Zavers v Magma Surfaces Inc, 2021 ABQB 952

Court of Queen’s Bench of Alberta Citation: Zavers v Magma Surfaces Inc, 2021 ABQB 952 Date: 20211202 Docket: 1103 18418 Registry: Edmonton Between: Bert Allan Zavers Applicant - and - Magma Surfaces Inc. Respondent _______________________________________________________ Endorsement of the Honourable Mr. Justice M. J. Lema _______________________________________________________ A. Introduction [ 1 ] In measuring the ten-year limitation period for an action on a judgment where the judgment in this Court results from the registration of a Provincial Court judgment, which is the relevant judgment? [ 2 ] Whichever trigger date applies, did the applicant here apply in time?

[3] The answers are the Queen’s Bench judgment and yes. B. Background [4] Mr.

Zavers obtained a Provincial Court judgment (for unpaid wages) on November 10, 2011. [5] He registered that judgment in the Court of Queen’s Bench on November 22, 2011, per ss. 9.71(5) of the Provincial CourtAct (or predecessor section): A certificate of judgment, or an order of the Court under which money is payable, may be filed in the Court of Queen’s Bench and on itsbeing filed, a. the judgment for which the certificate of judgment was prepared or the order, as the case may be, becomes a judgment or order ofthe Court of Queen’s Bench, and b. writ proceedings may be taken pursuant to the Civil Enforcement Act. [6] With only partial recovery on his judgment (as reflected in an update affidavit filed on November 25, 2021), Mr.

Zaversapplied ex parte on November 19, 2021 to renew the judgment. [7] The first issue, in light of s. 11 of the Limitations Act (ten-year limitation period to seek a remedial order based on ajudgment for the payment of money) and Rule 9.21 (application for a new judgment to be filed before expiry of the s. 11 limitationperiod), is determining the triggering date for the s. 11 limitation as between November 10, 2011 (date of Provincial Court judgment)and November 22, 2011 (date of the Queen’s Bench judgment). [8] The next issue is whether Mr. Zavers applied in time. C.

Analysis Triggering date for limitation period [9] Here is s. 11 of the Limitations Act: If, within 10 years after the claim arose, a claimant does not seek a remedial order in respect of a claim based on a judgment or orderfor the payment of money, the defendant, on pleading this Act as a defence, is entitled to immunity from liability in respect of theclaim. [10] I find that the “claim” here is the Queen’s Bench judgment, even though its genesis is the earlier Provincial Court judgment: • the “remedial order” in this claim-based-on-judgment context is either a new action anchored on the judgment debt or the short-cut to a new judgment in R. 9.21 (discussed further below); • the platform for either step is the Queen’s Bench judgment, not the Provincial Court judgment; • the Provincial Court Act does not contemplate any particular “remedial order” in respect of judgments of that Court, only (asreflected in ss. 9.71(5)) that they are filed in Queen’s Bench and that enforcement steps are anchored on the QB judgment; • the Provincial Court Act says that, on such filing, the PC judgment “becomes” a QB judgment.

Nothing signals that the QBjudgment should be regarded as dating or otherwise existing from the date of the PC judgment e.g. no statutory wording deeming anysuch effect; • we are not dealing with anything other than deciding if the judgment continues for enforcement purposes.

The focus will or mayremain on the Provincial Court judgment for other purposes e.g. whether that judgment should be set aside: Booth v Christensen, 2019ABQB 878 (Feth J.) (paras 133-139) and Haega Investments v Shuflita, (ABQB) (Foster J.) (paras 1-12); • this approach squares with the treatment of foreign judgments or orders registered in Alberta i.e. with the resulting QB judgmentbeing treated as the judgment for limitation purposes: see Yugraneft Corporation v Rexx Management Corporation, 2008 ABCA 274(paras 29-32) (affirmed 2010 SCC 19); • I also draw support from the analysis of the Saskatchewan Court of Appeal in Lamontagne v Law Society of Saskatchewan, 2013SKCA 27 (paras 11-18), addressing the same issue (albeit with the Provincial Court judgment emanating from a restitution order underthe Criminal Code); and • as for whether this (QB-judgment) focus leaves open the possibility of an indefinite gap between the issuance of the PC judgmentand any eventual filing of it in QB, I adopt and agree with the comments of Laing CJQB in Law Society of Saskatchewan vLamontagne, 2011 SKQB 312 (the decision affirmed by the SKCA – see above): The respondent submits that such a finding [trigger date is filing of QB judgment] is not reasonable because a party who is thebeneficiary of a restitution order could wait many years, including in excess of 10 years, before registering the order with the superiorcourt.

It is not obvious why anyone would do this, given the fact that no interest is payable on a restitution order, and it is not otherwiseenforceable. Nevertheless, all that can be said is that s. 741(1) [of the Criminal Code] does not contain a limitation period for

registration of a judgment nor is there a limitation in any federal legislation which is applicable to restrict a late registration. Whether there exist defences to a very late registration need not be considered on this application . [para 15] [emphasis added] [ 11 ] All to say: the s. 11 limitation period started on November 22, 2011, when the PC judgment was filed in QB, creating a QB judgment as of that point. End date of limitation period [ 12 ] Per s. 11, a judgment-based bid for a remedial order must be brought “ within 10 years after the claim arose. [ 13 ] As found above, the claim here – i.e. the QB judgment – arose on November 22, 2011. [ 14 ] Per ss 22(7) of the

Interpretation Act : “If an enactment provides that anything is to be done within a time after, from or before a specified day , the time does not include that day.” In other words, excluding November 22, 2011 (i.e. starting from November 23, 2011) and then counting ten full years, we end up at November 22, 2021. [ 15 ] This

interpretation of “within X years” (there, “within 2 years”) was confirmed by the Alberta Court of Appeal in Zoeteman v Feist , 2009 ABCA 311 (paras 1-10 ). [ 16 ] I find that the ten-year limitation period expired on November 22, 2021. [ 17 ] Mr.

Zavers filed his application on November 19, 2021 i.e. three days before the expiry of the ten-year period. [ 18 ] In any case, per the pandemic-sparked Ministerial Order 27/20, the limitation period here was effectively extended for 75 days: Neilson v Leduc (County) , 2021 ABQB 735 (Rothwell J.) (paras 32-36 ). [ 19 ] The earliest conceivable trigger date here is the date of the PC judgment i.e. November 10, 2021. [ 20 ] Even with such a trigger date, the ten-year-plus-75-days limitation period expired well after November 19, 2021.

New judgment under R. 9.21 [ 21 ] As noted, Rule 9.21(1) provides, as an alternative to bringing a new action based on the original judgment, for an application for a new judgment: “On application, the Court may grant a judgment creditor a new judgment or order on a former judgment or any part of it that has not been paid.” [ 22 ] Mr.

Zavers applied for “renewal” of his judgment. [ 23 ] Given no actual “renewal” process, I am prepared to regard his application as one requesting a new judgment under R. 9.21(1). [ 24 ] Rule 9.21(3) says (in part) that notice of the application “must be filed before the expiry of the limitation period under the Limitations Act for an action on the judgment.” [ 25 ] As discussed, the s. 11 limitation period expired after November 19, 2021 i.e. Mr. Zavers filed in time to meet the R. 9.21(3) deadline.

Service on the judgment debtor [ 26 ] Rule 9.21(3) also provides that the application must be “served on the judgment debtor by the same method by which a commencement document must be served.” [ 27 ] The judgment debtor here is a corporation, which was struck on October 2, 2012. [ 28 ]

Section 227 of the Business Corporations Act permits a civil action or proceeding commenced by or against a body corporate before its dissolution (as here) to be continued as if the body corporate had not been dissolved. [ 29 ] As a result, the corporation’s dissolution is not an obstacle to Mr. Zavers’ application. [ 30 ] In terms of how a “commencement document must be served” on a corporation, para 256(1)(

b) of the Business Corporations Act permits service on a corporation via registered mail to its registered office. [ 31 ] Rule 11.4 permits service of a commencement document via a method of service provided by an enactment, which includes the Business Corporations Act . [ 32 ] Putting these provisions together, I find that Mr. Zavers’ application can be served via registered mail on the corporation’s registered office (or at least its registered office at the date of its striking) i.e. 778 Wheeler Road West NW, Edmonton, Alberta, T6M 2E1. D. Conclusion [ 33 ] Mr. Zavers filed his application (effectively for a new judgment, per R. 9.21) in time.

[ 34 ] He can serve the judgment debtor with copies of his application, his supporting affidavit, this judgment, and the formal order reflecting it in the method approved above. [ 35 ] His application will proceed via desk application before me. [ 36 ] Mr.

Zavers shall provide proof of service on the judgment debtor by delivering or mailing to the Edmonton courthouse (to my attention) a copy of the registered-mail slip or other proof of such mailing. [ 37 ] The judgment debtor shall have 20 days after the date the materials were mailed to it to file and serve an affidavit outlining any response to the application for a new judgment and any evidence in support of its position. [ 38 ] Mr.

Zavers shall have 10 days after receiving any such response to file any reply affidavit. [ 39 ] Once the materials are all filed or in any case once the noted deadlines have expired, I will decide whether a new judgment should be granted and the proper amount of the new judgment (factoring in the recoveries reflected in the November 25, 2021 affidavit). E. Post-script [ 40 ] By letter dated November 26, 2021, Mr.

Zavers advised that he wished to withdraw his claim against the judgment debtor. [ 41 ] Presumably he has now received payment of the balance of his claim or otherwise reached a satisfactory resolution of it. [ 42 ] I infer that Mr. Zavers will no longer be proceeding with his application, whether serving it on the judgment debtor or otherwise. [ 43 ] I provide these reasons nonetheless to explain that, if he had wished to proceed with his application, he had applied in time to do so. [ 44 ] I thank Mr. Zavers for keeping me updated on the status of his claim. Heard on the 22 nd day of November, 2021.

Dated at Edmonton, Alberta this 2 nd day of December, 2021. M. J. Lema J.C.Q.B.A. Appearance: Bert Allan Zavers the self-represented Applicant