Alberta Treasury Branches v. New Hatchwear Co. Ltd., 2012 ABQB 788

Court of Queen ’ s Bench of Alberta Citation: Alberta Treasury Branches v. New Hatchwear Co. Ltd., 2012 ABQB 788 Date: 20121221 Docket: 0901 00389 Registry: Calgary Between: Alberta Treasury Branches Plaintiff - and - The New Hatchwear Co. Ltd., 859260 Alberta Ltd., Sandra Dimitrijevic and Michael Dimitrijevic Defendants The New Hatchwear Co. Ltd. Plaintiff by Counterclaim - and - Alberta Treasury Branches Defendant by Counterclaim _______________________________________________________ Reasons for Judgment of the Honourable Mr. Justice A. G. Park _______________________________________________________

Appeal from the Decision of a Master in Chambers Dated the 25 th day of March, 2011 Filed on the 25 th day of March, 2011 Judgment [ 1 ] Three of the four named Defendants in this action appealed the decision of a Master awarding

summary judgment to the Plaintiff, Alberta Treasury Branches (ATB), against them in the sum of $258,103.87. The three Defendants are 859260 Alberta Ltd. (859260), Sandra Dimitrijevic (SD) and Michael Dimitrijevic (MD). In the same application the Master refused to award

summary judgment to the Plaintiff against the fourth Defendant, The New Hatchwear Co. Ltd. (New Hatchwear). [ 2 ] In January, 2000 ATB entered into a lending agreement with New Hatchwear. Six separate demand promissory notes were provided to ATB by New Hatchwear for monies advanced in six separate loans between January 2000 and February 2007.

Each loan represented a separate advance of monies by ATB and each loan had its own interest rate set out. [ 3 ] New Hatchwear executed a general security agreement in favour of ATB on January 31, 2000 to secure the monetary advances. [ 4 ] On that same date, each of the Appellants executed an identical form of continuing guarantee for an unlimited amount in favour of ATB with respect to the ongoing indebtedness of New Hatchwear. [ 5 ] On October 29, 2008 ATB demanded payment of the total amount outstanding on the loans. It provided a Notice of Intention to Enforce Security to New Hatchwear.

No subsequent payments were made by any of the Defendants in response to the demand. [ 6 ] As a result ATB caused a seizure to be made of New Hatchwear’s assets. After the seizure New Hatchwear was served with a Notice of Intention to Sell those assets. ATB retained Century Services Inc. for advice on disposal of the seized assets. The advice recommended an on-site sale and auction of the assets at the business premises of New Hatchwear to effect a maximum return on the assets. [ 7 ] In February of 2009 Century Services Inc. sold the assets for a net proceeds sum of $18,092.51.

ATB applied that sum to the outstanding indebtedness of New Hatchwear. The final indebtedness owing to ATB amounted to $258,103.87. [ 8 ] ATB commenced this action on January 9, 2009. Prior to the sale of the seized assets all of the Defendants filed a joint Statement of Defence. It alleged as one of the defences, improvident realization of the assets by ATB. [ 9 ] In the application before the Master, SD provided an Affidavit filed on March 14, 2011 and sworn on behalf of all of the Defendants.

In it she alleged Century Services Inc. failed to realize on hundreds of thousands of dollars of inventory, work in progress and available contracts, which could have been fulfilled, had ATB and Century Services Inc. accepted the Defendants’ offer to work with them and deal with New Hatchwear’s customers. She alleged the liquidation by Century Services Inc. was reckless and commercially unreasonable. [ 10 ] The Master set out the correct test for a

summary judgment application in her Reasons for Judgment. It was noted by the

Master that the 3 guarantors argued they had no liability on their guarantees due to the alleged failure of ATB to act in a commerciallyreasonable fashion which resulted in an improvident realization of its security. [11] In considering that argument the Master reviewed the allegations contained in the Affidavit, the Statement of Defence, therelevant clauses in the guarantee, and ATB’s general security agreement. The Master instructed herself on the principles set out in RoyalBank v.

Champ Armstrong Communications Inc., (1990), (AB KB), 73 A.L.R. (2d) 132 (Q.B.) which indicated alender owes a duty of care to the debtor. Finally she recognized the principle that a debtor in the guarantee may contract out of anydefences based on a breach of that duty of care. See Alberta Opportunity Co. v. Schinnour, (1990), 112 A.R. 87 (Alta CA). [12] The Master determined the clauses in the guarantee clearly set out that the 3 guarantors contracted out of any defences theymight possess in relation to liability under the guarantee. However she found clause 8(

f) and 15(

b) of the general security agreementwere not as extensive and clear as the clauses in the guarantee. Based on that finding and the evidence before her she ended with the viewit was not clear that New Hatchwear had no defence to the Statement of Claim. This view was founded on the Affidavit evidence of SDwhich raised a question of the steps taken to realize on New Hatchwear’s assets. The Master noted the allegedly negligent disposal of theassets was handled by Century Services Inc. which was the agent of ATB. She noted ATB may have directed its agent in that disposal ofthe assets. Despite the provisions of clause 8(

f) of the general security agreement which provided ATB would not in any way beresponsible for any negligence or misconduct by its receiver (Century Services Inc.) and clause 15(

b) of the general security agreementwhich provided authority for ATB to deal with the security as it saw fit, the Master found those clauses to not be explicit enough todispose of the improvident realization defence of New Hatchwear and not clear enough to release ATB from potential liability. As aresult she could not indicate there was no genuine issue for trial and ATB’s application for

summary judgment was dismissed as againstNew Hatchwear. [13] The 3 guarantors appealed the Master’s finding on 3 grounds based on errors of law: a. The learned Master erred in her

interpretation of the law of guarantee; b. The learned Master erred in her

interpretation of the wording of the guarantees; and c. The learned Master failed to properly apply the test for

summary judgment. [14] Both counsel in this appeal agreed the Alberta Rules of Court provide the appeal is to be considered on the record of theproceedings before the Master in that no new significant evidence was placed before me. They further agreed the standard of review onan alleged error of law is that of correctness. See Housen v. Nikolaisen, (2002) 2002 SCC 33 , 2 S.C.R. 235 at para. 8. Reasons [15] The Appellants in essence argued that the Master erred in her

interpretation of the wording contained in their identicalguarantees. They pointed to the phrase in para. 2 of the guarantee: “This shall be a continuing guarantee and shall cover any ultimate balance (emphasis added) owing”. They further pointed to the guarantee’s

preamble and para. 10 which specifically use such words as: “the debts and liabilities” of (New Hatchwear) to (ATB)” and further “the indebtedness of (New Hatchwear) to (ATB).” The Appellants argued in looking at the identical guarantee in its entirety, it must be seen that they agreed to guarantee only what isdetermined to be the ultimate balance owing to ATB by New Hatchwear. In that connection the Appellants noted the Master held in

dismissing ATB’s application for

summary judgment against New Hatchwear that a genuine issue for trial existed as to the ultimatebalance owing to ATB. The Appellants submitted their defence of improvident realization could reduce significantly the ultimate balanceto either a nil balance or a much lower balance of any debt owing to ATB. Flowing from that the Appellants argued if the ultimatebalance could not be determined at this time between ATB and New Hatchwear, then any ultimate balance owing by them to ATBcannot be determined at the present time under the guarantees.

Consequently the Appellants submitted the Master erred in holding thatno genuine issue for trial existed respecting their liability on any ultimate balance owing on the guarantees when, at the same time, shefound there was a genuine issue for trial existing on the amount of the debt owing to ATB by New Hatchwear due to the defence ofimprovident realization.

The Appellants took the position until the amount of New Hatchwear’s liability had been determined in a trial,judgment should not be issued against them. [16] Conversely ATB submitted judgment can be awarded against the guarantors despite no action being instituted against theprimary borrower or despite no judgment being obtained against the primary borrower for whatever the reason. [17] It must be recognized that a guarantee is a distinct and separate contract between the lender and the guarantor.

Although aguarantee is generally founded on the existence of a principal obligation between a lender and the primary borrower, (see Kane, J.A. inEdmonton Airport Hotel Co. v.

Credit foncier franco-canadian (1964) (AB CA), 47 D.L.R. (2d) 508 (S.C.C.) at para157), it still remains a separate contractual obligation from any contractual obligations existing between the lender and the primaryborrower. [18] The Appellants argued that despite their guarantee being a separate and distinct agreement from the principle loans, theirliability to ATB is necessarily dependent on and co-existent with the obligations of New Hatchwear and can never be fully removed fromthat relationship.

In support of this position they provided the decision of the Alberta Court of Appeal in First National Mortgage Co. v.L.J.V. Holdings Ltd. (1989) 1989 ABCA 88 , 66 Alta. L.R. (2d) 263. The Appellants noted that decision set out the general rule“where the principle is released from liability by operation of law, the surety will usually be released”.

On a factual determination thedecision ascertained the principle debt was extinguished due to the creditor unilaterally discharging its mortgages and as a result theCourt decided no liability remained for which the guarantors could be held liable. [19] However that decision is to be distinguished factually from the case at bar. There the mortgagees proceeded to final orders offoreclosure on their own initiative and both the trial judge and the Court of Appeal determined the final order for foreclosure completelysatisfied the debts owing under the mortgages.

The Court of Appeal held in circumstances where a debt is fully satisfied, it is as though ithas been paid. Consequently where a debt has been satisfied pursuant to a final order for foreclosure, a guarantor is released fromliability on the debt unless the guarantee contains clear words to the contrary. (See the headnote of the First National case, supra). [20] In the case at bar the debt guaranteed has not been repaid. It remains outstanding in the face of New Hatchwear’s generaldenial and its specific defence of improvident realization.

At some future point New Hatchwear’s debt to ATB may be proven in full or itmay be reduced to a lower balance or a nil balance. However that specific defence must be advanced by New Hatchwear. There has beenno fact finding, unlike the First National decision, that New Hatchwear has been released from liability by operation of law; or bypayment of the debts by New Hatchwear; or by dismissal of ATB’s claim; or by a reduction of the amount owing by a decision in theNew Hatchwear litigation.

ATB is not obligated at all to pursue its attempts to recover anything at all from New Hatchwear before beingable to proceed to claim full payment from the guarantors of New Hatchwear’s liabilities. New Hatchwear must litigate to determine if itsdefences and specifically if its defence of improvident realization are applicable. There is no proof yet that a full portion or some portionof the underlying debt of New Hatchwear have been extinguished.

Only with a resolution of the New Hatchwear litigation where it hasbeen determined New Hatchwear’s debt has been reduced to a nil balance or a part balance as a result of its defences could theguarantors possibly be found to owe ATB nothing or a reduced amount. [21] In considering the argument that the Master erred in the wording of the guarantee and para. 2 specifically, one must look tothe wording of para. 2.

It states: This shall be a continuing guarantee and shall cover any ultimate balance owing to (ATB) by (New Hatchwear), but (ATB) shall not beobliged to take any action or exhaust (its) recourse against (New Hatchwear), or any other guarantor hereunder (...) before requiring orbeing entitled to payment from the undersigned of all debts and liabilities hereby guaranteed. [22] The Appellants point to the words “ultimate balance”. They submit “ultimate” is not a defined term and by applying the general rules of contractual

interpretation, it is to be given its plain and ordinary meaning. Both Black’s Law Dictionary, 5th ed., s.v. and

the Canadian Oxford Dictionary, 2nd ed., s. v. define ultimate, inter alia, as “last” or “final”. The Appellants note the Master ruled a trialwas needed to determine New Hatchwear’s final balance or ultimate balance owing to ATB. Accordingly they submit New Hatchwear’sultimate balance must be determined before their ultimate debt or final balance to ATB can be ascertained. [23] In addition the Appellants direct attention to the guarantee’s

preamble and para. 10. There are found words such as “the debtsand liabilities of (New Hatchwear) to (ATB)” and “the indebtedness of New Hatchwear to ATB”. Again they argue when the guaranteeis taken as a whole, it is plain they have agreed to only guarantee what is ultimately owed by New Hatchwear. They submit what isultimately owed by New Hatchwear must be determined at trail after due consideration of the New Hatchwear defences. [24] The guarantors urged in argument that if any other

interpretation was to be applied to the term “ultimate balance”, ATBshould have used such interpretive wording in the guarantee and then it would not be necessary to apply the contractual rules of givingthe words “ultimate balance” their plain and ordinary meaning. [25] In support of their submission the guarantors relied on the majority judgments of MacDonald and Kane, JJA. in the AlbertaSupreme Court, Appellant Division, (as it then was) in Edmonton Airport Hotel v. Credit foncier franco-canadian, (AB CA), 47 D.L.R. (2d) 508 at para. 49 and para. 160 of their respective judgments.

At para. 49 MacDonald, J.A. stated: However, the amount of the personal judgment that should be awarded against Superstein depends upon the amount realized by the saleof the land and the chattels, the proceeds of which, less “all losses, costs, charges, damages and expenses that it (the respondent) maysuffer, incur or be put to and become liable for by reason of the non-payment of the said mortgage moneys, “ will reduce the liability ofSuperstein under his guarantee. [26] At para. 160 Kane, J.A. stated: The respondent is entitled to judgment against Superstein.

However, the amount of the judgment cannot be determined at this time andaccordingly cannot be enforced at this time: Macdonald v. Clarkson, (AB CA), [1923] 3 W.W.R. 690,19 Alta. L.R.694. It can only be determined after the respondent realizes firstly on its collateral security on the goods and chattels (Dyson v. Morris,[1842] 1 Hare 413, at 423, 11 LJ Ch 241, 66 ER 1094; Okanagan Loan & Invt. Trust Co. v. McDonald, (BC CA),[1935] 1 W.W.R. 481 , 49 B.C.R. 468; Chesler v. Currey, [1955] O.

W.N. 408) and thereafter when the mortgaged lands are sold thedeficiency, if any, between the amount adjudged and declared to be owing under the judgment of Kirby, J., plus interest, subsequentproper costs and expenses, and the principal amount of purchase price agreed to be paid on the sale of the chattels and of the land, willbe the amount of the judgment against Superstein. The judgment of the learned trial judge should be varied accordingly. [27] Flowing from that the guarantors submitted their liability cannot be determined until New Hatchwear’s liability is determinedat trial.

Otherwise if their liability was to be determined before that trial, such liability could be possibly be higher than the amount NewHatchwear is found to owe to ATB. They argued to place such a higher liability on their shoulders would result in a gross injustice.Rather justice would require their liability to be reduced to the level of the New Hatchwear liability. See Standard Chartered Bank Ltd.v. Walker, (1982) 3 All E.R. 938 (C.A.) per Lord Denning M.R. at 943. [28] In addition the guarantors cited the decision of Pax Management Ltd. v.

Canadian Imperial Bank of Commerce, (1992) (SCC), 2 S.C.R. 998 at para. 43 where the Supreme Court of Canada ruled if the actions of a creditor prejudice the valueof its security, the degree of prejudice suffered will reduce any guarantor’s liability. [29] It must be noted that the factual situations in the cases cited by the guarantors are different than the case at bar. In the citedcases the lender chose to proceed against the land and chattels contemporaneously with its action against the guarantors.

Here ATB hasno current obligation or perhaps intention to pursue New Hatchwear in its present litigation against New Hatchwear. It is NewHatchwear’s obligation to advance the litigation to demonstrate its defence of improvident realization possibly will reduce its liability orwill reveal ATB’s actions imperiled the security. [30] In the Edmonton Airport Hotel Co. decision, supra, the Supreme Court of Canada determined a lender could obtain judgmentagainst the guarantor because the guarantee established a separate debt.

Judgment was available to the lender against the guarantor evenwhere the lender could not obtain a judgment against the primary borrower due to an unenforceable debt by operation of law.

[31] Subsequently the Supreme Court of Canada dismissed a guarantor’s argument the lender could not obtain judgment againstthe guarantor in the instance where the lender could not obtain a judgment against the primary borrower due to legislation allowing thelender the ability only to seize the chattels under chattel mortgage which fell under default. In its decision the Supreme Court of Canadarelied on the persuasive authority of the Edmonton Airport Hotel case and found the guarantor liable on the separate debt in the situationwhere the chattel was not repossessed in the default. See C.L.

Hagan Transportation Ltd. v. Canadian Acceptance CorporationLimited, (1974) (SCC), S.C. R. 491. [32] The case of Meridian Developments Ltd. v. Nu West Group Ltd., (1984) 1984 ABCA 75 , 52 A.R. 248 was anAlberta Court of Appeal decision which rejected a guarantor’s argument that judgment for the full amount owed by the guarantor couldnot be obtained by the lender until judgment for any deficiency was obtained by the lender against the defaulting purchaser of landspurchased under an agreement for sale.

In and about 1984 Alberta law required lands recently purchased through agreements for sale tobe sold before any deficiency judgment could be obtained against the defaulting purchaser under the agreement for sale. In essenceAlberta law then required the lender sell the land, ascertain the amount of any deficiency between the original purchase price and thesale price obtained after the default and seek judgment only for that deficiency against the purchaser.

No execution could take placeagainst the purchaser borrower until the amount of the deficiency had been determined following the sale of the lands. [33] However the Alberta Court of Appeal in the Meridian decision, supra, ruled the lender could proceed against the guarantorfor the full amount of the guarantee prior to the sale of the borrower’s lands purchased under the agreement for sale. The Court held theobligations of the guarantor and principle debtor are separate and distinct obligations owed to the lender.

The lender was entitled to fulljudgment against the guarantor before it proceeded against the primary borrower under the agreement for sale. Laycraft, J. A. deliveringjudgment for the Court stated in part at para. 45: In my opinion, therefore, this court has not decided that execution may not levy against a guarantor until the land has been sold nor isthere any rule of law to that effect. [34] It is my opinion ATB does not have to litigate and have New Hatchwear’s ultimate balance determined after a consideration ofavailable defences before judgment can be obtained against the guarantors.

Here the guarantors cannot avoid liability to ATB based upona possible defence open to the primary borrower, New Hatchwear. [35] Further I am of the view the words “ultimate balance” set out in para. 2 of the guarantees are clear, succinct and notambiguous. The words refer to the credits and debits existing on the loan between the lender and the borrower. At the time of thedrafting of the guarantee and its subsequent execution neither the lender nor the guarantor reasonably would or could contemplate aproposed future defence of improvident realization.

If it was contemplated, it would have been presumably spelled out in the guarantee.Rather defences are available in most instances to the borrower arising out of the loan agreement with the lender and generally are notavailable to a guarantor due to the independent nature of the contract of guarantee. There is nothing in the case at bar to allow theguarantors to avail themselves of the defence of improvident realization at this time. Nor should ATB have to wait until the defence ofimprovident realization is heard and determined between itself and New Hatchwear.

The ultimate balance owing by the guarantors restson the foundation of the status of the debits and credits between ATB and New Hatchwear and not on a subsequent determination of adefence put forth by New Hatchwear in ATB’s action against it. [36] Further I agree with the submission of ATB in its argument that paras 1 and 2 of the guarantee, respectively, and in effect setout initially that ATB’s interaction with New Hatchwear should not affect the obligations of the guarantors to ATB.

Secondly, ATB isnot under an obligation to seek or exhaust its recourse against New Hatchwear before requiring or being entitled to payment from theguarantors of all debts and liabilities guaranteed under the guarantee. These 2 integral clauses in the guarantee are a reflection of the legalstatus of this guarantee, namely it is a separate and independent contract from the lending agreement between ATB and New Hatchwear. [37] In reaching my conclusion on the

interpretation to be derived from the words “ultimate balance” I am further persuaded by thestatement of Mahoney J in this Court in his decision in Bank of Montreal v. Jarjoura, [2010] ABQB 103 at para. 37: The guarantee is in the Bank’s standard form. It guarantees payment to the Bank of all present and future debts and liabilities, direct orindirect or otherwise, at any time and from time to time due and owing to the Bank from or by Uniserve. It is a continuing guarantee, andincludes the ultimate balance owing, plus all costs, charges and expenses. (Emphasis added)

[38] In that decision Mahoney J. granted

summary judgment against the guarantor. He held the guarantee made it plain andobvious the Bank of Montreal did not have to attempt to realize on the borrower’s liability to it before it was free to seek total payment ofthe borrower’s liability from the guarantor under the terms of the guarantee. He further held the defence of improvident realization putforward by the guarantor, Jarjoura, was a defence available only the borrower and not to the guarantor. [39] Finally the Appellants argued para. 1 of the guarantee did not waive their right to plead any common law defences in theirlitigation with ATB.

Paragrah 1 of the guarantee provided, inter alia: No exercise or non-exercise by [ATB] of any right hereby given [to ATB], no dealing by [ATB] with [New Hatchwear] or any guarantoror endorser, no change, impairment or suspension of any right or remedy [ATB] may have against any person or persons shall in any wayaffect any of the undersigned’s obligations hereunder or any security furnished by the undersigned or give the undersigned any recourseagainst [ATB].

No loss of or in respect of any securities received by any recourse against [ATB] from [New Hatchwear] or any otherperson, whether occasioned by [ATB’s] fault or otherwise, shall in any way limit or lessen the liability of the undersigned under thisguarantee. [40] The Appellants point to the wording “no loss of or in respect of any securities received by you [ATB] from the customer [NewHatchwear] or any other person, whether occasioned by your fault or otherwise, shall in any way limit or lessen the liability of theundersigned [the guarantor] under this guarantee.” The guarantors submitted such wording was not clear enough so it could be held thatthey waived their right to assert any available common law defences, such as improvident realization.

They cited 2 cases in support oftheir argument. Those cases are: Manulife Bank of Canada v. Conlin, (SCC), [1996] 3 S.C.R. 415 and Bank ofMontreal v. Korico Enterprises Ltd. (2000), (ON CA), 190 D.L.R. (4th) 706 (Ont.C.A.). [41] In the Manulife decision, supra, Cory J. writing for the majority held a guarantor can contract out of the protection providedby the common law or equity, only in the instance where the wording relating to the contracting out is clear and unambiguous.

In lookingat such a possible contractual situation he found the court must interpret the contract between the parties; look to the intention of theparties and look to all the surrounding circumstances in the transaction. He indicated if there is ambiguity located in the terms of theguarantee the contra proferentium rule must be applied, and the words of the guarantee are strictly interpreted and construed against theparty who drafted it. This ensures such ambiguity is given that meaning which is the least favourable to the draftsman. [42] In other words as best put by Professor K. P. McGuinness in

part in his book, The Law of Guarantee (2nd ed. 1996) at pp.612-13 in part: . . . Where the guarantee was drafted by the creditor, and there is any ambiguity or imprecision in the terms of a provision which purportsto limit the rights of a surety, it is only fair that the ambiguity be resolved against the party who prepared the document.

If the creditorwishes to take away a right belonging to the surety, he should use clear language in the document. [43] While I follow the principles set out in the decision of Cory J. it is most evident the specific wording found in the guarantee inthat decision did not allow a conclusion that the guarantor waived his equitable and common law rights as a guarantor.

That case isdistinguishable on the facts as found in the wording of the guarantee. [44] The second decision as rendered by the Ontario Court of Appeal in Korico Enterprises Ltd., supra, found the waiver clause inthe guarantee was not clear enough to deny the common law protection given to the guarantors.

The wording in that guarantee allowedthe Bank of Montreal the following latitude: “may otherwise change the terms of any of the debts and liabilities hereby guaranteed and otherwise deal with the Customer and allother persons (including the undersigned, or any one of them, and any other guarantor) and securities, as the Bank may see fit, . . .” After reviewing the principles set by Cory J. in Manulife, supra, the Ontario Court of Appeal stated at para. 17:

Applying these principles to the clause in issue, it can scarcely be said that the language used by the bank meets the “very clear wording” test referred to by McGuinness and adopted by Cory J. Viewed objectively, it is not at all plain and obvious that by agreeing to permit the bank to deal with the secured assets “as [it] may see fit”, the guarantors intended to relieve the bank of its common law duty to take reasonable steps to obtain a fair price for them. The Court went on to hold in effect that the clause in question was ambiguous and was open to at least two reasonable

interpretations and accordingly the guarantors were entitled to have it construed with the

interpretation most favourable to them. [ 45 ] As an aside, unlike the case at bar, in the Korico decision the Bank of Montreal conceded the allegation of improvident sale. Notwithstanding that point, I am of the opinion that the specific wording of the ATB guarantee was clear, plain and obvious and the guarantors waived their right to raise any equitable or common law defences.

That clause negated any such defences by the guarantors in that the guarantors agreed no loss of or in respect to any security received by ATB from New Hatchwear, should limit or lessen the liability of the guarantors to ATB, regardless whether it was occasioned by the fault of ATB or otherwise. The guarantors expressly waived ATB’s conduct in the disposition of the security and accordingly can not set up or plead a defence of improvident realization. [ 46 ] In conclusion the Master made no errors of law in her decision. She was correct and her decision granting

summary judgment against the Appellants is not set aside. ATB demonstrated beyond doubt that no genuine issue for trial existed with respect to its motion for

summary judgment against the three guarantors. [ 47 ] Their appeal is dismissed. [ 48 ] Counsel may make an appointment with me to speak to costs, if necessary. Heard on the 27 th day of September and the 9 th day of November, 2011 and the 31 st day of May, and the 27 th day of June, 2012. Dated at the City of Calgary, Alberta this 21 st day of December, 2012. A. G. Park J.C.Q.B.A. Appearances: Russell N. Avery of Bishop & McKenzie LLP for the Plaintiff and Defendant by Counterclaim, Alberta Treasury Branches (Respondent) Richard N. Billington, Q.C. of Billington Barristers for the Defendants, 859260 Alberta Ltd., Sandra Dimitrijevic and Michael Dimitrijevic (Appellants)