Tempo Alberta Electrical Contractors Co. Ltd. v Man-Shield Construction Inc., 2023 ABKB 444

Court of King’s Bench of Alberta Citation: Tempo Alberta Electrical Contractors Co. Ltd. v Man-Shield Construction Inc. 2023 ABKB 444 Date: 20230726 Docket: 1703 19697 Registry: Edmonton Between: Tempo Alberta Electrical Contractors Co. Ltd., Tempo Alberta Contractors Co. Ltd.; Cob, Tempo Electrical Contractors Co. Ltd., Tempo Alberta Electrical Contractors Co. Ltd., Tempo Alberta Electrical Contractors Co.

Ltd.; Cob, Shepherd's Garden Inc., Condo Corp. 1623512, Shepard's Care Foundation Plaintiffs (Respondents) - and - Man-Shield (Alta) Construction Inc., Man-Shield (Alta) Construction Inc.; Cob, Man-Shield (Alta) Construction, Shepherd's Garden Inc., Condo Corp. 1623512, Shepard's Care Foundation, Man-Shield (Alta) Construction Inc., Man-Shield (Alta) Construction Inc.; Op., Man-Shield (Alta) Construction, Shepherd's Garden Inc., Condo Corp. 1623512, Man-Shield (Alta) Construction Inc., Man-Shield (Alta) Construction Inc.; Cob, Man-Shield (Alta) Construction Defendants (Appellants) Corrected judgment: A corrigendum was issued on August 2, 2023; the corrections have been made to the text and the corrigendum is appended to this judgment. _______________________________________________________ Reasons for Decision of the Honourable Justice Susan L.

Bercov

_______________________________________________________ I. Introduction [ 1 ] Man-Shield appeals Applications Judge Summer’s Order granting Tempo partial

summary judgment of $ 678,261.00. [ 2 ] This action involves disputes arising from the construction of a residential condominium known as Shepherd’s Garden Heritage ( “Project”). In July 2014 Man-Shield, the general contractor for the Project, entered into a subcontract (“Subcontract”) with Tempo to provide the electrical work for the Project. [ 3 ] There is no dispute that completion of the Project was significantly delayed, by about 45 weeks. The parties dispute who was responsible for the delays and what damages each party suffered because of the delays.

Both parties allege in their pleadings that they have suffered substantial damages because of the Project delay caused by the other party. [ 4 ] The parties acknowledge that the issues of delay require a trial to resolve. Tempo’s application for

summary judgment did not include any damages due to delay. Accordingly, regardless of my decision on this appeal, a trial will be necessary to resolve the delay issues. [ 5 ] Tempo argues that the evidence proves on a balance of probabilities that it is entitled to recover $678,261.00 from Man- Shield for the following outstanding payments: a. 188,733.15 in outstanding progress invoices b. 366,845.13 representing a 10% holdback; and c. $122,682.12 in unpaid change orders . [ 6 ] Man-Shield argues that the test for

summary judgment has not been met because: a. Tempo’s evidence does not support its claim for the amounts it seeks. A significant part of the judgment is for work done under change orders that Tempo is not entitled to recover for. b. Man-Shield has a defence to the claim because Man-Shield is entitled to chargebacks for work it performed because of Tempo’s delay and deficient work. c. Man-Shield’s claim against Tempo for delays and deficient work creates a potential set-off against Tempo’s claims. In these circumstances, it is not appropriate to grant

summary judgement. II. Test For

Summary Judgment [ 7 ] The parties agree that an appeal from an applications judge is on the standard of correctness. The appeal is a hearing de novo. [ 8 ] The parties also agree that Weir-Jones Technical Services Incorporated v Purolator Courier Ltd , 2019 ABCA 49 is the seminal Alberta case that sets out the guiding principles I must apply in determining whether

summary judgment is appropriate. III. Does the Evidence Support Tempo’s claim for $678,261? [ 9 ] The total price under the Subcontract (not considering changes to the contract) was $3,132,100.00 plus GST. Man- Shield has paid Tempo $2,978,622.12. Man-Shield argues that this leaves an amount owing to Tempo of $153,477.88 plus GST. Based on this, Man-Shield argues that Tempo is claiming $492,484.98 plus GST more than the total Subcontract price.

This can only mean that Tempo is claiming for work that is extra to the original Subcontract scope of work. [ 10 ] Man-Shield argues that Tempo is not entitled to be paid for work that is extra to the Subcontract for the following two reasons: 1. The Subcontract only permits changes to the Subcontract price where there is a change to the intent of the building; and 2. In the alternative, Clause 5 of the Subcontract requires a written change order from Man- Shield. There are no written change orders from Man-Shield.

While the requirement for written change orders can be waived, Tempo has not met the test set out in Impact Painting Ltd v Man-Shield (Alta) Construction Inc , 2019 ABCA 57 . A. Is a Change to the Intent of the Building Required Before Change Orders Can be Issued? [ 11 ] Man-Shield argues that Appendix A of the Subcontract precludes Tempo from issuing any change orders unless there is a

change to the intent of the building. There is no evidence that a change to the intent of the building was made, and expert evidence is required for this determination. [ 12 ] The clause Man-Shield relies on provides: “Change orders will only be required if the intent of the building is changed. If we have missed items in the design, that becomes Tempo’s item to solve. The owner does not get a bill for this. If the owner makes a change on the intent, Tempo will submit an estimate for the change.

The architect would review this or could hire someone to review the quote.” [ 13 ] I agree with Man-Shield that if this provision of Appendix A is capable of being construed as Man-Shield suggests, evidence is necessary, including expert evidence rendering

summary judgment inappropriate. [ 14 ] I disagree with Man-Shield that this clause is capable of being construed as Man-Shield argues. The clause does not state that changes will only be permitted if the intent of the building is changed. Clause 5 of the Subcontract and the parties conduct during the Subcontract are inconsistent with Man-Shield’s

interpretation. [ 15 ] Clause 5 allows Man-Shield to make changes by altering, adding to, or deducting from the work and the contract price. The clause does not state that such changes can only occur if the intent of the building is changed. The evidence of Mr. Rattai, that is not contradicted is that several change orders were paid by Man-Shield. Reading the Subcontract as a whole, I am satisfied that changes to the work can be made where the intent of the building is not changed. B.

Is the test set out in Impact Painting satisfied? [ 16 ] Clause 5 of the Subcontract allows for changes provided there is a written order from Man-Shield. There are no written change orders. Notwithstanding, the parties agree that the requirement for written change orders can be waived if the test in Impact Painting is met. [ 17 ] Impact Painting sets out the following requirements that Tempo must prove to recover for extra work in the absence of a written change order: 1. Whether the work performed was, in fact, extra work – i.e. not work falling within the scope of the original contract. 2.

If yes, did the owner give express or implied instructions that the work be done or was the work otherwise authorized by the owner. 3. Was the owner informed or necessarily aware that the extra work would increase the cost. 4. Did the owner waive the provision requiring changes to be made in writing or acquiesce in ignoring those provisions. [ 18 ] Man-Shield argues that Tempo has not met this test for three reasons: 1. Tempo provides no evidence that what it claims was extra work.

Tempo’s evidence of its own documentation listing work as extra is self-serving and cannot be determinative of whether the work was truly extra to the Subcontract. 2. Tempo’s evidence is inconsistent in two different Affidavits as to the amount owing. The difference appears to be in relation to Invoice #10074CO of $98,684.00. However, there is no invoice for this amount included in the evidence. 3. The email attached as Exhibit M to Mr. Rattai’s Affidavit indicates Man-Shield was not intending to waive any rights. [ 19 ] Mr.

Rattai attaches as Exhibit L to his Affidavit a chart summarizing the invoices Tempo issued on the Project, the amounts Man-Shield paid and the amounts outstanding. Exhibit L includes the invoices that are outstanding, both the progress claims and the change orders. The invoices separate the amounts billed for changes. Exhibit L includes documents describing the services. The documents include a breakdown of the $98,684.00. The documents include emails sending the invoices to Man-Shield.

The documents indicate that change orders for $324,936.36 were paid by Man-Shield. [ 20 ] On May 10, 2018 Man-Shield filed an Affidavit of Peter Schwind, the principal and corporate representative of Man-Shield opposing the

summary judgment application. The Affidavit was sworn after Mr. Rattia’s Affidavit. Mr. Schwind’s Affidavit is voluminous. He attaches to his Affidavit over 500 pages of documents, including numerous invoices purporting to support Man-Shield’s claims for back charges. He does not dispute that: • Tempo did the work set out in Mr.

Rattai’s Affidavit. • That the claims for change orders are for work outside the scope of the contract. • That Man-Shield instructed that the work be done. • That Man-Shield was aware that the extra work would increase the cost. • That Man-Shield acquiesced in ignoring the requirement that changes be made in writing. Accordingly, there is no evidence contradicting Mr. Rattai’s evidence. The issue is whether Mr. Rattai’s evidence is sufficient to meet Tempo’s burden and standard of proof. [ 21 ] As Weir-Jones notes, there is no symmetry of burdens in

summary judgment applications. Tempo bears the burden to prove,

on a balance of probabilities, the factual elements of its case and that there is no genuine issue for trial. Man-Shield does not need to prove the opposite to send the matter to trial. The evidentiary burden shifts to Man-Shield only if Tempo meets its burden of establishing that it is entitled to

summary judgment and that there is no genuine issue for trial. In determining whether Tempo has met its burden, Hryniak, at para. 57 observes that : “On a

summary judgment motion, the evidence need not be equivalent to that at trial but must be such that the judge is confident that she can fairly resolve the dispute”. The sufficiency of the record will depend on the issues, the source and continuity of the evidence, and other relevant considerations: Weir-Jones , para. 36 . [ 22 ] I am satisfied from Exhibit L to Mr. Rattia’s Affidavit that Tempo has met its burden to prove that the amounts it claims are owing and that, with respect to the change orders, the test set out in Impact Painting is met. Mr.

Rattai’s Affidavit is sufficient to shift the evidentiary burden to Man-Shield to persuade me that there is a genuine issue requiring a trial. Man-Shield’s evidentiary burden is a low one. Man-Shield does not have to prove that the amounts are not owing or that the Impact Painting test is not met. The evidentiary burden only requires Man-Shield to raise a genuine issue. Mr. Schwind’s Affidavit attempts to raise a genuine issue that Tempo is not entitled to its claim because Man-Shield is entitled to chargebacks or set offs.

The Affidavit does not dispute that Tempo is entitled to the amounts claimed because it did not do the work or that the Impact Painting test is not met. The Applications Judge found that Tempo met its burden. As an appeal is a hearing de novo , Man-Shield was entitled to file another Affidavit to provide some evidence raising a genuine issue. Man-Shield did not. [ 23 ] Man-Shield argues Exhibit M, an email attached to Mr. Rattai’s Affidavit, is evidence raising a genuine issue that Man-Shield waived or acquiesced in ignoring the requirement for written change orders.

I agree with Tempo that Exhibit M does not raise a genuine issue for trial. The email does not raise any concerns or issues about Tempo’s invoices or work. [ 24 ] The next issue to consider in determining whether

summary judgment is appropriate is whether Man-Shield raises a genuine issue that it is entitled to chargebacks. IV. Is Man-Shield Entitled to Chargebacks? [ 25 ] Man-Shield argues that it is entitled to chargebacks against Tempo and that these chargebacks constitute a defence. [ 26 ] Man-Shield asserts two categories of chargebacks: a. Temporary Power Chargeback for $348,705.39; and b. Other Chargebacks for $317,536.00 [ 27 ] Peter Schwind deposes in his Affidavit that a significant source of delay in the project was Tempo’s failure to supply permanent power and energize the Project on schedule.

In paragraphs 22–33 he describes that permanent power to the project was delayed because of an issue involving the transformers being designed to be installed on the concrete foundation as opposed to off the slab. There was difficulty getting approval from EPCOR and ultimately the transformers were installed off the slab. Mr. Schwind deposes that this was a significant part of the reasons for delayed delivery of permanent power. Mr.

Schwind deposes that because of Tempo’s failure to provide permanent power to the Project on schedule, Man-Shield was required to arrange for temporary power in a variety of forms, including renting generators and borrowing power from a neighbouring church. Man-Shield incurred significant additional costs to provide temporary power to the job site from March 2015–May 2016. Man-Shield identifies several invoices attached to Mr.

Schwind’s Affidavit that Man-Shield argues represents a portion of Man-Shield’s total costs for temporary power, over the period June 23, 2014–December 15, 2016 totaling $348,705.39. [ 28 ] In argument before the Applications Judge and before me, Man-Shield revised its claim for Temporary Power Charge backs to run only from mid-December 2015 as that is when the elevators were to be installed. Man-Shield argues that Tempo should have known that permanent power would be required for installation of the elevators.

Man-Shield argues that the temporary power charge from that point was $151,697.00 . [ 29 ] The other category of chargebacks totaling $317,536.00 relates to Man-Shields’ allegation that Tempo provided insufficient manpower throughout the project that negatively impacted the construction schedule, damage Tempo caused to the work of other trades, deficiencies in Tempos’ work and incomplete work by abandoning the project. Attached as Exhibit T to Mr.

Schwind’s Affidavit are a bundle of backcharges incurred between July 5, 2016–November 27, 2017 totalling $317,536.00. [ 30 ] Impact Painting sets out the legal principles applicable to chargebacks. Man-Shield has the onus of proving the following: 1. The chargeback was for an expense actually, necessarily, and reasonably incurred by Man-Shield. 2. That by the terms of the Subcontract, or some other agreement, between Man-Shield and Tempo, the chargeback was one, or was in relation to some task, for which Tempo undertook responsibility; 3.

That Man-Shield incurred the expense because Tempo defaulted on the responsibility to which the chargeback relates; and 4. That prior to incurring the chargeback, Man-Shield gave notice to Tempo of its default and a reasonable opportunity to cure it. [ 31 ] This last requirement is consistent with clause 18.1 of the Subcontract allowing Man-Shield to give written notice specifying the default and if the default continues for two workdays, Man-Shield can make good the deficiencies and deduct the cost from any payment due to Tempo. [ 32 ] The parties disagree on whether this last requirement was met.

Man-Shield argues that notice was given relying on emails and meeting minutes for the Project. Tempo disagrees arguing that the emails are not notices of default and that meeting minutes are insufficient to constitute the required notice under the Subcontract. I will address the emails first and then the meeting minutes.

Are there Emails Providing Notice of Tempo’s Default and an Opportunity to Cure it? [ 33 ] The first email is an email dated January 21, 2016, attached as Exhibit R to Mr. Schwind’s Affidavit. This email says there are delays and if the trade is not meeting

schedule Man-Shield has the right to do the work and deduct the costs from the contract so if we need additional electricians then you will be paying. [ 34 ] I agree with Tempo that this is not a Notice of Default that permits Man-Shield to do the work and deduct the costs from amounts owing to Tempo. The email does not provide Tempo with notice to cure any deficiency or an opportunity to correct it. It does not say what timeline Tempo is behind so that it has an opportunity to rectify the problem. [ 35 ] The next email is dated May 26, 2016 attached as Exhibit X to Mr. Rattai’s Affidavit.

This is an email advising Tempo that Man-Shield intended to chargeback costs related to delays in the elevator installation. Attached is an invoice for $43,659.00 Man-Shield incurred from the alleged delay for overtime to install the elevators. [ 36 ] I agree with Tempo that this is not a proper Notice of Default. The email advises of delays in installing elevators due to lack of permanent power. It does not say how Tempo is in breach of the contract.

It only states that Man-Shield was unable to proceed with installation in January as originally planned. [ 37 ] The next email is dated May 30, 2016 attached as Exhibit R to Mr. Rattai’s Affidavit. This email gives Tempo 48 hours to provide a plan to complete its work.

The email states that unless you provide a plan and maintain the plan within the next 48 hours, Man-Shield reserves the right to bring in additional forces at Tempo’s costs. [ 38 ] While Tempo acknowledges that this email is in line with a proper Notice of Default, it was insufficient to entitle Man-Shield to the chargeback because the evidence establishes that the email was adequately responded to. I agree. [ 39 ] The next email is dated September 20, 2017 and is Exhibit X to Mr. Rattai’s Affidavit.

In this email Man-Shield includes back-charges that have been occurring over the duration of the Project. [ 40 ] I agree with Tempo that this email is not a Notice of Default because it related to alleged deficiencies before the email was sent and does not provide Tempo with an opportunity to correct any alleged deficiencies. [ 41 ] The last email is dated October 15, 2015 and is attached as Exhibit R to Mr. Rattai’s Affidavit. The email states that the transformer is going to be moved back to the original and this means no power for months that will delay occupancy.

The cost for power consumption moving forward could run an additional $500k that Man-Shield is not prepared to cover as we should have permanent power by now. [ 42 ] I agree with Tempo that this is not a Notice of Default because it does not give Tempo notice of any alleged deficiency with Tempo’s work. The email does not state any deficiency with the transformer or with a date when permanent power was required by the contract. It does not state what Tempo must do to correct any deficiency or by what date. A. Do the Meeting Minutes Constitute Adequate Notice? [ 43 ] Relying on W.A.

Stephenson Construction v Metro Canada Inc ., [1987] B.C.J. No. 2075 , Man-Shield argues that site meeting minutes can constitute adequate notice. Exhibit F to Mr. Schwind’s Affidavit attaches several Owner’s Site Meeting minutes that discuss delay in providing permanent power and delay in getting EPCOR to approve the transformer on the slab. [ 44 ] Tempo argues that the Alberta Court of Appeal in ANC Developments Inc. v Dilcon Constructors Ltd , 2000 ABCA 223 refused to find that meeting minutes are sufficient to constitute required notice under the contract noting that such an

interpretation would fly in the face of both the contract and the facts. Tempo also argues that Stephenson is distinguishable because in Stephenson the court found that the meeting minutes were regarded by everyone as a method of formally communicating their concerns to the other party. [ 45 ] I agree with Tempo that meeting minutes are not sufficient to constitute the required notice under the Subcontract. Further, even if meeting minutes are a sufficient substitute for written notice, while the meeting minutes raise the issue of the delay of permanent power, they do not state specifically how Tempo is in breach of the Subcontract, what they are required to do, or when. B.

Summary of Man-Shield’s Entitlement to Chargebacks [ 46 ] If Man-Shield is entitled to chargebacks, this is a defence to Tempo’s

summary judgment application for outstanding payments. I am mindful that at this stage Man-Shield is not required to prove the chargebacks. Man-Shield is only required to raise a genuine issue for trial. [ 47 ] While the emails and meeting minutes demonstrate that the Project was delayed and that there were communications regarding the delay, the potential costs of the delay, and who will pay, I am not satisfied that any of the emails or the meeting minutes raise a genuine issue for trial as to whether Man-Shield is entitled to any chargebacks for the alleged delay in permanent power or the Other Chargebacks.

Accordingly, Man-Shields’ chargeback claims do not raise a genuine issue for trial. [ 48 ] Man-Shield argues that regardless of how these claims are characterized, there is a genuine issue raised in the evidence regarding who is responsible for the delays and what damages Man-Shield is entitled to. I will turn to that issue now. V. Is

Summary Judgment Appropriate given the

Potential for Set-Off? [ 49 ] Tempo alleges that Man-Shield is responsible for the delay. Tempo claims damages for the delay. Tempo acknowledges that its claim for delay damages must be resolved by a trial. It is not claiming delay damages in the

summary judgment application. Man- Shield alleges that Tempo caused the delay. Man-Shield has filed a counterclaim for its damages. Man-Shield argues that it is possible that at the end of the trial Tempo will face a significant judgment against it in favour of Man-Shield. Whether Man-Shield’s claims are labeled backcharges or not does not change their character as claims for damages due to delay and other allegations of breach of contract by Tempo. In these circumstances, partial

summary judgment is not appropriate. [ 50 ] I disagree that whether Man-Shield’s claims are backcharges or set off damages makes no difference. There is a difference between a true defence and a set off. Awarding

summary judgment where there is a genuine defence, may result in the moving party receiving a judgment it is not entitled to and depriving the responding party from litigating a potential meritorious defence. Where there is an alleged set off, granting

summary judgment to the moving party does not grant a judgment that the moving party is not entitled to and does not deprive the responding party with the opportunity to prove the set off at trial. The responding party will still receive a judgment at trial for the amounts it proves by way of the counterclaim, albeit later than the judgment awarded to the moving party. [ 51 ] Tempo raises two arguments in response to Man-Shield’s argument that

summary judgment is not appropriate because Man- Shield advances a significant claim for set off. The first is that there is no merit to Man-Shield’s claim for damages. The second is that if there is some merit to the set off claim, it is a procedural set off that does not prohibit me from granting

summary judgment and it is appropriate to grant

summary judgment. A. Is there Merit to Man-Shield’s Claims for Damages? [ 52 ] The first argument is that there is no evidence supporting Man-Shield’s claims for set off. Tempo argues that Man-Shield’s counterclaim alleges 2,675,000.00 in damages associated with delay. Man-Shield has not advanced any evidence to support such a claim. The only evidence Man-Shield advances is in relation to the Temporary Power Chargebacks and the Other Chargebacks. Tempo argues that the Subcontract does not specify a date for provision of permanent power and there is no evidence that Tempo is responsible for the delays.

Further, Tempo argues that Man-Shield’s invoices for its damages, attached at Exhibit G and T of Mr. Schwind’s Affidavit are nothing more than Man-Shield bundling up all of its costs for the Project and claiming them against Tempo regardless of whether the costs have anything to do with Tempo’s work or Tempo’s alleged delay.

In effect, Tempo asks me to decide that there is no merit or genuine issue to the damages Man-Shield claims in its counterclaim, including the damages Man-Shield claims as part of the Temporary Power Chargebacks and the Other Chargebacks. [ 53 ] I decline to find there is no merit to Man-Shield’s claim for damages for two reasons. [ 54 ] The first is that Tempo has not brought an application to dismiss the counterclaim. Tempo’s application is for

summary judgment for payment of invoices it claims are owing. [ 55 ] The second reason is that in exercising my discretion to determine issues summarily, I must have sufficient confidence in the state of the record. While I agree with Tempo that there are some serious questions regarding Man-Shield’s claims and invoices, the record does not give me sufficient confidence to find that there is no genuine issue that Tempo may be responsible for some delay in breach of the Subcontract and that there are no damages arising from this breach.

In cross-examination on his Affidavit, in response to a question about whether Tempo believed it had contributed to the delay on the Project, Mr. Rattai stated “To say that we did nothing wrong would be inaccurate”. Some of Man-Shield’s invoices do raise questions. One example is the full claim for providing temporary power as opposed to the difference between the cost of permanent and temporary power. There are other invoices that raise a genuine issue for damages, if Man-Shield is able to prove that Tempo is responsible for some delay. One example is the overtime hours for installation of the elevators.

Another issue is whether the Subcontract included Appendix F. The parties disagree about this. Viva voce evidence is required to resolve this. Some of Man-Shield’s invoices for damages may depend on whether Appendix F is included or not. [ 56 ] In

summary, I do not have sufficient confidence in the state of the record to exercise my discretion to summarily resolve the issue of whether Man-Shield is entitled to a set off for its alleged damages. B. Is

Summary Judgment Inappropriate Where there is a Potential Set Off Claim? [ 57 ] Relying on Bank of Nova Scotia v Brabant, [1997] AJ No 610 , Tempo argues that Man-Shield’s counterclaim for damages for delay is a procedural set off. Brabant confirms that a procedural set-off does not prevent a party from obtaining partial

summary judgment. [ 58 ] Man-Shield argues that Brabant is distinguishable because Man-Shield’s set off claim is an equitable and not a procedural set off. It arises from the same parties and the same contract. [ 59 ] After the oral hearing the parties submitted additional written submissions on the issue of the nature of Man-Shield’s claim for damages, whether Man-Shield’s claim for damages gives rise to an equitable set off and whether, it is sufficiently supported by evidence. [ 60 ] In my view, whether Man-Shield’s claims are equitable, or procedural does not bring final resolution to the issue of whether it is appropriate to grant

summary judgment. Brabant was decided before the Supreme Court called for a culture shift in Hryniak . Regardless of whether the set off is properly characterized as procedural or equitable, the principles of

summary judgment espoused in Hryniak and Weir-Jones should be considered in determining whether it is appropriate to grant

summary judgment. As stated in Weir-

Jones : “There is no policy reason to cling to the old, strict rules for

summary judgment. This can only serve to undermine the shift in culture called for by Hryniak v Mauldin ”. [ 61 ] The culture shift called for by Hryniak recognizes that the conventional resolution of litigation by a conventional trial must be adjusted in “favour of more proportionate, timely and affordable procedures”. However, procedural and substantive fairness must be considered at all stages of the process. If I find that

summary judgment is possible, but might not achieve a just result, I have a discretion to send the matter to trial. [ 62 ] I am sufficiently satisfied with the record to conclude that Tempo is entitled to the payments it claims and that Man-Shield’s claims for backcharges do not raise a genuine issue requiring a trial. I am satisfied there is no genuine defence to Tempo’s claims for payment. However, I am not able to conclude that Man-Shield’s claims for damages due to delay do not raise a genuine issue for trial.

It is possible that after a trial, Man-Shield will recover a judgment against Tempo for more than $678,261.00. This raises the issue of whether, in these circumstances, granting partial

summary judgment to Tempo for payment of amounts outstanding and sending both Tempo and Man-Shield’s claims for damages due to delay to trial achieves a just result. [ 63 ] The parties were not able to provide any cases since Hyrniak considering this issue. In my view, there is no hard and fast rule of what is just in this situation. The circumstances of each case should be considered. [ 64 ] In this case it is over six years since the Statement of Claim was issued. It is unknown when this action will get to trial.

While I am not able to conclude that there is no genuine issue for trial raised by Man-Shield’s claim for damages, I agree with Tempo that Man-Shield’s claims raise questions. As an example, the Subcontract does not set a date for delivery of permanent power. While Man- Shield is entitled to argue that there was an industry practice for delivery of permanent power, Man-Shield provides no expert evidence on industry practice. Another example is Man-Shield’s claim for damages.

I agree with Application Judge Summers that Man-Shield’s claim for damages is overstated with respect to the Temporary Power claim and, with respect to the other claims, Man-Shield’s evidence lacks details of the damages Man-Shield suffered and how they were caused by Tempo’s breach of contract. Attaching over 500 pages of invoices with little detail and without linking the invoices to Man-Shield’s damages for Tempo’s breaches of contract does not persuade me that there is a high probability that after trial Man-Shield will recover a judgment against for Tempo in excess of Tempo’s

summary judgment claim. [ 65 ] Application Judge Summers stated: “I want to make it clear that if MS had put forward evidence in response to Tempo’s application that linked MS’s damage claims to the delay it is alleging on the part of Tempo, I would have allowed the amount of that claim in so far as barring partial

summary judgement, pending the trial of that issue”. I agree. This is an application of the just result principle. Application Judge Summers Endorsement was filed April 26, 2021. In this appeal, over two years later, Man-Shield provides no further evidence linking its damage claims to Tempo’s breaches of contract. In these circumstances I conclude that it is not unjust to award Tempo partial

summary judgment for the payments outstanding before Man-Shield’s claims for damages are adjudicated. Tempo has waited for six years to be paid. To require Tempo to wait another several years based on Man-Shield’s questionable claims does not achieve a just result. VI. Conclusion [ 66 ] I am satisfied from the record that Tempo is entitled to

summary judgment for the payments outstanding totaling $678,261.00. The record raises no genuine defence to Tempo’s claim for outstanding payments. While the record raises a genuine issue that Man- Shield may be entitled to a judgment for damages it sustained because of Tempo’s breaches of contract, I am satisfied that allowing partial

summary judgment to Tempo for outstanding payments and sending both parties claim for damages to trial will achieve a just result. Accordingly, the appeal is dismissed. [ 67 ] If the parties are not able to agree on costs, they may make written submissions within 30 days of this decision. Heard on the 30 th day of June, 2023 . Dated at the City of Edmonton, Alberta this 26 th day of July, 2023. Susan L. Bercov J.C.K.B.A. Appearances: Kevin Sean Burron Burron Law for the Appellants

Jose Antonio Delgado Bishop & McKenzie LLP for the Respondents _______________________________________________________ Corrigendum of the Reasons for Decision of The Honourable Justice Susan L. Bercov _______________________________________________________ The style of cause was corrected to reflect the following: Tempo Appellant and Man-Shield Respondent was changed to read Tempo Plaintiffs (Respondents) and Man-Shield Defendants (Appellants)