCC 7 , the question is whether I am satisfied that a fair and just determination can be made on the record. Other than criticism of Economical’s evidence, there is no dispute as to what transpired. The Economical claim can be dispensed with pursuant to r 3.68 as the pleadings disclose no cause of action based on the facts alleged. [22] The real question is whether at law these factual circumstances give rise to a postponement or extension of the limitation period .

It is undeniable that errors [were] made which resulted in a most unfortunate denial of the Plaintiff’s claim. The Insurers and Crawford say the Plaintiff with the help of its agents and legal counsel ought to have readily recognized the error. Despite the temerity of this coming from those who also did not recognize the error, whether the error was recognized is in my view of no particular moment to this application.

No authorities have been presented to support the conclusion that the discussions, the representations or misrepresentations arising from the errors made, in law, postpone the running of the limitation period or extend it .

The claim by the Plaintiff was simply too late. [Emphasis added] [ 26 ] I agree with the conclusions of the Master for the reasons as set out in his decision. [ 27 ] On this appeal, the Appellant/Plaintiff has responded directly to the Master’s commentary in his decision that he had no authorities before him regarding the claim or “conclusion that the discussions, the representations or misrepresentations arising from the errors made, in law, postpone the running of the limitation period or extend it.” [ 28 ] The Appellant has clearly raised in this appeal the issue of fraudulent concealment against the Insurer/Kneller.

Issue [ 29 ] Accordingly, the primary issue on this appeal is: Does the Plaintiff/Appellant’s allegation of fraudulent concealment against the Defendants/Respondents (i.e. the Insurers, Crawford and/or Kneller) postpone or extend the running of the limitation period under the provisions of the Limitations Act ?

Standard of Review [30] The standard of review on appeal from a Master to a judge, on all issues, is correctness: Bahcheli v Yorkton Securities Inc,2012 ABCA 166 at para 30. Law [31] The Alberta Limitations Act reads, in part, as follows: 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 theclaim. 4(1) The operation of the limitation period provided by section 3(1)(

b) or (1.1)(

b) is suspended during any period of time that thedefendant fraudulently conceals the fact that the injury for which a remedial order is sought has occurred.

(2) Under this section, the claimant has the burden of proving that the operation of the limitation period provided by section 3(1)(

b) or(1.1)(

b) was suspended. [32] In Ambrozic v Burcevski, 2008 ABCA 194 [Ambrozic], our Court of Appeal prescribed the relevant test for assessing whenfraudulent concealment will suspend a limitation period: [21] Fraudulent concealment that suspends a limitation period requires three findings: (1) that the defendant perpetrated some kind offraud; (2) that the fraud concealed a material fact; and (3) that the plaintiff exercised reasonable diligence to discover the fraud: H.(V.A.)v.

Lynch, 2000 ABCA 97, 255 A.R. 359 [H.(V.A.)]. [22] … fraudulent concealment require[s] “conduct which, having regard to some special relationship between the two partiesconcerned, is an unconscionable thing for the one to do towards the other”: Kitchen v. Royal Air Forces Association, [1958] 2 All E.R.241 at 249 (C.A.) and Guerin v. The Queen, (SCC), [1984] 2 S.C.R. 335, 13 D.L.R. (4th) 321. [23] Fraudulent concealment requires an element of unconscionability, “some abuse of a confidential position, some intentionalimposition, or some deliberate concealment of facts”: M.(K.) v.

M.(H.), (SCC), [1992] 3 S.C.R. 6 at 57, 96 D.L.R. (4th)289. Unconscionable conduct can be either active concealment or a failure to disclose: H.(V.A.) at para. 35. As well, the defendant mustknow of the wrong. A defendant who is unaware that he has committed a wrong is protected by statutory limitations: King v. VictorParsons & Co., [1973] 1 All E.R. 206 (C.A.). [24] The second requirement is that “the fraud must have concealed some material fact which the plaintiff has to prove to succeed attrial”: H.(V.A.) at para. 28 […]. [25] The third requirement looks at the plaintiff’s conduct.

The limitation period will not be suspended if the plaintiff could haveuncovered the fraud but did not make reasonable inquiries. What constitutes reasonable diligence depends on the particular situation: H.(V.A.) at para. 29. This element incorporates the doctrine of discoverability. The limitation period begins to run when, in thecircumstances, the plaintiff ought to have discovered the facts material to the claim.

Analysis Did the Insurer and/or Kneller perpetrate some kind of fraud on the Plaintiff? [33] The Appellant identifies the following conduct as supporting their case for fraudulent concealment. [34] First, the Appellant argues that they were unaware that Kneller was retained by both themselves and the Insurers. They arguethat it was their intention to retain Kneller to provide an independent opinion on coverage.

When they retained Kneller they wereunaware that Crawford (and therefore Kneller) also provided adjusting services to Aviva pursuant to a Delegated Authority Programunder which Crawford would handle certain claims on Aviva’s behalf. Further, they argue that at no time did Aviva advise the Appellantthat they had retained Kneller and Crawford, and neither did Kneller and Crawford advise that they were no longer working solely onbehalf of the Plaintiff. Peace Hills and Northbridge also separately retained Kneller and Crawford on December 8, 2011 without advisingthe Plaintiff of this development.

[ 35 ] Second, the Appellant contends that Kneller suppressed information he received in late January/early February 2012 from Peace Hills – one of the subscribing insurers – that the policy wordings that they held on file were “different” and the loss may be covered. The Appellant argues that Kneller should have shared this information with the Appellant given that he was acting for both the Plaintiff and Insurers. However, Kneller never passed this information on to the Appellant notwithstanding the fact that he received the information while acting for both the insured and the insurer at the same time.

The Appellant argues that Kneller’s failure to share what Peace Hills had said with the Plaintiff Condominium Board when he met and advised them on their rights amounted to an unconscionable act. [ 36 ] With respect to the question of dual agency, the records on this appeal establish that on December 8, 2011, Crawford and Kneller were contacted and retained to adjust the Appellant’s claim by York West, the Appellant’s property manager. On December 15, 2011, Kneller made Aviva aware of the Appellant’s claim.

On December 21, 2011, Kneller emailed York West to notify them that the insurance subscribers had received his Acknowledgment of Assignment to adjust the claim. This chronology supports the conclusion that the Appellant/Plaintiff, effectively through its agent, was aware that Kneller was adjusting the Appellant’s claim on behalf of both the insured Appellant and the various subscribing insurers.

I also note that at this time the Plaintiff was being represented and assisted by a number of sophisticated parties all of whom were well versed in the insurance and claims industry – i.e. its broker Renfrew, its property manager York West and its Legal Counsel. [ 37 ] In addition, the Appellant has not provided evidence to demonstrate that it was unaware of Kneller’s dual role in adjusting the claim.

The affidavit evidence put forward by the Appellant on this appeal does not categorically confirm that the Appellant was unaware that Kneller was also acting for the Insurers. [ 38 ] Finally, the letter sent by Kneller on March 23, 2012 was clearly a letter denying coverage on behalf of the Insurers, and not as a representative of the Appellant.

The letter was obviously treated by the Plaintiff as a Denial Letter issued on behalf of the Insurers. [ 39 ] On the issue of intentional or deliberate concealment of the operative Policy on the date of loss, there is no dispute that the wrong Policy was used by Kneller and the Insurers to assess the claim and that the Denial Letter referenced the wrong Policy wordings.

The evidence before the Master at the initial application and before this Court on appeal supports the conclusion that the error was inadvertent; the cited wordings were those in force when Kneller was investigating the Loss, not those in force at the date of loss.

The error was the result of Renfrew, the Plaintiff’s broker and agent, providing Kneller with the wrong wordings in response to Kneller asking York West for the Policy coverage. [ 40 ] The analysis to this point has focused on the Plaintiff’s arguments as they relate to allegation of fraudulent concealment of the dual agency of Kneller and the possibility of an injury arising from wordings of the correct Policy.

However, the Plaintiff also argues that Kneller perpetrated a fraud when he failed to disclose the comments of the Peace Hills employee that they thought there may be a loophole for the insured with reference to the inoperative Policy. The Peace Hills email stated, “Still think that there is a loophole for insured re ‘similar wall or roof openings’ and exception to exclusion G-b. But will follow lead’s discretion.

Will await final report/denial.” The Appellant argues that Kneller should have disclosed this statement by Peace Hills and his failure to do so was a fraudulent concealment. [ 41 ] I have carefully reviewed the communications between and Kneller and Peace Hills in late January/early February 2012. The communications of Peace Hills demonstrate that they were reviewing the possibility of coverage. In furtherance of their review, they asked Kneller for a copy of the policy wording with exclusions. When received, Peace Hills responded with “Thanks [Kneller]. That is better.

Different than the one I had.” With the benefit of hindsight, the response of Peace Hills suggests that prior to the email they may have been reviewing the claim against the operative Policy. Again, with the benefit of hindsight, the comment by Peace Hills that they had a different wording could have acted as a red flag and opportunity for Kneller and Peace Hills to pause and take steps to confirm the operative Policy. That did not happen.

Instead, Kneller assuaged Peace Hills’ concerns by providing the Policy wordings and exclusions that were provided to him by Renfrew. [ 42 ] When viewed in context of the entirety of the circumstances and the fact that Peace Hills decided to deny coverage, I do not believe that Kneller’s failure to disclose what the Peace Hills employee said was an unconscionable thing for Kneller to do, notwithstanding the special relationship between Kneller and the Plaintiff as well as the Plaintiff vis-à-vis the Insurers.

In my view, this was not an “abuse of a confidential position, some intentional imposition, or some deliberate concealment of facts” ( emphasis added ): Ambrozic at para 23 , citing M(

K) v M(H) . [ 43 ] There is no evidence to suggest that the comment by Peace Hills that the Policy provided by Kneller was different than the one Peace Hills had on file brought about any realization on the part of Kneller or the Insurers that the wrong Policy was being used to assess the claim.

Kneller and the Insurers’ conduct moving forward only confirms that everyone remained unaware of the error: Ambrozic at para 23 , citing King v Victor Parsons & Co , [1973] 1 All ER 206 (Eng CA) . [ 44 ] Consequently, I conclude that on this record there is no evidence that Kneller intentionally or deliberately suppressed this information in favour of one principal party against the other. That allegation made by the Appellant against Kneller is unsupported by the evidence before the Master at the initial application or this Court on appeal. The argument of the Plaintiff on this issue can therefore not succeed.

Moreover, and in any event, any opinion with respect to possible coverage under the inoperative July 1, 2011 Policy – provided to Kneller by Renfrew – cannot ultimately be a material fact. [ 45 ] While Master Smart did not expressly address fraudulent concealment and apply the Ambrozic test, he substantively concluded that there was no evidence that Kneller intentionally referred to the wrong policy: 427 v Aviva at para 10. [ 46 ] I agree with the Master’s statement that: “The reality [is] that no one recognized the error at that time” ( 427 v Aviva at para 15).

I am satisfied that the Defendants/Respondents did not know at the time that the incorrect Policy wordings were being referenced instead of the correct wordings in place at the date of loss. They were “unaware that [they had] committed a wrong,” and in the circumstances did not perpetrate fraud: Ambrozic at para 23 .

Did the fraud conceal a material fact? [ 47 ] Although I have found that there was no fraud perpetrated on the Plaintiff, I will address the second and third requirements of the test for assessing when fraudulent concealment will suspend a limitation period. [ 48 ] In Ambrozic at para 24 , the Alberta Court of Appeal stated that the second requirement to establish fraudulent concealment is that “the fraud must have concealed some material fact which the plaintiff has to prove to succeed at trial” and the “concealment can include the possibility of a cause of action.” [ 49 ] The second requirement was reviewed further by our Court of Appeal in WP v Alberta, 2014 ABCA 404 [ WP ].

In WP , the Court confirmed that “concealment of the possibility of a cause of action” was no longer relevant to assessing whether there had been fraudulent concealment. The Court explained that Ambrozic relied on Huet v Lynch , 2000 ABCA 97 [ Huet ], which was cited in Ambrozic as H(VA) v Lynch , 2000 ABCA 97.

Huet was decided under a predecessor to the current Limitations Act . [ 50 ] In WP , the Court of Appeal confirmed that under the current Alberta Limitations Act , fraudulent concealment requires concealment of “the fact that the injury [has] occurred,” not the right to claim for an injury: WP at paras 33-34 . [ 51 ] The material facts here are the dual agency of Kneller and the possibility of an injury arising from the wordings of the correct Policy. [ 52 ] As set out above, all evidence on the

summary dismissal application and the record on this appeal establish clear knowledge of Kneller’s dual role by the Appellant’s broker and agent (Renfrew) and its property manager (York West). Further, Kneller spoke with more than one Appellant Board member directly. One of those Board members was a professional claims adjuster. Given the Board member’s profession and the nature and timing of the conversations she and Kneller had, it would have been clear that Kneller was also acting for the Insurers, and therefore in a dual role. All of the evidence on the

summary dismissal application and the record on appeal attest to the reality that Kneller and the Insurers were not concealing the dual agency of Kneller. [ 53 ] The totality of evidence on the

summary dismissal application before the Master as well as the record on this appeal point to unintended error on the part of the Defendant Insurers. There is no evidence before me to support a finding that the Insurers were intentionally misleading the Appellant.

The Master’s decision correctly came to the same conclusion that none of the parties recognized the error at the material point in time: 427 v Aviva at para 15. [ 54 ] I am satisfied that the Respondents were neither concealing the facts about Kneller’s agency for the Insurers nor the wordings of the correct Policy that was in effect on the date of loss.

Did the Appellant/Plaintiff exercise reasonable diligence to discover the fraud? [ 55 ] The Appellant notes that after receiving Kneller’s letter in March 2012 advising that the losses were not covered under the Policy, Palisades expeditiously sued the developer by filing a Statement of Claim on November 19, 2012. [ 56 ] The Appellant argues that the errors of Kneller and Crawford were not discovered until October 2017 when as part of disclosure in separate litigation the Plaintiff received various contracts of insurance from the Insurers that included the Policy that was in place at the date of loss.

While reviewing the various records provided, the Plaintiff discovered that the policy applicable on the date of loss contained a different form of coverage which applied to the loss, rather than that quoted by Kneller in the Denial Letter of March 23, 2012. [ 57 ] Thereafter, the Appellant filed amendments to its Statement of Claim on October 23, 2017 – with further particulars covering misrepresentation as well as continuing breach and bad faith flowing from failure and refusal to address the claim under the applicable insurance policy – within one month of the discovery of Kneller and Crawford’s alleged negligence. [ 58 ] According to the Alberta Court of Appeal in Ambrozic at para 25 , the third requirement probes whether or not the plaintiff exercised reasonable diligence to discover the fraud.

This third element of the applicable test: … looks at the plaintiff’s conduct. The limitation period will not be suspended if the plaintiff could have uncovered the fraud but did not make reasonable inquiries. What constitutes reasonable diligence depends on the particular situation: H. (V.A.) at para. 29 . This element incorporates the doctrine of discoverability.

The limitation period begins to run when, in the circumstances, the plaintiff ought to have discovered the facts material to the claim. [ 59 ] Bennett, Prov J in R v Centre Datson Ltd , 1975 CarswellOnt 1109 at para 16 (Ont Prov Ct) [ Centre Datson ] , provided helpful guidance in determining what constitutes reasonable diligence: I think by now that it is trite law that due diligence is synonymous with reasonable diligence, and as well, that the test for reasonableness is a question of fact.

It is argued that the test is that of a reasonable man; I think the test is somewhat more than this — it is the degree of reasonableness within a specialty where a special skill or knowledge or ability is involved , as in the case for example of surgical malpractice; the test is not that of a reasonable man, but that of a reasonable surgeon.

Here the test, in my opinion, that must be applied is not that of a reasonable man, but that of a reasonable dealer in new and used cars, with the knowledge, skills and abilities of one who deals in the sale and purchase of automobiles … [ Emphasis added ]. [ 60 ] In the circumstances of this case, it is reasonable to expect the Appellant and its team of professionals – i.e. professional broker (Renfrew), professional property manager (York West) and professional lawyers – to demonstrate due diligence by detecting in a timely manner that incorrect Policy wordings were being used by the insurers.

At the time of the claim’s denial by the various insurers, the Appellant and its representatives (particularly Renfrew) were in possession of both the correct Policy applicable on the date of loss and the newer, incorrect Policy. In addition, all of the Appellant’s representatives – i.e. its broker Renfrew, its property manager York

West and its Legal Counsel – are sophisticated parties who are well versed in the insurance and claims industry. As such, the Appellant and its team had a duty to perform reasonable diligence regarding the denial and the information related to it. [ 61 ] In his written reasons, the Master held: [15] … The reality however is that no one recognized the error at that time. Regardless, I agree that at the point of denial the Plaintiff had a responsibility to exercise due diligence and not simply rely on the Denial Letter without more.

There is no evidence that anything further was done to investigate until April 13, 2017 when the Plaintiff’s counsel received Crawford’s file. [….] [18] The injury is said to have occurred when the Denial Letter was issued containing the wrong wording and the Plaintiff should have checked the wording. The limitation period as against Crawford should then also run from the date of the Denial Letter. Apparently, the Plaintiff’s having engaged Crawford for expert advice ought not to have relied on it and had that advice scrutinized by others.

In my view, the limitation period would run from the discovery of the error. Under the circumstances it ought to have been discovered within the two year period plus a reasonable time for investigation (if any) from the date of the Denial Letter. Even with providing an extraordinary period (say one year for illustration) to investigate the denial the injury ought to have been discovered no later than March 23, 2015. The claim as against Crawford would have had to have been issued no later than March 23, 2017.

As noted above, the original claim was issued on June 7, 2017 . [ Emphasis added ] [ 62 ] Here the Master correctly noted that the law requires the Plaintiff/Appellant to exercise due diligence in order to have discovered the error prior to March 23, 2015 and potentially file its claim before March 23, 2017: Ambrozic at para 25 . [ 63 ] I agree with Master Smart’s conclusion that there was lack of due diligence on the part of the Appellant. If they had performed their due diligence, the Appellant would have realized that the Denial Letter contained wordings and exclusions from the incorrect Policy.

Discovering that incorrect policy wordings were relied on after approximately 5 years does not persuasively indicate or demonstrate that the Appellant met its duty of reasonable due diligence. [ 64 ] Put differently, the Appellant’s inability to detect or uncover this error – which reiteratively was not a fraud – over a period of approximately 5 years is inexcusable tardiness on its part and that of its team of skilled professionals: Centre Datson at para 16. [ 65 ] On this record and evidence, the Appellant has failed to meet the onus requiring it to demonstrate reasonable due diligence.

Conclusion [ 66 ] I conclude that the Master was correct in his decision which granted the applications for

summary dismissal by the Insurers and Crawford as well as dismissed the Appellant’s action as against them. He was also correct when he dismissed the Appellant’s action as against Kneller finding that there was no basis for a claim against him personally. [ 67 ] The Appeal is dismissed. [ 68 ] If the parties are unable to agree on costs, they may speak to me within 60 days of the issue of this Judgment. Heard on the 11 th day of September, 2020. Dated at the City of Edmonton, Alberta this 15 th day of January, 2021. Bonnie L. Bokenfohr J.C.Q.B.A. Appearances: Jonathan W Cully Sharek Logan & van Leenen LLP

for the Appellant/Plaintiff, The Owner: Condominium Corporation 0427067 David P Wedge Parlee McLaws LLP for the Respondents/Defendants, Aviva Canada Inc, Aviva Insurance Co of Canada, Commonwealth Insurance Co, Peace Hills General Insurance Co, Lloyds Underwriters and Economical Mutual Insurance Paul Kolida Field LLP for the Respondents/Defendants, Crawford & Co (Canada) Inc, Crawford Adjusters Canada Incorporated, Crawford Adjusters and Darren Kneller