Unger v Scott, 2023 ABKB 500

Court of King’s Bench of Alberta Citation: Unger v Scott, 2023 ABKB 500 Date: 20230831 Docket: 2103 00371 Registry: Edmonton Between: Byron Unger Plaintiff - and - Dedra Scott Defendant _______________________________________________________ Reasons for Decision of the Honourable Applications Judge L.A. Smart _______________________________________________________ Background [ 1 ] The Defendant Dedra Scott and the Plaintiff Byron Unger were in a short relationship in 2001. The relationship included unprotected sex. Scott became pregnant and a daughter was born August 13, 2002.

In the timeframe around conception Scott was having sexual relations with Unger and her then ex-boyfriend, Kerry Shakura. At the end of October, 2002, Scott requested child support from Unger. [ 2 ] Scott had a pre-natal DNA test completed by Paragon Genetics. The genetic material used is said to be that of Scott and Shakura. The result from Paragon dated March 12, 2002 indicated a 0% chance that Shakura was the biological father.

Scott alleges Unger refused to supply his DNA when she was first attempting to determine the true biological father which Unger denies. [ 3 ] There is considerable disagreement over when the results of this testing were communicated and what was specifically communicated to Unger in that regard, in particular, that the test was pre-natal. Based on a recorded voicemail message in October, 2003 from Unger to Scott and again in an e-mail dated February 17, 2006, Unger appears to have had knowledge that the testing excluded

Shakura as the biological father. It is clear that Scott forcefully took the position that Unger was the father based on the testing she haddone. A copy of the Paragon test results were not provided to Unger until 2020 although there had been earlier requests for it. [4] Over the next many years Unger continued to pay child support, at times questioning the veracity of Scott’s statements as toparentage. From time to time over the years Scott invited Unger to get his own DNA testing while adamantly insisting he was the father.Unger did not do any testing.

He expressed frustration with his limited access to the daughter and indicates his reason for his reticence toinsist on testing was his concern it would lead to Scott further restricting his access. He also expressed concerns about potentialsignificant costs if lawyers were to become involved. Parenthetically, neither party disputes that Unger never stood in loco parentis to thedaughter. [5] In January, 2020, the Court granted a Consent Order increasing child support to $3000 from the $2000 amount paidhistorically by agreement. In March, 2020 Unger requested a DNA test through his Counsel.

Although this was initially resisted, anOrder was granted by consent for the testing to be done. That testing was carried out in July, 2020 at DDC Diagnostics Centre anddetermined that there was a 0% probability that Unger was the biological father. [6] A Genetrack Biolabs DNA Paternity Test Report dated July 31, 2020 reports that the probability of Shakura being thebiological father was found to be virtually 100%. In August, 2020 Scott was Ordered to produce all records respecting any prior DNAtesting.

Unger has obtained an Expert Report from a forensic biologist comparing the DNA reports that concluded that the donor of theputative father’s sample in 2002 and Shakura’s sample in 2020 could not have come from the same person. In addition, the sample fromthe putative mother from the 2002 testing would be excluded as the biological mother of the daughter tested in the 2020 reports. ByOrder dated August 19, 2020 child support was terminated. The Application [7] Unger has sued Scott for recovery of the child support payments he made to Scott of approximately $400,000.00. Scott seekssummary dismissal of the claim.

The defence raised is that the claim is barred by the Limitations Act, RSA 2000, c L-12, in particular, s3(1)(

b) under the ten year ultimate limitation period. The initial payment for child support was made in 2002 and continued forapproximately 19 years. Discussion [8] If Scott fraudulently concealed the fact that the 2002 DNA test was incorrect or false the claim would not necessarily bestatute barred. [9] Scott submits that the test for assessing fraudulent concealment in a limitations context is set out in Ambrozic v Burcevski,2008 ABCA 194. Succinctly, it is a three part test: 1. That the defendant perpetrated some kind of fraud; 2. The fraud concealed a material fact; and 3.

The plaintiff exercised reasonable diligence to discover the fraud. [10] The Plaintiff responds with the Court’s quote at paragraph 70 in Performance Industries Ltd v Sylvan Lake Golf and TennisClub, 2002 SCC 19: 70 Lord Chelmsford’s strictures were quoted and applied by Southin J. (as she then was) in United Services Funds (Trustees of) v.Richardson Greenshields of Canada Ltd. (1988), (BC SC), 22 B.C.L.R. (2d) 322 (S.C.), where she observed that“[c]arelessness on the part of the victim has never been a defence to an action for fraud” (p. 335).

Once the plaintiff knows of the fraud, he must mitigate his loss but, until he knows of it, in my view, no issue of reasonable care oranything resembling it arises at law. And, in my opinion, a good thing, too. There may be greater dangers to civilized society than endemic dishonesty. But I can think ofnothing which will contribute to dishonesty more than a rule of law which requires us all to be on perpetual guard against rogues lest webe faced with a defence of “Ha, ha, your own fault, I fool you”. Such a defence should not be countenanced from a rogue. [p. 336] See also Dalon v.

Legal Services Society (British Columbia) (1995), (BC SC), 10 C.C.E.L. (2d) 89 (B.C.S.C.). To thesame effect is Spencer Bower and Turner, The Law of Actionable Misrepresentation (3rd ed. 1974), at p. 218: A man who has told even an innocent untruth, by which he has induced another to alter his position, — much more one who hasfraudulently lied with that object and result, — has debarred himself from ever complaining in a court of justice, any more than he couldin a court of morals, that the representee acted on the faith of his misstatement in the manner in which he, the representor, intended thathe should.

He can never be heard to resent the fact that another believed the lie that was told for the very purpose of inspiring that belief,or plead as an excuse that, if the representee had not been such a fool as to trust such a knave, no harm would have been done. [11] The question in Performance was whether rectification of a contract should be granted and not a limitations issue.

There isdifficulty reconciling the differing approaches with respect to obligations of due diligence for discovery of fraud depending uponcontext, but Ambrozic is directly on point and binding upon me. [12] Scott says she completed the Paragon DNA test in 2002 in the proper manner and that she relied on that report in good faith

without any knowledge that there were problems with the testing. She believed Unger was the biological father. She strenuously argues that based on Ambrozic the evidence shows that Unger had had doubts and could have if he had been reasonably diligent had further DNA testing done at any time. The claim ought to be statute barred. [ 13 ] Although I find Scott’s argument compelling, the difficulty here is the expert evidence that concludes that the DNA material submitted in 2002 could not have come from Shakera and most probably not from Scott. In my mind those facts could quite arguably support findings that

Part 1 and 2 of the Ambrozic test have been met. It may be there is an explanation to allay concerns arising from the expert’s report. Regardless, the testing of the veracity of any explanation or disavowment of responsibility comes down to credibility and best determined before a trial judge. Furthermore, the assessment of the sufficiency of Unger’s diligence should be considered through the lens of the Court in that light when making the determination of its reasonableness. [ 14 ] There is an additional challenge to Scott’s limitation argument. Section 3(3) (

a) and 3(3) (

b) of the Limitations Act read: 3(3) For the purposes of subsections (1)(

b) and (1.1)(b), (

a) a claim or any number of claims based on any number of breaches of duty, resulting from a continuing course of conduct or a series of related acts or omissions, arises when the conduct terminates or the last act or omission occurs; (

b) a claim based on a breach of a duty arises when the conduct, act or omission occurs; [ 15 ] Unger, relying on Frydman v Pelletier , 2015 ABQB 289 at para 168 , argues that s 3(3)(

a) applies and came into play each time a payment of support was made, and the time would not begin until the last payment was made, constituting “a continuous course of conduct or a series of related acts or omissions”. Counsel for Unger submitted that this type of situation has not been considered generally and most certainly not in the context of misattributed paternity.

Although not done so constantly over the years Scott did from time to time iterate her position that Unger was the genetic father which conduct may be relevant to limitations in this case but there is no doubt she continued to receive the child support payments throughout. [ 16 ] James H Meek, Jr Trust v San Juan Resources Inc , 2005 ABCA 448 is a case considering a more common occurrence, that is, where the continuing conduct was the failure to make payments under a contract.

In Meek , an oil company as a successor in interest to lands was unaware of its royalty obligations and the beneficiaries of the trust were unaware that royalties were not being paid. When the beneficiaries became aware of the non-payment, they started an action. [ 17 ] Hunt, JA for the Court held that s 3(3)(

a) did not apply to circumstances where there was a failure to make a series of periodic payments but rather was intended to apply when damages do not result from a single act but from many (related) or series of acts occurring over time. Based on this decision, the applicability of s 3(3)(

a) to this case is cast with some doubt. [ 18 ] However, Hunt, JA did find liability under s 3(3)(

b) concluding that the claim arose when the first royalty payment was missed, and each non-payment thereafter gave rise to a separate claim. On that basis the claim was barred for any payments due beyond 10 years from the date the action was commenced. Although, as noted, the converse has occurred here (i.e. payment, not non-payment) but the circumstances are analogous enough to see its possible application to recovery of payments albeit limited to the ten years prior to commencement of the action. Conclusion [ 19 ] For the most part the facts and circumstances are not in dispute.

Much of the evidence has been memorialized in emails and recordings. The real issue is the inferences and conclusions the Court must draw from those facts. In my view, under these circumstances, for the Court to make its determination it must hear from the parties to assist in interpreting the myriad of interactions and exchanges between the parties in the context of the claim and the defences raised. [ 20 ] Furthermore, even if the Court concludes there was no inappropriate conduct by Scott in relation to the DNA testing, there remains the difficult legal issue of rolling limitations.

What implications might arise from the position taken by Scott with respect to entitlement to support throughout the 19 years must be fully examined and assessed by the Court. Arguably, the conduct could amount to a series of acts and the possible application of s 3(3)(a). Finally, the Court must consider s 3(3)(

b) and how it might apply in the context of this case where monthly payments were made over time “in error”. Decision [ 21 ] Based on the factual record before me in the context of the complex limitations’ issues, I am not satisfied that I am able to make a fair and just determination and conclude the claim lacks merit. Accordingly, the application for

summary dismissal is dismissed. Unless there are other relevant considerations not brought to my attention, the Plaintiff shall have his costs on the appropriate column of

Schedule C of the Rules of Court . Heard on the 13 th day of July, 2023, Dated at the City of Edmonton, Alberta this 31 st day of August, 2023.

L.A. Smart A.J.C.K.B.A. Appearances: G. James Thorlakson Dentons Canada LLP for the Plaintiff Robert Feraco Emery Jamieson LLP for the Defendant