The Town of Cochrane is in litigation with regards to a slope failure in the GlenEagles community. A claim against the town was made in 2007 by The Villas of GlenEagles.
The Town of Cochrane is in litigation with regards to a slope failure in the GlenEagles community.
A claim against the town was made in 2007 by The Villas of GlenEagles. The town has made a third party claim against residents in the area, including John and Mary Downing, now residents of a retirement community in Calgary, saying the reason for the failure was due to the use of sump pumps to divert water, an accusation the Downings deny.
The town provided this statement to the Eagle:
As this matter is in litigation, the town is limited as to what comments it may appropriately make relating to this claim. The town looks forward to this matter being resolved in a timely manner and in the best interests of all parties involved. The Town of Cochrane has to date made every reasonable effort to resolve the claim against it, without success.
The town's position as to the merits of the claim against it are set out in its filed amended statement of defence. The town’s filing of an amended statement of defence and related third party claim has been upon the advice of its legal counsel, appointed by its insurers.
The following background summary was prepared by legal counsel for the town, appointed by its insurers in this action:
An action relating a June 2007 slope failure has been commenced against the Town of Cochrane by Condominium Corporation No. 9412784 "The Villas of Gleneagles". An amended, amended statement of claim was filed by the Villas on June 11, 2012. On September 20, 2012, the town filed an amended statement of defence in response to the amended, amended statement of claim. The town's position relating to the claim is detailed in its amended statement of defence. In summary, the town denies that there is any merit whatsoever to the claims being made against it by the Villas for the detailed reasons set out in the amended statement of defence.
Upon the advice of legal counsel for the insurer acting on the town’s behalf, and in accord with the applicable limitation period for doing so, the town issued a third party claim on January 25, 2013. In the normal course, allegations of liability of the type set out in the third party claim would be insured liabilities. John and Mary Downing, and others, are named as third party defendants in that claim. The third party defendants are understood to be property owners of certain of the individual Villas as at June, 2007. The identities of the third defendants were ascertained by legal counsel reviewing available property records. These records do not disclose the age of any of the third party defendants.
The third party claim was required to be served on the third party defendants, including John and Mary Downing, within the time limitations set out in the rules of court. Accordingly, legal counsel for the town instructed service in the usual course (i.e. by process server).
On February 6, 2013, legal counsel received a letter from John Downing advising, amongst other things, that he was 96 years of age and that Mary Downing was 88 years of age. Immediately upon receipt of John Downing's letter of February 6, 2013, legal counsel contacted John Downing. Legal counsel for the town advised John Downing that he was unaware of the age or personal circumstances of either John or Mary Downing prior to having received John Downing's letter earlier in the day, and that neither John nor Mary Downing need take any steps at this time to formally respond to the third party claim. Legal counsel for the town asked John Downing if he had an adult child with whom legal counsel for the Town should discuss this matter. John Downing advised that legal counsel should contact his son, David Downing.
Legal counsel for the insurer acting on the town’s behalf immediately contacted David Downing (i.e., on the afternoon of February 6, 2013) and confirmed his discussion with John Downing and that it was appropriate to discuss this matter with him. The background to the claim was explained to David Downing. Legal counsel for the town confirmed that no formal reply to the third party on behalf of John Downing or Mary Downing was required at this time. Legal counsel for the town indicated to David Downing that he expected that John and Mary Downing would have homeowners insurance which would respond to the third party claim.
David Downing indicated that he was in the process of contacting the insurer of John and Mary Downing. Legal counsel for the town wrote to David Downing on the morning of February 7, 2013 providing him with a copy of the third party claim and then indicated that "this will confirm that nothing is required from your parents at this time by way of a response to the third party claim and that you will be contacting your parent's insurance company to advise them of this claim". Legal counsel for the town also then indicated that his contact information was set out in the third party claim should David Downing have any questions or concerns.
Legal counsel for the town received a telephone call from a representative of the insurer of John and Mary Downing on February 8, 2013 and has since that date exchanged voicemail messages and had a lengthy discussion with John and Mary Downing's insurer, based upon which legal counsel for the town understands that the third party claim against John and Mary Downing will be handled by their insurer in the normal course.
