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Monday Morning Case Bites for June 3, 2019

Last Week’s Court Rulings from the Alberta Court of Queen’s Bench, Court of Appeal and SCC.

Edited by Amanda Kostek & Christie Dewar

Impact Painting Ltd v Man-Shield (Alta) Construction Inc, 2019 ABCA 213
Appeal Costs | Offer between Trial and Appeal | Ambiguity of Offer

Bruen v University of Calgary, 2019 ABCA 211
Court of Appeal | Test for Non-Suit Applications | Non-Suit for Missed Limitation

Paul v Quan, 2019 ABQB 381
Application for inordinate delay (Rule 4.31) | Prejudice narrowly rebutted by preserved audiovisual evidence, statements, and transcripts

Magnus v Mason, 2019 ABQB 341
Common Property | Whether the Condominium Corporation has the exclusive right to Sue | Remedies for Condo Unit Owners

Roy Northern Land Service Ltd v Prodigy Mechanical Ltd, 2019 ABPC 121
Quasi Contract | Quantum Merit | Provincial Court Actions | Liability to Environmental Company for clean up after MVA

Lewandowska v Vander Woude, 2019 ABPC 115
Slip and Fall | Liability of Adjacent Landowner | Summary Judgment

Impact Painting Ltd v Man-Shield (Alta) Construction Inc, 2019 ABCA 213

In a decision on costs, the Alberta Court of Appeal concluded that an offer of $47,819.89 “all inclusive” by the respondent to the appellant pending an appeal was sufficient to trigger double costs notwithstanding that an error in the Trial Judgment meant that the actual amount owing was $49,917.24.  The Appellant argued that this was not a genuine offer in this case, because it did not distinguish between the Appellants original claim, and the counter claim without setting out the amount of each clime with interest and costs.   The Court concluded that there was no ambiguity on the following basis:

[3]               ….  Since there was no pending appeal on the respondent’s counterclaim we find no real ambiguity. The respondent was offering the trial judgment amount in full inclusive of costs and interest. Significantly, the respondent was also offering to permit a discontinuance of the appellant’s appeal on a “without costs basis”. In that sense, the respondent’s offer was waiving any costs that it might obtain as a result of success on appeal as part of the offer.

The Appellant also pointed out that it did not have counsel when the offer was tabled.  The Court rejected this submission as irrelevant:

[4]               The appellant seeks to fortify the claim of invalidity for ambiguity by saying the principal of the appellant was at the time of the offer not represented by counsel. The appellant has been variously represented. It was represented at trial and on the appeal. The suggestion that the appellant lacked counsel at the date of the offer is not relevant to the validity or effect of the offer.

The Court awarded double costs from the date of the offer.  Although the offer was short just over $2000, by the time costs were considered, the respondent beat its offer on appeal.

[5]               The appellant also contends that the parties discovered a technical error in the trial judgment pending the appeal after the offer. Correction of that error would result in the total net judgment owing to the appellant to be increased to $49,917.24. The parties had agreed to return to the trial judge to correct that error by consent. Accordingly, the appellant submits that the offer of $47,819.89 was short of the $49,917.24 amount and therefore the result on appeal was not “equal to or more favourable to the” respondent as under the language in Rule 4.29. This argument lacks any merit. The difference in the quantum urged by the appellant would have been less than the costs the respondent would have been entitled to for success on appeal so the result on appeal was more favourable to the respondent. Moreover, it is difficult to be patient with a submission like this when the respondent was being co-operative on the correction in any event.

[6]               The respondent is entitled to regular costs on the appeal and then double costs for steps taken on appeal dating from the service of the offer. The respondent in this regard suggests the applicable Column should rise from Column 2 to Column 3. The respondent submits that in light of a departure from the orthodoxy of presentation of arguments on appeal (resulting in potential increase in costs) coupled with to the appellant’s effort to increase its award on appeal to $138,576.84 should be found to have taken the case claim above $150,000 and thus bring in Column 3. On the other hand, the respondent, fairly, does not pursue a specific costs sanction for the irregularity in argument. The situation is on the border but we are not persuaded to increase the applicable Column to Column 3.

Bruen v University of Calgary, 2019 ABCA 211

This was an unsuccessful appeal of a trial decision where the claim was dismissed pursuant to a non-suit application on the basis of a missed limitation. The Court set out the test for a non-suit application. The motion must be dismissed if the Plaintiff puts forward some evidence on all elements of its claim. The judge must assume the evidence to be true and assign the most favourable meaning:

[11]           A non-suit application will be granted where the plaintiff fails to adduce some evidence on all legal or evidentiary elements which must be proven in order for the lawsuit to succeed. This Court described the test as follows in Capital at paras 19 and 20:

The definitive test on a non-suit motion is set out in Prudential Securities Credit Corp LLC v. Cobrand Foods Ltd., 2007 ONCA 425 (CanLII), 85 OR (3d) 561 at para 35:

(a)   On a non-suit motion, the trial judge undertakes a limited inquiry. Two relevant principles that guide this inquiry are these. First, if a plaintiff puts forward some evidence on all elements of its claim, the judge must dismiss the motion. Second, in assessing whether a plaintiff has made out a prima facie case, the judge must assume the evidence to be true and must assign “ the most favourable meaning” to evidence capable of giving rise to competing inferences.

                          . . .

In short, a non-suit application will fail if the plaintiff has adduced some evidence on each of the essential elements of her claim. In making this assessment, the trial judge does not weigh the evidence or assess credibility. Furthermore, the trial judge must assume that the plaintiff’s evidence is true, and draw all reasonable inferences from it. . .  .

See also Inland Concrete Ltd v Commonwealth Insurance Company, 2010 ABQB 600 (CanLII) at para 15, 37 Alta LR (5th) 155.

[12]           In other words, as set out in Waap v Alberta, 2008 ABQB 544 (CanLII) at para 135, 95 Alta LR (4th) 167:

. . . the process for a judge hearing a non-suit application is to ask whether, based on the evidence presented by the plaintiffs, taken at face value and without being weighed, there is enough evidence for a prima facie case against the defendants. If, on a central issue, the plaintiffs fail to present at least some evidence on which the trial judge or finder of facts could base a finding in the plaintiff’s favour, no case has been made out and the defendants are entitled to a non-suit.

The Appellant argued that a non-suit was inappropriate for limitations issues, because it required a weighing of evidence.  This was rejected by the Court of Appeal on the following basis:

[18]           Dr. Bruen’s counsel argued that the trial judge did not have jurisdiction to grant a non-suit based on a missed limitation period because to do so would require weighing evidence about when Dr. Bruen first knew, or in the circumstances ought to have known, that the University would not endorse his research proposal. As she was required to treat the evidence as to when this first came to his attention as true for the purposes of the non-suit application, that would defeat the limitations argument. The first problem with this argument is that Dr. Bruen did not testify as to when he first realized that the University would not endorse his proposal or that he did not come to that realization until May 2003. The evidence before her on this point was unambiguous, that he had received this information on August 2, 2002 at the latest which was more than two years before he issued his Statement of Claim.

[19]           Further, case authority exists that suggests a non-suit is available where the plaintiff has missed a limitation period. In NPS Farms Ltd. v. EI Dupont Canada Company, 2010 ABCA 124 (CanLII) at paras 10-11, 477 AR 233, this Court upheld a non-suit decision on the basis that the plaintiffs attempted to raise a defective product claim for the first time at trial, long after the expiry of the limitation period. In Barbagianis v Nychuk, 2018 SKQB 266 (CanLII) at para 4, the Court granted a non-suit in a bad faith damage action against the RCMP for injury to the person, finding it barred by limitation periods. In Ford Credit Canada Limited v Auty, 2007 ABPC 136 (CanLII), 461 AR 320, the trial court granted a non-suit in a civil matter against one of the defendants where expiry of a limitation period was found to provide a full defence. See also Lévesque and BMG Farming Ltd v Province of New Brunswick and New Brunswick Crop Insurance Corporation, 2011 NBCA 48 (CanLII), 372 NBR (2d) 202; Morrison v Muise, 2010 NSSC 163 (CanLII), 291 NSR (2d) 68; 351694 Ontario Ltd v Paccar of Canada Ltd, 2004 FC 1565 (CanLII), [2004] FCJ No 1919, 35 CPR (4th) 257. The purpose behind non-suit applications, to avoid putting litigants to the expense, time and trouble of defending hopeless causes, would not be satisfied if a claim could not be dismissed without a full trial where a limitations bar existed.

The appeal was dismissed.

Paul v Quan, 2019 ABQB 381

The Court dismissed an application for inordinate delay arising out of intentional torts, wrongful arrest, and malicious prosecution stemming from events in 2007 and 2009.  Although the delay was inordinate, the presumption of prejudice was rebutted, narrowly, on the basis that evidence had been “largely preserved by virtue of the audiovisual evidence; the testimony, admissions and statements given in the disciplinary and criminal actions; the existence of witness statements and transcripts”.

Magnus v Mason, 2019 ABQB 341

The issue in this case is whether a Condominium Corporation has the exclusive right to sue for damages to common property.  The Court concluded that it did not, because common property was held by all owners of all units as tenants in common:

[25]           With all due respect, the argument advanced by Mason takes Stevenson JA’s trust analogy too far out of context. While the Alberta 1980 Act imposes responsibilities on the Condo Corporation to manage, control, and administer the common property in section 19(1), this does not create a trust relationship. This is an important distinction because the condo unit owners retain title over that property.

[27]           The trust analogy is useful, but it only goes so far. Unlike the beneficiary of a trust, whose interest in the trust property is equitable, the condo owners – not the condo corporation – have legal title to the common property as tenants in common. This is legislated by section 4(2) of the Alberta 1980 Act. In particular, that section of the Alberta 1980 Act provides that the “common property” is held by “the owners of all the units as tenants in common”.

The Court noted that tenants in common may sue individually, and that the legislation did not deprive a unit owner of it’s right to sue:

[29]           At common law, tenants in common may sue individually for damages arising out of their proportionate shared interest in the land: Cyr v Ste-Anne de Madawaska (Village) (1971), 24 DLR (3d) 284, 1971 CarswellNB 76 (WL Can) at paras 36-39 (NBCA) (“Cyr”). In Cyr, the plaintiff was a tenant in common of a parcel of land with a home situated on it.

[32]           As this right of action concerning Magnus is an incident of shared ownership in real property, the Legislature is presumed to have known that a tenancy in common would confer this right when it enacted section 4(2) of the Alberta 1980 Act. Given that premise, I cannot attribute to the Legislature the inconsistent purpose of vesting legal title of all the common property in the condo unit owners as tenants in common, with all the legal rights that implies, at the same time that it supposedly deprived those condo unit holders of the right of co-owners of property to sue for damage to the co-owned property.

[33]           If the Legislature had intended to deprive condo unit owners of the right sue, its intention must be discernable from the text of the Alberta 1980 Act. I turn to review that Alberta 1980 Act with that issue in mind.

[37]           Given this context, I find that the Magnus Claims in negligence can be sustained as an implied incident of his statutory ownership of the common property as a tenant in common. That said, I view the Magnus Claims in contract as a separate matter.

Roy Northern Land Service Ltd v Prodigy Mechanical Ltd, 2019 ABPC 121

Roy Northern Land Service Ltd v Prodigy Mechanical Ltd, 2019 ABPC 121This was an action by an environmental company for clean-up after a motor vehicle accident. The Defendant was a subcontractor for a pipeline company, and the Defendant’s employee was involved in a single vehicle collision on a private road and ended up in a creek. The pipeline company retained the environmental company for the clean-up, and the issue was whether the Defendant should be responsible for the cost. The Court concluded that the Defendant received an undisputed benefit for the Plaintiff’s efforts, and awarded damages on a quantum merit basis:

[8]               The law has long recognised the availability of some equitable relief in non-contract situations based on the notion of quantum merit.  In such instances the courts will grant relief for a reasonable sum, in the absence of an agreed price.  I am satisfied that in the position of the Defendant he would have understood that services were being provided to his benefit and that he would be responsible for a reasonable fee.  The situation is no different were an ambulance or tow truck to have been dispatched by third parties.  The Plaintiff in this case argued that British Columbia law pursuant to the Ministry of Environment imposes legal liability upon the Defendant.  I disagree.  The proposition under the British Columbia Act that the “polluter-pay” creates liability to the British Columbia Crown.  It may also create a cause of action between those affected or harmed and the polluter but it does not create and independent cause of action for the provider of services.

[9]               At the end of the day I am satisfied that the Defendant is liable for a reasonable fee respecting the environmental work which he accepted and benefited from.  These services are however limited to the portion of “at-site” services directly attached to containment and clean-up.  I am not at all convinced that a reasonable person would anticipate a $7,294.22 bill for the report itself.  As I see the report it was largely generated for the benefit of Progress Energy vis-a-vis any questions it may ever face from Environment B.C.  I cannot see the direct benefit to this Defendant in having the report.

Lewandowska v Vander Woude, 2019 ABPC 115

This was a successful summary dismissal application for injuries arising from a slip and fall, on the basis of liability. The Plaintiff fell on ice and snow on a sidewalk that was adjacent to the Defendant’s driveway. The Plaintiff produced photos she had taken 6 and 8 days after the fall, but failed to address whether the photos represented the condition of the sidewalk at the time of the fall. The Defendant brought an application for summary dismissal on the basis that there was no duty of care, or alternatively, if there was one, it acted reasonably.

The Court accepted that the Defendants were not occupiers of the public sidewalk:

[22]           It is clear that this is not a case involving the Occupier’s Liability Act of Alberta, SA c 0-4.  The Defendants are not occupiers of the sidewalk adjacent to the property where the slip and fall occurred and no duty arises under that legislation.  There are a number of cases that address the question as to if and when a common law duty for a non-occupier of land arises.

[23]           In Chong v Flynn, 1998 ABQB 812 (CanLII), Justice Dea, in discussing the issue as it arises in a slip and fall sidewalk case, stated at paragraph 27 thereof:

[27]      Sidewalk slip and fall cases where a duty of care of a non-owner has been found have dealt with special circumstances which created an unusual risk or nuisance…

[24]           In Davidson v Blakeley, 2008 ABQB 155 (CanLII), Justice McMahon again dealing with a slip and fall case involving ice and snow on a sidewalk, after noting the non-application of the Occupier’s Liability Act, stated at paragraph 19:

[19]      … As the general principle, there is no common law duty on an owner of property to clear ice and snow from a public sidewalk adjacent to his property.  There are two exceptions to this rule:

  1.       If the owner has assumed control of the sidewalk such that he may be deemed to be an occupier….
  2.       The property owner’s duty extends to insuring that conditions or activities on his property do not flow off the property and cause injuries to the persons nearby.

The Court confirmed the following test at common law for parties who are not occupiers:

[26]           In Stefanyk v Stevens 2017 ABQB 402 (CanLII), Justice Hopkins  addresses the issue of duty of care at common law owed by non-occupiers of property.  This was an appeal from a Master’s decision granting summary dismissal of an action, and on the facts the learned Justice found that there was merit in the argument and that the store owner was an occupier of the sidewalk.  He also found merit to the argument that at common law there was a duty arising from the exclusive use of the sidewalk by store patrons.  He cited the law with respect to the common law duty at paragraph 25 as follows:

[25]      Our Court of Appeal in Kluane v. Chasse, 2003 ABCA 30 (CANLII), adopted the statements of the Ontario Court of Appeal in Bongiardina v. York (Regional Municipality) (2000), 2000 CANLII 5408 (ONCA), 49 OR (3d) 641 at paras 19-21:

19        The question then becomes: is there a common law duty on the owner of the property to clear snow and ice from public sidewalks adjacent to the property? In my view, the answer to this question must be ‘No’. Although the ‘neighbour’ principle from McAlister (Donoghue) v Stevenson, [1932] A.C. 562 (U.K. H.L.), has been expanded in recent years to cover a myriad of new relationships, it would stretch it too far if it was applied in the circumstances of this case. A homeowner has a duty to ensure that his or her own property is maintained in a reasonable condition so that persons entering the property are not injured. If the homeowner complies with this duty, he or she should be free from liability for injuries arising from failure to maintain municipally owned streets and sidewalks. The snow and ice accumulating on public sidewalks and the potholes on the street in front of the house are the legal responsibility of the municipality, not the adjacent property owner.

20        There are two exceptions to this general principle. First, a property owner may be deemed in law to be an occupier of adjacent public property if the owner assumes control of that property. Thus, in Bogoroch v Toronto (City) (June 20, 1991), Doc. 323847/88 (Ont. Gen. Div.), the court held that a store owner who used the adjacent sidewalk to display its wares on a continuing basis was an occupier of the sidewalk and subject to the duties imposed by the Occupiers’ Liability Act. Similarly, in Moody v Toronto (City) (1996), 1996 CANLII 8229 (ONSC) 31 O.R. (3d) 53 (Ont. Gen. Div.), the court held, on a motion for summary judgment, that the owners of the Skydome in Toronto might be an occupier of the public walkways adjacent to the stadium because of the ‘special circumstances’ relating to those walkways, including almost exclusive use of the walkway by Skydome patrons and the lack of alternatives to the walkway.

21        The second exception to the general principle that a property owner is responsible for his or her property is that the duty of case on the owner extends to ensuring that conditions or activities on his or her property do not flow off the property and cause injury to persons nearby. An example of a case in this category would be Brazzoni v Timmins (City) (February 7, 1992), Doc. CA 685/88 (Ont. C.A.), where the court held both the City of Timmins and the Toronto-Dominion Bank liable for injuries suffered by a person who fell on snow and ice on a public sidewalk near the bank. Referring to the bank’s liability, the court said, at p.2:

[T]he trial judge found that water flowed from the respondent’s property across the sidewalk at the time the plaintiff fell. By allowing the water from melting snow, on the roof of its building and from its parking lot, to accumulate on its property and to run across the sidewalk which was covered with snow and ice, the respondent, in our opinion, created a dangerous condition that it knew or ought to have known could cause injury to pedestrians using the sidewalk. Regardless of whether liability is based on nuisance or negligence, the respondent, in our opinion, is liable.

See also Taylor v. Robinson, 1933 CANLII 138 (ON CA), [1993] 3 D.L.R. 73 (Ont. C.A.).

The Court concluded that unless the adjacent homeowners assumed control over the public sidewalk, or unless the hazard flowed off the homeowners property, there was not duty of care:

[27]           There is no duty of care owed by the Applicants to the Plaintiff unless the facts illustrate that the Applicants have in some manner assumed control over the sidewalk adjacent to their premises where the slip and fall occurred, or the Applicants failed to ensure that the conditions or activities on their property did not flow off the property and cause injury to the Plaintiff.

In this case there was no evidence that the condition of the sidewalk was due to activities on the homeowner’s property.  Simply driving over the sidewalk to use the driveway did not create a special circumstances creating a duty of care:

[31]           The evidence before the Court in these photographs does not show, nor does the Plaintiff assert, that the slip was as a result of a buildup of ice at the location  as a result of drainage or water flow from the Defendants’ property over that portion of the sidewalk.  The fact that such a circumstance could occur does not mean that it did.  The Court has no evidence to support the presence of such a circumstance; only speculation that it could occur.

[32]           With respect to the question of driving back and forth over the sidewalk, in my view, that is not such an activity as is contemplated by the exception mentioned aforesaid.  It is not a special circumstance that created an unusual risk or nuisance.  The activity is normal use of the sidewalk and no substance has flowed from the Defendants premises onto the sidewalk.  There is nothing unusual in a Southern Alberta winter about packed snow on a sidewalk caused by vehicles crossing the same.  On the contrary it is a common and not unexpected circumstance in our climatic region.  There is nothing unusual about such a situation and the record before the Court does not undermine that “usuality”.

The claim was dismissed.