Thompson Bros. (Constr.) Ltd. v., 2012 ABQB 604

Court of Queen ’ s Bench of Alberta Citation: Thompson Bros. (Constr.) Ltd. v. 823334 Alberta Ltd., 2012 ABQB 604 Date: 20121003 Docket: 0603 05693 Registry: Edmonton Between: Thompson Bros. (Constr.) Ltd. Respondent (Plaintiff) - and - 823334 Alberta Ltd. and Stuart Eggleton Applicants (Defendants) Corrected judgment: A corrigendum was issued on October 10, 2012; the corrections have been made to the text and the corrigendum is appended to this judgment. ______________________________________________________ Reasons for Judgment of the Honourable Mr. Justice R.

Paul Belzil The Appeal [ 1 ] The Defendant, Stuart Eggleton, appeals a decision of the Master in Chambers denying his application for

Summary Judgment. Factual Background

[ 2 ] On May 9, 2006 the Plaintiff issued a Statement of Claim against 823334 Alberta Ltd. and Stuart Eggleton claiming $116,548.71 together with pre-judgment interest representing the value of excavating, site grading and the construction of access roads which the Plaintiff alleges was completed at the request of the Defendants in 2002. [ 3 ] On May 18, 2006 the Defendants filed a Statement of Defence denying liability for the claim inter alia on the basis that it was barred by the provisions of the Limitations Act RSA 2000, c. L-12. [ 4 ] The Defendants brought an application for

summary judgment before Master Breitkreuz. [ 5 ] On March 1, 2011 he issued a Memorandum of Decision granting the application respecting 823334 Alberta Ltd. while dismissing the application of Stuart Eggleton. [ 6 ] No appeal is taken from the granting of

summary judgment in favour of the corporate Defendant. [ 7 ] The dismissal of the application of Eggleton was based on the finding by the Master that he had acknowledged the debt pursuant to ss. 8 & 9 of the Limitations Act and thus the claim against him should continue notwithstanding that it was filed more than two years after performance of the contract. [ 8 ] The alleged acknowledgment is contained in a letter dated August 3, 2004 forwarded by Eggleton ’ s solicitor which reads as follows: August 3, 2004 Via Fax Attention: Larry Thompson Thompson Bros. (Constr.) Ltd. 411 South Avenue PO.Box4300 EDMONTON AB T7X 3B4 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

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, REYNOLDS, MIRTH, RICHARDS & FARMER LLP PER: DOUGLAS N. TKACHUK DNT/aa cc via fax: Stu Eggleton [ 9 ] In dismissing Eggleton ’ s application the Master observed that the letter was not noted as being “ Without Prejudice ” and referenced two sentences that could be construed as being an acknowledgment: 1. The amount that is being claimed includes the amounts owing to Thompson Bros. (Constr.) Ltd. 2.

I want to ascertain with certainty the amount paid to you, and the balance that remains owing. Standard of Review [ 10 ] Both parties agree that the standard of review from a decision of the Master is correctness; Bahcheli v. Yorkton Securities Inc. , 2012 ABCA 166 at para. 30 . Discussion [ 11 ] The usual test to be applied on a

summary judgment application is whether it is plain and obvious that the action cannot succeed: De Shazo v. Nations Energy Company Ltd. , 2005 ABCA 241 at para. 17 and Murphy Oil v. Predator Corp. 2006 ABCA 69 at para. 25 . [ 12 ] However, it is also recognized in the jurisprudence that there are many types of

summary judgment applications and that some involve an

interpretation of documents. In such a case the test for

summary judgment is not whether the issue is beyond doubt but rather whether the issue can fairly be decided on the record before the Court. Tottrup v. Clearwater (Municipal District No. 99) , 2006 ABCA 380 at para. 11 .

[ 13 ] The relevant portions of ss. 8 and 9 or the Limitations Act dealing with acknowledgments read as follows:

(2) Subject to subsections (3) and (4) and

section 9 , if a person liable in respect of a claim acknowledges the claim, or makes a part payment in respect of the claim, before the expiration of the limitation period applicable to the claim, the operation of the limitation period begins again at the time of the acknowledgment or part payment.

(3) A claim may be acknowledged only by an admission of the person liable in respect of it that the sum claimed is due and unpaid, but an acknowledgment is effective (

a) whether or not a promise to pay can be implied from it, and (

b) whether or not it is accompanied with a refusal to pay. 9(1) An agreement and an acknowledgment must be in writing and signed by the person adversely affected.

(2) An agreement made by or with an agent has the same effect as if made by or with the principal. [ 14 ] The term “ acknowledgment ” is not defined in the Act . The Oxford English Dictionary defines the term “ acknowledge ” as to recognize, accept or admit the truth of. [ 15 ] In Tardif (Estate of) v.

Wong , 2002 ABCA 121 the Alberta Court of Appeal at para. 26 held that statutory provisions creating limitation periods must be strictly construed in favour of the plaintiff. [ 16 ] Counsel for the Appellant submits that the letter of August 3, 2004 does not contain an express admission of liability for the debt by Eggleton. [ 17 ] While true, the issue is whether the letter read in context and as a whole could be interpreted as an acknowledgment of liability for the debt by Eggleton? [ 18 ] Whether a letter does or does not constitute an acknowledgment pursuant to ss. 8 & 9 of the Act is a matter of

interpretation in factual context. [ 19 ] I do not accept that it can be established on this evidentiary record that Master Breitkreuz was in error in deciding that the letter of August 3, 2004, could be interpreted as an acknowledgement. [ 20 ] Following the reasoning in Tottrup , the issue cannot be fairly decided on the record before the Court. In other words the letter of August 3, 2004, must be placed in a proper evidentiary context in order to be properly interpreted by the Court.

The proper evidentiary context can only be established at trial. [ 21 ] It bears noting, that at trial, Eggleton is not precluded from raising, in addition to the argument that the letter of August 3, 2004 is not an acknowledgement, any other defence to the claim including that he did not personally contract with the Plaintiff.

[ 22 ] In my view, the Master correctly concluded that the letter could be construed as an acknowledgment of the debt by Eggleton and that accordingly this is not an appropriate case to grant

summary judgment. Conclusion and Order [ 23 ] The appeal is dismissed with costs. Heard on the 25 th day of September, 2012. Dated at the City of Edmonton, Alberta this 2 nd day of October, 2012. R. Paul Belzil J.C.Q.B.A. Appearances: Douglas N. Tkachuk Reynolds Mirth Richards & Farmer LLP for the Applicant (Defendant - Stuart Eggleton) Roderick C. Payne Hustwick Payne for the Respondent (Plaintiff) _____________________________________________________ Corrigendum of the Reasons for Judgment of The Honourable Mr. Justice R. Paul Belzil

_______________________________________________________ Paragraph 5 was changed to read the following: [5] On March 1, 2011 he issued a Memorandum of Decision granting the application respecting 823334 Alberta Ltd. while dismissing the application of Stuart Eggleton.