The Appellant (the “Developer”) appealed from an Application Judge’s Decision denying its Application for Summary Dismissal based on limitation period expiry. The underlying Action was a suit by the Respondent condominium corporation regarding a leaky roof.

The Court noted that Summary Dismissal may be granted when it is a proportionate, more expeditious and less expensive means to achieve a just result. The test articulated in Weir Jones Technical Services Incorporated v Purolator Courier Ltd, 2019 ABCA 49 should be applied to determine whether the facts, the record or the law revealed a genuine issue to be tried.

The Parties took different views of when the limitation period started to run. On Appeal, the Developer argued that there were three points in time when it could be said that an Action concerning the leaky roof was warranted and that each of these was more than two years before the date of Statement of Claim issuance in August 2013.

In response, the Respondent contended that the Developer had in 19 instances, between February 2007 and November 2012, represented that it was fixing the roof. In addition, the Developer’s conduct conveyed their intention to pay the entire cost of a roof replacement and created the expectation, even though they had never explicitly stated such intention. The Respondent submitted that: (1) an Action was not warranted until the Developer changed its position in November 2012, when it proposed to the board that the cost of the repairs be shared on a 50-50 basis; and (2) alternatively, the representations made by the Developer that it intended to fix the roof constituted a promissory estoppel which could in its legal effect extend the limitation period.

The Court found that there was sufficient evidentiary basis that there were live issues to be tried.

The Court also noted that there were competing objectives at play, including an objective of certainty in business relations, an objective of encouraging parties to work out their issues without litigation, and a policy consideration that an injured party working with the other side in resolving the dispute should not be told, when the process failed, that the claim was time-barred. The Court observed that the identification of that tipping point and how the above competing objectives could be accommodated could only be determined after a full Trial on the facts. It would be necessary, according to the Court, to determine from the evidence whether the Respondent slept on its rights or reasonably relied on the Developer to correct the leakage problem. 

The Court further observed that a more definitive statement of law, emerging from a Trial on the facts, was desirable, since the dynamic of a condominium corporation seeking post-construction remediation from a Developer was a common scenario involving interactions that could occur over a period of years as in the case at bar.

In the result, the Court dismissed the Appeal and directed that the issue of whether the limitation period had expired prior to commencement of the Action was to be determined at Trial, at which time the onus of proof would fall on the Respondent to show that the limitation period had not expired.