Stack v. Hildebrand et al., 2010 ABCA 108

• Judge: Hunt, Berger and Slatter, JJ.A.
• Court: Court of Appeal (Alberta)
• Case Date: March 05, 2010
• Citations: 2010 ABCA 108;(2010), 477 A.R. 359 (CA)

Stack v. Hildebrand (2010), 477 A.R. 359 (CA);

      483 W.A.C. 359

MLB headnote and full text

Temp. Cite: [2010] A.R. TBEd. AP.022

Suesette Stack (appellant/plaintiff) v. Patrick Hildebrand and PRG Financial Inc. (respondents/defendants) v. Cheryl Hildebrand and Gary Emo (not parties to the appeal/defendants)

(0903-0170-AC; 2010 ABCA 108)

Indexed As: Stack v. Hildebrand et al.

Alberta Court of Appeal

Hunt, Berger and Slatter, JJ.A.

April 12, 2010.

Summary:

In 1998, on Hildebrand's recommendation, Stack purchased an interest in life insurance policies (viatical settlement units) on two people. Hildebrand told Stack that the two people (the viators) were virtually guaranteed to die, the first in 24 months and the second in 36 months. Both viators exceeded their life expectancy. Stack sued Hildebrand and his company (the defendants), claiming economic loss arising from the loss of her principal, loss of interest and loss of opportunity for return and growth on her investment. The defendants applied under rule 159(2) to dismiss the claim, alleging that it was barred by s. 3(1)(a) of the Limitations Act.

A Master of the Alberta Court of Queen's Bench, in a decision reported at (2008), 458 A.R. 138; 2008 ABQB 668, allowed the application. A chambers judge upheld the decision. Stack appealed.

The Alberta Court of Appeal allowed the appeal in part. Stack's claims based on fraudulent misrepresentation were to proceed to trial.

Limitation of Actions - Topic 15

General principles - Discoverability rule - Application of - In 1998, on Hildebrand's recommendation, Stack purchased an interest in life insurance policies (viatical settlement units) on two people - Hildebrand told Stack that the two people (the viators) were virtually guaranteed to die, the first in 24 months and the second in 36 months - Both viators exceeded their life expectancy - In 2006, Stack sued Hildebrand and his company (the defendants), alleging negligent and fraudulent misrepresentation - The defendants applied under rule 159(2) to dismiss the claim, alleging that it was barred by s. 3(1)(a) of the Limitations Act - A Master allowed the application - A chambers judge upheld the decision, agreeing with the Master that, by 2003, when the viators were both still alive and written information on the medical condition (non-terminal) of one had been provided, Stack knew or ought to have known that the injury warranted bringing a proceeding - The Alberta Court of Appeal allowed Stack's appeal in part - The court agreed that Stack's suit for negligent misrepresentation was discoverable by 2003 and was, thus, statute-barred - However, Stack's allegations of fraudulent misrepresentation were that the defendants knowingly or recklessly misrepresented the number of viators who had ever exceeded their life expectancy - Stack had not discovered this, nor could she have, until 2005 - The chambers judge apparently did not consider that recklessness could amount to fraudulent misrepresentation and that, if the defendants were reckless, fraud might be established - To this extent, the chambers judge erred in summarily deciding this issue, because it was not plain and obvious that Stack's claim for fraudulent misrepresentation was bound to fail - See paragraphs 11 to 20.

Limitation of Actions - Topic 3011

Actions in tort - General principles - When time begins to run - Attribution of knowledge - [See Limitation of Actions - Topic 15 ].

Limitation of Actions - Topic 9305

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

Practice - Topic 5719

Judgments and orders - Summary judgments - To dismiss action - [See Limitation of Actions - Topic 15 ].

Cases Noticed:

Aram Systems Ltd. v. NovAtel Inc. et al. (2007), 404 A.R. 288; 394 W.A.C. 288; 2007 ABCA 100, refd to. [para. 9].

Maclise (S.) Enterprises Inc. v. Union Securities Ltd. et al. (2009), 469 A.R. 131; 470 W.A.C. 131; 2009 ABCA 424, refd to. [para. 11].

Queen (D.J.) v. Cognos Inc., [1993] 1 S.C.R. 87; 147 N.R. 169; 60 O.A.C. 1; 99 D.L.R.(4th) 626, refd to. [para. 12].

TWT Enterprises Ltd. et al. v. Westgreen Developments (North) Ltd. et al. (1992), 127 A.R. 353; 20 W.A.C. 353; 3 Alta. L.R.(3d) 124 (C.A.), refd to. [para. 13].

1018429 Ontario Inc. v. Fea Investments Ltd. (1999), 125 O.A.C. 88; 179 D.L.R.(4th) 268 (C.A.), refd to. [para. 13].

Derry v. Peek, [1889] U.K.H.L. 1; 14 App. Cas. 337, refd to. [para. 13].

De Shazo v. Nations Energy Co. (2005), 367 A.R. 267; 346 W.A.C. 267; 2005 ABCA 241, refd to. para. 14].

Photinopoulos v. Photinopoulos et al. (1988), 92 A.R. 122; 63 Alta. L.R.(2d) 193 (C.A.), refd to. [para. 14].

Sun Gro Horticulture Canada Ltd. v. Abe's Door Service Ltd. et al. (2006), 397 A.R. 282; 384 W.A.C. 282; 2006 ABCA 243, dist. [para. 18].

Counsel:

G.J. Thorlakson, for the appellant;

W.P. Sharek, Q.C., for the respondents.

This appeal was heard on March 5, 2010, by Hunt, Berger and Slatter, JJ.A., of the Alberta Court of Appeal. On April 12, 2010, the court delivered the following memorandum of judgment.