Nguyen v Darwin’s Moving and Deliveries Inc, 2021 ABQB 944

Court of Queen’s Bench of Alberta Citation: Nguyen v Darwin’s Moving and Deliveries Inc, 2021 ABQB 944 Date:20211130 Docket: 2101 39446 Registry: Calgary Between: Hong Nguyen Appellant - and - Darwin’s Moving and Deliveries Inc. Respondent _______________________________________________________ Reasons for Judgment of the Honourable Mr. Justice J.T. Eamon _______________________________________________________ Appeal from the Decision by The Honourable Judge N.R. Hess Dated the 17 th day of February, 2021

( Docket: P1990103346) Introduction [ 1 ] In September 2019, the Respondent moving company sued the Appellant and another individual (“ W ”) for unpaid moving services. It alleged that the Appellant and W together retained the Respondent to provide these services but did not pay for them. The Appellant denied that she was a party to this contract. She said it was W’s contract. At a trial held 17 February 2021 in the Provincial Court of Alberta, the Trial Judge found the Appellant was a party to the contract and awarded judgment against her. [ 2 ] The Appellant appeals this decision.

She asserts a number of grounds for her appeal.

First, the Appellant says the Trial Judge erred in findings of fact or mixed fact and law in finding the Appellant was a party to the moving contract based on the evidence before him. [ 3 ] Second, the Appellant says that if she was involved to a sufficient degree to become a party to the contract, the Trial Judge made a fundamental legal error in failing to consider whether she was acting for herself or as a representative of an Alberta corporation, Hidden Gem Properties Inc. [ 4 ] This corporate theory, that Hidden Gem Properties Inc was a contracting party if anyone related to the Appellant was a contracting party at all, was not properly raised or pursued at the trial.

However, the Appellant seeks to introduce fresh evidence on the appeal, to prove the existence of an Alberta corporation named Hidden Gem Properties Inc. [ 5 ] Third, the Appellant says the Provincial Court of Alberta and the Trial Judge treated her unfairly. She submits: (

a) She did not receive adequate disclosure of the Respondent’s evidence before trial because the Court streamed the case into the Simplified Trial process with fewer procedural steps. Therefore, she was deprived of an opportunity to consider the Respondent’s evidence, and receive “directions on how to enter evidence and witnesses”. Consequently, the Appellant was “denied a material opportunity to respond to the claim; to the Appellant, this was the equivalent of a trial by ambush”. (

b) The Trial Judge reversed a key evidentiary ruling on which the Appellant’s counsel at the trial relied. (

c) The trial time was insufficient to permit the Appellant to call evidence. (

d) The Trial Judge awarded enhanced costs against the Appellant, based on an offer to settle that the Respondent made before disclosing its evidence. [ 6 ] I will outline the history of the proceedings in the Provincial Court and the evidence before the Trial Judge and his findings, then deal with the fresh evidence application and, finally, the grounds of the appeal. For the reasons set out below, the application to provide fresh evidence is refused and the appeal is dismissed. Background [ 7 ] The Respondent was the plaintiff in the Provincial Court claim. The Respondent is a moving company.

It alleged it contracted with the Appellant and W for moving and storage services and they failed to pay for the services. [ 8 ] The alleged contract was the fourth in a series of contracts for moving or storage services. Under these contracts, the Respondent moved a huge volume of personal effects out of a property in Northwest Calgary, stored them for a period of time in transport trailers, and (under the fourth contract) eventually moved them to and unloaded them at a new property south of Calgary (the “ Rusty Spurs ” property).

The services in the fourth contract also involved moving things from another Calgary property, associated with the Appellant, to the Rusty Spurs property. [ 9 ] In September 2019, the Respondent sued both the Appellant and W for judgment for the invoiced amount of the services. It issued a claim form that contained a detailed history of these contracts and the Appellant’s alleged involvement in them including various payments thereon. [ 10 ] W did not defend and default judgment was entered against him before the trial. [ 11 ] The Appellant defended.

Her dispute note (by which a defendant files their defence, and which in this case was filed by a lawyer acting for her on 9 October 2019) sets out her detailed version of events. She alleged that all the previous contracts pertained to services that the Respondent provided to W, and she had paid the invoices as a favour to W and processed them through her company Beyond Limits Enterprises although she had no obligation to pay the Respondent. Further, the Respondent “was hired” in April 2019 to move items from a property in Calgary that was associated with her to the Rusty Spurs property.

She alleged that she received the invoice [Invoice 3201] for this moving service many months later, and it contained charges for services that she did not incur, were not provided to her, and did not pertain to her move. Rather, the invoice included charges attributable to services provided by the Respondent to W. [ 12 ] The Appellant became self-represented shortly after her dispute note was filed, but again retained legal counsel shortly before

the trial. Both sides were represented at the trial by students-at-law as permitted by the Rules of the Law Society of Alberta (R 53(7)). I will refer to them as that party’s trial counsel, consistent with the terminology in those rules. [ 13 ] Both parties, each represented by counsel at this point, filed trial statements two weeks before the trial and served them on the opposing party one week before the trial, all pursuant to and in compliance with the Provincial Court Simplified Procedure set out in the Provincial Court Civil Procedure Regulation , Alta Reg 176/2018 ,

Part 8. [ 14 ] The Respondent’s trial statement named its witnesses and detailed its intended evidence, including particulars why the Appellant allegedly was a party to the moving contract. [ 15 ] The Appellant’s trial statement included a statement of facts and appended a variety of documents, but did not name any witnesses. The omission of witnesses in the trial statement was intentional, not oversight (para 87 below). [ 16 ] At the trial, the court heard evidence from two witnesses for the Respondent (plaintiff). [ 17 ] The first witness was the Respondent’s office assistant.

Her direct evidence was generally to the effect that the defendants were acting together in obtaining moving and storage services. Before providing the services described in Invoice 3201 in April 2019, the plaintiff had provided services on three recent occasions commencing November 2018. The defendants were moving out of one home, storing personal effects, and looking for a location to place the items that could be used as an Airbnb venue for events such as weddings and retreats.

The Respondent placed the items that it moved out of the original property into three 53-foot trailers and moved them to a trailer storage facility, to store the items until a new facility was ready for them. In April 2019, under the fourth and final contract, the Respondent moved the trailers to the Rusty Spurs property and unloaded the contents into the house and barn at that location. The Respondent also moved some effects to or from the Appellant’s Calgary home and the Rusty Spurs property under that contract.

The Appellant became the registered owner of the Rusty Spurs property within a few days of the completion of the move for which Invoice 3201 was issued. [ 18 ] There were three versions of Invoice 3201. The first, dated 5 April 2019, was issued to W. The Respondent revised the invoice on 25 April 2019. There were two revised versions in the records. One added “Hidden Gem Properties” as a party, and the other added the Appellant.

The office assistant spoke to the original version of invoice 3201and why the Respondent made changes to a subsequent version of that invoice in late April 2019. [ 19 ] The office assistant testified on cross-examination that the defendant W called to request the services on invoice 3201. She was not cross-examined on her evidence of the manner in which the Appellant and W had requested services on the previous occasions or that they were working together.

The witness acknowledged receiving and agreeing to a request from the Appellant [by email 2 March 2019] that the Plaintiff invoice W for future storage fees but noted this was not for moving fees. [ 20 ] The Respondent’s second witness was a driver and mover employed by the Respondent. He was present at Rusty Spurs for nine days of work as a mover. During the last move represented by Invoice 3201, the movers brought more things from a property in Calgary associated with the Appellant, and moved the trailer contents into or between the main building or barn, including the defendants’ living quarters.

They acted under direction and supervision of both defendants. [ 21 ] The Respondent provided evidence that the defendants intended to start a new business venture at Rusty Spurs. This evidence was to the effect that the defendants were planning to offer Rusty Spurs as an event rental or Airbnb property.

The property also included personal living quarters for the Appellant and W. [ 22 ] The Plaintiff’s witnesses also spoke to their understanding of the names “Hidden Gem” or “Hidden Gem Properties” being the intended business venture of both the Appellant and W at Rusty Spurs. [ 23 ] This evidence included the testimony of the mover/driver, who said that he carried the moving crew time sheet and wrote “Hidden Gem” on some of the timesheets because he was told it was going to be “their” business start-up at this Rusty Spurs address where the movers were unloading and moving the items.

He understood some of the property would be used for a business “combination” that would involve renting the property to others. [ 24 ] The Appellant did not challenge through cross-examination the Respondent’s witness testimony about the previous business dealings between the Respondent and the defendants or the defendants’ intended business at Rusty Spurs.

The Appellant did not suggest to these witnesses that Hidden Gem or Hidden Gem Properties was an incorporated entity, that the Appellant purportedly owned Rusty Spurs in trust for a corporation called Hidden Gem Properties Inc, or that the Respondent had any knowledge of such things when it made the contracts. [ 25 ] I note the Appellant’s dispute note admitted the relationship between the Appellant and W was friends and business associates.

She did not mention in her dispute note that a corporation called Hidden Gem or similar, had an involvement in their business relationship. [ 26 ] On completion of the Respondent’s evidence, the Appellant tendered an affidavit of W sworn 16 February 2021 (the day before the trial). The Trial Judge rejected this affidavit because W was not present for cross-examination. Rather than seek an adjournment or permission to call a witness, the Appellant’s trial counsel advised the Court he was prepared to proceed.

I will provide greater details on this aspect later in these reasons, concerning the third ground of appeal – that the Trial Judge treated the Appellant unfairly. [ 27 ] The parties then proceeded to submissions. [ 28 ] During submissions and after the evidence was closed, the Appellant’s trial counsel sought, for the first time, to insert a corporation between the Appellant and the Respondent. He stated “Hidden Gems” was a corporation. The Trial Judge observed there was no evidence of a corporation being in existence. (Trial Transcript, p 50/41-51/25)

[29] Similarly, the Appellant’s trial counsel observed during submissions, and for the first time, that the Appellant owned theRusty Spurs property in trust for the corporation. He acknowledged there was no evidence of that. (Trial Transcript, p 55/4-18). [30] The Trial Judge gave brief oral reasons. They are succinct and get to the heart of the matter -- whether the Appellant made acontract with the Respondent by her conduct. He described the previous contractual history between the parties.

He found that some ofthe material that was subject to the fourth contract, that had been moved and placed into storage and paid by her, was now being movedto a property owned by her. He found that the Appellant sent a note or email advising the plaintiff that from this point onwards herbusiness associate W would now be responsible for all of the costs that are incurred. [This was obviously a reference to the 2 March2019 email that dealt with storage costs]. The Trial Judge then said: … She continues, however, to act as she had in the past.

Is her property that is being moved, she is the one who when it gets to the site ofher new property in … County of Foothills, she is the one that is there directing where – – where the articles are to be put ... [31] The Trial Judge applied the principles in Saint John Tug Boat Co Ltd v Irving Refining Ltd, (SCC), [1964]SCR 614, concerning the creation of a contract by conduct. His Honour observed that the Appellant admitted that she was a businessassociate of W and they were working a deal. He drew an adverse inference from the Appellant’s failure to call W as a witness.

The TrialJudge concluded that the Appellant was a party to the entire contract.

Application to admit fresh evidence [32] The Application to admit fresh evidence initially pertained to two pieces of evidence: corporate search results for Hidden GemProperties Inc (that were not presented to the Trial Judge) and W’s affidavit (that the Trial Judge ruled inadmissible). [33] During the appeal hearing, the Appellant withdrew her application to admit W’s affidavit as fresh evidence but maintained theCourt should review that affidavit to understand the evidence the Appellant would have presented if she had been fairly treated.

W’saffidavit can be reviewed for that purpose (Walton v Alberta (Securities Commission), 2014 ABCA 273 at paras 145-146) and I havedone so. [34] I turn to the admissibility of the corporate search results. These indicate that Hidden Gem Properties Inc was a corporationthat existed during the history of the dealings between the defendants and the Respondent described in the trial evidence. It wasdissolved on 1 May 2020.

Prior to its dissolution, the Appellant was its sole shareholder and sole director. [35] The Appellant seeks to argue on the basis of the search results that the Trial Judge erred in law by failing to consider thedistinction between the Appellant and Hidden Gem Properties Inc. [36] The Court can admit fresh evidence in appropriate circumstances under the well known test in Palmer v The Queen, (SCC), [1980] 1 SCR 759. [37] Before dealing with the Appellant’s grounds for admitting the evidence, I will deal with the Respondent’s argument that Ishould not admit fresh evidence because the Appellant did not a seek a trial de novo in her appeal materials.

The Provincial Court Act,RSA 2000, c P-31 requires that “an appeal is to be heard as an appeal on the record unless, on application by a party, the Court ofQueen’s Bench orders the appeal to be heard as a trial de novo” (s 51). [38] I agree that if fresh evidence would be admitted, it is necessary that the appeal proceed as a trial de novo. This Court has verylimited jurisdiction to remit the matter to the Provincial Court and usually must decide the outcome (Provincial Court Act, s 53). [39] This does not necessarily mean that the Queen’s Bench would need to rehear all the witnesses or trial arguments.

It might bepossible to dispose of the appeal without hearing testimony or on the basis of the trial transcript, depending on the circumstances.

In anycase, it would be necessary to address with the parties not only whether the evidence is admissible under the Palmer test but also (1)whether the Appellant would apply for a trial de novo and whether to grant the request, (2) the necessary procedural directions ifgranted, and (3) any costs implications including thrown away costs of the initial appeal appearance. [40] I decided to hear both the application and the appeal together so that I could fully understand the import of the evidence in thecontext of the Palmer test (see Beaulieu et al v Winnipeg (City of) et al, 2021 MBCA 93 at para 65).

I have decided that the evidencecannot possibly meet the Palmer test even if the Court has residual discretion in a civil appeal to admit the evidence where the test is notmet as the Appellant submits. So, the issue of the trial de novo doesn’t arise in this case. [41] I turn to applying the Palmer test. [42] First, whether the evidence by due diligence could be introduced at trial. [43] The Supreme Court of Canada recently discussed the application of the due diligence standard in Bent v Platnick, 2020 SCC23 at para 60: [60] ....

It must not be forgotten that the due diligence factor specifically is “not a rigid one” (Kuczera (Re), 2018 ONCA 322, 58C.B.R. (6th) 227, at para. 16) and has been held to be a “practical concept” (Calaheson v. Gift Lake Metis Settlement, 2016 ABCA 185,38 Alta. L.R. (6th) 30, at para. 14) that is “context sensitive” (R. v. 1275729 Ontario Inc. (2005), (ON CA), 205O.A.C. 359, at para. 29; see also Elliott v. Sagl, 2019 ONSC 2490, at paras. 36-38 ; D. J. M. Brown, with the assistance of D.Fairlie, Civil Appeals (loose-leaf), at pp. 10-19 to 10-21). ...As I discussed above, Dr.

Platnick had to assemble his motion record within25 days at a time when there was significant ambiguity surrounding s. 137.1 motions due to a lack of judicial guidance on the standardthat must be met, as well as the nature or comprehensiveness of the record that must be filed, in order to withstand such a motion. Thisfactors into my assessment.

[44] What does it mean that the due diligence factor is contextual? “Under the Palmer approach to due diligence, that factor getsthe weight that the ‘interests of justice’ demand that it should get in any given circumstance” (R v 1275729 Ontario Inc, (2005), (ON CA) at para 29).

It is apparent from Bent that the contextual approach applies in civil cases (see also Toronto-Dominion Bank v Hylton, 2010 ONCA 752 at para 26). [45] The Appellant submits the following circumstances should be considered: the manner and timing of disclosure of records andtrial statements under the Provincial Court Simplified Procedure was unfair (including disclosure was too late); the Appellant was notlegally sophisticated about separate corporate entities; the corporate status of Hidden Gem was not pled; the Appellant needed additionalcourt directions, mediation or a pre-trial conference; the Appellant obtained counsel only a month before the trial; the Respondent onlyprovided its legal arguments a week before the trial. [46] I do not agree that these circumstances demonstrate the Appellant acted with diligence, create unfairness, or excuse anyfailure on her part to provide the evidence at the trial. [47] This was a simple case: that the Appellant was a party to the moving contract because she acted as if she was a party andbenefitted therefrom.

The theory was based on long standing legal principles of contract formation by conduct. [48] The Appellant did not reasonably require additional disclosure, Court directions for disclosure or calling witnesses, or legalarguments from the Respondent to adequately defend herself. The detailed allegations in the Respondent’s claim form were reasonablysufficient to permit her to consider the claim, plead her defences, and organize and plan her case. She had the claim form about 16months before the trial. The Appellant had legal advice in providing her dispute note and preparing for trial.

Considering the pleadingsand records that were provided by the Appellant and the Respondent shortly before the trial, this truly was a simple case. [49] There is no reason why the Appellant could not have alleged, as an alternative plea in her dispute note, that Hidden GemProperties Inc was a contracting party. The Appellant knew about Hidden Gem Properties Inc because she was its sole director andshareholder. The only possible sources of instructions to the Respondent from individuals purportedly on behalf of that corporation musthave been the Appellant or W.

The Appellant had counsel who prepared the dispute note and conducted the trial, both of whom couldinquire with the Appellant about the potential involvement of other entities in the contract. The Appellant’s trial counsel had access toW, who provided an affidavit the day before the trial. The dispute note actually referenced another of the Appellant’s companies,Beyond Limits Enterprises (para 11 above).

The Appellant could and should have addressed the possible involvement of corporationswell before the trial. [50] It appears that the Appellant learned from the Respondent’s disclosure received one week before the trial that the Respondenthad recorded the name Hidden Gem in crew worksheets or a revised invoice.

This might have been evidence that could form the basis forcross-examination at the trial, but given the simplicity of this case and the Appellant’s knowledge of the existence of Hidden GemProperties Inc, the Appellant has not persuaded me that she needed more time to present evidence, including by cross-examination, of apossible defence that Hidden Gem Properties Inc was a contracting party. [51] Moreover, the Provincial Court has many tools to ensure parties receive a proportionate, fair and just process.

If the Appellantor her lawyers felt the Appellant had genuinely overlooked a credible defence, or needed additional preparation time for any good reason,they could have applied to reassign the case to a pretrial conference or trial (Provincial Court Civil Procedure Regulation, R 14(2)), toadjourn (ibid, R 18(a)), or for permission to raise the issue of the corporation’s alleged involvement pursuant to Rule 13 of the ProvincialCourt Civil Procedure Regulation by including a particular that was not pled (see for example, Double D Contracting &Eavestroughing Ltd v Kehew Construction Ltd, 2019 ABPC 268 at paras 33-35). [52] The Appellant did not pursue these options, yet the Appellant and her trial counsel were aware of the existence of acorporation that trial counsel referred to as “Hidden Gems” and the Appellant must have told her counsel that she owned Rusty Spurs asa trustee for that corporation (paras 28-29 above).

Notwithstanding this knowledge, counsel did not bring a corporate search to the trial,seek an adjournment, seek amendments, seek permission to cross-examine the Respondent’s witnesses on the corporate theory, or call theAppellant or W as a witness. [53] The Appellant notes that advance disclosure in similar cases in the Ontario Court comes earlier, but the question before me iswhether the Appellant in her circumstances, given her relationship with Hidden Gem Properties Inc and her counsel’s access to W, wasmaterially prejudiced in assessing or pursuing her defences. [54] Although the due diligence factor should not be applied rigidly, the Appellant has not persuaded me that she was treatedunfairly or had a reasonable excuse for failing to assert her proposed corporate defence in a timely way. [55] Second, whether the evidence is relevant in the sense that it bears upon a decisive or potentially decisive issue in the trial. [56] If the Appellant had properly raised the corporate theory, the Trial Judge might have permitted them to pursue it.

Therefore,the corporate search could be relevant evidence, having a potential bearing on the decisive issue. [57] Third, whether the evidence is credible in the sense it is reasonably capable of belief. [58] The evidence is a certified corporate search from a database maintained by the Government of Alberta.

It satisfies the thirdbranch of the Palmer test. [59] Fourth, whether the evidence if believed could reasonably, when taken with the other evidence adduced at trial, be expectedto have affected the result. [60] The corporate search results are a starting piece of a possible defence that could have been, but was not, pursued at the trial.Admitting the search results would lead to many unanswered questions, including whether the corporation actually operated the businessor owned Rusty Spurs and whether there were surrounding circumstances known to the Respondent to justify a conclusion that it was

contracting with a corporation. Moreover, the attempt to raise the corporate theory during argument, had counsel brought the evidence to the trial, would have violated the rule in Browne v Dunn (1893), 6 R. 67 (H. L.), 1893 CanLII 65 . Counsel did not ask for an adjournment or any other relief from the Court to permit them to raise the issue. [ 61 ] The Appellant did not testify.

She continues to maintain in her affidavit in support of the application to permit fresh evidence that she did not make a contract and, further, Hidden Gem Properties Inc did not make a contract. [ 62 ] Given all the gaps in the procedure and the state of the evidentiary record, the corporate search results alone have minimal probative value and cannot reasonably be expected to change the result. [ 63 ] Consequently, the Appellant did not satisfy the first and fourth branches of the Palmer test. [ 64 ] The Appellant suggests the failure to satisfy the first branch of the test is not necessarily fatal, where the evidence is compelling and interests of justice require the evidence to be admitted.

To the extent that is a wider test than the considerations set out in Bent and R v 1275729 Ontario Inc (discussed at paras 43-44 above), I would nevertheless refuse to admit the evidence because it is not compelling and the interests of justice require that the evidence be refused. [ 65 ] This is a simple case. The Appellant maintains she did not make a contract and her company did not make a contract. At best, the corporate search results are the start of an alternative defence theory, that would require recasting the issues and redoing the trial.

The Appellant’s counsel knew or ought to have known of the issue, and the Appellant had fair opportunities under the Provincial Court Civil Procedure Regulation and practices to raise the issue yet took almost no steps to do so. The consequences of any errors or strategies in presenting the Appellant’s defence should not be borne by the Respondents. Admitting the evidence now would undermine the integrity, fairness, and finality of this trial. Merits of the appeal Standard of Review [ 66 ] The standard of review is well known. Questions of law are reviewed for correctness.

Questions of fact including inferences of fact, and questions of mixed fact and law are reviewed for palpable and overriding error. Where it is possible to identify an extricable question of law from within what was initially characterized as a question of mixed fact and law, correctness applies to such error.

Extricable errors of law include “the application of an incorrect principle, the failure to consider a required element of a legal test, or the failure to consider a relevant factor” ( Sattva Capital Corp v Creston Moly Corp , 2014 SCC 53 at para 53 , [2014] 2 SCR 633). [ 67 ] The alleged unfairness is determined on the correctness standard in the sense that I determine whether the Appellant was treated fairly or not, without deferring to the Trial Judge. In doing so, I must nevertheless consider the structure authorized by law under the Provincial Court Act and the Provincial Court Civil Procedure Regulation .

First ground of appeal: the Trial Judge erred by disregarding the principle of corporate separateness. [ 68 ] The Trial Judge did not err in law or otherwise in not considering that the “Hidden Gem” or “Hidden Gem Properties” mentioned in the evidence was a corporation. [ 69 ] The corporate theory was not pled; therefore, it is reasonable that the Respondent’s witnesses did not speak to it in their direct examinations.

The Respondent’s witnesses were not cross-examined on the corporate theory or challenged on their evidence that the Appellant and W were starting a new business venture or combination at the Rusty Spurs property.

The Appellant did not tender evidence that Hidden Gem Properties Inc existed, or (more fundamentally) that a company actually owned or operated Rusty Spurs or that the Respondent knew anything about such a company, nor present a witness who could be cross-examined on such suggestions. [ 70 ] People often run businesses under trade or other names, and the use of “Hidden Gem” or similar for an Airbnb or event property does not suggest that a corporation is behind it.

It was for the Appellant to raise this, not for the Respondent to negative any reasonably conceivable theory why the defendants called their business “Hidden Gem” or similar. [ 71 ] The corporate issue did not arise on the evidence. The Trial Judge did not err in not considering it. Second ground of appeal: the Trial Judge erred by finding the appellant entered into a contract by conduct. [ 72 ] The Trial Judge applied the objective test for creating a contractual relationship by conduct set out in Saint John Tug Boat at pp 621-622.

Under this principle, the Court may infer a promise to pay on the part of a beneficiary of services where the circumstances are “such as to give rise to an inference that the alleged acceptor has consented to the work being done on the terms upon which it was offered”.

Further: But if a person knows that the consideration is being rendered for his benefit with an expectation that he will pay for it, then if he acquiesces in its being done, taking the benefit of it when done, he will be taken impliedly to have requested its being done: and that will import a promise to pay for it. [ 73 ] The Appellant essentially submits the evidentiary record does not reasonably support and is not capable of supporting the

Trial Judge’s conclusions, in the context of the review standard of palpable and overriding error. [ 74 ] The Appellant advances factual assertions in its arguments that it did not prove.

As explained in respect of the third ground of appeal later in these reasons, the statement of facts in its trial statement was not evidence and the Trial Judge did not err in refusing to find such facts. [ 75 ] The Appellant heavily relies on the evidence that invoice 3201 was initially issued to W only, and that W contacted the Respondent to arrange the fourth contract. [ 76 ] These pieces of evidence were not the only evidence before the Trial Judge.

He also had evidence of: the contractual history of dealings among the Respondent, the Appellant and W; the ownership and intended use of the Rusty Spurs property; the relationship between the Appellant and W and how they worked together; the Appellant’s participation in the move; and, the Appellant’s ownership of Rusty Spurs and manner of benefitting from the services. The Trial Judge was entitled to weigh the evidence as a whole, including that the invoice was initially issued to W and later re-issued and the office assistant’s explanation therefor.

The Appellant has not demonstrated that the Trial Judge’s weighing of the evidence discloses any palpable and overriding error. [ 77 ] The Appellant submits that the Respondent’s evidence was not capable of supporting the requirement of certainty of terms for contract formation. They submit there was no evidence on key elements such as pricing. [ 78 ] The principles set out in Ko v Hillview Homes Ltd , 2012 ABCA 245 , leave denied [2012] SCCA No 445 concerning the requirement for certainty of contract include: (

a) The test for

interpretation and for certainty of terms is objective; one party’s subjective views about the agreement, or how it would later work, not agreed to by the other side, are irrelevant (para 27). (

b) The rule is far from a technicality (paras 75, 80). (

c) A supposed contract with an uncertain material term is not a contract, and not even an agreement, and is usually impossible to perform or enforce (para 81). (

d) The essential terms must show with a reasonable degree of certainty what the parties meant (paras 87, 101). Whether a term is essential depends on the type of the contract, for example, a contract to purchase a piece of machinery may require less specific details than a contract to build a house (para 91). If the parties considered they needed a term and included it in the agreement, but it is too vague, the contract will be void. This includes terms beyond identifying the parties, property or price (para 90). (

e) It is irrelevant whether one party’s attitude to negotiating an uncertain term was unfair or unreasonable (para 92). (

f) Although a court may be reluctant to find a contract void for uncertainty which has been partly or fully performed at least by one side, there should be no general reluctance to find a contract void for uncertainty (para 118). (

g) Whether the parties thought they had a contract is irrelevant, particularly where the contract is not performed (para 119). (

h) Uncertainty of terms may be saved if: (

i) A specific manner of ascertaining the term has been given by reference to a published or to be published price or set of standards. (ii) A third party arbitrator or valuator, or even one of the parties acting unilaterally, has been authorized to fix the term. (iii) An established custom of the trade is implied as having been incorporated into the contract, e.g., when and where sales might close or that debts will be paid. (iv) A term is implied because it is (

A) so obvious to the bystander; (

B) implied by law, e.g., the use of Canadian currency or concurrent tenders of conveyance and price (para 120). (

i) A party alleging an uncertain term need not complain immediately, as it is not improper to later raise invalidity arising from uncertainty (para 121).

(

j) If no valid contract initially existed, the later conduct of the parties (short of a new contract) is irrelevant (para 121). [ 79 ] The Appellant did not suggest at the trial that any of the four contracts were invalid for lack of certainty of pricing or other essential element. To the contrary, the Appellant admitted she was liable on a contract in respect of moving services during April 2019 but claimed the invoice included charges she did not incur (para 11 above).

The evidence focussed solely on the issue whether the Appellant was a party to a contract for the services provided at Rusty Spurs in April 2019. [ 80 ] I am skeptical that such a question of mixed fact and law can be raised on appeal, when it was not raised in the Appellant’s dispute note or at trial, thus depriving the Respondent of an opportunity to address the question with evidence.

However, the Respondent did not object on this basis so I will assume the question is properly before me. [ 81 ] The contract was the last in a related series that the Trial Judge found to have effected the move by the Appellant and W out of the old premises in Northwest Calgary and into Rusty Spurs where they would live and conduct their new venture. The Trial Judge had evidence of the history of requests for service and payment of invoices, all involving the Appellant.

The Appellant admitted she was contractually liable to pay for some of the moving services provided in April 2019 from her Calgary property to Rusty Spurs. There was no evidence or cross-examination to explain how these services might have been separately contracted or that they were priced differently. It would be reasonable to infer that the parties would pay the plaintiff’s usual charges for its time, effort and travel as they had in the past. [ 82 ] The test for palpable and overriding error of fact finding is highly deferential ( Alberta Computers.com Inc v Thibert , 2021 ABCA 213 at para 38 ).

There is no palpable and overriding error in the Trial Judge’s fact findings or his conclusion that the Appellant participated in and benefitted from the events leading up to and in relation to the fourth contract to such a degree that she was a party to the fourth contract on the basis of the principles in Saint John Tug Boat . Third ground of appeal: The Trial Judge and the Simplified Trial procedure denied the Appellant procedural fairness.

Unfairness in timing of disclosure of trial statements or the simplified procedure [ 83 ] As explained earlier, the simplified procedure including delivery of trial statements did not operate unfairly in this simple case (paras 45-54 above). This was not “trial by ambush” as the Appellant’s appeal counsel submits in his written brief.

Unfairness in reversing an evidentiary ruling [ 84 ] The Appellant submits the Trial Judge ruled the trial statements were evidence before him and later reversed the ruling, and in doing so he treated the Appellant unfairly. [ 85 ] At the outset of the trial, the Respondent’s counsel sought to mark the trial statements as an exhibit. The Trial Judge advised they do not need to be marked because they are already filed with the Court (Trial Transcript, p 3). The Appellant submitted on the appeal that her trial counsel relied on this direction.

She submits that near the end of the trial, the Trial Judge reversed himself. [ 86 ] This point raises an issue of the actual or purported evidentiary status, if any, of these trial statements and requires a review of what was said about these statements, and when. [ 87 ] It is apparent from the trial transcript that the Appellant already determined, before trial and before the Trial Judge’s direction concerning the trial statements, that she would not call witnesses.

Her intention was deliberate and clearly expressed to the Court at the outset of the trial: THE COURT: And for the defendant? [Appellant’s trial counsel]: No witnesses for the Defendant, Your Honour. THE COURT: No witnesses? [Appellant’s trial counsel]: No. THE COURT: Zero, nada, none? [Appellant’s trial counsel]: Zero, none THE COURT: Okay. Sir, you had – you had indicated to my clerk that you were going to be calling one witness? [Appellant’s trial counsel]: I don’t believe so. If you refer to the trial statement the – the witness

section is – is left blank. THE COURT: Oh, all right. That is fine, sir. All right, sir, let us go ahead. (Trial Transcript, p 2). [ 88 ] Rather than call witnesses, the Appellant intended to provide the affidavit from W that counsel obtained the day before the trial. This affidavit generally supports the Appellant’s version of events. The Respondent advised the Court it objected to this affidavit. The Trial Judge said the parties could speak to the matter when the affidavit was tendered. Therefore, the Appellant’s trial counsel knew

from the outset that the admission of the affidavit would be challenged. [ 89 ] At the conclusion of the Respondent’s trial evidence, the Trial Judge again asked the Appellant’s trial counsel if the Appellant was calling evidence. Counsel tendered the affidavit from W. The Trial Judge rejected the affidavit because W was not present for cross- examination (Trial Transcript, p 40). [ 90 ] This affidavit had been obtained, according to counsel’s representation to the Trial Judge, from W by counsel; they had met with W at their office shortly before the trial or the preceding day to obtain the affidavit.

At the meeting, counsel also informed or reminded W of the trial date. There is nothing to suggest they served a Notice to Attend on W. [ 91 ] After the Trial Judge rejected W’s affidavit, discussion ensued about the evidentiary status of the Appellant’s trial statement. The Appellant’s trial counsel said they believed the evidence in the trial statement was admitted. The Trial Judge responded that the trial statement has been admitted but it is not under oath (Trial Transcript, p 40).

Further, the documents were not admitted for the truth of their contents ( ibid , pp 43-44). [ 92 ] Following this discussion, the Trial Judge called for closing submissions. During the Appellant’s submission, the Trial Judge essentially suggested the trial statements were not evidence and these statements are generally filed so that the records are available for use in the trial ( ibid , p 51/27-29). The Appellant’s trial counsel responded: “Okay.

I’ll proceed, Your Honour” ( ibid , p 51/31). [ 93 ] The trial statements are essentially disclosure documents to ensure an orderly trial, but I will assume the Provincial Court civil division has discretion to admit the statements as evidence in appropriate cases. It has great flexibility in deciding what it will admit as evidence ( Provincial Court Act , sections 36(1) and 36.1 (2) ).

The real issue is whether, in the circumstances of this case, a trial participant could reasonably conclude the Trial Judge ruled that he had accepted the statements as evidence. [ 94 ] The process for the trial statements is set out in the Provincial Court Civil Procedure Regulation , R 30(2) and the statements are in a prescribed form ( Provincial Court Civil Forms Regulation , Alta Reg 179/2018 , Form 11). The trial statements are to set out a description of the evidence that a party intends to lead, both by testimony and documents sought to be admitted.

It states it must contain all of the records you want the court to consider. It requires you to summarize the facts and evidence that you intend to present to the court; name your witnesses; and summarize what you believe each witness will say under oath to support the case. The form contains warnings that you should file and serve notices to attend on your witnesses; you may not be allowed to rely on documents and other records as evidence unless you have attached them; and, filing of documents and records does not guarantee the contents will be accepted as evidence.

The party filing the statement must certify the facts in it are true. [ 95 ] Finally, the pre-printed trial statement form concludes with the following notice: NOTE TO PARTY FILING THIS DOCUMENT: At trial, you will be asked to swear or affirm the truth of the contents of this Trial Statement. [ 96 ] The Provincial Court Civil Procedure Regulation requires the parties to file the trial statements.

Filing them ensures they would be available for reference and appropriate use in the trial, and will say statements of witnesses would be conveniently available if the need arose for them during testimony, eg to challenge inconsistent evidence. [ 97 ] The Respondent’s counsel did not ask the Trial Judge to admit the trial statements as proof of their contents.

The Trial Judge merely observed that it was not necessary to mark them as exhibits because they were already filed. [ 98 ] Courts sometimes infer that if a document is admitted into evidence without specifying otherwise, it is admitted for the truth of its contents. In this case, the statements were not marked as exhibits. They were filed and available as required by the Regulation.

It is unreasonable for a trial participant to assume that self-serving statements of fact, untested by cross-examination, and without will-say statements of witnesses, would be treated as admissible evidence for the truth of their contents merely because the other side unsuccessfully requested to mark them as exhibits for unspecified purposes. [ 99 ] The trial court has a responsibility to both parties to conduct proceedings fairly, but it does not know the strategic or other considerations underlying counsel’s choices in conducting their case.

Here, the Trial Judge was told at the outset the Appellant was not calling witnesses -- not even the Appellant herself -- and correctly rejected W’s affidavit. The Appellant did not ask for an opportunity to force W’s attendance. If there was a genuine misunderstanding of the Trial Judge’s comments at the start of the trial, counsel could and ought to have addressed this with the Trial Judge under Rule 18 by requesting an opportunity to call their client or make other arrangements to substantiate their trial statement.

The Provincial Court has ample flexibility to do justice but it was not asked to remedy the matters asserted on appeal as unfair treatment. [ 100 ] In the circumstances, the Appellant did not receive unfair treatment. The lack of evidence to pursue her defence resulted from her lack of witnesses and decision not to ask for more time or opportunity to present evidence.

The Appellant has not shown that any of these arose from some circumstance beyond her reasonable control or that her counsel’s decision to press on without evidence was not driven by other considerations such as cost saving or the Appellant avoiding having to be cross-examined. Insufficient time for the trial [ 101 ] See Rule 18, mentioned above. If the Appellant needed more time to present evidence, they ought to have requested a longer opportunity to respond.

Award of enhanced costs on the basis of a Calderbank offer served before production of evidence [ 102 ] The Respondent asked for enhanced costs because it recovered more than it had offered in a Calderbank offer served 8 January

2021. The Trial Judge responded he already made a calculation of costs. He awarded $1510 as party and party costs. That amount corresponds with the tariff in the Provincial Court Practice Note 2: Costs in Provincial Court Civil. [ 103 ] I do not see any indication that the Trial Judge awarded enhanced costs or that his costs award was inappropriate in such a simple case. Conclusion [ 104 ] The application to admit fresh evidence is dismissed. The appeal is dismissed. [ 105 ] The parties may arrange to speak to costs. Heard on the 19 th day of November, 2021.

Dated at Calgary, Alberta this 30 th day of November, 2021. J.T. Eamon J.C.Q.B.A. Appearances: Francisco Torres for the Appellant Joseph Heap for the Respondent