Quinney v. Gillor Trucking Ltd., 2012 ABQB 107

Court of Queen ’ s Bench of Alberta Citation: Quinney v. Gillor Trucking Ltd., 2012 ABQB 107 Date: 20120216 Docket: 1103 12018 Registry: Edmonton Between: Arthur D. Quinney, QSI Trucking Ltd., Quintel Communications and 1206327 Alberta Ltd. Plaintiffs - and - Gillor Trucking Ltd., Gilles Cloutier and Lorraine Cloutier Defendants _______________________________________________________ Memorandum of Decision of W. Breitkreuz, Master in Chambers _______________________________________________________ [ 1 ] This is an application by the plaintiffs for

summary judgment for rent owing and the defendants ’ share of utilities paid by the plaintiffs, and for repayment of a loan in the sum of $65,000.00 which was by electronic transfer from the plaintiffs ’ bank account to the defendants ’ bank account. [ 2 ] I am satisfied from a review of the evidence of the personal plaintiff that the plaintiffs have established a claim that requires a response from the defendants to show that there is a genuine issue for trial.

This latter aspect has been phrased in various ways, the two most common being to show that their defence is not doomed to failure, or that their defence has a reasonable prospect of success. ( Murphy Oil Company Ltd. v. The Predator Corporation Ltd. , 2006 ABCA 69 ).

[ 3 ] The only evidence provided by the defendants is an affidavit sworn by Emily Tarney, but her most significant evidence arises from the very effective questioning of her on that affidavit by Mr. Kirwin. [ 4 ] She describes her duties and her firm ’ s services for the defendants as including “ accounts receivable, accounts payable, safety administration, reception, and general administrative duties. ” Page 4 of transcript. [ 5 ] She confirms that much of her evidence is based on various information Mr.

Gillor passed on to her, although some of it comes from her work experience there and from being present in discussions between Mr. Gillor and Mr. Quinney. The evidence establishes that the defendants rented industrial and office space from the plaintiffs but unfortunately it also establishes that nothing was ever reduced to writing. The plaintiffs submitted invoices commencing November 30, 2009 and ending on May 31, 2011.

The invoices variously describe they are for office rent, shop rent, garbage removal, and natural gas, internet services, and some whose services are not immediately apparent. [ 6 ] The evidence and questioning of Ms. Tarney show that none of these invoices were objected to, and were faithfully posted as accounts payable in the course of her accounting services for the defendants.

In fact at one point she appears to have been preparing financial statements but had not received the most recent rent invoice from the plaintiffs so she sent an e-mail to the plaintiffs noting that she has not received all of the rental invoices and would the plaintiffs please provide them. The rent was increased on June 1, 2010 from $5,300 per month to $6,500 per month, and continuing on as before, no complaint was ever made to the plaintiffs.

The invoiced amounts were posted as accounts payable in the defendants ’ bookkeeping system. [ 7 ] I have no reservations about granting the numbered company plaintiff judgment for the rental claimed. The evidence shows that 1206327 Alberta Ltd. is the owner and landlord of the premises. [ 8 ] The same applies to utilities. It was only after the personal plaintiff and the personal defendants had a falling out that the issue of the amount of utilities and amounts claimed for communication services and garbage removal was raised as not being an appropriate amount.

The plaintiffs take the position there was no other way of reasonably apportioning these services other than equally, because in his opinion the “ consumption ” of these services was approximately equal between his business being carried out from those premises and the defendants ’ business being carried out in the other half of the premises. [ 9 ] I am unable to find any justification for directing a trial in that matter, or approving the usefulness of an examination into the precise division of those services on a quantum meruit basis.

Judgment will be granted for this aspect of the claim in the amount claimed. [ 10 ] The loan portion is easy. Starting a page 19, line 20 of Ms. Tarney ’ s questioning we read the following: Q Do you understand that in this lawsuit and in this particular application Mr. Quinney is claiming repayment of a 65,000 - dollar loan he made personally to Gillor Trucking Ltd.? A I understand that he claims that he forwarded the amount of 65,000, and we acknowledge that, yes. Q Okay. You acknowledge that he loaned that money to Gillor? A Yes, as a line of credit.

Q All right. And it has not been repaid? A No, it has not. [ 11 ] For this aspect of the case the judgment will be against Gillor Trucking Ltd. in favour of Arthur D. Quinney personally. [ 12 ] Finally, I have a comment to make about the evidence provided by the defendants. At page 7 of the transcript of Ms. Tarney ’ s questioning it is established that Mr. Cloutier is a “ very hands on ” owner of the company who gave the instructions to Ms. Tarney regarding what is to be done. The evidence is that he was there every day. And where is his evidence? [ 13 ] In Chrusciel v.

Nelson Lumber Co. (1992) 48 Construction Law Reports 104 Master Funduk conceded that hearsay evidence is admissible to oppose the

summary judgment application but criticized the respondents for not producing direct evidence without offering any explanation as to why direct evidence was not provided when it seemed readily available. He drew an adverse inference against the respondents for failure to put forward direct evidence instead of hearsay evidence. [ 14 ] I need not draw an adverse inference in this case; it is sufficient to say that the evidence provided by the respondents is inadequate to overcome the case presented by the plaintiffs. [ 15 ] There will be judgment as indicated earlier together with costs on the appropriate column.

There will not be separate costs for the separate judgments by separate plaintiffs against separate defendants. There will be one set of costs on the appropriate column calculated on the basis of the total judgments. Heard on the 8 th day of November, 2011. Dated at the City of Edmonton, Alberta this 16 th day of February, 2012. W. Breitkreuz M.C.C.Q.B.A. Appearances: Patrick Kirwin Kirwin LLP for the Plaintiffs

Jon Rossall, Q.C. McLennan Ross LLP for the Defendants