DAKA HOLDINGS LTD v BOYLE (VILLAGE)

This decision concerned Applications for Summary Dismissal based on limitations issues under the Limitations Act, RSA 2000, c L-12 (the “Limitations Act”) and the Environmental Protection and Enhancement Act, RSA 2000, c E-12, arising from claims relating to an undiscovered historical landfill (the “Landfill”) on an 80-acre parcel of land (the “Lands”).

The Plaintiffs purchased the Lands in 2006 without knowledge of the Landfill. While the Plaintiffs were developing the Lands in 2019, they discovered the Landfill and halted development. The Plaintiffs filed a Statement of Claim on September 9, 2019, alleging that the Defendants, as former owners and operators of the Landfill and as the municipal authorities responsible for issuing permits, approvals, and tax assessments, failed to disclose the Landfill. The Defendants applied for Summary Dismissal, arguing that the claims were statute barred by the 10-year ultimate limitation period in Section 3(1)(b) of the Limitations Act.

Applying the test for summary adjudication pursuant to Rule 7.3 and the framework set out in Weir-Jones Technical Services Incorporated v Purolator Courier Ltd., 2019 ABCA 49, Justice Whitling held that the limitations issues could be determined summarily. The Court rejected the Plaintiffs’ reliance on fraudulent concealment under Section 4 of the Limitations Act, finding no evidence that the Defendants knowingly or recklessly concealed the Landfill. At most, Whitling J. noted that the record disclosed an “honest blunder” or loss of historical knowledge, which did not meet the threshold for equitable fraud.

Justice Whitling also rejected the Plaintiffs’ argument that the claims arose from a continuing course of conduct under Section 3(3)(a) of the Limitations Act. The alleged wrongful acts, including subdivision approval, permits, and related decisions, occurred prior to the limitation period and did not constitute ongoing actionable conduct.

The Court further found that certain causes of action pleaded, including breach of statutory duty, were not recognized as independent causes of actions in Canadian law, and that no claim for breach of the agreement between the parties had been properly pleaded. However, Whitling J. held that claims relating to municipal taxes paid within the limitation period raised a genuine issue for trial.

In the result, Whitling J. granted Summary Dismissal of the Plaintiffs’ claims, except for the claim relating to recovery of municipal taxes, which was allowed to proceed.