Consolidated Gypsum Supply Ltd. v. Stratum Developments Inc., 2011 ABQB 262

Court of Queen ’ s Bench of Alberta Citation: Consolidated Gypsum Supply Ltd. v. Stratum Developments Inc., 2011 ABQB 262 Date: 20110414 Docket: 1003 01822 Registry: Edmonton Between: Consolidated Gypsum Supply Ltd. Plaintiff - and - Stratum Developments Inc., Mega Building Systems Inc. and Darren Newnham Defendants _______________________________________________________ Memorandum of Decision of W. Breitkreuz, Master in Chambers _______________________________________________________ [ 1 ] There are three separate

summary judgment applications in this application: 1.

Summary judgment against the defendant, Mega Building Systems Inc., changed to Mega Structures Ltd. by consent order dated December 21, 2010, in the sum of $16,321.31. 2.

Summary judgment against the defendant, Stratum Developments Inc. in the sum of $27,553.69.

Summary judgment against the defendant, Darren Newnham in the sum of $27,553.69. [ 2 ] I reserved my judgment on item number 1and will deal with that in paragraph 3. Counsel for Stratum did not oppose the claim against it (that is item number 2) and I granted judgment against Stratum when the application was heard. In item number 3, I gave reasons for dismissing the claim against Mr. Newnham and indicated that I would give reasons for that in writing. [ 3 ] I have determined that there is no genuine triable issue in respect of the claim against Mega for the simple reason that in Mr.

Peterson’s affidavit, representing Mega, he attached exhibit E which is an e-mail from Stuart MacInnes, which Mr.

Peterson acknowledged to be an authorized agent of Mega, in which he states “there is an additional $16,000.00 from July that I think they are prepared to wait for to the end of August ...” The e-mail is signed by Stuart MacInnes, VP Finance & Administration. [ 4 ] Accordingly there will be judgment against Mega Structures Ltd. in the amount claimed together with interest as claimed. [ 5 ] I must also deal with whether the judgments against Mega and Stratum are joint and several and am satisfied from case law that the $16,321.31 owing by Mega is a joint and several judgment to that extent only with the judgment against Stratum.

In other words Mega is not liable for the additional difference between $27,533.69 and $16,321.31. [ 6 ] That leaves only the claim against Darren Newnham personally. The credit application must be seen to understand the reason I am not prepared to give judgment against Darren Newnham personally. A copy of the credit application is attached. [ 7 ] At the conclusion of the application I told counsel for the plaintiff and Newnham that my

interpretation of the signature provision leaves room for doubt whether it was the intention of any of the parties that any individual would be liable. During the application there was a very thorough discussion of the various possibilities raised by the arrangement or configuration of the signature provision of this credit application. [ 8 ] One of the possibilities, which raises enough doubt to deny

summary judgment is that the joint and several simply refers to the two companies provided for in the form of agreement. So even though in this case the same company is inserted twice, the form is designed for a possibility of more than one company, but in this case it was completed twice by the same company and Phil Moline signed it in the right place in his capacity as a director, and Darren Newnham signed it in the wrong place instead of in the same provision provided under the name and position of director of construction. There is no evidence that the form was ever returned to Mr.

Moline to get his signature in the personal liability provision, and there was no request to Mr. Newnham to get his signature in the provision provided for as a director of the company. It appears to me the credit provider, that is Consolidated Gypsum Supply Ltd. was satisfied that Mr. Newnham’s signature being where it was could be construed as being intended to sign for the company, in the same way that Mr. Moline’s signature would be effective as a director of the company. [ 9 ] There are possibly other

interpretations, and Mr. Mintz strenuously argued that there are, but the possibility that my

interpretation is correct means the defendant has rebutted the prima facie case presented by the plaintiff. [ 10 ] Accordingly the application against Darren Newnham is dismissed with costs on the appropriate column. [ 11 ] The plaintiff will have its costs against the corporate defendants on the appropriate column as well as the contractual interest provided for in the agreement and claimed in the statement of claim. Heard on the 7 th day of February, 2011.

Dated at the City of Edmonton, Alberta this 14 th day of April, 2011. W. Breitkreuz M.C.C.Q.B.A. Appearances: Bruce Mintz Mintz Law for the Plaintiff Anthony Dekens Bishop & McKenzie LLP for the Defendants, Darren Newnham and Stratum Developments Inc. Kelly Peterson Mega Structures unrepresented litigant