Single Source Asphalt Paving and Concrete Construction Inc v Bourque, 2017 ABQB 479

Court of Queen’s Bench of Alberta Citation: Single Source Asphalt Paving and Concrete Construction Inc v Bourque, 2017 ABQB 479 Date: 20170731 Docket: 1603 02646 Registry: Edmonton Between: Single Source Asphalt Paving and Concrete Construction Inc Plaintiff - and - Stephanie Bourque Defendant _______________________________________________________ Reasons for Decision of L.A.

Smart , Master in Chambers _______________________________________________________ Introduction [ 1 ] Single Source Asphalt Paving and Concrete Construction Inc. (Single Source) issued a Statement of Claim for alleged indebtedness of $13,000 and to enforce its builder’s lien for supply and installation of an asphalt overlay on the driveway on lands owned by the Defendant Stephanie Bourque (Bourque). Bourque has defended on the basis that she did not request nor authorize the work to be done, alternatively that the work done was deficient and incomplete and further seeks relief under the Fair Trading Act .

She has also counterclaimed seeking damages for the cost of removing the inadequately installed asphalt and for slander of title arising from the registration of the builder’s lien and her alleged inability to sell the subject lands. [ 2 ] Single Source applies for

Summary Judgment, a declaration that its builder’s lien is valid and dismissal of the counterclaim. Bourque opposes the application although in her submissions provided to the Court she has confused the

Summary Trial process with

Summary Judgment applications under Rule 7.3 (1). Her first objection arose from my earlier Order where I declined to allow her to question by way of written interrogatories on affidavits filed by Single Source in support of its application. I declined to vary the Order. Bourque has also applied for Default Judgment against the third-party High-Tech Paving, striking out of “false affidavits” and removal of the “false” builder’s lien.

Background [ 3 ] It is Bourque’s evidence that on July 7, 2015 a man named Tom from High-Tech Paving came to her door and proposed to pave the driveway on her property. She insists that despite Tom agreeing to lower the price from $15,000 to $11,500 and provide additional incentives, she did not agree to the paving to be done. Bourque had been on the phone with her son Stephen and his associate John Schiavone and did not disconnect the call. Both Stephen and his associate have filed affidavits saying that they overheard the discussion with Tom as Bourque had her phone handset with her at the time.

They support her evidence that she did not agree to the paving. [ 4 ] There is no evidence from Single Source on this point but it appears that High-Tech Paving had an arrangement where it solicited the paving jobs and then engaged Single Source to complete them. Single Source had paved the driveway of Bourque’s neighbor earlier that day that had apparently been arranged through High-Tech Paving. The affidavits filed by Single Source simply state that there was a contract with Bourque with no particulars as to how it arose and notably no explanation as to its relationship with High- Tech Paving.

In addition, other affidavits were filed to attempt to refute Bourque’s evidence. Both parties take exception to the sufficiency and propriety of the others affidavits for use in a

summary judgment application. Bourque has also filed additional affidavits in an attempt to impeach the veracity or character of some deponents of “Single Source” affidavits. Discussion [ 5 ] Succinctly the test for whether or not

summary judgment ought to be granted is whether a fair and just determination can be made on the record before the Court. In this case, there is no contract reduced to writing between the parties. There is clearly a factual dispute as to whether or not any agreement was reached or its terms. A claim based on quantum meruit may be available there is no evidence as to the value of the alleged improvements. Furthermore, the counterclaim alleges that the work was so poorly done that the asphalt must be removed and repairs made at a cost in excess of $30,000.

Regardless, the success or failure of the claim and counterclaim are dependent upon determination of the true agreement between the parties which can only be determined following oral evidence heard at a trial. From a practical perspective this is an undesirable result in the extreme. [ 6 ] According to the clerks list, this matter has already been before the Court on 28 occasions. The primary action is for a small amount but because it involves a builder’s lien still registered against a title it is this Court that has jurisdiction. Regardless, the counterclaim is for over $200,000 in damages.

Although not expressly before me, it is plain to me that even if the builder’s lien is found to be invalid, the damages alleged are excessive or far too remote for recovery. The affidavits filed by Bourque are argumentative, contain legal conclusions and argument, and include improper hearsay evidence. Not surprisingly, she has a limited understanding of Court procedure, what evidence is required and how it is to be properly introduced. Conclusion [ 7 ] The applications for

Summary Judgment and Dismissal are dismissed. It follows that the validity of the lien cannot be resolved. The application for judgment against the third party is premature. Credibility of witnesses will have to be assessed by the trial judge. Each of the parties will bear their own costs. Dated at the City of Edmonton, Alberta this 31 st day of July, 2017. L.A. Smart M.C.Q.B.A. Appearances: Tom P Costigan of Dentons Canada LP for the Plaintiff Stephanie Bourque

Self-Represented