Casman Building Ltd v Weir-Jones, 2021 ABQB 761

Court of Queen’s Bench of Alberta Citation: Casman Building Ltd v Weir-Jones, 2021 ABQB 761 Date: 20210922 Docket: 0513 10609; 0613 11131; 0713 011281 Registry: Ft. McMurray Between: Docket: 0513 10609 Casman Building Ltd Plaintiff - and - Iain Weir-Jones, the Alberta Treasury Branches, Andrew Weir-Jones, ING Insurance Services Inc and Shumka Craig Moore Adjusters Canada Ltd Defendants - and - ING Insurance Services Inc and Shumka Craig Moore Adjusters Canada Ltd Third Parties - and - Iain Weir-Jones Plaintiff by Counterclaim (Defendant) - and - Casman Building Ltd

Defendant by Counterclaim (Plaintiff) And Between: Docket: 0613 11131 Iain Weir-Jones and Andrew Weir-Jones Plaintiff - and – ING Insurance Services Inc, ING Insurance Company of Canada and Shumka Craig Moore Adjusters Canada Ltd, SCM Adjusters Canada Ltd Defendants And Between: Docket: 0713 011281 Iain Weir-Jones Plaintiff - and - ING Insurance Services Inc and ING Insurance Company of Canada and Shumka Craig Moore Adjusters Canada Ltd and Casman Building Ltd and Bateman Chapman Canada Limited and Gravity Engineering Incorporated Defendants Corrected judgment: A corrigendum was issued on September 29, 2021; the corrections have been made to the text and the corrigendum is appended to this judgment. _______________________________________________________ Reasons for Decision

of W.S. Schlosser , Master of the Court of Queen's Bench of Alberta _______________________________________________________ [ 1 ] This is a set of three delay applications, notable not for their particular facts, but for what they reveal about the operation of r 4.31. [ 2 ] The parties have argued inordinate and inexcusable delay very fully; with a 10-page Agreed Statement of Facts. They have also addressed the issue of prejudice specifically and directly.

The rule sets up opposing burdens depending on whether the issue of significant prejudice is approached directly or circumstantially. [ 3 ] It is incumbent upon r 4.31 applicants to identify and stipulate what significant prejudice they have suffered because of a plaintiff’s delay (as here), or to state why they cannot do that. This means that r 4.31 applications will turn on an applicant’s burden of proof, like any other application, not on a respondent’s burden of disproof, for the simple reason that direct evidence should be preferred over circumstantial evidence. 1.

Authorities Cited By the Parties Huerto v Canniff , 2014 ABQB 534 , aff'd 2015 ABCA 316 ; Humphreys v Trebilcock , 2017 ABCA 116 ; Thoreson v Alberta (Infrastructure) , 2020 ABCA 146 ; Transamerica Life Canada v Oakwood Associates Advisory Group Ltd , 2019 ABCA 276 ; Regco Petroleums Ltd v Gerling Canada Insurance Co , 2014 ABQB 459 ; McCarthy v Schindeler , 2017 ABQB 511 ; M L Bruce Holdings v Ceco Developments Inc, 2015 ABQB 604 ; Alston v Haywood Securities Inc, 2020 ABQB 107 ; Song v Alberta , 2020 ABQB 583 ; Middleton Energy Management v TransCanada Pipelines Ltd , 2017 ABQB 669 ; Arbeau v Schulz, 2019 ABCA 204 ; Alderson v Wawanesa Life Insurance Company, 2020 ABCA 243 ; Royal Bank of Canada v Levy, 2020 ABCA 338 ; McKay v Eriksson, 2019 ABQB 408 ; 4075447 Canada Inc v Pacrim Developments Inc , 2018 ABQB 358 ; OmniArch Capital Corporation v Bishop, 2020 ABQB 102 ; Alston v Haywood Securities Inc , 2020 ABQB 107 ; 4075447 Canada Inc v WM Fares & Associates Inc, 2020 ABCA 150 ; Paul Rains Design Build Ltd v Choma, 2019 ABQB 187 ; Nova Pole International Inc v Permasteel Construction Ltd, 2020 ABCA 45 ; Sangha v Alberta (Motor Vehicle Accident Claims Act, Administrator), 2018 ABQB 385 ; Goldring v Blue Cross Life Insurance Company of Canada, 2017 ABQB 618 ; Fish v Boyd, 2018 ABQB 190 ; 422252 Alberta Ltd v Messenger, 2019 ABQB 251 ; Edinburgh Tower Development Ltd v Curtis, 2021 ABQB 239 ;

United Inc v CN Railway Company, 2020 ABQB 413 . By the Court Sopinka, Lederman & Bryant: The Law of Evidence in Canada , 5th ed (LexisNexis Canada, 2018) para 4.12; Kuziw v Kucheran Estate, 2000 ABCA 226 ; Ravvin Holdings Ltd v Ghitter, 2008 ABCA 208 ; Stabilized Water of Canada Inc v Better Business Bureau of Southern Alberta, 2017 ABQB 736 ; Gammage v Costco Wholesale Canada Ltd., 2021 ABQB 514 ; Ursa Ventures Ltd v Edmonton (City), 2016 ABCA 135 ; Song v Fong, 2019 ABQB 119 ; 1361556 Alberta Ltd v Ristorante Cosa Nostra Inc, 2021 ABQB 157 . 2. Facts i.

The Casman Action [ 4 ] This lawsuit was started in 2002 and involves a construction dispute. It results from a fire, which partially destroyed the Weir-Joneses’ Fort McMurray home in November 2002. [ 5 ] ING Insurance Services Inc (ING) was the Weir-Joneses’ insurer, and the loss was adjusted by Shumka Craig Moore Adjusters Canada Ltd (SCM). [ 6 ] ING retained Casman Building Ltd (Casman) to do the remedial work which began in April 2003. [ 7 ] Iain Weir-Jones decided to retain Casman privately to do other work on the home.

This work was unrelated to the fire and involved upgrading a basement suite, among other things. [ 8 ] The Weir-Joneses were unhappy with both the remedial work and the work related to the upgrades, so they did not pay Casman. Notwithstanding the complaints about the quality of the work, ING made a partial payment for the remedial work to Casman. Casman sued. The Weir-Joneses defended and counterclaimed for deficient and defective work. The Casman lawsuit was started as a lien action. [ 9 ] Casman is one of the three delay applicants in the first action because of the counterclaim.

If Casman’s delay application on the counterclaim succeeds, the company will abandon its original action. [ 10 ] The Weir-Joneses’ counterclaim in this action seeks $110,000 to correct deficient work , $1,000,000 for ‘lost profit’, $1,000,000 for ‘lost good will’, $250,000 for loss of employment wages and $55,200 for lost rental income; with all the amounts claimed to arise from the deficient work and the delay in completion. [ 11 ] Although counterclaims like this one frustrate speedy resolution of construction lawsuits.

Section 46(2) of the Builders Lien Act contemplates that this type of action should proceed to trial within two years. ii. Iain and Andrew Weir-Joneses’ 2006 Action [ 12 ] Casman stopped work on the fire remediation and the upgrades in 2004. ING paid Casman in part for the fire remediation over the Weir-Joneses’ objections. This dispute prompted them to file a lawsuit against ING and the adjuster, SCM. Intact Insurance Company (Intact) is now the successor of ING. iii.

Iain Weir-Jones’ 2007 Action [ 13 ] In 2007, the garage floor of the home collapsed, allegedly from the deterioration of the garage floor supports. This damage was unrelated to the fire and resulting remediation work. The issues in this lawsuit are causation and coverage. iv. House Condemned 2008 and Total Loss 2016 [ 14 ] In September 2008, the Regional Municipality of Wood Buffalo deemed the house to be uninhabitable and condemned it. Casman had apparently failed to obtain permits for the remediation, the basement upgrades or even for occupancy. The power, water and gas were shut off.

Andrew Weir-Jones, who had been living in the house, was forced to vacate. The house sat empty, slowly being taken over by nature while these lawsuits continued to move at a geologic pace. In May 2016, the house was completely consumed by the Ft. McMurray wildfire. Coverage for the total loss arising from the wildfire was denied by the insurer based on vacancy and misrepresentations.

v. Events in the Lawsuits [ 15 ] The parties have tendered an Agreed Statement of Facts into evidence detailing the procedural events in these three lawsuits. This 10-page

summary is attached as a schedule. Before proceeding with the analysis, I note that the actual length of delay is not quite so great as it first appears, ranging from 11-13 years. The parties have agreed that the time beyond the motion to strike, which was three years ago (in June 2018) should not be considered for the purposes of these applications. Another consideration is that it was not the 2002 fire that caused these lawsuits but the Defendants’ response to it, which happened later. [ 16 ] These are not complicated lawsuits. There are two central issues in the Casman action and the coverage dispute.

The first issue is about the quality of Casman’s work, the second is whether the deficiencies and the delays caused the losses of profit, goodwill, wages, and rental income claimed by the Weir-Joneses. The issues in the third lawsuit with respect to the garage floor turns primarily on causation and the

interpretation of the policy. 3. The Law [ 17 ] Rule 4.31 provides 4.31(1) If delay occurs in an action, on application the Court may (

a) Dismiss all or any part of a claim if the Court determines that the delay has resulted in significant prejudice to a party, or (

b) Make a procedural order or any other order provided for by these rules.

(2) Where, in determining an application under this rule, the Court finds that the delay in an action is inordinate and inexcusable, the at delay is presumed to have resulted in significant prejudice to the party that brought the application. (emphasis added) [ 18 ] Rule 4.31 is about significant prejudice. The Court does not have the power to dismiss for delay in the absence of significant prejudice: Transamerica (paras 2, 50). [ 19 ] Applicants typically approach this rule indirectly.

First, they endeavour to demonstrate that the delay is inordinate, with reference to the Humphreys v Trebilcock factors, by showing that a case of this complexity and number of parties falls short of where it should be on the litigation spectrum. [ 20 ] The next question is the whether the delay is excusable. ( Humphreys Querie #3 at para 153 ). This typically devolves into a finger-pointing exercise where the Court is invited to compare the actual progress in the action with the time set by the rules for various steps, indulgences granted, institutional delay and periods of inactivity, (etc.).

The decided cases had been reluctant to impose any obligation on the part of defendants/applicants to make a matter progress despite the Foundation Rules, so long as their tactics are not deceptive. However, as our Court of Appeal explained in Transamerica at paras 24 – 31, the obligation is no longer entirely a one-way street. [ 21 ] In many circumstances a plaintiff/respondent will retain new counsel to respond to the application. Defence counsel usually stay on the file.

Where excusable delay is an issue, defence counsel’s conduct comes under scrutiny, and they are placed in the unacceptable position of being both witnesses and advocates. [ 22 ] This is only one approach to the question of significant prejudice. If delay is both inordinate and inexcusable an applicant enjoys the presumption of significant prejudice (r 4.31(2)), which can be rebutted.

The other approach and the one that should be preferred, is to deal with the question of significant prejudice directly. [ 23 ] In Transamerica we find: [43] The initial burden of proving prejudice is on the defendant who is applying to strike out the action. However, if the defendant can establish “inordinate and inexcusable” delay, then significant prejudice is presumed: R. 4.31(2). In that event, however, the presumption is still rebuttable: Kuziw at para. 50 ; Ravvin Holdings Ltd v Ghitter , 2008 ABCA 208 at paras. 38-9 , 44, 437 AR 66, 96 Alta LR (4th); Humphreys v Trebilcock at para. 155 .

It is still open to the plaintiff to show that, despite the presumption, there is insufficient prejudice to warrant striking out the action. [ 24 ] In Transamerica , the Court does not discuss the standard necessary to rebut the presumption. (And also see Kuziw at para 50 ). Ravvin (CA), at paras 38, 39 and 44, considering old rule 244(4), suggests that raising a legitimate doubt is sufficient to rebut the presumption. The Court in Humphreys (at paras 148 ) concludes that the standard to rebut the presumption is the ‘balance of probabilities’.

Some cases have gone even further, stating that the strength of the presumption is a function of the length of delay: Stabilized Water , per Mahoney J at para 22 citing Cooke v Calgary Civic Employees Benefit Society , 2003 AJ No. 1725 which, with respect, would make it a moving target. [ 25 ] If we operate on the basis that the presumption in 4.31(2) is rebuttable on a balance of probabilities, it is difficult to see that the two burdens are entirely equal.

It will certainly be more difficult for a plaintiff to discharge the burden of disproving the presumption of significant prejudice when inordinate and inexcusable delay is proved, than it would be for a defendant to address and prove significant prejudice directly. An applicant can identify what is missing from their case, but a respondent would have to anticipate the entire defence, search for what might be missing, and then show how it could be cured.

While this may be an appropriate punishment for laggard plaintiffs, the job of proving a negative is inherently more difficult to discharge than the burden imposed on an applicant under r 4.31(1)(a).

[ 26 ] While I understand the logic of having only one standard of proof, it is difficult to say that the burdens are symmetrical and identical. [ 27 ] As noted, the burden of proving actual prejudice is on the applicant, Alderson (CA), at para 21 and Arbeau (at para 30 ). It goes without saying that it is the prejudice to the applicant that matters (eg Song v Fong at paras 23 – 41 ).

The prejudice must also arise during the delay occasioned by the respondent/plaintiff (eg Ristorante Cosa Nostra , per Robertson M at paras 46 – 47, and Royal Bank v Levy ). [ 28 ] This case is distinguishable from Arbeau to the extent that there is not just ‘some evidence’ of prejudice. In this case the parties have addressed it fully and directly. [ 29 ] Given the choice between direct proof of actual prejudice and a presumption of inferred prejudice, direct proof is always to be preferred.

Otherwise, circumstantial evidence of significant prejudice would be given more probative value than direct evidence: Sopinka (5 th ed) at para 4.12 citing Schiff, Evidence in the Litigation Process , 4 th ed, v 2 p1669, (which refers to Fleming and poses this as a question). [ 30 ] The rule is discretionary. The Court has the discretion not to dismiss even if prejudice is demonstrated or presumed ( Ursa (CA), at para 116 and Gammage , at para 81 per Mandziuk J). [ 31 ] A rule 4.31 delay application is a final application: one that may dispose of all or part of a claim.

Rule 13.18(3) requires that the evidence in support of the application be firsthand. While it may be open for a respondent to use hearsay in response, this is not an option open to an applicant. [ 32 ] To sum up, a r 4.31 applicant must prove significant prejudice with firsthand evidence or show why this cannot be done. In those rare circumstances where it is appropriate to approach the issue of significant prejudice indirectly, the applicant must show inordinate and inexcusable delay.

A respondent must then rebut the resulting presumption of significant prejudice or show why the Court’s discretion should not be exercised in favour of dismissal. 4. Analysis Actual Prejudice [ 33 ] The Applicants raise the following instances of actual prejudice: • ING raises the inability of their own expert to finalize their report. • Casman claims that Mr. Warr, the superintendent of the work at the Weir-Joneses’ property, is no longer employed by the company. Casman also claims that some of the labourers who worked at the property may no longer be available.

They also complain that some of the Weir-Joneses’ undertakings have not been answered. • SCM states that two employees: Paul Whitman and Derek Brake are no longer employed with SCM. They also complain that some records from the Regional Municipality of Wood Buffalo are not available and that SCM was also unable to complete its expert review. • All Applicants raise the prospect of fading memories. [ 34 ] I am not aware of significant prejudice having been comprehensively defined in any of the decided cases. I am mindful of the comments of the Court in Humphreys (at para 87 ).

The list, while not intended to be comprehensive, provides a good starting point: • substantive prejudice • fading memory of witnesses • unavailability of records • increased difficulty in enforcing a judgment or enforcing contribution or indemnity from others • interest, expense, or income lost. The prejudice should be of a type that cannot be cured with costs, a provision about interest, or a procedural order. No Hearsay Allowed [ 35 ] Ms. Reisler, a senior claims manager, gave evidence on behalf of Intact, ING’s successor.

She admitted on cross-examination that she had no firsthand knowledge of the facts stated in her affidavit. However, I acknowledge that she is the corporate representative, authorized to speak for the insurer. Except in limited circumstances, however, binding a party and knowing something firsthand are two different things. [ 36 ] Mr. Keith Edwards gave evidence on behalf of SCM. Mr. Edwards was employed with SCM for 16 years but had no direct involvement with the house or these lawsuits, or the actions until he took over handling the matter in or around 2011. Mr.

Edwards has never spoken directly to key past SCM employees: Mr. Derek Brake or Mr. Paul Whitman.

[ 37 ] Mr. Sandeman, Chief Operating Officer of Casman, had no personal role in the work done at the Weir-Joneses’ property after the fire. All his evidence is based on a review of the file. Mr. Dennis Warr was Questioned for Discovery in this action on Casman’s behalf. Mr. Warr was a superintendent with Casman and worked on the residence and would have been the one with firsthand knowledge of the project and would know the most about it.

He left Casman in 2012 and now works for the Regional Municipality of Wood Buffalo. [ 38 ] I acknowledge that all these witnesses have the power to bind the corporate entities that they are representing. They would be able to give evidence about personnel and employment files, but none are able to comment directly for the purposes of this final application. They can comment on the location or availability of witnesses to the extent that they have done so, but the rest is largely conjecture and speculation.

They are unable to give any evidence about the actual state of memory of any of the witnesses in these three lawsuits. Availability of Witnesses [ 39 ] The ING claims personnel involved in this loss are: Jacquie Parker, Eva Chan, Keith Story and Mr. Zaharia. Ms. Reisler, for ING, confirmed that it would not be difficult to contact them, if necessary. Mr. Zaharia is still an ING employee and available. Ms. Reisler was unable to identify any prejudice beyond ING’s experts having no (present) access to the house.

She also conceded in cross- examination that she did not know whether any unanswered undertaking responses had any bearing on the claim, whatsoever. [ 40 ] Witnesses SCM might wish to call would include Derek Brake, Paul Whitman or Mr. Bosgra, and Mr. Utz from the Regional Municipality of Wood Buffalo. [ 41 ] Mr. Whitman currently runs his own adjusting company in the Edmonton area. Mr. Edwards (for SCM) made no attempt to contact Mr. Brake (who is reportedly suffering from PTSD), but there is no reason to believe that Mr. Brake would not be able to testify and give his recollection. Mr.

Brake would have the benefit of reviewing his previously compiled reports in relation to the house remediation. [ 42 ] Nobody at SCM made any attempt to contact the Regional Municipality of Wood Buffalo employees, though beyond documentary evidence about whether there were permits or not, there is no indication of the probity of the evidence they might give, or how their evidence might assist SCM. There is nothing to suggest how any evidence from the Regional Municipality of Wood Buffalo might assist SCM’s position.

SCM’s employees prepared a very complete set of adjusters’ reports, which, would make this portion of the case more about documents than memories. [ 43 ] It is possible that SCM may have wished to call Alberta Permit Pro, but the probity of this evidence is also unknown beyond the fact that permits were not obtained. Alberta Permit Pro went bankrupt in 2011. [ 44 ] For Casman’s part, their witness, Mr. Warr, left on good terms and currently works for the Regional Municipality of Wood Buffalo.

There is some suggestion that Casman may now be unable to call some of the labourers who worked on the project, but the lawsuit is about the quality of the end product and the delay in completing it, not the work that went into it. Casman did not take the trouble to get statements from any of these individuals despite the ongoing lawsuits and it is impossible to say what evidence they might offer that would be of any value. The failure to obtain statements suggest it might not be worth much. [ 45 ] All the material witnesses in this matter have been located and are available.

There is no evidence that any material witnesses are unavailable or would be non-cooperative. Beyond speculation about fading memories this mostly adjusted loss is very well documented, and there is no cogent evidence showing significant prejudice from the unavailability of witnesses. Experts and Opinion Evidence [ 46 ] In the 2002-2004 period, SCM investigated the loss and provided 19 detailed adjusters reports. In March 2003, a fire damage appraisal report (the ‘SPECS’ report) set the parameters for fire remediation. In December 2004, Antrim Construction provided a report about construction deficiencies to ING.

In August 2005, SPECS reinspected the fire loss and provided an appraisal report. In December 2006, Bateman Chapman provided a report about the garage floor (pointing to the corrosion of nails) and a framing failure as the cause of the collapse of the garage floor. [ 47 ] In January 2014, the Weir-Joneses obtained a forensic engineering report from Stantec. I acknowledge that this changed the complexion of the lawsuit somewhat. Stantec opined that the remediation work was deficient and did not meet an acceptable standard, but it went on to paint a somewhat darker picture.

It was their opinion that the amount of water used to fight the fire and the failure of Casman to pump it out of the basement (for example) essentially ruined the wood framing and joists in the home. This, in turn, caused the foundation to deflect and deform; essentially rendering the house a write-off. SCM’s own engineer reported bowing of the foundation walls years before. Water in the ground from the same source also contributed to cause significant foundation damage.

Stantec made it clear that the problem went beyond deficient work. [ 48 ] It was nearly two and a half years after the Stantec report before the home was destroyed in the Ft. McMurray wildfire. The Weir-Joneses did not impede access to the house by any experts at any time. SCM indicated that their experts required further time to investigate the house and assess the progression of structural deformity. The ING and SCM expert was jointly retained. Requests by this joint expert to examine the house were not made until September 2014.

That same expert made no further efforts to investigate after May 2015, the year before the fire, despite an impending Demolition Order by the Municipality of Wood Buffalo after the house was condemned. [ 49 ] I acknowledge that the 2016 Ft. McMurray wildfire could not have been foreseen by any of the parties in this lawsuit. However, the failure of this jointly retained expert to finalize their report even after the house was condemned in 2008, was an insufficient effort that cannot be blamed on the Weir-Joneses. Especially after 2008, when Andrew Weir-Jones was evicted by the

Municipality for the absence of permits, there was nothing whatsoever that would impede access and inspection. [ 50 ] There was speculation about the effect of the inability to call anybody from Alberta Permit Pro. They became bankrupt in 2011. Casman had hired permit pro to obtain permits, which they had obviously failed to do. This, as noted, resulted in the eviction of the occupants of the house in 2008. Fading Memories [ 51 ] The Applicants’ witnesses have speculated about fading memories. ING and SCM completed routine and thorough documentation of this loss in 19 detailed reports that have been produced.

Witnesses for ING, Casman and SCM have all been Questioned for Discovery. There are no known material witnesses who are not available. There is no evidence of missing witness statements (or material records) which could impair anyone’s ability to refresh their memories. There is no evidence from ING/SCM’s expert about what further investigations might have been required. I note that this same expert initially advised Plaintiffs’ previous counsel in November 2014 that they did not need to reattend for further examination.

They did reattend in May 2015, but the basis for the statement that this expert is now (or now, because of the Ft. McMurray wildfire) unable to complete an opinion, is without any substantiation. [ 52 ] This is not an instance of a loss of evidence that is not recorded anywhere. Virtually all the evidence is contained in the Production and is memorialized in the Questioning, and, for example, the detailed adjuster’s reports provided. We cannot lose sight of the relatively straightforward issues in this lawsuit.

There is no application to amend the pleadings. [ 53 ] I take notice that memories are liable to fade over time, but there is no direct evidence from any of the affected witnesses on this point. No witness with firsthand knowledge has weighed in on this point and they all seem to be available. There is no evidence that their recollection on the central points in this lawsuit could not be refreshed from the materials on the questioning already produced. [ 54 ] The fact that there has been long delay is obvious. However, there is blame for the delay all around.

Significant prejudice has not been established, much less significant prejudice during a period of delay occasioned by the Plaintiff. In the circumstances, it is unnecessary to consider the indirect approach to the issue. Disposition [ 55 ] As Transamerica reminds us, r 4.31 is permissive not mandatory as is r 4.33. There is a large discretionary element in the application of this rule. I am not persuaded that these lawsuits cannot still be determined on their merits. [ 56 ] The applications are dismissed.

The parties are to tender a proposed litigation plan so that this matter may be set down for trial including, if necessary, the extraordinary measure of examining the opposing parties’ expert witnesses. Heard on the 13 th day of April, 2021 and the 28 th of May, 2021 Dated at the City of Ft. McMurray, Alberta this 22 nd day of September, 2021. W.S. Schlosser . Appearances: Ronald Nelson Brownlee LLP for the Applicants, Shumka Craig Moore Adjusters Canada Ltd and SCM Adjusters Canada Ltd Paul Ryzuk Miller Thomson LLP for the Applicant, Casman Building Ltd

Kelly Robinson Chomicki Baril Mah LLP for the Applicants, ING Insurance Services Inc, ING Insurance Company of Canada, and Bateman Chapman Canada Ltd Joel Franz McLennan Ross LLP for the Respondents, Iain Weir-Jones and Andrew Weir-Jones _______________________________________________________ Corrigendum of the Reasons for Decision of W.S. Schlosser, Master of the Court of Queen's Bench of Alberta _______________________________________________________ At paragraph 32 the incorrect rule was quoted, the first sentence in this paragraph has been modified as follows: To sum up, a r 4.31 applicant must prove significant prejudice with firsthand evidence or show why this cannot be done.

Schedule A AGREED CHRONOLOGY OF EVENTS BINDER TAB # DATE DESCRIPTION COMMENTS November 24, 2002 House Fire 1 2002 – 2004 SCM investigates loss and authors 19 detailed adjusters reports March 25, 2003 SPECS Fire Damage Appraisal Report In SCM Report 8, separate binder. 2 April, 2003 Remediation work commences on the home 3 September 6 to 15, 2003 Emails between D. Cutting (ING) and T. Zaharia (ING) re limited resources in getting repairs completed – likely repairs not completed by one year prescription 4 June, 2004 Claims Activity Log – telephone conversation with Dennis @ Casman re delays.

Dennis advises ING he will “work to get this done” 5 August 11, 2004 Casman Building Ltd. (“Casman”) registers Builders Lien against Title No. 022 077 382 in the amount of $150,000 6 January 12, 2005 Casman files Statement of Claim Action No. 0513 010609 (“2005 Action”) 7 July 21, 2005 Iain Weir-Jones (“IWJ”) files Statement of Defence and Counterclaim in 2005 Action

8 August 12, 2005 SPECS Reinspection – Fire Loss Appraisal Report 9 August 31, 2005 Casman files Statement of Defence to Counterclaim in 2005 Action AGREED CHRONOLOGY OF EVENTS BINDER TAB # DATE DESCRIPTION COMMENTS AGREED CHRONOLOGY OF EVENTS BINDER TAB # DATE DESCRIPTION COMMENTS 10 September 2, 2005 Casman files Amended Statement of Claim adding Andrew Weir-Jones (“AWJ”), ING Insurance Services Inc. (“ING”) and Shumka Craig Moore Adjusters Canada Ltd. (“SCM”) in 2005 Action 11 September 20, 2005 AWJ files Statement of Defence and Counterclaim in 2005 Action 12 September 20, 2005 IWJ files Amended Statement of Defence and Counterclaim in 2005 Action 13 September 20, 2005 IWJ files Notices to Co-Defendants to SCM and ING in 2005 Action in 2005 Action 14 October 3, 2005 Casman files Amended Statement of Defence to Amended Counterclaim of IWJ in 2005 Action 15 October 3, 2005 Casman files Statement of Defence to Counterclaim of AWJ in 2005 Action 16 March 15, 2006 IWJ and AWJ file Third Party Notice against ING and SCM in 2005 Action 17 July 7, 2006 IWJ and AWJ file Statement of Claim against Casman, ING and SCM Action No. 0613 011131 (“2006 Action”) 18 November 7, 2006 ING files Statement of Defence in 2006 Action 19 November 10, 2006 IWJ and AWJ file Amended Statement of Claim in 2006 Action 20 December 10, 2006 Bateman Chapman Report 21 February 20, 2007 IWJ files Proof of Loss form re collapse of garage AGREED CHRONOLOGY OF EVENTS BINDER TAB # DATE DESCRIPTION COMMENTS 22 March 2, 2007 IWJ files Statement of Claim against ING, SCM, Casman, Bateman Chapman Canada Ltd. (“Bateman”) and Gravity Engineering Incorporated (“Gravity”) Action No. 0713 011281 (“2007 Action”) 23 March 8, 2007 ING Rejects February 20, 2007 Proof of Loss 24 April 2 & 4, 2007 Counsel for Casman, SCM writes to request no further steps be taken without notice 25 April 16, 2007 ING/Bateman Chapman files Statement of Defence in 2007 Action

26 April 16, 2007 ING/Bateman Chapman files Notice to Co-Defendant Gravity in 2007 Action March 19, 2008 ING files Affidavit of Records in 2006 Action 27 September-October, 2008 Gas, electricity and water turned off by RMWB Residents vacate 485 Beacon Hill Drive 28 July 22, 2009 Counsel for IWJ & AWJ send letter requesting Questioning dates.

August 6, 2009 ING requested the Plaintiff’s production 29 October 22, 2008 Discontinuance of Action as against Gravity in 2007 Action 30 October 15, 2009 SCM files Statement of Defence to Third Party Notice in 2005 Action 31 October 15, 2009 SCM files Statement of Defence in 2006 Action 32 October 15, 2009 SCM files Statement of Defence in 2007 Action November 4, 2009 IWJ and AWJ file Affidavit of Records in 2005 Action, 2006 Action and 2007 Action AGREED CHRONOLOGY OF EVENTS BINDER TAB # DATE DESCRIPTION COMMENTS November 5, 2009 IWJ & AWJ serve their sworn and filed Affidavit of Records in the 2006 Action.

In 2006 Action November 9, 2009 Counsel for IWJ & AWJ serves AORs In remaining actions November 9, 2009 Counsel for IWJ & AWJ canvasses opposing counsel re dates for Questioning 33 March 12, 2010 Casman files Statement of Defence in 2007 Action 34 June 15, 2010 Casman serves draft Affidavit of Records *see Aug-31-2010 letter from Campbell & Cooper referencing Jun-15-2010 letter August 20, 2010 ING requests the Plaintiffs’ Production. September 7, 2010 IWJ and AWJ serve their producible records for the 2006 and 2007 Actions.

December, 2010 Counsel agree on dates for Questioning 35 January 18, 2011 Counsel for ING serves draft Amended Affidavit of Records and DVD of producible documents enclosing SCM reports listed at Tab 1. Not previously provided.

February 7-9, 2011 Questionings for Discovery of Darryl Louis, Dennis Warr, Eva Chan, Wally Matthews August 3, 2011 Casman’s Counsel (Campbell & Cooper) withdraws as Lawyer of Record October 7, 2011 Miller Thomson now acts as Casman’s Counsel 36 October 12, 2011 Casman partially discontinues against Alberta Treasury Branches (“ATB”) in 2005 Action October 9, 2012 Stantec is engaged to prepare report AGREED CHRONOLOGY OF EVENTS BINDER TAB # DATE DESCRIPTION COMMENTS

37 May 22, 2013 IWJ & AWJ Counsel sends letter canvassing questioning dates. Counsel confirmed that nothing had happened in the 2006 or 2007 actions since February 2011 and suggested either Questioning or Case Management.

June 7, 2013 SCM rejects proposal for Case Management and asks the Plaintiffs for Questioning Dates June 13, 2013 ING also rejects Case Management and requests Questioning dates. 38 June 13, 2013 IWJ & AWJ Counsel sends further correspondence canvassing questioning dates. 39 October 23/24, 2013 IWJ & AWJ Counsel sends further correspondence canvassing questioning dates. 40 December 16, 2013 IWJ files Application for an Order compelling Casman to complete Questioning in 2005 Action, 2006 Action and 2007 Action 41 January 9, 2014 Consent Order requiring Questioning of IWJ before February 4 or 5, 2014 in 2005 Action, 2006 Action and 2007 Action 42 January 23, 2014 Stantec Forensic Engineering Report January 24, 2014 IWJ and AWJ Counsel serves Stantec Forensic Engineering Report.

February 4 & 5, 2014 Questioning for Discovery of IWJ and AWJ February 18, 2014 IWJ & AWJ provide municipal records and confirmed that they requested the complete file from the municipality again. AGREED CHRONOLOGY OF EVENTS BINDER TAB # DATE DESCRIPTION COMMENTS June 19, 2014 ING requested undertakings from the 2014 Questioning of IWJ and AWJ. September 9, 2014 Counsel for ING and Batemen Chapman sent a letter to counsel for IWJ and AWJ with a request for undertaking responses.

October 16, 2014 Expert for ING (Samac) attends property 43 October 23, 2014 IWJ provides partial answers to undertakings given at Questioning in February 2014 *date not shown on marked up image of letter attached, but metadata of letter shows date last printed, last saved November 14, 2014 44 November 5, 2014 Counsel for ING advises their expert does not need to reattend the site 45 December 15, 2014 Expert for ING (Samac) requests additional site visit 46 January 23, 2015 Counsel for IWJ and AWJ requests undertakings of Casman May 11, 2015 Expert for ING visits property, but is unable to do foundation excavation 47 July 28, 2015 Email from Byron & Company to all other counsel advising the subject property is likely going to be subject to a demolition order October 9, 2015 Counsel for ING wrote to counsel for IWJ & AWJ to advise that most of the undertakings from the February 2014 Questioning remained outstanding.

AGREED CHRONOLOGY OF EVENTS BINDER TAB # DATE DESCRIPTION COMMENTS January 28, 2016 Counsel for ING and Bateman Chapman sent an email to counsel for IWJ & AWJ to advise that most of the undertakings from the February 2014 Questioning remained outstanding. 48 February 22, 2016 Answers to IWJ & AWJ Undertakings given in 2014 May, 2016 485 Beacon Hill Drive lost in Fort McMurray wildfire May 2, 2016 IWJ & AWJ Counsel seeks questioning dates on answers to undertakings. 49 August 19, 2016 Letter sent by IWJ Counsel suggesting invoking

Section 519 of the Insurance Act with respect to the appraisal process of the subject home. August 25, 2016 ING responded to the Plaintiffs’ request under s. 519 of the Insurance Act and advise it is inappropriate. January 18, 2017 IWJ & AWJ confirm that the subject home was destroyed in the May 2016 Fort McMurray wildfire, and suggested that the parties either enter into a standstill agreement, or move the action forward.

February, 2017 Co-operator’s Insurance denies coverage on grounds of misrepresentation and vacancy February 1, 2017 IWJ and AWJ file Application for Assistance of the Court in Managing the Action in the 2006 Action and 2007 Action AGREED CHRONOLOGY OF EVENTS BINDER TAB # DATE DESCRIPTION COMMENTS February 2, 2017 The Respondents acknowledged receipt of the application to set a litigation plan. The Respondents advised that the next steps should be to conclude questioning of AWJ & IWJ, and that case management did not appear appropriate or necessary.

The respondents suggested booking questioning rather that proceeding with the application. Counsel for ING noted she would not recommend a standstill agreement. 50 February 7, 2017 Order requiring Questioning on Undertakings within three months in the 2006 Action and 2007 Action April 5, 2017 The SCM defendants provided further documentation they obtained from the municipality. April 6, 2017 Continuation of Questioning of IWJ and AWJ

April 6, 2017 SCM produced redacted copy of Municipal File at Questioning June 16, 2017 ING requested undertaking responses from the April 2017 Questioning of IWJ & AWJ. 51 July 31, 2017 Counsel for IWJ and AWJ requests copy of Municipal File 52 September 6, 2017 Counsel for IWJ and AWJ requests copy of Municipal file again 53 November 22, 2017 Answers to IWJ and AWJ undertakings given in 2017 provided to counsel November 22, 2017 IWJ provide Consent for Release of Municipal Files AGREED CHRONOLOGY OF EVENTS BINDER TAB # DATE DESCRIPTION COMMENTS 54 February 6, 2018 IWJ provides final answers to undertakings (No. 57) from April, 2017 *document attached contains automatic date field that shows date document marked up in our litigation software.

Also attached is a printout of the metadata for this letter showing date created, last saved, etc.

February 6, 2018 February 13, 2018 Ron Nelson advises form of Consent would not be suitable for RMWB – need to redraft March 8, 2018 IWJ provide Consent for Release of Municipal Files April 12, 2018 AWJ provides Consent to Release Municipal File to RMWB April 12, 2018 Consent forwarded to RMWB by Ron Nelson (Brownlee) May 16, 2018 Counsel for IWJ and AWJ follow up on request copy of Municipal file 55 May 17, 2018 Counsel for IWJ and AWJ canvasses opposing counsel as to their respective positions to proceeding with ADR or trial, and if no agreement can be reached, will apply to court for assistance in proceeding June 1, 2018 ING makes Application to dismiss pursuant to Rule 4.31 in the 2005 Action, 2006 Action and 2007 Action June 4, 2018 Casman makes Application to dismiss pursuant to Rule 4.33 in the 2005 Action and 2007 Action AGREED CHRONOLOGY OF EVENTS BINDER TAB # DATE DESCRIPTION COMMENTS June 6, 2018 SCM makes Application to dismiss pursuant to Rule 4.31 in the 2005 Action, 2006 Action and 2007 Action

July 30, 2018 SCM/ING Counsel provide IWJ & AWJ Counsel with un-redacted municipal records.