H2 Canmore Apartments LP v Cormode & Dickson Construction Edmonton Ltd, 2023 ABKB 659

Source: Court of King's Bench of Alberta

Date: 2023-11-22

Jurisdiction: Federal

Docket: 2101 03737

Citation: 2023 ABKB 659

Opinion

Court of King’s Bench of Alberta Citation: H2 Canmore Apartments LP v Cormode & Dickson Construction Edmonton Ltd, 2023 ABKB 659 Date: 20231122 Docket: 2101 03737 Registry: Calgary Between: H2 Canmore Apartments LP, Hokanson Capital Inc. and 2158318 Alberta Ltd. Plaintiffs - and - Cormode & Dickson Construction Edmonton Ltd., Berend Pieter Elzen also known as Ben Elzen, Michael R.

Deacon, Martin Bohm, Bruce Miller, Frank Haas, Beck Vale Architects & Planners Inc., Greg Beck, SNC-Lavalin Inc., Sebastian Roman, Wanhong Zhang, TWS Engineering Ltd., Marshall Price, PDN Construction Ltd., Amen Construction Ltd., Design 19 Painter Ltd., Walker Plant J.V. Ltd., H Group Inc., Reza Aghazadeh and McCool Construction YYC Inc. Defendants _______________________________________________________ Case Management Decision of the Honourable Justice M.A. Marion _______________________________________________________ I.

Introduction [ 1 ] On June 8, 2022, certain defendants in this action filed an application (

Summary Dismissal Application ) seeking

summary judgment (in the form of

summary dismissal) of the claim against Berend ( Berend ) Pieter Elzen ( Elzen ), Michael R. Deacon ( Deacon ), Martin Bohm ( Bohm ), Bruce Miller ( Miller ) and Frank Haas ( Haas ) (together the Cormode Employee Defendants ). [ 2 ] The Plaintiffs oppose the

Summary Dismissal Application. They also object to certain paragraphs in the Cormode Employee Defendants’ affidavits ( Affidavits ) on a number of grounds and, on June 30, 2023, filed an application ( Striking Application ) to strike portions of the Affidavits. [ 3 ] On August 29, 2023, I heard submissions of the parties as to whether the Striking Application should be heard before or at the same time as (or as part of) the

Summary Dismissal Application. While it is unnecessary to apply to strike inadmissible affidavit evidence because courts typically can simply ignore it, a litigant may be entitled to seek a striking order from the judge hearing the merits of the application: Kissel v Rocky View (County) , 2020 ABQB 406 at para 84 .

Part of the role of a case management judge is to take reasonable steps to promote efficiency, which can include striking portions of affidavits (although this would usually be more productively done before questioning is completed, rather than afterwards as in this case): Abel v Modi , 2020 ABQB 530 at para 41 ; Gauchier v Cunningham , 2012 ABQB 513 at para 15 . [ 4 ] I made the following direction for the hearing of the Striking Application:

[6] In this case, I have briefly reviewed the affidavits, the transcripts and the Striking Application to understand the nature of the issues raised by the Striking Application. In light of that, and the Cormode Employee Defendants’ previous agreement that the Striking Application be heard by way of a special application before and separate from the

Summary Dismissal Application, I find that it is appropriate in this case to deal with the Striking Application first and separate from the

Summary Dismissal Application so that the parties may appropriately tailor their submissions in the

Summary Dismissal Application based on the actual record that will be before the Court. [ 5 ] Accordingly, the Striking Application was set down for a one-hour application which was argued before me on October 6, 2023. The parties provided written briefs, which I have reviewed, and made oral submissions. II. Issue [ 6 ] The issue is whether any portion of the Affidavits should be struck prior to the

Summary Dismissal Application. III. Analysis [ 7 ] The Plaintiffs object to specified paragraphs of the affidavits on five grounds: argument, conclusion (fact), conclusion (law), opinion; and hearsay. Some objections engage more than one ground. A.

Summary Judgment Principles [ 8 ] It is important to put this application into its context:

summary judgment. The proper approach to

summary dispositions in Alberta has been laid out by the Court of Appeal in Weir-Jones Technical Services Incorporated v Purolator Courier Ltd , 2019 ABCA 49 at para 47 (emphasis in original): [47] The proper approach to

summary dispositions, based on the Hryniak v Mauldin test, should follow the core principles relating to

summary dispositions, the standard of proof, the record, and fairness. The test must be predictable, consistent, and fair to both parties. The procedure and the outcome must be just, appropriate, and reasonable. The key considerations are: (

a) Having regard to the state of the record and the issues, is it possible to fairly resolve the dispute on a

summary basis, or do uncertainties in the facts, the record or the law reveal a genuine issue requiring a trial? (

b) Has the moving party met the burden on it to show that there is either “no merit” or “no defence” and that there is no genuine issue requiring a trial? At a threshold level the facts of the case must be proven on a balance of probabilities or the application will fail, but mere establishment of the facts to that standard is not a proxy for

summary adjudication. (

c) If the moving party has met its burden, the resisting party must put its best foot forward and demonstrate from the record that there is a genuine issue requiring a trial. This can occur by challenging the moving party’s case, by identifying a positive defence, by showing that a fair and just

summary disposition is not realistic, or by otherwise demonstrating that there is a genuine issue requiring a trial. If there is a genuine issue requiring a trial,

summary disposition is not available. (

d) In any event, the presiding judge must be left with sufficient confidence in the state of the record such that he or she is prepared to exercise the judicial discretion to summarily resolve the dispute. To repeat, the analysis does not have to proceed sequentially, or in any particular order. The presiding judge may determine, during any stage of the analysis, that

summary adjudication is inappropriate or potentially unfair because the record is unsuitable, the issues are not amenable to

summary disposition, a

summary disposition may not lead to a “just result”, or there is a genuine issue requiring a trial. [ 9 ] A defendant applicant for

summary judgment (dismissal) has the initial burden to provide the factual elements of its defence (that is, the facts on which it relies), on a balance of probabilities, that there is no merit to the claim, and that there is no genuine issue requiring a trial: Weir-Jones at paras 31-35 and 47(b); Giustini v Workman , 2021 ABCA 65 at paras 22- 24 ; P & C Lawfirm Management Inc v Sabourin , 2020 ABCA 449 at paras 38-39 ; Hannam v Medicine Hat School District No 76 , 2020 ABCA 343 at paras 145-151 . [ 10 ] If the defendants meet the initial evidentiary burden, then the opposing party (here, the Plaintiffs), must put their best foot forward and demonstrate from the record merit to the claim and/or a or a genuine issue requiring a trial: Weir-Jones at paras 32, 35 and 47(c). [ 11 ] To be admissible, evidence must be relevant and not subject to exclusion under any other rule or policy: Sopinka, Lederman & Brant: The Law of Evidence in Canada , Sixth Edition (Toronto: LexisNexis Canada, 2022) at para 2.48. [ 12 ] Courts may also exclude evidence if, in the exercise of the court’s discretion, its probative value is outweighed by its prejudicial effect.

Probative value relates to the degree of relevance to the issues and the strength of the inference that can be drawn from evidence, while prejudicial effect relates to the likelihood that the trier of fact will misuse the evidence: R v Schneider , 2022 SCC 34 at paras 59-60 . [ 13 ] Even if evidence is admitted, that does not mean it will be accepted by the court when making fact findings, or will be given any weight. [ 14 ] In McDonald v Sproule , 2023 ABKB 587 , I recently summarized the evidentiary screening principles courts apply in

summary judgment applications, including at paras 88: [88] In my view, in order to honour the guiding principles set out by the Supreme Court of Canada and Alberta Court of Appeal,including supporting the public policy of improved access to justice,

summary judgment courts must distill the record to remove,disregard or give little weight to inadmissible, inappropriate or unhelpful evidence to get to the core of the matter and determine whetherthere are any “genuine” issues requiring a trial (as opposed to a party’s views, positions, arguments, allegations, speculation, conjecture,interpretation, opinions, beliefs, hopes or desires). As stated by the Ontario Court of Appeal in Kawartha-Haliburton Children’s AidSociety v MW, 2019 ONCA 316 at para 8, courts “must conduct a careful screening of the evidence to eliminate inadmissible evidence.The court should not give weight to evidence on a

summary judgment motion that would be inadmissible at trial.” [15] The court’s jurisdiction to engage in the screening includes rule 3.68(4): Abel at para 39; Matta v Matta, 2021 ABQB 826 atpara 23. [16] In my view, courts should be cautious in applying these principles in a vacuum and pre-emptively striking evidence,particularly where it is arguably admissible or intertwined with other evidence, or is evidence that has been questioned upon. The courtmust consider whether it is more appropriate to address it when considering the entire evidentiary record as a whole at the

summaryjudgment application. The Court must also be mindful of potentially duplicating procedures and operating efficiently, or selectivelystriking portions of an affidavit which may affect the intended meaning of the affiant’s evidence, or which may render the remainingevidence misleading. B. Evidentiary Principles Related to Affidavit Evidence [17] I now address the main grounds raised in objection to the Affidavits. 1.

Argument or Advocacy in Affidavits [18] It is appropriate in a well drafted affidavit to describe an allegation to provide the reader with context to better understand theevidence in the affidavit, but the statements must not go beyond that purpose and amount to inadmissible advocacy: Kissel at para 62,citing Alberta Treasury Branches v Leahy, 1999 ABQB 185 at para 84. See also Kudzin v APM Construction Services Inc, 2023ABKB 425 at para 121; Rau v Edmonton (City), 2015 ABCA 5 at para 19. 2.

Factual Conclusions in Affidavits [19] Conclusions are the function of the court and affidavits should be confined to evidence: Alberta (Human RightsCommission) v Alberta Blue Cross Plan, 1983 ABCA 207 at para 6; Rau at para 19. [20] As per McDonald, at para at 96: [96] Fourth, bald, conclusory, argumentative or self-serving statements, personal opinion, allegations, speculation, conjecture orassertions made in affidavits or questioning transcripts, in the absence of detailed facts and supporting evidence, should be given little orno weight and cannot establish a genuine issue requiring a trial: Fitzpatrick at para 23; Wetaskiwin Animal Clinic Ltd v Hartley, 2021ABQB 144 at para 41; Murray v Ford Motor Company of Canada, 2020 ABQB 729 at para 103; Rudichuk QB at paras 16-17 and 21;Clark Builders at para 157; County of Vulcan at para 81; Stankovic v 1536679 Alberta Ltd, 2019 ABCA 187 at para 46; ANC Timberat paras 32 and 98; Goodswimmer at paras 38-45; Malhotra v 1743134 Alberta Ltd, 2017 ABQB 34 at para 32; Shefsky v CaliforniaGold Mining Inc, 2016 ABCA 103 at para 113; Brookfield at para 18; Rau v Edmonton (City), 2015 ABCA 5 at para 19; R FlodenServices Ltd v Solomon, 2015 ABQB 450 at para 23; Guarantee Co of North America v Gordon Capital Corp, (SCC), [1999] 3 SCR 423 at para 31; Attila Dogan at para 52; Minex Minerals Ltd v Walker, 2019 ABQB 460 at para 148; PyrrhaDesign Inc v Plum and Posey Inc, 2016 ABCA 12 at para 22; Kudzin v APM Construction Services Inc, 2023 ABKB 425 at para 121;Spady at para 57. [21] It is also important, again, to remember the

summary judgment context. Given that the applicant has both the threshold andultimate burden to establish that

summary judgment is appropriate and that there are no genuine issues for trial, the court must be carefulin considering a pre-emptive motion to strike evidence. For example, the court must be alive to the fact that only the initial elements of adefence must be proven in order to trigger the duty of the respondent to put its best foot forward. In some cases, this may require anapplicant affiant to open themselves up to questioning by simply saying: “the allegations against me are not true”.

Courts must be carefulabout striking, as a bald or bare assertion, a factual statement required to put the applicant over the threshold burden. [22] Further, Courts must be wary of requiring an affiant to provide detailed supporting facts to support a negative proposition. Forexample, where it is alleged a defendant did X, it may not be reasonable to expect an affidavit to say more than: I did not do X as alleged.It may not be reasonable to expect an affiant to provide detailed evidence of everything they did do that was not X.

In some instances, alack of detailed back-up to a conclusory statement in an affidavit should be addressed in the context of all the evidence. This point isparticularly relevant where an applicant for

summary dismissal is responding to broad or conclusory allegations in a Statement of Claim. 3. Legal Conclusions or Legal Opinion in Affidavits [23] Conclusions are the function of the court and affidavits should be confined to evidence: Alberta (Human RightsCommission) at para 6; Rau at para 19. To the extent a lay witness with no legal expertise ventures into providing legal opinions, it istrite that such opinions are also inadmissible. 4. Opinion Evidence in Affidavits

[24] The general rule is that witnesses may not express opinions, because opinion evidence is presumptively inadmissible: R v DD,2000 SCC 43 , [2000] 2 SCR 275 at para 49; Kon Construction Ltd v Terranova Developments Ltd, 2015 ABCA 249 at para20; White Burgess Langille Inman v Abbott and Haliburton Co, 2015 SCC 23 at paras 14-15. [25] There are at least two exceptions to this rule: (1) the compendious statement of facts exception; and (2) the witness withexpertise exception: O’Kane v Lillqvist-O’Kane, 2021 ABQB 925 at para 6. [26] The first exception was summarized in O’Kane [footnotes omitted]: [8] The leading case on the admissibility of lay opinion evidence under the compendious statement of facts exception is Graat vR.

The Supreme Court of Canada admonished courts faced with lay opinion evidence not to place too much weight on the “tenuous, andfrequently false, antithesis between fact and opinion. The line between “fact” and “opinion” is not clear.” The Court went on to prescribea principled approach. The Court explained that “[a]dmissibility is determined, first, by asking whether the evidence sought to beadmitted is relevant. This is a matter of applying logic and experience to the circumstances of the particular case.

The question whichmust then be asked is whether, though probative, the evidence must be excluded by a clear ground of policy or of law.” [9] The Court in Graat admitted lay opinion evidence from police officers as to whether the accused was too drunk to drive. Thelay opinion evidence was neither excluded by a clear ground of policy nor law because it fell under what is known as the “compendiousstatement of facts” exception to the rule against opinion evidence.

Under the compendious statement of facts exception, the opinionfunctions as a shorthand for expressing all of the small facts that are implicit in the opinion. For example, the conclusion that a person isdrunk may be taken to be comprised of the factual observations that an ordinary person would use to conclude that a person was drunk,such as slurred words and a lack of coordination. [10] Following Graat, leading texts have distilled four criteria for admitting lay evidence under the compendious statement of factsexception that have, in turn, been accepted by courts.

Lay opinion evidence may only be accepted if: (1) the lay witness is in a better position than the trier of fact to form the conclusion; (2) the conclusion is one that persons of ordinary experience are able to make; (3) the witness, although not expert, has the experiential capacity to make the conclusion; and (4) the opinions being expressed are merely a compendious mode of stating facts that are too subtle or complicated to benarrated as effectively without resort to conclusions. [11] The four criteria are sometimes styled the “lay evidence rule.” [27] The second exception was addressed by the Court of Appeal in Kon Construction.

In that case, the Court of Appeal identifiedthree types of witnesses with expertise, at para 35: (

a) Independent experts who are retained to provide opinions about issues in the litigation, but were not otherwise involved inthe underlying events. This is the category of expert witness contemplated by White Burgess and Mohan. (

b) Witnesses with expertise who were involved in the events underlying the litigation, but are not themselves litigants. Anexample is the family physician in a personal injury case who is called upon to testify about his or her observations of the plaintiff, andthe treatment provided. (

c) Litigants (including the officers and employees of corporate litigants) who have expertise, and who were actually involved inthe events underlying the litigation. [28] The Cormode Employee Defendants argue that they fall within the third category: litigants with expertise who were involvedin the underlying litigation. In Kon Construction, the Court of Appeal said this about these types of witnesses: [40] Secondly, it is generally not necessary to qualify the last class of witnesses with expertise as “experts” under the Mohanprocedure.

As parties to the litigation they are entitled to testify, and generally they will have the most direct and relevant evidence aboutthe issues. The truth finding function of a trial requires that their evidence be received. Since they were often only involved in theunderlying events because of their expertise, it makes no sense to hold that they cannot explain why they acted as they did, if they strayinto their expertise. Their opinions explain why they acted as they did.

Since these witnesses are available for pre-trial questioning,formal advance notice of their opinions or their evidence is not needed. [29] It may be difficult in determining exactly when such witnesses stray outside of their expertise, or when they are givingopinions that are not based on their involvement in the underlying events. If it is not clear, it may be more appropriate for such issues tobe dealt with as in the context of all the evidence on the

summary judgment application. Where it is clear that such witnesses are givingopinions outside of their expertise or are given opinions that are not based on their personal involvement in the matter, then suchevidence may be inadmissible. 5.

Hearsay in Affidavits [30] As per McDonald, at paras 91-92: [91] First, with respect to applicant affidavits, they should generally be based on personal knowledge: rule 13.18(3): MagnusonEstate, 2023 ABKB 305 at paras 35-38; Consolidated Civil Enforcement Inc v Shipalesky, 2022 ABKB 718 at para 30; Moore vWetaskawin Friends and Horizons Training, 2022 ABKB 617 at para 34; Van Grinsven v Kortbeek, 2022 ABQB 138 at para 32;Malkhassian Estate v Scotia Life Insurance Company, 2020 ABQB 173 at para 40; From Estate, 2019 ABQB 988 at para 103; Clark

Builders and Stantec Consulting Ltd v GO Community Centre , 2019 ABQB 706 at para 40 ; DD v Calgary Counselling Centre , 2017 ABQB 95 at para 44 ; Attila Dogan Construction v AMEC Americas Limited , 2015 ABQB 120 at para 52 affirmed 2015 ABCA 406 . [92] However, there is some flexibility in the application of rule 13.18(3) in the context of

summary judgment applications – sometimes evidence not based on personal knowledge can be admitted.

For example, courts may be more flexible where the applicant is a corporation or estate, where there are no people left with personal knowledge, or where the evidence would be admissible at trial as an exception to hearsay: Magnuson Estate at para 38 ; Moore at paras 35 and 38-40 ; Spady v Spady Estate , 2022 ABQB 591 at para 56 ; Barry v Industrial Alliance Insurance and Financial Services Inc (IAF) , 2022 ABQB 265 at para 53 ; Pure Environmental Waste Management Ltd v Lonquist Field Service (Canada), ULC , 2022 ABQB 30 at para 47 ; Saito v Lester Estate , 2021 ABCA 179 at paras 11-12 ; County of Vulcan v Genesis Reciprocal Insurance Exchange , 2020 ABQB 93 at paras 70-71 ; Goodswimmer v Canada (Attorney General) , 2017 ABCA 365 , leave to appeal ref’d [2018] SCCA No 1 at para 33; Klein v Wolbeck , 2016 ABQB 28 at para 15 ; Attila Dogan at paras 64-75; Murphy v Cahill , 2012 ABQB 793 at paras 26-30 . […] [ 31 ] Even if hearsay is permitted, it should only be admitted if would be admissible at trial; or if it meets the requirements for a principled exception to hearsay (when it meets the necessity and threshold reliability criteria): R v Philip , 2022 ABCA 39 at para 22 , citing R v Bradshaw , 2017 SCC 35 at para 1 . [ 32 ] The Cormode Employee Defendants also argue that some of the objected-to evidence is not actually hearsay because it is not offered as proof of the truth of its contents: R v Khelawon , 2006 SCC 57 , [2006] 2 SCR 787 at para 35 .

C. Assessment of the Impugned Evidence in this Case [ 33 ] The Plaintiffs provided a helpful table with the evidence they seek to strike, together with their position on each. The Cormode Employee Defendants did not address each specific objected to sentence, but rather provided more generalized submissions and focussed heavily on the legal principles. I have addressed the legal principles above. [ 34 ] I have used the Plaintiffs’ table to reflect my decision on the various sentences of the Affidavits the Plaintiffs seek to strike. My decision is reflected in the table at Appendix A to these reasons.

My decision only relates to admissibility and whether the impugned excerpts should be struck from the record. I make no findings about the treatment, use or weight of the admitted evidence. IV. Conclusion [ 35 ] Those portions of the Affidavits referred to as struck in the table attached as

Schedule A hereto are struck from the record, and the remaining excerpts are not struck. However, if a portion of the Affidavits that I have ordered to be struck were put to the affiant and questioned upon in the questioning on the affidavits, then they are not struck and may be addressed in argument at the

Summary Dismissal Application. If the parties are unable to agree whether a portion of the Affidavits were expressly questioned on, they may seek my further direction. [ 36 ] Counsel for the Plaintiffs shall prepare the form of order. Counsel for the Cormode Employee Defendants shall file revised affidavits removing the struck portions of the Affidavits. [ 37 ] Given the fact the parties agreed to have this application dealt with prior to the

Summary Dismissal Application, and the mixed success, the parties shall bear their own costs. Heard on the 6 th day of October, 2023. Dated at the City of Calgary, Alberta this 22 nd day of November, 2023. M.A. Marion J.C.K.B.A. Appearances: Peter Major, K.C. and Kathleen Garbutt, McLennan Ross LLP for the Plaintiffs Paul Beke, Brownlee LLP for the Cormode Employee Defendants Affidavit of Ben Elzen Evidence Objected To Pinpoint Reasons for Objection DECISION

In this action, the Plaintiffs make severe allegations, not just against Cormode, but also against me personally, and against the other individual Applicants, who were Cormode employees. Elzen para. 2 Argument/Advocacy Underlined word struck as inadmissible argument/advocacy. All of my economic benefit came from T-4 employment income, as an employee of Cormode Elzen para. 3(

a) Legal Conclusion Conclusion (Factual) Opinion Admissible statement of fact. Holdings Ltd. didn’t receive relevant compensation from Cormode Elzen para. 3(a)(ii) Argument/Advocacy Legal Conclusion Hearsay Struck as inadmissible argument or legal conclusion. My conduct was for Cormode’s business, and related to negotiating and fulfilling the November 9, 2018 Design-Build Stipulated Price Contract between Hokanson Capital Inc. (HCI) and Cormode (the Design-Build Contract). As a result, my actions were also actions of Cormode . Elzen para. 3(

c) Legal Conclusion Argument/Advocacy Admissible factual statement, except underlined portion which is struck as inadmissible legal conclusion. I acted to pursue and fulfil a contract for constructing the Canmore apartment building. Construction is Cormode’s business, so my conduct was in the best interests of Cormode . Elzen para. 3(

d) Argument/Advocacy Conclusion (Factual) Admissible factual statement, except underlined portion which is struck as inadmissible argument or factual conclusion. Again, my actions were merely to pursue and fulfil the Design-Build Contract, so I didn’t exceed my role as President of Cormode, or intentionally wrong the Plaintiffs. Elzen para. 3(

e) Conclusion (Factual) Legal Conclusion Argument/Advocacy Admissible factual statement, except underlined portion which is struck as inadmissible argument or factual or legal conclusion. Note: the similar paragraph in para 3(

d) of the Deacon affidavit is to be treated similarly even though was not included in the Plaintiffs’ table. The Design-Build Contract (and all of my dealings with the Plaintiffs) showed that the Plaintiffs were dealing with the limited liability corporation, Cormode & Dickson Construction Edmonton Ltd. The Plaintiff contracting party—HCl— was itself a limited liability corporation. (The other Plaintiffs are also limited liability companies or partnerships.) As a result, the existence of limited liability on Cormode’s part was unsurprising. Elzen para. 3(

f) Argument/Advocacy Conclusion (Factual) Hearsay Entire excerpt struck as inadmissible argument. I didn’t have any close personal relationship with the Plaintiffs – I was just doing my job as President of Cormode. Elzen para. 3(

g) Argument/Advocacy Conclusion (Factual) Admissible factual statement. Paragraphs 155-161 of the Statement of Claim refer only to economic losses, and I am unaware of any personal injuries, or other non-economic loss claims. And in reply to paragraph 49 of the Statement of Claim, I wasn’t negligent about safety systems. Elzen para. 3(

h) Argument/Advocacy Conclusion (Factual) Legal Conclusion Hearsay First sentence is struck as irrelevant or argument– the affiant’s awareness of personal injuries or other non-economic loss claims is not relevant. Second sentence is struck as inadmissible legal argument or legal conclusion.

Insurance is available, and customary for construction projects. The damages that the Plaintiffs allege are normal economic losses that can arise when limited liability entities make construction contracts. In my experience, they aren’t losses for which HCI would need unusual protection that escapes the limited liability of corporations. Elzen para. 3(

i) Argument/Advocacy Opinion The context of this statement, viewed as a whole, is factual evidence of the affiant’s experience, and is admissible evidence, except the underlined word which is struck as inadmissible argument or opinion. The Design-Build Contract authorized Cormode to act as HCI’s agent for sub-contracts between sub-trades/suppliers and HCI . Elzen para. 8 Legal Conclusion Struck as inadmissible legal opinion or legal conclusion.

Despite these contractual arrangements, a couple of days before HCI started the process to terminate Cormode as construction manager, Rachael McEachern (HCI’s Vice President, and Jordan Hokanson’s sister) made this series of mistaken statements. [emphasis added] Elzen para. 11 Conclusion (Factual) Hearsay This is an admissible factual statement, except the word “mistaken” which is struck as giving inadmissible factual or legal conclusion. The remaining excerpt is not inadmissible hearsay because the statements attributed to Ms. McEachern are not being offered for truth of the proof of their contents.

Further, HCI is a party to this action and Ms. McEachern appears to have been a directing mind of HCI. A party may give evidence about what the opposite party told them. Those statements were inconsistent with the Design-Build Agreement, including Appendix H. Elzen para. 12 Conclusion (Factual) This statement taken alone would be inadmissible argument, opinion or conclusion. However, when read in context with the rest of the paragraph, it is admissible because it forms the stated grounds upon which the affiant disagreed with Ms. McEachern’s statements. This is admissible.

Representations that Cormode was HCI’s agent in the Trade Agreements were true, as I have explained above . Elzen para. 13(

a) Argument Conclusion (Factual) Legal Conclusion Struck as inadmissible argument, opinion or legal or factual conclusion. I did not conceal these Trade Agreements , or act negligently, or in breach of duty. HCI knew about the business under these agreements in detail. Elzen para. 13(

b) Conclusion (Factual) Legal Conclusion Hearsay The underlined portions in the first sentence are struck as inadmissible legal conclusion or argument. The second sentence is struck as inadmissible opinion and also as offending rule 13.18(3) – the affiant does not have first- hand knowledge of HCI (a corporation). In reply to paragraph 46 of the Statement of Claim, Cormode was just pursuing and fulfilling a contract for constructing an apartment building. I don’t understand that as involving corporate policy, or otherwise engaging a directing mind .

I was acting in the normal course as an employee to implement Cormode’s contract. Elzen para. 15 Argument/Advocacy Conclusion (Factual) Legal Conclusion Paragraph 46 of the Statement of Claim puts the affiant’s intention and state of mind in issue, by alleging that the affiant “set out to assure the Plaintiffs…”. This evidence is admissible for the purposes of responding to that allegation, except the underlined portion which is struck because the affiant’s present understanding or characterization of his past conduct is irrelevant and/or inadmissible as argument.

I didn’t undertake a personal duty of care, or fiduciary duty to HCI. I didn’t undertake to act in the best interests of HCI, (1) forsaking the interests of all others, or (2) at all. Elzen para. 17 Argument/Advocacy Legal Conclusion The statement is ambiguous as to whether it is intending to say that the affiant did not factually or expressly undertake the items listed, or is intending to directly address the legal tests for the existence of a duty of care or fiduciary duty. If the former, it is admissible. If the latter, it is inadmissible as argument or legal conclusion. Because of the ambiguity, it is not struck and can be addressed further in argument at the

Summary Dismissal Application in the context of all the evidence. In reply to paragraph 56, I was acting to implement Cormode’s contractual duties under the Design-Build Contract, at arm’s length from HCI. I hadn’t undertaken to act in HCI’s best interests, and I didn’t see HCI as vulnerable, or as subject to my discretion. Elzen para. 19 Argument/Advocacy Conclusion (Factual) Legal Conclusion The first sentence is admissible.

The second sentence’s reference to “I hadn’t undertaken” is ambiguous as to whether it is intending to say that the affiant did not factually or expressly undertake, or is intending to directly address the legal tests for the existence of fiduciary duty. If the former, it is admissible. If the latter, it is inadmissible as argument or legal conclusion. Because of the lack of clarity, it is not struck and can be addressed further in argument at the

Summary Dismissal Application in the context of all the evidence. The last part of the second sentence is admissible evidence of the affiant’s state of mind or understanding of the relationship between the parties. The materiality of the affiant’s subjective belief is something that can be argued in the

Summary Dismissal Application. In answer to paragraphs 51, 55 and 150 of the Statement of Claim, as I explained near the beginning of my affidavit, my financial benefits were just my employment income. I had no incentive to deceive the Plaintiffs, and I didn’t do so. Elzen para. 21 Argument/Advocacy Opinion Admissible statement of fact, other than the underlined portion which is struck as inadmissible opinion or conclusion, and also as offending rule 13.18(3) – the affiant does not have first-hand knowledge of whether the Plaintiffs were deceived.

I don’t even grasp how these normal project meetings could have theoretically harmed the Plaintiffs . Elzen para. 24 Argument/Advocacy Struck as inadmissible argument and/or irrelevant commentary on affiant’s current understanding of the claim. If the Plaintiffs are implying that Cormode or I received kickbacks or hidden discounts from sub- trades/suppliers, that is false. Elzen para. 24(

a) Argument/Advocacy Conclusion (Factual) Admissible statement of fact. HCI and its Payment Certifier reviewed, approved, and directly paid all of the sub-trades/suppliers. Elzen para. 24(

b) Argument/Advocacy Conclusion (Factual) Hearsay Inadmissible as offending rule 13.18(3).

The Design-Build Contract was a fixed price contract. It fixed a maximum cost for the project, and Appendix F … fixed Cormode’s own fee of $550,000 for construction management. So Cormode’s fee wouldn’t increase if the sub-trades/suppliers’ invoices fell in price. Cormode couldn’t benefit itself by (

a) pressuring sub- trades/suppliers to reduce invoices by cutting corners, or (

b) obtaining early settlement discounts for prompt payment. Again , Cormode wasn’t even in charge of the timing of payments – HCI was. Elzen para. 24(

c) Argument/Advocacy Conclusion (Factual) Legal Conclusion The underlined portion is struck as inadmissible argument and/or legal conclusion or opinion. The non- underlined phrase is admissible. The Architect (who was the Consultant and Payment Certifier under the Design-Build Contract) sub-contracted with Cormode, on a fixed fee basis ($178,400, plus reimbursable expenses). HCI is the party that suggested Beck Vale, as architect , and HCI directly paid the Architect’s invoices, after review and approval. So Cormode (and its employees, including me) had no way to gain from the Architect’s sub-contract. … Elzen para. 24(

d) Argument/Advocacy Conclusion (Factual) Legal Conclusion The first sentence is admissible. The first part of the second sentence is admissible, but the rest of the second sentence is struck as offending rule 13.18(3). The last sentence is struck as inadmissible argument, legal conclusion and/or opinion. Similarly, I don’t grasp how the alleged intentional wrongs listed in paragraph 48 of the Statement of Claim (for example, manipulating bids, or misappropriating refunds) would benefit Cormode, or me . Cormode’s compensation was just a fixed fee, and I received only employment income.

Elzen para. 25 Argument/Advocacy Conclusion (Factual) Legal Conclusion The underlined portion is struck as inadmissible argument. The last sentence is admissible factual evidence. Affidavit of Michael Deacon Evidence Objected To Pinpoint Reasons for Objection DECISION In this action, the Plaintiffs make grave allegations, not just against Cormode, but also against me personally, and against the other individual Applicants, who were Cormode employees. Deacon para. 2 Argument/Advocacy Underlined word struck as inadmissible argument/advocacy.

My actions and behaviour were for the business of Cormode, and related to fulfilling the November 9, 2018 Design-Build Stipulated Price Contract between Hokanson Capital Inc. (HCI) and Cormode (the Design- Build Contract). As a result, my actions were the also the actions of Cormode. Deacon para. 3(

a) Argument/Advocacy Legal Conclusion Admissible factual statement, except underlined portion which is struck as inadmissible legal conclusion. I acted to pursue and fulfill a contract for constructing the apartment building (which was part of Cormode’s core business). In that way, my actions and behaviour were in the best interests of Cormode. Deacon para. 3(

b) Argument/Advocacy Legal Conclusion Admissible factual statement, except underlined portion which is struck as inadmissible argument or factual conclusion. All of my economic benefit came from employment income, as an employee of Cormode Deacon 3(

c) Legal Conclusion Conclusion (Factual) Opinion Admissible statement of fact.

Holdings Ltd. didn’t receive relevant compensation from Cormode . Deacon 3(c)(ii) Argument/Advocacy Legal Conclusion Hearsay Struck as inadmissible argument or legal conclusion. The Design-Build Contract (and all of my dealings with the Plaintiffs) showed that the Plaintiffs were dealing with the limited liability corporation, Cormode & Dickson Construction Edmonton Ltd. The Plaintiff contracting party, HCl, and the other Plaintiffs are limited liability entities. So the existence of limited liability on Cormode’s part was unsurprising . Deacon para. 3(

e) Argument/Advocacy Conclusion (Factual) Hearsay Entire excerpt struck as inadmissible argument. I didn’t have any close personal relationship with the Plaintiffs – I was just doing my job as Chief Financial Officer with Cormode. Deacon para. 3(

f) Argument/Advocacy Conclusion (Factual) Admissible factual statement. Paragraphs 155-161 of the Statement of Claim refer only to economic losses, and I am unaware of any personal injuries, or other non- economic loss claims . As well, insurance is available, and customary for construction projects. The damages that the Plaintiffs allege are common economic losses that can arise when limited liability entities make construction contracts. Deacon para. 3(

g) Argument/Advocacy Conclusion (Factual) Legal Conclusion Hearsay First sentence is struck as irrelevant or argument– the affiant’s awareness of personal injuries or other non-economic loss claims is not relevant. The context of the rest of this statement, viewed as a whole, is factual evidence of the affiant’s experience, and is permissible evidence. Cormode was properly HCI’s agent in the Trade Agreements Deacon – heading between paras. 8 & 9 Legal Conclusion Struck as inadmissible legal opinion or legal conclusion. Representations that Cormode was HCI’s agent in the Trade Agreements were true, as I have explained above . Deacon para. 9(

a) Argument Conclusion (Factual) Legal Conclusion Struck as inadmissible argument, opinion or legal or factual conclusion. I did not conceal these Trade Agreements , or act negligently, or in breach of duty. HCI knew the details of these agreements in detail Deacon para. 9(

b) Conclusion (Factual) Legal Conclusion Hearsay The underlined portions in the first sentence are struck as inadmissible legal conclusion or argument. The second sentence is struck as inadmissible opinion and also as offending rule 13.18(3) – the affiant does not have first-hand knowledge of HCI (a corporation). In any event, Cormode was just pursuing and fulfilling a contract for constructing an apartment building. I don’t understand that as involving corporate policy, or otherwise engaging a directing mind .

Deacon para. 12 Argument/Advocacy Conclusion (Factual) Legal Conclusion Paragraph 46 of the Statement of Claim puts the affiant’s intention and state of mind in issue, by alleging that the affiant “set out to assure the Plaintiffs…”. This evidence is admissible for the purposes of responding to that allegation, except the underlined portion which is struck because the affiant’s present understanding or characterization of his past conduct is irrelevant and/or inadmissible as argument.

In reply to paragraph 56, I was acting to implement Cormode’s contractual duties under the Design-Build Contract, at arm’s length from HCI. I hadn’t undertaken to act in HCI’s best interests, and I didn’t see HCI as vulnerable, or as subject to my discretion. Deacon para. 14 Argument/Advocacy Conclusion (Factual) Legal Conclusion The first sentence is admissible. The second sentence’s reference to “I hadn’t undertaken” is ambiguous as to whether it is intending to say that the affiant did not factually or expressly undertake, or is intending to directly address the legal tests for the existence of fiduciary duty.

If the former, it is admissible. If the latter, it is inadmissible as argument or legal conclusion. Because of the lack of clarity, it is not struck and can be addressed further in argument at the

Summary Dismissal Application. I didn’t financially benefit, personally – I just received my employment income Deacon heading between paras 14 & 15 Argument/Advocacy Opinion Admissible statement of fact. In answer to paragraphs 51, 55 and 150 of the Statement of Claim, as I explained above, my financial benefits were just my employment income. Deacon para. 15 Argument/Advocacy Legal Conclusion Admissible statement of fact. I don’t even understand how these normal project meetings could have theoretically harmed the Plaintiffs .

Deacon para. 17 Argument/Advocacy Struck as inadmissible argument and/or irrelevant commentary on affiant’s current understanding of the claim. If the Plaintiffs are implying that Cormode or I received kickbacks or hidden discounts from sub-trades/suppliers, that is untrue, and shocking. Fraud is unacceptable to me. Deacon para. 17(

a) Argument/Advocacy Conclusion (Factual) Admissible statement of fact. HCI and its Payment Certifier reviewed, approved, and directly paid all of the sub- trades/suppliers . Deacon para. 17(

b) Argument/Advocacy Conclusion (Factual) Hearsay Inadmissible as offending rule 13.18(3). The Design-Build Contract was a fixed price contract. It fixed a maximum cost for the project, and Appendix F … fixed Cormode’s own fee of $550,000 for construction management. So Cormode’s fee wouldn’t increase if the sub-trades/suppliers’ invoices fell in price. Cormode couldn’t benefit itself by (

a) pressuring sub-trades/suppliers to reduce invoices by cutting corners, or (

b) obtaining early settlement discounts for prompt payment. Again, Cormode wasn’t even in charge of the timing of payments – HCI was. Deacon para. 17(

c) Argument/Advocacy Conclusion (Factual) Legal Conclusion The underlined portion is struck as inadmissible argument and/or legal conclusion or opinion. The non- underlined phrase is admissible. The Architect (who was the Consultant under the Design-Build Contract) sub-contracted with Cormode, on a fixed fee basis ($178,400, plus reimbursable expenses). HCI is the party that suggested Beck Vale, as architect. As well, HCI directly paid the Architect’s invoices, after review and approval. So Cormode (and its employees, including me) had no way to gain from the Architect’s sub- contract. … Deacon para. 17(

Affidavit of Martin Bohm Evidence Objected To Pinpoint Reasons for Objection DECISION In this action, the Plaintiffs make severe allegations, not just against Cormode, but also against me personally, and against the other individual Applicants, who were Cormode employees. Bohm para. 2 Argument/Advocacy Underlined word struck as inadmissible argument/advocacy. All of my economic benefit came from employment income, as an employee of Cormode Bohm para 3(

a) Conclusion (Factual) Legal Conclusion Opinion Admissible statement of fact. My conduct related to negotiating and fulfilling the November 9, 2018 Design-Build Stipulated Price Contract between Hokanson Capital Inc. (HCI) and Cormode (the Design- Build Contract) to construct a Canmore apartment building. As a result, my actions were also actions of Cormode . Bohm para. 3(

b) Argument/Advocacy Conclusion (Factual) Legal Conclusion Admissible factual statement, except underlined portion which is struck as inadmissible legal conclusion. Construction is Cormode’s business, so my conduct in this construction project was in the best interests of Cormode. Bohm para. 3(

c) Argument/Advocacy Conclusion (Factual) Legal Conclusion Admissible factual statement, except underlined portion which is struck as inadmissible argument or factual conclusion. My actions were merely to pursue and fulfil the Design-Build Contract, so I did not exceed my role as Cormode’s Project Manager, or intentionally wrong the Plaintiffs. Bohm para. 3(

d) Conclusion (Factual) Legal Conclusion Admissible factual statement, except underlined portion which is struck as inadmissible argument or factual or legal conclusion. The parties to the Design-Build Contract were limited liability entities. Bohm para. 3(

e) Legal Conclusion Admissible statement of fact. Any legal conclusion embedded in the statement can be addressed in argument at the

Summary Dismissal Application. I did not have a close personal relationship with the Plaintiffs – I was just doing my job as Cormode’s Project Manager. Bohm para. 3(

g) Argument/Advocacy Conclusion (Factual) Hearsay Struck as irrelevant or argument– the affiant’s awareness of personal injuries or other non-economic loss claims is not relevant. The Design-Build Contract (specifically, Appendix H): (

a) authorized and appointed Cormode to act as HCI’s authorized agent for all sub-contracts and material purchases between sub-trades/suppliers and HCI . Bohm para. 9(

a) Argument/Advocacy Conclusion (Factual) Legal Conclusion Struck as inadmissible legal opinion or legal conclusion. The page entitled “Proposed Subcontractor Progress Payments Process Appendix “H” … also detailed how HCI’s site representative, Greg Keeping, would review and recommend payment of sub-trade progress-billing payments after: (

a) Cormode had reviewed and approved progress billings. [And] (

b) The Payment Certifier (Beck Vale Architects & Planners Inc. …) had done likewise . Bohm para. 10 Conclusion (Factual) Legal Conclusion Hearsay Struck as inadmissible legal opinion or legal conclusion. In reply to paragraph 58 of the Statement of Claim, I was just acting as Cormode’s Project Manager. I did not accept a personal duty of care. Bohm para. 14 Argument/Advocacy Legal Conclusion Hearsay The first sentence is an admissible factual statement.

The second sentence is ambiguous as to whether it is intending to say that the affiant did not factually or expressly accept a personal duty, rather than a legal conclusion. Because of the lack of clarity, it is not struck and can be addressed further in argument at the

Summary Dismissal Application in the context of all the evidence. While the allegations of fraud are not specific, I can provide some relevant facts: (

a) Cormode was HCI’s agent in the Trade Agreements, as I have explained above. I did not misrepresent or conceal the Trade Agreements. Bohm para. 21(

a) Argument/Advocacy Conclusion (Factual) Legal Conclusion Hearsay The underlined portion is struck as inadmissible legal opinion or legal conclusion. The rest is admissible as a factual statement.

As I explain below on the conspiracy allegations, Cormode had no incentive to manipulate or misrepresent bids or costs, or to misappropriate funds. And as I explained above, my financial benefits were just my employment income. I had no incentive to deceive the Plaintiffs, and I did not do so . Bohm para. 21(

b) Argument/Advocacy Opinion Conclusion (Factual) Legal Conclusion Admissible statement of fact, other than the underlined portion which is struck as inadmissible opinion or conclusion, and also as offending rule 13.18(3) – the affiant does not have first-hand knowledge of whether the Plaintiffs were deceived. I don’t follow how these normal project meetings could have theoretically harmed the Plaintiffs . Bohm para. 24 Argument/Advocacy Struck as inadmissible argument and/or irrelevant commentary on affiant’s current understanding of the claim. If the Plaintiffs are implying that Cormode, or I received kickbacks, or hidden discounts from sub-trades/suppliers, that is false. Bohm para. 24(

a) Argument/Advocacy Conclusion (Factual) Admissible statement of fact. HCI and its Payment Certifier reviewed, approved and directly paid all of the sub- trades/suppliers . Bohm para. 24(

b) Conclusion (Factual) Hearsay Inadmissible as offending rule 13.18(3). The Design-Build Contract was a fixed price contract. It fixed a maximum cost for the project, and Append F … fixed Cormode’s own fee of $550,000 for construction management. So Cormode’s fee would not increase if the sub-trades/suppliers’ invoices fell in price. Cormode could not benefit itself by (

i) pressuring sub-trades/suppliers to reduce invoices by cutting corners, or (ii) obtaining early settlement discounts for prompt payments. Again , HCI – not Cormode – was in charge of the timing of payments. Bohm para. 24(

c) Argument/Advocacy Conclusion (Factual) The underlined portion is struck as inadmissible argument and/or legal conclusion or opinion. The non- underlined phrase is admissible. The Architect (who was the Consultant and Payment Certifier under the Design-Build Contract) sub-contracted with Cormode, on a fixed fee bases ($178,400 plus reimbursable expenses). HCI directly paid the Architect’s invoices, after review and approval. So Cormode (and its employees including me) had no way to gain from the Architect’s sub- contract. … Bohm para. 24(

d) Argument/Advocacy Conclusion (Factual) Legal Conclusion The first sentence is admissible. The second sentence is struck as offending rule 13.18(3). The last sentence is struck as inadmissible argument, legal conclusion and/or opinion. Affidavit of Bruce Miller Evidence Objected To Pinpoint Reasons for Objection DECISION In this action, the Plaintiffs make serious allegations, not just against Cormode, but also against me personally, and against the other individual Applicants, who were Cormode employees. Miller para. 2 Argument/Advocacy Underlined word struck as inadmissible argument/advocacy.

All of my economic benefit came from employment income, as an employee of Cormode. Miller para 3(

a) Conclusion (Factual) Legal Conclusion Opinion Admissible statement of fact. My conduct related to the November 9, 2018 Design-Build Stipulated Price Contract between Hokanson Capital Inc. (HCI) and Cormode (the Design-Build Contract), and fulfillment of its terms to construct the Canmore apartment building. As a result, my actions were also actions of Cormode. … Miller para. 3(

c) Argument/Advocacy Conclusion (Factual) Legal Conclusion Admissible factual statement, except underlined portion which is struck as inadmissible argument or factual conclusion. My actions were merely to pursue and fulfill the Design-Build Contract, so I didn’t exceed my role as Cormode’s Site Manager/Superintendent, or intentionally wrong the Plaintiffs. Miller para. 3(

d) Conclusion (Factual) Legal Conclusion Admissible factual statement, except underlined portion which is struck as inadmissible argument or factual or legal conclusion.

The parties to the Design-Build Contract were limited liability entities. Miller para. 3(

e) Argument/Advocacy Legal Conclusion Admissible statement of fact. Any legal conclusion embedded in the statement can be addressed in argument at the

Summary Dismissal Application. I didn’t have a close personal relationship with the Plaintiffs – I was just doing my job as Cormode’s Site Manager/Superintendent. Miller para. 3(

H) authorized Cormode to act as HCI’s agent for sub-contracts between sub-trades and HCI. Miller para. 4 Argument/Advocacy Conclusion (Factual) Legal Conclusion Struck as inadmissible legal opinion or legal conclusion. The page entitled “Proposed Subcontractor Progress Payments Process” detailed how HCI’s representative, Greg Keeping, would review and approve sub-trade progress-billing payments after (

a) Cormode had reviewed and approved progress billings, and then (

b) the architect (Beck Vale Architects & Planners Inc.) had done likewise . Miller para. 5 Argument/Advocacy Conclusion (Factual) Hearsay Struck as inadmissible legal opinion or legal conclusion. I didn’t accept a personal duty of care. Miller para. 6 Argument/Advocacy Legal Conclusion This sentence is ambiguous as to whether it is intending to say that the affiant did not factually or expressly accept a personal duty, rather than a legal conclusion. Because of the lack of clarity, it is not struck and can be addressed further in argument at the

Summary Dismissal Application in the context of all the evidence. He was aware of the status on site, in detail . Miller para. 9 Conclusion (Factual) Hearsay Inadmissible as offending rule 13.18(3). While the allegations of fraud aren’t specific, I can provide some relevant facts: (

a) Cormode was HCI’s agent in the Trade Agreements, as I have explained above. I did not misrepresent or conceal the Trade Agreements. Miller para. 11(

a) Argument/Advocacy Conclusion (Factual) Legal Conclusion Hearsay The underlined portion is struck as inadmissible legal opinion or legal conclusion. The rest is admissible as a factual statement. As I explain below on the conspiracy allegation, Cormode had no incentive to manipulate or misrepresent bids or costs, or to misappropriate refunds. Miller para. 11(

b) Argument/Advocacy Opinion Conclusion (Factual) Legal Conclusion Admissible statement of fact. And as I explained above, my financial benefits were just my employment income. I had no incentive to deceive the Plaintiffs, and I didn’t do so. Miller para. 11(

c) Argument/Advocacy Conclusion (Factual) Opinion Admissible, other than the underlined portion which is struck as inadmissible opinion or conclusion, and also as offending rule 13.18(3) – the affiant does not have first-hand knowledge of whether the Plaintiffs were deceived. I don’t see how these normal project meetings could have theoretically harmed the Plaintiffs . Miller para. 14 Argument/Advocacy Struck as inadmissible argument and/or irrelevant commentary on affiant’s current understanding of the claim. If the Plaintiffs are implying that Cormode, or I received kickbacks, or hidden discounts from sub- trades, that is false. Miller para. 14(

a) Argument/Advocacy Conclusion (Factual) Admissible statement of fact. HCI and its Payment Certifier reviewed, approved and directly paid all of the sub-trades . Miller para. 14(

b) Conclusion (Factual) Hearsay Inadmissible as offending rule 13.18(3).

The Design-Build Contract was a fixed price contract. It fixed a maximum cost for the project, and Appendix F … fixed Cormode’s own fee of $550,000 for construction management. So Cormode’s fee would not increase if the sub-trades’ invoices fell in price. Cormode couldn’t benefit itself by (

a) pressuring sub-trades to reduce invoices by cutting corners, or (

b) obtaining early settlement discounts for prompt payment. Again, Cormode wasn’t even in charge of the timing of payments – HCI was. Miller para. 14(

c) Argument/Advocacy Conclusion (Factual) The underlined portion is struck as inadmissible argument and/or legal conclusion or opinion. The non- underlined phrase is admissible. The Architect (who was the Consultant under the Design-Build Contract) sub-contracted with Cormode, on a fixed fee basis ($178,400, plus reimbursable expenses). HCI is the party that suggested Beck Vale as architect. HCI directly paid the Architect’s invoices, after review and approval. So Cormode (and its employees including me) had no way to gain from the Architect’s sub-contract. … Miller para 14(

d) Argument/Advocacy Conclusion (Factual) Legal Conclusion The first and second sentences are admissible. The third sentence is struck as offending rule 13.18(3). The last sentence is struck as inadmissible argument, legal conclusion and/or opinion. Affidavit of Frank Haas Evidence Objected To Pinpoint Reasons for Objection DECISION In this action, the Plaintiffs make serious allegations, not just against Cormode, but also against me personally. Haas para. 2 Argument/Advocacy Underlined word struck as inadmissible argument/advocacy. All of my economic benefit came from employment income, as an employee of Cormode. Haas para 5(

a) Conclusion (Factual) Legal Conclusion Opinion Admissible statement of fact. My conduct related to the Design-Build Contract, and fulfillment of its terms to construct the Canmore apartment building. As a result, my actions were also actions of Cormode. Haas para. 5(

c) Argument/Advocacy Conclusion (Factual) Legal Conclusion Admissible factual statement, except underlined portion which is struck as inadmissible argument or factual conclusion. My actions were merely to pursue and fulfill the Design-Build Contract, so I didn’t exceed my role as Cormode’s Site Manager or intentionally wrong the Plaintiffs. Haas para. 5(

e) Legal Conclusion Admissible statement of fact. Any legal conclusion embedded in the statement can be addressed in argument at the

Summary Dismissal Application. I didn’t have a close personal relationship with the Plaintiffs – I was just doing my job as Cormode’s Site Manager. Haas para. 5(

g) Argument/Advocacy Conclusion (Factual) Legal Conclusion Hearsay Struck as irrelevant or argument– the affiant’s awareness of personal injuries or other non-economic loss claims is not relevant. Appendix H of the Design-Build Contract authorized Cormode to act as HCI’s agent for sub- contracts and between sub-trades and HCI. … Haas para. 6 Argument/Advocacy Conclusion (Factual) Legal Conclusion Struck as inadmissible legal opinion or legal conclusion.

The page entitled “Proposes [ sic ] Subcontractor Progress Payments Process” also detailed how HCI’s representative, Greg Keeping, would review and approve sub-trade progress-billing payments after (

a) Cormode had reviewed and approved progress billings, and then (

b) the architect (Beck Vale Architects & Planners Inc.) had done likewise. Haas para. 7 Hearsay Argument/Advocacy Conclusion (Factual) Struck as inadmissible legal opinion or legal conclusion. I didn’t accept a personal duty of care. Haas para. 8 Argument/Advocacy Legal Conclusion This sentence is ambiguous as to whether it is intending to say that the affiant did not factually or expressly accept a personal duty, rather than a legal conclusion. Because of the lack of clarity, it is not struck and can be addressed further in argument at the

Summary Dismissal Application in the context of all the evidence. While the allegations of fraud aren’t specific, I can provide some relevant facts: (

a) Cormode was HCI’s agent in the Trade Agreements, as I have explained above. I did not misrepresent or conceal the Trade Agreements. Haas para. 12(

b) Argument/Advocacy Opinion Conclusion (Factual) Legal Conclusion Admissible factual statement. And as I explained above, my financial benefits were just my employment income. I had no incentive to deceive the Plaintiffs, and I didn’t do so . Haas para. 12(

c) Argument/Advocacy Conclusion (Factual) Opinion Admissible, other than the underlined portion which is struck as inadmissible opinion or conclusion, and also as offending rule 13.18(3) – the affiant does not have first-hand knowledge of whether the Plaintiffs were deceived. I don’t see how these normal project meetings could have theoretically harmed the Plaintiffs . Haas para. 15 Argument/Advocacy Struck as inadmissible argument and/or irrelevant commentary on affiant’s current understanding of the claim. If the Plaintiffs are implying that Cormode, or I received kickbacks, or hidden discounts from sub- trades, that is false. Haas para. 15(

a) Argument/Advocacy Conclusion (Factual) Admissible factual statement. HCI and its Payment Certifier reviewed, approved and directly paid all of the sub-trades . Haas para. 15(

b) Argument/Advocacy Conclusion (Factual) Hearsay Inadmissible as offending rule 13.18(3). I understood that the Design-Build Contract was a fixed price contract. It fixed a maximum cost for the project, and Appendix F … fixed Cormode’s own fee of $550,000 for construction management. So Cormode’s fee wouldn’t increase if the sub-trades’ invoices fell in price. Cormode couldn’t benefit itself by (

a) pressuring sub-trades to reduce invoices by cutting corners, or (

b) obtaining early settlement discounts for prompt payment. Again, Cormode wasn’t even in charge of the timing of payments – HCI was. Haas para. 15(

c) Argument/Advocacy Conclusion (Factual) First sentence is an admissible statement of fact of affiant’s understanding of the contract. The underlined portion is struck as inadmissible argument and/or legal conclusion or opinion. The non- underlined phrase is admissible. I know of no way that Cormode (and its employees, including me) could gain from the Architect’s sub-contract. I understood that the Architect sub-contracted with Cormode, on a fixed fee basis, and HCI directly paid the Architect’s invoices, after review and approval. … Haas para. 15(

d) Argument/Advocacy Conclusion (Factual) Hearsay Admissible statement of fact of the affiant’s knowledge and understanding.

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