Clearbakk Energy Services Inc v Sunshine Oilsands Ltd, 2021 ABQB 866

Court of Queen’s Bench of Alberta Citation: Clearbakk Energy Services Inc v Sunshine Oilsands Ltd, 2021 ABQB 866 Date: 20211102 Docket: 1901 04473 Registry: Calgary Between: Clearbakk Energy Services Inc. Plaintiff - and - Sunshine Oilsands Ltd. Defendant _______________________________________________________ Reasons for Decision of J.T. Prowse , Master in Chambers _______________________________________________________ [ 1 ] The plaintiff Clearbakk Energy Services Inc. (“Clearbakk”) applies for

summary judgment in the amount of $84,446.25 plus interest against the defendant Sunshine Oilsands Ltd. (“Sunshine”). [ 2 ] Clearbakk says the claim is straightforward: it supplied water treatment services to Sunshine, invoiced for the services, and the invoices are unpaid. [ 3 ] Despite rule 1.2(3)(

a) providing that parties to litigation must [emphasis added] identify or make an application to identify the real issues in dispute and facilitate the quickest means of resolving the claim at the least expense, Sunshine has not done so. It has, by

its conduct, ensured that this litigation will be unnecessarily lengthy and expensive. [ 4 ] All that Sunshine needed to do in order to identify the real issues in dispute was to provide affidavit evidence raising issues, such as whether: • It had received the services • The charges for the services were excessive • The services provided were inadequate and/or caused damage • It had already paid for the services. [ 5 ] Instead all that Sunshine did was to cross-examine Clearbakk’s deponent. This resulted in inconsequential topics being raised, none of which put in doubt the validity of Clearbakk’s claim.

I will comment on those topics later in these reasons. [ 6 ] The practice of cross-examining an applicant’s deponent prior to filing a responsive affidavit is a waste of time. [ 7 ] Instead of having affidavits from the applicant and the respondent, and conducting one session of cross-examination, the result is often a cross-examination of the applicant’s deponent, then a responsive affidavit, then another cross-examination session, this one of the respondent’s deponent. This can add unnecessary months to the progress of a case moving forward.

It is not conducive to the dispute being resolved by “the quickest means” as mandated by rule 1.2(3)(a). [ 8 ] While the Alberta rules of court do not mandate that a respondent file any responsive affidavit prior to cross-examining the applicant’s deponent (as is done by the rules of court in Ontario and British Columbia), the Alberta rules do mandate disputes being resolved by the quickest means.

In my view it is open to an applicant to seek a ruling (if the respondent declines to do so voluntarily) that the respondent’s responsive affidavit be filed prior to cross-examination of the applicant’s deponent. [ 9 ] So what were the topics raised in the cross-examination of Clearbakk’s deponent? [ 10 ] Sunshine says that the transcript discloses that it is unclear which of three contracts governed the supply of services by Clearbakk. This is irrelevant.

As I stated to Sunshine’s counsel during argument: “do any of the three contracts provide that Sunshine is entitled to receive services for free?” [ 11 ] Then, without Sunshine providing evidence that the services were provided under the 2014 contract, Sunshine points to portions of the transcript which, it says, indicates breaches of that contract by Clearbakk. [ 12 ] For example, Sunshine says that Clearbakk did not provide it with the contractually mandated 30 days notice prior to terminating the contract.

Even if we assume this to be true, Sunshine submits no evidence that it suffered any damage as a result. [ 13 ] As another example, Sunshine says that the claim should have been handled by a confidential arbitration process, but it never sought arbitration and concedes in its written argument that “this proceeding cannot now be stayed pursuant to the terms of the Arbitration Act”.

Again, it submits no evidence of any damage flowing from this alleged breach. [ 14 ] The evidence, including the cross-examination transcript, does not indicate any defence to the claim of $84,446.25 for services rendered. [ 15 ] There being no contrary evidence to Clearbakk’s prima facie case, I award Clearbakk judgment for services rendered in the amount of $84,446.25.

Further, there being no evidence of any damages suffered by Sunshine as alleged in its counterclaim, I summarily dismiss its counterclaim. [ 16 ] With respect to Clearbakk’s claim for interest on its unpaid invoices, Clearbakk has abandoned any claim for a contractually agreed interest rate, but instead asks this Court to exercise its discretion. [ 17 ] Given the conduct of Sunshine in holding back payment of the overdue invoices and unnecessarily prolonging these proceedings, I exercise my discretion under the Judgment Interest Act by awarding Clearbakk simple interest at 6% per annum commencing 45 days after the date of each invoice. [ 18 ] With respect to costs, I invite Clearbakk to make written submissions in that regard within 20 days and for Sunshine to submit a written response within 20 days of receiving Clearbakk’s submission.

I will then arrange for a date for oral submissions to be made. Written submissions should be limited to 10 pages. Heard on the 27 th day of October, 2021. Dated at the City of Calgary, Alberta this 2 day of November, 2021.

J.T. Prowse M.C.C.Q.B.A. Appearances: Catrina J. Webster and Kaitlin Ward MLT Aikins LLP for the Plaintiff Andrew McLeod PEAK Legal Counsel for the Defendant