Alberta Drywall & Stucco Supply Inc v Alberta Drywall and Stucco Supply (Calgary) Inc, 2021 ABQB 929

Court of Queen’s Bench of Alberta Citation: Alberta Drywall & Stucco Supply Inc v Alberta Drywall and Stucco Supply (Calgary) Inc, 2021 ABQB 929 Date: 20211119 Docket: 1503 16770 Registry: Edmonton Between: Alberta Drywall & Stucco Supply Inc. Plaintiff - and - Alberta Drywall and Stucco Supply (Calgary) Inc. and Browne & Sons Plastering Ltd. and 1175679 Alberta Ltd. and Richard Browne and Sean Browne and Michael Browne Jr. and Tanya Engel Defendants _______________________________________________________ Memorandum of Decision of the Honourable Mr. Justice G.S.

Dunlop _______________________________________________________ 1. Overview [ 1 ] The Plaintiff seeks solicitor-client costs of a questioning on undertakings of Bert Cabral, who is of a former employee of one

of the Defendants. The questioning for which the Plaintiff seeks costs occurred on August 24, 2021, by video conference with Mr. Cabral in Thailand and the parties and their counsel at various places in Canada. Because of the time zone difference, the questioning was conducted in the evening, Alberta time. [ 2 ] The Plaintiff also seeks an order that Mr. Cabral attend again for further questioning. The Defendants agree to use their best efforts to arrange that.

Without deciding whether I have the authority or jurisdiction to order a person who is not a party to litigation and who resides outside of Canada to attend for questioning, I decline to make that order, given the Defendants’ agreement to use their best efforts to have Mr. Cabral attend again for questioning. [ 3 ] Mr. Cabral was originally questioned on June 24, 2018. At that time, he was a full-time employee of one of the Defendants in Calgary. He left that full-time employment at some point in 2018 and worked for another employer for the next couple of years.

In 2020, he returned to part-time employment with one of the Defendants for a few months, ending in November 2020. He has now retired to Thailand. [ 4 ] During his original questioning on June 24, 2018, Mr. Cabral gave 10 undertakings. On May 23, 2019, Master Birkett ordered that Mr. Cabral provide responses to his undertakings within 90 days. On August 19, 2019, the Defendants’ counsel at the time sent responses to those undertakings to the Plaintiff’s counsel. [ 5 ] The Defendants’ counsel left private practice in December 2020. Shortly thereafter, the Defendants retained new counsel.

The Defendants’ new counsel advised me during one or more case management meetings in 2021 that he did not receive a complete file from the Defendants’ former counsel and he has relied on the Plaintiff’s counsel to provide him with missing documents. [ 6 ] At some point, the parties agreed that the Plaintiff would examine Mr. Cabral on his undertaking responses on August 24, 2021.

During the week before that, the Plaintiff’s counsel sent the Defendants’ counsel the August 19, 2019, undertaking responses, at the Defendants’ counsel’s request, because he had not received them from the Defendants’ former counsel. [ 7 ] On August 23, 2021, the Defendants’ counsel sent the Plaintiff’s counsel the undertaking responses that had been provided by the Defendant’s former counsel in August 2019, together with some attachments. This was a clerical error in the Defendants’ counsel’s office. The Defendants’ counsel intended to send revised undertaking responses, not the original ones.

This error became apparent during the questioning of Mr. Cabral on August 24, 2021. [ 8 ] The Defendants’ counsel had intended to send the Plaintiff’s counsel revised responses to Mr. Cabral’s undertakings 3, 4, 5 and 6. After the clerical error was discovered during questioning in the evening of August 24, 2021, the Defendants’ counsel sent the revised responses to the Plaintiff’s counsel on August 25, 2021. The revisions are as follows: Undertaking 3: Provide the total Canyon Rock sales to Montorio Homes and advise as well as to when sales were made.

August 2019 response: A spreadsheet showing sales made to Montorio Homes is attached. The total amount was $42,979.61, and the sales took place between October of 2012 and May of 2019. Those materials that were most damaged were sold first. August 2021 response: Mr. Cabral provides copies of the invoices shown on the bottom of the spreadsheet provided in response to Undertaking 3 which were not contained in the Defendants’ Affidavit of Records being three invoices, one dated September 29, 2016, one dated November 29, 2018 and one invoice dated May 13, 2019 (copies of these invoices are attached).

Undertaking 4: Provide the total sales of Canyon Rock to Rivercrest Construction, including how much rock sold and when and invoices with respect to the same, and if such documentation has already been disclosed, advise as well as to the location and the disclosure. August 2019 response: A spreadsheet showing sales to Rivercrest is attached. The total amount was $63,730.31, sales happened between April of 2015 and July of 2016. Discounts were approved by Richard Browne.

August 2021 response: The sales referenced on the spreadsheet provided (a copy attached) indicates the sales commenced on May 21, 2013, and not April, 2015 as indicated in Mr. Cabral’s original Response to this Undertaking. Undertaking 5: Provide the total sales of Canyon Rock to Mitch in Wainwright, including how much rock sold and when and invoices with respect to the same, and if such documentation has already been disclosed, advise as well as to the location and the disclosure. August 2019 response: A spreadsheet showing sales to Mitch from Quindell is attached. The total amount sold was $23,053.01.

The sales occurred between January of 2016 and May of 2019. Discounts were approved by Richard Browne. August 2021 response: The spreadsheet (a copy attached) provided shows sales commencing July 15, 2013 not January, 2016, as indicated in Mr. Cabral’s original Response to this Undertaking. The total amount sold was $43,122.89 not $23,053.01 as indicated in Mr. Cabral’s original Response to this Undertaking. Undertaking 6: Provide copies or, if already provided, indicate the intercompany records which would show an accounting of all Black Ledgestone and Winter Black that was jointly owned by the Brownes and Mr.

Cunningham. August 2019 response: A spreadsheet showing joint purchases of Black Ledgestone and Winter Black is attached August 2020 response: Mr. Cabral provides an updated spreadsheet provided by Tanya Engel showing joint purchases of Black Ledgestone and Winter Black, including subsequent sales and how this rock was split between the Plaintiff and the Defendants pursuant to the Court Order in 2018. Four documents are provided in this Response of Mr. Cabral entitled “Summary PUR BS.Sold”, “Canyon – Blackledge Stone and Winter Black”, “Reconciliations

Summary” and “Court Order – Final October 5, 2018”.

[ 9 ] The Plaintiff’s counsel submits that the revisions contain “stark differences” and that it was improper to make them two years after the initial responses. I disagree on both points. The revisions are minor and the length of time it took to make them is normal in commercial litigation. Every witness has an ongoing duty to correct errors in his or her evidence: r. 5.27. As the Defendants’ counsel explained during the August 24, 2021, questioning, these mistakes were corrected quickly after they were discovered. We are all human. This is not a big deal. [ 10 ] During Mr.

Cabral’s questioning on August 24, 2021, the Plaintiff’s counsel showed him the August 2019 undertaking responses on the video screen and asked him if they looked familiar to him. He answered, “Not really. I – August 19? Oh no. I just – I don’t know what this is.” Later during the August 24, 2021, questioning, the Plaintiff’s counsel showed Mr. Cabral, by video, the response to undertaking 1 and then asked him whether he reviewed “these responses” and Mr. Cabral’s answer begins, “Well, obviously not.” [ 11 ] Mr.

Cabral’s testimony on August 24, 2021, that he did not recognize the August 2019 responses to undertakings and had not reviewed them appears to contradict the following statement in the August 2021 revised undertaking responses provided by the Defendants’ counsel: The following constitute Mr.

Cabral’s revised answers to the following Undertakings arising from his review of his Responses to Undertakings originally provided August 19, 2019 [ 12 ] Additional context is provided by the Defendants’ counsel’s statement during the August 24, 2021, questioning, which is recorded in the transcript, that he or someone from his office had reviewed the August 2019 undertaking responses with Mr. Cabral on the previous Friday. [ 13 ] I accept the Defendants’ counsel’s statement that someone from his office reviewed the August 2019 responses with Mr. Cabral shortly before the August 24, 2021, questioning.

It is most likely that Mr. Cabral was confused about this when he was questioned. It is apparent from reviewing the transcript that Mr. Cabral was trying to look at documents on several electronic devices and having trouble finding things he was looking for. Mr. Cabral said that he is not a computer guy. It appears to me that he was somewhat flummoxed by the long-distance electronic questioning process.

Consequently, the inconsistency between his evidence and the Defendants’ counsel’s statement in the revised responses is not significant. [ 14 ] I find that there has been no misconduct by the Defendants or their counsel that would justify an award of solicitor-client costs. However, the last minute and because of the clerical error in the Defendants’ counsel’s office, after the fact provision of revised undertaking responses, has put the Plaintiff to unnecessary legal costs in the form of preparing for and conducting two questionings on undertakings when one should have sufficed.

For that reason, I award the Plaintiff party-party costs of the August 24, 2021, questioning payable forthwith and in any event of the cause. [ 15 ] Because the Plaintiff was only partially successful, each party shall bear their own costs of this desk application. Heard by desk application on October 21, 2021. Dated at the City of Edmonton, Alberta this 18 th day of November, 2021. G.S. Dunlop J.C.Q.B.A. Appearances: Eliza A. Maynes Maynes & Radovici Lawyers for the Plaintiff Richard J. Cotter, Q.C. Dentons Canada LLP for the Defendants