Justin William Zaseybida, Nathan Robert Zaseybida, v. Alicia Christine Zaseybida, 2023 ABCJ 140

In the Alberta Court of Justice Citation: Zaseybida, et al V Haugen, 2023 ABCJ 140 Date: 20230620 Docket: P2101500067 Registry: Camrose Between: Justin William Zaseybida, Nathan Robert Zaseybida, and Alicia Christine Zaseybida Plaintiffs - and - Rick Haugen Defendant Judgment of the Honourable Justice J.G. Neustaeter [ 1 ] Justin William Zaseybida, Nathan Robert Zaseybida and Alicia Christine Zaseybida (the “Plaintiffs”), are siblings and are the children of Carolynne Christine Zaseybida (“Carolynne”).

Between 2005 and 2015, Carolynne lived in a common-law relationship with Rick Haugen (the “Defendant”) on his farm located northeast of the City of Camrose, Alberta. [ 2 ] When Carolynne moved in with the Defendant in 2005, she gave him a loan of $66,600.00. To secure this loan, Carolynne registered a mortgage against the Defendant’s farm.

When Carolynne and the Defendant separated in 2015, the Defendant paid Carolynne $66,600.00 and the mortgage was discharged. [ 3 ] The Plaintiffs argue that on July 24, 2016, the Defendant signed an agreement with Carolynne agreeing to pay her $10,250.00 as payment for a personal loan she gave him and also agreeing to pay Carolynne $40,000.00 for her share in the farm. The $40,000.00 was to be paid in four payments of $10,000.00 payable by cheque on December 1 of 2016, 2017, 2018 and 2019. [ 4 ] Carolynne passed away on June 16, 2020 after a battle with cancer.

On April 27, 2020, Carolynne assigned all debts owed to her by the Defendant to the Plaintiffs. [ 5 ] The Defendant denies that he signed the agreement on July 24, 2016. [ 6 ] The Plaintiffs filed this Claim to collect on the $40,000.00 portion of this agreement. The Claim was filed on September 28, 2020.

[7] The trial of this matter took place in Camrose, Alberta on Thursday, January 26, 2023. All three of the Plaintiffs testified as didCindy McCruden, a former friend of Carolynne’s. The Defendant testified as did his brother, Randy Haugen. [8] Four Exhibits were filed during the trial. Exhibit 1 was a Binder of Agreed Exhibits. The contents of the binder weredocuments agreed to be filed by both the Plaintiffs and the Defendant. It consisted of documents under Tabs 1 – 25. Exhibit 2 was aStatement of Agreed Facts which was two pages long and consisted of nine separate paragraphs.

Exhibit 3 was a one page handwrittendocument indicating that Carolynne wished to be paid $66,600.00 in exchange for discharging her mortgage on the farm. This documentis signed by the Defendant. Exhibit 4 was a 3 page Will-say statement of the Defendant. [9] The Statement of Agreed Facts sets out the following facts: 1. Carolynne Christine Zaseybida (“Carolynne”) and Ricky Haugen (the “Defendant”) were in a relationship for several years. 2. During the relationship Carolynne registered a mortgage interest on land owned by the Defendant legally described as: FIRST THE NORTHWEST QUARTER OF

SECTION FOUR

(4) TOWNSHIP FORTY EIGHT

(48) RANGE NINETEEN

(19) WEST OF THE FOURTH MERIDIAN EXCEPTING THROUGHOUT ALL MINES AND MINERALS SECOND ALL THAT PORTION OF THE NORTHWEST QUARTER OF

SECTION FOUR

(4) TOWNSHIP FORTY EIGHT

(48) RANGE NINETEEN

(19) WEST OF THE FOURTH MERIDIAN EXCEPTING THROUGHOUT ALL MINES AND MINERALS 3. Carolynne and the Defendant separated in the summer of 2015. 4. On June 8, 2016 Carolynne and the Defendant executed an agreement where the Defendant paid out and discharged Carolynne’smortgage interest in the Farm for valuable consideration of $66,000. To perform her obligation under the agreement Carolynnedischarged her mortgage interest effective June 8, 2016. 5. Carolynne lent the Defendant the sum of $10,000.00 on July 22, 2016, $3,000.00 on October 12, 2016 and $13,000.00 onDecember 12, 2016. 6.

The Defendant provided cheque #337 to Carolynne for the sum of $10,250.00 payable on December 1, 2016 for repayment of loanfrom July 22, 2016. 7. The Defendant gave Carolynne cheque #462 dated November 29, 2018, for the sum of $10,600.00 for repayment of one $10,000.00loan from 2016. 8. The Plaintiffs are children of Carolynne. 9. Carolynne died on June 16, 2020. Rebuttal Evidence [10] On March 2, 2023, the Plaintiffs filed an application to call rebuttal evidence.

Filed along with the application was an affidavitsworn by Nathan Zaseybida on March 2, 2023. [11] The Defendant opposes this application. [12] The affidavit says the Defendant gave evidence in his testimony which the parties had previously agreed would be redactedfrom Exhibit 1 and would not be presented at the trial. It says the evidence relates to the credibility of the Defendant. [13] The affidavit also says the Plaintiff wishes to rebut evidence the Defendant gave regarding one of the photographs included inExhibit 1. [14] The Supreme Court of Canada dealt with rebuttal evidence in a case called R. v.

Krause, (SCC) (Krause) whichcontinues to be followed by courts in Alberta. They state the following at paragraphs 15 – 17: 15. The general rule is that the Crown, or in civil matters the plaintiff, will not be allowed to split its case. The Crown or the plaintiffmust produce and enter in its own case all the clearly relevant evidence it has, or that it intends to rely upon, to establish its case with

respect to all the issues raised in the pleadings. This rule prevents unfair surprise, prejudice and confusion which could result if the Crown or the plaintiff were allowed to split its case. 16. The plaintiff or the Crown may be allowed to call evidence in rebuttal after completion of the defence case, where the defence has raised some new matter or defence which the Crown has had no opportunity to deal with and which the Crown or the plaintiff could not reasonably have anticipated.

But rebuttal will not be permitted regarding matters which merely confirm or reinforce earlier evidence adduced in the Crown’s case which could have been brought before the defence was made. 17. Where something new emerges in cross-examination, which is new in the sense that the Crown had no chance to deal with it in its case-in-chief (i.e., there was no reason for the Crown to anticipate that the matter would arise), and where the matter is concerned with the merits of the case (i.e., it concerns an issue essential for the determination of the case) then the Crown may be allowed to call evidence in rebuttal.

Where, however, the new matter is collateral, that is, not determinative of an issue arising in the pleading or indictment or not relevant to matters which must be proved for the determination of the case, no rebuttal will be allowed . [ 15 ] In this case, I am satisfied that if the Defendant presented evidence which the parties had previously agreed would not be presented at the trial, the Plaintiffs could not have anticipated this and would not have had an opportunity to deal with it in their case.

This weighs in favour of allowing the application. [ 16 ] Based on the evidence I heard during the trial, and the material provided to me as part of this application, I am not satisfied that this new matter is concerned with the merits of the case or is relevant to a matter which must be proved for the determination of the case. On this basis, the application to call rebuttal evidence is denied. ISSUES [ 17 ] In order to come to a decision in this case, I must resolve the following issues: 1. Was there an agreement between the Defendant and Carolynne dated July 24, 2016? 2.

If I find there was an agreement, should I issue a Judgment to enforce this agreement? 3. Does s. 3(1)(

a) of the Limitations Act, RSA 2000, c L-12 , operate to provide the Defendant with immunity from liability with respect to some or all of the Claim? 1. Was there an agreement between the Defendant and Carolynne dated July 24, 2016? [ 18 ] Did the Defendant sign the document that is purported to be the agreement? [ 19 ] The document the Plaintiffs argue is an agreement between the Defendant and Carolynne is found at Tab 5 in Exhibit 1. This is a handwritten document. It is dated July 24, 2016 and it reads as follows: “I Rick Haugen owe Carolynne Zaseybida $10,250.00 for a personnal loan on July 22, 2016.

Given a postdated loan cheque #337. I Rick Haugen agree to pay Carolynne Zaseybida $40,000.00 for her share in the farm. To be paid over the next 4 years on December 1 st , by a cheque of $10,000.00, each year 2016, 2017, 2018, 2019.” [ 20 ] At the bottom of this document are signatures appearing to be those of Carolynne Zaseybida and Rick Haugen. [ 21 ] In his testimony, the Defendant said he never signed this document.

He was confronted in cross-examination with his will-say statement (Exhibit 4), where he says “I do not recall ever signing the alleged agreement...”. [ 22 ] The Plaintiffs also point to Tab 18 of Exhibit 1, which is a collection of text messages exchanged between Carolynne and the Defendant. A portion of an exchange dated February 3, 2020 is as follows: Carolynne : I’m talking to you and the agreement we made so we didn’t have to go to court and pay lawyers fees! That agreement was you would pay me $40,000.00. What do I have to do put a lien against the property??

Read the note you signed, that was our agreement!!.... Defendant : I can’t even remember signing a note, and if I did I’m not sure why..... [ 23 ] The Plaintiffs argue the Defendant is not credible when he says he didn’t sign the agreement. At best, he does not remember signing the agreement, which is what he said to Carolynne and what he said in his will-say statement in preparation for this trial. [ 24 ] The Defendant also provided testimony about the type of signature he uses for important documents. He testified that for “legal stuff”, he always signs his name as “Ricky Haugen”.

He says he would not have signed the agreement as “Rick Haugen”. [ 25 ] Included in Exhibit 1 are numerous banking documents, including a number of cheques written by the Defendant to Carolynne. All of these cheques are signed as “Ricky Haugen”. This evidence provides some support for the testimony of the Defendant. [ 26 ] In contrast, however, is Exhibit 3. Exhibit 3 is a handwritten document dated November 18, 2015 which states the following: “To whom it may concern: I Carolynne Zaseybida wish to be paid out the money I invested at NW4-48-19-W4 $66,600.00 and remove my name from Rick Haugen’s mortgage.”

[ 27 ] This document was relied on by the Defendant as he took this document to his bank and it assisted in him acquiring a loan from the bank enabling him to pay Carolynne to discharge her mortgage on his property. The Defendant acknowledges that he signed this document.

He signed this document as “Rick Haugen”. [ 28 ] Exhibit 3 is evidence that the Defendant does sign important documents as “Rick Haugen”. [ 29 ] When I examine Exhibit 3 and compare it to the alleged agreement, the “Rick Haugen” signatures appear strikingly similar and, in my view, are the same. [ 30 ] Included in Exhibit 1, at Tab 22, is a handwriting analysis expert report.

The analyst examined the “Rick Haugen” signature on the alleged agreement and compared it to 5 other signatures, including the signature on Exhibit 3. [ 31 ] The analyst noted limitations in that only a limited number of handwriting samples were able to be compared and concluded it is within a “reasonable degree of probability” that all signatures were written by the same person. [ 32 ] I find that this report does provide some support for my assessment that the signatures are the same.

However, given the limitations noted, I do not attach a significant amount of weight to this report. [ 33 ] Nonetheless, I find that the Defendant did sign the alleged agreement and, as a result, I find that there was an agreement between the Defendant and Carolynne dated July 24, 2016. 2. If I find there was an agreement, should I issue a Judgment to enforce this agreement? [ 34 ] The agreement between Carolynne and the Defendant is an example of what the Supreme Court of Canada has recently described as a domestic contract in the case of Anderson v.

Anderson , 2023 SCC 13 , at paragraph 25 , a decision from May 12, 2023. [ 35 ] Anderson involved married spouses who separated after a three-year marriage and then executed a separation agreement to deal with their property and thereby opt out of the Family Property Act , SS 1997, c F-6.3 regime in Saskatchewan. [ 36 ] The Court in Anderson , at paragraph 34 , quotes from Miglin v. Miglin , 2003 SCC 24 , paragraph 82 , which states: 82 “...judges must approach family law settlements with a view to balancing the values of contractual autonomy and certainty with concerns of fairness.

In essence, judges are to review domestic contracts with particular sensitivity to the vulnerabilities that can arise in the family law context, without presuming that spouses lack the agency to contract simply because the agreement was negotiated in an emotionally stressful context.” [ 37 ] Sections 37 and 38 of the Alberta Family Property Act , RSA 2000, c F-4.7 , set out requirements for agreements between spouses and adult interdependent partners relating to ownership and division of property.

The agreement between Carolynne and the Defendant does not meet these requirements. [ 38 ] This agreement, however, is not about ownership and division of property. Rather, it is an agreement to provide financial compensation to Carolynne for her work contributing to the farm during her relationship with the Defendant. Put another way, it is an agreement to compensate Carolynne for an unjust enrichment claim she could have made. Evidence before me was that the agreement was to avoid the cost of lawyers and court proceedings. [ 39 ] Unjust enrichment was not specifically claimed by the Plaintiffs in their Claim.

Justice Chrenek, in a case called Saville Drilling Services Inc v. Alpha Construction Inc , 2021 ABPC 125 ( Saville) , considered the question whether she could find that compensation was owed to the plaintiff based on unjust enrichment when the plaintiff had not specifically claimed this. [ 40 ] After reviewing the Alberta Rules of Court 124/2010, the Provincial Court Act , RSA 2000, C. P-31 , and the Provincial Court Civil Procedure Regulation 176/2018, Justice Chrenek found the civil claim contained enough detail to meet the requirements of

section 3 of the Regulation and claim in unjust enrichment ( Saville at paragraphs 50 – 56). [ 41 ] In the present case, I would be prepared to make the same finding for the same reasons. However, the Plaintiffs and the Defendant have not asked me to find whether there was or was not unjust enrichment in this case.

They have asked me to find whether or not an agreement was in place between the parties and whether it should be enforced. [ 42 ] The majority of the evidence led by both the Plaintiffs and the Defendant was focused on whether Carolynne had or had not significantly contributed to the operation of the farm during her relationship with the Defendant. This has led me to the conclusion that all parties, and specifically Carolynne and the Defendant, understood the agreement in this case was to provide compensation to Carolynne for her contribution to the farm.

In other words, it was compensation for unjust enrichment. [ 43 ] Based on the evidence I heard, I find that Carolynne did the majority of the cooking and housework during the relationship. She also took care of the gardening and yardwork. I also find she did participate in some of the farm work. She also paid for the replacement of the deck on the farmhouse. I also heard evidence that there were a number of improvements to the farm during the time Carolynne was living there. This included new farm buildings and farm equipment. [ 44 ] The Supreme Court of Canada, in Kerr v.

Baranow , 2011 SCC 10 ( Kerr) , at paragraph 42 , recognized that courts in Canada have found that, in domestic claims, the provision of domestic services can support a claim for unjust enrichment. [ 45 ] Had Carolynne and the Defendant been married, there are several matrimonial property statutes that could have governed their situation.

However, as noted by the Supreme Court in Kerr , supra , at paragraph 1 , “for unmarried persons in domestic relationships in most common law provinces, judge made law was and remains the only option.” Courts have also recognized that parties may come to agreements to deal with their situations.

[ 46 ] Although the Supreme Court in Anderson was reviewing an agreement between married persons governed by the Family Property Act in Saskatchewan, and so is factually distinct from the present case, their comments at paragraph 8 provide me with some guidance in my assessment of whether I should declare that the agreement in the present case should be enforced: 8. “In determining whether to consider an agreement that does not qualify as an interspousal contract under the FPA , the court must first assess the agreement for its procedural integrity, where such concerns are raised.

By examining the integrity of the bargaining process for undue pressure, or exploitation of a power imbalance or other vulnerability, the judge can determine whether the parties executed the agreement freely and understanding its meaning and consequences. While safeguards like financial disclosure and independent legal advice provide critical protection in the family law context, they are not required by the legislation and their absence, without more, does not necessarily impugn the fairness of an agreement.

Given the respect for spousal autonomy reflected in both the legislation and the jurisprudence, unless the court is satisfied that the agreement arose from an unfair bargaining process, an agreement is entitled to serious consideration under s. 21 of the FPA.” (emphasis added) [ 47 ] The Supreme Court further reviewed the rationale for encouraging domestic contracts and included the following comments at paragraph 33: 33. “....

Not only are parties better placed than courts to understand what is fair within the context of their relationship, but the private resolution of family affairs outside the adversarial process avoids the cost and tumult of protracted litigation.” [ 48 ] Carolynne and the Defendant were in the best place to assess what Carolynne’s contributions to the farm were worth. They executed an agreement to resolve this. I heard no evidence from either party alleging any undue pressure or exploitation of a power imbalance or vulnerability in the bargaining process leading up to the agreement being formed in this case.

I find that the agreement between Carolynne and the Defendant should be enforced. 3. Does s. 3(1)(

a) of the Limitations Act , RSA 2000, c L-12 , operate to provide the Defendant with immunity from liability with respect to some or all of the Claim? [ 49 ]

Section 3 of the Limitations Act provides immunity in the following words: 3(1) Subject to subsections (1.1) and (1.2) and sections 3.1 , 3.2 and 11 , if a claimant does not seek a remedial order within (a) 2 years after the date on which the claimant first knew, or in the circumstances ought to have known, (

i) that the injury for which the claimant seeks a remedial order had occurred, (ii) that the injury was attributable to conduct of the defendant, and (iii) that the injury, assuming liability on the part of the defendant, warrants bringing a proceeding, or (b) 10 years after the claim arose, whichever period expires first, the defendant, on pleading this Act as a defence, is entitled to immunity from liability in respect of the claim. [ 50 ] The Defendant argues that the agreement in this case provides for the making of periodic payments by the Defendant to Carolynne.

He was to pay her $10,000.00 on December 1 of 2016, 2017, 2018, and 2019. As each of these payments was not made, this gave rise to a separate cause of action and the calculation of the limitation period began. [ 51 ] Therefore, when the Claim was filed on September 28, 2020, the Defendant argues that the limitation period of two years had expired for both the 2016 and 2017 payments. [ 52 ] In James H. Meek, Jr. Trust v.

San Juan Resources Inc., 2005 ABCA 448 , at paragraph 48 , the court noted that “when the breach of contract is a series of failures to make periodic payments, it generally is easy to ascertain when the breach occurs.” The ABCA also quotes from Chitty on Contracts , 29 th Ed, London: Sweet & Maxwell, 2004: “... the claimant will succeed in respect of so much of the series of breaches as occurred within the limitation period before the action was brought. An action arises with each breach.” [ 53 ] The Plaintiffs do not dispute this principle.

They argue that because the Defendant made certain payments to Carolynne, in particular a cheque in the amount of $10,600.00 dated November 29, 2018, the limitation period was reset pursuant to s. 8 of the Limitations Act . [ 54 ]

Section 8 of the Limitations Act does provide for the resetting of the commencement of a limitation period where there is an acknowledgement or part payment of a claim: 8(1) In this section, “claim” means a claim for the recovery, through the realization of a security interest or otherwise, of an accrued liquidated pecuniary sum, including, but not limited to a principal debt, rents, income and a share of estate property, and interest on any of them.

(2) Subject to subsections (3) and (4) and

section 9 , if a person liable in respect of a claim acknowledges the claim, or makes a part payment in respect of the claim, before the expiration of the limitation period applicable to the claim, the operation of the limitation period begins again at the time of the acknowledgment or part payment.

(3) A claim may be acknowledged only by an admission of the person liable in respect of it that the sum claimed is due and unpaid, but

an acknowledgment is effective (

a) whether or not a promise to pay can be implied from it, and (

b) whether or not it is accompanied with a refusal to pay.

(4) When a claim is for the recovery of both a primary sum and interest on it, an acknowledgment of either obligation, or a part payment in respect of either obligation, is an acknowledgment of, or a part payment in respect of, the other obligation. [ 55 ] The parties acknowledge that the Defendant borrowed money from Carolynne after they separated. One of these loans is included as part of the agreement this case is about. This is a loan from July 22, 2016. [ 56 ] At Exhibit 1, Tab 7, are four bank drafts from Carolynne to the Defendant. These are labelled in Exhibit 1 as deposit slips.

Two of these are from July 22, 2016 and are for $6000.00 and $4000.00. The third is from October 12, 2016 for $3000.00 and the fourth is from December 21, 2016 for $13,000.00. The total is $26,000.00. It is clear none of this money was a gift and that all of it was to be repaid to Carolynne. [ 57 ] Exhibit 1, Tabs 8 – 15, are bank statements of the Defendant. These statements include eight cheques the Defendant wrote to Carolynne. All of these cheques were written to Carolynne while she was alive.

It is important to set out the details of these eight cheques before assessing whether any of them can qualify as part payment of the $40,000.00 agreement thereby resetting the limitation period. They are as follows: 1. Cheque # 380 is dated March 29, 2017 and is for $260.00. The memo on this cheque says it is “for interest on $5000.00 loan”. 2. Cheque #389 is dated June 26, 2017 and is for $500.00. There is no memo on this cheque . 3. Cheque #409 is dated November 30, 2017 and is for $4000.00. There is no memo on this cheque. 4. Cheque #416 is dated December 14, 2017 and is for $515.67.

The memo on this cheque says it is to “pay out line of credit”. 5. Cheque # 434 is dated April 26, 2018 and is for $1058.40. The memo on this cheque says “Carolynne loan”. 6. Cheque #462 is dated November 29, 2018 and is for $10,600.00. The memo on this cheque says “repay one $10,000 loan from 2016”. 7. Cheque #473 is dated August 30, 2019 and is for $3000.00. There is no memo on this cheque. 8. Cheque #483 is dated November 1, 2019 and is for $3000.00. There is no memo on this cheque. [ 58 ] These cheques total up to $22,934.07.

This amount is still less than the $26,000.00 loaned to the Defendant by Carolynne. [ 59 ] None of these cheques is specifically noted to be for payment of the $40,000.00 agreement. [ 60 ] The Plaintiffs argue that where there is more than one debt owed by a debtor, and the debtor makes a payment without specifying which debt it is to apply to, the creditor can decide which debt the money applies to and the law will generally presume that the payment will be applied to the oldest debt first. They rely on Kamloops Estates Ltd. v.

Avon Holdings Ltd. , 2001 BCCA 685 ( Kamloops ) . [ 61 ] The Plaintiffs argue that they should be able to decide what debts the cheques from June 26, 2017, November 30, 2017, and August 30, 2019 apply to because the Defendant did not specify what debts those cheques were to apply to. [ 62 ] The Plaintiffs also argue that the cheques from April 26, 2018 and November 29, 2018 should, at least partially, be able to be applied to the $40,000.00 agreement by them.

These two cheques are noted by the Defendant to be applied to a loan from Carolynne. [ 63 ] The Plaintiffs suggest that the Defendant used the word “loan” interchangeably to refer to both the monies advanced to him by Carolynne and to the agreement to pay her $40,000.00. I am not prepared to make this finding based on the evidence. [ 64 ] When I consider the plain meaning of the agreement of July 24, 2016, the first portion of the agreement that references the $10,250.00 loan is specifically called a loan. However, the second portion referencing the $40,000.00 to be paid cannot be interpreted as a loan.

It is not for the repayment of monies borrowed. [ 65 ] Therefore, where a cheque is specified as intended to apply to a loan owed to Carolynne, it cannot be applied to the $40,000.00 indebtedness and cannot restart the limitation period. [ 66 ] Can the three cheques with no memo specifying what debt they were intended for be considered as part payment of the $40,000.00 indebtedness? [ 67 ] In Kamloops , the petitioner did not produce any evidence that they had actually applied the payments in question to the debt they were trying to satisfy the court it should apply to.

As a result, the court ruled the limitation period had passed and the claim was statute barred. [ 68 ] The relevant time to consider is the time the monies were received by the creditor, in this case Carolynne. When Carolynne received these payments, did she apply them to the $40,000.00? [ 69 ] There was evidence presented at trial that can help me answer this question.

[ 70 ] I have already referred to a text message communication between Carolynne and the Defendant from February 3, 2020. In this communication, Carolynne stated a debt was still owed to her of $40,000.00.

This suggests to me that Carolynne did not apply any of these payments to the $40,000.00 debt. [ 71 ] In a text message from Carolynne to the Defendant of February 2, 2020, Carolynne states, “What is your business is the $40,000 you owe me!” This also suggests to me that Carolynne did not apply any of the previous payments to the $40,000.00 debt. [ 72 ] Alicia Zaseybida testified to overhearing several conversations between Carolynne and the Defendant wherein Carolynne asked the Defendant to pay her the $40,000.00 he owed her.

Exact dates of these conversations were not part of the evidence. [ 73 ] Nathan Zaseybida testified that he was with Carolynne from March 2020 until she passed away. On several occasions, Carolynne told him the Defendant still owed her the $40,000.00 and she hadn’t seen any of it from the Defendant. He also participated in a phone call between Carolynne and the Defendant during this same time where the Defendant was asked to pay the $40,000.00. The Defendant said he didn’t have the money to pay. [ 74 ] Exhibit 1, at Tab 19, are two documents both titled Assignment of Debt and both dated April 27, 2020.

The first document is one paragraph long, signed by Carolynne and witnessed by Stan Borub. The second is a longer and more detailed document containing 6 paragraphs outlining the relationship between Carolynne and the Defendant and the agreement. Paragraph D described the agreement for the Defendant to pay Carolynne $40,000.00 in four payments. Paragraph E states that the Defendant has failed to pay this debt as promised. Carolynne then signs the document assigning the debt to the three Plaintiffs.

This second document suggests to me that Carolynne did not apply any of the previous payments to this debt. [ 75 ] I am satisfied that none of the previous payments made by the Defendant to Carolynne had ever been applied to the $40,000.00 debt owed. I find that none of the prior payments can be considered as part payments under s. 8 of the Limitations Act . [ 76 ] The Claim for the $10,000.00 payments due on December 1, 2016 and December 1, 2017 are statute barred by virtue of s. 3 of the Limitations Act .

CONCLUSION [ 77 ] The agreement between Carolynne and the Defendant dated July 24, 2016 that requires that the Defendant pay Carolynne the sum of $40,000.00 in four installments payable on December 1 of 2016, 2017, 2018, and 2019 is a valid and binding agreement. [ 78 ] The Claim was filed on September 28, 2020.

This is outside of the two year limitation period with respect to the first two installment payments and there was no part payment that could have restarted the limitation period. [ 79 ] The Plaintiffs shall have judgment against the Defendant in the amount of $20,000.00. [ 80 ] With respect to costs, in the event the parties cannot come to an agreement, I will hear argument. Heard on the 26 th day of January, 2023. Dated at the City of Camrose, Alberta this 20 th day of June, 2023. J.G.

Neustaeter A Justice of the Alberta Court of Justice Appearances: Nicholas Zaseybida for the Plaintiffs Brendan Hill, Student-At-Law for the Defendant