Condominium Plan No. 0213028 v Pasera Corporation, 2019 ABQB 485

There were water ingress concerns at a condominium building. A statement of claim was filed by the condominium corporation against the developer, Pasera Corporation, and other Defendants. Acted for the Defendant/Applicant. The Defendant, HCI Architecture Inc., applied for summary dismissal on the basis that the claim against it was statute barred. The Defendant argued that the injury suffered by the Plaintiff was known to the Plaintiff as early as 2007 and is properly the subject of the 2008 Action. The Defendant argued that the Plaintiff could not bring a separate action outside of the 2 year limitation period addressing the same injury. The Plaintiff argued that there were two actions - an action claiming damages from water ingress and a second action claiming damages for structural deficiencies, namely improper sizing of studs in the exterior walls. The Plaintiff argued that the structural deficiencies related to framing were not known until 2010 when it was advised of the results from a separate investigation which confirmed that studs used in the exterior walls were of insufficient thickness, were improperly placed, and threatened the structural integrity of the building. The Court held that the test for summary judgment was not met as the Defendant did not prove its defence on the basis of the limitation period. The Defendant did not demonstrate that there was no genuine issue for trial. There were two different injuries attracting two different triggering dates for the Limitations Act. As such, the size of the studs and the effect on structural integrity of the condominium were found to have not been discovered, nor with reasonable diligence, ought to have been discovered, until after the Plaintiff had conducted a separate and targeted investigation.