Court of Queens Bench of Alberta  
Citation: Levesque v Edmonton Regional Airports Authority, 2022 ABQB 411  
Date: 20220613  
Docket: 1803 09886  
Registry: Edmonton  
Between:  
David Levesque and Sky Dynamics Ltd.  
- and -  
Respondents/Plaintiffs  
Applicants/Defendants  
Edmonton Regional Airports Authority  
_______________________________________________________  
Memorandum of Decision  
of the  
Honourable Mr. Justice L.K. Harris  
_______________________________________________________  
[1]  
The Edmonton Regional Airport Authority (“ERAA”) appeals a decision from a Court of  
Queen’s Bench Master dismissing ERAA’s application for summary judgment. ERAA is a  
defendant in an action brought by David Levesque (“Levesque”) and Sky Dynamics Ltd.  
(“Sky”). ERAA’s summary judgment application was brought pursuant to Rule 7.2(a) of the  
Alberta Rules of Court, A/R 124/2010, and was based upon two arguments:  
(a) The terms of the Lease Agreements between the parties prohibit the Plaintiffs  
from bringing this action against the Defendants; and,  
(b) That the action was brought out of time and thus is barred by s. 3(1) of the  
Limitations Act.  
In this appeal, ERAA argues that the Master erred in dismissing its application.  
Page: 2  
I.  
Background  
ERAA operates the Villeneuve Airport. It leases space at the airport to others for the  
[2]  
purposes of operating enterprises such as flight schools and maintenance facilities.  
[3] On April 22, 2010, Levesque entered into a lease agreement with ERAA with respect to  
Lot #17 at the airport. Levesque’s Lease has a term of 25 years. Levesque sublet Lot #17 to  
Centennial Flight Centre Inc. which operates a flying school from that location.  
[4]  
On August 1, 2014, Sky, a company owned by Levesque’s wife, entered into another  
lease agreement with ERAA with respect to Lot #16 at the airport. Sky’s Lease has a term of 35  
years. Sky operates an aircraft maintenance facility from that location.  
[5]  
[6]  
Both Leases contain largely identical provisions.  
Article 2.2 of the Leases grants Levesque and Sky a non-exclusive license to use certain  
common areas.  
[7]  
[8]  
Article 3.3 compels ERAA to provide the Plaintiffs with quiet enjoyment.  
Article 9.1(e) of the Leases provides that ERAA is:  
not responsible to the Tenant for the non-observance or violation by any other  
tenant or person of the Rules and Regulations, but the Landlord shall use  
reasonable efforts to uniformly apply the Rules and Regulations  
[9]  
The Leases also have waiver and indemnity provisions. Article 13 provides for the  
indemnity of ERAA by Levesque and Sky, and will be set out in further detail below, but  
generally, it contains defined terms (Article 13.1), provides that ERAA is not responsible for  
certain injuries, loss or damage (Article 13.2), provides that Levesque and Sky release ERAA  
from any claims whatsoever that they would be entitled to advance but for the release, and states  
that Levesque and Sky agree to indemnify and hold ERAA harmless.  
[10] Article 13.4 limits the application of Articles 13.2 and 13.3 when the injury or damage is  
caused by the “sole negligent act or sole omission by the Landlord” or is excluded from or in  
excess of the liability insurance carried by Levesque and Sky.  
[11] Aircraft coming and going from the Lots to the airport runway can only do so using a  
single taxi lane which passes by large hangars located on Lot #18. The taxi lane is shared  
amongst various tenants.  
[12] In 2016, Levesque wrote to ERAA to bring a concern to its attention about obstructed  
access to Lot #17. In a May 19, 2016 email, Levesque wrote to an ERAA representative:  
The issue that I want to bring to your attention is my access to the runway is  
being impeded. EIA granted Eldon J. permission to build with a zero lot line. He  
now has no maneuvering space for aircraft that are stored in his hangar. His  
tenants are blocking my access or forcing me off the centre line of the taxiway,  
which poses a risk to me and my aircraft. I am very upset that I recently lost a  
valuable tenant which is lost income to me. I need to have this issue addressed as  
I am losing income over this.  
[13] During Questioning of Levesque, he acknowledged that the tenant he lost occurred in  
January or February 2016. That tenant left because of the obstruction of the taxi lane. However,  
Page: 3  
Levesque also admitted that a new tenant was found a month or two later. The new tenant, who  
operated helicopters, paid about $300 per month less than the previous tenant. Because the  
helicopters did not require access to the taxi lane the obstructions complained of by Levesque  
were of little consequence to the new tenant.  
[14] Levesque’s email to ERAA was the beginning of some discussions between the parties  
about ongoing obstructions of the taxi lane by the tenants of Lot #18. On June 24, 2016 and July  
12, 2016, ERAA circulated emails reminding tenants to comply with regulations prohibiting  
obstruction of taxi lanes. This did not seem to solve the issue as in August, 2016, Levesque sent  
photos to ERAA of planes obstructing the taxi lane outside his Lots.  
[15] Levesque states in his Affidavit that the obstructions of the taxi lane continued despite the  
ERAA emails regarding the regulations. He had continued communications with the ERAA  
about the issue through 2018, at which point he decided to seek legal counsel as it became  
apparent to him that ERAA were taking no further steps to enforce its regulations regarding  
obstructions of the taxi lane. The Statement of Claim was issued on May 16, 2018, alleging a  
breach of ERAA’s obligation under the Leases to provide quiet enjoyment of the taxi lanes, a  
common area over which the Plaintiffs were granted a non-exclusive license to use. The  
Plaintiffs sought an interim and permanent injunction requiring ERAA to maintain the taxi lane  
free and clear of obstructions, as well as general damages.  
[16] Levesque says in his Affidavit that he and his wife hope to sell the Leases to fund their  
retirement. He says that the ongoing obstructions have diminished the value of the Leases.  
During submissions, counsel for Levesque and Sky asserted that the diminution in value of the  
Leases is the basis for the general damages claim.  
[17] On March 17, 2021, ERAA filed an application for summary judgment pursuant to Rule  
7.2(a) of the Rules of Court. The application was amended on April 19th, 2021.  
[18] The application was heard by the Master on May 6, 2021. She dismissed it on the basis  
that (a) the indemnity provisions related to third party claims against the ERAA and did not  
prohibit a claim by the Plaintiffs against the ERAA for breach of contract, and (b) that the  
damage complained of by the Plaintiffs was ongoing and therefore the applicable limitation  
period was a “rolling limitation” such that with each episode of obstruction the limitation period  
began anew. As a result, the Plaintiffs’ claim for breach of contract was not out of time.  
II. Issues  
[19] The issue at the heart of this appeal is whether ERAA is entitled to summary judgment  
dismissing this claim under Rule 7.2(a) of the Alberta Rules of Court, A/R 124/200. Has ERAA  
met the requirements of that Rule and established on a balance of probabilities that:  
a. The waiver and indemnity provisions within the Leases prohibit this claim  
from being brought; or,  
b. S. 3(1) of the Limitations Act, R.S.A. 2000, ch. L-12 applies to the claim such  
that it is out of time?  
Page: 4  
III. Decision  
A. Standard of Review  
[20] All parties agree that as this is an appeal from a Master’s decision, Bahcheli v Yorkton  
Securities Inc., 2012 ABCA 166 (“Bahcheli”) applies. Bahcheli provides that under Rule  
6.14(3), the standard of review that I am to exercise is one of correctness on issues of both fact  
and law. I am entitled to conduct a de novo analysis of the issues, reviewing all relevant and  
material evidence, submissions and the record in order to reach a decision. Deference to the  
Master’s decision is not required: Fraser v Jeffries, 2019 ABQB 145 ().  
B. Test for Summary Judgment Under Rule 7.2(a)  
[21] I will next outline the law applicable to applications for summary judgment under Rule  
7.2(a). It is important to note that this application was not brought under Rule 7.3, and thus,  
some of the technical requirements of Rule 7.3 are avoided.  
[22] Rule 7.2(a) states:  
Application for judgment  
7.2 On application, the Court may at any time in an action give judgment or an  
order to which an applicant is entitled when  
(a) admissions of fact are made in a pleading or otherwise  
[23] In DH v Woodson, 2020 ABQB 367, (“Woodson”), Price, J., noted that the rule is  
broadly worded, however, the applicant is limited to what is contained within subsections (a) and  
(b). The purpose of Rule 7.2(a) is to permit the Court to dispose of claims that have no merit  
based on admissions made in pleadings, affidavits and/or in cross examination (see Woodson,  
para. 89).  
[24] In Forwest Development Enterprises Ltd. v High River Regional Airport Ltd., 2013  
ABPC 20, the judge relied upon Zebroski v Jehovah’s Witnesses, 1986 CarswellAlta 567 (Alta.  
QB) to say that the admissions relied upon by the applicant must be clear before a party may be  
denied the right to try an issue, and there must be no serious question of law or fact left to be  
tried. When there are serious questions of law or fact to be tried then the Plaintiff must be  
allowed to proceed.  
[25] This is the same approach used in W.(O.) v P.(W.), 2012 ABQB 252, in which the Court  
held that the admissions must clearly show that the action is statute-barred. They must be “plain,  
unambiguous, and unequivocal”, failing which the summary judgment application will fail (see  
para. 26).  
[26] I have queried whether this approach ought to be softened somewhat given the more  
recent pronouncements from the Supreme Court and the Alberta Court of Appeal regarding the  
need to ensure matters are concluded in a proportionate, expeditious and less expensive manner.  
In Weir-Jones Technical Services Inc. v Purolator Courier Ltd, 2019 ABCA 49, (“Weir-  
Jones”) the Alberta Court of Appeal applied the decision of the Supreme Court of Canada  
in Hryniak v Mauldin, 2014 SCC 7 (“Hryniak”) to Rule 7.3 and accepted Hryniak’s statement  
regarding the need for a shift in culture starting at para. 13:  
In Hryniak v Mauldin the Supreme Court of Canada called for a “shift in culture”  
with respect to the resolution of litigation. Reliance on “the conventional trial no  
Page: 5  
longer reflects the modern reality and needs to be re-adjusted” in favour of more  
proportionate, timely and affordable procedures. Summary judgment procedures  
should increasingly be used, and the previous presumption of referring all matters  
to trial should end:  
This appeal concerns the values and choices underlying our civil  
justice system, and the ability of ordinary Canadians to access that  
justice. Our civil justice system is premised upon the value that the  
process of adjudication must be fair and just. This cannot be  
compromised.  
However, undue process and protracted trials, with unnecessary  
expense and delay, can prevent the fair and just resolution of  
disputes. The full trial has become largely illusory because, except  
where government funding is available, ordinary Canadians cannot  
afford to access the adjudication of civil disputes. The cost and  
delay associated with the traditional process means that . . . the  
trial process denies ordinary people the opportunity to have  
adjudication. . . . (emphasis in original)  
This requires a shift in culture. The principal goal remains the  
same: a fair process that results in a just adjudication of disputes. A  
fair and just process must permit a judge to find the facts necessary  
to resolve the dispute and to apply the relevant legal principles to  
the facts as found. However, that process is illusory unless it is also  
accessible - proportionate, timely and affordable. The  
proportionality principle means that the best forum for resolving a  
dispute is not always that with the most painstaking procedure.  
The summary judgment motion is an important tool for enhancing  
access to justice because it can provide a cheaper, faster alternative  
to a full trial. With the exception of Quebec, all provinces feature a  
summary judgment mechanism in their respective rules of civil  
procedure. Generally, summary judgment is available where there  
is no genuine issue for trial.  
Hryniak v Mauldin at para. 49 sets out a three part test for when summary  
judgment is an appropriate procedure:  
There will be no genuine issue requiring a trial when the judge is  
able to reach a fair and just determination on the merits on a  
motion for summary judgment. This will be the case when the  
process (1) allows the judge to make the necessary findings of fact,  
(2) allows the judge to apply the law to the facts, and (3) is a  
proportionate, more expeditious and less expensive means to  
achieve a just result.  
Page: 6  
This outline of the procedural approach to summary judgment encompasses a  
number of points. To enable a “fair and just summary determination” the record  
before the court and the issues must:  
(a) Allow the judge to make the necessary findings of fact. An  
important thing to observe about this part of the test is that it  
assumes the summary judgment judge (or Master) is able to make  
findings of fact. The judge is entitled, where possible, to make  
those findings from the record and draw the necessary inferences.  
The parameters on fact finding are discussed, infra, para. 38.  
Summary judgment is not limited to cases where the facts are not  
in dispute. If the summary judgment judge is not able to make the  
necessary findings of fact, that is an indication that there is a  
“genuine issue requiring a trial”. This issue is discussed, infra,  
paras. 27ff.  
(b) Allow the judge to apply the law to the facts. There are cases  
where the facts are not seriously in dispute, and the real question is  
how the law applies to those facts. Those cases are ideally suited  
for summary judgment: Tottrup v Clearwater (Municipal District  
No. 99), 2006 ABCA 380 at para. 11, 68 Alta LR (4th) 237, 401  
AR 88. If the record allows the judge to make the necessary  
findings of fact (as contemplated by the first part of the test),  
applying the law to those facts essentially comes down to a  
question of law. Cases like this one, based on the expiration of the  
limitation period, often fall into this category, as do those that turn  
on the interpretation of documents.  
(c) Assuming the first two parts of the test are met, summary  
disposition must be a proportionate, more expeditious and less  
expensive means to achieve a just result. This third criterion is a  
final check, to ensure that the use of a summary  
judgment procedure (rather than a trial) will not cause any  
procedural or substantive injustice to either party. Summary  
judgment will almost always be “more expeditious and less  
expensive” than a trial. In the end, if the judge finds that summary  
adjudication might be possible, but might not “achieve a just  
result” there is a discretion to send the matter to trial. This  
discretion, however, should not be used as a pretext to avoid  
resolving the dispute when possible.  
These foundational criteria set the procedural framework of the modern law of  
summary dismissal…  
[27] Further on in Weir-Jones, at para. 26, the Court sets out the principles of summary  
judgment:  
The Hryniak v Mauldin approach is not in any way anomalous, because it is  
consistent with the overriding goal of “proportionality” in civil procedure  
recognized by R. 1.2 of the Alberta Rules of Court: Burns Bog Conservation  
Page: 7  
Society v Canada (A. G.), 2014 FCA 170 at para. 42, 83 CELR (3d) 1. All  
procedures for resolving civil disputes, including summary dispositions, should be  
timely, cost-effective, and proportionate to the importance and complexity of the  
issues. (emphasis added)  
[28] Even though both Hryniak and Weir-Jones were specifically considering Rule 7.3, not  
7.2, those decisions make it clear through their discussion of the general principles and the  
foundational Rule 1.2 of the Alberta Rules of Court that these principles apply to Rule 7.2 as  
well.  
[29] I agree with Price, J.’s observation that the applicant is limited to what is contained  
within subsections (a) and (b) of Rule 7.2. I accept that the admissions on which the ERAA  
relies must be “clear and unequivocal”. If the admissions relied upon allow me to make the  
necessary findings of fact and allow me to apply the law to the facts, keeping in mind that one  
purpose of Rule 7.2 is a proportionate, more expeditious and less expensive means to achieve a  
just result, then I must find for ERAA.  
C. The Waiver and Indemnity Provisions  
[30] ERAA relies upon admissions given by Levesque upon questioning which simply  
acknowledge that he was aware of the waiver and indemnity provisions when the Leases were  
signed. Thus, the question is whether I can find that these provisions prohibit this claim from  
being brought.  
[31] At the outset, I note that the interpretation of contracts involves issues of mixed fact and  
law (see Sattva v Capital Corp. v Creston Moly Corp., 2014 SCC 53 () (“Sattva”) at para.  
50).  
[32] There are three specific indemnity provisions to consider.  
[33] First, the relevant portions of Article 13.2 state as follows:  
13.2 Landlord Not Responsible  
The Tenant acknowledges and agrees that the Landlord shall not be liable or  
responsible for any Injury to any person or for the loss of or damage to any  
property of the Tenant or any other person in respect of any occurrence on or after  
the Commencement Date, including, without limitation:  
(a) any loss of or damage to any property (including loss of use  
thereof) of the Tenant or of any other person:  
(i) from any cause whatsoever if such property is  
located in or on the Land or any part thereof; and  
(ii) if such loss or damage is caused by or results  
from any use of or any operation, occurrence or  
omission on the Land, if such property is not  
located on the Land;  
Page: 8  
(c) any damage, loss of profits and consequential damages caused  
or contributed to by reason of the condition of or any interruption  
or failure in any utility or service;(emphasis added)  
[34] ERAA argues that the claim is caught by the words, “shall not be liable or responsible  
for…the loss of or damage to any property of the Tenant” well as subsection 13.2(c).  
[35] ERAA argues that the word “damage” as included in Article 13.2 includes the damages  
claimed by Sky and Levesque for loss of revenue and diminution in the value of the Leases, as it  
is defined in Article 13.1(c):  
Damages means any loss, cost or damage including, but not limited to direct,  
indirect, incidental, exemplary, consequential or other damages; loss of profits or  
revenue; interference with business operations; loss of tenants, lenders, investors  
or buyers; diminution in value of the Land or any part thereof; inability to use any  
part of the Land; and Costs  
[36] On the other hand, Levesque and Sky argue that Article 13.2 can only relate to claims  
brought by third parties or claims of the Tenant in certain limited circumstances, none of which  
apply here. The intention of the provision is to make the Tenant responsible for injuries, losses  
or damages to third parties or to physical property of the Tenant or third parties. It does not  
intend to prohibit claims by the Tenant against the ERAA for breach of contract.  
[37] I have concluded that Article 13.2 does not clearly prohibit the claim, for three reasons.  
[38] First, the phrase “loss of or damage to any property of the Tenant” arguably does not  
apply to Lots #16 and #17 because the Lots are not “property of the Tenant”. The Lots are Land  
(as that term is defined in the Leases) which is leased to the Tenant for the purposes set out in the  
Leases. The Plaintiffs do not advance a claim for damage to their physical property. The  
Plaintiffs claim for breach of contract by ERAA.  
[39] Second, the defined term “Damages” does not help the ERAA here because that defined  
term is not used in Article 13.2. Instead, the word “damage” (uncapitalized and thus undefined)  
is used. The difference must mean something the drafters of the Leases had the opportunity to  
use the defined, capitalized term but did not. Therefore, I conclude that the use of the undefined  
word “damage”, given the context of Article 13.2, means physical damage to physical property,  
which is not the case here.  
[40] Third, subsection 13.2(c) does not help ERAA. That subsection refers to damage caused  
by a failure in “utility or service”. The claim advanced is not based on the failure of a utility or a  
service to the Lot.  
[41] As such, I cannot conclude that Article 13.2 prohibits the Plaintiffs’ claims.  
[42] Next, ERAA says that Article 13.3 prohibits the claim. The relevant portions state:  
13.3 Release and Indemnity  
The Tenant hereby expressly releases the Landlord from any Claims whatsoever  
that the Tenant would be entitled to advance but for this release, and covenants  
and agrees to indemnify and hold the Landlord harmless from and against any  
Claims whatsoever advanced by any person for any Injury and Damages of any  
Page: 9  
nature whatsoever which is caused, results, or arises from or is contributed by  
reason of:  
(a) the ownership, occupancy or use of the Land including any  
Claims resulting from occupiers liability;  
(b) any act by or on behalf of the Landlord as owner and landlord  
pursuant to this Lease;  
(d) the condition of the Land or any part thereof;  
(e) the condition of or any interruption, cessation, unavailability or  
failure in the supply of any utility, service, or system;  
(m) any Claim for any Injury, or any loss or damage of the nature  
referred to in Section 13.2 or property damage, however so caused  
respecting the Land and whether such Injury or Damage is caused  
or contributed to by any fault, default, negligence, act or omission  
of the Landlord. (emphasis added)  
[43] At first blush, the first portion of the first sentence of this article seems to apply directly  
to this claim. It provides simply that Sky and Levesque expressly release ERAA from any  
claims whatsoever that they would be entitled to advance but for the release. An ambiguity  
arises, however, when one considers the next portion of that sentence, which is, “and covenants  
and agrees to indemnify and hold the Landlord harmless from and against any Claims  
whatsoever advanced by any person”. Sky and Levesque argue that the inclusion of that second  
phrase means that the overall intent of this release is only to compel Sky and Levesque to  
indemnify ERAA against claims brought by third parties the classic indemnity provision  
included in many contracts.  
[44] It makes little commercial sense for a party to a contract to agree to waive all claims it  
might have whatsoever against the other party as that would effectively preclude any claim for  
breach of contract. The beneficiary of the release could breach the contract with impunity.  
[45] As noted in Sattva, the Court is to take a practical, common-sense approach to the  
interpretation of contracts to determine the “intent of the parties and the scope of their  
understanding”. The Court must read the contract as a whole, giving the words used their  
ordinary and grammatical meaning, consistent with the surrounding circumstances known to the  
parties at the time of the formation of the contract. In Sattva, the Court cites Reardon Smith  
Line Ltd. v Hansen-Tangen, [1976] 3 All E.R. 570 at para. 47:  
No contracts are made in a vacuum: there is always a setting in which they have  
to be placed. . . . In a commercial contract it is certainly right that the court should  
know the commercial purpose of the contract and this in turn presupposes  
knowledge of the genesis of the transaction, the background, the context, the  
market in which the parties are operating.  
Page: 10  
[46] The meaning of the words of the contract is often derived from a number of contextual  
factors, including the purpose of the agreement and the nature of the relationship created by the  
agreement.  
[47] In this case, the contract in question is a lease for space at an airport to permit tenants to  
operate certain permitted businesses. The landlord is obligated to provide quiet enjoyment under  
the lease. The tenants in question, Sky and Levesque, have signed leases for long periods of time  
35 and 25 years respectively, and they have given evidence that they hope to sell their leases to  
fund their retirement. Given those circumstances, I accept that it would make no commercial  
sense to Sky and Levesque to sign a lease preventing them from holding ERAA to account in the  
event of ERAA’s breach of contract. It would effectively prohibit Sky and Levesque from  
enforcing their rights under the Leases against ERAA in any way.  
[48] I therefore conclude that the inclusion of the phrase “and covenants and agrees to  
indemnify and hold the Landlord harmless from and against any Claims whatsoever advanced by  
any person” could be interpreted as only compelling Sky and Levesque to indemnify ERAA for  
claims advanced by third parties and to prohibit claims for contribution or indemnity by the  
Tenant against ERAA.  
[49] Therefore, I cannot conclude that Article 13.3 clearly prohibits the claims against ERAA.  
[50] Finally, I will address Article 9.1(e) of the Leases, which provides that ERAA is:  
not responsible to the Tenant for the non-observance or violation by any other  
tenant or person of the Rules and Regulations, but the Landlord shall use  
reasonable efforts to uniformly apply the Rules and Regulations  
[51] Again, I conclude there is ambiguity in this provision. Arguably, the claims being  
brought against ERAA are that ERAA has not made reasonable efforts to “uniformly apply the  
Rules and Regulations”. Accordingly, Article 9.1(e) does not clearly prohibit the claim.  
[52] Having concluded that these provisions do not provide a clear and unequivocal  
prohibition against the Plaintiffs’ claims in this case, I need not go on to address Article 13.4  
which outline certain limitations on the applicability of those Articles.  
D. Is the claim barred under s. 3(1) of the Limitations Act?  
[53] ERAA’s argument regarding the limitation period is straightforward. It says that the  
Plaintiffs knew that they had a claim when the tenant of Lot #16 left in January or February  
2016. As the Statement of Claim was issued in May, 2018, the Plaintiffs’ action is out of time  
based upon s.3(1) of the Limitations Act R.S.A. 2000 ch. L-12, which states:  
Limitation periods  
3(1) Subject to subsections (1.1) and (1.2) and sections 3.1 and 11, if a claimant  
does not seek a remedial order within  
(a) 2 years after the date on which the claimant first knew, or in  
the circumstances ought to have known,  
(i) that the injury for which the claimant seeks a  
remedial order had occurred,  
Page: 11  
(ii) that the injury was attributable to conduct of  
the defendant, and  
(iii) that the injury, assuming liability on the part  
of the defendant, warrants bringing a proceeding,  
or  
(b) 10 years after the claim arose,  
whichever period expires first, the defendant, on pleading this Act as a defence, is  
entitled to immunity from liability in respect of the claim.  
[54] ERAA relies upon admissions from Levesque during Questioning to argue that the  
limitation period had expired before the Statement of Claim was issued. Those admissions are to  
the effect that the tenant had left some time in the month of February 2016. ERAA says that  
those admissions clearly establish that Levesque knew by February 2016 at the latest that he had  
suffered an injury.  
[55] Further, ERAA says that the Sky and Levesque have no claim because they very quickly  
found a new tenant for the space, and in fact, the departure of the old tenant has made space for  
extra tenants which could result in the Plaintiffs earning more than they did before the first  
tenant’s departure. Thus, they have no damages.  
[56] Sky and Levesque on the other hand respond that the basis for their claim is not any loss  
of income arising from the departure of the old tenant but is based upon an ongoing breach of  
contract by ERAA arising from ERAA’s failure to provide quiet enjoyment by enforcing their  
own regulations against the obstruction of the taxi lane. Articles 2.2 and 3.3 of the Leases state:  
3.2 Licence to Use Common Areas  
The Landlord grants to the Tenant for the Term as an appurtenant part of this  
Lease for use by the Tenant and its agents, customers, employees, invitees and  
servants, in common with the Landlord and other tenants of the Landlord and  
their respective agents, customers, employees, invitees, licensees and servants, the  
non-exclusive licence to use such parts of the Airport set aside by the Landlord  
for roadways and designated by the Landlord from time to time, for public access  
and ingress to and egress from the Land, all subject to the terms of this Lease and  
any limitations imposed from time to time by the Landlord in respect of such use.  
3.3 Quiet Enjoyment  
The Landlord covenants with the Tenant for quiet enjoyment for so long as the  
Tenant is not in default hereunder and except as provided herein.  
[57] Sky and Levesque argue that ERAA’s failure to provide quiet enjoyment is ongoing and  
have not been dealt with effectively by ERAA. Those obstructions have caused a loss in value of  
the Leases, although that loss has not yet crystalized as they have not yet sold the Leases. The  
issue of whether they have yet suffered the damages they claim is not relevant to the issue of  
whether there is a triable issue regarding breach of contract.  
[58] Sky and Levesque also argue that the limitation period had not yet begun to run because  
not all three prongs of s.3(1)(a) were met by the time they issued the Statement of Claim. In  
Page: 12  
particular, s.3(1)(a)(iii) requiring that “the injury, assuming liability on the part of the defendant,  
warrants bringing a proceeding” had not been established.  
[59] Condominium Corporation 0812755 v IBI Group Inc, 2019 ABQB 75 (“IBI Group”)  
addresses this requirement:  
…If the harm does not justify bringing the proceedings, based on what the  
plaintiff knows, the limitation has not yet run.  
In my view, when there is no reason for a party to sue anyone, because the party  
reasonably believes that someone who has an apparent liability has actually  
assumed responsibility for addressing it, and is doing so, the injury does not  
warrant bringing a proceeding. Requiring a party to sue in this circumstance  
would encourage needless litigation. (at para. 51)  
[60] In IBI Group, the Plaintiff brought a claim for construction deficiency against an  
architect firm that designed the Plaintiff’s building and supervised its construction. Prior to the  
statement of claim being issued, the Plaintiff had engaged in discussions with the developer and  
the warranty provider in an effort to rectify the problems. When the efforts did not result in  
solving the problems, and the Plaintiff had received a report implicating the architect firm, the  
Plaintiff sued. The Master stated at paragraph 56:  
If the plaintiff knows of the injury and knows that the defendant caused it, and  
concludes that the cost of dealing with it is small and suing is not worth it, but  
later finds out that the remedy is far more expensive than it reasonably believed at  
the outset, that is a factor that might delay the running of the limitation period.  
Here, if the Developer and new home warranty provider had actually solved the  
problem, the costs to the plaintiff would have been effectively zero.  
[61] The Plaintiffs say that they brought their action when they realized that a claim was  
warranted. This occurred when Levesque realized that ERAA’s efforts to resolve the obstruction  
issue were ineffective. The claim was not warranted prior to that date as he was having ongoing  
discussions with ERAA about enforcing their rules and regulations prohibiting obstructions of  
taxi lanes, and initially, they seemed to be taking steps that would resolve the issue. The  
discussions led to ERAA sending emails to tenants reminding them about the prohibition against  
obstructions to the taxi lane. As late as April 4, 2018, ERAA was indicating in a letter that it  
would impose further restrictions if its regulations were not adhered to.  
[62] I agree that Levesque admitted in Questioning that he lost a tenant in January or February  
2016. If the entire claim was based upon the loss of that tenant, then ERAA’s argument here  
would be much stronger.  
[63] The problem, though, is that according to Sky and Levesque, the loss of the tenant is not  
the basis for the claim. The admission about the timing of the departure of the old tenant and the  
replacement of the old tenant has no bearing on the claim for diminution of value of the Leases  
caused by ongoing obstructions as argued by Levesque and Sky.  
[64] ERAA also argues that taxi lanes are not common areas such that Article 2.2 is engaged,  
the implication being that there is no breach of Article 3.3 because there is no non-exclusive  
licence to use the taxi lanes. Even if I accept that argument, that does not mean that there is no  
breach of Article 3.3. That provision simply provides for “quiet enjoyment”, which is not an  
obligation limited to the common areas. Arguably, failing to compel compliance with its own  
Page: 13  
regulations, thus permitting obstructions to the taxi lane, is in and of itself a breach of the  
obligation to provide quiet enjoyment of the Lots (which are not common areas).  
[65] The admissions relied upon by ERAA do not address the Plaintiff’s claim for diminution  
of value. Further, there are no admissions that contradict the assertion by Levesque in his  
Affidavit that he did not feel a claim was warranted before 2018. Accordingly, I conclude that  
ERAA has not established on the basis of those admissions that the s. 3(1)(a)(iii) applies to bar  
the claim in this case.  
[66] The Master had concluded that s. 3(1) of the Limitations Act did not apply to bar this  
claim because the nature of the breach alleged engaged a “rolling limitation period”. Because  
the alleged breach was ongoing, each instance of obstruction of the taxi lane amounted to a new  
cause of action against ERAA. Therefore, any alleged breaches after May 16, 2018 were not  
time-barred.  
[67] Because of my conclusion on the issue of whether there is a triable issue on s.3(1)(a)(iii),  
that is, whether the claim warranted bringing a proceeding as of February, 2016, I need not  
address the issue of a rolling limitation period and whether the Master’s conclusions on that issue  
were correct. The point was not strenuously argued in front of me in any event.  
[68] Finally, I will address ERAA’s argument that Sky and Levesque have not actually  
suffered a loss, meaning they do not have a claim to bring and therefore, it would not be an  
efficient use of the court’s resources to allow the claim to proceed. ERAA argues that if the  
Plaintiffs crystallize their loss arising from a diminution in the value of the Leases at some point  
in the future, they will be entitled to bring an action at that point. Now, however, as they have  
not provided any evidence of their losses the claim should be dismissed.  
[69] This argument conflates the issue of whether the limitation period has run with the issue  
of proof of damages. What is put before the Court in this application is the issue of whether the  
limitation period has run. I have concluded that arguably it has not, based upon the authorities  
cited by Sky and Levesque and their evidence regarding their views of when they felt the claim  
was warranted. Whether or not a loss in value of the Leases has crystalized is a matter of whether  
the Plaintiffs can prove their damages. That issue is not before the Court in the context of this  
specific application for summary dismissal pursuant to Rule 7.2.  
[70] It may be that ERAA could still bring an application for summary dismissal pursuant to  
Rule 7.3 on the basis that as the Plaintiffs have not established that they have suffered any  
damages, the claim ought to be dismissed. But, as set out at the beginning of this decision, Rule  
7.3 was not put forward as the basis for this application.  
IV. Conclusion  
[71] I conclude that the Master’s dismissal of the application was correct, but for different  
reasons. As ERAA has not shown that the admissions upon which it relies clearly establish that  
the claim is prohibited by either the provisions of the Leases or s.3(1) of the Limitations Act, the  
application is dismissed.  
Page: 14  
[72] Sky and Levesque are entitled to their costs of this appeal under the appropriate column  
of Schedule “C” of the Rules of Court. If the parties cannot agree on the quantum of costs to be  
paid they may seek a further appearance before me within 30 days.  
Heard on the 20th day of May, 2022.  
Dated at the City of Edmonton, Alberta this 13th day of June, 2022.  
L.K. Harris  
J.C.Q.B.A.  
Appearances:  
Robert T. O'Neill, Q.C.  
Ogilvie LLP  
for the Applicants/Defendants, Edmonton Regional Airports Authority  
Daniel W. Hagg, Q.C.  
Daniel W. Hagg Professional Corporation  
for the Respondents/Plaintiffs, David Levesque and Sky Dynamics Ltd.  



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