Case information
Consult our database for details on a Supreme Court of Canada case.
40926
Georgina Swanby, et al. v. Tru-Square Homes Ltd., et al.
(Alberta) (Civil) (By Leave)
Docket
Judgments on applications for leave to appeal are rendered by the Court, but are not necessarily unanimous.
| Date | Proceeding | Filed By (if applicable) |
|---|---|---|
| 2024-05-10 | Close file on Leave | |
| 2024-05-09 | Copy of formal judgment sent to Registrar of the Court of Appeal and all parties | |
| 2024-05-09 | Judgment on leave sent to the parties | |
| 2024-05-09 |
Judgment of the Court on the application for leave to appeal, The application for leave to appeal from the judgment of the Court of Appeal of Alberta (Calgary), Number 2201-0099AC, 2023 ABCA 224, dated July 28, 2023, is dismissed with costs. Dismissed, with costs |
|
| 2024-03-25 | All materials on application for leave submitted to the Judges, for consideration by the Court | |
| 2023-11-01 | Applicant's reply to respondent's argument, (Letter Form), Completed on: 2023-11-02 | Georgina Swanby |
| 2023-10-27 | Notice of name, (Letter Form) | Tru-Square Homes Ltd. |
| 2023-10-24 | Certificate (on limitations to public access), (Letter Form), public Access Form | Tru-Square Homes Ltd. |
| 2023-10-24 |
Respondent's response on the application for leave to appeal, (Book Form), Missing: - Proof of Service ( Rec'd 2023-10-27) - Notice of name for Tru-Square Homes Ltd (Rec'd 2023-10-27), Completed on: 2023-10-27 |
Tru-Square Homes Ltd. |
| 2023-10-04 | Letter acknowledging receipt of an incomplete application for leave to appeal and without formal Court of Appeal order, FILE OPENED 2023-10-04 | |
| 2023-09-29 | Book of authorities, (Book Form), Completed on: 2023-10-04, (Printed version filed on 2023-09-29) | Georgina Swanby |
| 2023-09-29 | Certificate (on limitations to public access), (Letter Form), 23A, (Printed version filed on 2023-09-29) | Georgina Swanby |
| 2023-09-29 |
Application for leave to appeal, (Book Form), Required: CA Judgment and final Order (Rec'd 2023-10-16) Filing Fees (Rec'd 2023-10-18), Completed on: 2023-10-19, (Electronic version filed on 2023-09-29) |
Georgina Swanby |
Parties
Please note that in the case of closed files, the “Status” column reflects the status of the parties at the time of the proceedings. For more information about the proceedings and about the dates when the file was open, please consult the docket of the case in question.
Main parties
| Name | Role | Status |
|---|---|---|
| Swanby, Georgina | Applicant | Active |
| Swanby, Craig | Applicant | Active |
v.
| Name | Role | Status |
|---|---|---|
| Tru-Square Homes Ltd. | Respondent | Active |
| Metcalfe, James Fredrick | Respondent | Active |
Counsel
Party: Swanby, Georgina
Counsel
Ben Frenken
850-440 2nd Avenue S.W
Calgary, Alberta
T2P 5E9
Telephone: (403) 234-9800
FAX: (403) 261-2054
Email: chad.babiuk@codehunterllp.com
Agent
411 Roosevelt Avenue, suite 400
Ottawa, Ontario
K2A 3X9
Telephone: (613) 288-0149
FAX: (613) 688-0271
Email: dtaylor@conwaylitigation.ca
Party: Swanby, Craig
Counsel
Ben Frenken
850-440 2nd Avenue S.W
Calgary, Alberta
T2P 5E9
Telephone: (403) 234-9800
FAX: (403) 261-2054
Email: chad.babiuk@codehunterllp.com
Agent
411 Roosevelt Avenue, suite 400
Ottawa, Ontario
K2A 3X9
Telephone: (613) 288-0149
FAX: (613) 688-0271
Email: dtaylor@conwaylitigation.ca
Party: Tru-Square Homes Ltd.
This party is not represented by counsel.
Party: Metcalfe, James Fredrick
This party is not represented by counsel.
Summary
Keywords
Commercial law — Corporations — Liability — Whether Mr. Metcalfe was jointly and severally liable for the wrongful acts of Tru-Square — When can the corporate veil be pierced and the individual behind the corporation be held concurrently liable? — Factors to consider in determining whether concurrent personal liability should be imposed for corporate torts — In what circumstances can an individual be held concurrently liable for wrongs committed in a corporate capacity?
Summary
Case summaries are prepared by the Office of the Registrar of the Supreme Court of Canada (Law Branch). Please note that summaries are not provided to the Judges of the Court. They are placed on the Court file and website for information purposes only.
The applicants (hereinafter “Swanbys”) and the respondents (hereinafter “Mr. Metcalfe” and “Tru-Square”) were parties to a written agreement for the construction of a custom home. Tru-Square’s principal, Mr. Metcalfe, signed the contract exclusively in his capacity as principal of Tru-Square. Mr. Metcalfe owns 99% of shares in Tru-Square. In May 2013, an issue arose with respect to leaking windows and water leaking through the soffits of the custom home. Tru-Square took the position that fixing windows was not its responsibility, and shortly thereafter left the construction site and never returned. The Swanbys sued Tru-Square and Mr. and Mrs. Metcalfe and sought damages of $1,000,000 for “breach of contract, negligence, conspiracy, unjust enrichment, breach of trust, breach of fiduciary duty, and fraud”. The Swanbys alleged that Mr. Metcalfe was “personally liable for such fraudulent conduct”, and asked for aggravated damages, punitive damages, and injunctive relief. The trial judge found that Tru-Square breached the contract with the Swanbys and found Mr. Metcalfe jointly and severally liable in tort for breach of the duty of care owed to the Swanbys. The Court of Appeal held that the trial judge erred in finding Mr. Metcalfe jointly and severally liable in tort for breach of the duty of care owed to the Swanbys. The Court of Appeal allowed Mr. Metcalfe’s appeal.
Lower court rulings
Court of Queen’s Bench of Alberta
1301 10836, 2022 ABQB 215
Applicants’ action allowed in part: Tru-Square liable for breach of contract; Mr. Metcalfe found jointly and severally liable in tort for Tru-Square’s breach of the duty of care owed to the Swanbys
Court of Appeal of Alberta (Calgary)
2023 ABCA 224, 2201-0099AC
Appeal allowed: Mr. Metcalfe not jointly and severally liable in tort for Tru-Square’s breach of the duty of care owed to the Swanbys
Filed documents
The memorandums of argument on an application for leave to appeal will be posted here 30 days after leave to appeal has been granted unless they contain personal information, information that is subject to a publication ban, or any other information that is not part of the public record. You may also obtain copies of the memorandum by filling out the Request for Court records form or by contacting the Court’s Records Centre either by email at records-dossiers@scc-csc.ca or by telephone at 613-996-8666 or at 1-844-365-9662.
If you have questions about a memorandum of argument or want to use a memorandum of argument, please contact the author of the memorandum of argument directly. Their name appears at the end of the memorandum of argument. The contact information for counsel is found in the “Counsel” tab of this page.
Downloadable PDFs
Not available
Related links
The factums of the appellant, the respondent and the intervener will be posted here at least 2 weeks before the hearing unless they contain personal information, information that is subject to a publication ban, or any other information that is not part of the public record. You may also obtain copies of factums by filling out the Request for Court records form or by contacting the Court’s Records Centre either by email at records-dossiers@scc-csc.ca or by telephone at 613-996-8666 or at 1-844-365-9662.
If you have questions about a factum or want permission to use a factum, please contact the author of the factum directly. Their contact information appears on the first page of each factum.
Downloadable PDFs
Not available
Related links
The condensed books of the appellant, the respondent and the intervener will be posted here upon receipt of the electronic version, 2 days prior to the scheduled appeal hearing. You may also obtain copies of condensed books by filling out the Request for Court records form or by contacting the Court’s Records Centre either by email at records-dossiers@scc-csc.ca or by telephone at 613-996-8666 or at 1-844-365-9662.
If you have questions about a condensed book or want permission to use a condensed book, please contact the author of the condensed book directly. Their contact information appears on the first page of each condensed book.
Downloadable PDFs
Not available