Points West Living Red Deer Inc v Rockliff Pierzchajlo Kroman Architects Ltd, 2021 ABQB 589

Court of Queen’s Bench of Alberta Citation: Points West Living Red Deer Inc v Rockliff Pierzchajlo Kroman Architects Ltd, 2021 ABQB 589 Date: 20210727 Docket: 1903 09174 Registry: Edmonton Between: Points West Living Red Deer Inc Plaintiff - and - Rockliff Pierzchajlo Kroman Architects Ltd and Vital Engineering Corporation Defendants _______________________________________________________ Reasons for Decision of Brian W. Summers, Master in Chambers _______________________________________________________ [ 1 ] The Defendant Rockliff Pierzchajlo Kroman Architects Ltd (“RPK”) applies for

summary dismissal of this action against it on the basis that the Statement of Claim was issued after the limitation period had expired. The Defendant Vital Engineering Corporation (Vital”) took no

part in this application. [ 2 ] The key legal issue in this case is: When did the Plaintiff first know or ought to have known that commencement of action against RPK was warranted? Facts

[ 3 ] RPK was retained as project architects for the design and construction of the Plaintiff’s assisted and independent senior living facility in Red Deer (“Facility”). Vital was retained as mechanical engineers. Substantial Completion of the Facility was achieved on August 5, 2016. [ 4 ] The Plaintiff commenced this action on May 3, 2019.

The essence of the claim is that the Defendants failed to design and provide an adequate heating system (the “System”) for the Facility and in particular that when the outdoor temperature fell below minus 20 degrees Celsius, the System could not deliver sufficient heat to keep the Facility adequately warm for the residents and staff (“Heating Problem”). [ 5 ] The Heating Problem at the Facility was first discovered in December 2016 (possibly sooner).

The Plaintiff first contacted the general contractor Premiere Building Solutions Ltd (“Premiere”) and the subcontractor that installed the System being World Class Contracting Ltd (“WCC”). As the Heating Problem persisted into February of 2017, the Defendants were consulted. [ 6 ] An investigation was carried out to determine the cause of the Heating Problem. It was not known whether the Heating Problem was brought about as the result of a design flaw in the System, or as the result of an operational problem, or both.

RPK points out that as early as December 2016 an engineer with the Plaintiff named Toby Lampard communicated that he thought that the Heating Problem was a design problem as much as an operational one and “...it would be wise to put all those involved with the system on notice that they have a problem to formally resolve and document and that they have generated some liability for themselves to be honoured in the future if there is any boiler damage to be repaired”. [ 7 ] On March 10, 2017, Rob Campbell, an engineer with Vital, reported to the Plaintiff that he had investigated all aspects of the glycol heating portion of the System and determined that there were a few areas of piping that may have led to some discrepancies in the airflow.

At Mr. Campbell’s direction three balancing valves were installed on the lines for the heating coil and the VRV Pump loop for the System. On March 22, 2017 Mr. Campbell advised the Plaintiff and the parties working to resolve the Heating Problem, including RPK, that this had been done and further indicated that this, (and advice from the supplier of a component made by Tempeff) should resolve the Heating Problem. [ 8 ] On April 10, 2017 Mr. Lampard emailed representatives of Vital and WCC outlining his concern that the boilers may be undersized and such would be a design flaw.

Jordan Hinbo of WCC responded and indicated that the boilers were not undersized. On the next day Mr. Campbell also responded to Mr. Lampard that the boilers were of a sufficient size and based upon his analysis he was encouraged that the balancing valves had resolved the Heating Problem. [ 9 ] On April 11, 2017, in response to an inquiry from RPK, Mr. Campbell told others that part of the Heating Problem may have been brought about by a design flaw with respect to the capacity of the boilers. However, this was not communicated to the Plaintiff. [ 10 ] On July 31, 2017, RPK conducted its one year warranty review.

The written report dated September 18 was provided to the Plaintiff on September 20, 2017. That report stated, in part: Based on the evidence provided by the Midwest Engineering technician, as well as the values provided by the flow test performed by World Class, we do believe that the flow was the issue that was causing the heating problems, and that providing the balancing valves on each line has solved the issue.

Vital and World Class will be directly monitoring the supply air temperatures and coil temperature this upcoming winter as the temperature drops to ensure that the problem has been corrected. [ 11 ] It should be noted that the investigation and remedial work was done on a warranty, no charge basis to the Plaintiff. [ 12 ] The following winter, it was in fact determined that the Heating Problem had not been resolved. The Heating Problem recurred when the outside temperature fell below minus 20 degrees Celsius.

At a meeting in December of 2017, Vital assured the Plaintiff that it was committed to carrying out design modifications to ensure that the System was capable of producing the necessary heat for the Facility.

The Plaintiff asserts that this was the first time that either of the Defendants admitted to the fact that a design flaw may be contributing to the Heating Problem and design modifications should be considered. [ 13 ] In February of 2018, after getting a performance report from Midwest Engineering, Vital reported to the Plaintiff that the boilers installed in the System were not as originally planned and recommended that the System be upsized as the current System could not meet the Facility’s needs.

The Legal Issue [ 14 ] The question that must be answered in this case may be stated as follows: Should this action be summarily dismissed on the basis that the action was commenced after the limitation period expired?

Summary Dismissal [ 15 ] Both parties refer to the following passage from Weir-Jones Technical Services Incorporated v Purolator Courier Ltd, 2019 ABCA 49 as the test for

summary judgment: [47] The proper approach to

summary dispositions, based on the Hryniak v Mauldin test, should follow the core principles relating to

summary dispositions, the standard of proof, the record, and fairness. The test must be predictable, consistent, and fair to both parties. The procedure and the outcome must be just, appropriate, and reasonable. The key considerations are:

(

a) Having regard to the state of the record and the issues, is it possible to fairly resolve the dispute on a

summary basis, or do uncertainties in the facts, the record or the law reveal a genuine issue requiring a trial? (

b) Has the moving party met the burden on it to show that there is either “no merit” or “no defence” and that there is no genuine issue requiring a trial? At a threshold level the facts of the case must be proven on a balance of probabilities or the application will fail, but mere establishment of the facts to that standard is not a proxy for

summary adjudication. (

c) If the moving party has met its burden, the resisting party must put its best foot forward and demonstrate from the record that there is a genuine issue requiring a trial. This can occur by challenging the moving party’s case, by identifying a positive defence, by showing that a fair and just

summary disposition is not realistic, or by otherwise demonstrating that there is a genuine issue requiring a trial. If there is a genuine issue requiring a trial,

summary disposition is not available. (

d) In any event, the presiding judge must be left with sufficient confidence in the state of the record such that he or she is prepared to exercise the judicial discretion to summarily resolve the dispute. [ 16 ] RPK asserts that its claim that the Plaintiff’s action is limitation barred can and should be decided summarily. Conversely, the Plaintiff argues that if the Court does not determine the limitation question in its favour, in the alternative, the trial of an issue is necessary as the issue of credibility arises with respect to the following questions of fact: (

a) Did the Plaintiff act with sufficient diligence to discover the cause of the Heating Problem? (

b) Did Mr. Lampard’s personal suspicions impute knowledge to the Plaintiff to engage paragraph 3(1)(

a) of the Limitations Act? (

c) Was the Plaintiff acting with sufficient diligence when it relied upon the efforts and representations of the Defendants? Limitations Act [ 17 ] Subsection 3(1) of the Limitations Act states: Limitation periods 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. [ 18 ] The two year limitation period in paragraph (

a) is one based upon discoverability. However, it requires discovery of all three elements set out in paragraph (a). [ 19 ] The test under paragraph (

a) of subsection 3(1) is both a subjective one and an objective one. That is, when did the claimant first know or in the circumstances ought to have known that it had suffered an injury attributable to the conduct of the defendant and that the injury, assuming liability on the part of the defendant, warranted bringing a proceeding?

This legislative provision requires the claimant to act with reasonable diligence to acquire knowledge of these facts: Clark Builders and Stantec Consulting Ltd v GO Community Centre, 2019 ABQB 706 ; Canadian Natural Resources v Ashland Inc, 2018 ABQB 1042 ; McDonnell v Csaki, 2014 ABQB 452 . When did the Plaintiff first know or ought to have known that it had suffered an injury? [ 20 ] The Plaintiff acknowledges that it first knew that it had suffered injury (ie the Heating Problem”) by December of 2016.

Although RPK asserts that it may have been earlier, nothing turns on that as December of 2016 is more than two years before the action was commenced. When did the Plaintiff first know or ought to have known that the injury was attributable to conduct of RPK? [ 21 ] The parties do not agree as to when the Plaintiff first knew or ought to have known that the Heating Problem was attributable

to the conduct of RPK. [ 22 ] RPK asserts that the Plaintiff first knew that the Heating Problem was attributable to it in December of 2016. It points out that in December of 2016 Mr.

Lampard sent an email setting out his belief that the Heating Problem was brought about by a design flaw and that it would be wise to put everyone involved with the System on notice that they have a problem to formally resolve and document that they have generated some liability for themselves. [ 23 ] Conversely, the Plaintiff states that it did not have sufficient knowledge that the Heating Problem was attributable to conduct of RPK until December of 2017 when Vital admitted that the Heating Problem was caused by a design flaw.

The Plaintiff says that was the first time that either of the Defendants admitted that a design flaw could be a cause of the Heating Problem.

The Plaintiff says that until then, the Plaintiff could not reasonably have known that the cause of the Heating Problem was: operation of the System by Facility Staff; or the System was improperly installed; or parts or components to the System were flawed or defective; or there was a design flaw to the System attributable to the Defendants; or the Heating Problem had nothing to do with the System whatsoever. [ 24 ] These competing positions require the Court to focus on the level of knowledge required on the part of the Plaintiff with respect to the injury being attributable to RPK. [ 25 ] A claimant does not need perfect knowledge.

However, mere suspicion is not enough. The claimant must have some support for the claimant’s suspicion: Nasrin Karim Professional Corp v Bank of Nova Scotia, 2007 ABCA 10 ; De Shazo v Nations Energy Co, 2005 ABCA 241 . [ 26 ] RPK places much reliance upon the decision of Associate Chief Justice Rooke in Owners: Condominium Plan 0625385 v Oxford Grande Ltd, 2017 ABQB 316 (“ Oxford ”) . In that case the plaintiffs sued a number of defendants for alleged defects, or deficiencies, or inadequacies in the cooling system installed in the building.

The defendants were those believed to have been involved in the construction of the cooling system. The defendants asserted that the plaintiffs’ action was limitation barred as having been brought too late. The plaintiffs responded that for a period of time they did not know which components of the cooling system were the cause(

s) of the problem. With their limited knowledge, the plaintiffs did not know whether the problem was in the chillers, the glycol, the fan coil units (FCUs) or the heat exchanger. Apparently, different defendants were responsible for different components. [ 27 ] In finding for the defendants, the Court stated, in part: [12] Telescoping ahead to my conclusion, I find that the “injury” under s. 3(1)(a)(

i) of the Act was the non-performance of an obligation, or, possibly, the breach of a duty, relating to deficiency(ies) in, or inadequacy(ies) of, the cooling system, but that the potential causes were just that – the potential causes of the “injury”; they were not the “injury”. This is contrary to the arguments of the Plaintiffs that the “injury” was in relation to one or more of the causes, and the argument that, thus the limitation issue was, in effect, running, until the Plaintiffs had knowledge or, or the means of knowledge of, each cause and each potential cause was effectively eliminated.

This erroneous argument was fueled by some potential causes being effectively eliminated over time, leaving problems with the FCUs and water lines being, allegedly, at least, more of the real problem.

However, in my view, the real “injury” throughout this time was the failure of the cooling system to operate properly, and that, plus all or most of the potential causes were known long before 2 years prior to bringing the SofC. [13] Putting it another way, while there are references to various components of the cooling system being allegedly deficient, including: components in the common areas (all except the FCUs and piping), the responsibility of the Condo Corp.; and in individual Unit Owners suites, for their pursuit (individually or, ultimately, through this class proceeding) of the fan coil units (FCUs) – including failures in design, labeling and improper or inappropriate sizing, etc., installation of same, and under specification of water supply lines; and acknowledging that the Plaintiffs, or some of them, focused on one or others of the system components as being deficient throughout the litigation, and that expert evaluations may have contributed to such focus; I find that concentration on those potential causes of the injury, were not “the injury”.

Rather, I find that the injury was, simply put, the failure or inadequacy of the cooling system, and any deficiencies in individual components of the cooling system were just the causes of the injury, not the injury, as contemplated in s. 3(1) (a)(

i) of the Act. [14] Put yet another way, while the speculations and investigations as to the potential causes of the injury, over time, focused on various deficiencies relating to, inter alia, the chiller, the Heat Exchanger, the glycol (common property components) and the FCUs, and water lines (Unit Owner components, although the water lines may have some aspects of both), and the SofC and the ASofC focused on the FCUs and the water lines, it was clear that these were just potential claims as to the causes of the injury.

In my view, the causes were not the injury, but rather the injury was the failure or inadequacies of the cooling system. [ 28 ] Associate Chief Justice Rooke said (at paragraph 29) that all that is necessary is that the injury suffered by the plaintiffs is at least arguably attributable to the defendant. [ 29 ] Applying the reasoning from Oxford , the question to be answered is: “When did the Plaintiff first know, or ought to have known, that the injury it had suffered (ie the Heating Problem) was arguably attributable to RPK”? [ 30 ] In December of 2016 the Plaintiff knew that it had suffered an injury.

The Plaintiff also knew that the Heating Problem was with respect to the System and also knew the identity of all of the parties that had a

part in designing, manufacturing, installing and operating the System. Consequently, following Oxford , I conclude that the Plaintiff knew that the injury that it had suffered was at least arguably attributable to RPK in December of 2016. When did the Plaintiff first know, or ought to have known that, assuming liability on the part of RPK, that the injury that it had suffered warranted bring a proceeding? [ 31 ] The Plaintiff’s position is that bringing an action was not warranted while it reasonably relied on experts who indicated that

they were diligently investigating and working on fixing the Heating Problem (and in fact indicated that it had resolved the HeatingProblem). The Plaintiff refers to several cases to support that proposition. [32] In Condominium Corporation 0812755 v IBI Group Inc, 2019 ABQB 75 the defendant architects brought an application forsummary dismissal of the plaintiff’s action for damages arising from construction deficiencies on the basis that the action wascommenced after the limitation period had expired.

The action against the architect was in fact started more than two years after theplaintiff obtained an expert report that pointed to a faulty membrane as to the cause for water leaking into an underground parkade. Theplaintiff was not aware until some time later that the architects had a supervisory role with respect to the installation of the membrane. [33] The plaintiff sought remediation from the developer of the project and the warranty provider.

Those parties provided epoxyinjections to seal cracks and reported that the problem had been fixed. [34] The plaintiff argued that it was entitled to rely on the ameliorative efforts of the developer and the warranty provider, toeffectively extend the limitation period against the architects. Master Robertson agreed with that and stated the following: [38] My understanding of all of this evidence is that the condominium corporation knew of the “injury”, being the leaking slab in theparkade. The board of directors did not know the actual cause of that injury, or whose fault it might be.

Perhaps the condominiumcorporation could have figured out IBI Group’s role in the construction of the parkade, and perhaps the board had enough information toallow the Court to conclude that the plaintiff should therefore ought to have known that the injury was due to the conduct of IBI Group,even though the condominium corporation is not a professional litigator or forensic engineering company. [39] That is, the condominium corporation could have sued long before two years prior to the statement of claim being filed. [40] But the facts are clear that it was relying on the parties with whom there were contracts – the Developer and the new home warrantyprovider.

Those parties were trying to fix the problem, and had even gone so far as to report that they had. In those circumstances, it isdifficult to understand why the condominium corporation would have concluded that it should sue parties with whom it had nocontractual connection - when the parties with whom it had contracts seemed to be accepting responsibility for the repair and doingsomething about it. [35] In his Reasons for Decision, Master Robertson referred to the decision of Mr. Justice Clackson in Condominium Plan9421549 v Main Street Developments Ltd, (AB KB), 2004 ABQB 962.

In that case Justice Clackson had to considerwhen the commencement of the action was warranted, within the meaning of clause (iii) of paragraph (

a) of subsection 3(1) of Alberta’sLimitations Act. Master Robertson quoted Justice Clackson’s references to the Law Reform Institute of Alberta Report number 55 asfollows: [64] The [Limitations] Act was the product of extensive study by the Law Reform Institute of Alberta.

The Institute’s Report No. 55 onthe subject, which includes its commentary on the provisions it proposed, is helpful in understanding what the phrase “warrants bringinga proceeding” was intended to embrace. [65] Commenting on what is now s. 3(1)(a)(iii), the Institute stated at p. 33 of its Report: As to the third requirement, the discovery period will not begin until the claimant first knew that his injury was sufficiently serious tohave warranted bringing a proceeding, that is, there must be relatively serious harm.

This criterion will protect litigants from incurringunnecessary legal expenses, and bringing unnecessary legal action. The discovery rule will, in effect, invite the judge to put himself inthe claimant’s shoes, to consider what knowledge he had at the relevant time, and to make the cost-benefit analysis which would bereasonable for the actual claimant. [Emphasis added.] [66] And at p. 64: 7. Comment on subcl. 3(1)(a)(iii). Potential claimants rarely seek the advice of lawyers until they perceive that they have sufferedrelatively serious harm.

Even if a potential claimant does seek the advice of a lawyer, the lawyer will rarely recommend the expense ofbringing a proceeding unless he is reasonably certain that the harm suffered by the claimant will justify it. A limitation provision thatfailed to recognize these realities and which encouraged proceedings to be brought prematurely would serve neither claimants nor thelegal system. [Emphasis added.] 8. When was harm sufficiently serious to have warranted bringing a proceeding? The circumstances may vary enormously from onespecific situation to another.

The Act does not attempt to list considerations common to many cases because a statutory list would be ofdubious benefit to experienced judges, to whom the considerations will be patently obvious, and might unnecessarily constrain theirjudgment. Experienced trial judges are well equipped to answer such a judgmental question. Clause (iii) of s. 3(1)(

a) invites the judge toput himself in the claimant’s shoes, to consider what knowledge he had at the relevant time, and to make the analysis of the advantagesand disadvantages of bringing a legal proceeding which would be reasonable for the actual claimant. [Emphasis added.] The “Emphasis added” notations are those of Master Robertson. [36] Master Robertson’s ruling is encapsulated in the following paragraphs from his Reasons for Decision: [51] In Alberta, the test is whether the injury warranted bringing a proceeding. The analysis also requires consideration of the specificfacts, just as in British Columbia.

As explained by the Law Reform Commission, that may involve a cost-benefit analysis. If the harm

does not justify bringing the proceedings, based on what the plaintiff knows, the limitation has not yet run. [52] One known factor here was that the Developer and the warranty provider were dealing with the claim. Until it became apparent that their efforts were not working and that they were apparently not going to do more, there was no point in suing anyone. [53] In the end, the argument is not about whether the plaintiff knew there was an injury and should have known that IBI Group was involved in the construction.

The plaintiff seems not to have known that the circumstances warranted bringing any proceeding – either this one or the one against the Developer and the warranty provider. [54] It had information to the effect that the injections might not be effective, and it might fairly be said that it knew that it was unlikely that the injections were going to be effective. But that is not the answer to the problem here either.

As long as the Developer and the warranty provider were continuing to work to correct the problem, it is not clear that they were going to stop doing anything more if the injections were not effective. [55] I do not accept that the Limitations Act effectively requires a party to sue everyone who might have been involved when there are responsible parties with whom they contracted who appear to be trying to resolve the problem. That is one reason why the Act contains the provision contains the requirement “that the injury, assuming liability on the part of the defendant, warrants bringing a proceeding”.

An analogy might be drawn to a debt claim on a demand promissory note. The creditor calls on the note, the debtor defaults in making full payment, but makes sporadic payments in an attempt to pay the debt. Should the creditor be required to sue within two years following the demand? What would be the point of requiring that a claim be filed when the debtor is making payments? [56] The comments by the Law Reform Commission and previous cases have suggested that one factor might be cost.

If the plaintiff knows of the injury and knows that the defendant caused it, and concludes that the cost of dealing with it is small and suing is not worth it, but later finds out that the remedy is far more expensive than it reasonably believed at the outset, that is a factor that might delay the running of the limitation period.

Here, if the Developer and new home warranty provider had actually solved the problem, the costs to the plaintiff would have been effectively zero. [57] I note that this approach is consistent with comments made by the Ontario Court of Appeal in Gillham v Lake of Bays (Township) , 2018 ONCA 667 at paragraph 35 . They were, of course dealing with a different provision (the Ontario provision says that “A claim is discovered on the earlier of, (

a) the day on which the person with the claim first knew ... that having regard to the nature of the injury, loss or damage, a proceeding would be an appropriate means to remedy it”) so the decision is not directly applicable, but at paragraph 36 they said, One recognized reason why the legislature added “appropriate means” as an element of discoverability was to enable courts to function more efficiently by deterring needless litigation: see 407 ETR Concession Company [2016 ONCA 709], at para. 48; Markel Insurance Company of Canada v. ING Insurance Company of Canada [2012 ONCA 218], at para. 34.

Conclusion [58] In my view, when there is no reason for a party to sue anyone, because the party reasonably believes that someone who has apparent liability has actually assumed responsibility for addressing it, and is doing so, the injury does not warrant bringing a proceeding. Requiring a party to sue in this circumstance would encourage needless litigation. [ 37 ] In Presidential MSH Corp v Marr, Foster & Co LLP, 2017 ONCA 325 the plaintiff sued its tax accountants for damages (tax, interest and penalties) due to a late filing of returns.

The tax accountants assisted with the appeal to CRA conducted by other accountants. The plaintiff’s action was commenced outside the limitation period if the limitation period commenced on the date that the tax returns were due. The plaintiff argued that as the tax accountants were attempting to ameliorate the situation by assisting in the appeal, the limitation period was in fact extended during that time of attempted amelioration. [ 38 ] The Ontario Limitations Act uses the term “appropriate” rather than “warranted”.

The Ontario Court of Appeal ruled that it was not appropriate for the plaintiff to sue while the tax accountants were attempting to ameliorate the plaintiff’s injury. The Court stated, in part: [26] Resort to legal action may be “inappropriate” in cases where the plaintiff is relying on the superior knowledge and expertise of the defendant, which often, although not exclusively, occurs in a professional relationship.

Conversely, the mere existence of such a relationship may not be enough to render legal proceedings inappropriate, particularly where the defendant, to the knowledge of the plaintiff, is not engaged in good faith efforts to right the wrong it caused.

The defendant’s ameliorative efforts and the plaintiff’s reasonable reliance on such efforts to remedy its loss are what may render the proceeding premature. [ 39 ] In Presley v Van Dusen, 2019 ONCA 66 the Court had to consider whether the efforts and promises of the defendant Van Dusen regarding how he would be able to fix a septic system that he had installed affected the limitation period for the action commenced by the homeowners against him. After referring to the Presidential case, the Court stated: [21] These principles are applicable to the facts of this case.

Van Dusen is licenced to install septic systems. The appellants contracted with him because of his special training and expertise. While the respondents argue he may not qualify as “an expert professional”, there can be no question he did have expertise upon which the appellants reasonably relied. [22] Moreover, reliance on superior knowledge and expertise sufficient to delay commencing proceedings is not restricted to strictly professional relationships: Presidential , at para. 26.

I acknowledge that the previous cases where this court has made a finding that it was reasonable for the plaintiff to rely on the defendant’s superior knowledge and expertise have concerned defendants belonging to traditional expert professions. For instance, Brown v. Baum , 2016 ONCA 325 , 397 D.L.R. (4th) 161, involved a physician, Chelli-Greco v. Rizk, 2016 ONCA 489 , involved a dentist, and Presidential MSH involved an accountant.

However, recent Superior Court decisions have applied the superior knowledge and expertise prong of Presidential MSH to persons who are members of non-traditional professions or who are not professionals at all. For instance, in YESCO Franchising LLC v. 2261116 Ontario Inc ., 2017 ONSC 4273 , the

court found that s. 5(1)(a)(iv) applied in a franchisor-franchisee relationship where the franchisees relied on the franchisor’s superior knowledge and expertise, even though the franchisor was not a member of an expert profession. Similarly, in Barrs v. Trapeze Capital Corp., 2017 ONSC 5466 , aff’d 2019 ONSC 67 (Div. Ct.), the Superior Court and the Divisional Court found that s. 5(1)(a)(iv) applied to investors who relied on the superior knowledge and expertise of their investment portfolio managers. [23] Van Dusen initially attempted to fix the problem with the appellants’ septic system by replacing a pump.

He then assured the appellants that the problem could be remedied with a load of sand. He also assured them that he would attend at their property to fix the problem. While the appellants might be criticized for not being more insistent that Van Dusen fulfill this assurance more promptly, the evidence establishes that they were engaged in ongoing discussions with him and took actions to enable him to access the property. He continued to assure them that the problem could be readily fixed and that he would fix it. The appellants reasonably relied on Van Dusen’s assurances.

These assurances led the appellants to the reasonable belief that the problem could and would be remedied without cost and without any need to have recourse to the courts. Section 5(1)(

b) is satisfied. [ 40 ] Other cases cited on behalf of the Plaintiff in support of this proposition of law include Saskatchewan (Highways and Infrastructure) v Venture Construction Inc, 2020 SKCA 39 and Currie v Craig, 2018 ABQB 46 . [ 41 ] In this case before the Court, Mr. Campbell of Vital communicated to the Plaintiff on March 22, 2017 that the installation of the three balancing valves on the lines resolved the Heating Problem. On April 10 and 11, 2017 both Mr. Henbo of WCC and Mr. Campbell of Vital responded to Mr. Lampard’s concern that the boilers may be undersized by telling him they were not.

On July 31, 2017 RPK conducted its one year warranty review of the Facility and communicated to the Plaintiff that it had consulted with Vital and the flow rates in the heating loop were within an acceptable range.

On September 20, 2017 RPK issued its Warranty Response to the Plaintiff noting that Vital had stated that it believed that the Heating Problem had been fixed. [ 42 ] As suggested by these precedent cases, I put myself into the shoes of the Plaintiff in this case, as at May 3, 2017 (ie two years before the action was commenced) to consider whether I had sufficient information that commencing action against RPK was then warranted.

In doing so, I would have concluded, based upon my understanding of the significant efforts that were being made to correct the Heating Problem by those responsible for the System (and on a warranty, no charge basis at that) and based upon what those parties were telling me, I would conclude that it was premature to commence an action against RPK at that time.

I believe that the Plaintiff’s reliance was reasonable in all of the circumstances. [ 43 ] In my view, the application of this test achieves the proper balance between not allowing a cause of action to linger and not requiring lawsuits to be commenced prematurely. [ 44 ] I need not consider the Plaintiff’s alternative argument that a trial of an issue may be required on certain specific questions of fact. [ 45 ] RPK’s application for

summary dismissal of the Plaintiff’s action against it is dismissed. [ 46 ] If the parties cannot agree on costs, they may provide written submissions within 21 days of this decision. Those written submissions shall be limited to three pages each. Heard on the 24 th day of June, 2021. Dated at the City of Edmonton, Alberta this 27 th day of July, 2021. Brian W. Summers M.C.Q.B.A. Appearances: Mr. Vance Siakaluk and Mr. Nathaniel Brenneis Brownlee LLP for the Plaintiff (Respondent) Mr. Don McGarvey QC and Ms. Ania Konikowski

McLennan Ross LLP for the Defendant (Applicant), Rockliff Pierzchajlo Kroman Architects Ltd