CONDOMINIUM CORPORATION NO 022 5899 v 499430 ALBERTA LTD, 2019 ABQB 905
3.74: Adding, removing or substituting parties after close of pleadings
14.12: Contents and format of notices of appeal and cross appeal
Justice Lema considered an Appeal of a Consent Order granted by a Master concerning two Actions regarding unpaid-contributions brought by a condominium corporation against certain of its unit holders. The parties bringing the Appeal were the corporate developer, a corporate unit holder, and the individual behind both corporations (the “Appellants”). None of the Appellants were parties to the present Action. The Appellants had, however, commenced separate proceedings, alleging that they, or some of them, were the rightful board members for the condominium corporation, and were invalidly removed by the Defendants in this Action. The issue before Justice Lema was whether the Appellants, as non-parties, had standing to Appeal the Consent Order.
Justice Lema applied the test set out in Peavine Métis Settlement v Whitehead, 2015 ABCA 366 (“Peavine”) for allowing a non-party to Action standing to appeal. In Peavine, Justice Wakeling noted that Rule 14.12(2) supported the proposition that persons who are parties to the proceedings are entitled to Appeal, and went on to hold that the general rule was that a non-party cannot appeal. This general rule is subject to three exceptions: 1) where the Order requires a person to do or refrain from doing anything; 2) where the Order directly affects an important interest of the non-party; or 3) where the party seeking to appeal could have been a party in the proceedings at first instance.
Justice Lema found that the Order under appeal did not require the Appellants to do or refrain from doing anything. Justice Lema also considered whether the corporate unit holder had an interest in the unpaid condominium contributions of the condominium corporation and determined that it did not, and therefore, the Order did not affect an interest of the Appellants.
Regarding the third possible exception, Justice Lema considered whether the Appellants could have been added as a party under Rule 3.74. Lema J. considered the factors identified in the Alberta Civil Procedure Handbook, Stevenson & Côté, Juriliber, 2019 at p 3-181 for the addition of parties, and noted that there was no compelling basis to add any of the Appellants to the Action, as the Appellants were “true bystanders”.
Justice Lema rejected the Appellants’ assertion that they had standing by virtue of being served with the Applications that gave rise to the Consent Order, regarding that service as “courtesy service” only. Justice Lema also rejected the Appellants’ arguments that they had standing by virtue of being the rightful member(s) of the condominium corporation’s board of directors. Lema J. noted that this was a contested issue, which was subject to separate proceedings. Until a determination had been made on that contested issue, Lema J. noted that only those persons appearing on the condominium sheet registered at Land Titles had authority to act on behalf of the condominium corporation.
The Appeal was dismissed with Costs.View CanLII Details