Thompson Bros. (Constr.) Ltd. v., 2011 ABQB 124

Court of Queen ’ s Bench of Alberta Citation: Thompson Bros. (Constr.) Ltd. v. 823334 Alberta Ltd., 2011 ABQB 124 Date: 20110301 Docket: 0603 05693 Registry: Edmonton Between: Thompson Bros. (Constr.) Ltd. Plaintiff - and - 823334 Alberta Ltd. and Stuart Eggleton Defendant _______________________________________________________ Memorandum of Decision of W. Breitkreuz, Master in Chambers _______________________________________________________ [ 1 ] This is an application for

summary judgment by the defendants on the basis of the Limitations Act . [ 2 ] The work was done in the fall of 2002 and billed to the numbered company (823) on December 3, 2002 in the sum of $220,074.50 plus GST in the sum of $15,405.22. On December 4, 2002, $60,000.00 was paid and on March 10, 2003 a further $60,000.00 was paid, apparently by Stuart Eggleton personally (p. 22 of Larry Thompson’s cross examination). [ 3 ] This is one of those classic cases where it is difficult to determine who the contracting parties were, except for the plaintiff.

[ 3 ] This is one of those classic cases where it is difficult to determine who the contracting parties were, except for the plaintiff. The defendants in addition to the main defendants carry on business under two other corporate entities, namely 997045 Alberta Ltd. (997) and Celtic Homes Inc. As is often the case in this type of a dispute, everything rolled along smoothly until the work was completed, apparently to the defendants’ satisfaction, until it reached the time for payment stages.

Then an issue arose as to which one of these various entities the plaintiff was working for. [ 4 ] The evidence is clear that 823 was the owner of a lot in the town of Morinville on which work was performed by the plaintiff, and the two other corporate entities owned by Stuart Eggleton. namely 997 and Celtic Homes Ltd. owned the adjoining lot, and work on that lot was also being performed by the plaintiff. [ 5 ] The evidence also shows that services were provided to Stuart Eggleton personally. Defence counsel asked Mr.

Eggleton on his cross examination on affidavit the following: Q Okay, and just generally give me an idea of what services Thompson Brothers provided? A On my land we had to build a berm on the north end. Q Okay. A A berm on the west, on the west side, and all the other work was pretty well performed on Celtic’s land. [ 6 ] On August 3 the plaintiff received the following letter from defendants’ counsel as follows: Dear Sir: Re: 997045 Alberta Ltd. - Morinville Development Our office acts on behalf of Mr. Stu Eggleton and 997045 Alberta Ltd. Mr.

Eggleton has asked that I write to you concerning the legal proceedings that have been commenced against Celtic Homes Inc., Sean McGeown and Chris Whelehan. Attached is a copy of the Statement of Claim that has been issued on behalf of 997045 Alberta Ltd. The amount that is being claimed includes the amounts owing to Thompson Bros. (Constr.) Ltd. Notwithstanding, could you please fax to me copies of all of your invoices relating to the Morinville Development, together with details as to the payments that have been made.

I want to ascertain with certainty the amounts paid to you, and the balance that remains owing. Also attached is a copy of a Statement of Defence filed on behalf of Celtic Homes Inc. You will see from this Statement of Defence that Celtic Homes Inc. is denying that they requested any of the work to be done. Please confirm that this is not correct. My understanding is that Sean McGeown and/or Chris Whelehan directed what work was to be done to their site. Please confirm.

Could you also advise as to whether you have anything in writing to or from Celtic Homes Inc. confirming the work done to their site was in fact requested by Celtic Homes Inc. Lastly, could you please provide a

summary as to what work you did to the Celtic lands, and what portion of your invoices relate to the work done to the Celtic lands. I look forward to hearing from you in relation to the above. Yours truly, [ 7 ] There is no “without prejudice” notation on the letter.

[ 8 ] The letter is dated August 3, 2004 and the plaintiff’s statement of claim was issued on May 9, 2006, well within the two year limitation period. [ 9 ] However, Mr. Tkachuk points out that there is no reference at all in the letter to the 823 defendant and that accordingly the letter cannot possibly be construed as an acknowledgment in writing by 823's agent. I agree. [ 10 ] He also argues that the letter cannot be construed as an acknowledgement by Stuart Eggleton or 997 of the debt owing within the Limitations Act . I do not agree.

I note that I do not need to decide anything about 997 as it is not a named defendant but Stuart Eggleton is and I think there certainly is room for argument that the letter could be construed as an acknowledgment of liability by Stuart Eggleton. The letter begins with “Our office acts on behalf of Mr. Stu Eggleton and 997045 Alberta Ltd.” There are two sentences in the first paragraph that could be construed in the manner I have suggested. [ 11 ] They are the following sentences: 1. The amount that is being claimed includes the amounts owing to Thompson Bros. (Constr.) Ltd. 2.

I want to ascertain with certainty the amounts paid to you, and the balance that remains owing. [ 12 ] The application is dismissed as it relates to the defendant Stuart Eggleton, and is allowed as it relates to the corporate defendant. [ 13 ] Success has been divided and consequently each party will bear its own costs of the application. Heard on the 24 th day of November, 2010. Dated at the City of Edmonton, Alberta this 1st day of March, 2011. W. Breitkreuz M.C.C.Q.B.A. Appearances: David Wolanski Hodgson Payne

for the Plaintiff Douglas Tkachuk Reynolds Mirth Richards & Farmer LLP for the Defendants