Owners-Condominium Plan No. 0125764 v. Amber Equities Inc. et al., 2015 ABQB 235

JudgeRenke, J.
CourtCourt of Queen's Bench of Alberta (Canada)
Case DateFebruary 26, 2015
Citations2015 ABQB 235;(2015), 614 A.R. 288 (QB)

Owners-Condo. Plan No. 0125764 v. Amber Equities Inc. (2015), 614 A.R. 288 (QB)

MLB headnote and full text

Temp. Cite: [2015] A.R. TBEd. AP.054

The Owners Condominium Plan No. 0125764, also known as West Bear Haven Estates Condominium Corporation (plaintiff) v. Amber Equities Inc., 635364 Alberta Ltd., West Bear Haven Developments Ltd., Properties of Northern Bear Inc., 668472 Alberta Ltd. currently operating as NB Developments Ltd., ABC Ltd., John Doe and Strathcona County, Gabriel Khoury and Hector MacMullin (defendants) and John Stalenhoef, Wilf Weinkauf and O'Hanlon Paving Ltd. (third party defendants)

(0903 02811; 2015 ABQB 235)

Indexed As: Owners-Condominium Plan No. 0125764 v. Amber Equities Inc. et al.

Alberta Court of Queen's Bench

Judicial District of Edmonton

Renke, J.

April 9, 2015.

Summary:

This action concerned the development of a bare land condominium project, which included the completion of internal roads. Steps were taken towards the completion of the roads, with a first layer of asphalt being laid by the end of September 2001. However, the laying of a second layer of asphalt was not completed. On February 24, 2009, the plaintiff condominium corporation filed a statement of claim (amended on November 4, 2011) relating to the unfinished roadways, against several defendants, including NB Developments Ltd. and Khoury (who was originally on the board of directors of the condominium corporation). The plaintiff condominium corporation claimed in negligence and alleged breach of contract against NB Developments. The plaintiff also claimed that Khoury bore personal liability connected with a violation of s. 14 of the Condominium Property Act (i.e., the obligation to hold sums from sales of condominium units in trust). NB Developments Ltd. and Khoury applied for summary judgment on the grounds that no causes of action could be pursued against them and they were entitled to immunity from liability under the Limitations Act (s. 3(1)(a)). The two defendants also sought orders for security for costs against the plaintiff condominium corporation.

The Alberta Court of Queen's Bench reviewed the rules and approach to summary judgment in Alberta and granted summary judgment to both NB Developments and Khoury. The court found that there was no merit to the negligence claim by the condominium corporation because NB Developments as a vendor in a chain of agreements leading to a completed condominium project (i.e., not an owner or developer) did not owe a duty of care to the plaintiff condominium corporation. There was also no merit to the plaintiff's cause of action in contract for want of privity. Further, the plaintiff condominium corporation's action against NB Developments should have been commenced by August 30, 2008; therefore, its claims respecting the failure to complete the internal roads were barred by s. 3(1)(a) of the Limitations Act. As to Khoury, there was no merit to the plaintiff condominium corporation's claim that Khoury bore liability either as a developer or as a constructive trustee. Further, any potential causes of action against Khoury for breaching s. 14 of the Condominium Property Act were barred by the Limitations Act (ss. 3(1)(a) and 6). Had it been necessary to decide the security for costs applications, the court opined that the plaintiff condominium corporation would have been required to post security for costs, but only for steps following this application.

Contracts - Topic 1163

Formation of contract - Privity of contract - Requirement of existence of - See paragraphs 32 to 88.

Limitation of Actions - Topic 2023

Actions in contract - Actions for breach of contract - When time commences to run - See paragraphs 89 to 136.

Limitation of Actions - Topic 3103

Actions in tort - Negligence - When time begins to run - See paragraphs 89 to 136.

Limitation of Actions - Topic 4403

Statutory causes of action - When time begins to run (incl. suspension) - See paragraphs 157 to 194.

Practice - Topic 5701

Judgments and orders - Summary judgments - General - See paragraphs 28 to 31.

Practice - Topic 5702

Judgments and orders - Summary judgments - Jurisdiction or when available or when appropriate - See paragraphs 28 to 31.

Practice - Topic 8105

Costs - Security for costs - General principles - Considerations - See paragraphs 195 to 222.

Real Property - Topic 8821

Condominiums - Developers - General (incl. what constitutes) - See paragraphs 148 to 150.

Real Property - Topic 8822

Condominiums - Developers - Duties - To hold unit holders payments in trust - See paragraphs 137 to 156.

Real Property - Topic 8836

Condominiums - Developers - Liability of vendor in chain of agreements leading to a completed condominium project (incl. contractual liability and duty of care issues) - See paragraphs 32 to 88.

Real Property - Topic 8864.1

Condominiums - Corporation - General - Actions by - Against vendor who had contract with developer - See paragraphs 49 to 58.

Real Property - Topic 9087

Condominiums - Officers and directors - Obligations and duties (incl. fiduciary duties) - See paragraphs 148 to 156.

Torts - Topic 79

Negligence - Duty of care - Factors limiting or reducing scope of duty of care (incl. situations where no prima facie duty of care established) - See paragraphs 32 to 48.

Counsel:

Kenneth W. Fitz (McLennan Ross LLP), for the plaintiff;

Kenneth F. Slupek (Hladun & Company), for the defendant, NB Developments Ltd.;

Clarence J. Hookenson (Clarence J. Hookenson Professional Company), for the defendant, Gabriel Khoury.

This matter was heard on February 26, 2015, in Edmonton, Alberta, before Renke, J., of the Alberta Court of Queen's Bench, who delivered the following decision on April 9, 2015.

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15 practice notes
  • Howe v. Rees,
    • Canada
    • Supreme Court of Nova Scotia (Canada)
    • November 4, 2022
    ...late new claims in 2021: see e.g. Stout Estate v. Golinowski Estate, 2002 ABCA 49; Condominium Plan No. 012-5764 v. Amber Equities Inc., 2015 ABQB 235; Poff v. Great Northern Data Supplies (AB) Ltd., 2015 ABQB 173; WR v. Alberta (Atty. Gen.) 2006 ABCA 219 (and references to Alberta legislat......
  • Table of cases
    • Canada
    • Irwin Books Legal Research and Writing. Fourth Edition
    • June 23, 2016
    ...Collins v Miller & Miller, Ltd, 943 P2d 747, 189 Ariz 387 (App 1996) ............ 385 Condominium Plan No 0125764 v Amber Equities Inc, 2015 ABQB 235 ........... 25 Consumers’ Association of Canada v Canada (Postmaster General) (1975), 11 NR 181, [1975] FC 11 (CA) ................................
  • Weatherford Canada Partnership v. Addie et al., 2016 ABQB 188
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    • Court of Queen's Bench of Alberta (Canada)
    • April 6, 2016
    ...Cat Construction Ltd. , 2013 ABQB 351; AT Films Inc. v AT Plastics Inc. , 2014 ABQB 422; Condominium Plan 0125764 v Amber Equities Inc. , 2015 ABQB 235; Meek (Trustee of) v San Jan Resources , 2005 ABCA 448; Atlanta Industrial Sales Ltd. v Emerald Management & Realty Ltd. , 2006 ABQB 25......
  • Introduction to Legal Research and Writing
    • Canada
    • Irwin Books Legal Research and Writing. Fourth Edition
    • June 23, 2016
    ...Holmes (Re) (1991), 121 AR 170 (QB) (disbursements for computer research allowed). 53 Condominium Plan No 0125764 v Amber Equities Inc , 2015 ABQB 235 at para 217; Marshall RVR (2000) Ltd (cob Budget Rent a Car) v Gorman , 2007 ABPC 313 [ Marshall ]; Davidson v Patten , 2005 ABQB 521 (not a......
  • Request a trial to view additional results
13 cases
  • Howe v. Rees,
    • Canada
    • Supreme Court of Nova Scotia (Canada)
    • November 4, 2022
    ...late new claims in 2021: see e.g. Stout Estate v. Golinowski Estate, 2002 ABCA 49; Condominium Plan No. 012-5764 v. Amber Equities Inc., 2015 ABQB 235; Poff v. Great Northern Data Supplies (AB) Ltd., 2015 ABQB 173; WR v. Alberta (Atty. Gen.) 2006 ABCA 219 (and references to Alberta legislat......
  • Weatherford Canada Partnership v. Addie et al., 2016 ABQB 188
    • Canada
    • Court of Queen's Bench of Alberta (Canada)
    • April 6, 2016
    ...Cat Construction Ltd. , 2013 ABQB 351; AT Films Inc. v AT Plastics Inc. , 2014 ABQB 422; Condominium Plan 0125764 v Amber Equities Inc. , 2015 ABQB 235; Meek (Trustee of) v San Jan Resources , 2005 ABCA 448; Atlanta Industrial Sales Ltd. v Emerald Management & Realty Ltd. , 2006 ABQB 25......
  • Axcess Mortgage Fund Ltd v 1177620 Alberta Ltd, 2018 ABQB 626
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    • Court of Queen's Bench of Alberta (Canada)
    • August 24, 2018
    ...16, Robertson M at para 53; Ewing v Allen, 2015 ABQB 264 Hanebury M at para 28; Owners: Condominium Plan No 0125764 v Amber Equities Inc, 2015 ABQB 235 at para [74] The application of some elements of the Limitations Act is clear. 2. Limitation Period [75] Subsection 3(1) of the Limitations......
  • Southwest Construction Management Limited v. EllisDon Corporation, 2020 NSSC 99
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    • April 28, 2020
    ...Dow Chemical Canada Inc. v. Nova Chemicals Corp, 2010 ABQB 524, at para. 69; Owners Condominium Plan No. 0125764 v. Amber Equities Inc., 2015 ABQB 235, at para. 52 In DeSoto Resources Ltd. v. EnCana Corp., 2010 ABCA 110, the Alberta Court of Appeal explained, at paras. 8-10, that the court ......
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2 books & journal articles
  • Table of cases
    • Canada
    • Irwin Books Legal Research and Writing. Fourth Edition
    • June 23, 2016
    ...Collins v Miller & Miller, Ltd, 943 P2d 747, 189 Ariz 387 (App 1996) ............ 385 Condominium Plan No 0125764 v Amber Equities Inc, 2015 ABQB 235 ........... 25 Consumers’ Association of Canada v Canada (Postmaster General) (1975), 11 NR 181, [1975] FC 11 (CA) ................................
  • Introduction to Legal Research and Writing
    • Canada
    • Irwin Books Legal Research and Writing. Fourth Edition
    • June 23, 2016
    ...Holmes (Re) (1991), 121 AR 170 (QB) (disbursements for computer research allowed). 53 Condominium Plan No 0125764 v Amber Equities Inc , 2015 ABQB 235 at para 217; Marshall RVR (2000) Ltd (cob Budget Rent a Car) v Gorman , 2007 ABPC 313 [ Marshall ]; Davidson v Patten , 2005 ABQB 521 (not a......

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