Condominium Corp. No. 9813678 et al. v. Statesman Corp. et al., 2009 ABQB 148

• Judge: J.D.B. McDonald, J.
• Court: Court of Queen's Bench of Alberta (Canada)
• Case Date: March 04, 2009
• Citations: 2009 ABQB 148;(2009), 450 A.R. 309 (QB)

Condo. Corp. 9813678 v. Statesman Corp. (2009), 450 A.R. 309 (QB)

MLB headnote and full text

Temp. Cite: [2009] A.R. TBEd. MR.072

Condominium Corporation No. 9813678, Condominium Corporation No. 0013062, Condominium Corporation No. 9911158, Condominium Corporation No. 9911560, Condominium Corporation No. 0112632, Mary Vanderogt, Catherine Sliwa, Trevor MacFarlane, Kirk McFee, Terry S. Shibley, Rob Watson, Charles Gray, Norma Gray, Lloyd B. MacDonald, Scott James Francis, Harry Radomsky, Danielle Marchant, Michael Klassen, Douglas A. Pounder, Pierre Schrifee, Paul Foley, Leo Bouckhout, Richard Dyjack, James Smith, Pamela Smith, Stephanie Bischsel, Bernie Rabwowich, Susan Rabwowich, Ryan Birmingham, Alberta Wireless 2002 Inc., John Boehm, David MacMartin, Jack Clayton, Audrey Clayton, Tom Pearson, Kathleen Millard, Jason Salmon, Michael Morrison, Michael Johnson-Stewart, Tanya Johnson-Stewart, Raymond Daniels, Andrew Course, Cathy O'Bright and Brian David Hassett (plaintiffs) v. Statesman Corporation, 893137 Alberta Ltd. formerly known as Statesman Construction Corporation and the said Statesman Construction Corporation, The City of Calgary, Burgener Kilpatrick Design International also known as BKDI Architects and formerly known as BLK Architects and the said BKDI Architects and BLK Architects, Peter G. Burgener, Graham Harmswoth Lai & Associates Ltd., David Graham, The Advanced Group Calgary Ltd., Advanced Waterproofing Inc. carrying on business under the trade name and/or style of The Advanced Group Calgary and the said Advanced Waterproofing Inc., Michael Adams carrying on business under the trade name and/or style of The Advanced Group Calgary, Michael Adams carrying on business under the trade name and/or style of Delta-Protech Membrane Installations, Calvin Schieve carrying on business under the trade name and/or style of Delta-Protech Membrane Installations, Dean Sziva carrying on business under the trade name and/or style of Cactus Waterproofing & Roofing and Karl Swan (defendants)

(0401 05018; 2009 ABQB 148)

Indexed As: Condominium Corp. No. 9813678 et al. v. Statesman Corp. et al.

Alberta Court of Queen's Bench

Judicial District of Calgary

J.D.B. McDonald, J.

March 9, 2009.

Summary:

Statesman Corp. was the developer and general contractor of four condominium properties, three of which were completed. On May 30, 2002, a fire in the fourth property, allegedly caused by the negligence of a subcontractor during construction, caused extensive damage. The plaintiffs represented a number of the condominium corporations affected by the fire as well as numerous individuals who owned units in the general area of the fire. They claimed an agreed upon amount of $25,325,853.58 in damages. At the conclusion of Statesman's case, the city applied under rule 260 for dismissal of the claim (nonsuit) as against it.

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

Editor's note: There are a number of reported decisions relating to these parties.

Municipal Law - Topic 1704

Liability of municipalities - General and definitions - Bad faith - [See first Practice - Topic 5390.1 ].

Practice - Topic 2106

Pleadings - Amendment of pleadings - Power of the court to amend - [See Practice - Topic 5389 ].

Practice - Topic 5389

Dismissal of action - Application or motion for dismissal - Nonsuit - At close of plaintiff's case - Procedure - Statesman Corp. was the developer and general contractor of four condominium properties, three of which were completed - A fire in the fourth property, allegedly caused by the negligence of a subcontractor during construction, caused extensive damage - The plaintiffs represented a number of the condominium corporations affected by the fire as well as numerous individual unit owners - They claimed an agreed upon amount of $25,325,853.58 in damages - The claim against the city alleged that the city had improperly approved a deficient design and that, but for the city's negligent approval, the fire would not have occurred - At the conclusion of Statesman's case, the city applied under rule 260 for dismissal of the claim (nonsuit) as against it - The city asserted that, under s. 12 of the Safety Codes Act, no action lay against it because the plaintiffs had adduced no evidence to prove bad faith by the city or its officials - The Alberta Court of Queen's Bench dismissed the application - The court held that, in this situation, it was proper to amend the pleadings to reflect that the real question in issue was bad faith by the city - The court noted that the plaintiffs' counsel had made "very explicit comments" in his opening statement and the city had expressly raised the good faith defence in its pleadings - Accordingly, the application was to be decided based on "the true nature of the claims" - See paragraphs 21 to 28.

Practice - Topic 5390

Dismissal of action - Application or motion for dismissal - Nonsuit - At close of plaintiff's case - Evidence and proof - The Alberta Court of Queen's Bench stated that the test to be applied in an application for a nonsuit under rule 260 was "(a) an order for dismissal should only be granted in the clearest of cases; (b) the Court must assume that all of the Plaintiffs' evidence is correct; (c) there must be no evidence, which if believed and not contradicted, would support a finding in favour of the Plaintiffs; and (d) the application does not involve the weighing of evidence, the believability of the evidence or the assessment of credibility. That is, the Court should not decide whether or not a jury will accept the evidence." - See paragraphs 17 to 20.

Practice - Topic 5390.1

Dismissal of action - Application or motion for dismissal - Nonsuit - At close of plaintiff's case - When available (incl. grounds) - Statesman Corp. was the developer and general contractor of four condominium properties, three of which were completed - A fire in the fourth property, allegedly caused by the negligence of a subcontractor during construction, caused extensive damage - The plaintiffs represented a number of the condominium corporations affected by the fire as well as numerous individual unit owners - They claimed an agreed upon amount of $25,325,853.58 in damages - The claim against the city alleged that the city had improperly approved a deficient design and that, but for the city's negligent approval, the fire would not have occurred - At the conclusion of Statesman's case, the city applied under rule 260 for dismissal of the claim (nonsuit) as against it - The city asserted that, under s. 12 of the Safety Codes Act, no action lay against it because the plaintiffs had adduced no evidence to prove bad faith by the city or its officials - The Alberta Court of Queen's Bench dismissed the application - There was some evidence on which a properly instructed trier of fact could hold that there was bad faith by the city - This included the fact that a city official adopted the role of proponent of a proposal under which the buildings would include "additional safety measures" and that, having developed the proposal in question, he then approved it such that a building permit was issued - Further, there was evidence that the developer of a similar project was not allowed to construct similar buildings, but was forced to adhere to a more literal interpretation of the Building Code - See paragraphs 59 to 72.

Practice - Topic 5390.1

Dismissal of action - Application or motion for dismissal - Nonsuit - At close of plaintiff's case - When available (incl. grounds) - Statesman Corp. was the developer and general contractor of four condominium properties, three of which were completed - A fire in the fourth property, allegedly caused by the negligence of a subcontractor during construction, caused extensive damage - The plaintiffs represented a number of the condominium corporations affected by the fire as well as numerous individual unit owners - They claimed an agreed upon amount of $25,325,853.58 in damages - The claim against the city alleged that the city had improperly approved a deficient design (five stories of combustible material) and that, but for the city's negligent approval, the fire would not have occurred - At the conclusion of Statesman's case, the city applied under rule 260 for dismissal of the claim (nonsuit) as against it - The city asserted that nothing in the evidence established a causal link between its actions and the subsequent fire - The plaintiffs pointed to the city's treatment of a similar project where the developer was required to construct the first residential storey of concrete and the remaining four stories of combustible material and asserted that if the Statesman project had been treated similarly, the fire would not have occurred - The Alberta Court of Queen's Bench dismissed the city's application - All that the plaintiffs had to do to successfully resist the application was to adduce some evidence that, if believed and uncontradicted, would support a finding in their favour on causation - They had done so - See paragraphs 73 to 84.

Torts - Topic 65

Negligence - Causation - Evidence and proof - [See second Practice - Topic 5390.1 ].

Cases Noticed:

Waap v. Alberta et al., [2008] A.R. Uned. 604; 95 Alta. L.R.(4th) 167; 2008 ABQB 544, refd to. [para. 15].

Holtslag v. Alberta (2004), 350 A.R. 161; 28 Alta. L.R.(4th) 284; 2004 ABQB 268, affd. (2006), 380 A.R. 133; 363 W.A.C. 133; 55 Alta. L.R.(4th) 214; 2006 ABCA 51, refd to. [para. 15].

Walton International Group Inc. v. Rocky View No. 44 (Municipal District) et al., [2007] A.R. Uned. 6; 2007 ABCA 21, refd to. [para. 15].

Edwards et al. v. Law Society of Upper Canada et al. (2000), 133 O.A.C. 286; 48 O.R.(3d) 329; 188 D.L.R.(4th) 613 (C.A.), affd. [2001] 3 S.C.R. 562; 277 N.R. 145; 153 O.A.C. 388, refd to. [para. 15].

Guccione v. Alberta Veterinary Medical Association et al. (1997), 207 A.R. 331 (Q.B.), refd to. [para. 15].

Medicine Hat (City) et al. v. Wilson et al. (2000), 271 A.R. 96; 234 W.A.C. 96; 87 Alta. L.R.(3d) 25; 2000 ABCA 247, refd to. [para. 15].

Henkelman v. Guy et al., [2008] A.W.L.D. 1220; 439 A.R. 115; 2008 ABQB 66, refd to. [para. 15].

Cooper v. Registrar of Mortgage Brokers (B.C.) et al. (2000), 135 B.C.A.C. 266; 221 W.A.C. 266; 2000 BCCA 151, affd. [2001] 3 S.C.R. 537; 277 N.R. 113; 160 B.C.A.C. 268; 261 W.A.C. 268; [2002] 1 W.W.R. 221, refd to. [para. 15].

Cooper v. Hobart - see Cooper v. Registrar of Mortgage Brokers (B.C.) et al.

Trosin et al. v. Sikora et al. (2005), 376 A.R. 173; 360 W.A.C. 173; 2005 ABCA 410, refd to. [para. 15].

Stewart v. Pettie et al., [1995] 1 S.C.R. 131; 177 N.R. 297; 162 A.R. 241; 83 W.A.C. 241; 25 Alta. L.R.(3d) 297, refd to. [para. 15].

Belzil v. Bain et al. (2001), 300 A.R. 72; 2001 ABQB 890, refd to. [para. 16].

Kainth v. Capital Health Authority et al. (2006), 402 A.R. 211; 2006 ABQB 401, refd to. [para. 16].

Foley v. Administrator, Motor Vehicle Accident Claims Act (Alta.) et al. (2002), 330 A.R. 1; 299 W.A.C. 1; 2002 ABCA 297, refd to. [para. 16].

Litemor Distributors (Edmonton) Ltd. v. Midwest Furnishings & Supplies Ltd. (2005), 379 A.R. 102; 2005 ABQB 520, refd to. [para. 16].

Enterprises Sibeca Inc. v. Frelighsburg (Municipalité), [2004] 3 S.C.R. 304; 325 N.R. 345, refd to. [para. 16].

Roncarelli v. Duplessis, [1959] S.C.R. 121, refd to. [para. 16].

McCullock-Finney v. Barreau du Québec, [2004] 2 S.C.R. 17; 321 N.R. 361, refd to. [para. 16].

Hanke v. Resurfice Corp. et al., [2007] 1 S.C.R. 333; 357 N.R. 175; 404 A.R. 333; 394 W.A.C. 333; 69 Alta. L.R.(4th) 1; 2007 SCC 7, refd to. [para. 16].

McClelland et al. v. Stewart et al. (2004), 204 B.C.A.C. 150; 333 W.A.C. 150; 2004 BCCA 458, refd to. [para. 16].

McArdle Estate v. Cox et al., [2003] 6 W.W.R. 264; 327 A.R. 129; 296 W.A.C. 129; 2003 ABCA 106, refd to. [para. 59].

Anns v. Merton London Borough Council, [1978] A.C. 728 (H.L.), refd to. [para. 60].

Snell v. Farrell, [1990] 2 S.C.R. 311; 110 N.R. 200; 107 N.B.R.(2d) 94; 267 A.P.R. 94, refd to. [para. 74].

Athey v. Leonati et al., [1996] 3 S.C.R. 458; 203 N.R. 36; 81 B.C.A.C. 243; 132 W.A.C. 243, refd to. [para. 74].

Walker Estate et al. v. York Finch General Hospital et al., [2001] 1 S.C.R. 647; 268 N.R. 68; 145 O.A.C. 302, refd to. [para. 74].

Blackwater et al. v. Plint et al., [2005] 3 S.C.R. 3; 339 N.R. 355; 216 B.C.A.C. 24; 356 W.A.C. 24, refd to. [para. 74].

Counsel:

Donald Chernichen, Q.C. (Burnet, Duckworth & Palmer) and James W. Rose, Q.C. (Fraser Milner Casgrain LLP), for the plaintiffs;

Lise Olsen and Colleen Sinclair (The City of Calgary), and Norman K. Machida, Q.C. (Machida Mack Shewchuk LLP), for the defendants.

This application was heard on March 4, 2009, by J.D.B. McDonald, J., of the Alberta Court of Queen's Bench, Judicial District of Calgary, who delivered the following reasons for decision on March 9, 2009.