WESTMOUNT TRAVEL ASSOCIATES LTD. Plaintiff - v. -, 2003 ABQB 301

Westmount Travel Associates Ltd. v. Medquest Inc., 2003 ABQB 301 Date: 2003 04 02 Action No. 0203 16726 IN THE COURT OF QUEEN'S BENCH OF ALBERTA JUDICIAL DISTRICT OF EDMONTON BETWEEN: WESTMOUNT TRAVEL ASSOCIATES LTD. Plaintiff - and - MEDQUEST INC., MEDICAL SERVICES INTERNATIONAL INC., ANGLO-CANADIAN INVESTMENTS LIMITED AND ROBERT TALBOT; DR. PAGE EDGAR; KATE TALBOT; MANFRED WIEDEMEYER; MACPHERSON STETSON; BRADLEY KING; ANTHANASTOS TERZAKIS; SASTEE BACHAN; ANDRE ALBARUS AND CHEYON BLACKWOOD Defendants - and- MEDQUEST INC.

Plaintiff by Counterclaim - and - WESTMOUNT TRAVEL ASSOCIATES LTD., DALE STENGEL AND HOLLY STENGEL Defendants by Counterclaim _______________________________________________________ REASONS FOR DECISION of

M. FUNDUK , Master in Chambers _______________________________________________________ APPEARANCES: J. Holder Counsel for the Plaintiff M. Wiedemeyer in person “I understand that the courts were not born yesterday ...” [ Dover Corporation (Canada) Limited v. Maison Holdings Ltd., 1975 CanLII 277 (AB KB) , [1976] 6 W.W.R. 464, p. 467] [ 1 ] This is an application by the Defendant Wiedemeyer for an order setting aside the default judgment against him. [ 2 ] The lawsuit was started October 17, 2002. [ 3 ] The allegations relevant to Wiedemeyer are as follows: 2.

The Plaintiff has had a running account with the corporate Defendants since 1997 and there is now due and owing for airfare as of June 8, 2002 $19,288.89. 3. The Plaintiff has demanded payment of the outstanding account from the Defendants Medquest Inc. and Medical Services International Inc. and Anglo-Canadian Investments Limited, (hereinafter sometimes referred to as the “corporate Defendants”) and those Defendants have refused to pay the same. The Plaintiff claims jointly and severely against the corporate Defendants the sum of $19,288.89 plus interest commencing June 8, 2002 until paid in full. . . . . . 5.

Further and in the alternative, the Plaintiff says that the individual Defendants all received a benefit from the Plaintiffs goods and services including the following: . . . . . iv) the Defendant Manfred Wiedemeyer is the accountant for the Defendant corporations and he obtained and used airfare as disclosed in invoice 19183 in the amount of $1,652.41;

. . . . . 6. The Plaintiff pleads the proceeding paragraphs and says that the individual Defendants all received personal benefits from the Plaintiffs goods and services and the Plaintiff claims for quantum merit against the individual Defendants as follows; . . . . . iv) Manfred Wiedemeyer in the amount of $1,652.41; [ 4 ] In the prayer for relief the Plaintiff claims “further and in the alternative” judgment against Wiedemeyer for $1,652.41. [ 5 ] The statement of claim was not done by a lawyer. It was done by “Dale Stengel, agent for the Plaintiff.” This is a breach of s. 106(1)(

c) Legal Profession Act: Professional Sign Crafters

(1988) Ltd. v. Wedekind , 1994 CanLII 9245 (AB KB) , 19 Alta. L.R. (3d) 53 (Q.B.) . [ 6 ] Having said that, the Plaintiff was represented by counsel, Mr. Holder, on the present application. The Plaintiff was also represented by a lawyer as agent for Mr. Holder on the March 21 application before me. I will refer to it later. [ 7 ] The Court file does not have on it a Rule 554(2) notice that Mr. Holder is now the Plaintiff’s lawyer. If he intends to remain so he must file the appropriate notice. [ 8 ] The first issue that Wiedemeyer raises is that he was never served with the statement of claim.

To get the default judgment Stengel swore an affidavit that he had served Wiedemeyer with the statement of claim at the office of the second defendant on December 20, 2002. [ 9 ] This is now Stengel’s evidence of what happened on that date: 2. I did on the 20 th day of December 2002 personally serve the Defendant, Manfred Wiedemeyer at the offices of the Defendant, Medical Services International Inc. 14926 - 45 Avenue, Edmonton, Alberta with a true copy of Statement of Claim filed herein. 3.

I had previously attended the offices at 14926 - 45 Avenue, Edmonton, Alberta to serve the co-Defendants, Robert Talbot, Medical Services International Inc. and Medquest Inc. and Anglo Canadian Investments Limited. Robert Talbot then filed Statement of Defences and Counterclaims for those parties on December 6, 2003 acting as agent and attached hereto as exhibit “A” are true copies of the pleading filed by Mr. Talbot. . . . . . 7. I am familiar with Defendant Manfred Wiedemeyer working at the offices of the Defendant, Medical Services International Inc. at 14926 - 45 Avenue, Edmonton, Alberta.

I attended those offices on 20 th day of December 2002 to serve Robert Talbot with copies of the Statement of Defences to his counterclaims. 8. The Medical Services International Inc. offices are small and consist of only two offices that have doors. On December 20, 2002, I walked into Robert Talbot’s office and dropped the Statement of Defense on Mr. Talkbot’s desk. I turned to leave and I saw Manfred

Wiedemeyer sitting at the desk in the second office. I had in my hand the envelope containing the Statement of Claim addressed to him and I walked towards Manfred Wiedemeyer’s office. I was able to call out Manfred Wiedemeyer’s name from the office doorway before Mr. Talbot managed to get between Manfred Wiedemeyer and myself. I threw the envelope into Manfred Wiedemeyer’s office towards Manfred Wiedemeyer telling him that he was served with the Statement of Claim as Robert Talbot was assaulting me by pushing me up against the wall and threw me out of the office. 9.

Robert Talbot and Manfred Wiedemeyer were the only ones present in the office and I verily believe that Manfred Wiedemeyer was trying to avoid service of the Statement of Claim and Robert Talbot was attempting to physically prevent me from serving Manfred Wiedemeyer. [ 10 ] Wiedemeyer’s evidence is this: 4. On March 13, 2003 (Exhibit

A) I was handed a fax that was sent to Medquest Inc. This fax was addressed to Medquest Inc. Attn: Manfred Wiedemeyer. Attached to the letter are invoices addressed to Medquest Inc. not Manfred Weidemeyer. I have never worked for Medquest as an employee, I am not and have never been an Officer, Director or Shareholder of Medquest Inc. I have filed tax returns for Medquest on a contract basis. In this letter of March 13, 2003, Mr. Stengel admits that he did not serve me but threw the claim into my office. First and Foremost, no documents were thrown into my office on December 20, 2002.

On December 20, 2002 I was not approached by anyone and asked to identify myself or if my name was Manfred Wiedemeyer. I believe that on December 20, 2002 I heard an individual entered the offices of Medical Services International and started shouting that he wished to speak to Manfred Webber. It is my understanding that Robert Talbot came out of his office to speak to this individual. I have been told and believe it to be true that this individual was told that there was no Manfred Webber in the office and the individual was asked to leave.

I was told that this individual then threw a sealed envelope on the floor and left the office. This conversation was carried on in loud voices by the individuals involved. I came out of my office to see what was going on as the individual was leaving the main office. In the brief glance that I got of the individual I did not recognize him. Mr. Talbot picked up the envelope and put it in his office. I do not believe that he even opened it. I have been told and believe it to be true that Mr.

Talbot immediately sent a fax to Westmount Travel attention Dale Stengel indicating that there was no Manfred Webber in the Medical Services Office. (Exhibit B) [ 11 ] I would point out that on both hearings before me Wiedemeyer said he was hard of hearing. [ 12 ] Wiedemeyer’s evidence that Stengel said “Manfred Webber” is not credible. First, he is hard of hearing. Second, Stengel has the right name on the statement of claim and on other documents so he knows the right name.

Third, there is no evidence by Talbot, who is orchestrating all this. [ 13 ] Wiedemeyer’s evidence that the envelope, which he says he never saw, had a name different than his on it is not credible. How does he know that name was on the envelope if he never saw it? Again, Stengel has the right name. Neither Wiedemeyer or his cohort Talbot produce the envelope. Talbot was in the courtroom in both hearings before me. [ 14 ] The incident happened in the office of the second defendant.

Talbot and Wiedemeyer are both officers of this second defendant, Talbot as president and a director and Wiedemeyer as corporate secretary and “chief financial officer”. Each has an office there and each was present when Stengel went to serve Wiedemeyer. [ 15 ] Wiedemeyer’s evidence that Talbot picked up the envelope, took it to his, Talbot’s office, never opened it, never gave it to Wiedemeyer and he did not know what was written on it and what was in it is a fabrication. Talbot and Wiedemeyer are cohorts.

I am not a neophyte to human experience. [ 16 ] I note that, aside from Talbot’s pleading, the pleadings filed by the other defendants show they are done by Talbot as their “agent”, which is a violation of s. 106 (1)(

c) Legal Profession Act. [ 17 ] In addition to the statements of defence filed by “agent” Talbot there are $500,000 counterclaims. [ 18 ] It is apparent to me that this lawsuit will be a problem procedurally if “agent” Talbot acts for anyone but himself.

[ 19 ] Wiedmeyer’s application first came before Master Quinn on March 20. Wiedemeyer was not present. Talbot appeared as his “agent”. The notice of motion and affidavit also have Talbot’s name on them as “agent” for Wiedemeyer. Master Quinn would have none of that. He put the application over to March 21 with a direction that Wiedemeyer appear on it. [ 20 ] On March 21 the application was before me. The Plaintiff wanted to cross-examine Wiedemeyer. I ordered that the cross- examination take place at 2:00 p.m. March 27 and the application to be back on April 1 st . A transcript is in evidence.

I put a stay on any further enforcement of the default judgment. I also said, in response to a question by Wiedemeyer, that he could indeed pay the amount of the claim into Court to get his automobile which was seized released. [ 21 ] Wiedemeyer was unhappy with what I ordered on March 21 st . He now complains that he was unfairly dealt with. What I said and what I ordered is a matter of Court record.

The Plaintiff has a right to cross-examine Wiedemeyer. [ 22 ] Talbot was in the public gallery on March 21 st . [ 23 ] On March 26 Talbot snuck in and got an ex parte order from Master Quinn letting him be present at the cross-examination. [ 24 ] On March 27 Mr. Holder was understandably surprised when, at the cross-examination, Talbot was there and he then learned about the ex parte order. Needless to say, nothing concrete happened. I agree with Mr. Holder’s position on the abortive cross- examination. It is obvious to me that Talbot is a problem. [ 25 ] I now turn to the present application. Mr.

Talbot was again present. [ 26 ] Mr. Holder, after a short consultation with the Plaintiff, decided to let the application be heard on its merits instead of getting into the inability to do a proper cross-examination. That is sensible, given the amount of the claim and that Wiedemeyer is just a bit player in this lawsuit. [ 27 ] I reject Wiedemeyer’s evidence that he did not know about the lawsuit. This is just a fabrication orchestrated by Talbot. [ 28 ] There is no evidence by Talbot to support what Wiedemeyer says. Why not? I know why not.

I draw an extremely adverse inference against Wiedemeyer. [ 29 ] However, notwithstanding that, I will grant the application but on stiff terms. I cannot say that there is not a viable defence. The Plaintiff invoiced the first defendant and the follow up payment request is also to it. [ 30 ] I will not get into case law. [ 31 ] There are the costs of the default judgment, a seizure, three court appearances and an abortive cross-examination. It is time for Wiedemeryer to pay for all that. [ 32 ] The default judgment is set aside on the following terms:

1 Wiedemeyer will pay $1,000 cash for all the Plaintiff’s thrown away costs. 2 A statement of defence will be delivered 10 days after the $1,000 is paid. 3 If Wiedemeyer wants to act for himself he must forthwith file an address for service for himself. Talbot cannot be his “agent”. 4 If Wiedemeyer needs someone to help him in hearing it cannot be Talbot or anyone else who is a party in this lawsuit. 5 If conditions 1 and 2 are met the automobile will be released to Wiedemeyer. HEARD on the 1 st day of April, 2003. DATED at Edmonton, Alberta this 2 nd day of April, 2003. __________________________ M. FUNDUK M.C. C.Q.B.A.