Weir-Jones Technical Services Incorporated v Purolator Courier Ltd, 2017 ABQB 491

Court of Queen’s Bench of Alberta Citation: Weir-Jones Technical Services Incorporated v Purolator Courier Ltd, 2017 ABQB 491 Date: 20170810 Docket: 1114 00276 Registry: St. Paul Between: Weir-Jones Technical Services Incorporated Respondent/Plaintiff - and - Purolator Courier Ltd, Purolator Inc and Purolator Freight Applicants/Defendants _______________________________________________________ Reasons for Decision of the Honourable Madam Justice D.L. Shelley _______________________________________________________ I Introduction [ 1 ] The Applicants apply for

summary dismissal on the basis that the Respondent did not commence this action within the applicable two year limitation period pursuant to s 3(1)(

a) of the Limitations Act of Alberta , RSA 2000, c L-12 ( Act ).

II Background [2] On or about January 23, 2008, the Respondent began providing services to the Applicants pursuant to an agreement that wascomprised of a Collective Agreement, an Owner/Operator Contract, and a Standards of Performance Contract (collectively, the“Agreement”). [3] In November 2008 and January 2009, grievances were filed with the relevant union on behalf of Mr. Andrew Weir-Jones andMs. Samantha Gordey. Mr. Weir-Jones was the general manager of the Respondent and Ms. Gordey was its employee or agent.

Thegrievances related to claims for compensation for services rendered by the Respondent, unpaid invoices of the Respondent, terminationof the Agreement, and other matters. [4] The Respondent sent a letter terminating the Agreement in August 2009. [5] The Statement of Claim in this action was filed on July 22, 2011, claiming damages of at least $212,000 in respect of variousbreaches of an alleged agreement or agreements, the terms of which were either supplemental to, or separate from, the Agreement. [6] The grievances of Mr. Weir-Jones and Ms.

Gordey were the subject of an arbitration hearing held on September 3, 2015,following proceedings of the Canada Industrial Relations Board. The arbitration proceeding was discontinued and the grievances weresettled by agreement dated October 2, 2015. III Issues [7] In order to determine whether the Respondent’s claim is statute barred, the Court must determine the following issues: 1. When did the limitation period(

s) commence in relation to claims of the Respondent that could not be determined by the grievanceprocedures? 2. Was there a standstill agreement between the parties that extended the limitation period? IV Position of the Parties A Applicants [8] The Applicants submit that discoverability refers to knowledge of facts, not law.

They argue that the evidence establishes theRespondent knew or ought to have known, prior to July 22, 2009, that it had suffered damages due to alleged breaches of contract ormisrepresentations attributable to the Applicants. [9] They submit that when the Statement of Claim was filed on July 22, 2011, more than two and a half years had passed fromthe time when the Respondent had substantial knowledge of its claim and over two years after receiving legal advice regarding theseparate cause of action for matters outside the scope of the Collective Agreement and grievance process.

Therefore, the action is statutebarred pursuant to the Act. [10] The Applicants further submit that no discussions between the parties took place after June 8, 2009, nor did any negotiationsor settlement discussions take place in relation to the issues which the Respondent set out in its February 24, 2009, apart from matterssettled during the grievance hearing. Those discussions did not take place until September and October 2015.

B Respondent [11] The Respondent recognizes that the principle of discoverability does not apply to actions in Alberta involving contracts, and incontract cases the cause of action generally accrues at the date of breach. [12] It submits that in a case such as this one, where the contract involves the provision of work or services, the cause of actionarises upon completion of the work or the services which are the subject matter of the contract, citing Hunter v Thompson (1927), (ON SC), 60 OLR 185 (CA), citing Halsbury's Laws of England, 4th ed, vol 28. [13] The Respondent points to evidence establishing that the Applicants continued to provide work and services under theAgreement up to and including August 21, 2009, and continued to be paid for its services up until September 2009.

The Agreement wasterminated effective August 21, 2009, pursuant to the Respondent’s letter dated August 18, 2009. Therefore, the limitation period did notcommence until August 21, 2009, being the date that the last service was performed under the Agreement. [14] The Respondent also argues that the action involves alleged breaches in relation to two different contracts:

a) a breach of the Agreement by non-payment for services rendered and expenses incurred; and

b) a breach of a verbal agreement which supplemented the January 23, 2008 Agreement. [15] The Respondent submits that the Agreement was modified or altered by the verbal agreement, creating a unique arrangementbetween the parties. Although the Respondent had been concerned that this modification or verbal agreement had not been incorporatedinto the Owner/Operator Agreement, it signed the Agreement because the Applicants had sufficiently alleviated its concerns.

[ 16 ] The verbal agreement related to the provision of a trailer by the Applicant. This was not a standard contractual term and fell outside the scope of the conventional arrangement between the Applicant and the owner/operators. The Respondent submits that the provision of the trailer, and the long-haul freight work related to it, was a promise by the Applicants that induced the Respondent to enter into the Agreement. The failure of the Applicants to provide the contemplated long-haul freight work is the basis for the Respondent’s allegation that the verbal agreement was breached.

After the Applicants supplied one long-haul service order in September 2008, they ordered no further work of this type. [ 17 ] The Respondent submits that the limitation period commenced in relation to the verbal contract regarding the long-haul work when it accepted the Applicants’ repudiation of the Agreement, effective August 21, 2009. [ 18 ] The Respondent submits that in 2009 the union indicated a willingness to resolve the issues between the parties collectively, whether strictly inside or outside of the Collective Agreement, and that until a decision by the Canada Industrial Relations Board in December 2013, it was still a live issue as to what degree the matters claimed in this action were covered by the Collective Agreement. [ 19 ] The Respondent argues in the alternative that two limitation periods apply to this action: the first commenced when the services were completed on August 22, 2009, and the second commenced when the injury occurred which, in this case, was an economic loss, the non-performance of an obligation, and the breach of a duty, all three of which occurred on different dates. [ 20 ] The Respondent also submits that any applicable limitation periods were suspended for the period of time during which the parties were corresponding with each other in their efforts to resolve their dispute.

It relies upon various pieces of correspondence in support of its position that there was an agreement “to enter into a course of negotiations on the understanding that legal proceedings will be suspended”. The Respondent submits that this constituted a standstill agreement, which remained valid despite no admission of liability and no offers of settlement having been received.

The Respondent argues that the absence of any written communications after June 9, 2009 until the termination letter of August 18, 2009 is immaterial. [ 21 ] Finally, the Respondent relies on Rodin Law Firm v Pedherney , 2010 ABQB 307 , [2010] AJ No 830 for the proposition that the agreement to suspend the legal proceedings need not specifically refer to an extension of the limitation period. In this case, a suspension was the obvious result of the written agreement.

Correspondence between the parties was clear and unambiguous; it was written, acknowledged, and signed by the party adversely affected; it was in contemplation of possible litigation; and both parties turned their minds to the fact that a claim could, but need not, be issued. V Applicable Law [ 22 ] I will refer to a number of cases referred to by the parties. Additional cases cited by the parties are set out on Appendix A to these Reasons. A

Summary Judgment [ 23 ] Rule 7.3 of the Alberta Rules of Court , Alta Reg 124/2010 provides: 7.3(1) A party may apply to the Court for

summary judgment in respect of all or part of a claim on one or more of the following grounds: ... (

b) there is no merit to a claim or part of it ...

(3) If the application is successful the Court may, with respect to all or part of a claim, and whether or not the claim is for a single and undivided debt, do one or more of the following: (

a) dismiss one or more claims in the action ... [ 24 ]

Summary judgment is no longer determined on the basis of triable issues. The question now is whether there is any issue of merit that genuinely requires a trial or, conversely, whether the defence is so compelling that the likelihood it will succeed is very high, such that it should be determined summarily: WP v Alberta , 2014 ABCA 404 , 588 AR 110, citing Windsor v Canadian Pacific Railway Ltd , 2014 ABCA 108 at para 10 , 572 AR 317 and Beier v Proper Cat Construction Ltd , 2013 ABQB 351 at paras 56-71 , 564 AR 557; Hryniak v Mauldin , 2014 SCC 7 , [2014] 1 SCR 87. [ 25 ] In De Shazo v Nations Energy Co , 2005 ABCA 241 , 367 AR 267, the applicant applied for

summary dismissal based on a statutory limitation. The Court held: 18 ...An action is not to be dismissed unless it is beyond doubt that the claim cannot succeed. Nevertheless, the Court has an obligation to conduct a careful review with an eye to determining whether there are undisputed facts sufficient to resolve the matter, even when the action is complex... 19 When faced with a

summary judgment application of this type, the Court must ascertain whether there are undisputed facts that necessarily lead to the conclusion that it is plain and obvious the plaintiff’s claim is statute barred. B Limitations [ 26 ] The Act provides:

3(1) Subject to subsections (1.1) and (1.2) and sections 3.1 and 11, if a claimant does not seek a remedial order within (a) 2 years after the date on which the claimant first knew, or in the circumstances ought to have known, (

i) that the injury for which the claimant seeks a remedial order had occurred, (ii) that the injury was attributable to conduct of the defendant, and (iii) that the injury, assuming liability on the part of the defendant, warrants bringing a proceeding, ...whichever period expires first, the defendant, on pleading this act as a defence, is entitled to immunity from liability in respect of theclaim. 7 Subject to

section 9, if an agreement expressly provides for the extension of a limitation period provided by this Act, the limitationperiod is altered in accordance with the agreement... 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... 1 Knowledge/Discoverability [27] In Brandner v Alberta (Solicitor General), 2014 ABQB 211 at para 43, 587 AR 144, Master Hanebury cited various casesfrom which she drew the following principles: 1. The determination of whether a limitation has expired is a mixed question of law and fact and contains both an element of time anddiscoverability. Discoverability means knowledge of the facts (acts or omissions), that may give rise to a claim. 2.

As it is the facts that are relevant, error, ignorance or uncertainty of the law or the legal consequences of the facts does not postponeany limitation period. What is relevant is that the plaintiff knew or out to know of the existence of the material facts necessary for theclaim. 3. The plaintiff does not need to have perfect certainty about his or her claim to start the clock running under the Act. However, morethan mere suspicion is required. 4. A factual dispute as to what a plaintiff knew and when can require an assessment of credibility. 5.

The plaintiff is required to exercise reasonable diligence to acquire the necessary facts. 6. What is relevant is not when the plaintiff knew s/he had a cause of action, but s/he knew s/he had suffered an injury. 7. While the Act focuses on “injury” and does not tie limitation periods to any particular cause or causes of action, it is difficult toconceive how an injury could warrant bringing a proceeding until all the various elements of the cause of action had occurred. 8. There can be more than one injury arising from a single event. 9.

The plaintiff’s own particular and personal circumstances will impact discoverability in relation to all three factors found in s 3 ofthe Act. A “restrictive subjective/objective” approach is to be taken that takes into account the plaintiff’s “important and substantialinterests”.

The clock starts when “in light of the plaintiff’s particular situation, the bringing of a suit is reasonably possible, not when itwould be ideal from the plaintiff’s perspective to do so”. [28] In Fidelity Trust Company v Weiler, 1988 ABCA 267 , [1988] 6 WWR 427, 89 AR 151 (CA), the Court confirmedthat the discoverability rule under the Limitations of Actions Act, RSA 1980, c L-15, now repealed, did not apply to contractual actions inAlberta.

Rather, the limitation period commenced on the date of the breach. [29] The Court of Appeal denied leave to reconsider that decision in Luscar Ltd v Pembina Resources Ltd (1992), 1992 ABCA185 , 131 AR 79, [1992] AJ No 653. In that case, the defendant had breached one of the terms of an agreement withoutrealizing it. Breaches had occurred in 1971, 1975, and 1983, while the parties were subject to a mutual notification provision contained inoperating and exploration agreements.

The Court of Appeal in a subsequent decision (1994 ABCA 356, 162 AR 35, leave denied [1995]SCCA No 6) confirmed that the discoverability rule did not apply to contract actions and that the limitation period under a contractcommenced from the date of the breach. The Court held that, although the required notice was not given in breach of the contract, theplaintiffs had access to the facts required to determine that they had a cause of action, and one of the plaintiffs had actual knowledge ofthe breach.

Therefore, the defendant was entitled to rely upon the limitation period. [30] The principle that discoverability does not apply to contract actions in Alberta has since been applied in interpreting the Act: see, for example, Papaschase Indian Band No 136 v Canada (Attorney General), 2004 ABQB 655 at para 155, 365 AR 1, aff’d 2008SCC 14, [2008] 1 SCR 372. 2 Standstill Agreements [31] In Brar v Roy, 2005 ABCA 269, 371 AR 290, the parties engaged in negotiations to settle a personal injury claim. The trialjudge inferred the agreement from the words and conduct of the parties.

The Court of Appeal concluded that the trial judge had erred inruling that the standstill agreement effectively extended the limitation period, because this type of agreement is unenforceable pursuantto s 9 of the Act. Nevertheless, the Court dismissed the appeal on the basis that the Act does not preclude application of the principles of

promissory estoppel to effectively extend the limitation period. [32] In Shaver v Co-operators General Insurance Co, 2011 ABCA 367, 515 AR 345, the Court concluded that contractualprovisions may alter limitation periods if they are clear and do not conflict with statutory provisions, which may limit the right to amenda limitation period. 3 Promissory Estoppel [33] In Maracle v Travellers Indemnity Co of Canada, (SCC), [1991] 2 SCR 50, [1991] SCJ No 43 the SupremeCourt reiterated the well-established principles of promissory estoppel: the representee must establish that the other party has, by wordsor conduct, made a promise or assurance which was intended to affect their legal relationship and to be acted upon.

Furthermore, therepresentee must establish that, in reliance on the representation, he acted on it or in some way changed his position. The Court held that,for this type of defence to succeed, there must be some evidence that one of the parties entered into a course of negotiation which led theother to believe that the strict rights under the contract would not be enforced. Examples include an admission of liability or a promisenot to rely on the limitation period.

The Court concluded that normal dealings between parties attempting to resolve a claim did notamount to promissory estoppel; for an admission of liability to be taken as a promise not to rely on a limitation period, it must be suchthat it can be inferred, from words or conduct, that it was intended as a promise not to rely on the limitation period. [34] In CAA Insurance Co (Ontario) v Botsis (2006), (ON SCDC), 82 OR (3d) 379, 2006 CarswellOnt 5087(Sup Ct Just), the Court held that the respondent could not have relied on representations by the appellant, nor changed her positionbased on such representations, since the respondent was unaware that there was a limitation period.

In addition, it was not clear that theappellant had ever made any representation intended to affect the legal relationship between the parties. The Court noted case to theeffect that negotiations which are no more than normal dealings between parties attempting to resolve a claim do not constitute a waiverof a limitation period.

VI Analysis [35] The following evidence is relevant to the Court’s determination: − a letter from the Respondent dated November 3, 2008, in which it indicated that the Applicants had misled it, misrepresentedcertain matters to it, and had failed to compensate it for services provided; − a letter from the Respondent’s legal counsel dated February 24, 2009, in which counsel advised it of a potential separate cause ofaction in relation to various representations and commitments the Respondent believed the Applicants had made regarding certainmatters, opined that the Agreement did not speak to all of the commercial matters between the Applicants and the Respondent, andremarked on the viability of claims and the potential damages related to them, which were subsequently included in the Statement ofClaim; − a letter from the Respondent to the Applicants dated February 24, 2009, in which the Respondent took the position that it hadbecome apparent since 2008 that the Applicants had made misrepresentations to it as far back as January 2008; − a letter from the Applicants to the Respondent dated March 25, 2009, in which they took the position that there was no support forany of the allegations set out in the Respondent’s letter of February 24, 2009; − a letter from the Respondent to the Applicants dated May 11, 2009, in which the Respondent advised that the Applicants alreadyhad documents in their possession allegedly supporting the claims made in the February 24, 2009 letter, and stating that if the Applicantsdid not wish to resolve the matter amicably, the Respondent would be forced to take various actions, including the filing of multiplegrievances under the Collective Agreement and the commencement of actions in relation to matters not falling within the scope of theCollective Agreement; − no further discussions took place between the parties regarding these claims after June 8, 2009, nor were any negotiations orsettlement discussions conducted apart from matters settled during the grievance hearing in September and October 2015; − at Questioning on January 18, 2016, the Respondent’s officer confirmed that: it had retained counsel in February 2009 for thepurposes of discussing possible legal actions for the alleged breaches and claims falling outside of the grievance process, and hadreceived advice that the facts supported a separate cause of action; the Respondent knew there were certain claims outside of theCollective Agreement and it was contemplating a lawsuit to keep its options open in case the Applicants did not settle or attempt to do so;the Respondent knew by June 2009 at the latest that there were claims that fell outside the scope of the arbitration process and that theywould have to be dealt with separately; the Respondent understood there was a difference between labour matters and the claims whichwere eventually set out in the Statement of Claim; the Respondent understood that it had knowledge of the facts giving rise to its cause

of action in early 2009, although it understood that the limitation period commenced from the last point of involvement with the Applicants, which was August of 2009 when it terminated the Agreement; and no standstill or tolling agreement had been entered into between the parties at any time. [ 36 ] The evidence before the Court clearly establishes that the Respondent was aware of the alleged breaches by the Applicants long before it filed its Statement of Claim in July 2011.

This is so regardless of whether there was one agreement with a misrepresentation, or two separate agreements, one written and one oral. [ 37 ] Discoverability does not assist the Respondent, as the Respondent not only knew of the alleged breaches more than two years before July 22, 2011, it had communicated this position to the Applicants and had obtained legal advice in connection with the breaches.

In an affidavit dated December 4, 2015 filed for this application, the Respondent’s officer deposed that there was always some uncertainty on his part as to what was within the scope of the union’s ability to address. [ 38 ] The limitation period commenced when the breaches occurred and the Respondent was aware that the breaches had occurred months before July 22, 2009. I do not accept the Respondent’s argument that the limitation period did not commence until the Agreement was terminated and the last of the work completed under it.

The applicable authorities confirm that the limitation period for a breach of contract commences on the date of the breach. [ 39 ] Similarly, to the extent that the Respondent argues that it could not commence its action until it was able to establish what specific matters would be covered by the grievance procedure and which would not be so covered, it is clear that the Respondent knew that at least some of its claims would fall outside the scope of the procedures available under the Collective Agreement.

I conclude that this argument is similar to the unsuccessful argument advanced by the plaintiff in De Shazo . Here, the legal advice that at least some of the claims would not fall under the scope of the alternative proceedings did not justify delay in commencing this action pending conclusion of a grievance procedure that the Respondent knew might not result in a resolution of all matters in dispute between the parties.

And in fact it did not do so, since the Respondent commenced this action long before the outcome of the arbitration was known. [ 40 ] Nor does the evidence concerning the parties’ expressed desire to attempt to settle the matter without recourse to the Courts satisfy the test to constitute a standstill agreement under s 9 of the Act .

To the contrary, it appears to be no more than normal dealings between parties attempting to resolve a claim and, therefore, as was the case in Maracle , it constituted neither an extension of the limitation period, nor a promise not to rely on the limitation period. [ 41 ] While Mr.

Weir-Jones (as reflected in his filed affidavits) may have understood that termination of the Agreement started the limitation period and that his attempts to negotiate a settlement would have the effect of delaying the need to commence a civil action, these understandings unfortunately amount to an error of law or an error concerning the legal consequences of what was occurring at the relevant time.

Although he was hopeful that a settlement could be reached, the excerpts from the correspondence which he refers to in his affidavits do not satisfy the requirements necessary to establish either a standstill agreement or promissory estoppel. They express hope to resolve matters amicably. This falls short of constituting a clear promise by the Applicants not to rely on the Act . [ 42 ] Therefore, the Statement of Claim of July 22, 2011 was filed more than two years after the limitation period or periods commenced and the claims it contained were, therefore, barred by s 3(1) of the Act .

VII Conclusion [ 43 ] For the above reasons, the application is granted and the Respondent’s action is summarily dismissed in its entirety. VIII Costs [ 44 ] If the parties are unable to agree on costs, they may contact my assistant within 30 days of the issuance of the Reasons to arrange a time at which the matter may be addressed. Heard on the 4 th day of November, 2016. Dated at the Town of St. Paul, Alberta this 10 th day of August, 2017. D.L. Shelley J.C.Q.B.A. Appearances:

Mr. Timothy J. Byron Byron & Company for the Respondent/Plaintiff Mr. Thomas V. Duke Miller Thomson LLP for the Applicants/Defendants Appendix A Additional Authorities Cited by the Parties 1. Oel v Levine , 2013 ABQB 242 , 88 Alta LR (5 th ) 390 2. Sherwood Steel Ltd v Odyssey Construction Inc , 2014 ABCA 320 5 Alta LR (6 th ) 268 3. Sun Gro Horticulture Canada Ltd v Abe’s Door Service Ltd , 2006 ABCA 243 ; 397 AR 282 4. Hill v South Alberta Land Registration District , 1993 ABCA 75 , 135 AR 266 5. Dickieson v Dickieson , 2010 ABQB 227 , 28 Alta LR (5 th ) 310

6. Airdrie (City) v Silvercreek Development Corporation, 2013 ABQB 357, 567 AR 28 7. Boyd v Cook, 2012 ABQB 284, 540 AR 46 8. Environmental Metal Works Ltd v Murray, Faber & Associates Inc, 20113 ABQB 479, 2013 ABQB 479 , 568 AR 198 9. Halliburton Group Canada Inc v Corth, 2012 ABQB 130, 213 ACWS (3d) 666 10. Johnson v British Columbia Hydro & Power Authority, , 27 BCLR 50 (SC) 11. Birchwood Billage Estates Inc v Invesco Mortgage Inc, 2015 ABQB 331, 254 ACWS (3d) 695 12. Dhillon v Anderson, 2014 ABQB 609, 11 Alta LR (6th) 121 13.

Angevine v Blue Range Resource Corp (2007), 2007 ABQB 443 , 78 Alta LR (4th) 341 (QB) 14. 155569 Canada Ltd v 248524 Alberta Ltd, 2004 ABQB 17 15. Atchison v Manufacturers Life Insurance Co, 2002 ABQB 1121 16. Brown v Belleville (City), 2013 ONCA 148 17. Hyde v Calgary (City), 2004 ABQB 800 18. McAndrews v Hames, 2005 ABQB 556