Marcoux Bros Trucking Ltd v Maritime-Ontario Freight Lines Limited, 2021 ABQB 998

Court of Queen’s Bench of Alberta Citation: Marcoux Bros Trucking Ltd v Maritime-Ontario Freight Lines Limited, 2021 ABQB 998 Date: 20211215 Docket: 1901 08254 Registry: Calgary Between: Marcoux Bros Trucking Ltd Plaintiff/Respondent - and - Maritime-Ontario Freight Lines Limited Defendant/Applicant _______________________________________________________ Reasons for Decision of the Honourable Madam Justice M.H. Hollins _______________________________________________________ [ 1 ] Marcoux Bros. Trucking Ltd is the landlord of commercial premises.

In 2011, the sublandlord, Sonick Group, surrendered its head lease and assigned the sublease between it and Maritime-Ontario Freight Lines Limited (the Tenant) to Marcoux (the Landlord). [ 2 ] When that lease expired, Marcoux and Maritime attempted to negotiate the Tenant’s obligations to repair damage done to the premises over the life of the lease. The Tenant agreed that its obligation was $30,000; a figure accepted by the Landlord. [ 3 ] The problem was that the sublease contained a reference to a security deposit held by Sonick for the benefit of the Landlord.

The Tenant took the position that its obligation of $30,000 was net of those funds on deposit [1] ($23,156) and paid the Landlord $6,844.

The Landlord maintains it should have received the full $30,000 from the Tenant, whose payment is now $23,156 short of the settlement amount. In the alternative, it says that if there was no agreement on the terms of settlement, it is at liberty to sue for the full amount of the alleged damage, $350,000 and has done so. [ 4 ] The Tenant applied for

summary dismissal of the Landlord’s claim, which application was dismissed by the Master in Chambers on July 3, 2020. Standard of Review [ 5 ] According to Rule 6.14(3), an appeal from the Master to this Court is an appeal “on the record”. With respect, it is often misdescribed as an appeal de novo , but in my view that refers to the ability of the appellant to expand the factual record from the court below and the implications that has for us on appeal.

Because the appellant from Master’s Chambers may introduce any new evidence that is “relevant and material” [2] , the record before our court is often different than it was before the Master. [ 6 ] Appeals with new evidence are therefore “de novo” in the sense that we are considering an amended record. This informs, but does not describe, the standard of review, which remains correctness; Bahcheli v. Yorkton Securities, 2012 ABCA 166 at para.3. [ 7 ] Increasingly on these appeals, the parties do not even identify their new evidence for the Court, much less apply for its admission.

In this case, I believe the only new evidence was a cross-examination of Mr. Marcoux, the representative of the Plaintiff/Respondent. His “admission” was only that the Landlord did not expressly say that it intended the settlement amount to be without regard to the security deposit. As that much was admitted, I am not sure this is “relevant and material” but, as mentioned, it was referred to in argument without that determination. [ 8 ] In any event, for the reasons that follow, I find that the decision of the Master was correct and I dismiss the Defendant’s appeal therefrom.

Summary Judgment/Dismissal [ 9 ] Rule 7.3(1) of the Rules of Court (Alberta) reads as follows: 7.3(1) A party may apply to the Court for

summary judgment in respect of all or part of a claim on one or more of the following grounds: (

a) there is no defence to a claim or part of it; (

b) there is no merit to a claim or part of it; (

c) the only real issue is the amount to be awarded. [ 10 ] We have the benefit of recent jurisprudence from our Court of Appeal on the test for

summary judgment; Weir-Jones Technical Services Incorporated v Purolator Courier Ltd , 2019 ABCA 49 , which was cited by Master Farrington. [ 11 ] The Master heard oral argument on this matter in morning chambers and gave a decision thereafter. Although the Weir-Jones test was not described, it is clear that he was mindful of the need for a record which could ground

summary dismissal and of the Defendant/Applicant’s burden of proof on a balance of probabilities that the matter could be fairly dealt with by

summary dismissal. [ 12 ] In rejecting

summary dismissal of the Landlord’s claims, Master Farrington stated that it was arguable that the agreement was for $30,000 with no set-off for any security deposit.

While he seemed to accept the Tenant’s argument that set-off might be available at law, he was still concerned by the fact that the treatment of the security deposit had not been discussed by the parties in the context of this settlement. [ 13 ] He also pointed out that it was unknown, without the testimony of the witnesses, whether the parties simply forgot about this Sonick money or whether the Tenant knew but did not raise it so as to avoid a less favourable re-negotiation of the settlement. In either case, it could potentially be argued that the parties were not ad item, as goes the Plaintiff’s argument.

Even a legal right to set-off does not address that issue. [ 14 ] I am not sure that discerning the parties’ motives, if any, will determine whether or not they had a binding settlement agreement and if so, whether it was for $30,000 net or gross. In that regard, I would be less reliant on the need for viva voce testimony in dismissing the Defendant’s

summary dismissal motion. I am also not sure that the problem lies in the record, which may very well be not much improved by trial. [ 15 ] However, I am in complete agreement with Master Farrington that the Tenant has not met its burden of proof for

summary dismissal as triable issues remain regarding the existence and terms of settlement. [ 16 ] Before this appeal was heard, the Landlord had already filed its material for a

summary trial, which is scheduled to proceed next month. While I was invited by the Tenant to make a ruling that the Landlord could not proceed with its claim for $350,000 but would be restricted to a claim for the alleged shortfall in the settlement amount, that is not the proper subject of this appeal as it was not argued nor addressed in Masters Chambers. Furthermore, in my opinion, all these matters are more efficiently and justly left to the

summary trial process so I express no opinion thereon. [ 17 ] The Defendant’s appeal is dismissed. If the parties cannot agree on costs of this appeal, they may speak to those costs.

Heard on the 27 th day of August, 2021. Dated at the City of Calgary, Alberta this 15 th day of December, 2021. M.H. Hollins J.C.Q.B.A. Appearances: Arif Chowdhury for the Defendant/Appellant Kaitlin Ward and Catrina Webster for the Plaintiff/Respondent