Simmons v Homes by Avia (Edmonton) GP Inc, 2023 ABKB 218

Court of King’s Bench of Alberta Citation: Simmons v Homes by Avia (Edmonton) GP Inc, 2023 ABKB 218 Date: 20230414 Docket: 2103 02245 Registry: Edmonton Between: Sandra Mae Simmons and His Majesty the King in Right of Alberta Plaintiffs - and - Homes by Avi (Edmonton) GP Inc, Homes by Avi (Edmonton) Inc, Homes by Avi (Edmonton) LP, ABC Corporation, Gradex Consulting Ltd, Jane Doe, John Doe Defendants _______________________________________________________ Reasons for Decision of the Honourable Applications Judge W.S. Schlosser _______________________________________________________ [ 1 ] This is a Defendant’s application for

summary dismissal of a personal injury lawsuit based, in part, on a limitations argument. The lawsuit arises from the Plaintiff’s slip and fall on her own property on December 8, 2018. The lawsuit was started February 19, 2021, within two years and 75 days of this accident. However, the conditions that gave rise to this accident had been in place for six years. [ 2 ] The lawsuit alleges bad design and grading.

The Homes by Avi Defendants argue that since the construction agreement contained a broadly worded standard arbitration clause, the failure of the Plaintiff to issue a notice to arbitrate instead of a statement of claim is fatal to this action. [ 3 ] There were detailed arguments about the scope of the arbitration clause, whether it applied to personal injury, the undesirability of multiplicity of actions, and, which parties were bound by the Agreement. In my view, the matter can be resolved more directly, from a different angle.

Cases Cited By the Applicant Weir-Jones Technical Services Incorporated v Purolator Courier Ltd , 2019 ABCA 49 ; Arbitration Act, RSA 2000, c A-43 ; Lamb v

AlanRidge Homes Ltd, 2009 ABQB 170; Edmonton (City) v Amec Foster Wheeler Americas Limited, 2019 ABQB 24; HOOPP RealtyInc v A.G. Clark Holdings Ltd, 2014 ABCA 20; Limitations Act, RSA 2000, c L-12; Grant Thornton LLP v New Brunswick, 2021 SCC31; Novak v Bond, (SCC), [1999] 1 SCR 808 (SCC); Champagne v Sidorsky, 2018 ABCA 394; Capital Power PPAManagement Inc v TransAlta Corporation, 2018 ABQB 1036; Ministerial Order 27/2020. By the Respondent Alberta Union of Provincial Employees v Alberta Health Services, 2020 ABCA 4; Trico Developments Corporation v El CondorDevelopments Ltd, 2020 ABCA 132; B.E.

Kennedy Design Ltd v Kibo Group Inc, 2001 ABQB 66; New Home Buyer Protection Act, SA2012, c N-3.2,

Section 3 and

Section 4; Gouthro v Kubicki, 2020 ABQB 205; Swanby v Tru-Square Homes Ltd, 2022 ABQB 215;Radewych v Brookfield Homes (Ontario) Ltd, 2007 ONCA 271; Tatlow v Carolina Homes Inc, 2010 ABQB 412; Arbitration Act, RSA2000, c A-43,

Section 6; Uber Technologies Inc v Heller, 2020 SCC 16; Limitations Act, RSA 2000, c L-12,

Section 3.1 and

Section 11;Mitchell v Pytel, 2021 ABQB 403; Sun Gro Horticulture Canada Ltd v Abe’s Door Service Ltd, 2005 ABQB 731, aff’d, 2006 ABCA243; Aseniwuche Winewak Nation of Canada v Ackroyd LLP, 2021 ABQB 728; Edmonton (City) v Alberco Construction Ltd, 2021ABQB 1006; Weir Jones Technical Services Incorporated v Purolator Courier Ltd, 2019 ABCA 49; Hannam v Medicine Hat SchoolDistrict No.. 76, 2020 ABCA 343; Aseniwuche Winewak Nation of Canada v Ackroyd LLP, 2023 ABCA 60 at paras 37- 38; IsagenixInternational LLC v Harris, 2023 BCCA 96 at paras 19-20, 23-24, 32-33, 39-40, 59, 64 and 67.

Facts [4] The facts are not in dispute. The Plaintiff purchased a home constructed by Homes by Avi. The November 6, 2014,Agreement is between: “Homes by Avi (Edmonton) Inc as General Partner for Homes by Avi (Edmonton) LP” and the Plaintiff. TheAgreement contains a general arbitration clause (clause 26) that need not be repeated here. [5] Ms. Simmons’ landscaping was completed with a trough-like depression in her backyard between the house and her detachedgarage. The sidewalk goes down into that trough and comes up the other side.

From the pictures, it looks like it needs a small bridge,which was the solution ultimately chosen by Ms. Simmons. [6] The Plaintiff retained an expert in civil engineering who reports: (

i) Ms. Simmons’ walkway as originally constructed did not meet generally accepted construction practices,standards, or guidelines for construction. (ii) The walkway was assessed to have a slope up to approximately 16% (iii) Slopes greater than 5% to 8% will typically require additional measures, such as handrails, to ensure safepassage along a walkway (iv) While the grading on this property met the minimum drainage requirements, the lot grading requirementsaddress only slopes necessary for drainage and do not address safe use and occupancy of the overall yard or individual landscapingelements (

v) the final grade of this property could have met the drainage requirements set forth by the City of Edmontonwith a shallower slope, which would have reduced some of the walkway hazard (vi) the walkway as constructed would be very difficult to maintain to provide a safe walking surface, both in thesummer and in winter [7] I am going to assume for the sake of this application that the Plaintiffs’ expert would be qualified to give this evidence attrial . [8] The Plaintiff alleges in her lawsuit: 1.

This is a personal injury action arising out of a slip and fall which occurred on December 6, 2018, in Edmonton, Alberta (the "Fall").The Defendants breached their contract to the Plaintiff, Sandra Mae Simmons ("Ms. Simmons") by failing to build her a safe home freeof hazards, and as a result negligently caused the Fall resulting in injuries, losses and damages to Ms. Simmons. ... 10. The Defendants have breached their contract, duties of care, and are negligent as a result of the unsafe Grading left between Ms.Simmons' Home and detached garage. 11.

It was an express or implied term of the contract that Homes by Avi would build a safe home that was free of hazards. It was also anexpress or implied term of the contract that Homes by Avi would build Ms, Simmons' home in a proper and workmanlike manner. 12. The Defendants, each or any of them, knew or ought to have known that the Grading would be travelled upon regularly and on adally basis by Ms. Simmons and her visitors, people with varying degrees of health, ability, and age. The Defendants, each or any ofthem, knew or ought to have known that Ms.

Simmons had no other option but to traverse the Grading to access her garage from herhome and vice versa. 13. The Defendants, each or any of them, had legal duties and obligations to Ms. Simmons, which each or any of them failed todischarge, including a duty of care to ensure that homes built by Homes by Avi are safe and free of hazards.

14. The Defendants breached their contract, duties and obligations owed, and were negligent, the particulars of which include: a. failing to build the Home with safe grading; b. failing to make the Home reasonably safe for use by Ms. Simmons; c. failing to respond in a timely and effective manner upon being alerted to the dangerous Grading created by the Defendants in Ms. Simmons' yard; and d. such further and other particulars as may be proven at the trial of this action. [ 9 ] The Applicant argues that these allegations engage the duty to arbitrate.

The Plaintiffs/Respondents argue, in part, that a personal injury, or consequential loss is outside of the ambit of the arbitration clause. [ 10 ] The Plaintiff took possession of her home July 30, 2015. The new home warranty started the same day. The lot was graded October 8, 2015. The grading was approved by the City October 23, 2015. [ 11 ] There was a warranty inspection completed January 28, 2016. In an exchange of emails around that time (on July 27, 2016) Ms.

Simmons commented that the lot grading was ‘very severe’. [ 12 ] The Plaintiff fell twice on the walkway in the winter of 2015/16, saying, in an email to the warranty coordinator: “I fell 2x last winter … so … who do I sue … I guess the City, probably … but I feel there should be more thought in the design of the backyard from Homes by Avi …” [ 13 ] The Plaintiff fell three more times in the winter of 2016/17, saying to the warranty coordinator: “Unfortunately, I fell 3 times last winter as the slope to get to the garage is absolutely ridiculous. Thank goodness I did not sprain or break anything.

I asked Homes by Avi to look at this last year to come up with a solution. The summer months are tolerable but the winter months are not. Please let me know what can be done.” [ 14 ] The fall giving rise to this lawsuit occurred December 6, 2018. The Plaintiff claims not to have suffered any injuries in the five previous falls. Ms. Simmons initially requested mediation pursuant to the warranty program (March 4, 2019), which was declined by the Homes by Avi Defendants.

Discussion [ 15 ] Section 3(1) of the Limitations Act, RSA 2000 c L-12 , provides: 3(1) Subject to subsections (1.1) and (1.2) and sections 3.1 , 3.2 and 11 , if a claimant does not seek a remedial order within (

a) years after the date on which the claimant first knew, or in the circumstances ought to have known, (

i) that the injury for which the claimant seeks a remedial order had occurred, (ii) that the injury was attributable to conduct of the defendant, and (iii) that the injury, assuming liability on the part of the defendant, warrants bringing a proceeding, or (b) 10 years after the claim arose, whichever period expires first, the defendant, on pleading this Act as a defence, is entitled to immunity from liability in respect of the claim. [ 16 ] In my view, this application turns on what is meant by ‘injury’ in the context of this litigation. [ 17 ]

Section 1 of the Limitations Act defines injury to mean: ... 1(

e) injury means (

i) personal injury, (ii) property damage, (iii) economic loss, (iv) non-performance of an obligation, or

(

v) in the absence of any of the above, the breach of a duty; [ 18 ] The Plaintiff says she is suing for ‘personal injury (s 1(e)(i)), arising from the December 6, 2018 fall. She argues that because she was not injured in the five previous falls, there was no need to seek a remedial order for the purposes of Section 3(1) (a). [ 19 ] Injury, as defined above, also includes ‘non performance of an obligation’((1)(e)(iv)) and ‘breach of a duty’((1)(e)(v)). [ 20 ] The root cause of this lawsuit goes back to the negligent, or defective design and grading between Ms. Simmons’ walkway and her garage.

There is no doubt a builder has a common law duty not to create a hazardous situation that it could foresee would likely harm someone in the position of the Plaintiff. Bad design and grading were the source of the injury, as described by both the pleading and Ms. Simmons’ expert; both of which are types of injury, and all of which fall under the category of non-performance of a contractual obligation, or the breach of a duty. [ 21 ] I acknowledge that the warranty insurance policy specifically excludes site grading and personal injury from coverage (exclusions D and

E) but the extent of coverage under the policy would not absolve homes by Avi from any responsibility under the contract. [ 22 ] The personal injury suffered by Ms. Simmons is an injury for the purposes of the Limitations Act . However, the injury for the purposes of this lawsuit is bad design and grading. In other words, the lawsuit is not really about the personal injury but about the conditions that gave rise to it. [ 23 ] This injury occurred in the 2015 time frame. It may not have warranted bringing a proceeding until there was a slip and fall.

There were five before the one the Plaintiff says triggered this lawsuit. [ 24 ] In my view, the injury is the bad design and grading. That is what the pleading says. That is what the expert says. It is true that there was a personal injury, which is also an injury under the Act but, to put it one way, if you’ve fallen five times you don’t need to wait until you break your arm in order to have a claim for bad design. Faced with a known hazard, a Plaintiff cannot wait until the inevitable happens before doing anything about it. And in this case, the design and construction of the walkway in Ms.

Simmons’ backyard was an accident waiting to happen. Five accidents did happen before this one. Ms. Simmons thought it was the Defendants’ fault and wanted them to do something about it as early as the winter of 2015/16. [ 25 ] All of the elements of s 3(1)(

a) were present long before December 6, 2018. The allegedly defective condition (giving rise to the ‘injury’) had been present since October of 2015. The condition was attributable to Homes by Avi, or the grading subcontractor, and it warranted bringing a proceeding. Ms. Simmons’ e-mail comments suggest that she was well aware of having to sue someone long before the slip and fall that gave rise to this lawsuit. Disposition [ 26 ] Regrettably, Ms. Simmons’ lawsuit is out of time. I say nothing more about it other than that it is too late. [ 27 ] The application is allowed. The lawsuit is dismissed.

Heard on the 16 th day of March, 2023. Dated at the City of Edmonton, Alberta this 14 th day of April, 2023. W.S. Schlosser A.J.C.K.B.A. Appearances: Carolyn Mah-Kabaroff Kingsgate Legal for the Plaintiffs/Respondents Carolyn Paterson

Field LLP for the Homes by Avi Defendants/Applicants