Owners-Condominium Plan No. 9421549 v. Main Street Developments Ltd. et al.,

• Judge: Clackson, J.
• Neutral Citation: 2004 ABQB 962
• Citation: (2004), 365 A.R. 162 (QB),2004 ABQB 962,365 AR 162,41 Alta LR (4th) 386,(2004), 365 AR 162 (QB),365 A.R. 162
• Date: 03 November 2004
• Court: Court of Queen's Bench of Alberta (Canada)

Condo Plan 9421549 v. Main Street Dev. (2004), 365 A.R. 162 (QB)

MLB headnote and full text

Temp. Cite: [2005] A.R. TBEd. JA.031

The Owners of Condominium Plan 9421549 (plaintiff/respondent) v. Main Street Developments Ltd., the City of Edmonton, Jim Mackey, Sven E. Hage and Sven E. Hage Carrying on Business as Jacobsen Hage Engineering, TWS Engineering Ltd., David Hamilton Architect Ltd. and David Hamilton Operating as GMH Architects, A. & B. Concrete Pumping Ltd., Twin City Excavating Ltd., Lenbeth Developments Ltd., Leduc Truss (1981) Ltd., Alberta Truss Ltd., Peter Lafreniere Construction Ltd., H & H Stucco & Siding Ltd., Bacz Engineering Ltd. and Zygmunt Baczynski, Shelby Engineering Ltd., Deford Holdings Ltd., Mitek Canada Inc., Trus Joist Macmillan Limited, Carrington Properties Ltd., 563947 Alberta Ltd., 563948 Alberta Ltd., National Home Warranty Programs, the Alberta New Home Warranty Program and Hearthstone Management Inc. (defendants/applicants) and Main Street Developments Ltd., the City of Edmonton, Jim Mackey, Sven E. Hage and Sven E. Hage Carrying on Business as Jacobsen Hage Engineering, TWS Engineering Ltd., David Hamilton Architect Ltd. and David Hamilton Operating as GMH Architects, A. & B. Concrete Pumping Ltd., Twin City Excavating Ltd., Lenbeth Developments Ltd., Leduc Truss (1981) Ltd., Alberta Truss Ltd., Peter Lafreniere Construction Ltd., H & H Stucco & Siding Ltd., Bacz Engineering Ltd. and Zygmunt Baczynski, Shelby Engineering Ltd., Deford Holdings Ltd., Mitek Canada Inc., Trus Joist Macmillan Limited, Carrington Properties Ltd., 563947 Alberta Ltd., 563948 Alberta Ltd., National Home Warranty Programs, the Alberta New Home Warranty Program and Hearthstone Management Inc., Double B Enterprises Ltd., Charles Bauman carrying on business as Double D Framers, Master Mechanical Plumbing & Heating (1986) Ltd., William Yeremly carrying on business as Yerniuk Construction and Jetco Mechanical (third parties)

(0103 12052; 2004 ABQB 962)

Indexed As: Owners-Condominium Plan No. 9421549 v. Main Street Developments Ltd. et al.

Alberta Court of Queen's Bench

Judicial District of Edmonton

Clackson, J.

December 21, 2004.

Summary:

The plaintiff sued the defendants for breach of statutory duty, negligence, breach of contract and nuisance in relation to de­ficiencies in two condominium buildings. Seven defendants applied to summarily dismiss the plaintiff's claim on the ground that it was time barred as it was discoverable more than two years before the date on which the plaintiff sued.

The Alberta Court of Queen's Bench granted the application and dismissed the plaintiff's action against those defendants.

Limitation of Actions - Topic 9305

Postponement or suspension of statute - Discoverability rule - The defendants ap­plied to summarily dismiss the plaintiff's claim against them on the ground that it was time barred as it was discoverable more than two years before the plaintiff's action was commenced - The Alberta Court of Queen's Bench discussed the is­sues of onus and proof on a rule 162 appli­cation to summarily dismiss a plain­tiff's claim on the ground that it was time barred - See paragraphs 11 to 19.

Limitation of Actions - Topic 9305

Postponement or suspension of statute - Discoverability rule - The plaintiff sued the defendants in relation to deficiencies in two condominium buildings - The defen­dants applied to summarily dismiss the plaintiff's claim on the ground that it was time barred as it was discoverable more than two years before May 25, 2001, the date on which the plaintiff sued - The Alberta Court of Queen's Bench allowed the defendants' application - With respect to the question of when the plaintiff knew or ought to have known of the responsible parties (Limitations Act, s. 3(1)(a)(ii)), the court held that with the exercise of rea­sonable diligence the parties to the action were readily discoverable well before May 25, 1999 - Knowing that there was water in the crawl space of the two buildings, it would have been reasonable for the plain­tiff to name any party that might be re­sponsible - See paragraph 74.

Limitation of Actions - Topic 9305

Postponement or suspension of statute - Discoverability rule - The plaintiff sued the defendants, including the City of Edmon­ton, in relation to deficiencies in two con­dominium buildings - The defendants ap­plied to summarily dismiss the plaintiff's claim on the ground that it was time barred as it was discoverable more than two years before May 25, 2001, the date on which the plaintiff sued - The Alberta Court of Queen's Bench allowed the defendants' ap­plication - The court rejected the plain­tiff's argument that the City did not be­come a discoverable defendant until the plaintiff knew that the City had failed in its inspec­tion duties and that the failure led to the injuries - The plaintiff knew by February 1999 that there were Building Code infrac­tions - It would have been reasonable to assume that there had been inspections and to therefore name the City as a defendant -Actual knowledge that the City failed in its duty of inspection was not required - It was enough that the al­leged negligence was discoverable by the exercise of rea­sonable diligence - See paragraphs 75 to 77.

Limitation of Actions - Topic 9305

Postponement or suspension of statute - Discoverability rule - The plaintiff sued the defendants in relation to deficiencies in two condominium buildings - The defen­dants applied to summarily dismiss the plaintiff's claim on the ground that it was time barred as it was discoverable more than two years before May 25, 2001, the date on which the plaintiff sued - With respect to the issue of the plaintiff's knowledge of the occurrence of the injury (Limitations Act, s. 3(1)(a)(i)), the Alberta Court of Queen's Bench found that the plaintiff knew before May 25, 1999, that the buildings suffered from moisture prob­lems and knew of the potential sequela if the problems were not rectified - Perfect knowledge of the injury was not required -It was obvious that there was a problem and that there was damage or at least the real potential for damage if the problem was not addressed - That was enough - See paragraphs 53 to 56.

Limitation of Actions - Topic 9305

Postponement or suspension of statute - Discoverability rule - The plaintiff sued the defendants in relation to deficiencies in two condominium buildings - The defen­dants applied to summarily dismiss the plaintiff's claim on the ground that it was time barred as it was discoverable more than two years before the date on which the plaintiff sued - The plaintiff argued that the obligation to seek to identify pro­spective defendants (Limitations Act, s. 3(1)(a)(ii)) did not arise until a plaintiff knew that the injury warranted bringing a proceeding (s. 3(1)(a)(iii)) - The Alberta Court of Queen's Bench agreed that the search for defendants was suspended until the plaintiff knew or ought to have known that the injury "warrants bringing a pro­ceeding" - That assessment involved a consideration of the seriousness of the injury - See paragraphs 57 to 62.

Limitation of Actions - Topic 9305

Postponement or suspension of statute - Discoverability rule - The Alberta Court of Queen's Bench stated that the question of whether an injury warranted bringing a proceeding (Limitations Act, s. 3(1)(a)(iii)) "is not strictly an issue of fault, nor even potential economic gain. What warrants proceedings embraces a consideration of the extent of the injury in comparison to the economics of prospective action. This assessment involves a blended objective/ subjective analysis" - The court stated that it had to put itself in the plain­tiff's shoes and consider its knowledge or the knowl­edge it ought to have had at the time - The court was then to assess at what point the plaintiff, in light of its personal cir­cumstances, could reasonably have brought an action - See paragraphs 63 to 69.

Limitation of Actions - Topic 9305

Postponement or suspension of statute - Discoverability rule - The Alberta Court of Queen's Bench held that the analytical framework in s. 3(1)(a) of the Limitations Act applied to the determination of dis­coverability under s. 2 of the Act - See paragraphs 5 to 10.

Practice - Topic 5710

Judgments and orders - Summary judg­ments - Evidence - [See first Limitation of Actions - Topic 9305 ].

Practice - Topic 5715

Judgments and orders - Summary judg­ments - Burden on applicant - [See first Limitation of Actions - Topic 9305 ].

Practice - Topic 5715.1

Judgments and orders - Summary judg­ments - Burden on respondent - [See first Limitation of Actions - Topic 9305 ].

Cases Noticed:

Central Trust Co. v. Rafuse and Cordon, [1986] 2 S.C.R. 147; 69 N.R. 321; 75 N.S.R.(2d) 109; 186 A.P.R. 109, refd to. [para. 9].

Mohr v. 477470 Alberta Ltd., 2003 ABQB 294, refd to. [para. 10].

Malsbury et al. v. Lefthand et al. (2003), 337 A.R. 307; 2003 ABQB 218, refd to. [para. 10].

Allison v. Francescutti et al. (2003), 345 A.R. 345; 2003 ABQB 983, refd to. [para. 10].

J.N. v. G.J.K. et al. (2002), 331 A.R. 380; 2002 ABQB 995, refd to. [para. 10].

J.N. v. G.J.K. et al. (2004), 361 A.R. 177; 339 W.A.C. 177; 2004 ABCA 394, refd to. [para. 10].

732311 Alberta Ltd. v. Paradise Bay Spa & Tub Warehouse Inc. (2003), 332 A.R. 315; 2003 ABQB 228, refd to. [para. 13].

Peixeiro v. Haberman, [1997] 3 S.C.R. 549; 217 N.R. 371; 103 O.A.C. 161, refd to. [para. 55].

Hill v. Registrar of South Alberta Land Registration District (1993), 135 A.R. 266; 33 W.A.C. 266 (C.A.), leave to appeal refused [1994] 1 S.C.R. viii; 170 N.R. 79; 162 A.R. 159; 83 W.A.C. 159, refd to. [para. 55].

Ward v. Taubner (2004), 368 A.R. 95; 9 E.T.R.(3d) 275; 2004 ABQB 565, refd to. [para. 55].

Novak et al. v. Bond, [1999] 1 S.C.R. 808; 239 N.R. 134; 122 B.C.A.C. 161; 200 W.A.C. 161, refd to. [para. 67].

Nielsen v. Kamloops (City) and Hughes, [1984] 2 S.C.R. 2; 54 N.R. 1; [1984] 5 W.W.R. 1; 29 C.C.L.T. 97; 8 C.L.R. 1; 10 D.L.R.(4th) 641, refd to. [para. 76].

Statutes Noticed:

Limitations Act, R.S.A. 2000, c. L-12, sect. 2 [para. 5]; sect. 3(1) [para. 7]; sect. 3(5) [para. 11].

Rules of Court (Alta.), rule 162 [para. 15].

Authors and Works Noticed:

Alberta Law Reform Institute, Report No. 55, pp. 33 [para. 65]; 64 [para. 66].

Counsel:

Louise M.H. Belzil (Shores Belzil Jardine), for the plaintiff;

Walter Olinyk (The City of Edmonton), for the City of Edmonton;

Kenneth Bailey, Q.C. (Parlee McLaws), for David Hamilton Architect Ltd., David Hamilton o/a GMH Architects;

Brian Wallace (Duncan & Craig LLP), for Twin City Excavating Ltd.;

Ross McLeod (Bryan & Company), for Peter Lafreniere Construction Ltd.;

Paul Sharek, Q.C. and Stuart J. Weatherill (Emery Jamieson), for Bacz Engineering Ltd., Zygmunt Baczynski.

This application was heard on November 3, 2004, before Clackson, J., of the Alberta Court of Queen's Bench, Judicial District of Edmonton, who delivered the following reasons for judgment on December 21, 2004.