Balm v. Aikins, MacAulay and Thorvaldson LLP et al., (2012) 522 A.R. 402

• Judge: Fraser, C.J.A., Watson and O'Ferrall, JJ.A.
• Court: Court of Appeal (Alberta)
• Case Date: March 08, 2012
• Citations: (2012), 522 A.R. 402;2012 ABCA 96

Balm v. Aikins, MacAulay & Thorvaldson LLP (2012), 522 A.R. 402; 544 W.A.C. 402 (CA)

MLB headnote and full text

Temp. Cite: [2012] A.R. TBEd. MR.169

Alfred H. Balm (respondent/plaintiff) v. Aikins MacAuley & Thorvaldson LLP, James Alexander Ferguson and Brian D. Lerner (appellants/defendants) and Richard Roe and XYZ Corp. (not a party to the appeal/defendant)

(1101-0287-AC; 2012 ABCA 96)

Indexed As: Balm v. Aikins, MacAulay and Thorvaldson LLP et al.

Alberta Court of Appeal

Fraser, C.J.A., Watson and O'Ferrall, JJ.A.

March 27, 2012.

Summary:

In 1999, Balm sued the Sudermann group for alleged corporate misconduct that adversely affected the price that Balm was seeking, through a stock exchange process, for his shares in Fracmaster. On September 8, 2008, Balm also sued the Sudermanns' lawyers, Aikins, MacAulay and Thorvaldson (AMT). Balm alleged that AMT co-conspired with the Sudermann group in the alleged corporate misconduct. AMT applied for summary judgment dismissing the action against them as statute barred because Balm commenced his action "well over two years" after he ought to have known that the action against AMT was warranted.

The Alberta Court of Queen's Bench, in a decision reported (2011), 526 A.R. 82, dismissed the application. AMT appealed.

The Alberta Court of Appeal dismissed the appeal.

Practice - Topic 5705

Judgments and orders - Summary judgments - Requirement that question at issue be beyond doubt - In 1999, Balm sued the Sudermann group for alleged corporate misconduct that adversely affected the price that Balm was seeking, through a stock exchange process, for his shares in Fracmaster - On September 8, 2008, Balm also sued the Sudermanns' lawyers, Aikins, MacAulay and Thorvaldson (AMT) - Balm alleged that AMT co-conspired with the Sudermann group in the alleged corporate misconduct - AMT moved for summary judgment dismissing the action against them as statute barred because Balm commenced his action "well over two years" after he ought to have known that the action against AMT was warranted - Balm replied that it was only as a result of documents produced pursuant to a court order dated August 7, 2007, the cross-examination of the Sudermanns in the fall of 2006, the discovery of AMT's participation through the production of time records and billing information and the July 2008 cross-examination of a partner of AMT, that he had reason to believe that AMT were acting not just as lawyers but as co-conspirators - The application judge dismissed AMT's application - While it was not clear that Balm would succeed against AMT, it was not plain and obvious that he ought to have been aware of facts supporting an action against AMT as co-conspirators and not as lawyers - The Alberta Court of Appeal upheld the decision, absent error - See paragraphs 1 to 17.

Cases Noticed:

Canada Cement LaFarge Ltd. et al. v. British Columbia Lightweight Aggregate Ltd. et al., [1983] 1 S.C.R. 452; 47 N.R. 191, refd to. [para. 11].

Lonrho Ltd. v. Shell Petroleum Co. Ltd., [1982] A.C. 173; [1981] 2 All E.R. 456, refd to. [para. 11].

Can-Dive Services Ltd. et al. v. Pacific Coast Energy Corp. et al. (1993), 28 B.C.A.C. 157; 47 W.A.C. 157; 96 B.C.L.R.(2d) 156 (C.A.), refd to. [para. 11].

Soleil Hospitality Inc. v. Louie (2011), 308 B.C.A.C. 122; 521 W.A.C. 122; 2011 BCCA 305, refd to. [para. 11].

Murphy Oil Co. et al. v. Predator Corp. et al. (2006), 384 A.R. 251; 367 W.A.C. 251; 2006 ABCA 69, refd to. [para. 14].

Wolfert et al. v. Shuchuk et al., [2003] A.R. Uned. 157; 15 Alta. L.R.(4th) 5; 2003 ABCA 109, refd to. [para. 14].

Chevron Canada Resources et al. v. Canada et al. (2009), 457 A.R. 132; 457 W.A.C. 132; 6 Alta. L.R. (5th) 5; 2009 ABCA 180, refd to. [para. 14].

Milavsky v. Milavsky et al. (2011), 513 A.R. 282; 530 W.A.C. 282; 2011 ABCA 231, refd to. [para. 14].

Desoto Resources Ltd. v. Encana Corp. et al. (2011), 513 A.R. 72; 530 W.A.C. 72; 2011 ABCA 100, refd to. [para. 14].

Reece et al. v. Edmonton (City) (2011), 513 A.R. 199; 530 W.A.C. 199; 2011 ABCA 238, refd to. [para. 14].

Lameman et al. v. Canada (Attorney General) et al., [2008] 1 S.C.R. 372; 372 N.R. 239; 429 A.R. 26; 421 W.A.C. 26; 2008 SCC 14, refd to. [para. 15].

Counsel:

J.P. Peacock, Q.C., and P. Robinson, for the appellants;

K.L. Smyth and L.L. Herwig, for the respondent.

This appeal was heard on March 8, 2012, by Fraser, C.J.A., Watson and O'Ferrall, JJ.A., of the Alberta Court of Appeal. The Court delivered the following memorandum of judgment on March 27, 2012.