Prestige Granite & Marble Inc v Maillot Homes Inc, 2018 ABQB 1040

Court of Queen’s Bench of Alberta Citation: Prestige Granite & Marble Inc v Maillot Homes Inc, 2018 ABQB 1040 Date: 20181221 Docket: 1701 03251 Registry: Calgary Between: Prestige Granite & Marble Inc. Plaintiff/Appellant - and - Maillot Homes Inc. Defendant/Respondent Corrected judgment: A corrigendum was issued on December 21, 2018; the corrections have been made to the text and the corrigendum is appended to this judgment. _______________________________________________________ Reasons for Decision of the Honourable Madam Justice M.H.

Hollins _______________________________________________________ [ 1 ] The Plaintiff, Prestige Granite & Marble Inc. (“Prestige”) was contracted to cut and install various tile and granite pieces in three different properties being constructed by Maillot Homes Inc. (“Maillot”). In February, 2016, before the work was completed,

Maillot advised Prestige that, due to alleged problems with workmanship and timeliness, Maillot was terminating its contract with Prestige and looking to another company to complete the work still undone. [ 2 ] Prestige liened the properties in question. Maillot applied to Court for discharge of the liens on payment into Court of approximately $170,000. Prestige then began this lawsuit to recover its alleged damages from the termination of the aforementioned contract. Both parties applied in morning Masters Chambers for

summary judgment. Maillot’s position was that the full contract price less deposits paid was $131,424.21. As Maillot paid $68,000 to complete the work, it was prepared to pay the difference, roughly $63,290.60 in full satisfaction of Prestige’s claim. Prestige argued that it ought to have partial

summary judgment for the $63,290.60 without prejudice to its right to pursue the balance. Maillot was successful. [ 3 ] By Order dated June 14, 2018, the Presiding Master dismissed Prestige’s application and granted

summary judgment in favour of Maillot, which was directed to pay the $63,290.60 to Prestige, less costs as awarded to Maillot. Prestige appeals that Order. Standard of Review and Evidentiary Basis of Appeal [ 4 ] An appeal from the Master is often described to and by this Court as an appeal de novo, notwithstanding that the wording of Rule 6.14(3) clearly describes an appeal from the Master to this Court as an appeal “on the record”. The continuing description of these appeals as de novo in the face of a Rule that says otherwise seems to trace back to the decision of Cote, JA in Bahcheli v.

Yorkton Securities [2012] ABCA 166 where he said: “The big issue in this judgment is the standard of review on appeal from a master to a judge. Terminology is not completely consistent for the standard of review which was adopted by the Alberta Courts before the new Rules came into force. It is sometimes called non- deferential, and sometimes called an appeal de novo .

But more commonly the term used is “correctness”…”; para.3. [ 5 ] It should be noted that Justice Cote’s reasons were expressly directed to the standard of review – now settled to be correctness – and not to the permissible evidentiary basis, or more plainly, the mechanics of these appeals. In fact, he clearly distinguishes the standard of review on appeal from the evidence considered on appeal at paragraph 10 of his Reasons.

These concepts, while separate, are obviously linked and that was, in fact, Justice Cote’s point; if you have the ability to amplify the record from below and the appeal is thus based on something different than the evidence before the Master, the standard of review cannot be higher than correctness. [ 6 ] With respect to my colleagues, I do not read Justice Cote’s words as saying that an appeal from the Master to our Court is an automatically an appeal de novo but rather that the low threshold for the introduction of new evidence on appeal means that the true “appeal on the record” will be the exception rather than the rule.

New evidence is not required to pass the more stringent Palmer test for new evidence on appeals but rather, must only be “relevant and material”, a test described as “lax”; Boyd v. Cook , 2013 ABCA 266 at para. 5 [ 7 ] The ability of parties to amplify the record virtually at will has created an undesirable scenario that is becoming too common. Parties will run their

summary judgment applications before the Masters in Chambers without due consideration to putting their “best [evidentiary] foot forward”, knowing that once the Master has pointed out the evidentiary gaps, they can simply fill those gaps and re-run their application in this Court. That is precisely what happened in this case. [ 8 ] Prestige had opted to cross-apply to the Master for

summary judgment without presenting evidence of the bases on which it contested Maillot’s descriptions of the deficiencies and its calculations of the cost of the remedial work. In the absence of such evidence, Malliot’s description of these items as legitimate remedial costs was uncontradicted and therefore accepted. [ 9 ] When Prestige lost, it appealed to this Court and filed a June 26, 2018 Affidavit of Yaakov (Jack) Babadjanov, the principal of Prestige, which contested each and every one of the cost items said by Maillot to be legitimately incurred in the $68,000 of remedial costs.

That Affidavit and the transcript of his cross-examination transcript thereon are obviously material and relevant and therefore I am bound to consider them. The Record Before this Court [ 10 ] In the applications before the Master, Maillot had presented Affidavit evidence outlining the description of the remedial costs it was claiming for each of the three contracted properties; the Carleton, Silverhorn and McKendrick Properties. Before this Court, Mr. Babadjanov’s Affidavit evidence attached those same tables but added his evidence contesting those amounts. [ 11 ] For example, for the Carleton Property, Mr.

Babadjanov said the work was complete and there should be no charges set off against the unpaid contract price for that work. Maillot’s evidence (the April 20, 2018 Affidavit of Gaela Toombs) says that $7,244.33 was paid to third parties to either finish or correct Prestige’s work.

This included the costs of re-cutting granite that Maillot said did not fit but which Prestige says was cut to Maillot’s specifications and at its direction. [ 12 ] At the Silverhorn Property, Prestige admits that it did not complete installation of all pieces although it is not clear whether Maillot’s claimed remedial costs included the materials already purchased and if so, whether that has been factored into the calculations.

As an aside, there was a claim by Prestige that it was left holding $40,000 worth of material cut specifically for these projects and therefore unusable elsewhere, which Prestige believes ought to be set-off against Maillot’s set-offs. [ 13 ] Again, at the Silverhorn Property, there are factual disputes about who is at fault for work not done or improperly done. For example, Maillot has set off the amount $6,350 paid to Alberta Marble & Tile to re-cut the granite around the kitchen sink while Prestige says Maillot “provided incorrect dimensions for the sink cut out”.

[ 14 ] At the McKendrick Property, Prestige denies causing any damage to cabinetry as claimed and says that Maillot representatives previously approved various items which now appear on Ms. Toombs’ spreadsheets as incomplete. [ 15 ] The aforementioned are only examples of the many factual disputes now littering this record. Appropriateness of

Summary Judgment [ 16 ] Perhaps not surprisingly, neither party spent much time on appeal talking about whether this case was even appropriate for

summary judgment. While we continue to await direction or clarification on the applicable burden of proof for

summary judgment, the determination of when

summary judgment ought to be entertained as a method of disposing of a claim has been clear since Hryniak v. Mauldin , 2014 SCC 7 , where Justice Karakatsanis said:

Summary judgment motions must be granted whenever there is no genuine issue requiring a trial ... There will be no genuine issue requiring a trial when the judge is able to reach a fair and just determination on the merits on a motion for

summary judgment. This will be the case when the process (1) allows the judge to make the necessary findings of fact; (2) allows the judge to apply the law to the facts, and (3) is a proportionate, more expeditious and less expensive means to achieve a just result. These principles are interconnected and all speak to whether

summary judgment will provide a fair and just adjudication. When a

summary judgment motion allows the judge to find the necessary facts and resolve the dispute, proceeding to trial would generally not be proportionate, timely or cost effective. Similarly, a process that does not give a judge confidence in her conclusions can never be the proportionate way to resolve a dispute. It bears reiterating that the standard for fairness is not whether the procedure is as exhaustive as a trial, but whether it gives the judge confidence that she can find the necessary facts and apply the relevant legal principles so as to resolve the dispute; [emphasis added]; paras.47, 49-50. [ 17 ] Although Hryniak, supra involved the Ontario rule regarding

summary judgment, the Alberta courts have taken the principles and objectives of that case to heart, including the underlying principle that the determination of contested, material facts may still require a trial; Windsor v Canadian Pacific Railway , 2014 ABCA 108 at para.16; Stefanyk v. Sobeys Capital Incorporated , 2018 ABCA 125 at para.11. [ 18 ] While I am mindful of the usefulness of

summary judgment in the appropriate cases and agree that the culture shift towards a more efficient and accessible system of civil justice is not just laudable but a necessity, I must still be guided by doing what is fair and just to both parties. [ 19 ] The factual disputes between the parties involve completely irreconcilable assertions. These are not merely self-serving assertions with no air of reality, which might be dealt with on such a motion. Rather, these are statements which must be explored in a forum that allows for the testing of this evidence and of the witnesses’ credibility.

It would be no more “fair and just” to decide for one party than another based on this material. [ 20 ] While the Defendant has argued from a purely mathematical vantage point, embedded in those calculations are findings of fact concerning the Defendant’s appropriate off-sets, which assertions are now the subject of diametrically opposed Affidavits. These matters must be left for the trial judge. [ 21 ] One of the consequences of allowing virtually any new evidence to be filed on appeal is that cases which were suitable for

summary judgment before the Master may no longer be so before this Court. That is the case here. This new evidence has created genuine triable issues and rendered this matter wholly inappropriate for disposition by way of

summary judgment. Conclusion and Costs [ 22 ] In the result, the appeal from the Order of Master Farrington dated June 14, 2018 is allowed and this matter is directed to trial. If the parties cannot settle their claims, they may wish to consider proceeding by way of private arbitration or in the Provincial Court, Civil Division, given the amounts at issue.

It is just a shame that these factual discrepancies were not presented and investigated earlier, before the time and money was expended on two chambers applications that did not advance the action. [ 23 ] On that point, I am in agreement with the approach of my brother, Justice Eamon, who in a recent case in which an appellant relied on new evidence not presented to the Master, deprived the appellant of part of its costs, notwithstanding its success on appeal; 1808882 Alberta Ltd v Moderno Ventures Ltd , 2018 ABQB 1000 .

Justice Mah, in A lberta Finance & Mortgage Corp. v Bruce Steel Erectors Ltd. , 2018 ABQB 907 has done likewise. Rule 10.33(2) provides a menu of considerations for this Court on costs, including steps taken which have unnecessarily delayed the action. In this case, while the Plaintiff successfully appealed the Master’s Order, all that has really happened is that the parties have now exchanged the evidence necessary to allow them to resolve matters or properly prepare for trial. [ 24 ] Therefore, I will not disturb the costs award in the court below and I am awarding Prestige no costs of this appeal.

Heard on the 12 th day of December, 2018. Dated at the City of Calgary, Alberta this 20 th day of December, 2018

M.H. Hollins J.C.Q.B.A. Appearances: Geoffrey Boddy for the Plaintiff/Appellant Shaun B. Cody for the Defendant/Respondent _______________________________________________________ Corrigendum of the Reasons for Decision of The Honourable Madam Justice M.H.

Hollins _______________________________________________________ Paragraph 23 was changed to read as follows: On that point, I am in agreement with the approach of my brother, Justice Eamon, who in a recent case in which an appellant relied on new evidence not presented to the Master, deprived the appellant of part of its costs, notwithstanding its success on appeal; 1808882 Alberta Ltd v Moderno Ventures Ltd , 2018 ABQB 1000 . Justice Mah, in A lberta Finance & Mortgage Corp. v Bruce Steel Erectors Ltd. , 2018 ABQB 907 has done likewise.

Rule 10.33(2) provides a menu of considerations for this Court on costs, including steps taken which have unnecessarily delayed the action. In this case, while the Defendant Plaintiff successfully appealed the Master’s Order, all that has really happened is that the parties have now exchanged the evidence necessary to allow them to resolve matters or properly prepare for trial.