1189677 Alberta Ltd. operating as Hillstone Aggregates Plaintiff - v. -, 2021 ABQB 378

Court of Queen’s Bench of Alberta Citation: 1189677 Alberta Ltd v Professional Excavators & Construction Inc, 2021 ABQB 378 Date: 20210512 Docket: 1701 16593 Registry: Calgary Between: 1189677 Alberta Ltd. operating as Hillstone Aggregates Plaintiff - and - Professional Excavators & Construction Inc., Professional Excavators Ltd. and the Town of Cochrane Defendants _______________________________________________________ Memorandum of Decision of the Honourable Mr. Justice O.P. Malik _______________________________________________________ I.

Introduction [ 1 ] Professional Excavators & Construction Inc. and Professional Excavators Ltd. (collectively, the “Defendant”), appeals a Masters decision, reported at 1189677 Alberta Ltd. v Professional Excavators & Construction Inc., 2019 ABQB 914 , granting the Plaintiff

summary judgment in respect of the Plaintiff’s debt action, with interest and costs, and directing that the Defendant’s counter- claim based on quantum meruit proceed to trial. The Town of Cochrane is not a party to this appeal. II. Standard of Review [ 2 ] An appeal from a Master’s decision is de novo and the standard of review is correctness ( Bahcheli v Yorkton Securities Inc. , 2012 ABCA 166 at para 12 ). No deference is owed to a Master’s decision. [ 3 ] Where the appeal from the Master’s decision involves the same record and arguments, I may frame my reasons with

reference to the Master’s decision where I agree with them ( HOOP Realty Inc. v Emery Jamieson LLP , 2020 ABCA 159 at para. 41 ). III. Legal Test for

Summary Judgment [ 4 ]

Summary judgment may be granted where there is no genuine issue requiring a trial and where the court can reach a fair and just determination based on the evidence before it. The “no genuine issue” should be assessed according to what is procedurally fair rather than by weighing the merits of the parties’ respective positions. A court is not precluded from granting

summary in the face of contested facts or conflicting evidence. ( Hannam v Medicine Hat School District No. 76 , 2020 ABCA 343 at para 161 ). [ 5 ]

Summary judgment is appropriate when there is no genuine issue requiring trial, such as where the record allows the court to make the necessary findings of fact, apply the law to those facts, and arrive at a just result in an expeditious way ( Weir-Jones Technical Services Incorporated v Purolator Courier Ltd ., 2019 ABCA 49 at para 47 ; Hannam at paras145-161). [ 6 ] The burden rests on the Plaintiff to show that there is no defence to the claim and that there is no genuine issue requiring trial. The Plaintiff must prove the factual elements of the case on a balance of probabilities.

If it cannot do so, the Plaintiff’s application fails. The Defendant must demonstrate that the record, facts, and law preclude a fair, just and final disposition. If the Defendant can prove that there is a genuine issue requiring trial such as where there is a dispute on material facts or there are questions of credibility or evidentiary gaps, then

summary judgment should not be granted ( Weir Jones at para 35). [ 7 ] Finally, on an application for

summary judgment, each party must put its best foot forward. The focus is on the actual evidentiary record available to the judge rather than on speculation of what might “turn up in the future” or whether a party can produce a “better” record should the matter proceed to trial ( Weir-Jones at paras 37, 39). [ 8 ] In determining whether

summary judgment is appropriate, I consider the following questions ( Weir-Jones at para 50):

a) Can I fairly resolve the dispute on a

summary basis notwithstanding the conflicting evidence before me?

b) Has the Plaintiff satisfied me that there is “no defence” and that there is no genuine issue requiring trial?

c) Has the Defendant demonstrated that there is a genuine issue that requires a trial?

d) Does the state of the evidentiary record give me sufficient confidence that

summary disposition is appropriate in the circumstances? IV. The Facts i. The Defendant Requests Quotes for the Provision of Clean Fill [ 9 ] In May, 2017, The Town of Cochrane awarded the Defendant a contract for the construction of a roadway system called the Griffin Road Project (the “Project”). [ 10 ] The Defendant required the supply and delivery of clean fill for the Project and requested that interested bidders, including the Plaintiff, provide a quote. [ 11 ] According to the Defendant, it is industry standard to measure clean fill on a volume/ m³ rather than on a weight/per tonne basis. Mr.

Murphy, a senior executive employed by the Defendant, deposed that this is because clean varies in weight depending on its composition and that its weight is also affected by humidity. Mr. Gilmour, an experienced project estimator who was the Defendant’s project manager for the Project, deposed that he has never been issued a quote for clean fill on anything other than a volume/m³ basis. [ 12 ] The Defendant’s contention in this respect is supported by the fact that The Town of Cochrane’s tender materials specified that measurement and payment for items listed in the

schedule of quantities and prices including clean fill be measured on a volume/m³ basis. The quotes which the Defendant received from other contractors interested in supplying clean fill were provided on a volume/m³ basis. ii. The June Quote [ 13 ] Mr. Gilmour deposed that Mr. Di Matteo, the Plaintiff’s sales representative, provided him with a quote on June 9, 2017 (the “June Quote”).

As will be discussed below, the June Quote bears invoice number HS-70615, which is identical to an invoice that the Plaintiff had previously issued to one of its customers, Volker Stevin, on July 20, 2017 (the “Volker Invoice”). [ 14 ] The June Quote charges $3.00 per m³ for 160,000 m³ of clean fill with a delivery charge of $4.00 per m³. [ 15 ] Mr. Gilmour does not recall how the June Quote was communicated to him. Mr. Murphy deposed that the Defendant received the June Quote although this does not seem to arise from any personal knowledge that he would have had at the time. Mr.

Murphy notes that it is not uncommon for quotes to be received in any number of ways: by phone, e-mail, in person, on site. Mr. Murphy has not been able to locate an e-mail from the Plaintiff attaching the June Quote. He states that it is the Defendant’s practise to scan or save quotes that it receives into its electronic system.

[ 16 ] While Mr. Murphy acknowledged receipt of the June Quote on behalf of the Defendant, he has not produced any e-mails or records that show that he was personally aware of the terms of the June Quote at the time Mr. Gilmour purportedly received it or that he ever discussed it with Mr. Gilmour. [ 17 ] According to Mr. Gilmour, the June Quote complied with industry practise as it quoted prices according to a volume/m³ basis rather than to weight. In his view, the June Quote was competitive and he advised Mr. Di Matteo of its acceptance. Having accepted the June Quote, Mr.

Gilmour states that he turned down several other quotes that he had received from other bidders. [ 18 ] The Defendant asserts that the June Quote is genuine and is not a fake. Mr. Gilmour states that he received the June Quote from Mr. Di Matteo in response to the Defendant’s invitation that the Plaintiff provide a quote for clean fill. Mr. Gilmour expressly denies that he fabricated the June Quote. iii. The July Quote [ 19 ] Mr. Di Matteo deposed that on July 14, 2017, he generated a quote that charged $3.50 per tonne for 70,000 tonnes of clean fill with a delivery cost per tonne of $4.00 (the “July Quote”). Mr.

Di Matteo states that he e-mailed a copy of the July Quote to Mr. Gilmour on July 17, 2017. [ 20 ] Mr. Gilmour deposed that he received the July Quote. [ 21 ] What follows is an e-mail discussion between Messrs. Gilmour and Di Matteo that same day, on July 17, 2017, that reads as follows: Mr. Di Matteo to Mr. Gilmour: Hi Shane, Here is the quote for clean fill to Griffin Road. The trucking is slightly higher than the gravel quoted. Thanks, Gino Mr. Gilmour to Mr. Di Matteo: Thanks Gino Do you think we could get the clay for 3.00 per m³ Let me know if this is possible Shane Mr. Di Matteo to Mr.

Gilmour: Do you mean per metric tonne? I am as low as they would let me go. Right now you are at $1.60 per m³after conversion. Thanks, Gino Mr. Gilmour to Mr. Di Matteo: Sorry We are good I added the number up wrong [ 22 ] Mr. Gilmour deposed that he requested a lower quote from Mr. Di Matteo on a volume basis as he believed the Plaintiff’s quote to be high. However, Mr. Gilmour acknowledges that he did not understand Mr. Di Matteo’s conversion of $1.60 m³ and that he understood Mr.

Di Matteo to be saying that the Plaintiff would supply clean fill at a rate calculated on a volume basis and no higher than the price contained in the July Quote. [ 23 ] Mr. Gilmour maintains that he believed that any agreement the parties entered into for the provision of clean fill would be on the basis of a volume/ m³ basis and that the price that Mr. Di Matteo had cited of $5.60/m³was reasonable. [ 24 ] Mr. Gilmour states that he had further follow up discussions with Mr. Di Matteo on the phone and on-site in the presence of Mr.

Grant Champion, the Defendant’s supervisor, about the cost of the clean fill in volume/m³ terms. Here, I note that Mr. Gilmour has not provided any notes he made or further correspondence of those discussions nor has the Defendant sought to introduce any evidence of Mr. Champion, who could have corroborated Mr. Gilmour’s version of events. [ 25 ] Mr. Gilmour has also deposed that neither he nor the Defendant accepted the July Quote.

This is consistent with his view that it is industry practise to provide quotes for clean fill on a volume/m³ basis and that he would never have accepted a quote for clean measured on a weight/tonne basis. Further, Mr. Gilmour stated that he would not have accepted the July Quote as he had, just days before, rejected several cheaper quotes. Mr. Gilmour asserts that in discussions with Mr. Di Matteo, any reference that Mr. Gilmour

made to the Plaintiff’s quote or pricing for clean fill were to the terms of the June Quote. [ 26 ] While it does not appear that Mr. Murphy was involved in discussion with Messrs. Gilmour and Di Matteo regarding pricing, Mr. Murphy states that the July Quote was unsolicited and was not accepted by the Defendant. According to Mr. Murphy, the July Quote was contrary to the industry practice of measuring clean fill on a volume/m³ basis and that it was “well in excess” of the market price for the supply and delivery of clean fill as compared with other competitive quotes. iv.

The Plaintiff Makes Errors In Its Invoicing [ 27 ] In July, 2017, the Defendant learned that the Plaintiff was incorrectly invoicing for the supply and delivery of clean fill. Mr. Gilmour first contacted Mr. Di Matteo about this on July 18, 2017. [ 28 ] On July 27, 2017, Mr. Gilmour emailed Mr. Di Matteo and pointed out that the Plaintiff had incorrectly issued invoices charging $7.75 per tonne of clean fill ($3.75 per tonne plus $4.00 per tonne for delivery) rather than $7.50 per tonne ($3.50 per tonne plus $4.00 per tonne for delivery) as per the July Quote. Here is the e-mail exchange: Mr. Gilmour to Mr.

Di Matteo: Hi Gino The invoice that was set out has $3.75 per ton and the levy is also added at the bottom We should be at $3.50 per ton as per the quote Also Can you tell me what you are using for the conversion, I just need to make sure on my side Mr. Di Matteo to Mr. Gilmour: Hi Shane, I submitted your revision request this morning along with the original quote. Sorry for the confusion. As for the conversion I just used a conversion of 2.0 which was the average of both the proctor numbers we discussed – 1.85 and 2.15. Please call me anytime of you need anything. Thanks, Gino [ 29 ] Mr.

Gilmour states that he has no recollection about this exchange with Mr. Di Matteo: I do not recall sending or receiving these e-mails, however, I confirm that I was mistaken in my email to Mr. Di Matteo. I do not know if I was confused in my preparation of this e-mail due to the late hour, the material that I was referring to, or whether I simply misspoke. ...I understood that [the Plaintiff] had agreed to provide the invoice for clean fill on a Cost/m³ basis, pursuant to the [June Quote]. [ 30 ] Following his e-mail discussion with Mr. Gilmour on July 27, 2017, Mr.

Di Matteo was informed by the Defendant that the invoices had been corrected to properly reflect prices set out in the July Quote. v. The Defendant Audits the Plaintiff’s Invoices [ 31 ] The Defendant commenced an audit of the Plaintiff’s invoices in August, 2017, due to inaccurate invoices and problems relating to the coordination of the Plaintiff’s truck drivers. By the end of November, 2017, the Defendant had completed most of its audit and had concluded that the Plaintiff had been overcharging on the clean fill.

This did not affect what the Defendant understood the price to be for the clean fill as once the Plaintiff’s invoices were corrected from $7.75 per tonne to $7.50 per tonne, the Defendant continued to pay the Plaintiff’s invoices based on the pricing contained in the July Quote. vi. The Defendant Finds the June Quote [ 32 ] In late November, 2017, the Defendant discovered the existence of the June Quote which had apparently been mis-filed in a project folder. [ 33 ] Mr. Di Matteo was made aware that Joanne Herman, the Defendant’ Chief Financial Officer, had found the June Quote. According to an e-mail from Ms.

Herman dated November 23, 2017, the June Quote “was in our project folder (just not in the right place). How our administrator got a different version is still a mystery”. [ 34 ] Mr. Di Matteo claims that this is when he first became aware of the existence of the June Quote. He noted that the June Quote bore the same invoice number as the Volker Quote. Mr. Di Matteo states that the June Quote is not genuine as it is the Plaintiff’s practise to prepare a quote on a per tonne, rather than on a volume/m³, basis. vii. The Defendant Claims It Provided Services for the Plaintiff’s Benefit

[ 35 ] According to Mr. Murphy, the Plaintiff advised early on that it did not have enough equipment or personnel required to fulfill its obligations to the Defendant. Mr. Murphy says that the Plaintiff asked the Defendant to assist with the excavation and loading of clean fill to comply with the Project’s timelines and that the Defendant agreed to do so on the basis that it would receive compensation at market rates as per industry practise. According to Mr.

Murphy, the Defendant provided approximately 675 hours of services for the excavation and loading of clean fill, chargeable at $219.00 per hour for the total price of $154,912.50 which the Plaintiff has not paid. [ 36 ] Mr. Murphy further states that the Defendant agreed to provide the Plaintiff with dust suppression at the Plaintiff’s pit in September, 2017. Mr. Murphy understood that the Defendant agreed to provide these services at market rates in accordance with industry practice. Mr.

Murphy estimates that the Defendant provided 55 hours of dust suppression services at a rate of $127.00 per hour for a total amount owing of just under $7,000.00 which the Plaintiff has not paid. [ 37 ] Mr. Murphy concedes that he was not involved in the discussions between the parties but that Ms. Haika, the Defendant’s Chief Estimator, was. Ms. Haika has not provided any Affidavit evidence regarding her discussions with the Plaintiff, nor am I aware of any record that evidences what the parties discussed or agreed. [ 38 ] Mr. Di Matteo disagrees with Mr. Murphy. According to Mr.

Di Matteo, the Defendant did not perform these additional services at the Plaintiffs’ request or benefit but volunteered its services to fulfill the Defendant’s own contractual commitments. Mr. Di Matteo explicitly rejects the claim that the Plaintiff entered into an agreement as described by Mr. Murphy, and that had he known about any such proposed agreement, he would have rejected it. viii. The June Quote is Examined [ 39 ] The Plaintiff had the June Quote analyzed by Stephanie Williams, Director of eDiscovery for Ellwood Evidence Inc., a firm that provides digital forensics and ediscovery services.

She was sent a number of the parties’ native files and was instructed to “process each collection of documents, extract and export the metadata associated with each file”. [ 40 ] In particular, Ms. Williams was asked to focus on the June Quote, the July Quote and on the Volker Quote (since it shared the same invoice number as the June Quote). [ 41 ] In her Affidavit, Ms.

Williams deposed that: - The July Quote, dated July 17, 2017, was created on July 14, 2017, using the Mac OS X program, with the file name: HS- 70611.pdf, which matched the July Quote’s invoice number and that the metadata did not indicate who authored it; - The Volker Quote, dated July 20, 2017, was created on July 20, 2017, using the Mac OS X program, bearing the file name: HS- 70615.pdf, which matched the Volker Quote’s invoice number, and that the metadata did not indicate who authored it; - The June quote, dated June 9, 2017, was created on November 17, 2017, using the Microsoft Word 2010 program application, bearing the file name: PEC000334.pdf, and authored Shane Gilmour. [ 42 ] Ms.

Williams concluded that the June Quote bears the same invoice number as the Volker Quote but that it is actually an altered version of the July Quote. [ 43 ] Ms. Williams was questioned on her Affidavit by the Defendant. She conceded that she is not trained in digital forensics, that she has not been trained on the analysis of metadata and that she did not know who the author of the June Quote was, despite the metadata showing that it was Mr. Gilmour. Further, Ms.

Williams admitted that she could not identify the computer on which the June Quote had been created, that she had not examined either party’s computer systems, and that she had not cross-verified her findings through another computer program. [ 44 ] In response to Mr. Williams’ evidence, the Defendant retained Sulaiman Qureshi, a senior consultant for the Forensic Technology Practise at KPMG LLP. Mr. Qureshi was asked “how the [June Quote] may be altered, including alterations to the metadata within the document. Mr.

Qureshi was asked “...to demonstrate how the [June Quote] could be altered to include a Price/Tonne pricing format [the July Quote]”. [ 45 ] In his Affidavit, Mr. Qureshi deposed that the June Quote was not a secured PDF. Through a series of step-by-step illustrations, he demonstrated how simple it is to export a PDF document into Microsoft Word, make changes to the text, price amounts and column headings and that once changes had been made, the new altered document could simply be saved as a new version of the original PDF document. [ 46 ] Mr. Qureshi did not provide an opinion of Ms. Williams’ evidence. V.

Analysis i. What Were the Terms of the Agreement Regarding the Provision of Clean Fill? [ 47 ] The Defendant argues that the Master should not have granted

summary judgment for several reasons, including the following:

a) There is no factual certainty as to what the parties agreed the Defendant would pay for the supply and delivery of clean fill;

b) The parties’ affidavit evidence regarding what they agreed would be paid for the clean fill conflicts; and

c) A trial is required to assess witnesses’ credibility because their version of events on what the parties agreed to are directly contradictory. [ 48 ] For the reasons that follow, I agree with the Master’s finding that the June Quote is a fake and that the pricing terms of the July Quote is what the parties agreed to. In the result, I agree with the Master’s decision to grant the Plaintiff

summary judgment on its outstanding invoices. [ 49 ] Ms. Williams’ evidence is that the June Quote is not genuine. The June Quote was created on November 17, 2017, using the Volker Quote as its source document. Ms. William’s evidence is uncontradicted. In my view, the Master was perfectly entitled to accept Ms. Williams’ evidence. [ 50 ] Mr. Qureshi illustrates how simple it is for anyone to manipulate metadata found in a PDF file. Mr. Qureshi’s evidence does not challenge Ms. Williams’ conclusions. [ 51 ] I cannot reasonably conclude, based on Ms. Williams’ and Mr. Qureshi’s evidence, that Mr.

Gilmour created the fake June Quote. It could have been anyone working for the Defendant. In my view, the Master was correct in concluding that it is not reasonably plausible that the July Quote, which Mr. Gilmour acknowledges he received and which was found in the Defendant’s project folder, was fabricated by the Plaintiff using the June Quote as the source document. [ 52 ] I accept Ms. Williams’ evidence that the June Quote is a fabrication and I conclude that Mr. Gilmour is mistaken in his recollection or is simply confused that he received the June Quote. There is no corroborating evidence that Mr.

Gilmour received the June Quote. Mr. Gilmour does not know how he received it. He does not say what he did with it. There is no evidence of him having discussed it with anyone including Mr. Murphy, with whom he discussed other quotes that the Defendant received from other bidders. The Defendant paid the Plaintiff’s invoices in accordance with the pricing terms set out in the July Quote. The Defendant has no record of the June Quote until it’s seemingly accidental discovery in November, 2017. [ 53 ] Mr. Gilmour’s evidence is that other than his e-mail exchanges with Mr.

Di Matteo on July 17 and 27, 2017, his discussions Mr. Di Matteo about the pricing of the clean fill proceeded on a cost per m³ basis. There is no record of Mr. Gilmour having done so and no supporting evidence that I am aware of from Mr. Murphy or Mr. Champion (who could have provided supporting evidence about Mr. Gilmour’s on-site discussions with Mr. Di Matteo). This leaves us with Messrs. Murphy and Di Matteo’s e-mail exchanges as the only evidence about what price they agreed to. [ 54 ] Mr.

Gilmour is an experienced project estimator, having overseen the measuring and invoicing of bulk clean fill materials for approximately fifteen years. His evidence was that he would never have considered a quote for clean fill on a weight basis. Why then, did Mr. Gilmour not reject the July Quote? Why did he not ask Mr. Di Matteo to re-submit the Plaintiff’s quote in accordance with his expectations and practise that he would only consider quotes on a volume/m³ basis? Why did Mr. Gilmour not ask Mr.

Di Matteo to provide confirmation of what the conversion rate was? [ 55 ] In my view, the e-mail exchanges between Messrs. Gilmour and Di Matteo on July 17 and 27, 2017, demonstrate that what they were discussing was pricing for clean fill in accordance with the July Quote. I agree with the Master that there does not seem to have been any confusion in the mind of Mr. Gilmour. If Mr. Gilmour was in any way confused or unsure about their discussion, then it was up to him to seek further clarification or explanation. But he did not do so.

I can therefore only surmise that the parties were ad idem on the pricing terms as outlined in the July Quote. There is simply no reasonable evidence or explanation that would suggest otherwise. [ 56 ] Mr. Murphy’s evidence does not assist Mr. Gilmour. While Mr. Murphy testified that the Defendant received the June Quote, he does not say who received it, how it was received, or what was done with it. There is no evidence that would allow me to conclude that Mr. Murphy had personal knowledge of Mr. Gilmour having received the June Quote, that the June Quote was brought to Mr. Murphy’s attention, or that Mr.

Murphy was otherwise aware of its terms. Mr. Murphy’s contention that the Defendant received the June Quote cannot be reconciled with the fact that the Defendant paid the Plaintiff’s invoices based upon the terms of the July Quote. I therefore do not accept Mr. Murphy’s evidence that the Defendant received the June Quote. [ 57 ] It is not reasonably plausible to conclude that the Defendant, an experienced construction company, cannot locate a single internal record or communication that would account for the receipt of the June Quote until six months after it was claimed to have been received by Mr. Gilmour.

The only logical explanation, is that the June Quote was, as Ms. Williams concluded, a fabrication, created in November, 2017. [ 58 ] While I acknowledge that the state of the evidentiary record has gaps and unresolved questions, I find that the record is sufficiently complete for a determination on a

summary basis. The Defendant is obliged to put its best foot forward. I am in no doubt that it has. If it has not, and argues that there is evidence that that might assist it in providing a more complete record at trial, then that ship has sailed. [ 59 ] The Defendant asserts that the parties’ affidavit evidence clashes on the key issue of the price of the clean fill. In my view, Ms. Williams’ uncontradicted evidence, that the June Quote is a fabrication, a plain reading of Messrs. Gilmour and Di Matteo’s e-mail exchanges, Mr.

Gilmour’s failure to confirm the pricing terms that the Defendant now seeks to rely on, the Defendant’s payment of the Plaintiff’s invoices based on the pricing terms of the July Quote, and the fact that the Defendant cannot locate any evidence that it received the June Quote prior to it being discovered in November, 2017, satisfy me that there is, in reality, no clash on this issue. What I am satisfied the Plaintiff has proven is that the Defendant agreed to pay for the supply and delivery of clean fill based upon the pricing terms set out in the July Quote. [ 60 ] In oral submissions, the Defendant argued that

summary judgment should not be granted because of the significant number of sworn affidavits before the court. With respect, I know of no authority that precludes

summary judgment being granted merely because of the volume of affidavit evidence a court must consider.

[ 61 ] Finally, the Defendant argues that the Master should not have concluded that the June Quote was a fake in the absence of the Plaintiff having put this allegation to the Defendant’s witnesses, particularly Mr. Gilmour, on cross-examination. In my view, this is unnecessary. Mr. Gilmour has already denied that he created the June Quote. I do not have sufficient evidence to conclude that Mr. Gilmour is not being truthful. There is no other known suspect that the Plaintiff could have cross-examined on this issue.

In my view, the Master’s conclusion is supported on a review of the evidence as a whole. [ 62 ] I am satisfied that the Plaintiff has met the burden of proving that there is no defence and that there is no genuine issue requiring a trial. I am confident that the state of the evidentiary record, even where it conflicts, is such that

summary disposition is appropriate. Having regard to the particular facts of the case, a consideration of the evidentiary record, and to the imperative for ensuring procedural fairness, I uphold the Master’s decision granting the Plaintiff

summary judgment. ii. Should the Master Have Decided the Defendant’s Counter-Claim? [ 63 ] I agree with the Master that the Defendant’s counter-claim for quantum meruit is a genuine issue that requires a trial. [ 64 ] There is no evidentiary record to speak of what the parties agreed to. No written agreement was entered into between the parties nor are there are records or documents or Affidavit evidence that substantiate either of the parties’ respective positions.

Each of the parties has a different view as to why the services provided, for whose benefit, and whether there was any expectation that compensation would be paid. Given the state of the evidentiary record, neither the Master nor I can fairly dispose of this matter in any procedurally fair manner and it must proceed to trial where the evidence can be fully canvassed. [ 65 ] In my view, a determination of the Defendant’s claim for services is a genuine issue that must proceed to trial independently of these proceedings. I see no reason to issue a stay of enforcement of my decision. iii.

Did the Parties Enter Into a Credit Agreement? [ 66 ] I see no reason to disturb the Master’s findings, articulated in the Master’s supplemental reasons dated September 17, 2020, that the parties entered into a credit agreement which stipulated terms of interest and payment of solicitor client costs. [ 67 ] As I understand it, the parties first started working together in late 2016. At that time, the Defendant was incorporated as “Professional Excavators & Construction Inc”. The Plaintiff provided the Defendant with its standard form, fill-in-the-blanks style credit agreement for the Defendant to complete. Ms.

Tracy Zolotas, the Defendant’s Controller, completed the form and signed it. In the box titled “Credit Information”, she requested $50,000.00 in credit. This was the amount of credit required for the material the Defendant had purchased from the Plaintiff in what appears to have been the first of the parties’ dealings. [ 68 ] In early 2017, the Defendant changed its name to “Professional Excavators & Construction Ltd.” This required the Defendant to sign a new credit agreement. [ 69 ] On February 24, 2017, Ms.

Zolotas provided the Plaintiff with a signed credit application, which, when taken together with the information contained in the Defendant’s accompanying credit application form, essentially comprised the same information the Defendant provided in its first application for credit. [ 70 ] The credit application’s terms and agreement stipulate that upon the Plaintiff’s approval of the application , credit privileges would be extended to the customer (the Defendant). Clause 1 of the agreement states that whether, and in what amount, credit would be extended would be in the Plaintiff’s sole discretion.

Clause 4 states that a rate of interest of 2% is chargeable on overdue accounts, commencing on the first day the account is overdue. [ 71 ] Ms. Zolotas believed she signed the new credit application to provide the Plaintiff with the Defendant’s updated name information (change from Professional Excavators Ltd. to Professional Excavators and Construction Inc.). While that may be so, this does not change the fact that from the Plaintiff’s perspective, what it received from the Defendant was an application for credit. The Plaintiff approved it.

The Defendant is now bound by it. [ 72 ] Consequently, I agree with the Master’s decision to grant the Plaintiff interest on the amount the Defendant owes at 2% per month from when each invoice was due until the date of the Master’s decision and thereafter, under the Judgment Interest Act . [ 73 ] I note that the Defendant has concerns about the way in which the Plaintiff arrived at its interest calculations. Ms.

Debona, Chief Operating Officer for the Plaintiff, has sworn an Affidavit recalculating the Plaintiff’s interest claim in compliance with the Master’s order. [ 74 ] The Plaintiff asserts that these calculations will need to be revised up to the date of this judgment.

If there is any disagreement between the parties about what interest should be paid, then can contact me to make the necessary submissions. [ 75 ] With respect to the Plaintiff’s solicitor and client costs, clause 8 of the agreement stipulates that “the customer agrees to be responsible for all solicitor and client costs and all other expenses incurred by [the Plaintiff] in connection with the collection of the accounts”. [ 76 ] Given my conclusion that the Defendant is bound by the credit agreement, I see no reason as to why the Plaintiff’s solicitor and client costs are not recoverable and I confirm the Master’s decision.

[ 77 ] I agree with the Plaintiff’s suggestion that the parties may proceed to the assessment officer to assess these costs up to and including the hearing date of March 24, 2021. VI. Disposition [ 78 ] The Defendant’s appeal is hereby dismissed in its entirety. [ 79 ] If the parties are unable to reach an agreement with respect to costs, they may provide written submissions, not exceeding 5 pages each, within the next 30 days. Heard on the 24 th day of March, 2021. Dated at the City of Calgary, Alberta this 12 th day of May, 2021. O.P. Malik J.C.Q.B.A. Appearances: Blair C.

Yorke-Slader, Q.C. for the Plaintiff, 1189677 Alberta Ltd., operating as Hillstone Aggregates Christian J. Popowich for the Defendants, Professional Excavators & Construction Inc., and Professional Excavators Ltd.