2134860 Alberta Ltd. v. Russell Giselbrecht, 2022 ABKB 792

Court of King’s Bench of Alberta Citation: 2134860 Alberta Ltd. v Kichton Contracting Ltd., 2022 ABKB 792 Date: 20221128 Docket: 2203 01395 Registry: Edmonton Between: 2134860 Alberta Ltd. and Russell Giselbrecht Plaintiffs - and - Kichton Contracting Ltd., Richard Kichton, Chris Dirks, Laurie Conrad, Fred Kichton, Brenmar Developments Ltd., C.L. Dirks Developments Ltd., 2136570 Alberta Ltd., 870383 Alberta Ltd., and Kichton Contracting (Sask) Ltd. Defendants _______________________________________________________ Written Decision of the Honourable Justice G.S.

Dunlop _______________________________________________________ [ 1 ] This action is one of six I am case managing together. The Defendants apply to strike the portions of the Plaintiffs’ pleadings that allege negligent misrepresentation and conspiracy, or alternatively for further and better particulars of those claims. [ 2 ] As stated by the Court of Appeal in Lameman v Alberta, 2013 ABCA 148 at para 39 : A plaintiff is required to sufficiently particularize its claim so as to permit the defendants to identify their defences for the purpose of filing a Statement of Defence .

However, the demand for particulars should not be permitted to turn into a delaying tactic, or a substitute

for what can be obtained through a Notice to Produce Records or the Questioning process. Otherwise, litigation will be stonewalled at anearly stage through excessive particularization. (underlining added) [3] In Alberta v Altria Group, Inc., 2015 ABQB 390 at para 17 – 20 , Strekaf, J. (as she then was) reviewed some of theprinciples of applications for particulars: ...

Therefore, to show that particulars are required, absent an affidavit stating as such, the Defendants must show that the pleading isdefective on its face and that “the allegations are so general and so vague that the need for particulars is evident”: Oceatain InvestmentsLtd. v. Canadian Commercial Bank (1983), 51 A.R. 364 (Alta. Q.B.) at para 8 (Oceatain). The Court has discretion in determining whether the allegations are so vague as to necessitate an order for particulars. As noted byJustice McMahon in Indian Residential Schools, Re, 1999 ABQB 823 (Alta.

Q.B.) at para 15: An order for particulars is discretionary. There are no precise rules as to the degree of particularity required in any given case. Generally,what is reasonable and fair will dictate whether, and to what degree, further particulars will be ordered. Justice McMahon noted that there is a difference between ordering particulars for pleadings and ordering particulars for trial.

For anorder for particulars in order to plead, the court should ask itself: “are there sufficient facts present to formulate a defence?” This questionmust be answered with reference to the whole of the Crown’s Statement of Claim: see Wesley First Nation v. Alberta, 2009 ABQB 418(Alta. Q.B.) at para 34 (Wesley First Nation). Pleadings must be succinct, but must still disclose sufficient material facts for the defendant to understand what case it must meet.

Theamount of detail necessary varies with the nature of each case: William Blake Odgers, Principles of Pleadings and Practice in CivilActions, 21st ed (London: Stevens & Sons, 1975) at 103. If a specific fact is not set out, but can be properly inferred from otherstatements in the pleading, that is sufficient for the purposes of a statement of claim: see O’Neill v. Rosetown (Town), (SK CA), [1941] 2 W.W.R. 481 (Sask.

C.A.). (underlining added) [4] The Defendants submit that the Plaintiffs’ pleadings of negligent misrepresentation are deficient in the following respects: 1. they do not plead what Fred Kichton is alleged to have said to Russell Giselbrecht directly; 2. they plead representations in policies and records without stating the contents of those policies and records to the best of thePlaintiffs’ knowledge; 3. they fail to plead that the representations in the policies were false; 4. they fail to plead when the representations are alleged to have been made; 5. they fail to plead where and how the representations are alleged to have been made; and 6. they fail to plead how the Plaintiffs relied on the alleged representations. [5] The Defendants submit that for a negligent misrepresentation claim to succeed, the plaintiff must prove that amisrepresentation was made directly to the plaintiff.

In support of that proposition they cite Nussbaum v Hall, 2022 ABQB 388 at para55 and Aztec Landing Ltd. v Kazakawich, 2021 ABPC 307 at para 71 and 72. Neither of those authorities stands for that proposition. However, even if that is a correct statement of the law, the issue on an application for particulars is not whether the plaintiff hasexplicitly pled everything it must prove at trial. The question on this application is whether the Plaintiffs’ pleadings describe their claimswith sufficient detail for the Defendants to understand the case to be met and to identify possible defences.

In my view the Plaintiffs’pleadings of negligent misrepresentation are sufficient. In particular, with respect to the points raised by the Defendants: 1. Paragraph 9 d of the Reply pleads that Russell Giselbrecht routinely informed Fred Kichton of Russell Giselbrecht’s use of KCLassets and that Fred Kichton routinely OK’d it. 2. Paragraph 37 of the Amended Statement of Defence pleads that Russell Giselbrecht complied with the policies and paragraph 9 bof the Reply pleads that the policies are no longer in Russell Giselbrecht’s possession, so he is not able to point to a specific statement.

Paragraph 37 of the Amended Statement of Defence pleads that the records were maintained by Laurie Conrad, which implies they arenot in the Plaintiffs’ possession. 3. Paragraph 9 a of the Reply pleads that the representations were false. 4. Paragraph 8 of the Amended Statement of Defence pleads that Russell Giselbrecht worked with or for Kichton Contracting or KCLfrom 2002 to 2020. Paragraph 36 pleads that the $25,000 accounts were set up after signing the USA, which paragraph 21 pleads wassigned in 2013.

Taking together those paragraphs from the Amended Statement of Defence and the description of the policies, recordsand oral representations set out in paragraph 9 of the Reply, the Plaintiffs clearly allege that the representations took place from time totime between 2013 and 2020. 5. Obviously, representations in written policies and records are not made at a physical place, other than in the documentsthemselves.

Paragraph 9 d alleges that Fred Kichton and Russell Giselbrecht worked together on a daily basis until late 2019, whichimplies that Fred Kichton’s oral representations were made to Russell Giselbrecht wherever they happened to be working. 6. Paragraph 9 a of the Reply pleads reliance in that Russell Giselbrecht would have used his $25,000 account differently had he

know that the representations were false. Paragraph 9 b pleads that he relied on the representations in his reporting of his $25,000account expenses. [6] The Defendants also submit that the Plaintiffs’ pleadings of conspiracy are deficient because they do not include anallegation that the Defendants actions were not taken to protect the Defendants’ interests. This is not an essential element of conspiracy. There are two ways to prove a conspiracy.

On one branch the plaintiff must prove that the predominant purpose (not necessarily the solepurpose) of the defendant’s conduct was to injure the plaintiff: Canada Cement LaFarge Ltd. v British Columbia LightweightAggregate Ltd., (SCC), [1983] 1 SCR 452 at pp. 471 – 472.

The Plaintiffs explicitly plead that fact in paragraph 11 a ofthe Reply: The object of the conspiracy, as alleged in the Amended Statement of Claim, was primarily to deny the Plaintiffs’ their share value inKCL and KCL (Sask) and deny the Plaintiffs’ dividends from same, and to take the benefit of same for themselves, specifically inresponse to Russell’s request for the defendants to plan for a buy out of the Plaintiffs shares in KCL [7] I find that the Plaintiffs’ conspiracy pleadings, like their negligent misstatement pleadings, are sufficient for the Defendantsto understand those claims and plead any defences. [8] The Defendants’ application is dismissed.

If the parties are not able to agree on costs, costs may be spoken to at the nextcase management meeting. Heard as a desk application with submissions received October 14 and November 4, 2022. Dated at the City of Edmonton, Alberta this 28th day of November 2022. G.S. Dunlop J.C.K.B.A. Appearances: Richard J. Cotter, KC and Kurtis Letwin for the Defendants Kyle Smith for the Plaintiffs