Last Week’s Court Rulings from the Alberta Court of Queen’s Bench, Court of Appeal and SCC.
Zuk v Alberta Dental Association and College, 2018 ABCA 398
Costs l Substantially Successful
Kroeker v Zoric, 2018 ABQB 967
Used Vehicle Purchase l Caveat Emptor
Condominium Corporation No. 0613782 v Country Hills Landing Limited Partnership, 2018 ABQB 963
Summary Dismissal l Evidence Required
The Alberta Court of Appeal confirmed that the default rule on costs is that the party who was substantially successful gets costs:
 The default rule is that the party who was substantially successful receives his or her costs. If success was mixed and neither party was substantially successful, no costs are awarded. Normally, this Court does not award costs on an issue-by-issue basis although it has the discretion to do so in a proper case: Mahe v Boulianne, 2010 ABCA 74 (CanLII) at para 6, 21 Alta LR (5th) 277; Wilde v Archean Energy, 2008 ABCA 132 (CanLII) at para 9, 429 AR 41. The ADA+C submits that this is an appropriate case for the Court to award costs issue-by-issue.
In this case, the Alberta Dental Association and College was substantially successful, however, it only asked for 2/3 of costs set off from Zuk’s 1/3 costs, so this was what it was awarded.
A Plaintiff purchaser of a used vehicle sued the seller for breach of contract or negligence, after he bought the vehicle, drove it 11,000 km and then discovered serious structural damage. The Plaintiff was unsuccessful at trial, and these findings were upheld on appeal. At Trial the claim was dismissed on the following basis:
 The trial judge decided that Kroeker did not rely on Zoric’s representations as to a “good as new” car, that (having been driven over 11,000 kilometres before the in-depth inspection) the car was necessarily in adequate shape when purchased, and that, as a result, Kroeker’s claim was dismissed. The trial judge summarized his analysis by stating that anyone buying a used car should know that, sooner or later, problems will emerge. He invoked the maxim “caveat emptor” (“buyer beware”) as capturing the essence of the legal problem here: Zoric had no duty to make any particular disclosures about the state of the car, and Kroeker bought it effectively at his own risk.
On appeal, the Court found that the purchaser did not rely on the seller’s representations, and even if he had, his reliance would not be reasonable, and even if it was reasonable, no misrepresentations were made. Caveat emptor applied, which meant that the purchaser bore risks arising from any patent defects in the car or any latent defects of which the seller was unaware. In this case, the structural damage was latent, i.e. neither obvious nor detectable on a “surface” level. The purchaser did not establish that the seller was aware of the structural damage. Finally, if any of the frame or other structural problems were patent (i.e. were obvious or readily detectable on a “non-invasive” inspection), they would have been equally apparent to both the purchaser and seller.
This was an unsuccessful Summary Dismissal Application related to a water loss in a number of buildings. The Applicant was a structural engineer. The Court directed that the preferable evidence to tender on such an application should be from a qualified expert:
 The ideal evidence for the defendant TRL would have been opinion evidence from an expert in structural engineering and construction to the effect that, in his/her opinion, none of the damages claimed by the plaintiff resulted from faulty structural engineering or inspection by TRL.
The Applicant relied on an Affidavit, which the Court found was of no evidentiary value because it consisted of an opinion from someone not qualified to provide opinion evidence, and it was based on an unsworn letter report which was attached to the affidavit.