Condominium Corp. No. 022 5840 v. Executive Loft Inc. et al., 2010 ABQB 232

CourtCourt of Queen's Bench of Alberta (Canada)
Case DateNovember 25, 2009
Citations2010 ABQB 232;(2010), 491 A.R. 281 (QBM)

Condo. Corp. 022 5840 v. Executive Loft (2010), 491 A.R. 281 (QBM)

MLB headnote and full text

Temp. Cite: [2010] A.R. TBEd. AP.030

Condominium Corporation No. 022 5840 (Executive Lofts Condominium Corporation)

(applicant/plaintiff) v. Executive Loft Inc. and Worthington Properties Inc. (respondents/defendants)

(0603 02426; 2010 ABQB 232)

Indexed As: Condominium Corp. No. 022 5840 v. Executive Loft Inc. et al.

Alberta Court of Queen's Bench

Judicial District of Edmonton

Breitkreuz, Master

April 7, 2010.

Summary:

The plaintiff Condominium Corp. applied to amend an amended statement of claim.

A Master of the Alberta Court of Queen's Bench allowed the application in part.

Practice - Topic 673

Parties - Adding or substituting parties - Adding or substituting defendants - Circumstances when denied - [See Practice - Topic 2111 ].

Practice - Topic 2110

Pleadings - Amendment of pleadings - Adding new cause of action or "claim" - The plaintiff Condominium Corp. filed a statement of claim against the defendants (Executive Loft Inc. and Worthington Property Inc.), alleging that the defendants breached various fiduciary and contractual obligations and duties of care owed to the plaintiff - The plaintiff alleged that an inspection of the building discovered that the majority of the building components needed replacement at a cost in excess of $500,000 - The plaintiff claimed $1,000,000 in damages and costs - The plaintiff applied to amend the amended statement of claim to, inter alia, add a new claim against the defendants, including White, the sole director and voting director and voting shareholder of Worthington and the sole director of Executive, as "developers" under the Condominium Property Act (CPA) - A Master of the Alberta Court of Queen's Bench dismissed the application - "The proposed amendments to amended statement of claim alleges that Mr. White had a financial interest in, and control of, the condominium project (para. 4); that the defendants held themselves out as having particular expertise and qualifications in the supervision, development, and construction of multi-unit residential condominium facilities (para. 7); and that the defendants participated in the conversion and reconstruction of the condominium project for the purposes of selling the units and shares in the common property (para. 8). However, the plaintiff does not plead the material fact necessary to meet the definition of 'developer' under the CPA, namely that the developer sells, or offers for sale to the public, units that have not previously been sold to the public. Without this fact, the claim that the defendants breached a duty of fair dealing and a duty to fairly regard the interests of the plaintiff as well as purchasers and prospective purchasers of the condo units does not make sense." - See paragraphs 40 to 46.

Practice - Topic 2110

Pleadings - Amendment of pleadings - Adding new cause of action or "claim" -The plaintiff Condominium Corp. filed a statement of claim against the defendants (Executive Loft Inc. and Worthington Property Inc.), alleging that the defendants breached various fiduciary and contractual obligations and duties of care owed to the plaintiff - The plaintiff alleged that an inspection of the building discovered that the majority of the building components needed replacement at a cost in excess of $500,000 - The plaintiff claimed $1,000,000 in damages and costs - The plaintiff applied to amend the amended statement of claim to, inter alia, to plead the oppression remedy - A Master of the Alberta Court of Queen's Bench dismissed the application - The plaintiff did not state whether it was seeking the oppression remedy under corporate legislation or s. 67(1)(a)(iv) of the Condominium Property Act (CPA) - However, the plaintiff argued the oppression remedy under the Alberta Business Corporations Act (ABCA) - Section 25(5) of the CPA expressly stated that the ABCA did not apply to a condominium corporation - A corporation created under the CPA was a creature of statute and unknown to the common law and to other corporations - Thus, this proposed amendment was not allowed because it was hopeless - Even if the court considered the proposed amendment on its face, then the amendment was still not allowed since it could only be obtained if there is a breach of the statute - Thus, without the proposed amendments claiming a cause of action under the CPA, an amendment to add an oppression remedy did not make sense - See paragraphs 47 and 48.

Practice - Topic 2111

Pleadings - Amendment of pleadings - Prohibition against adding new action or "claim" which is statute barred - The plaintiff Condominium Corp. filed a statement of claim against the defendants (Executive Loft Inc. and Worthington Property Inc.), alleging that the defendants breached various fiduciary and contractual obligations and duties of care owed to the plaintiff - The plaintiff alleged that an inspection of the building discovered that the majority of the building components needed replacement at a cost in excess of $500,000 - The plaintiff claimed $1,000,000 in damages and costs - The plaintiff applied to amend the amended statement of claim to, inter alia, add White, the sole director and voting director and voting shareholder of Worthington and the sole director of Executive, as a defendant in the action - The parties agreed that the two-year limitation period under s. 3 of the Limitations Act had expired - At issue was whether the proposed amendment to add White as a defendant was saved by s. 6(4) of Act - If it was, did it disclose or sufficiently plead a cause of action - A Master of the Alberta Court of Queen's Bench dismissed the application - The plaintiff had satisfied the requirement in s. 6(4)(a) - White, as the director of both defendant corporations, was sufficiently related to the conduct, transaction or event in the original pleading - However, the proposed amendment adding White as a defendant did not sufficiently support a cause of action - The plaintiff had adduced no evidence that White's actions were tortious or exhibited a separate identity or interest from the corporations - The only evidence before the court was that he was the sole director of both defendant corporations at the relevant time - The personal liability of a director could not be inferred merely from the fact of close control of a corporation or general direction - See paragraphs 23 to 39.

Practice - Topic 2121

Pleadings - Amendment of pleadings - Statement of claim - Adding particulars or subsequent facts - The plaintiff Condominium Corp. filed a statement of claim against the defendants (Executive Loft Inc. and Worthington Property Inc.), alleging that the defendants breached various fiduciary and contractual obligations and duties of care owed to the plaintiff - The plaintiff alleged that an inspection of the building discovered that the majority of the building components needed replacement at a cost in excess of $500,000 - The plaintiff claimed $1,000,000 in damages and costs - The plaintiff applied to amend the amended statement of claim to, inter alia, to add the material facts of expertise - Paragraph 7 of the proposed amendment alleged that the defendants held themselves out as having particular expertise, experience and qualifications in the supervision, development and construction of the condominium facilities upon which the plaintiff relied - This appeared to be an additional fact satisfying an element of the cause of action for negligent misrepresentation plead in paragraph 14 of the original statement of claim - A Master of the Alberta Court of Queen's Bench allowed the proposed amendment insofar as it related to the existing corporate defendants - It sought to clarify the claim for negligent misrepresentations in the original statement of claim - The proposed amendment was not allowed as against White (the sole director and voting director and voting shareholder of Worthington and the sole director of Executive) because new evidence, which had not been provided, was needed to support this claim - See paragraphs 49 to 51.

Practice - Topic 2143

Pleadings - Amendment of pleadings - Circumstances when amendment denied - [See both Practice - Topic 2110 and Practice - Topic 2111 ].

Cases Noticed:

Balm v. 3512061 Canada Ltd. et al. (2003), 327 A.R. 149; 296 W.A.C. 149; 2003 ABCA 98, refd to. [para. 16].

Mikisew Cree First Nation v. Canada et al. (2002), 303 A.R. 43; 273 W.A.C. 43; 2 Alta. L.R.(4th) 1; 2002 ABCA 110, refd to. [para. 17].

Waquan v. Canada - see Mikisew Cree First Nation v. Canada et al.

CT Comm Edmonton Ltd. v. Shaw Communications Inc. et al. (2007), 423 A.R. 338; 2007 ABQB 473, refd to. [para. 17].

Marin v. Rask (2000), 282 A.R. 308; 2000 ABQB 931, refd to. [para. 18].

Hunter Financial Group Ltd. et al. v. Maritime Life Assurance Co. (2007), 428 A.R. 150; 2007 ABQB 263, refd to. [para. 20].

Stout Estate et al. v. Golinowski Estate et al. (2002), 299 A.R. 13; 266 W.A.C. 13; 2002 ABCA 49, refd to. [para. 20].

Marlborough Ford Sales Ltd. v. Ford Motor Co. of Canada Ltd. (2003), 13 Alta. L.R.(4th) 336; 2003 ABQB 298, refd to. [para. 20].

Alberta v. Canadian National Railway Co. et al. (2001), 309 A.R. 157; 2001 ABQB 984, refd to. [para. 20].

Royal Trust Corp. of Canada v. Lodge at Waterton Lakes Inc. et al. (2005), 389 A.R. 391; 2005 ABQB 775 (Master), refd to. [para. 31].

Stolk v. 382779 Alberta Inc. et al. (2005), 383 A.R. 203; 2005 ABQB 440, refd to. [para. 31].

Greentree et al. v. Martin et al. (2004), 369 A.R. 263; 2004 ABQB 365, refd to. [para. 31].

Calgary Mack Sales Ltd. v. Shah et al. (2005), 380 A.R. 195; 363 W.A.C. 195; 2005 ABCA 304, refd to. [para. 32].

Slattery (Bankrupt) v. Slattery, [1993] 3 S.C.R. 430; 158 N.R. 341; 139 N.B.R.(2d) 246; 357 A.P.R. 246, refd to. [para. 32].

Blacklaws et al. v. 470433 Alberta Ltd. (2000), 261 A.R. 28; 225 W.A.C. 28; 2000 ABCA 175, refd to. [para. 37].

Blacklaws v. Morrow - see Blacklaws et al. v. 470433 Alberta Ltd.

Montreal Trust Co. of Canada et al. v. ScotiaMcLeod Inc. et al. (1995), 87 O.A.C. 129; 26 O.R.(3d) 481 (C.A.), leave to appeal dismissed (1996), 205 N.R. 314; 95 O.A.C. 399 (S.C.C.), refd to. [para. 37].

ScotiaMcLeod Inc. v. Peoples Jewellers Ltd. - see Montreal Trust Co. of Canada et al. v. ScotiaMcLeod Inc. et al.

Mentmore Manufacturing Co. and Rotary Pen Corp. v. National Merchandise Manufacturing Co. et al. (1978), 22 N.R. 161; 89 D.L.R.(3d) 195 (F.C.A.), refd to. [para. 37].

Owners-Condominium Plan No. 0020701 v. Investplan Properties Inc. et al., [2006] A.R. Uned. 192; 57 Alta. L.R.(4th) 310; 2006 ABQB 224, refd to. [para. 44].

Owners-Bare Land Condominium Plan No. 8820814 v. Birchwood Village Greens Ltd. et al. (1998), 235 A.R. 217; 1998 ABQB 1023, refd to. [para. 44].

Counsel:

Jerritt R. Pawlyk (Bishop & McKenzie LLP), for the applicant/plaintiff;

Jonathan Hillson (Fraser Milner Casgrain LLP), for the respondents/defendants.

This application was heard on November 25, 2009, by Breitkreuz, Master, of the Alberta Court of Queen's Bench, Judicial District of Edmonton, who delivered the following reasons for decision on April 7, 2010.

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5 practice notes
  • Owners-Condominium Plan No. 0125764 v. Amber Equities Inc. et al., 2015 ABQB 235
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    • Court of Queen's Bench of Alberta (Canada)
    • February 26, 2015
    ...legal principle that a corporation has a separate legal personality: Condominium Corporation No. 022 5840 v Executive Loft Inc. , 2010 ABQB 232 at para 37. [173] As regards Khoury, the critical issues are when the Condo Corporation first knew, or in the circumstances ought to have known, th......
  • 235049 Alberta Ltd. et al. v. 1102440 Alberta Ltd. et al., (2011) 529 A.R. 229 (QB)
    • Canada
    • Court of Queen's Bench of Alberta (Canada)
    • November 23, 2011
    ...Martin et al. (2004), 369 A.R. 263; 2004 ABQB 365, refd to. [para. 42]. Condominium Corp. No. 022 5840 v. Executive Loft Inc. et al. (2010), 491 A.R. 281; 2010 ABQB 232 (Master), refd to. [para. 42]. Miller (Ed) Sales and Rentals Ltd. v. Caterpillar Tractor Co. et al. (1994), 151 A.R. 1 (Q.......
  • 869120 Alberta Ltd. v. B & G Energy Ltd., [2011] A.R. Uned. 265 (QB)
    • Canada
    • Court of Queen's Bench of Alberta (Canada)
    • March 28, 2011
    ...Life Insurance Co. v. Canada Life Assurance Co. [1996] O. J. No. 1568 and the Condominium Corporation No. 0225840 v. Executive Loft Inc . 2010 ABQB 232 cases are both good examples of where the courts did not allow individual defendants to be added into claims involving corporate disputes. ......
  • Nystrom v. Ranson et al., [2011] A.R. Uned. 188 (QBM)
    • Canada
    • Court of Queen's Bench of Alberta (Canada)
    • February 24, 2011
    ...will make upon the examinee, and, finally, a balancing of the potential expense against the good achieved. [7] In Feniak v. Backhouse , 2010 ABQB 232, Madam Justice Read said, at para. 15: I accept as a general premise that the risk of harm to a Plaintiff is valid consideration for a Court ......
  • Request a trial to view additional results
5 cases
  • Owners-Condominium Plan No. 0125764 v. Amber Equities Inc. et al., 2015 ABQB 235
    • Canada
    • Court of Queen's Bench of Alberta (Canada)
    • February 26, 2015
    ...legal principle that a corporation has a separate legal personality: Condominium Corporation No. 022 5840 v Executive Loft Inc. , 2010 ABQB 232 at para 37. [173] As regards Khoury, the critical issues are when the Condo Corporation first knew, or in the circumstances ought to have known, th......
  • 235049 Alberta Ltd. et al. v. 1102440 Alberta Ltd. et al., (2011) 529 A.R. 229 (QB)
    • Canada
    • Court of Queen's Bench of Alberta (Canada)
    • November 23, 2011
    ...Martin et al. (2004), 369 A.R. 263; 2004 ABQB 365, refd to. [para. 42]. Condominium Corp. No. 022 5840 v. Executive Loft Inc. et al. (2010), 491 A.R. 281; 2010 ABQB 232 (Master), refd to. [para. 42]. Miller (Ed) Sales and Rentals Ltd. v. Caterpillar Tractor Co. et al. (1994), 151 A.R. 1 (Q.......
  • 869120 Alberta Ltd. v. B & G Energy Ltd., [2011] A.R. Uned. 265 (QB)
    • Canada
    • Court of Queen's Bench of Alberta (Canada)
    • March 28, 2011
    ...Life Insurance Co. v. Canada Life Assurance Co. [1996] O. J. No. 1568 and the Condominium Corporation No. 0225840 v. Executive Loft Inc . 2010 ABQB 232 cases are both good examples of where the courts did not allow individual defendants to be added into claims involving corporate disputes. ......
  • Nystrom v. Ranson et al., [2011] A.R. Uned. 188 (QBM)
    • Canada
    • Court of Queen's Bench of Alberta (Canada)
    • February 24, 2011
    ...will make upon the examinee, and, finally, a balancing of the potential expense against the good achieved. [7] In Feniak v. Backhouse , 2010 ABQB 232, Madam Justice Read said, at para. 15: I accept as a general premise that the risk of harm to a Plaintiff is valid consideration for a Court ......
  • Request a trial to view additional results

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