Condominium Corp. No. 012 5331 v. De Silva (W.) Properties Inc. et al., 2010 ABQB 181

• Judge: Ross, J.
• Court: Court of Queen's Bench of Alberta (Canada)
• Case Date: February 04, 2010
• Citations: 2010 ABQB 181;(2010), 485 A.R. 90 (QB)

Condo. Corp. 012 5331 v. De Silva Prop. (2010), 485 A.R. 90 (QB)

MLB headnote and full text

Temp. Cite: [2010] A.R. TBEd. MY.053

Condominium Corporation 012 5331 (plaintiff/respondent) v. W. De Silva Properties Inc., William De Silva, P.Eng., Calbridge Drywall Ltd., Liam Construction Inc., David Hamilton, David Hamilton operating as "GMH Architects", and the Said "GMH Architects", Terracon Geotechnique Ltd., Jacobsen Hage Engineering, S.E. Hage Engineering Ltd., E.B. Jacobsen Engineering Ltd. and Alberta Permit Pro (defendant/applicant)

(0703 15278; 2010 ABQB 181)

Indexed As: Condominium Corp. No. 012 5331 v. De Silva (W.) Properties Inc. et al.

Alberta Court of Queen's Bench

Judicial District of Edmonton

Ross, J.

March 12, 2010.

Summary:

The plaintiff condominium corporation owned a condominium building that had a defective foundation. The plaintiff alleged that the defendant, Alberta Permit Pro, was negligent in conducting inspections of the building during its construction. Alberta Permit Pro applied under rule 129 of the Rules of Court to be removed as a defendant from the matter, i.e., to strike out the pleadings against Alberta Permit Pro as disclosing no cause of action (rule 129(1)(a)) or as an abuse of process (rule 129(1)(d)). Alberta Permit Pro asserted that it was an "accredited agency" as defined by the Safety Codes Act (SCA) and it was immunized from potential liability by s. 12 of the SCA.

The Alberta Court of Queen's Bench dismissed the application.

Practice - Topic 2230

Pleadings - Striking out pleadings - Grounds - Failure to disclose a cause of action or defence - [See Torts - Topic 6827 ].

Practice - Topic 2239.1

Pleadings - Striking out pleadings - Grounds - Abuse of process - Hopeless suit - [See Torts - Topic 6827 ].

Torts - Topic 6827

Defences - Statutory compliance, authority or immunity - Immunity from negligence - The plaintiff, Condominium Corp. No. 012 5331 ("012"), owned a condominium building that had a defective foundation - 012 alleged that the defendant, Alberta Permit Pro, was negligent in conducting inspections of the building during its construction - Alberta Permit Pro applied under rule 129 of the Rules of Court to be removed as a defendant from the matter, i.e., to strike out the pleadings against Alberta Permit Pro as disclosing no cause of action (rule 129(1)(a)) or as an abuse of process (rule 129(1)(d)) - Alberta Permit Pro asserted that it was an "accredited agency" as defined by the Safety Codes Act (SCA), that there was no allegation or evidence that Alberta Permit Pro's actions were not made in good faith, and that Alberta Permit Pro was immunized from liability for any non-bad faith action by s. 12(1) of the SCA - The Alberta Court of Queen's Bench dismissed the application - In Trosin v. Sikora (2005 ABCA) the court concluded that in certain instances negligence could prove the existence of bad faith - The court stated that "012 has not pled bad faith, an absence of good faith, or anything other than negligence. But 012 is not required to plead law, only the material facts on which it relies for its claim ... The material fact of negligent conduct, which has been pled, can give rise to a claim which is not excluded by the SCA, s. 12 ... If 012 proves Alberta Permit Pro engaged in negligent conduct, its conduct may or may not meet the Trosin v. Sikora standard that proves bad faith. The required degree of negligence will depend on Alberta Permit Pro's obligations, statutory and otherwise. These issues all involve findings of fact, and should be determined at trial".

Torts - Topic 9157.1

Duty of care - Particular relationships - Claims against public officials, authorities or boards - Building inspectors - [See Torts - Topic 6827 ].

Cases Noticed:

Tottrup v. Alberta (Minister of Environment) - see Tottrup v. Lund et al.

Tottrup v. Lund et al. (2000), 255 A.R. 204; 220 W.A.C. 204; 186 D.L.R.(4th) 226; 2000 ABCA 121, refd to. [para. 3].

Adrian et al. v. Canada (Attorney General) et al. (2004), 348 A.R. 91; 321 W.A.C. 91; 2004 ABCA 149, leave to appeal denied (2005), 349 N.R. 193; 401 A.R. 399; 391 W.A.C. 399 (S.C.C.), refd to. [para. 3].

Blair v. Consolidated Enfield Corp., [1995] 4 S.C.R. 5; 187 N.R. 241; 86 O.A.C. 245; 128 D.L.R.(4th) 73, refd to. [para. 9].

Trosin et al. v. Sikora et al. (2005), 376 A.R. 173; 360 W.A.C. 173; 2005 ABCA 410, refd to. [para. 9].

Condominium Corp. No. 9813678 et al. v. Statesman Corp. et al. (2009), 472 A.R. 33; 2009 ABQB 493, refd to. [para. 10].

Just v. British Columbia, [1989] 2 S.C.R. 1228; 103 N.R. 1; 64 D.L.R.(4th) 689, refd to. [para. 12].

Vancouver Board of Variance & Parking v. Vancouver (City) - see Martin et al. v. Vancouver (City).

Martin et al. v. Vancouver (City), [2006] B.C.T.C. Uned. D02; 2006 BCSC 1260, affd. (2008), 255 B.C.A.C. 157; 430 W.A.C. 157; 293 D.L.R.(4th) 37; 2008 BCCA 197, leave to appeal denied (2008), 391 N.R. 397; 279 B.C.A.C. 320; 473 W.A.C. 320 (S.C.C.), refd to. [para. 17].

Finney v. Barreau du Québec - see McCullock-Finney v. Barreau du Québec.

McCullock-Finney v. Barreau du Québec, [2004] 2 S.C.R. 17; 321 N.R. 361; 2004 SCC 36, refd to. [para. 17].

Entreprises Sibeca Inc. v. Frelighsburg (Municipalité), [2004] 3 S.C.R. 304; 325 N.R. 345; 2004 SCC 61, refd to. [para. 18].

Hunt v. Carey Canada Inc. - see Hunt v. T & N plc et al.

Hunt v. T & N plc et al., [1990] 2 S.C.R. 959; 117 N.R. 321, refd to. [para. 24].

Statutes Noticed:

Rules of Court (Alta.), rule 129 [para. 1].

Safety Codes Act, R.S.A. 2000, c. S-1, sect. 12 [para. 8].

Counsel:

Derrick S. Pagenkopf (Gowling Lafleur Henderson LLP), for the applicant;

Louis M.H. Belzil (Rackel Belzil LLP), for the respondent.

This application was heard on February 4, 2010, before Ross, J., of the Alberta Court of Queen's Bench, Judicial District of Edmonton, who delivered the following reasons for decision on March 12, 2010.