GHC SWIFT CURRENT REALTY INC. PLAINTIFF - v. -, 2023 SKKB 44

KING’S BENCH FOR SASKATCHEWAN Citation: 2023 SKKB 44 Date: 2023 02 23 Docket: QBG-RG-00158-2018 Judicial Centre : Regina BETWEEN: GHC SWIFT CURRENT REALTY INC. PLAINTIFF - and - BACZ ENGINEERING

(2004) LTD., LESMEISTER CONSTRUCTION ’97 LTD. and STARKS PLUMBING AND HEATING LTD. DEFENDANTS Counsel: Daniel P. Kwochka for GHC Swift Current Realty Inc. Chantelle C. Eisner for Lesmeister Construction ’97 Ltd. Lindsay A. Gates for Starks Plumbing and Heating Ltd. JUDGMENT KEENE J. FEBRUARY 23, 2023 I. INTRODUCTION [ 1 ] The defendants, Lesmeister Construction ‘97 Ltd. [LCL], and Starks Plumbing and Heating Ltd. [Starks], apply pursuant to Rule 7-2 of The Queen’s Bench Rules for

summary judgment striking the plaintiff’s, GHC Swift Current Realty Inc. [GHC], claim for being statute barred pursuant to The Limitations Act , SS 2004, c L-16.1 [ Act ]. II. PROCEEDINGS TO DATE [ 2 ] On January 12, 2018, GHC filed a claim suing LCL, Starks and BACZ Engineering

(2004) Ltd. [BACZ] over a construction project in Swift Current, Saskatchewan. The defendants all filed statements of defence, contending, inter alia , that GHC was statute barred pursuant to the Act . LCL and Starks each brought an application to strike the plaintiff’s claim on the basis that the claim was statute barred relying on Rule 7-9 and alternatively on Rule 7-2 of The Queen’s Bench Rules. [ 3 ] Justice McCreary (as she then was) in her decision ( 2020 SKQB 161 ) found the claim should be struck against all defendants pursuant to Rule 7-9(2)(

e) for being an abuse of process because of the missed limitation period citing Jardine v Saskatoon Police Service , 2017 SKQB 217 at para 43 . In so doing she decided there was no need to consider whether the claim should be dismissed

summarily pursuant to Rule 7-2. [ 4 ] GHC appealed the decision and the Court of Appeal ( 2022 SKCA 38 ) [ GHC CA ] held that the learned chambers judge had made an error in law by weighing the evidence when applying the restricted analysis ( i.e. plain and obvious test) applicable under Rule 7-9(2)(e). The Court of Appeal, while upholding the striking of the claim regarding BACZ, sent the matter back to this Court for determination of the alternate Rule 7-2 application. III.

FACTUAL BACKGROUND [ 5 ] In February 2012, LCL entered into a construction management contract with GHC to build a care home, Cypress House, in Swift Current. LCL entered into a sub-contract with BACZ to design the mechanical systems in the building.

LCL also entered into a sub-contract with Starks to supply materials and services related to the plumbing and mechanical components at Cypress House. [ 6 ] Cypress House was built between February 2012 and August 2014 at which time the City of Swift Current issued an occupancy permit for Cypress House and the care home residents started to move in. [ 7 ] In the spring of 2015, GHC retained Hooker Engineering Ltd. [Hooker] to provide advice regarding the operation and maintenance of the mechanical systems in Cypress House.

Hooker advised GHC at that time that there were numerous deficiencies with the mechanical systems in Cypress House. [ 8 ] It appears that Hooker not only provided advice to GHC but also took on the role to a degree as an advocate for GHC in dealing with LCL and Starks.

This resulted in Bryon Hooker on July 16, 2015 sending a detailed letter to LCL (Starks received a copy) setting out deficiencies. [ 9 ] On November 10, 2015, the lawyer for GHC sent a demand letter to LCL requesting a reply to the July 16, 2015 Hooker letter and advising that if an appropriate reply was not forthcoming, then GHC would sue. [ 10 ] What transpired between the parties from November 10, 2015 onwards, to the date of issuing a claim on January 12, 2018, is of interest to this Court. I say this because the applicants contend that s. 6(1) (

d) of the Act is controlled by two considerations: 1) the possible continued reliance by a plaintiff on the superior knowledge and expertise of defendants; or 2) the use of alternative dispute resolution. The plaintiff argues the saving provisions of s. 6(1) (

d) have been expanded to include “efforts to remedy a problem so as to make litigation unnecessary” ( GHC CA at para 35) that pulls into the mix considerable fact finding. Adding to all of this is the applicants’ contention that once a plaintiff mentions suing – then this starts the unrelenting ticking of time. IV. THE LIMITATIONS ACT [ 11 ] Since the effect of this Act on the plaintiff’s action is at the heart of the applicants’ application for

summary judgment, I will review the applicable sections and some of the caselaw. The following sections of the Act are reproduced: 5 Unless otherwise provided in this Act , no proceedings shall be commenced with respect to a claim after two years from the day on which the claim is discovered. 6(1) Unless otherwise provided in this Act and subject to subsection (2), a claim is discovered on the day on which the claimant first knew or in the circumstances ought to have known: (

a) that the injury, loss or damage had occurred; (

b) that the injury, loss or damage appeared to have been caused by or contributed to by

an act or omission that is the subject of the claim; (

c) that the act or omission that is the subject of the claim appeared to be that of the person against whom the claim is made; and (

d) that, having regard to the nature of the injury, loss or damage, a proceeding would be an appropriate means to seek to remedy it. … 18 If, in a proceeding, a limitation period is raised against a claimant, the claimant has the burden of proving that: (

a) the limitation period has not expired; or (

b) there is no limitation period that applies to the claim. 19 If, after the commencement of a proceeding, it is established that a limitation period applicable to the claim had expired before the commencement of the proceeding, the claim is barred and the proceeding shall not be maintained. [ 12 ] I am satisfied that the elements found in s. 6(1) (a), (

b) and (

c) of the Act are established in so much as GHC knew or ought to have known as early as the spring of 2015 that deficiencies existed in Cypress House because Hooker told GHC. This resulted in discussions between the parties that led to Bryon Hooker’s detailed letter of July 16, 2015 sent to LCL (copied to Starks) setting out some 28 alleged deficiencies. Certainly any argument over “discoverability” under s. 6(1) (a),(

b) and (

c) of the Act were laid to rest by the strident letter sent to LCL from the lawyer for GHC on November 10, 2015 which not only reinforced Mr. Hooker’s July 16, 2015 letter but penultimately put LCL on notice that if a satisfactory reply was not made “by November 16, 2015” GHC would sue.

[13] In my opinion, and I believe the parties agree, the real issue is rooted in s. 6(1)(

d) of the Act. I will now gothrough some of the caselaw on what appears to be an often vexing problem, particularly in construction cases, of whether the conduct ofthe parties actually tolls or delays the start of the limitation period. [14] The applicable law regarding the effect of s. 6(1)(

d) of the Act is set out by Justice Kalmakoff in Saskatchewan (Highways and Infrastructure) v Venture Construction Inc., 2020 SKCA 39, 447 DLR (4th) 316 [Venture] reproduced as follows: [63] The effect of s. 6(1)(

d) of the Act is that the start date of a limitation period may be delayed beyond when the plaintiff is aware ithas suffered loss from a wrongful act or omission on the part of the defendant. It is a legislative recognition that, in some cases, theremay be compelling and appropriate reasons for a plaintiff to hold off on bringing an action, even when all the other elements ofdiscoverability are fulfilled: see, for example, Novak v Bond, (SCC), [1999] 1 SCR 808 [Novak]. The use of the word“appropriate” in Ontario’s equivalent of s. 6(1)(

d) has been interpreted to mean that the reason for delaying bringing a claim must be onethat is “legally appropriate”: Markel Insurance Company of Canada v ING Insurance Company of Canada, 2012 ONCA 218 at para 34,109 OR (3d) 652 [Markel]. [64] One of the purposes underlying provisions like s. 6(1)(

d) is to encourage parties to discuss and negotiate claims rather than rushinto needless litigation: Novak at para 40; Markel at para 34; see also 407 ETR Concession Company Limited v Day, 2016 ONCA 709 atpara 48, 403 DLR (4th) 485 [407 ETR]. For that reason, it may, in some circumstances, be appropriate for a plaintiff to delay bringing aclaim when there is a chance the dispute can be resolved without resort to litigation: see, for example, Presidential MSH Corporation vMarr Foster & Co.

LLP, 2017 ONCA 325 at paras 26–27, 135 OR (3d) 321 [Presidential]. [65] In Sosnowski v MacEwen Petroleum Inc., 2019 ONCA 1005, 441 DLR (4th) 393 [Sosnowski], the Ontario Court of Appealsummarized the principles to be applied in assessing when a party knows or ought to know that it is appropriate to commence a legalproceeding. In that regard, Hourigan J.A. wrote: [16] First, the determination of whether a proceeding is an appropriate means to seek to remedy an injury, loss, or damagedepends upon the specific factual and/or statutory setting of each case: Nasr Hospitality Services Inc. v.

Intact Insurance, 2018 ONCA725, 142 O.R. (3d) 561, at para. 46. [17] Second, this court has observed that two circumstances most often delay the date on which a claim is discovered under thissubsection. The first is when the plaintiff relied on the defendant’s superior knowledge and expertise, especially where the defendanttook steps to ameliorate the loss. The other situation is where an alternative dispute resolution process offers an adequate remedy, and ithas not been completed: Nasr, at para. 50. [18] Third, Sharpe J.A. in Markel Insurance Company of Canada v.

ING Insurance Company of Canada, 2012 ONCA 218, 109O.R. (3d) 652, at para. 34, provided … guidance concerning the meaning of the term appropriate: [text omitted] [19] … appropriate means whether it is legally appropriate to bring an action. Appropriate does not include an evaluation ofwhether a civil proceeding will succeed. [66] This is, in my view, a helpful

summary of the law. Speaking to the first of the circumstances noted in paragraph 17 of Sosnowski,namely reliance on ameliorative efforts by a defendant with superior knowledge or expertise, it has been held, for example, that it may beappropriate to delay bringing a claim for malpractice against an expert professional where that professional is taking steps to remedy the wrongdoing, which, if successful, would make a civil action unnecessary: see, for example, Brown [2016 ONCA 325, 397 DLR (4th)161]; Presidential at para 20; Chelli-Greco v Rizk, 2016 ONCA 489.

A limitation period may also toll where the plaintiff delays inbringing an action because he or she relies on the defendant’s superior knowledge and expertise in a non-professional discipline or tradeas being capable of remedying the loss: see, for example, Zeppa v Woodbridge Heating & Air Conditioning Ltd., 2019 ONCA 47, 144OR (3d) 385, or because the plaintiff is waiting to see if the losses he or she has actually suffered are non-trivial: see Gillham [2018 ONCA 667, 425 DLR (4th) 178]. (Emphasis added) [15] It is to be noted “the second commonly invoked reason to delay the date on which it is appropriate to bring aclaim … is pursuing an alternate dispute resolution process that offers an adequate remedy” (Venture at para 67) is not applicable in thiscase. [16] The starting point is to acknowledge that pursuant to s. 18 of the Act, GHC bears the burden of proving thelimitation period had not expired by the time the claim was issued on January 12, 2018.

The plaintiff must rely on the saving grace of s. 6(1)(

d) of the Act because as I have stated, the discoverability of the alleged damages and who was responsible was well-known by theplaintiff by at least November 10, 2015 which is more than two years prior to the issuing of the claim. [17] This Court has the benefit of Justice Kalmakoff’s ruling in GHC CA setting out the following: [40] The Chambers judge found that GHC had knowledge of all the necessary facts as early as July of 2015, and no later thanNovember of 2015, when its lawyer sent a letter to LCL demanding that the deficiencies be remedied at LCL’s expense.

She made thatfinding, however, despite the following evidence contained in the affidavit of Heather Haupstein: 7. Throughout the rest of 2015 and 2016, Starks and/or LCL worked on correcting the deficiencies they agreed they were responsiblefor and voluminous correspondence was exchanged between GHC, LCL, Starks and BACZ as to who was responsible for some of theother deficiencies, most notably a workable solution in respect of the ceiling mounted heat pumps. …

It was not until Starks’s email of February 8, 2016 and LCL’s response of email of February 19, 2016 that I felt the Defendants would not complete all of the deficiencies and, to the present time, I remain uncertain which of the Defendants is primarily responsible for the respective deficiencies which is why each are named in the Statement of Claim. 12. [GHC] and the Defendants, however imperfectly, continued to work together towards remedying the identified deficiencies including coming up with an acceptable solution in respect of the ceiling mounted heat pumps and prior to February, 2016, at the earliest, I never felt a legal proceeding was an appropriate means to remedy the issues between the parties.

The issues were fluid and ongoing and, as stated, it still remains unclear which Defendant is responsible for which deficiency. Until 2017, [GHC] did not know what an appropriate solution to the ceiling mounted heat pump might be or what damages, if any, might be once a solution was found. Further, if the deficiencies were remedied, as most were, [GHC] would not have suffered damages at all. [41] The Chambers judge referred specifically to this evidence in the Decision [2020 SKQB 163], where she said: [24] The defendants continued to work on remedying many of the deficiencies up to June 15, 2017. Ms.

Haupstein says that it was not until Starks’ email of February 8, 2016 and LCL’s email of February 19, 2016, when both Starks and LCL said they would not do further work on the deficiencies at their own cost, that she knew it may be necessary to take legal action as a result of the deficiencies. ... [42] In my respectful view, the Chambers judge’s treatment of this evidence reveals an error in principle. The gist of Ms.

Haupstein’s evidence on this point was that GHC was working with LCL and Starks to remedy deficiencies, which led her to believe those deficiencies might be resolved and, if that were the case, GHC would not suffer damage and litigation would be unnecessary. In essence, she was asserting that GHC did not reasonably know that it was appropriate to bring a claim until LCL and Starks had made it clear that they were not going to remedy all of the deficiencies that GHC had identified. Ms.

Haupstein’s evidence was that more than simple negotiations were taking place between GHC, LCL and Starks; active steps were being taken by the defendants to remedy the problems. Her evidence on that point was uncontradicted and raised at least an arguable point about whether GHC’s claim was discovered more than two years before it was issued. That being so, it could not be said to be plain and obvious that GHC’s claim was statute barred at the time it commenced the action. [43] Contrary to what the governing jurisprudence directs, the Chambers judge weighed Ms.

Haupstein’s evidence on that point and proceeded to make a determinative finding of fact about whether the element of discovery set out in s. 6(1) (

d) of the Act had been fulfilled. While this is exactly the type of finding of fact she would have been required to make at trial, or that she may have been entitled to make if she had been deciding the case on a

summary judgment basis, it is not a finding of fact she was permitted to make in the context of a strike application under Rule 7-9(2), given the state of the evidence before her. That she did so is an error in principle.

In the result, in my view, the Decision must be set aside to the extent that it struck GHC’s claim against LCL and Starks. (Emphasis added) [ 18 ] Justice Kalmakoff also stated in GHC CA : [35] Whether a legal proceeding would have been an appropriate means to seek to remedy a claimant’s damage, injury or loss will turn on the facts of each case and the abilities and circumstances of the particular claimant ( Fercan Developments Inc. v Canada (Attorney General) , 2021 ONCA 251 at para 16 [ Fercan ] ; 407 ETR Concession Company Limited v Day , 2016 ONCA 709 at para 34 , 403 DLR (4th) 385 ).

Where the plaintiff offers reasons for delaying in bringing a claim, those reasons must be carefully scrutinized. A plaintiff cannot rely on purely tactical reasons as a premise for delaying the commencement of legal proceedings where the other elements of discovery have been fulfilled ( Fercan at para 16 ; Davies v Davies Smith Development Partnership , 2018 ONCA 550 at para 13 ; Markel Insurance Company of Canada v ING Insurance Company of Canada , 2012 ONCA 218 at para 34 , 348 DLR (4th) 744 [ Markel ] ).

That said, the consideration of whether the plaintiff knew a legal proceeding was an appropriate means to seek a remedy must take into account the nature of the injury, loss or damage in issue ( Markel at para 34 ; Fercan at para 16 ; Sosnowski v MacEwen Petroleum Inc. , 2019 ONCA 1005 at para 18 , 441 DLR (4th) 393 ), as well as any interaction between the parties with respect to ameliorative efforts aimed at avoiding litigation.

Trivial damages will not necessarily trigger a limitation period because the law recognizes that a prudent plaintiff would not bring an action to recover a trivial loss ( Gillham v Lake of Bays (Township) , 2018 ONCA 667 at para 22 , 425 DLR (4th) 178 ).

While ongoing communication or negotiations between the parties or an investigation into the nature of the damages will not postpone the commencement of a limitation period, efforts to remedy a problem so as to make litigation unnecessary may do so ( Presley v Van Dusen , 2019 ONCA 66 at para 25 , 432 DLR (4th) 712 ). (Emphasis added) [ 19 ] The above directs this Court to examine the evidence provided to attempt to determine what may have been going on between the parties because “ongoing communication or negotiations” would not be enough to postpone the commencement of the limitation period, but “efforts to remedy a problem so as to make litigation unnecessary may do so” ( GHC CA at para 35). [ 20 ] The plaintiff (respondent) to these applications, was served with LCL’s and Starks’ applications that zeroed in on the limitation argument.

However a reading of Rick Lesmeister’s affidavit filed on behalf of LCL, and Albert Stark’s affidavit filed on behalf of Starks, reveals that neither deponent said much if anything about what happened between the parties after November 10, 2015. [ 21 ] However, as pointed out above by Justice Kalmakoff, Heather Haupstein in her affidavit provided by GHC in reply, does speak to what happened, to a degree, between the parties after November 10, 2015. I will not repeat the quotations from Ms. Haupstein’s affidavit contained in Justice Kalmakoff’s decision set out above.

However in addition to these passages from her affidavit, Ms. Haupstein set out “a sample of the various correspondence exchanged between the various parties to the action” (para. 8) referring to this as “only a small sampling of the voluminous communications exchanged between the parties from 2015 until right up until June, 2017” (para. 9). [ 22 ] I will add the following paragraph from Ms. Haupstein’s affidavit reproduced as: 10. In

summary, as set out in the various correspondence, LCL was blaming BACZ and/or Starks and/or GHCR for the deficiencies,

BACZ was blaming Starks and/or LCL and Starks was blaming BACZ and/or LCL and/or GHCR. As the above Exhibits make clear, GHCR and all the Defendants continued to work on clearing up the deficiencies right up until June 15, 2017 and the vast majority of deficiencies were in fact remedied without the need for litigation . (Emphasis added) [ 23 ] As I have stated above, there is a dirth of evidence on this from the applicants, despite being given the opportunity to file further reply materials by Justice Layh in his fiat of June 21, 2022. I have not yet addressed the issue of the appropriateness of

summary judgment but it is a well-known tenet of

summary judgment applications that parties must put their “best foot forward” ( Canada (Attorney General) v Lameman , 2008 SCC 14 at para 11 , [2008] 1 SCR 372). [ 24 ] The applicants seem to prefer to rely on the onus under s. 18 of the Act and argue that the plaintiff has failed to discharge that burden by providing inadequate response evidence to establish that the dispensation under s. 6(1) (

d) of the Act should apply. Again, this hinges on Justice Kalmakoff’s distinction between ongoing communication and negotiations and efforts to remedy the problem that I have referred to above. It becomes necessary therefore to tease out of the evidence what were mere communications and what were actual ongoing efforts.

The question is: does the evidence that has been provided allow this Court to do this? [ 25 ] I wish to acknowledge that the applicants argued that the claim should have been issued (or at least the limitation period would start) once the plaintiff instructed its lawyer to send the November 10, 2015 letter threatening to sue relying on Asfar v Sunlife , 2019 ONSC 3098 . However that case has to be read in conjunction with Justice Kalmakoff’s comments set out above that the parties are entitled to try and resolve matters without litigation.

I also note that the applicants’ reference to Markel Insurance Company of Canada v ING Federated Insurance Co. of Canada , 2012 ONCA 218 , 348 DLR (4 th ) 744 where the court was worried that: [34] This brings me to the question of when it would be "appropriate" to bring a proceeding within the meaning of s. 5(1) (a)(iv) of the Limitations Act . Here as well, I fully accept that parties should be discouraged from rushing to litigation or arbitration and encouraged to discuss and negotiate claims.

In my view, when s. 5(1) (a)(iv) states that a claim is "discovered" only when "having regard to the nature of the injury, loss or damage, a proceeding would be an appropriate means to seek to remedy it", the word "appropriate" must mean legally appropriate.

To give "appropriate" an evaluative gloss, allowing a party to delay the commencement of proceedings for some tactical or other reason beyond two years from the date the claim is fully ripened and requiring the court to assess to tone and tenor of communications in search of a clear denial would, in my opinion, inject an unacceptable element of uncertainty into the law of limitation of actions. [ 26 ] I agree that the assessment of the “tone and tenor of communication” can be challenging (this comports with Justice Kalmakoff’s comments set out above) but again here, the evidence of the plaintiff seems to be that some things may have been actually getting done beyond mere talk.

This is all the more important to look at when considering Justice Kalmakoff’s comments in Venture quoted above where he stated “it may, in some circumstances, be appropriate for a plaintiff to delay bringing a claim when there is a chance the dispute can be resolved” (para. 64). In my opinion that can be an antidote to the threat of legal action. [ 27 ] I also acknowledged that the applicants seem to be relying almost entirely on the evidence found in Ms. Haupstein’s affidavit to support their application for

summary judgment and in that way argue this evidence can be used to overcome the lack of evidence in their materials. The court appreciates that all the evidence before the court, from any party, is germane. However apart from Ms.

Haupstein’s evidence set out above, all that remains is a series of email messages between the parties that does not provide too much more than setting out the frustration of the parties, particularly Albert Stark. [ 28 ] Finally, before turning to my analysis under Rule 7-2, I acknowledge the applicants’ argument that the plaintiff did not rely on the superior knowledge and expertise of the applicants to fix the deficiencies, and was relying on Hooker ( Bombino v Serendipity Homes , 2022 ONSC 1410 at para 44 and Thermal Exchange Service Inc. v Metropolitan Toronto Condominium Corporation No. 1289 , 2022 ONCA 186 ).

I understand this argument is put forward to defuse the contention by the plaintiff that the delay should be allowed because LCL and Starks were actively remedying deficiencies. Again, reference to the above quote from Sosnowski v MacEwen Petroleum Inc. , 2019 ONCA 1005 , 441 DLR (4 th ) 393 found in Justice Kalmakoff’s decision in Venture at para 65 is instructive. Justice Hourigan noted that “this court has observed that two circumstances most often delay the date”. These are the reliance on the defendant and the use of alternative dispute resolution mentioned above.

The applicants argue that the plaintiff was not reliant on either LCL or Starks after GHC engaged the services of Hooker. This does not seem quite correct. There is evidence from Ms. Haupstein, and in the Hooker letter of July 16, 2015, that LCL and Starks were trying to fix things. Therefore it is at least arguable that there was apparent continued reliance on LCL and Starks despite Hooker’s involvement. In any event, this is all rather fact driven. [ 29 ] Having outlined the facts and the law surrounding s. 6(1) (

d) of the Act , I will now turn to the question of whether these applications for

summary judgment are appropriate. V. THE SUITABILITY OF

SUMMARY JUDGMENT [ 30 ] The Queen’s Bench Rules and

Part 7 provide as follows: 7-2 A party may apply, with supporting affidavit material or other evidence, for

summary judgment on all or some of the issues raised in the pleadings at any time after the defendant has filed a statement of defence but before the time and place for trial have been set. 7-3(1) A response to an application for

summary judgment must not rely solely on the allegations or denials in the respondent’s pleadings, but must set out, in affidavit material or other evidence, specific facts showing that there is a genuine issue requiring a trial.

(2) The Court may draw an adverse inference from the failure of a party to cross-examine on an affidavit or to file responding or rebuttal evidence.

(3) An affidavit for use on an application for

summary judgment may be made on information and belief as provided in rule 13-30, but,

on the hearing of the application, the Court may draw an adverse inference from the failure of a party to provide the evidence of any person having personal knowledge of contested facts. … 7-5(1) The Court may grant

summary judgment if: (

a) the Court is satisfied that there is no genuine issue requiring a trial with respect to a claim or defence; or (

b) the parties agree to have all or part of the claim determined by

summary judgment and the Court is satisfied that it is appropriate to grant

summary judgment.

(2) In determining pursuant to clause (1)(

a) whether there is a genuine issue requiring a trial, the Court: (

a) shall consider the evidence submitted by the parties; and (

b) may exercise any of the following powers for the purpose, unless it is in the interest of justice for those powers to be exercised only at a trial: (

i) weighing the evidence; (ii) evaluating the credibility of a deponent; (iii) drawing any reasonable inference from the evidence.

(3) For the purposes of exercising any of the powers set out in subrule (2), a judge may order that oral evidence be presented by one or more parties, with or without time limits on its presentation.

(4) If the Court is satisfied that the only genuine issue is a question of law, the Court may determine the question and grant judgment accordingly. [ 31 ] Justice Karakatsanias in Hryniak v Mauldin , 2014 SCC 7 , [2014] 1 SCR 87 provided a two-step process to the application of

summary judgment provisions: [66] On a motion for

summary judgment under Rule 20.04, the judge should first determine if there is a genuine issue requiring trial based only on the evidence before her, without using the new fact-finding powers. There will be no genuine issue requiring a trial if the

summary judgment process provides her with the evidence required to fairly and justly adjudicate the dispute and is a timely, affordable and proportionate procedure, under Rule 20.04(2)(a). If there appears to be a genuine issue requiring a trial, she should then determine if the need for a trial can be avoided by using the new powers under Rules 20.04(2.1) and (2.2). She may, at her discretion, use those powers, provided that their use is not against the interest of justice.

Their use will not be against the interest of justice if they will lead to a fair and just result and will serve the goals of timeliness, affordability and proportionality in light of the litigation as a whole. (Emphasis in original) [ 32 ] The consideration when determining whether to apply the

summary judgment rules is whether that application will result in a fair process of adjudication of the issues between the parties. [ 33 ] Justice Barrington-Foote (as he then was) detailed the Hryniak roadmap in Tchozewski v Lamontange , 2014 SKQB 71 , 440 Sask R 34 [ Tchozewski ] as follows: [30] … The answer to this question calls for an analysis of the affidavit and other evidence presented and the issues raised by the application, in the context of the litigation as a whole. In Hyrniak , Karakatsanis J. breaks that analysis down into discrete steps and key principles — a “roadmap” — based on the various elements of the

summary judgment rules. In brief, the key elements of that roadmap, in the context of a Rule 7-2 application, are as follows: 1. The court must first decide if there appears to be a genuine issue requiring a trial within the meaning of Rule 7-5(1)(a)), based solely on the evidence before the court, and without using the powers provided by Rule 7-5(2)(

b) to weigh the evidence, evaluate credibility and draw inferences. ( Hryniak , para 66 ) 2. There will be no genuine issue requiring a trial if the judge is able to reach a fair and just determination on the merits based on the affidavit and other evidence. That will be so if the

summary judgment process: (

a) allows the judge to make the necessary findings of fact; (

b) allows the judge to apply the law to the facts; and (

c) is a proportionate, more expeditious and less expensive means to achieve a just result than going to trial. ( Hryniak , para 49 ) 3. The issue is not whether the

summary judgment process is as thorough or the evidence is as complete as at trial. It is whether the judge is confident he or she can find the facts and apply the relevant legal principles so as to fairly resolve the dispute. If the judge has that confidence, proceeding to trial is generally not proportionate, timely or cost effective. A process that does not give the judge confidence in his or her conclusions, on the other hand, is never proportionate. ( Hryniak , paras 50 and 57 ) 4. If there appears to be a genuine issue requiring a trial, the court should next determine if a trial can be avoided by using Rule 7-5(2) (

b) powers to weigh evidence, evaluate credibility and draw inferences, and whether it is in the interests of justice that those powers be exercised only at trial. ( Hryniak , para 56 )

5. In deciding whether there is a genuine issue requiring trial, and whether it is in the interests of justice to use the powers provided by Rule 7-5(2)(

b) to avoid a trial, the court must consider the nature of the evidence and issues. It must also consider proportionality in the context of the litigation as a whole. The relevant factors may include, but are not limited to: (

a) the complexity of the claim; (

b) the amount at issue; (

c) the importance of the issues; (

d) the relative cost and speed of a

summary judgment application, as compared to trial; (

e) whether better evidence will be available at trial than on the application, and the nature and extent of the conflict in the evidence, including: (

i) whether there is competing evidence from multiple witnesses, the evaluation of which would benefit from cross -examination; (ii) whether credibility determinations are at the heart of the issues to be determined; and (iii) whether credibility determinations are made more difficult by the shortage of reliable documentary yardsticks. (

f) whether the court is able to fairly evaluate the evidence, including the extent to which it would assist the court to have evidence presented by way of a trial narrative, to hear and observe witnesses and to have the assistance of counsel in reviewing the facts and the law within the conventional trial process; (

g) whether

summary judgment would resolve all claims against all parties, or whether a trial will be necessary in any event, raising, among other things, the possibility of duplicative proceedings or inconsistent findings of fact; and (

h) whether the application could dispose of an important claim against a key party, thereby reducing cost and delay. (Rule 1-3, Hryniak , supra , paras 58, 60 and 66 , and Pervez [2013 SKQB 377 , [2013] 12 WWR 794 ], para 48) 6. The court also has the discretion to permit a party to present oral evidence pursuant to Rule 7-5(3) if it would allow the court to reach a fair and just adjudication on the merits and is the proportionate course of action. ( Hryniak , para 63 ) [ 34 ] This brings the court to a consideration of the evidence tendered in the applications.

The key issue before me is what occurred after November 10, 2015 particularly in light of Justice Kalmakoff’s distinction between mere communication and actual remedial work taking place. [ 35 ] It is a concern to the court that I do not have the full picture. The applicants appear to have chosen not to provide much evidence on this point. The plaintiff has provided some evidence regarding this time period through Ms.

Haupstein’s affidavit and exhibits. [ 36 ] In my opinion, the importance of a comparison of the post November 10, 2015 conduct of the parties was actually highlighted by the Court of Appeal as the reason to uphold the chambers judge’s decision to strike the claim against BACZ. Justice Kalmakoff stated in GHC CA : [44] The same cannot be said, however, regarding GHC’s claim against BACZ. This is because there was no evidence before the Chambers judge that BACZ had taken

part in any efforts to remedy the deficiencies. BACZ made it clear, from the outset, that it completely denied liability for any of the loss, injury or damage GHC claimed to have suffered and also made it clear that it would bear no responsibility for any remedial measures. That being so, there was no arguable issue raised about whether GHC had a legally appropriate reason for delaying bringing its claim against BACZ. Even though the Chambers judge did not apply the “plain and obvious” test to the question of whether the claim against BACZ was statute-barred, if she had, she would have come to the same result.

For that reason, I would not disturb her conclusion to dismiss the claim against BACZ. (Emphasis in original) [ 37 ] I now turn my attention to whether all of this is amenable to a

summary judgment application. I find that the plaintiff (respondent) has persuaded myself that there is a genuine issue requiring a trial: the issue of whether s. 6(1)(

d) can be used by the plaintiff to establish the claim is not barred by s. 19 of the Act . [ 38 ] The plaintiff provided some uncontradicted evidence that the provisions of s. 6(1) (

d) of the Act may apply to show time was tolled or delayed by the conduct of the parties after November 10, 2015. The applicants have provided little evidence on this important issue. [ 39 ] In my opinion it is not for the plaintiff at this stage to satisfy the court s. 6(1) (

d) of the Act saves the day. It is for the applicants to show that there is enough evidence on this heavily fact driven issue to allow this Court to grant

summary judgment. [ 40 ] The parties did not mention during oral argument that the use of Rule 7-5(3) (oral testimony) would be helpful. In any event, I find that this would only act to bifurcate the action. In addition this probably would not be as simple as merely calling the deponents as witnesses in a special oral hearing. It seems to me that the evidential spade work required to fully examine the application of s. 6(1) (

d) of the Act would likely require other witnesses (possibly experts or at least a representative from Hooker) to assist the court with determining the extent of any deficiencies and what was done (if anything) and by whom and when. The result would look a lot like a full blown trial in any event.

[ 41 ] In considering whether I can decide the genuine issue that exists ( i.e. s. 6(1) (

d) of the Act ), the court finds that rather than attempting to use Rule 7- 5(2) or otherwise use different methods at this stage to try to get enough evidence, this case should be left for the more evidence rich forum of a trial conducted in the usual fashion. This would also allow the parties to engage in the usual procedures such as exchange of documents, questioning, a pretrial conference and ultimately examination-in-chief and cross-examination in court. I appreciate the utility of having a final answer on this s. 6(1) (

d) issue earlier because defendants’ success would stop the action in its tracks. However I do not think it is appropriate to sacrifice a fair and just determination simply on that basis. In my opinion a trial judge would be in a better position than I am to render a fair decision. There is simply put – a shortfall of evidence to support the applications. [ 42 ] Finally while the expense and time involved in proceeding to trial may be a concern, I find that Justice Barrington-Foote’s comment in Tchozewski bears repeating: [30] … 3. The issue is not whether the

summary judgment process is as thorough or the evidence is as complete as at trial. It is whether the judge is confident he or she can find the facts and apply the relevant legal principles so as to fairly resolve the dispute. If the judge has that confidence, proceeding to trial is generally not proportionate, timely or cost effective. A process that does not give the judge confidence in his or her conclusions, on the other hand, is never proportionate. ( Hryniak , paras. 50 and 57 ) VI. CONCLUSION [ 43 ] I have taken the time to hopefully show the defendants’ applications for

summary judgment are not as straightforward as argued by the applicants. The applicants bear the onus of showing on the balance of probabilities that there is no genuine issue requiring a trial or if there is a genuine issue, this Court can fairly adjudicate the issue summarily. The plaintiff has successfully raised the issue of s. 6(1) (

d) of the Act that remains in contest at this point. I conclude after going through the evidence provided, the case law on the Act and on

summary judgment, that I cannot confidentially and fairly adjudicate the genuine issue that exists. Nor does proceeding further under the

summary judgment Rules provide an adequate way of trying to get to the resolution of this issue. A trial of the action in the ordinary course is the preferable procedure. [ 44 ] Accordingly I find I must dismiss both applications for

summary judgment. The plaintiff should receive costs. However, despite there being two separate applications brought by each remaining defendant, there shall only be one set of costs fixed at $1,500 payable by LCL and Starks, jointly and severally. J. T.J. KEENE