Condominium Corporation No., 2013 ABQB 722

Court of Queen ’ s Bench of Alberta Citation: Condominium Corporation No. 1122235 v Surbey, 2013 ABQB 722 Date: 20131206 Docket: 1113 00206 Registry: Ft.

McMurray Between: Condominium Corporation No. 1122235, On-Site Solutions Inc., and Douglas Age, As Representative Plaintiff Plaintiffs - and - Sandy Surbey, Douglas Urness, Anna Simmonds, Douglas Simmonds, Sass Holdings Ltd., Simsur Holdings Ltd., Condominium First Management Services Ltd., Lorraine Murray, Lorraine Murray operating in the name and style of Murray Management Ltd., Bryon Wall and Alex Amor Defendants Brought Pursuant to the Class Proceedings Act , R.S.A. 2003, c. C-16.5 _ ________________________________________ ______________ Reasons for Judgment of the Associate Chief Justice J.D. Rooke

_________________________________________ ______________ I. Introduction [ 1 ] In the application before me, the proposed Representative Plaintiff seeks certification under the Class Proceedings Act , SA 2003, c C-16.5 (Act) of that portion of the Plaintiffs’ action against the Defendants relating to claims of the individual past and present unit owners of a 498 unit condominium project built in Fort McMurray, Alberta, known as River Park Glen (the Project). II. Executive

Summary [ 2 ] This is the type of action which normally would be ideal as a class proceeding under the Act ; namely, a condominium development that has, at best, soured into what appears to be an operational, habitable, management and investment mess. [1] However, Douglas Age (Age), the proposed Representative Plaintiff for this class proceeding, has chosen to join his pleadings with those of one of the management companies, On-Site Solutions Inc. (On-Site). [2] It was clear during the hearing before me that On-Site is likely to be third-partied by the Defendants if the action moves forward, which could complicate class proceedings to a significant degree.

It may well be that On-Site has valid causes of action against some or all of the Defendants, but its issues are not the primary issues of the class. Indeed, I find that putting On-Site and the class together, in all the circumstances, is a recipe for a litigation disaster. [ 3 ] The proposed Representative Plaintiff has failed to identify discrete common questions of fact and common questions of law. Further, Age is not adequately informed to properly instruct Counsel and there is some doubt whether he is acting solely in the best interests of the proposed class.

He has not presented sufficient evidence of a rational connection between the proposed class, the causes of action advanced and the proposed common issues. [ 4 ] Ordinarily, class proceedings might be the appropriate means for condominium unit owners to litigate claims of mismanagement. That does not mean the class proceedings here should be certified. Some proceedings that are less than optimal can be made to work. However, the class proceedings as presently proposed in this case are fundamentally flawed.

It is not up to the Court to fix that. [ 5 ] Should the pleadings be amended to remove On-Site as a Plaintiff and the other shortcomings identified below corrected, Age, or preferably some other proposed representative plaintiff who is better informed, may re-apply for certification. III.

Alleged Facts [ 6 ] The basic facts alleged by the Plaintiffs in their Amended Statement of Claim, and which emerge from the affidavit and questioning on affidavit of Age, and from the affidavit of the Defendant Anna Simmonds (Simmonds), follow. [ 7 ] Condominium Corporation No. 1122235, known as River Park Glen, is a 498 unit condominium complex in Fort McMurray, Alberta, consisting of 112 townhouse units (the Mews), 96 units in a low rise apartment building and two 13 storey towers consisting of 149 and 143 units respectively. The Project was converted into condominiums in or about 1995.

At the time, four separate condominium corporations were created, including: Condominium Corporations Nos. 972 0115, 972 0113, 972 0114, and 952 4686. The Mews was owned by The Owners: Condominium Plan 952 4686. [ 8 ] Some of the units in the Project are or have been owner-occupied while others are or have been rented out. [ 9 ] Age and his wife have owned four units in the Project since 1997. Their four units have always been in a rental pool. [ 10 ] Since about 1996, the Defendant Sandra Surbey (Surbey) and her husband, the Defendant Dr.

Douglas Urness, through Front Step Management Ltd. (FSM), have owned three units in the Project. FSM jointly owns two other units with Simmonds. Simmonds also owns three additional units in the Project. Simmonds and Surbey are the only two shareholders and directors of the Defendants SASS Holdings Ltd. (SASS) and SIMSUR Holdings Ltd. (SIMSUR). The Defendant Dr. Douglas Simmonds is Simmond’s husband. I will refer to Simmonds, Surbey, their husbands, SASS and SIMSUR collectively as the Simmonds/Surbey Defendants. [ 11 ] Until October 2008, there was a single Board of Directors for the Project.

Beginning in January 2000, On-Site assumed responsibility for property management of the Project. Ruth Winthrop was employed by On-Site as property manager. The sole shareholder and director of On-Site is Bryce Chapman (Chapman). Charlene Turner (Turner) is the President of On-Site. [ 12 ] From October 2008 to October 7, 2009, the Mews was run as a separate entity with its own Board of Directors (Mews Board), which included Simmonds, Surbey and the Defendants Byron Wall (Wall) and Alex Amor (Amor). Chapman also served on the Mews Board until he was removed by a vote sometime in 2009.

The other three buildings in the Project were each run by their own Board of Directors. Chapman and Turner were members of all three of those Boards. [ 13 ] The Defendant Condominium First Management Services Ltd. (Condominium First) provided property management services for the Mews from January 1, 2009 to October 31, 2009. On-Site remained the property manager for the rest of the Project. [ 14 ] The Plaintiffs maintain that from about July 2009, SASS became the rental manager for rental units in the Mews and various other rental units in the Project.

They say the Defendant Lorraine Murray (Murray), personally, or through either a rental property management business in her own name or through the Defendant Murray Management Ltd, carried out those rental management services

as an employee or agent of SASS during that time. [ 15 ] According to Simmonds, she and Surbey incorporated SIMSUR in 2010 to rent and lease the units previously managed by SASS. Fifty-one units are presently managed by SIMSUR under rental property management contracts with the unit owners. [ 16 ] On April 16, 2011, the Mews condominium corporation was combined with the other three condominium corporations to form Condominium Corporation No. 1122235. Chapman and Turner are on its Board of Directors. [ 17 ] The Plaintiffs filed a Statement of Claim on June 3, 2011, which they amended on June 6, 2011.

They contend that Simmonds, Surbey, Dr. Simmonds, Dr. Urness, Wall, Murray and SASS defamed Property Team, Chapman, Turner and Winthrop to gain control of the condominium corporations, so that SASS could obtain the management contracts for the Mews and many of the other units in the Project previously managed by On-Site.

They contend these defamatory statements interfered with the contractual relations between On-Site and various owners in the Project and with the economic interests of the Plaintiffs. [ 18 ] The Plaintiffs allege that Simmonds, Surbey, Wall and Amor, as members of the Mews Board, owed them a duty of care to ensure the Mews was properly managed and to ensure those hired by them to manage the Mews, and the rental units in the Mews, were properly qualified and properly carried out their responsibilities. [ 19 ] The Plaintiffs claim the Defendants SASS, Condominium First and Murray, as property and rental managers of the Mews and other units in the Project, owed them a duty of care to ensure they properly carried out their duties and responsibilities. [ 20 ] The Plaintiffs assert the Defendants intentionally or negligently breached the duties of care owed to them and, as a result, the Mews, and the units in the Project managed by certain of the Defendants, fell into extreme disrepair and experienced security, safety and health issues, all of which negatively impacted the reputation, value and managements costs for the Project and caused the Plaintiffs to suffer damages. [ 21 ] The Plaintiffs maintain the intentional or negligent mismanagement by the Defendants amounted to unlawful acts directed at them, which were intended to, and did, interfere with their economic interests, causing them significant loss and damages. [ 22 ] The Plaintiffs claim the Defendants, or two or more of them, engaged in a civil conspiracy by acting with intent and in concert for the predominate purpose, or with the constructive intent, of causing economic loss to the Plaintiffs. [ 23 ] The Plaintiffs say the Defendants have been unjustly enriched at their expense. [ 24 ] Age brings this action on his own behalf and on behalf of “all persons who have, at any time since October 8, 2008 to the present , been an owner of a condominium unit in the Mews and on behalf of all persons who have, at any time since October 8, 2008 to the present , been an owner of a condominium unit in any of the other buildings comprising River Park Glen, not including any of the Defendants” (the Proposed Class).

He refers to these groups collectively as the “Class,” although presumably they are meant to be two subclasses. IV. Issue [ 25 ] The sole issue in this case is whether the proposed class proceeding should be certified as such. V. Analysis [ 26 ] It is trite to note that s 5(1) of the Act provides that, in order for a proceeding to be certified, the Court must be satisfied that: (

a) the pleadings disclose a cause of action; (

b) there is an identifiable class of 2 or more persons; (

c) the claims of the prospective class members raise a common issue, whether or not the common issue predominates over issues affecting only individual prospective class members; (

d) a class proceeding would be the preferable procedure for the fair and efficient resolution of the common issues; (

e) there is a person eligible to be appointed as a representative plaintiff who, in the opinion of the Court, (

i) will fairly and adequately represent the interests of the class, (ii) has produced a plan for the proceeding that sets out a workable method of advancing the proceeding on behalf of the class and of notifying class members of the proceeding, and (iii) does not have, in respect of the common issues, an interest that is in conflict with the interests of other prospective class members. [ 27 ] In accordance with s 8, the Court is not to refuse certification by reason only of one or more of the following: (

a) the relief claimed includes a claim for damages that would require individual assessment after determination of the common issues;

(

b) the relief claimed relates to separate contracts involving different prospective class members; (

c) different remedies are sought for different prospective class members; (

d) the number of prospective class members or the identity of each prospective class member has not been ascertained or may not beascertainable; (

e) the class includes a subclass where the prospective subclass members have claims that raise common issues not shared by all theprospective class members. A. Cause of Action 1. General [28] The onus, at the certification stage, is on the proposed Representative Plaintiff to demonstrate that a cause of action exists,although the threshold is low: Gorecki v Canada (Attorney General) (2006), (ON CA), 265 DLR (4th) 206 (Ont CA). [29] The Court is not to rule on the merits of the Plaintiffs’ case at the certification stage of the proceedings.

Rather, it is to assumethe facts alleged in the pleadings are true and determine whether a cause of action is disclosed.

If it is plain and obvious that a claim doesnot exist, it may be struck: Hollick v Toronto (City), 2001 SCC 68 at para 25, [2001] 3 SCR 158. [30] As stated in Hunt v Carey Canada Inc., (SCC), [1990] 2 SCR 959 regarding an application to strikepleadings as disclosing no cause of action, the length and complexity of the issues, the novelty of the cause of action and the possibilitythe defendant can present a strong defence should not prevent the plaintiff from proceeding with the case. [31] The Amended Statement of Claim in the present case does not differentiate between the various Plaintiffs in the causes ofaction pleaded.

Accordingly, I will assume for purposes of this application that Age, on behalf of the Proposed Class, intends to rely onall of the causes of action set out in the pleadings. [32] Age pleads defamation, negligence, interference with contractual relations by unlawful means, intentional interference witheconomic interests, conspiracy to cause economic loss and unjust enrichment. 2. Defamation [33] The Amended Statement of Claim gives particulars of a number of supposedly defamatory statements allegedly made bySimmonds, Dr. Simmonds, Surbey, Dr.

Urness, Wall and Murray about Property Team, Chapman, Turner and Winthrop. According tothe Amended Statement of Claim, Property Team owns various units in the Project. In my view, the pleadings do disclose the cause ofaction of defamation by one member of the Proposed Class, Property Team, against certain of the Defendants. [34] The Amended Statement of Claim does not include any allegation of defamation by Condominium First or Amor. 3.

Negligence [35] The claim is made that Simonds, Surbey, Wall and Amor, as members of the Mews Board, had a duty of care to the Plaintiffs,which was breached.[3] However, it is only alleged there was a separate Mews Board from October 2008 to October 7, 2009.

Any dutyof care owed by the members of the Mews Board likely did not extend beyond their time on the Board and may/likely not have beenowed to the owners of all units in the Project. [36] The claim is made that SASS, Condominium First and Murray, as property and rental managers of the Mews and variousother units in the Project, had a duty of care to members of the Proposed Class, which was breached. [37] It is alleged that Condominium First was property manager for the Mews from January 1, 2009 to October 31, 2009.

Again,any duty of care it had may/likely not have extended to all unit owners, to owners of units in other buildings or to anyone who did notown their unit(

s) during the time Condominium First acted as property manager. [38] SASS and Murray are said to have assumed rental property management services for rental units in the Mews and other rentalunits in the Project starting in about July 2009, and SIMSUR in about 2010.

The question arises whether they would have had a duty ofcare to any unit owners who had not retained their services or to those who did not own their units when these Defendants were acting asrental property managers. [39] Amor argued there is no cause of action in negligence disclosed against him as there is no allegation he acted dishonestly or inbad faith. He referred to s 28(2) of the Condominium Property Act, RSA 2000, c-22, which imposes a duty of honesty and good faith onmembers of condominium boards.

The allegation is made in the Amended Statement of Claim that the Defendants intentionally breachedtheir duties in order to obtain control of River Park Glenn for their own financial gain. To the extent this allegation is meant to apply toAmor, in my view it amounts to an assertion of bad faith on his part.

However, the question still arises whether any duty of care owed byAmor as a Board Member would extend to unit owners in buildings other than the Mews or to those who did not own their units when hewas serving on the Mews Board. [40] Nevertheless, in my view, it is not plain and obvious, at this stage, that the Amended Statement of Claim discloses no cause ofaction in negligence for any member of the Proposed Class against the Defendants. 4. Interference with contractual relations

[41] The claim is made that Simmonds, Dr. Simmonds, Surbey, Dr. Urness, Wall and Murray interfered with contractual relationsbetween On-Site and members of the Proposed Class by defaming Property Team and various non-parties. No such claim is madeagainst Condominium First. [42] There are a number of elements which must be established in order to maintain a cause of action for interference withcontractual relations, including: (

a) a valid and enforceable contract; (

b) an awareness by the defendant of the existence of the contract;(

c) a breach of the contract procured by the defendant; (

d) the breach being effected by wrongful interference on the part of thedefendant; and (

e) damage suffered by the plaintiff as a result of the breach (Northern Messenger (Calgary) Ltd. v Frost (1966), (AB KB), 56 WWR 412 at 415-416 (Alta SCTD); Posluns v Toronto Stock Exchange and Gardiner (1965), (ON SC), 46 DLR (2d) 210 (Ont HCJ, aff’d in the result (ON CA), 53 DLR (2d) 193 (Ont CA), aff’d (SCC), [1968] SCR 330). [43] The only factual allegation in the Amended Statement of Claim relating to interference with contractual relations is the claimthat Simmonds, Dr. Simmonds, Surbey, Dr.

Urness and SASS made defamatory statements so that SASS could gain the managementcontracts for the Mews and many of the other units in the Project from On-Site. There is no express allegation that On-Site had contractswith any members of the Proposed Class. However, the claim is made that from July 2009 to the present, SASS assumed rental propertymanagement services for the rental units in the Mews and various other units in the Project previously managed by On-Site.

Presumably,then, the contracts in issue were the ones for rental property management of rental units in the Mews and those other rental units in theother buildings in the Project. Members of the Proposed Class who never rented their units, who never had a contract with On-Site, orwho continued to contract with On-Site, would not have a cause of action for interference with contractual relations. [44] The damages and losses claimed on behalf of the members of the Proposed Class include increased condominium fees,reduced annual rental income and decreased property values.

The underlying complaint appears to be that SASS/SIMSUR and Murraywere poor rental property managers. Any losses or damages claimed seem to flow from that complaint rather than from any contractualinterference. However, at this stage, it is not plain and obvious that no cause of action for interference with contractual relations isdisclosed for any member of the Proposed Class against Simmonds, Dr. Simmonds, Surbey, Dr. Urness or SASS. 5.

Interference with economic interests [45] The claim is made that the alleged defamatory statements and the alleged intentional breaches of duty by the Defendants, orcertain of them, interfered with the economic interests of members of the Proposed Class. [46] As stated in Pro-Sys Consultants Ltd. v Microsoft Corporation, 2013 SCC 57 at para 81, the elements of this tort are that: (1)the defendant intended to injure the plaintiff's economic interests; (2) the interference was by illegal or unlawful means; and (3) theplaintiff suffered economic loss or harm as a result. [47] The Amended Statement of Claim states that the alleged defamatory statements were made so that SASS could acquiremanagement contracts for the Mews and other rental units in the other buildings and so that certain of the Defendants could gain controlof the condominium corporations for their own financial gain.

It states the Defendants intentionally breached their management duties inorder to gain control of the Project for their own financial gain. While these are not allegations of an intention to injure the economicinterests of members of the Proposed Class, the pleadings do go on to state that two or more of the Defendants acted with intent to causeeconomic loss to the Plaintiffs. [48] In my view, it is not plain and obvious, at this stage, that the Amended Statement of Claim discloses no cause of action ofinterference with economic interests by unlawful means. 6.

Conspiracy [49] According to the Supreme Court of Canada in Pro-Sys Consultants Ltd. at para 73: “… in Canada, two types of actionableconspiracy remain available under tort law: predominant purpose conspiracy and unlawful means conspiracy.” Predominate purposeconspiracy is established where the main purpose of the defendant's conduct is to cause injury to the plaintiff and the plaintiff suffersloss caused by the defendant's conduct.

The court noted in Pro-Sys Consultants Ltd. (at para 74) that there has been some suggestion thistort should be restricted in its application, but it held (at para 75) this was not a matter that should be determined on an application tostrike pleadings. Similarly, it need not be decided on this application. [50] The claim is made in the Amended Statement of Claim that two or more of the Defendants acted together with thepredominate purpose of causing economic loss to the Plaintiffs. Presumably, the actions in issue are the alleged defamations and thealleged breaches of management duties.

The claim is also made on behalf of the members of the Proposed Class that they suffereddamages which, as I have noted above, appear to relate to their complaint of mismanagement. In my view, it is not plain and obvious, atthis stage, that the cause of action of predominate purpose conspiracy is not disclosed. [51] The tort of unlawful means conspiracy requires that: (

a) the unlawful conduct be directed toward the plaintiff; (

b) thedefendant knows that injury to the plaintiff is likely to result; and (

c) the injury to the plaintiff does in fact occur (Pro-Sys ConsultantsLtd. at para 80). [52] Some of the alleged defamatory statements related to Property Team, which is a member of the Proposed Class. The allegationalso is made in the Amended Statement of Claim that the Defendants’ alleged intentional mismanagement was directed at the Plaintiffsand was intended to interfere with their economic interests. Loss and damages are claimed relating to that mismanagement. [53] In my view, it is not plain and obvious, at this stage, that the Amended Statement of Claim discloses no cause of action forunlawful means conspiracy. 7. Unjust enrichment

[54] Unjust enrichment requires that: (

a) the defendant be enriched; (

b) there is a corresponding deprivation of the plaintiff; and (c)there is an absence of juristic reason for the enrichment (Pro-Sys Consultants Ltd. at para 85). [55] There is no suggestion in the pleadings here that either Wall or Amor was paid for his work as a member of the Mews Boardor was otherwise enriched by his actions or inactions. Aside from them, I am otherwise unable to say, at this stage, that it is plain andobvious the Amended Statement of Claim discloses no cause of action in restitution against the other Defendants. B.

Identifiable Class [56] In order for there to be an identifiable class: (1) it must be defined by objective criteria; (2) there must be a rationalconnection between the class and the common issues; and (3) the connection must be supported by sufficient evidence (Windsor vCanadian Pacific Railway Limited, 2007 ABCA 294 at para 76, 417 AR 200 (Windsor CA), citing Pearson v Inco Ltd. (2006), (ON CA), 78 OR (3d) 641 at paras 57-59 (CA)). 1.

Objective criteria [57] The Simmonds/Surbey Defendants argued that Age has failed to establish an identifiable objective class as the Proposed Classhas no temporal limit and will continue to expand. I disagree. There are temporal limits to the Proposed Class. It includes those whoowned units in the Project at any time from October 8, 2008 to the present, other than the Defendants. [58] However, contrary to the pleadings, Age suggested that the Proposed Class should remain open until the end of the litigation.In my view, “to the present” means to the date of the pleading.

However, even if expanded, it would have to be closed at some pointprior to any common issues hearing, likely not later than any certification order. In light of my decision based on other factors, this neednot be decided conclusively, at this time. However, it would have to be addressed if a new certification application is brought. 2.

Rational connection [59] Amor contended the Proposed Class is overly broad in relation to the suit against him, pointing out that it includes owners ofunits not only in the Mews but in other buildings in the Project as well and those who were owners before he was a member of the MewsBoard and after the Mews Board was no longer in existence. He asked: “… what duty could [he] possibly owe to the entire class ofplaintiffs?” [60] Amor and Condominium First argued that the Proposed Class includes unit owners who have not suffered any loss.

Amorpointed to Age’s evidence that property values of the units have fluctuated over the years, including increasing in 2010 and 2011. Amoralso submitted that the Proposed Class includes unit owners who may have purchased at a time when they ought to have known of anyalleged deficiencies through due diligence in the purchasing process.

Both Amor and Condominium First cited Mouhteros v DevryCanada Inc. (1998), (ON SC), 41 OR (3d) 63 (SC), in which the court held that the proposed class was over-inclusive as it included individuals who might well have no claim for any of the relief pleaded, let alone a claim which raised a commonissue. [61] Condominium First also suggested that if certification were granted, consideration should be given to creating both Plaintiffand Defendant subclasses. There may be merit to this suggestion. [62] Age acknowledged that the proposed Class may include unit owners who have not suffered any losses.

However, hesubmitted that the Court should allow certification on the condition the definition of the Proposed Class is amended, citing Windsor CA at para 20 in support of his position. He suggested that the Proposed Class be amended to add the criteria that members, at any timesince October 8, 2008: (

a) experienced an increase in condominium fees; or (

b) experienced a decrease in value of their condominium unit; or (

c) experienced a decrease in the rental rate for their condominium unit. [63] Age also suggested that the Proposed Class be defined as not including any of the Defendants “or any entity owned orcontrolled by any of them.” [64] I agree that the Proposed Class, at a minimum, would have to be amended as suggested by Age. However, I am alsoconcerned with the number of potential subclasses within the Proposed Class. [65] Only certain members of the Proposed Class will have certain causes of action against certain of the Defendants.

As I notedabove, only Property Team has a possible cause of action in defamation against any of the Defendants. No cause of action in defamationis disclosed against Condominium First. If Simmonds, Surbey, Wall and Amor owed a duty of care as members of the Mews Board,arguably that duty would be time limited and likely would not extend to owners of units in buildings other than the Mews.

Similarly, anyduty owed by Condominium First as property manager of the Mews, arguably would be time-limited to the period during which it servedin that capacity and likely would not extend to owners of units in buildings other than the Mews. Any duty owed by SASS and Murray asrental managers might also be time-limited and limited to the owners of units for which they acted as rental managers. The interferencewith contractual relations, interference with economic interests and conspiracy claims appear to relate to the alleged defamation and/orintentional mismanagement by the Defendants.

Arguably, the Defendants could not have conspired to cause economic loss to membersof the Proposed Class who had already sold their units by the time of the impugned actions or inaction. [66] I am aware that s 8(

e) of the Act states that certification is not to be denied by reason that the proposed class includes a

subclass where the prospective subclass members have claims that raise common issues not shared by all the prospective class members. However, the fragmentation of the Proposed Class into so many potential subclasses has implications for administration of the proceedings and may suggest that a class action is not the preferable procedure for resolving whatever common issues there may be within given subclasses. 3.

Evidentiary basis for rational connection [ 67 ] The Defendants submitted that Age has failed to establish an evidentiary basis for concluding there is a rational connection between the Proposed Class, the various causes of action and the proposed common issues. They said he has not provided a basis in fact to support the claim that the Proposed Class has suffered damage that can be traced to activities of the Defendants. They argued that hearsay evidence allegedly provided by Turner is not sufficient to satisfy that onus. [ 68 ] An argument of insufficient evidence also was made in Windsor CA .

The Court of Appeal in that case responded (at para 35): The Act specifically states in s. 6(2) that certification is not a determination on the merits, and only requires that the pleadings disclose a cause of action, which is a very low standard. It does not require a prima facie case or anything else. Nevertheless, the courts have required some threshold level of evidence before certification will be granted. There are some actions that are purely speculative, have no air of reality, or are doomed to fail, and they will not be certified even if the pleadings disclose a cause of action.

On the other hand, if the plaintiff can show an arguable case, then there is sufficient merit for certification [ 69 ] I agree that almost all of the evidence given by Age during questioning on his affidavit was based on hearsay. He owns units in the Project, but not in the Mews. His units are in a rental pool managed by On-Site. He has never attended at the Project. He has little, if any, first-hand knowledge of any of the facts or issues in this lawsuit. He did testify his condominium fees have gone up.

He said the value of his units, based on their tax assessment, has fluctuated since October 2008, going down in 2009, rising modestly in 2010 and 2011 and going down again in 2012. He also acknowledged there was a general economic downturn in 2008. He gave evidence of having been advised by Turner and others associated with On-Site of various health, safety and management problems that occurred during the time when certain of the Defendants were members of the Mews Board and other Defendants were acting as property or rental managers for units in the Project. He made few, if any, independent inquiries.

Even his second-hand evidence was very general. [ 70 ] In TL #1 at para 24, Slatter J commented that if there are third parties with factual information of assistance in the certification hearing, those third parties should themselves swear the affidavits as hearsay may be of little probative value. [ 71 ] In the present case, I am of the view that insufficient evidence has been presented of a rational connection between the Proposed Class, the causes of action advanced and the proposed common issues. C. Common Issues [ 72 ] Age contends in his Plan for Proceeding that the following are common issues: (

a) Whether the security, health and maintenance issues in River Park Glen since October 2008 were caused by any of the Defendants; (

b) Whether the issues affecting rental rates charged by unit owners in River Park Glen since October 8, 2008 were caused by any of the Defendants; and (

c) Whether as a result of any of the security, health, maintenance and rental rate issued the prospective members of the class suffered losses and damages. [ 73 ] Condominium First complained that the proposed common issues are framed too broadly to meaningfully assess whether they are common between members of the Proposed Class, citing L.R. v British Columbia , 2001 SCC 69 at para 29 , [2001] 3 SCR 184. [ 74 ] Condominium First argued that, as its relationship to unit owners who owned units in the Mews when it was acting as property manager differed from its relationship to unit owners in other buildings or who owned their units at other times, the liability and causation analysis would differ for each group. [ 75 ] Condominium First maintained that the second proposed common issue is irrelevant to any suit against it as it had nothing to do with rental rates.

It said this would not be a common issue for all members of the Proposed Class as some units were owner-occupied and some were managed by SASS/SIMSUR. The owners of those units may well have expressly or impliedly agreed to the rents charged. [ 76 ] Condominium First also argued that the third proposed common issue is not common to the Proposed Class. It pointed out that this issue is one of causation, which will require individual assessment. It suggested that property values will have varied, depending on when individual owners bought or sold their property.

Also, it asserted that unit owners who did not rent their units could not have suffered losses in relation to rental income. Aside from decreased value and lost rental income, the only other loss claimed is increased condominium fees. [ 77 ] The Simmonds/Surbey Defendants argued that, for an issue to be “common,” its resolution must avoid duplication of fact- finding or legal analysis.

It must be a substantial ingredient of each class (or subclass) member's claim and its resolution must be necessary to the resolution of that claim ( Western Canadian Shopping Centres Inc. v Dutton , 2001 SCC 46 at para 39 , [2001] 2 SCR 534; Hollick at para 18 ; Arora v Whirlpool , 2012 ONSC 4642 at para 313 , 94 CCLT (3d) 215). [ 78 ] The Simmonds/Surbey Defendants submitted that, where a proposed common issue relates to causation or damages, the plaintiff must demonstrate with supporting evidence that there is a workable methodology for determining those questions on a class-

wide basis (Fairview Donut Inc. v The TDL Group Corp., 2012 ONSC 1252 at paras 229-230; Chadha v Bayer Inc. (2003), (ON CA), 63 OR (3d) 22 at para 52 (CA), leave to appeal to SCC dismissed [2003] SCCA No 106)). [79] They pointed out that the Amended Statement of Claim here raises issues of negligence, which will require an assessment ofthe foreseeability of any alleged injury based on the nature of the duty owed between the parties.

They argued that here the potentialduties will be different for different members of the Proposed Class. [80] The Simmonds/Surbey Defendants sought to distinguish Condominium Plan No. 0020701 v Investplan Properties Inc.(2006), 2006 ABQB 224, 57 Alta LR (4th) 310 on the basis that the party bringing the claim in that case was the entire condominium,the defendants in that case had undertaken all of the conversion work at issue and the alleged damage in that case affected only thecommon areas.

There is much logic to that submission. [81] Finally, relying on Caputo v Imperial Tobacco Ltd. (2004), (ON SC), 236 DLR (4th) 348 at paras 41, 44-45 (ON SCJ), the Simmonds/Surbey Defendants argued that what Age is proposing is to have the “court perform the role of classcounsel by making wholesale changes to arrive at a definition that the court itself might accept”, which “goes beyond a simple exerciseof discretion and verges into the prohibited territory of descending into the arena ...” Certainly, this is a concern when there are asignificant number of deficiencies that must be corrected. [82] In my view, the proposed common issues are too broadly stated and not sufficiently defined. [83] I agree with Condominium First that the Amended Statement of Claim contains extremely limited allegations in regard to “thesecurity, health, maintenance and management issues in River Park Glen, occurring since October 2008.” All that is stated is that theMews and units in the Project managed by the Defendants fell into extreme disrepair, the Project experienced increased security issuesrequiring repeated police intervention, and the Project had various safety and health problems.

Age’s affidavit does not provide anyadditional insight into these “issues.” On questioning, he said that it was his understanding that the “extreme disrepair” mentioned in thepleadings refers to damage to doors, walls, appliances, furniture and sun decks that required substantial repair work that was notnecessarily carried out. He conceded it was possible the extreme disrepair was not identical in each unit and not all units fell intodisrepair.

He also acknowledged some of the units that were not managed by the Defendants may also have suffered disrepair. [84] Age referred to fights, use of recreational drugs and drinking in the common areas, leading to attendance of the police or firedepartments or EMTs, as the safety concerns in issue. He acknowledged there may have been few complaints about such issues in someof the buildings and it was his information that the problems were restricted to the common areas. [85] As to health issues, Age spoke of drug activity, bed bugs, blood on or around the common property and the possibility oftransmitted disease.

He could not say if any of these problems was limited to units managed by any of the Defendants. [86] It is unclear what Age means by “issues affecting rental rates,” as referred to in the second proposed common issue. Are thesedifferent from the “rental rate issues” referred to in the third proposed common issue? The only reference to rent in the pleadings is theallegation the members of the Proposed Class suffered a reduction in annual rental income due to the breaches of duty and wrongfulconduct of the Defendants. Age’s affidavit does not mention rental rates.

The only evidence regarding any such issues is Age’s statementthat he was advised that, in about July 2009, SASS and later SIMSUR assumed the rental property management services for the rentalunits in the Mews and certain other rental units in the Project and that the rental rates for those units were reduced. He understood thatthis, in turn, resulted in “difficulties” with respect to the rental rates charged for non-SASS/SIMSUR units.

He expressed the view thesereductions attracted a less desirable clientele and resulted in increased security and "other “problems” in the Mews and for the Projectgenerally. [87] The second proposed issue would be relevant only to those unit owners who rented their units.

As a result, it cannot be said tobe an issue common to the Proposed Class or even to all of the unit owners in any given building. [88] The Supreme Court of Canada in Hollick at para 21 commented: The representative need not show that everyone in the class shares the same interest in the resolution of the asserted common issue.There must be some showing, however, that the class is not unnecessarily broad - that is, that the class could not be defined morenarrowly without arbitrarily excluding some people who share the same interest in the resolution of the common issue.

Where the classcould be defined more narrowly, the court should either disallow certification or allow certification on condition that the definition of theclass be amended. ... [Emphasis added.] [89] All three proposed common issues are ones of causation. They are questions of mixed fact and law. It is unclear what they areintended to encompass. Are they meant to resolve liability as well as factual causation?

Section 1(

e) of the Act defines “common issue”as meaning: “(

i) common but not necessarily identical issues of fact, or (ii) common but not necessarily identical issues of law that arisefrom common but not necessarily identical facts.” One of the problems here is that the proposed common issues do not set out anycommon issues of fact or the common issues of law that are said to arise from those facts. [90] The Simmonds/Surbey Defendants submitted that “individual assessments” would be needed to determine liability, andindividual issues would “inevitably dominate,” citing Chadha at paras 55-56; Windsor v Canadian Pacific Railway Ltd., 2006 ABQB348 at para 116, 402 AR 162 (Windsor QB); and Nette v Stiles, 2010 ABQB 14 at para 100, 489 AR 347. [91] The argument of individual issues predominating is a perennial one made by respondents on certification applications.

InWindsor QB at para 116, I indicated, referring to s 12 of the Act, that not all issues arising in a matter need be common and there is aplace for individual issues.

However, I also indicated that “… the Court must look at the Action as a whole to determine whether a classproceeding is the preferable procedure.” The question is whether determination of the common issues will advance the litigation. [92] I agree with the Simmonds/Surbey Defendants that Age has not established there is a workable methodology for determiningany of the proposed common issues on a class-wide (or even subclass) basis (Fairview Donut Inc at paras 229-230; Chadha at para 52).

D. Preferable Procedure [ 93 ] The Act requires that the Court be satisfied that “a class proceeding would be the preferable procedure for the fair and efficient resolution of the common issues.” In the final analysis, all of the problems in this proposed class action mean that this test is not passed. [ 94 ] Section 5(2) of the Act specifies that in determining whether a class proceeding would be the preferable procedure for resolution of the common issues, the Court may consider any relevant matter, but at a minimum must consider the following: (

a) whether questions of fact or law common to the prospective class members predominate over any questions affecting only individual prospective class members; (

b) whether a significant number of the prospective class members have a valid interest in individually controlling the prosecution of separate actions; (

c) whether the class proceeding would involve claims that are or have been the subject of any other proceedings; (

d) whether other means of resolving the claims are less practical or less efficient; (

e) whether the administration of the class proceeding would create greater difficulties than those likely to be experienced if relief were sought by other means. 1. Do common questions predominate? [ 95 ] In Windsor QB at para 116 , I indicated that it is not necessary that all issues arising in the action be common. The Court must look at the action as a whole when determining if a class proceeding is the preferable means of proceeding. [ 96 ] The Simmonds/Surbey Defendants argued that the claim(

s) of each class member will require individual evidence relating to the issues of causation and damage, and that these issues will depend on the circumstances of each unit owner. They contended that greater difficulties will arise with a class proceeding as the individual issues will predominate and hinder the progress of the action. [ 97 ] As I stated above, in my view, the proposed common issues are overly broad and poorly defined.

As a result, it is difficult to assess whether they predominate over questions affecting individual class members, although it appears they are meant to canvas all, or almost all, of the issues of fact and law, aside from the individual assessment of damages. [ 98 ] Amor argued that certification is “inappropriate because the Amended Statement of Claim is comprised of several unrelated claims stemming from multiple unrelated events amongst different Defendants.” That observation is valid, although Amor’s argument might not be of such weight if the proposed Representative Plaintiff had identified discrete subclasses and clearly defined issues common to the various claims. [ 99 ] The concern here is that, in order for the common questions as currently proposed to be answered, the claim of each possible subclass or of each individual class (or subclass) member might well require individual evidence to establish liability and causation. [ 100 ] Also, I note that Property Team is the only member of the Proposed Class for whom a cause of action in defamation is disclosed.

That cause of action does not extend to Condominium First. However, the proposed common issues would seem to require the Court to determine whether the remaining Defendants, or any of them, had defamed not only Property Team but also On-Site and various non-parties, as the defamations are said to be the wrongful acts at the core of the alleged interference with contractual relations, interference with economic interests and conspiracy causes of action.

Thus, another problem with the proposed class proceeding is that those non-parties would not be bound by the findings made by the Court and could bring their own actions for defamation, raising the spectre of conflicting findings. 2.

Is there individual interest in controlling separate actions? [ 101 ] Condominium First and the Simmonds/Surbey Defendants took the position that all prospective class members, other than Chapman and, perhaps, Age, have a valid interest in prosecuting their own actions so they can consider the merits of their own position, including whether to sue On-Site, Property Team, Chapman or others who may have contributed to the alleged [mis]management or other issues in the Project. [ 102 ] I have seen no evidence that members of the Proposed Class are interested in pursuing individual actions. [ 103 ] I agree, however, with the point raised by Condominium First that as Chapman, Property Team and On-Site were and/or are involved in management of the Mews and other buildings in the Project, they may be named as defendants in actions commenced by any members of the Proposed Class who opt out of the class proceedings, or they may be third-partied into the existing action. 3.

Are any of the claims subject to other proceedings? [ 104 ] It does not appear that any of the claims disclosed in the Amended Statement of Claim currently are the subject of other proceedings. [ 105 ] However, the Simmonds/Surbey Defendants submitted that: “[t]he Action is a tool being used by Chapman to oust SIMSUR as a competing property manager and to maintain control of the Project.” They referred to Action No. 1203-09246, an action commenced by SIMSUR against Condominium Corporation No. 1122235, Chapman and On-Site to prevent them from acting on 2011 bylaws designed at preventing third party property managers from managing units in the Project.

[ 106 ] It is easy to see how this could spiral into cross-claims between the actions and future third party claims and/or counterclaims, making this less than appropriate as a class proceeding. 4. Are other means of resolving the claims less practical? [ 107 ] Age pointed out that the Defendants have not suggested an alternative procedure to certification. He submitted that more than 400 potential individual actions or one action naming more than 400 plaintiffs would not achieve the goals of judicial economy, access to justice and behaviour modification.

He quoted my statement in Windsor QB at para 131 that: Class proceedings are not intended to solve all the efficiency problems encountered in complex litigation, nor could they solve them even if they were so intended. What they can do is assist the parties and the Courts by shortening the process, even if only for hours or days over the course of a lawsuit. [ 108 ] In my view, a properly conceived class proceeding might be the most efficient means of resolving some of the issues raised here.

However, it is not up to the Court to design a workable class proceeding or to fix a proposed one that, as here, is so seriously flawed. 5.

Whether administration of the class would create difficulties? [ 109 ] I was not referred to any case where only certain of the plaintiffs sought certification of their “portion of the action.” Condominium First put it this way: “… the currently proposed procedure of certifying a portion of the current action as a class proceeding may, in fact, create procedural difficulties.” [ 110 ] Section 2(1) of the Act states that: “[o]ne member of a class of persons may commence a proceeding in the Court on behalf of the members of that class”. (Emphasis added) The term “proceeding,” is not defined.

Nor is the term defined in the Rules of Court, although it is most often used together with the terms “action” and “application”, suggesting it refers to a matter, a hearing or other procedural step. I believe that, in the context of the Act, a “proceeding” is no different than an “action,” and note such matters often are referred to colloquially as either “class actions” or “class proceedings.” [ 111 ] While the request of the proposed Representative Plaintiff here may be somewhat novel, that may not be, in itself, sufficient reason to deny certification.

In the case of Condominium Corporation No. 1122235, there seems to be such a commonality of interest with members of the Proposed Class that there would be no objection to the corporation pursuing its claims at the same time as those of the Proposed Class. In my view, however, the same degree of commonality of interest between members of the Proposed Class and On- Site has not been demonstrated to exist. Of course, its claims could be severed from those of the Proposed Class.

Even if they were, however, the number of causes of action and the many potential subclasses within the Proposed Class would still complicate administration of the class proceedings. E. Appropriate Representative Plaintiff [ 112 ] A representative plaintiff must fairly and adequately represent the interests of the class and must not have an interest that is in conflict with the interests of prospective class members.

The representative plaintiff must also produce a plan setting out a workable method of advancing the proceeding on behalf of the class and of notifying class members of the proceeding. [ 113 ] The Court is entitled to consider various factors in assessing whether the proposed representative(

s) is/are adequate, including their motivation, the competence of their counsel and their capacity to bear any costs they might incur ( Western Canadian Shopping Centre Inc. at para 41).

As the Simmonds/Surbey Defendants pointed out, a representative plaintiff must possess sufficient knowledge of matters relevant to the common issues to fairly and adequately represent the interests of the class and to instruct counsel ( Eaton v HMS Financial Inc., 2008 ABQB 631 at para 190 , 458 AR 282; Hoffman v Monsanto Canada Inc., 2005 SKQB 225 at para 337 , 264 Sask R 1; aff’d 2007 SKCA 47 , 293 Sask R 89; leave to appeal to SCC den’d [2007] SCCA No 347). 1.

Whether the proposed Representative Plaintiff is in a position of conflict? [ 114 ] In the present case, Age admitted he was asked to act as Representative Plaintiff by Chapman, someone he has known and had a business relationship with for about 16 years. [ 115 ] The Simmonds/Surbey Defendants argued that many of the prospective class members are “different incarnations of” Chapman, individually, or through Property Team, and that “[q]uestions of fact or law relating to Chapman’s interests specifically will likely dominate any class action.” They suggested that because Property Team owned or owns a large number of units representing “a significant fraction of the proposed class,” Chapman has a significant interest in controlling this action.” I agree that this appears to be the case. [ 116 ] The Simmonds/Surbey Defendants said that Age “cannot fairly and adequately represent the interests of the class.” They contended that: The Action is a thinly veiled attempt by one property manager [On-Site] [4] to oust its competitor manager [SIMSUR] and acquire exclusive control of the Project.

The Representative Plaintiff is in a conflict of interest situation and has, in selectively choosing the Defendants to this Action, undermined its potential success. As a result, the Action should not be certified as a class proceeding. [ 117 ] As noted by Condominium First, Chapman is the sole shareholder and director of Property Team and On-Site. The latter may be seen as a competitor to certain of the Defendants. On-Site was the sole property manager of the Project from about 2000 to October 2008.

[ 118 ] The Defendants pointed out that, although the Plaintiffs claim in their pleadings that the Mews Board improvidently managed the Mews (and possibly the whole of the Project), Chapman, a Mews Board member associated with the Plaintiff On-Site, was not named as a defendant. [ 119 ] Amor, citing Western Canadian Shopping Centres Inc. at para. 41 , argued that Age is “irreconcilably connected with potential parties to this litigation,” meaning Chapman and Property Team.

He submitted that “Age’s interests are not independent of … Chapman, On-Site, and/or Property Team” and contended that Age will be “unable to give instructions to vigorously pursue the claim of the proposed class Plaintiffs since he is unable/unwilling to pursue … Chapman, On-Site, or Property Team.” Amor suggested that should Chapman, On-Site and/or Property Team be third-partied, Age “will be in a direct conflict…” [ 120 ] The Simmonds/Surbey Defendants argued that: “[i]t is not in the best interest of the purported class to name only selected members of the Board … as Defendants.” They also noted that SIMSUR provides management for only 10 percent of the units in the Project, while On-Site, Property Team, and others, not named as Defendants, also were or are property or rental managers for units in the Project. [ 121 ] In supplementary submissions, the Simmonds/Surbey Defendants maintained that the right of a plaintiff to select whom to sue must be informed and modified in light of the factors in s 5(1) of the Act , in order to ensure the rights of the prospective class members are protected and the objective of judicial economy underlying the legislation is maintained.

In support of their argument, they cited the decisions of Slatter J (as he then was) in T.L. v Alberta (Director of Child Welfare) , 2006 ABQB 104 at paras. 140 , 141 and 149, 395 AR 327 [ TL #1 ] and of Thomas J in T.L. v Alberta (Director of Child Welfare) , 2008 ABQB 114 [ TL #2 ], 436 AR 217, aff’d 2009 ABCA 182 , 457 AR 141. [ 122 ] Further, relying on Hoffman at para 337, they suggested that “excluding claims or defendants can be a violation of the obligations of the representative plaintiff to the class members... [an] obligation ... akin to that of a fiduciary.” [ 123 ] Condominium First joined the challenge based on conflict of interest.

It said that Age’s failure to investigate other managers as potential defendants “is in direct conflict with the interest of the class to pursue whichever parties may be liable for their alleged losses.” [ 124 ] Age contended the concern about third-party proceedings is really one about joint representation of the Plaintiffs.

He submitted that Counsel for the Plaintiffs is satisfied no conflict exists and, if third-party proceedings are pursued, separate counsel would be appointed to defend those claims. [ 125 ] Age argued that the question of whether all possible defendants have been added is an issue that goes to the merits of the lawsuit and, therefore, it is not a matter that should be addressed at the certification stage. [ 126 ] I do not entirely agree with Age’s argument.

While a determination on the merits is not part of the certification application, the failure to name all possible defendants goes, at the very least, to the issues of judicial economy and efficiency of process, as does the possibility that separate Counsel would have to be appointed to defend third-party claims. [ 127 ] As to the argument by the Simmonds/Surbey Defendants that a representative plaintiff has a fiduciary obligation to name all proper defendants, I note that in Hoffman (at para 337), what the Court said was that: “[t]he representative plaintiff under The Class Actions Act has the responsibility to prosecute the lawsuit, once certified , in the interests of the members of the class.

Their duty is akin to that of a fiduciary” (Emphasis added).

This comment did not pertain to the naming of parties leading to the certification application. [ 128 ] There is at least some American authority that a representative plaintiff does have a fiduciary duty to raise all claims reasonably expected to be raised ( City of San Jose v The Superior Court of Santa Clara County , 525 P 2d 701 (1974)). [ 129 ] Whether or not a representative plaintiff has a fiduciary duty to name all likely defendants, an issue which I do not have to decide on this application in light of my other findings, their failure to do so is an important issue to be considered at the certification stage. [ 130 ] Slatter J in TL #1 was completely silent as to any fiduciary obligation on a representative plaintiff.

However, he observed at para 149 that: “… while the representative plaintiff may have a right to pick the defendants that are to be sued,” all necessary parties must be joined, as required by old rule 38(3), [5] so as to include: ... any person ... whose presence before the Court may be necessary in order to enable the Court effectually and completely to adjudicate upon and settle all the questions involved in the cause or matter, or in order to protect... interested persons. [ 131 ] He also stated (at para 140) that failure to name “necessary” and “proper” parties as defendants may mean that a class proceeding is not the preferable procedure.

He added at para 141 that naming some defendants and not others “creates a real risk of inconsistent judicial decisions,” and that those implicated should be heard before decisions are made. [ 132 ] The plaintiff in TL sought certification of a class proceeding against the Director of Child Welfare for having failed to bring claims of abuse on behalf of minors in his care within the limitation period. Slatter J refused certification in TL #1 as the class members’ other guardians, including the Public Trustee, had not been made parties.

At para 149, he stated: … while the representative plaintiff may have a right to pick the defendants that are to be sued, the representative plaintiff must ensure that all necessary parties are joined to the litigation. The Class Proceedings Act does not override the general principles of civil litigation and R. 38(3) requires the joining of all necessary parties. The representative plaintiff has to take the Child Welfare system as it existed, and it appears that the system was, to a considerable extent, operated through third party agencies.

It is not the "preferable procedure" to try and determine these difficult issues in the absence of those key third parties. It is therefore inappropriate for this class proceeding to be certified unless the necessary and appropriate third parties are joined. [ 133 ] Once the Public Trustee was added, the plaintiff in TL again applied for certification. The plaintiff argued it was not possible,

at that stage, to join everyone who was a guardian of individual class members as their identities and the identities of all class memberswere not yet known. Thomas J granted the application for certification, commenting at para 89 of TL #2, result aff’d 2009 ABCA 182,that: … ordering the Plaintiffs to add the DFNAs and the third party guardians as a condition to certification may have the effect of creating anunreasonable burden on the claimant to ensure that all defendants to an action are included before certification is granted.

In my view,this result would be contrary to existing procedural rules and practice, which allow a plaintiff to sue any potential defendant he or shechooses, and to bear the risks that may arise if the wrong choice is made. Although the C.P.A. grants the certification judge discretion indetermining the appropriate procedure by which the class action is to proceed, I do not accept that the C.P.A. requires a complete re-making of current procedures and practices.

If the Defendant Child Welfare wishes to include the DFNAs and the third party guardiansas parties to this Action, then it can add them using the third party provisions under the Rules of Court. [134] The decision in Schroeder v DJO Canada Inc., 2009 SKQB 169, 334 Sask R 258 is to similar effect.[6] [135] In Schneider v Royal Crown Gold Reserve Inc., 2012 SKQB 111, 392 Sask R 199, leave to appeal den’d 2012 SKCA 105, 399Sask R 295 (CA), Laing J refused to hold against the representative plaintiff, who had failed to name a potential defendant said to haveclose ties to him, stating (at para 104) that: “[i]t is not for the court to second guess ... such decisions unless the decision made is anunreasonable one.

On the facts in this matter, I do not find it to be unreasonable, meaning it has a rationale and considerations thatsupport the rationale.” [136] In the present case, Age gave evidence there was no rationale or reason why Chapman and other rental or property managers ofthe Project were not included as defendants. This suggests Age is not sufficiently informed or is not acting in the best interests ofmembers of the Proposed Class. [137] If certification were allowed, the Defendants could third-party On-Site or any other rental or property manager of the Projectwho may have some liability.

In my view, it is not just the failure to add On-Site as a defendant, but rather joining with it as a plaintiffwhen On-Site is likely to be third-partied that calls into question whether Age is an appropriate Representative Plaintiff. If On-Site wereto be third-partied, separate counsel likely would have to be obtained by it, creating greater complexity. This too argues againstcertification of the proposed class proceeding. 2.

Whether the proposed Representative Plaintiff is sufficiently informed? [138] The Simmonds/Surbey Defendants and Amor suggested Age is “either uninformed or misinformed as to many of the specificfacts and issues related to this claim,” and that “[a]ll the information obtained regarding the claim has been through Chapman” andaffiliates, such that it appears that Age is “merely a tool of Chapman that has been placed into the role of Representative Plaintiff.” Theynoted he has not spoken to any property owners who retained property managers other than On-Site. [139] Condominium First asserted that: … [to] the extent that Mr.

Age has failed to properly inform himself of several relevant considerations at the heart of this action, hisdecisions on behalf of the class are not owed deference…. Instead, Mr. Age’s lack of independent inquiry raises a genuine concern thathe will not fairly and adequately represent the interests of the proposed class. [140] Condominium First noted that Age appeared unaware that Chapman was a member of the Mews Board during part of the periodin issue in the lawsuit.

It pointed out that Age conceded there were graffiti and security issues at the Mews prior to October 2008 and hedid not know whether security, health, maintenance and management issues were ongoing under the current Condominium Board.Nevertheless, Age never considered the potential liability of On-Site, Chapman and/or Property Team.

Condominium First suggested thiswas not surprising since individuals associated with On-Site were Age’s only source of information. [141] Age took the position that a proposed representative plaintiff need not be the best representative, nor does he need to have aperfect understanding of the alleged facts. He submitted the proposed representative need only have a common interest with othermembers of the class and the intention to vigorously prosecute the claim.

He referred to Windsor QB at para 153, and Mayotte vOntario, 2010 ONSC 3765 at paras 91-92, 99 CPC (6th) 229, leave to appeal den’d 2010 ONSC 5275, 99 CPC (6th) 252 (Div Ct), insupport of his position. [142] Age said that if the Court is not satisfied he is an appropriate representative, an alternate can be appointed. [143] I agree that Age is not sufficiently knowledgeable about the action.

In my view, informed members of the Proposed Classwould wonder why he has not considered pursuing other Board members or property and rental managers on their behalf. [144] I find there is good reason to conclude that Age, the proposed Representative Plaintiff, does not have “the requisite knowledge”to adequately represent the interests of the Proposed Class and to properly instruct counsel.

As I have indicated above, there is alsoreason to question whether he is acting solely in the best interests of the members of the Proposed Class. [145] Of course, it is possible someone else will offer to act as representative plaintiff, although no one has to date. While theconcerns about Age are not fatal to the application, they add to a lengthy list of concerns about the class proceedings as proposed. 3.

Whether there is a workable plan? [146] The Simmonds/Surbey Defendants submitted that the litigation plan provided by Age is inadequate, relying on Carom v Bre-XMinerals Ltd. (1999), (ON SCDC), 44 OR (3d) 173 (Sup Ct), aff’d (1999), (ON SCDC), 46 OR(3d) 315 (Div Ct), rev’d on other grounds (2000), (ON CA), 51 OR (3d) 236 (CA), and Caputo para 76. Theycontended it is: “rudimentary, vague and boilerplate;” and there is a “real threat potential class members … would not receive notice”

and therefore “would not have the opportunity to opt out.” They suggested the litigation plan should provide an opt-in rather than an opt-out methodology. [147] Condominium First also raised concerns about the method of providing notice to current unit owners and whether those who donot reside in the Project, or who do not own units managed by On-Site, will receive notice. [148] More importantly, Condominium First alleged the litigation plan is …insufficient, vague and uncertain and should contain detail with respect to other issues including witnesses, discovery, experts, plansfor resolving individual issues and the assessment of damages and issues related to the conduct of the certified and non-certified parts ofthe action. [149] Age pointed out the Act mandates that an opting-out process be used.

I agree (s 9(1)(f); 17; 20(6)(b), (

g) and (h); and 27(2) and(3)). [150] He said that while the list of potential class members was prepared by On-Site, it was based on information provided by theother Plaintiff, Condominium Corporation No. 1122235, covering the whole of the Project. He also noted that, pursuant to s 8(

d) of theAct, the fact that the identity of each prospective class member has not been determined, or may not be, is not a reason to refusecertification. [151] Age acknowledged that the litigation plan “is not perfect and that improvements can be made to it.” He suggested it can beamended by the Court, as was suggested in Windsor QB at para 162. [152] In my view, the proposal for notice to potential members of the Proposed Class should specify the mailing list and last knownaddress provided by Condominium Corporation No. 1122235 rather than On-Site.

Also, the Plan for Proceeding should specify thenewspapers in which it is proposed to publish notice and how often that notice will appear. Obviously, timing for the giving of noticewould have to be amended.

The costs of giving notice to members of the Proposed Class need not be addressed at this time in light of myultimate decision on the certification application. [153] I agree that Age has not established there is a workable methodology for determining the proposed common issues on a class-wide basis (Fairview Donut Inc at paras 229-230; Chadha v Bayer Inc., (ON CA), [2003] OJ No 27 at para 52).Nor does the litigation plan provide details for resolving individual issues. Deficiencies in the litigation plan are seldom reason to denycertification.

Here, however, the litigation plan is so inadequate and incomplete in so many areas that, if I had intended to grantcertification, I would not have done so until a new and adequate plan was filed. As I am denying certification for other reasons, there isno point in pursuing this issue further. VI. Conclusion [154] For the above reasons, the application for certification is denied. [155] Absent agreement, the parties can speak to costs within 90 days, or such extended period that may be set by the Court withinthose 90 days. Heard on the 18th day of March 2013. Dated at the City of Ft.

McMurray, Alberta this 6th day of December 2013.

J.D. Rooke A.C.J.C.Q.B.A. Appearances: Mylene D. Tiessen for the Plaintiffs Daniel Morrow and M.J. LaFleche for the Defendants, Douglas Urness, Douglas Simmonds and SIMSUR Holdings Ltd. Donald Dear, QC for the Defendants, Sandy Surbey, Anna Simmonds and SASS Holdings Ltd. Vivian Stevenson, QC for the Defendant, Condominium First Management Services Ltd. Brent Miekle for the Defendant, Alex Amor