RVB Managements Ltd. et al. v. Rocky Mountain House (Town), 2015 ABCA 188

• Judge: Berger, Veldhuis and Brown, JJ.A.
• Court: Court of Appeal (Alberta)
• Case Date: Tuesday March 03, 2015
• Citations: 2015 ABCA 188;(2015), 600 A.R. 380

RVB Mgmt. Ltd. v. Rocky Mountain House (2015), 600 A.R. 380; 645 W.A.C. 380 (CA)

MLB headnote and full text

Temp. Cite: [2015] A.R. TBEd. JN.038

RVB Managements Ltd. and Lavoy Property Development Ltd. (appellants/plaintiffs) v. The Town of Rocky Mountain House (respondent/defendant)

(1403-0062-AC; 2015 ABCA 188)

Indexed As: RVB Managements Ltd. et al. v. Rocky Mountain House (Town)

Alberta Court of Appeal

Berger, Veldhuis and Brown, JJ.A.

June 4, 2015.

Summary:

In 1991, the plaintiff RVB purchased 21.7 hectares of vacant land in the central downtown area of the defendant town. RVB intended to develop the land. In March 1998, RVB sued the town, alleging, essentially, that the town was responsible for increased water flow to the land and the resulting damage. RVB also alleged that the town had caused further damage in lost opportunity costs by delaying and refusing to approve the development of the land unless RVB rectified the water drainage issues. RVB claimed lost opportunity damages of $15,622,816 related to the delays and $1,038,000 in increased construction costs due to wet soil.

The Alberta Court of Queen's Bench, in a decision reported at (2014), 582 A.R. 1, dismissed the action. RVB appealed.

The Alberta Court of Appeal dismissed the appeal.

Limitation of Actions - Topic 17

General principles - Continuing acts and continuing losses - [See Limitation of Actions - Topic 3162 ].

Limitation of Actions - Topic 3141

Actions in tort - Tortious acts of a continuing nature - General - [See Limitation of Actions - Topic 3162 ].

Limitation of Actions - Topic 3162

Actions in tort - Trespass or injury to property - When time begins to run - In 1991, the plaintiff RVB purchased 21.7 hectares of vacant land in the central downtown area of the defendant town - RVB intended to develop the land - In March 1998, RVB sued the town, alleging, essentially, that the town was responsible for increased water flow to the land and the resulting damage - In its amended statement of claim filed in July 2000, RVB also alleged that the town had caused further damage in lost opportunity costs by delaying and refusing to approve the development of the land unless RVB rectified the water drainage issues - The trial judge dismissed the action, finding, inter alia, that the six year limitation period in s. 4(1)(g) of the Limitation of Actions Act applied to the claims relating to delay in the amended statement of claim - On appeal, RVB asserted that the trial judge had misdirected herself regarding the application of limitation periods to continuing claims - The Alberta Court of Appeal dismissed the appeal - For a claim to be "continuing", the legal injury, itself, had to continue, not merely the ill effects of the injury - Here, the delay that constituted the legal injury was not a "repetitive act" or omission - Although the consequences of the delay might have continued, the administrative delay was not a continuing claim that reset the limitations clock - See paragraphs 14 to 20.

Limitation of Actions - Topic 9324

Postponement or suspension of statute - Fraud - Fraudulent or wilful concealment - In 1991, the plaintiff RVB purchased 21.7 hectares of vacant land in the central downtown area of the defendant town - RVB intended to develop the land - In March 1998, RVB sued the town, alleging, essentially, that the town was responsible for increased water flow to the land and the resulting damage - In its written submissions for trial, RVB raised allegations of bad faith and misfeasance in public office, relying on s. 57 of the Limitation of Actions Act, under which a cause of action that had been concealed by fraud was deemed to have arisen when the fraud was first known - RVB alleged that, in 1991, the town had concealed critical information, failed to disclose documents and improperly redacted a crucial document - The trial judge dismissed the action, finding, inter alia, that RVB had not established that the documents at issue were material - The Alberta Court of Appeal dismissed RVB's appeal - Even if the documents were clearly in the possession and control of the town and even if the town had been negligent in discovering the relevance and materiality of the documents, RVB had not addressed whether the records were material such that they should have been in the documents produced - The trial judge had not erred in finding that materiality was not established - See paragraphs 6 to 8.

Municipal Law - Topic 1704

Liability of municipality - General and definitions - Bad faith - In 1991, the plaintiff RVB purchased 21.7 hectares of vacant land in the central downtown area of the defendant town - RVB intended to develop the land - In March 1998, RVB sued the town, alleging, essentially, that the town was responsible for increased water flow to the land and the resulting damage - RVB also alleged that the town had caused further damage in lost opportunity costs by delaying and refusing to approve the development of the land unless RVB rectified the water drainage issues - The trial judge, having dismissed the action on the basis that no cause of action existed in negligence for the town's delay or in relation to the claim regarding water flow, agreed with the town that RVB had also failed to make a case in bad faith - There was no evidence of bad intention - Nor was there evidence that the town's actions were "markedly inconsistent with the relevant legislative context" - In fact, the court found many examples of the town's acting in good faith - On RVB's appeal, the Alberta Court of Appeal found "no basis to interfere with that conclusion" - See paragraphs 9 to 13.

Practice - Topic 1462

Pleadings - Statement of claim - General - Requirement of stating basis for claim - In 1991, the plaintiff RVB purchased 21.7 hectares of vacant land in the central downtown area of the defendant town - RVB intended to develop the land - In March 1998, RVB sued the town, alleging, essentially, that the town was responsible for increased water flow to the land and the resulting damage - In its written submissions for trial, RVB raised allegations of misfeasance in public office - The trial judge, in dismissing the action, refused RVB's request to amend its pleadings as out of time - The allegation of misfeasance in public office was statute-barred unless it could be held that the pleadings sufficiently set out the claim - The Alberta Court of Appeal dismissed RVB's appeal - Amendments adding a new cause of action after the expiry of a limitation period were not allowed, even in the absence of prejudice, unless there were "special circumstances" - Here, special circumstances were not made out - The trial judge had not erred in dismissing the application to amend - See paragraphs 21 to 23.

Practice - Topic 2111

Pleadings - Amendment of pleadings - Prohibition against adding new action or "claim" which is statute barred (incl. exceptions) - [See Practice - Topic 1462 ].

Practice - Topic 2143

Pleadings - Amendment of pleadings - Circumstances when amendment denied - [See Practice - Topic 1462 ].

Cases Noticed:

Roberts v. Portage LaPrairie (City), [1971] S.C.R. 481, refd to. [para. 15].

McCrimmon v. British Columbia Electric Railway, 1915 CarswellBC 158 (C.A.), refd to. [para. 19].

Corbett v. Ainley et al. (2007), 220 Man.R.(2d) 250; 407 W.A.C. 250; 2007 CarswellMan 453; 2007 MBCA 140, refd to. [para. 19].

Stout Estate et al. v. Golinowski Estate et al. (2002), 299 A.R. 13; 266 W.A.C. 13; 100 Alta. L.R.(3d) 5; 2002 ABCA 49, refd to. [para. 21].

Madill v. Alexander Consulting Group Ltd. et al. (1999), 237 A.R. 307; 197 W.A.C. 307 (C.A.), refd to. [para. 21].

Cels v. Railway Passenger Assurance Co. (1909), 11 W.L.R. 706 (Alta.), refd to. [para. 23].

Litemor Distributors (Edmonton) Ltd. v. Midwest Furnishings and Supplies Ltd. (2005), 379 A.R. 102; 2005 ABQB 520, refd to. [para. 23].

Authors and Works Noticed:

Mew, Graeme, The Law of Limitations (2nd Ed. 2004), p. 69 [para. 22].

Counsel:

K.D. Wakefield, Q.C., and A.M. Simmonds, for the appellants;

J.F. McGinnis, Q.C., and C.B. Zelyas, for the respondent.

This appeal was heard on March 3, 2015, by Berger, Veldhuis and Brown, JJ.A., of the Alberta Court of Appeal. On June 4, 2015, the court delivered the following memorandum of judgment.