Crawford et al. v. Acta General Inc. et al., 2007 ABQB 338

• Judge: Thomas, J.
• Court: Court of Queen's Bench of Alberta (Canada)
• Case Date: March 21, 2007
• Citations: 2007 ABQB 338;(2007), 444 A.R. 234 (QB)

Crawford v. Acta General Inc. (2007), 444 A.R. 234 (QB)

MLB headnote and full text

Temp. Cite: [2007] A.R. TBEd. NO.081

Doris Crawford, Doris Derko, Ruth Kanter and Ray Lane, Clara Kennedy, Mary Guthrie, Katherine Mann, Lindsay Miller and Margaret Miller, Mary A. Myrdall, Gwyneth Peel, Annie Purich, Francis Rozumniak and Walter Rozumniak, and Zinia Tymchuk (plaintiffs) v. Acta General Inc., Kit Leitch, Robert Stuve, Robert Miller, G.S. Engineering Ltd., Gregory Shvartsburd, The City of Edmonton, Allen Wasnea Engineering Ltd., Allen Wasnea, GMH Architects, Agnes Slavik, Joe Doe, Jane Doe, David Hamilton, David Hamilton Architect Ltd., TWS Engineering Ltd., Terry W. Smith, Niot Developments Inc. (defendants) and Acta General Inc., Kit Leitch, Robert Stuve, Robert Miller, Niot Developments Inc., G.S. Engineering Ltd., Gregory Shvartsburd, The City of Edmonton, Allen Wasnea Engineering Ltd., Allen Wasnea, GMH Architects, David Hamilton, David Hamilton Architect Ltd., TWS Engineering Ltd., Terry W. Smith, John Doe 2, John Doe 3, John Doe 4, XXX Ltd., YYY Ltd., ZZZ Ltd., and 122295 Holdings Ltd. (third parties)

(0303 08246)

The Owners Condominium Plan 9320022, also known as Fulton Court Condominium Corporation, Paul Balash and Shirley Balash, Raymond Barth and Joan Barth, John Basaraba, Mary Beaton, Frances Begg, Lawrence Boon and Theresa Boon, Emiline Bradley, Executrix of the Estate of Walter Bradley, Lois Brooks, Elsie Campbell, Louise Campbell, Margaret Campbell, Elizabeth M. Carson, Robert J. Coulson, Trevor David Craddock, Jean Lorraine Cram, Mary Drebit, Florence Duley and Merlin D. Wideman, Richard Donald Eldridge and Mary Eldridge, James Ellis, Nadine Fodchuk, Kenneth Donald Forbes, Noel Gomes and Elsie Gomes, Alois Hafner and Anna Hafner, Frank Howell, D.R. Lawrence Professional Corporation, Wanda Marie Jacubo, Robert Jago, Grace Kokolski, Lavone Kokolsky, Beatrice Koss, Mary Koss, Donald Mayne and Helen Mayne, Hugh McColeman, Rose Berry McDonald and Lloyd McDonald, Cindy Ann McKay, Leslie McKellor and Ella McKellor, Jeanette Melville, Phyllis Miller, Mary Milne, Fred Nash and Marie Nash, Lloyd Ness and Helen Ness, Corinne A. Nowoczin, Gordon Oleschuk and Kathleen Oleschuk, Barbara White, Executrix of the Estate of Elson Olorenshaw, Deceased, Valerie Mackie, Executrix of the Estate of Betty Olson, Deceased, Robert Reid, Annette Richard, Margaret Shearer, Duncan Howard Simmonds, Edward Smith, Jeanne Sproule, Iris Fay Steer, Lillian Stordalsvoll, Muriel Tervonen, Norman Tribe and Kathleen Tribe, Lenora Turtle, Dmytro Ulan and Julia Ulan, Geri Waters, Richard Whitehead and Norma MacNeil (plaintiffs) v. Acta General Inc., Kit Leitch, Robert Stuve, Robert Miller, Niot Developments Inc., Agnes Slavik, G.S. Engineering Ltd., Gregory Shvartsburd, the City of Edmonton, Allen Wasnea Engineering Ltd., Allen Wasnea, CMH Architects, David Hamilton, David Hamilton Architect Ltd., TWS Engineering Ltd., Terry W. Smith, John Doe 1, John Doe 2, John Doe 3, John Doe 4, XXX Ltd., YYY Ltd. and ZZZ Ltd. (defendants) and Acta General Inc., Kit Leitch, Robert Stuve, Robert Miller, Niot Developments Inc., G.S. Engineering Ltd., Gregory Shvartsburd, The City of Edmonton, Allen Wasnea Engineering Ltd., Allen Wasnea, GMH Architects, David Hamilton, David Hamilton Architect Ltd., TWS Engineering Ltd., Terry W. Smith, John Doe 2, John Doe 3, John Doe 4, XXX Ltd., YYY Ltd., and 122295 Holdings Ltd. (third parties)

(0303 08299; 2007 ABQB 338)

Indexed As: Crawford et al. v. Acta General Inc. et al.

Alberta Court of Queen's Bench

Judicial District of Edmonton

Thomas, J.

June 4, 2007.

Summary:

The plaintiffs in two actions were the owners of condominium units that were damaged by a fire on May 9, 2001. The plaintiffs sued, inter alia, the defendant Slavik, alleging that she negligently caused the fire. They also sued the City of Edmonton alleging that it failed to properly inspect design plans and the final construction of the building. Slavik third partied the City. Slavik moved to amend her third party notices to allege negligent firefighting by the City's Emergency Response Department (ERD).

The Alberta Court of Queen's Bench dismissed the motion. The potential liability of the ERD was discoverable as of January 29, 2003, the date when Slavik was provided with ERD's records concerning the fire (fire investigation report, report respecting fire crew activities, etc.). The proposed amendment was not brought within the applicable two year limitation period. The proposed amendments constituted a new claim (negligent firefighting) which were unrelated to the conduct, transactions or events described in the original claims (negligent inspection of designs and building). There was no rational connection between the old pleas and the new pleas against the City.

Limitation of Actions - Topic 15

General principles - Discoverability rule - Application of - The plaintiffs in two actions were the owners of condominium units that were damaged by a fire on May 9, 2001 - They sued, inter alia, the defendant Slavik, alleging that she negligently caused the fire - They also sued the City of Edmonton alleging that it negligently approved design plans and construction of the building - Slavik third partied the City - Slavik moved to amend her third party notices to allege negligent firefighting by the City's Emergency Response Department (ERD) - The Alberta Court of Queen's Bench dismissed the motion - The potential liability of the ERD was discoverable as of January 29, 2003, the date when Slavik was provided with ERD's records concerning the fire - Slavik's lawyers chose not to submit that information to an expert - The proposed amendments were not brought within the applicable two year limitation period - They could not be restored under s. 6(4) of the Limitations Act as they constituted a new claim which was unrelated to the conduct, transactions or events described in the original claims (negligent design plans and construction approval) - There was no rational connection between the old pleas and the new pleas against the City - The fact that there was "one fire" was not determinative of the issue.

Limitation of Actions - Topic 9305

Postponement or suspension of statute - General - Discoverability rule - [See Limitation of Actions - Topic 15 ].

Practice - Topic 2111

Pleadings - Amendment of pleadings - Prohibition against adding new action or "claim" which is statute barred - [See Limitation of Actions - Topic 15 ].

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. 19].

C.H.S. et al. v. Director of Child Welfare (Alta.) (2006), 403 A.R. 103; 2006 ABQB 528, refd to. [para. 19].

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 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].

RaiLink - see Alberta v. Canada National Railway Co.

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. 24].

De Shazo v. Nations Energy Co. et al. (2005), 367 A.R. 267; 346 W.A.C. 267; 2005 ABCA 241, refd to. [para. 25].

Dean v. Kociniak et al. (2001), 289 A.R. 201; 2001 ABQB 412, refd to. [para. 25].

James H. Meek Trust et al. v. San Juan Resources Inc. et al. (2005), 376 A.R. 202; 360 W.A.C. 202; 2005 ABCA 448, refd to. [para. 26].

Saxton v. Credit Union Deposit Guarantee Corp. et al. (2004), 370 A.R. 10; 2004 ABQB 631, refd to. [para. 26].

Hill v. Registrar of South Alberta Land Registration District (1993), 135 A.R. 266; 33 W.A.C. 266 (C.A.), refd to. [para. 26].

Callihoo et al. v. Canada (Minister of Indian Affairs and Northern Development) et al. (2006), 402 A.R. 1; 2006 ABQB 1, refd to. [para. 26].

Michel First Nation v. Canada (Minister of Indian Affairs) - see Callihoo et al. v. Canada (Minister of Indian Affairs and Northern Development) et al.

Goldencare Holdings Inc. v. Chugh (Manu) Architect Ltd., [2006] A.R. Uned. 670; 2006 ABQB 696, refd to. [para. 28].

Elbow Valley Joint Venture Corp. v. Walker, Newby & Partners Inc. et al., [2003] A.R. Uned. 330; 2003 ABQB 419, refd to. [para. 34].

Greentree et al. v. Martin et al. (2004), 369 A.R. 263; 2004 ABQB 365, refd to. [para. 38].

Stolk v. 382779 Alberta Inc. et al. (2005), 383 A.R. 203; 2005 ABQB 440, refd to. [para. 38].

Calgary Mack Sales Ltd. v. Shah et al. (2005), 380 A.R. 195; 363 W.A.C. 195; 2005 ABCA 304, refd to. [para. 38].

McLaughlin v. Broddy (2006), 405 A.R. 268; 2006 ABQB 914, refd to. [para. 38].

W.R. v. Alberta (Attorney General) et al. (2006), 391 A.R. 91; 377 W.A.C. 91; 2006 ABCA 219, refd to. [para. 42].

Statutes Noticed:

Limitations Act, R.S.A. 2000, c. L-12, sect. 6(4) [para. 36].

Authors and Works Noticed:

Alberta, Institute of Law Research and Reform, Report of Limitations, Report No. 55 (1989), generally [para. 42].

Counsel:

J. Robert Black, Q.C. (Brownlee LLP), for the applicant/defendant, Agnes Slavik;

Walter A. Olinyk and Cameron J. Ashmore (City of Edmonton Law Branch), for the third party/respondent, City of Edmonton.

This motion was heard on March 21, 2007, by Thomas, J., of the Alberta Court of Queen's Bench, Judicial District of Edmonton, who delivered the following judgment on June 4, 2007.