Vander Griendt v. Canvest Capital Management Corp. et al., (2014) 596 A.R. 282 (QB)

• Judge: Martin, J.
• Court: Court of Queen's Bench of Alberta (Canada)
• Case Date: June 25, 2014
• Citations: (2014), 596 A.R. 282 (QB);2014 ABQB 542

Vander Griendt v. Canvest Capital Mgmt. (2014), 596 A.R. 282 (QB)

MLB headnote and full text

Temp. Cite: [2014] A.R. TBEd. SE.048

Charles Vander Griendt (plaintiff/applicant) v. Canvest Capital Management Corp. and Canvest Capital Limited Partnership (defendants/respondents)

(0901 15232; 2014 ABQB 542)

Indexed As: Vander Griendt v. Canvest Capital Management Corp. et al.

Alberta Court of Queen's Bench

Judicial District of Calgary

Martin, J.

September 5, 2014.

Summary:

The plaintiff bought units in a limited partnership that was involved in the purchase and sale of real property. The defendants were the limited partnership and its general partner. In October 2009, the plaintiff filed a claim, alleging that the defendants' allocation of monies realized from the sale of property breached the limited partnership agreement and contravened the law on partnerships. In March 2010, the plaintiff applied to have the claim certified as a class action. Since 2011, the action had been under case management. Before the certification hearing in June 2014, the defendants moved under rule 4.33(1) to have the action dismissed for delay.

The Alberta Court of Queen's Bench denied the defendants' motion and allowed the plaintiff's application, certifying the action as a class proceeding.

Practice - Topic 6

General principles and definitions - Application of practice rules - [See second Practice - Topic 5360 ].

Practice - Topic 209.1

Persons who can sue and be sued - Individuals and corporations - Status or standing - Class actions - Members of class - General - [See first Practice - Topic 209.3 ].

Practice - Topic 209.3

Persons who can sue and be sued - Individuals and corporations - Status or standing - Class or representative actions - Certification - Considerations (incl. when class action appropriate) - The plaintiff bought units in a limited partnership that was involved in the purchase and sale of real property - The defendants were the limited partnership and its general partner - The plaintiff alleged that the defendants' allocation of monies realized from the sale of property breached the limited partnership agreement and contravened the law on partnerships - The plaintiff applied to have the claim certified as a class action - The Alberta Court of Queen's Bench allowed the application - The pleadings disclosed a cause of action in breach of contract - The class definition (persons who had purchased and retained limited partnership units from the defendants and all lawful transferees of such units) was appropriate - There was an identifiable class of two or more persons - The issues identified by the plaintiff were common to all class members and related directly to the claim that the funds were misallocated under the limited partnership agreement and that the allocation was not in compliance with the Partnership Act - Resolution of the common issues would materially advance the litigation - See paragraphs 32 to 53.

Practice - Topic 209.3

Persons who can sue and be sued - Individuals and corporations - Status or standing - Class or representative actions - Certification - Considerations (incl. when class action appropriate) - The plaintiff bought units in a limited partnership that was involved in the purchase and sale of real property - The defendants were the limited partnership and its general partner - The plaintiff alleged that the defendants' allocation of monies realized from the sale of property breached the limited partnership agreement and contravened the law on partnerships - The plaintiff applied to have the claim certified as a class action - The Alberta Court of Queen's Bench allowed the application - The interests of access to justice, judicial economy and behaviour modification all made a class proceeding the preferable procedure in this case - The common issues predominated - The questions affecting only individual prospective class members related only to their share of the misallocated funds - Nothing suggested that other means of resolving the claims would be less practical or less efficient - See paragraphs 54 to 76.

Practice - Topic 209.4

Persons who can sue and be sued - Individuals and corporations - Status or standing - Class actions - Certification - Appointment or replacement of representative plaintiff - The plaintiff bought units in a limited partnership that was involved in the purchase and sale of real property - The defendants were the limited partnership and its general partner - The plaintiff alleged that the defendants' allocation of monies realized from the sale of property breached the limited partnership agreement and contravened the law on partnerships - The plaintiff applied to have the claim certified as a class action - The Alberta Court of Queen's Bench allowed the application - The plaintiff was an adequate representative plaintiff - He had no interest that was in conflict with class members on the common issues - He had the ability to bear the costs that might arise, had retained competent counsel and was motivated to move the litigation forward - The litigation plan submitted by the plaintiff set out a workable method for advancing the proceeding - Although it might require more detail in the future, inadequacies in a litigation plan were not sufficient to deny certification - See paragraphs 77 to 84.

Practice - Topic 210.5

Persons who can sue and be sued - Individuals and corporations - Status or standing - Class or representative actions - Procedure - Pre-certification matters (incl. particulars, production, pleadings, etc.) - [See all Practice - Topic 5360 ].

Practice - Topic 210.6

Persons who can sue and be sued - Individuals and corporations - Status or standing - Class actions - Limitation of actions - The plaintiff bought units in a limited partnership that was involved in the purchase and sale of real property - The defendants were the limited partnership and its general partner - The plaintiff alleged that the defendants' allocation of monies realized from the sale of property breached the limited partnership agreement and contravened the law on partnerships - The plaintiff applied to have the claim certified as a class action - The defendants raised a preliminary limitations issue, asserting that the Class Proceedings Act (CPA) required the certification hearing to be heard and any order made within 90 days of the claim's filing - The defendants stated that the limitation period had expired for any cause of action that was complete and actionable when this action was commenced and that certifying the action would raise insoluble limitations problems - The Alberta Court of Queen's Bench rejected the argument, stating, "There is no merit to this argument. The CPA at s. 2(3) does not require the certification hearing to be decided within 90 days, nor is the suspension of the limitation period set out in s. 40 as constrained as the Defendants suggest. I need make no further comment on these arguments, as they have nothing to do with the requirements for certification as a class proceeding." - See paragraphs 30 and 31.

Practice - Topic 5360

Dismissal of action - Grounds - General and want of prosecution - Delay - The plaintiff bought units in a limited partnership that was involved in the purchase and sale of real property - The defendants were the limited partnership and its general partner - In October 2009, the plaintiff filed a claim, alleging that the defendants' allocation of monies realized from the sale of property breached the limited partnership agreement and contravened the law on partnerships - In March 2010, the plaintiff applied to have the claim certified as a class action - Since 2011, the action had been under case management - Before the certification hearing in June 2014, the defendants moved under rule 4.33(1) to have the action dismissed for delay - The Alberta Court of Queen's Bench denied the motion - It was clear that there had been significant advances in the action since June 2011 - A case management judge was appointed and there had been regular meetings - Affidavits had been filed and some of the affiants had been cross-examined - One of the cross-examinations led to an application to compel answers to several contested undertakings, the resolution of which required a written decision - This was hardly a case of "languishing litigation" - The plaintiff had been making diligent efforts to move the action forward - See paragraphs 97 to 104.

Practice - Topic 5360

Dismissal of action - Grounds - General and want of prosecution - Delay - The plaintiff bought units in a limited partnership that was involved in the purchase and sale of real property - The defendants were the limited partnership and its general partner - In October 2009, the plaintiff filed a claim, alleging that the defendants' allocation of monies realized from the sale of property breached the limited partnership agreement and contravened the law on partnerships - In March 2010, the plaintiff applied to have the claim certified as a class action - Since 2011, the action had been under case management - Before the certification hearing in June 2014, the defendants moved under rule 4.33(1) to have the action dismissed for delay - The Alberta Court of Queen's Bench denied the motion - The court rejected the defendants' assertion that steps taken to advance the matter to the certification hearing did not advance the action within the meaning of rule 4.33 - While it appeared that rule 4.33 had not previously been applied in a class proceeding, the legislature's clear intent in s. 41 of the Class Proceedings Act was that the Rules of Court applied to class proceedings to the extent possible - The process of certification defined the nature of the action - Thus, it could not be said that progress toward certification did not advance the action - See paragraphs 105 to 108.

Practice - Topic 5360

Dismissal of action - Grounds - General and want of prosecution - Delay - The plaintiff bought units in a limited partnership that was involved in the purchase and sale of real property - The defendants were the limited partnership and its general partner - In October 2009, the plaintiff filed a claim, alleging that the defendants' allocation of monies realized from the sale of property breached the limited partnership agreement and contravened the law on partnerships - In March 2010, the plaintiff applied to have the claim certified as a class action - Since 2011, the action had been under case management - Before the certification hearing in June 2014, the defendants moved under rule 4.33(1) to have the action dismissed for delay - The Alberta Court of Queen's Bench denied the motion - The court rejected the defendants' argument that the failure to have the certification hearing within the 90 day period under s. 2(3) of the Class Proceedings Act was evidence of delay - The 90 day period was not intended to be a hard deadline - Many issues could take the matter beyond the 90 days - Such delays fell to be assessed under rule 4.33 - While the passage of four years before the certification hearing was not ideal, nothing suggested dilatoriness by the plaintiff or a lack of diligence - See paragraphs 109 to 117.

Cases Noticed:

Fischer et al. v. IG Investment Management Ltd. et al. (2013), 452 N.R. 80; 312 O.A.C. 128; 2013 SCC 69, refd to. [para. 28].

Hollick v. Metropolitan Toronto (Municipality) et al. (2011), 277 N.R. 51; 153 O.A.C. 279; 2001 SCC 68, refd to. [para. 28].

Andriuk et al. v. Merrill Lynch Canada Inc. (2013), 578 A.R. 40; 2013 ABQB 422, refd to. [para. 33].

Healey v. Lakeridge Health Corp. et al., [2006] O.T.C. 981; 38 C.P.C.(6th) 145 (Sup. Ct.), refd to. [para. 33].

Fakhri et al. v. Capers Community Markets, [2003] B.C.T.C. 1717; 26 B.C.L.R.(4th) 152; 2003 BCSC 1717, affd. (2004), 203 B.C.A.C. 227; 332 W.A.C. 227; 34 B.C.L.R.(4th) 201; 2004 BCCA 549, refd to. [para. 33].

Cerqueira v. Ontario et al., [2010] O.T.C. Uned. 3954; 2010 ONSC 3954, refd to. [para. 33].

Elder Advocates of Alberta Society et al. v. Alberta et al., [2011] 2 S.C.R. 261; 416 N.R. 198; 499 A.R. 345; 514 W.A.C. 345; 2011 SCC 24, refd to. [para. 33].

Chartrand v. General Motors Corp. et al., [2008] B.C.T.C. Uned. G02; 75 C.P.C.(6th) 221; 2008 BCSC 1781, refd to. [para. 47].

Western Canadian Shopping Centres Inc. et al. v. Dutton et al., [2001] 2 S.C.R. 534; 272 N.R. 135; 286 A.R. 201; 253 W.A.C. 201; 2001 SCC 46, refd to. [para. 54].

Ayrton v. PRL Financial (Alta.) Ltd. et al. (2006), 384 A.R. 1; 367 W.A.C. 1; 2006 ABCA 88, refd to. [para. 63].

St. Jean Estate et al. v. Edmonton (City) et al. (2014), 585 A.R. 81; 2014 ABQB 47, refd to. [para. 97].

Nash et al. v. Snow et al. (2014), 590 A.R. 198; 2014 ABQB 355, refd to. [para. 97].

Steparyk v. Alberta, [2014] A.R. Uned. 419; 2014 ABQB 367, refd to. [para. 97].

Morash v. Alberta (2000), 250 A.R. 269; 213 W.A.C. 269; 2000 ABCA 24, refd to. [para. 100].

Ravvin Holdings Ltd. v. Ghitter (2008), 437 A.R. 66; 433 W.A.C. 66; 2008 ABCA 208, refd to. [para. 101].

Stewart v. Enterprise Universal Inc. et al. (2010), 489 A.R. 153; 2010 ABQB 259, refd to. [para. 107].

Statutes Noticed:

Class Proceedings Act, R.S.A. 2000, c. C-16.5, sect. 2(3) [para. 95].

Rules of Court (Alta.) (2010), rule 4.33(1) [para. 94].

Counsel:

C. Richard Jones, Wilson McCutchan and Marc-Elie Scott (McMillan LLP), for the plaintiff/respondent;

C. Michael Smith (Smith Mack Lamarsh), for the defendants/applicants.

This application and motion were heard on June 25, 2014, by Martin, J., of the Alberta Court of Queen's Bench, Judicial District of Calgary, who delivered the following memorandum of decision on September 5, 2014.