Metro Paving and Roadbuilding Ltd (Re), 2021 ABQB 719

Court of Queen’s Bench of Alberta Citation: Metro Paving and Roadbuilding Ltd (Re), 2021 ABQB 719 Date: 20210908 Docket: 2101 00809 Registry: Calgary Between: Bank of Montreal Applicant - and - Metro Paving and Roadbuilding Ltd, Metro Paving Ltd, Metro Pars Corporation and Grasslands of Beiseker Development Corporation Respondent _______________________________________________________ Reasons for Decision of the Honourable Madam Justice L.

Bernette Ho _______________________________________________________ [ 1 ] This application for advice and direction was filed by BDO Canada Limited (“BDO”) and arises in relation to two construction projects. [ 2 ] PCL Construction Management Inc. (“PCL”) contracted with the Government of Canada to undertake improvements to the Whistlers Campground in Jasper, Alberta (the “Whistlers Contract”).

Trevcon Enterprises Ltd. (“Trevcon”) entered into a contract with the Government of Alberta to replace the Highway 27 bridge over the Red Deer River near Morrin, Alberta (the “Morrin Contract”). [ 3 ] Both PCL and Trevcon entered into contracts with Metro Paving and Roadbuilding Ltd. (“Metro”), making Metro a subcontractor. Metro engaged a number of other entities (collectively, the “Sub-subcontractors”) to complete various parts of the work. [ 4 ] Metro became insolvent and on January 20, 2021, by Order of Madam Justice Eidsvik, BDO was appointed as receiver and manager of Metro.

On May 12, 2021, BDO assigned Metro into bankruptcy and became its Trustee. [ 5 ] The Whistlers Contract and the Morrin Contract required PCL and Trevcon, respectively, to post labour and materials bonds. PCL posted a bond (the “Whistlers Bond”) naming itself as principal, the federal Crown as obligee and Zurich Insurance Company Ltd., Travelers Insurance Company of Canada and Chubb Insurance Company of Canada as the sureties.

Trevcon posted a bond (the “Morrin Bond”) naming itself as principal, Alberta Transportation as trustee and Intact Insurance Company as the surety. [ 6 ] Trevcon explains such bonds as follows in its brief: Labour and materials payment bonds are commonly used within the construction industry to secure contractual obligations. Most commonly, these bonds are found on public projects where lien rights do not arise under the Builders’ Lien Act . It is a type of financial guarantee to secure payment for labour and materials supplied on a construction project, and differs from a performance bond which

guarantees performance of a contract. A labour and material payment bond is issued by companies called “sureties” and while professional surety companies are often also engaged in the insurance business, a surety guarantees performance in return for a premium, and is different from an insurance relationship. The surety backstops payment of labour and material suppliers on a project when the principal (either a general contractor or subcontractor) fails to make payment. Generally it is the owner who is listed as obligee or trustee under the bond. [Emphasis in original.

Citations omitted.] [ 7 ] The Morrin project reached substantial completion on October 30, 2020. Metro completed some work under the subcontract with Trevcon on September 11, 2020, but was required to remedy deficiencies. [ 8 ] Trevcon asserts that it has received 20 claims from Sub-subcontractors under the Morrin Bond in the aggregate amount of $1,051,946.14, as well as a claim from Metro, through BDO, in the amount of $546,756.16. [ 9 ] With regards to the Whistlers project, BDO informed PCL on January 29, 2021 that Metro would not complete the work under the subcontract.

PCL entered into a replacement contract with a new contractor to complete that work at a cost of $827,122.50. As of the hearing of this matter, the work had not yet been completed. PCL also claims that there are deficiencies in the work Metro did complete. [ 10 ] PCL has been notified by various Sub-subcontractors that they have not been paid by Metro and will seek payment under the Whistlers Bond.

Those claims amount to at least $980,339.34. [ 11 ] BDO claims that Metro is owed $546,756.16 by Trevcon and $1,285,104.61 by PCL for work performed on the Morrin and Whistlers projects, respectively. [ 12 ] The parties framed the issues on this application slightly differently in their written submissions.

BDO states as follows in its brief [paragraph numbers omitted]: At a high-level, the broad issue before the Court is whether Trevcon and PCL can rely on the contractual language of the Bonds to avoid making payment to [Metro’s] estate, and instead pay [Metro’s] Sub-subcontractors directly, notwithstanding that such payment will in effect reverse the distribution scheme provided for by federal insolvency legislation.

In this instance, funds paid to the receivership/bankruptcy estate would, after satisfaction of any priority payables pursuant to the Receivership Order and [ Bankruptcy and Insolvency Act ], be payable to the Bank of Montreal as the first in priority creditor. The following are relevant issues to be determined: (

a) Is the language in the Bonds broad enough to allow the Sub-subcontractors to make claims under the Morrin Bond and the Whistlers Bond? (

b) Does the “joint and several” language in the bonds permit or obligate Trevcon or PCL to pay the Sub-subcontractors directly, rather than paying [Metro] pursuant to their respective subcontracts? (

c) If Trevcon/PCL are liable to pay both [Metro] under the subcontracts and any “claimant” under the Bonds, under which agreement should Trevcon/PCL make payment? Does the existence of the receivership and/or bankruptcy influence the result? (

d) If Trevcon/PCL make payment directly to the Sub-subcontractors, are Trevon/PCL entitled to claim set-off against the estate of [Metro]? (

e) If Trevcon/PCL make payment to the estate, are Trevcon/PCL still liable to the Sub-subcontractors as “claimants” under those Bonds? [ 13 ] PCL reiterates this same list of issues, though limiting its submissions to the Whistlers Bond. [ 14 ] For its part, Trevcon asserts that BDO’s

summary of the issue is inaccurate. It posits the issue as follows: After making payments to Second Tier Claimants [i.e., Sub-subcontractors] pursuant to its obligations under the [Morrin] Bond, is Trevcon entitled to set-off the damages it will suffer as a result of those payments against the Metro Claim so that Trevcon does not pay for the same work twice effectively providing the Receivership of Metro a windfall? [ 15 ] At the outset of oral submissions, BDO’s counsel indicated that the question I must answer has been narrowed because of positions outlined in filed reply materials.

The question to be considered was framed by BDO as follows: If payments under the Bonds are made to Sub-subcontractors, may those payments be set-off against amounts claimed by BDO as being payable under the construction subcontracts? [ 16 ] BDO submits that no set-off should be permitted because of precedent, statutory

interpretation, principles of set-off and principles underlying bankruptcy proceedings as a whole. PCL and Trevcon argue that the precedents relied upon by BDO are distinguishable and principles of equitable set-off apply. [ 17 ] Other interested parties made oral submissions at the application. The Bank of Montreal, Metro’s primary secured creditor, supports BDO’s position and relies on the same arguments as BDO. Several Sub-subcontractors support the positions outlined by Trevcon and PCL.

One Sub-subcontractor submitted that I must consider the prejudice that will be suffered by Sub-subcontractors who were not paid by Metro and are not protected by statutes like the Public Works Act or Builders’ Lien Act. In that respect, I should have regard for the underlying intent of the Bonds held by Trevcon and PCL when considering BDO’s application for advice and direction. [ 18 ] In my view, the issues that must be addressed, broadly speaking, are:

(

i) What obligations do Trevcon and PCL have to the Sub-subcontractors under the terms of the Bonds? (ii) If, under the terms of the Bonds, Trevcon and PCL can or must pay the Sub-subcontractors, can they claim set-off againstany amounts owing to Metro? (iii) Would payment to the Sub-subcontractors have the effect of subverting the priority scheme in the Bankruptcy and InsolvencyAct? What obligations do Trevcon and PCL have to the Sub-subcontractors under theterms of the Bonds? [19] The first question can be answered with reference to the terms of the Bonds themselves.

Both BDO and Trevcon cited APMConstruction Services Inc v Caribou Island Electric Ltd, 2013 NSCA 62, in which the Nova Scotia Court of Appeal set out at para 62the contract

interpretation principles applicable to surety bonds: 1.The bond is a freestanding contract and its terms ultimately govern the

interpretation exercise. The wording of the bond's terms must begiven its ordinary and literal meaning. The words cannot be interpreted in isolation but must be looked at in the context of the bond as awhole. 2.The court will look to the intentions of the parties and, in so doing, will try to give commercial efficacy to the agreement. However, thecourt will not replace the parties' agreement with its own.

Thus, if the wording of the agreement is clear and unambiguous, parties will beheld to their agreement, even where the results appear to be draconian or absurd... 3.Where the disputed contract is part of a series of contracts, the court will look to the surrounding contracts as well.

However, in thecontext of surety bonds, the terms of the bond ultimately govern; while the underlying contract may be considered, it will only bedeterminative if the specific obligations contained within it are incorporated by reference into the bond. 4.Contra proferentem is available but only where there is an ambiguity that cannot be resolved through other principles of contractualinterpretation. [20] PCL and Trevcon take the position that the definition of “claimant” under the Whistlers and Morrin Bonds is sufficientlybroad to include the Sub-subcontractors.

BDO does not take issue with that position. [21] I agree with all parties that the definition of “claimant” under both the Whistlers Bond and the Morrin Bond is broad enoughto encompass the Sub-subcontractors. That being the case, the terms of the Bonds obligate Trevcon and PCL to pay the Sub-subcontractors the amount of any proven claims.

If, under the terms of the Bonds, Trevcon and PCL can or must pay the Sub-subcontractors, can they claim set-off against any amounts owing to Metro? [22] The next issue is whether PCL and Trevcon are entitled to set-off amounts payable to the Sub-subcontractors under the Bondsagainst amounts owing to Metro. [23] BDO asserts that there are three types of set-off: contractual, legal and equitable. [24] Trevcon makes no argument in respect of contractual set-off.

For its part, PCL argues that it has a contractual right to set-offamounts paid to the Sub-subcontractors against any amounts owing to Metro’s estate, citing this clause in its agreement with Metro: [Metro] hereby acknowledges and agrees that [PCL] may set-off against any obligation of [PCL] to [Metro], and that [PCL’s] obligationto pay [Metro] shall be reduced by, any claim of any nature of kind by [PCL] against [Metro] or any subsidiary or affiliate of [Metro],whenever arising, whether liquidated or unliquidated, whether or not arising from or related to this Subcontract and including any claimagainst [Metro] by any other person which has been assigned at any time to [PCL]. [25] BDO counters that this clause does not appear to contemplate amounts paid to third parties such as the Sub-subcontractors.

Iagree. There is nothing in the record before me to suggest that any of the Sub-subcontractors’ claims against Metro has been assigned toPCL. Rather, as noted above, PCL’s obligation to pay such claims arises under the Whistlers Bond. [26] Both PCL and Trevcon argue that equitable set-off is appropriate in this case. All parties cite the following elements of thetest for equitable set-off as set out by the Supreme Court of Canada in Telford v Holt, (SCC), [1987] 2 SCR 193 at para35: (

a) The party relying on a set-off must show some equitable ground for being protected against his adversary’s demands. (

b) The equitable ground must go to the very root of the plaintiff’s claim before a set-off will be allowed. (

c) A cross-claim must be so clearly connected with the demand of the plaintiff that it would be manifestly unjust to allow the plaintiffto enforce payment without taking into consideration the cross-claim. (

d) The plaintiff’s claim and the cross-claim need not arise out of the same contract. (

e) Unliquidated claims are on the same footing as liquidated claims.

[27] It is undisputed that rights of set-off are preserved in both receivership and bankruptcy. Section 97(3) of the BIA states:

(3) The law of set-off or compensation applies to all claims made against the estate of the bankrupt and also to all actions institutedby the trustee for the recovery of debts due to the bankrupt in the same manner and to the same extent as if the bankrupt were plaintiff ordefendant, as the case may be, except in so far as any claim for set-off or compensation is affected by the provisions of this Actrespecting frauds or fraudulent preferences. [28] BDO notes that “A successful claim for set-off will elevate that creditor’s priority ranking ahead of its position in the BIA’spriority waterfall, and the creditor’s claim will not be paid ratably with similar creditors.

This is an exception to the ordinary course.” Forthis reason, BDO argues that the courts have taken a strict approach to set-off in insolvency cases. [29] All parties referred to the Supreme Court of Canada’s decision in AN Bail Co v Gingras, (SCC), [1982] 2SCR 475. The facts of that case were, in some respects, similar to those before me. A contractor had made payment directly to a sub-subcontractor that had supplied materials to a bankrupt subcontractor and sought to be released from its debt to the bankrupt.

TheSupreme Court declined to release the contractor, holding as follows at paras 39-42: The payment made by appellant to Tuyaux Vibrés Inc. remains a payment made on behalf of the bankrupt company, which as of the dateof the bankruptcy can make no further payments (Bankruptcy Act, s. 50(5)). From the date of the bankruptcy also, the debt of Maҫonnerie Montmorency Inc. against appellant passed into the hands of the trustee aspart of the property of the bankrupt company, and only the trustee can obtain payment of it (Bankruptcy Act, ss. 47, 50).

It would be to disregard the Bankruptcy Act and deprive it of all meaning if the debtor of a bankrupt, instead of paying the trustee, wereauthorized, by contract or some other means, to pay one or other of the creditors of the bankrupt as he saw fit. I adopt the conclusion of Montgomery J.A., speaking for the Court of Appeal: The above clause of the general conditions may be perfectly valid and effective where there is no question of bankruptcy.

I cannot,however, agree with Appellant that it can supplant the provisions of the Bankruptcy Act and entitle one unsecured creditor to be paid bypreference, which would almost necessarily operate to the detriment of the other unsecured creditors. I regard this as contrary to thepolicy of the Bankruptcy Act. [30] I note that in Bail, the contractor had no legal obligation to make the payment to the sub-subcontractor. In this case, bycontrast, PCL and Trevcon are required under the terms of the Bonds to pay the Sub-subcontractors.

While BDO correctly points out thatthe Bonds give rise to an obligation separate and distinct from those under the contracts with Metro, this is not a situation where, to usethe Supreme Court’s phrase, the debtor paid the bankrupt’s creditors “as he saw fit”. [31] I note that PCL also referred to this clause in its contract with Metro: [Metro] hereby authorizes [PCL] to pay any or all of [Metro’s] unpaid obligations, whether or not such unpaid obligations have beendisclosed by [Metro] to [PCL], and to reduce the amount owing to [Metro] by the amount or amounts so paid, plus a reasonableallowance for [PCL’s] overhead and administration. [32] While PCL did not raise this clause in the context of Bail, I find that it is exactly the type of discretionary authorization towhich Bail would apply.

The Whistler Bond, by contrast, provides for mandatory payment to the Sub-subcontractors. [33] BDO and Trevcon also cite the Supreme Court’s decision in Husky Oil Operations Ltd v Minister of National Revenue, (SCC), [1995] 3 SCR 453. In that case, Saskatchewan legislation provided that if a contractor failed to make contributions toan injury fund, the Workers’ Compensation Board could look to the principal for payment of those contributions. The principal was thenstatutorily entitled to withhold from its indebtedness to the contractor an amount sufficient to indemnify it for the payments made.

Themajority of the Supreme Court held, however, that this statutory indemnity was inoperable in bankruptcy as it effectively elevated theBoard’s priority. The Supreme Court stated at paras 61, 68 and 73: But there is an inherent limit to this deference to the provincial law of set-off.

While the operation of set-off is permitted to allow for theparty claiming set-off to recover from the estate ahead of the stipulated order of his claim under the Bankruptcy Act, it most emphaticallyis not permitted to allow the operation of provincial legislation to reorder the priorities of third parties against the estate – and by “thirdparties” I do of course mean the priority of any person other than the person who claims set-off against the estate. If provinciallegislation were to have this effect, on the consistent authority of the quartet it must be declared inapplicable in bankruptcy. ...

Nor, incidentally, can this process be justified by reference to the law of set-off. While the law of set-off incorporated by reference in s.97(3) of the Bankruptcy Act would permit the principal to secure its own claim against the estate, it does not permit the province to enactlegislation which confers the same benefit on a third party, in this case the board, since such legislation would have the effect ofreordering priorities with respect to an entire class of preferred claims.

We have consistently held that the deference to provincial law inthe Bankruptcy Act does not extend to the reordering of claims against the estate. At that point, provincial law simply ceases to apply forintruding into an exclusive federal sphere. Such, then, must also be the fate of the impugned legislation in this case. ... Differently put, in the bankruptcy context, the law of set-off simply allows a debtor of a bankrupt who is also a creditor of the bankruptto refrain from paying the full debt owing to the estate, since it may be that the estate will only fulfil a portion, if that, of the bankrupt’sdebt.

Set-off is simply a defence to the payment of a debt, not a basis for validating statutory security devices which have the effect ofsecuring the claims of third parties against the estate. Indeed, the defensive character of set-off is reflected in the wording of s. 97(3)

which stipulates that set-off applies to “all claims made against the estate of the bankrupt and also to all actions instituted by the trustee for the recovery of debts due to the bankrupt”. [ 34 ] In my view, the Husky case is also distinguishable from the matter before me. [ 35 ] Husky involved a contest between provincial and federal legislation and the majority’s concern was that the provincial statute “would have the effect of reordering priorities with respect to an entire class of preferred claims ”. That is not what is at issue here.

Rather, I am asked whether it is appropriate to apply equitable set-off in the particular circumstances of this case. As will be discussed further infra , the application of equitable set-off in this case would not “have the effect of securing the claims of third parties against the estate”.

The claims of the Sub-subcontractors will be paid as a function of the Bonds, not of the proposed set-off. [ 36 ] Therefore, I find that neither Bail nor Husky precludes me from applying equitable set-off if appropriate. [ 37 ] BDO refers to a number of Alberta cases citing Bail and Husky and argues that “Alberta courts take the position that claims for set-off cannot be maintained when the effect is to re-order priorities for third parties in bankruptcy.” [ 38 ] In Re Horizon Earthworks Ltd , 2013 ABCA 302 , the Court of Appeal relied on Bail and found that monies could not be paid directly to Horizon’s creditors rather than to its trustee in bankruptcy.

I note, however that the Court of Appeal held at para 43 that the contractual relationships in that case could not be distinguished from those in Bail : ...In our view, the contractual arrangements here do not establish a relationship sufficient to distinguish Bail . Although there is language in the contracts between Horizon and Western Surety relating to unpaid funds being earmarked with a trust, Greenview is not a party to the Bonds or the ISA, and has no legal obligations under any of those agreements to pay unpaid creditors.

While the Labour and Material Payment Bond says that Greenview, as Obligee under the Bonds, can bring claims on behalf of unpaid creditors, it does not require Greenview to do so.

Nothing in any document places an obligation on Greenview to pay the unpaid creditors. ... [ 39 ] I agree with PCL and Trevcon that this case is factually different in that they have an obligation under the terms of the Bonds to pay the Sub-subcontractors. [ 40 ] BDO also cites Iona Contractors Ltd v Guarantee Company of North America , 2015 ABCA 240 , where the Court held at paras 16 and 17: ...if the owner had an obligation to pay the subcontractors, and not just a discretion, the result would be different. ...The appellant argues that when the construction contract and the bond are read together, they disclose an obligation on the part of the Airport Authority to “mitigate” the exposure of the surety, which includes using the holdback funds to pay the subcontractors.

Even if the agreements, when read together, disclose some intention to minimize the exposure of the surety, the private arrangements between the owner, the contractor, and the bonding company cannot affect the rights of third parties like the Trustee in bankruptcy and the secured creditor. ... [ 41 ] Again, however, the contractual arrangements in that case were different because it was the surety that had the obligation to pay the subcontractors. The party seeking set-off had only a secondary obligation to mitigate the surety’s liability.

In this case, both PCL and Trevcon have a primary obligation under the terms of the Bonds to pay the Sub-subcontractors. The sureties’ obligations are secondary. [ 42 ] BDO also refers to Re Ricketts , 2021 ABQB 77 . In that case, a bankrupt insured arrived at a settlement agreement with his disability insurer that was structured to avoid the settlement proceeds forming part of the bankrupt estate.

The Registrar in Bankruptcy stated at para 18: Notwithstanding that RBC Life retained the right of setoff, it strikes me as patently unfair that RBC Life could exercise its right to setoff in such a fashion as to prejudice the bankruptcy estate. The bankruptcy estate did have a potential interest in the Disability Insurance Action. That potential interest is for any part of the income that may be claimed by the Trustee pursuant to s 68 of the BIA . In my view, Mr.

Ricketts and RBC Life could not simply come to an agreement that eliminates the bankruptcy estate’s potential interest. [ 43 ] This case too may be distinguished. The Bonds were not put in place for the purpose of defeating Metro’s creditors in bankruptcy. They were required as part of the Whistlers and Morrin Contracts and predated Metro’s insolvency. If PCL and Trevcon are able to establish valid claims to equitable set-off, I do not see that it would be “patently unfair” for them to do so in these circumstances. [ 44 ] In

summary, none of the cases to which BDO refers persuades me that the requests for equitable set-off in this case cannot be granted.

Accordingly, I must consider whether the elements of the test for equitable set-off outlined in Telford have been met. [ 45 ] In its reply brief, BDO asserts that the claims for equitable set-off must fail because PCL and Trevcon have not clearly established that there are equitable grounds to protect them against the Receiver/Trustee’s demands for payment and that the Receiver/Trustee’s claim for payment is so clearly connected to the obligation under the Bonds to pay the Sub-subcontractors that it would be manifestly unjust to allow enforcement of the one without taking the other into consideration. [ 46 ] I disagree.

In my view, PCL’s and Trevcon’s claims for set-off are clearly connected with BDO’s claims on behalf of Metro. All of the claims and obligations arise out of the same set of circumstances, namely that the parties were engaged in construction projects, expenses were incurred in those projects and Metro became insolvent. Absent Metro’s insolvency and failure to pay the Sub- subcontractors, PCL and Trevcon would have had no obligations under the Bonds. [ 47 ] In respect of the equitable grounds for claiming relief, I accept that, if set-off is not granted, PCL and Trevcon will have to pay the same amounts twice.

They will be obliged under the Bonds to pay the Sub-subcontractors who performed the work and supplied the materials while paying the same amounts into Metro’s bankrupt estate, to the benefit of Metro’s creditors.

[ 48 ] BDO points out in its reply brief that these are “two mandatory and independent obligations”. I agree, but equitable set-off does not require that the obligations to be set-off against one another arise from the same source, only that they be closely connected. [ 49 ] BDO also argues as follows in its reply brief: PCL and Trevcon are not exposed to potential double paying “simply because of Metro’s insolvency,” but rather they and the sureties (who are all sophisticated parties) knowingly caused the Bonds to be issued with a broad definition of “claimant”.

The risk of a double payment exists both within and outside of an insolvency. For example, under any form of bond with such a broad definition of “claimant”, there is a risk of double payment where a subcontractor takes money from the contractor and does not use it to pay Sub- subcontractors.

While double payment is never ideal, it is not inherently commercially unreasonable or manifestly unjust, particularly where (as is the case here) the purpose of the bond is to entice subcontractors and sub-subcontractors to provide labour and materials to public projects on which no lien rights are available. [ 50 ] I do not accept this argument. First, in the absence of insolvency or some other extraordinary circumstance, if PCL and Trevcon became obliged to pay under the Bonds because of Metro’s failure to pay the Sub-subcontractors, they could bring an action against Metro.

Second, while PCL, Trevcon and the various sureties are undoubtedly “sophisticated parties” capable of assessing risk, the same may be said of Metro and of Metro’s primary secured creditor, the Bank of Montreal. In my view, the characterization of any of the parties as sophisticated does not, it itself, undermine PCL’s and Trevcon’s equitable argument.

Would payment to the Sub-subcontractors have the effect of subverting the priority scheme in the Bankruptcy and Insolvency Act ? [ 51 ] BDO argues that granting PCL and Trevcon equitable set-off for amounts paid to the Sub-subcontractors under the Bonds would have the effect of reordering the priority scheme under the BIA , essentially “elevating” the claims of the unsecured Sub- subcontractors above the claims of Metro’s secured creditors, including the Bank of Montreal. [ 52 ] I reject this argument as well.

While it is true that, as a result of the Bonds, the Sub-subcontractors will receive payment when they otherwise might not, I am not satisfied that this is properly characterized as an elevation of their claims. The Sub-subcontractors will be paid whether equitable set-off is granted or not, so it is not a matter of the Sub-subcontractors being paid ahead of Metro’s secured creditors. The issue is whether PCL and Trevcon also should be obliged to pay the same amounts to Metro’s estate. I am of the view that PCL and Trevcon are entitled to set-off amounts paid to Sub-subcontractors.

It would be inequitable to require PCL and Trevcon to pay both the Sub-subcontractors and Metro, thereby in effect “double pay”. Disposition [ 53 ] Based on the principles of equitable set-off, PCL and Trevcon are entitled to set-off amounts paid to the Sub-subcontractors under the Bonds against their indebtedness to Metro. [ 54 ] Counsel are directed to speak with one another regarding the matter of costs forthwith. If no agreement is reached within one week of the release of these reasons, counsel may provide a written submission to my office no later than 10 days following the release of these reasons.

Such written submissions shall not exceed 3 pages and shall attach highlighted copies of any authorities referenced. Heard on the 30 th day of June, 2021. Dated at the City of Calgary, Alberta this 8th day of September, 2021. L. Bernette Ho J.C.Q.B.A. Appearances: Jeffrey Oliver and Danielle Marechal Cassels Brock & Blackwell LLP for BDO Canada Limited in its capacity as Receiver/Trustee

Jeremy Taitinger Reynolds, Mirth, Richards & Farmer LLP for the Non-Party Respondent, PCL Construction Management Inc. Samantha E. Stokes Rose LLP for the Non-Party Respondent, Trevcon Enterprises Ltd. Jessie Mann Torys LLP for the Bank of Montreal Robert Anderson Warnock Kraft Anderson for Pacesetter Equipment Limited Kevin Hoy DLA Piper (Canada) LLP for Jansal Trucking Ltd. & P.R. Atkinson Trucking Ltd.