Canadian Consulting Engineers Inc v Brazeau (County), 2021 ABQB 464

Court of Queen’s Bench of Alberta Citation: Canadian Consulting Engineers Inc v Brazeau (County), 2021 ABQB 464 Date: 20210618 Docket: 1903 14873 Registry: Edmonton Between: Canadian Consulting Engineers Inc Plaintiff - and - Brazeau County Defendant _______________________________________________________ Reasons for Judgment of W. S. Schlosser, Master of the Court of Queen's Bench of Alberta _______________________________________________________ [ 1 ] This is an application for

Summary Judgment, seeking partial relief for invoices rendered under a series of engineering agreements. There is also a loss of income claim arising from the termination of these agreements. [ 2 ] The County says that the engineers failed to meet their contractual obligations, to the extent that this amounted to a repudiation. The engineers say their work was done to industry standards and they must be paid. [ 3 ] The Plaintiff’s approach is interesting in that it makes no pretense of applying for a

summary determination in the course of an ordinary lawsuit. Instead, the strategy appears to have been to prepare this case for

Summary Judgment directly. The record reflects

this approach. [ 4 ] The Applicants cannot lien a public work, but they have treated this as if it were a lien matter and seek expeditious resolution. [ 5 ] The outcome turns entirely on the state of the record. [ 6 ] Differences developed between Canadian Consulting Engineers (“CCE”) and the County over the course of their working relationship. The County issued a Notice of Default with seven pages of particulars covering 92 items. CCE then sued. The County filed a somewhat general Statement of Defence. [ 7 ] The County then filed a Notice to Admit, which CCE responded to. [ 8 ] CCE then filed an Affidavit of it’s principal (991 pages in 4 volumes), followed by a

Summary Judgment application. The application was originally set for September of last year. The text of their Application Brief was 6 pages. [ 9 ] The County then filed its Responding Brief (18 pages) and their own Affidavit (203 pages) about a month before the application was to be heard. CCE then filed a Supplementary Affidavit (187 pages). The application was then adjourned. Both affiants were examined on their Affidavits (140 pages each). There were much expanded rebuttal briefs.

There has been no questioning for discovery, though the examinations on the Affidavits were fairly wide-ranging and, to a large extent, have taken its place. [ 10 ] I will use the Cynthia 3 Project Agreement, which is Exhibit A to Dr. Augustin’s Affidavit, volume 1. Now that the issues have been brought into focus, the question is whether or not they can be determined summarily, in a fair and just way. Entire or Severable? [ 11 ] This was to be a lump-sum fixed price contract.

The standard form Association of Consulting Engineers’ document no. 31- 2010 provides, in clause 25 (definitions): “Work” means the total construction and related services required by the construction contract. (emphasis added) [ 12 ] This would seem to suggest an entire agreement not amenable to permitting a disposition for ‘half the services for half the price’, to borrow from Professor Waddams, The Law of Contracts, 6 th edition, para 604. [ 13 ] General condition 17.1 permits severability but only of illegal or unenforceable terms. [ 14 ] General condition 10.3 provides: If the Engineer is in material default in the performance of any of the Engineer’s obligations under this Engineering Agreement , the Client will notify the Engineer that the default must be corrected.

If the Engineer does not correct the default within 30 days after receipt of such Notice or if the Engineer does not take reasonable steps to correct the default if the default is not susceptible of immediate correction, the Client may terminate this Engineering Agreement upon further Notice to the Engineer , without prejudice to any other rights or recourses of the Client .

Such termination will not release the Client from its obligation to pay all Fees and Reimbursable Expenses incurred by the Engineer up to the date of termination in the manner provided in the Engineering Agreement . [ 15 ] This term introduces something of a quantum meruit, or a restitutionary element and avoids an ‘all or none’ response. Therefore, it leaves the door open to assessing the value of the services actually provided. Standard of Services Provided [ 16 ] This is where the problems arise.

General condition 5.2 and 5.3 provide: 5.2 The Engineer will provide Services in accordance with the Engineering Agreement and with the degree of care, skill, and diligence normally provided by engineers in the performance of comparable services in respect of projects of a similar nature to that contemplated by this Engineering Agreement . 5.3 The Engineer will maintain records of Reimbursable Expenses and time records for Services performed for which the Fee is computed on an hourly basis.

These records will be maintained to acceptable accounting standards and made available to the Client at mutually convenient times during the term of this Engineering Agreement and for a period not exceeding one year following completion of Services . [ 17 ] This introduces an objective element of performance into the valuation of services and recordkeeping. [ 18 ] The dispute centers on the valuation of the work actually provided and whether that work, in any event, fulfills the requirement of the project management plan.

The County argues that the value of the deliverables is unequal to the value claimed on the invoices. Some services were fully performed. Some services, it is argued, were not provided at all. The dispute takes us squarely into the realm of contractual

interpretation and industry standards. It is about expectations, compliance and adequacy of what was intended to be a fixed price, lump sum contract. The compliance part takes us into the area of the form and substance of the deliverables.

[ 19 ] General condition 1.3 provides: Words and abbreviations with well-known technical or trade meanings are used in the engineering agreement documents in accordance with such recognized meanings. [ 20 ] The contract provides, for example, that the engineer is to decide what site visits are appropriate (clause 7.8).

General condition 5.4 does not require the inspections to be exhaustive. [ 21 ] One question is whether the number of site visits met industry standards and whether the reporting of those site visits met the requirements of the contract. [ 22 ] The Court cannot decide this issue without the assistance of expert opinion evidence. [ 23 ] Dr. Augustin, the Plaintiff’s officer, is apparently a Ph. D in Civil Engineering as well as being a P Eng. I expect that he could be qualified as an expert but as the principal of the Plaintiff, he would run into the issue of partiality. Mr.

Fischer, the County’s witness, (though not a P Eng.) and though he was not on the scene when the contracts were signed, is long experienced in this area and would probably be qualified as an expert on industry standards as well; subject of course to the same reservations about giving opinion evidence in his own cause. The opinions of Dr. Augustin and Mr. Fischer in their Affidavits are diametrically opposed. [ 24 ] I note, as well, that some of the documents produced have not been tendered in any formal way other than being attached as a tab to the brief.

As such, they are not evidence that the Court can properly rely upon for a disposition without the agreement of both sides. [ 25 ] It is my view that this dispute is not now capable of being resolved in a fair and just way on the existing record. [ 26 ] A

summary determination is first and foremost a vote of confidence in the record before the Court ( Weir-Jones Technical Services Incorporated v Purolator Courier Ltd , 2019 ABCA 49 , at para 47 (

d) and Nelson v Grande Prairie (City) , 2018 ABQB 537 , cited there). The Court must be satisfied that if a case progresses, the record will not become substantially better, or different from the one that is before it now. The Court also has to be satisfied that there are no evidentiary conflicts sufficient to oblige it to see the witnesses to resolve the inconsistencies in the evidence. [ 27 ] As I see it, this case really comes down to a battle of the experts. And, in this respect at least, the evidence is only going to improve.

Expert opinion evidence would permit the Court to gauge whether the expectations set out in the Applicant’s and Respondent’s Affidavits met the expectations of the parties and the terms of the Agreement as defined by the standards of the industry. I acknowledge that the facts are not really in dispute.

This is not really a factual matrix type of scenario, but more one of an objective determination of an ‘opinion matrix’ and, ultimately, about who’s expectations will prevail. [ 28 ] Despite the very ambitious path taken by the Applicant, I am not satisfied that I can make a fair and just resolution based on the record presently before the Court.

Accordingly, the application is dismissed though a procedural Order might be helpful to keep this matter progressing at a swift pace. [ 29 ] I also note that the contract provides a mechanism for dispute resolution (general conditions 15.1, 15.2, and 15.3) but contemplate negotiation, mediation and, with the agreement of the parties, arbitration. It may well be that a preferable approach would be to engage an expert arbitrator. [ 30 ] Costs may be addressed if they are not agreed. Heard on the 27 th day of May, 2021. Dated at the City of Edmonton, Alberta this 18 th day of June, 2021. W.S. Schlosser M.C.Q.B.A.

Appearances: Grayson J. Bateyko Emery Jamieson LLP for the Plaintiff

Martin J. Redman Shores Jardine LLP for the Defendant