Gjertsen v. Johnston et al., (2008) 456 A.R. 327 (QB)

• Judge: Veit, J.
• Court: Court of Queen's Bench of Alberta (Canada)
• Case Date: August 13, 2008
• Citations: (2008), 456 A.R. 327 (QB);2008 ABQB 491

Gjertsen v. Johnston (2008), 456 A.R. 327 (QB)

MLB headnote and full text

Temp. Cite: [2008] A.R. TBEd. SE.078

Chad Kristian Gjertsen (plaintiff) v. Chuck Johnston, Ann Johnston, Birdsell Grant Gardner Morck and Michael C. Birdsell (defendants) and Alastair G.M. Grant, Michael C. Birdsell and Birdsell Grant Gardner Morck (third parties)

(at the instance of the Johnston defendants) and Chuck Johnston and Ann Johnston (third parties)

(at the instance of the Birdsell Grant Gardner Morck defendants)

(0603 00942; 2008 ABQB 491)

Indexed As: Gjertsen v. Johnston et al.

Alberta Court of Queen's Bench

Judicial District of Edmonton

Veit, J.

September 19, 2008.

Summary:

In October 2004, Gjertsen purchased property from the Johnstons. The two lawyers who represented Gjertsen and the Johnstons were partners in the same firm. In January 2006, Gjertsen sued the Johnstons and the law firm in negligence in relation to a title defect (a garage that was located on the municipal road allowance). The law firm and the Johnstons filed statements of defence. In February 2007, the Johnstons issued a third party notice to the law firm, alleging negligence and breach of contract. In May 2008, the law firm obtained a Master's order allowing them to file a third party notice against the Johnstons, notwithstanding the expiry of the six month time limit under Rule 66(4). Asserting limitations issues and the lack of a cause of action, the Johnstons applied to strike the third party notice.

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

Estoppel - Topic 327

Estoppel by record (res judicata) - Res judicata as an estoppel - When applicable - In October 2004, Gjertsen purchased property from the Johnstons - The two lawyers who represented Gjertsen and the Johnstons were partners in the same firm - In January 2006, Gjertsen sued the Johnstons and the law firm in negligence in relation to a title defect (a garage that was located on the municipal road allowance) - The law firm and the Johnstons filed statements of defence - In February 2007, the Johnstons issued a third party notice to the law firm, alleging negligence and breach of contract - In May 2008, the law firm obtained a Master's order allowing them to file a third party notice against the Johnstons, notwithstanding the expiry of the six month time limit under Rule 66(4) - Asserting limitations issues and the lack of a cause of action, the Johnstons applied to strike the third party notice - The Alberta Court of Queen's Bench allowed the application - The court rejected the law firm's argument that the application was res judicata based on the Master's leave to file the third party notice - The leave granted by the Master merely relieved the law firm from the timing requirement - A determination of the existence of a cause of action between the law firm and the Johnstons was not fundamental to the Master's decision - Nor did the decision, on its face, purport to be final - The court was not estopped from hearing the application - See paragraphs 11 and 34 to 40.

Estoppel - Topic 386

Estoppel by record (res judicata) - Res judicata as a bar to subsequent proceedings - Issues decided in prior proceedings - [See Estoppel - Topic 327 ].

Practice - Topic 1043

Parties - Third party or subsequent party procedure - General - Application of limitation periods - In October 2004, Gjertsen purchased property from the Johnstons - The two lawyers who represented Gjertsen and the Johnstons were partners in the same firm - In January 2006, Gjertsen sued the Johnstons and the law firm in negligence in relation to a title defect (a garage that was located on the municipal road allowance) - The law firm and the Johnstons filed statements of defence - In February 2007, the Johnstons issued a third party notice to the law firm, alleging negligence and breach of contract - In May 2008, the law firm obtained a Master's order allowing them to file a third party notice against the Johnstons, notwithstanding the expiry of the six month time limit under Rule 66(4) - Asserting limitations issues and the lack of a cause of action, the Johnstons applied to strike the third party notice - The Alberta Court of Queen's Bench allowed the application on the basis that the pleadings disclosed no cause of action - However, the court indicated that if there had been an action in tort pleaded in the third party notice, the court would have allowed it to go forward on the basis of compliance with s. 6(2)(a) of the Limitations Act - See paragraphs 13 and 57 to 68.

Practice - Topic 1138

Parties - Third party or subsequent party procedure - Third party notice - Striking out of - In October 2004, Gjertsen purchased property from the Johnstons - The two lawyers who represented Gjertsen and the Johnstons were partners in the same firm - In January 2006, Gjertsen sued the Johnstons and the law firm in negligence in relation to a title defect (a garage that was located on the municipal road allowance) - The law firm and the Johnstons filed statements of defence - In February 2007, the Johnstons issued a third party notice to the law firm, alleging negligence and breach of contract - In May 2008, the law firm obtained a Master's order allowing them to file a third party notice against the Johnstons, notwithstanding the expiry of the six month time limit under Rule 66(4) - Asserting limitations issues and the lack of a cause of action, the Johnstons applied to strike the third party notice - The Alberta Court of Queen's Bench allowed the application - The third party pleading failed to disclose a cause of action by the law firm against the Johnstons - This was not one of the cases where a given wrong, here the failure to deliver the property promised, supported an action in contract and in tort - There was no suggestion in any of the pleadings that the Johnstons had committed any tort - Nothing suggested a negligent misrepresentation about the garage or a fraudulent statement - If any of the pleadings had contained facts from which it could be discerned that the Johnstons had committed a tort, then the law firm would have had a cause of action against them, which would have been a claim for contribution under the Joint Tort-feasors Act - See paragraphs 12 and 41 to 56.

Practice - Topic 1138

Parties - Third party or subsequent party procedure - Third party notice - Striking out of - [See Estoppel - Topic 327 and Practice - Topic 1043 ].

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, consd. [para. 12].

Canada Deposit Insurance Corp. et al. v. Prisco et al. (1998), 213 A.R. 157; 1998 ABQB 149, refd to. [para. 14].

Agrium Inc. et al. v. Canada et al. (2002), 318 A.R. 355; 2002 ABQB 495, refd to. [para. 14].

Leoppky v. McWilliams (2001), 281 A.R. 281; 248 W.A.C. 281; 2001 ABCA 197, refd to. [para. 14].

Peters v. Remington (2004), 339 A.R. 326; 312 W.A.C. 326; 2004 ABCA 5, refd to. [para. 14].

574095 Alberta Ltd. v. Hamilton Brothers Exploration Co. et al. (2003), 320 A.R. 351; 288 W.A.C. 351; 2003 ABCA 34, refd to. [para. 14].

Dreco Energy Services Ltd. et al. v. Wenzel et al. (2003), 344 A.R. 299; 2003 ABQB 1067, refd to. [para. 14].

Ernst & Young Inc. v. Central Guaranty Trust Co. (2006), 397 A.R. 225; 384 W.A.C. 225; 2006 ABCA 337, refd to. [para. 15].

Brewer's Distributor Ltd. v. 1145127 Alberta Ltd. et al., [2007] A.R. Uned. 399; 2007 ABQB 493, refd to. [para. 15].

Dean v. Kociniak et al. (2001), 289 A.R. 201; 2001 ABQB 412, refd to. [para. 15].

Grenon v. Canada (Attorney General) (2007), 421 A.R. 107; 2007 ABQB 403, refd to. [para. 15].

Alliance Pipeline Limited Partnership et al. v. Franklin (C.E.) Ltd. et al., [2007] A.R. Uned. 536; 64 C.L.R.(3d) 282; 2007 ABQB 582, refd to. [para. 15].

Silliman Construction (Alberta) Ltd. et al. v. Johnson, Ming & Co. et al. (1984), 53 A.R. 369; 31 Alta. L.R.(2d) 285 (C.A.), dist. [para. 15].

Kydd et al. v. Mofoluwaso et al. (2008), 450 A.R. 384; 2008 ABQB 310, refd to. [para. 15].

Kydd v. Abolarin - see Kydd et al. v. Mofoluwaso et al.

Northland Bank v. Willson, [1997] A.J. No. 749, refd to. [para. 15].

Owners-Condominium Plan No. 9512180 v. Prairie Land Corp. et al. (2008), 450 A.R. 384; 2008 ABQB 269, refd to. [para. 15].

BG Checo International Ltd. v. British Columbia Hydro and Power Authority, [1993] 1 S.C.R. 12; 147 N.R. 81; 20 B.C.A.C. 241; 35 W.A.C. 241, consd. [para. 16].

Crawford et al. v. Acta General Inc. et al., (2007), 444 A.R. 234; 81 Alta. L.R.(4th) 387; 2007 ABQB 338, refd to. [para. 16].

Slavik v. Edmonton (City) et al., [2008] A.R. Uned. 38; 86 Alta. L.R.(4th) 110; 2008 ABCA 106, leave to appeal denied (2008), 390 N.R. 386 (S.C.C.), refd to. [para. 16].

Condominium Corp. No. 9813678 et al. v. Statesman Corp. et al. (2008), 450 A.R. 289; 2008 ABQB 495, refd. to. [para. 16].

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. 16].

Calgary Mack Sales Ltd. v. Shah et al. (2005), 380 A.R. 195; 363 W.A.C. 195; 2005 ABCA 304, refd to. [para. 16].

Canadian Western Natural Gas Co. v. Pathfinder Surveys Ltd. (1980), 21 A.R. 459; 12 Alta. L.R.(2d) 135 (C.A.), refd to. [para. 49].

Counsel:

William K. Horwitz, for the applicant;

Kyle K. Kawanami (Emery Jamieson LLP), for the respondents.

This application was heard on August 13, 2008, by Veit, J., of the Alberta Court of Queen's Bench, Judicial District of Edmonton, who delivered the following memorandum of decision on September 19, 2008.