1400467 Alberta Ltd. et al. v. Adderley et al., 2014 ABQB 339

• Judge: Veit, J.
• Court: Court of Queen's Bench of Alberta (Canada)
• Case Date: May 27, 2014
• Citations: 2014 ABQB 339;(2014), 590 A.R. 84 (QB)

1400467 Alta. Ltd. v. Adderley (2014), 590 A.R. 84 (QB)

MLB headnote and full text

Temp. Cite: [2014] A.R. TBEd. JN.041

1400467 Alberta Ltd., Adderley Holdings Ltd., Herlick's Welding Ltd., MacPherson Pipeline & Oilfield Consulting Inc., Lynco Construction Ltd. (plaintiffs/respondents) v. John Adderley, Colin MacPherson, Ivan Herlick, Jico Holdings Ltd., Ulster Cattle Corp., CJM Consulting Services Inc. and Clouded Moon Consulting Ltd. and Pro Canada West Energy Inc. (defendants/applicants)

(1103 12774; 2014 ABQB 339)

Indexed As: 1400467 Alberta Ltd. et al. v. Adderley et al.

Alberta Court of Queen's Bench

Judicial District of Edmonton

Veit, J.

June 9, 2014.

Summary:

The Adderley defendants, who acknowledged that the court had jurisdiction over the matters in issues, applied for a declaration that Saskatchewan, not Alberta, was the forum conveniens. They also applied for an order requiring the representative of one of the corporate plaintiffs to prepare a better affidavit of records and submit to a second discovery by way of questioning, and for a pre-trial determination of the validity of the contracts between the parties.

The Alberta Court of Queen's Bench dismissed the applications.

Conflict of Laws - Topic 1664

Actions - General - Forum conveniens - Considerations - The Adderley defendants applied for a declaration that Saskatchewan, not Alberta, was the forum conveniens - The Alberta Court of Queen's Bench dismissed the application - Where, as was the case here, a contract contained a "broad, unambiguous and unqualified" choice of Alberta law as the governing law and Alberta as the forum or jurisdiction or geographic location where contractual disputes were to be heard, the contractual terms had primordial importance in choosing the forum - Relief from contractual obligations was granted sparingly and only in exceptional situations - Exceptional circumstances included such matters as: the contractual forum's refusal to assume jurisdiction; material changes in the contractual forum's structure that justified a contracting party to conclude that they could no longer receive justice in that jurisdiction; inordinate delay in relying on the contractual forum during which delay the contracting party attorned to, and took many steps in, another jurisdiction; and, might include a situation where there were both signatories and non-signatories to a choice of forum clause amongst the defendants - Here, the only potential exceptional circumstance was the existence of non-signatory defendants - However, the non-signatory defendants were closely related to the signatory defendants - Their positions were inextricably intertwined - Requiring the plaintiff to sue those peripheral parties in Saskatchewan would multiply the number of suits, establish parallel proceedings, and create the potential for contradictory results - In all the circumstances, it was fair to require the nonsignatories to be included in the Alberta litigation - Even if non-contractual forum conveniens factors were considered, Alberta was clearly the preferable location for the hearing because the defendants had attorned to Alberta's jurisdiction; years of process had already taken place in Alberta; and, the defendants had instituted proceedings in this matter in Alberta - Proceedings that had been commenced in Saskatchewan were not parallel proceedings - There was a grave, indeed insurmountable, prejudice of statutory limitations preventing the plaintiff from commenting an action against the signatory defendants in Saskatchewan - See paragraphs 4 to 8 and 26 to 67.

Conflict of Laws - Topic 7230

Contracts - Choice of law - By parties - [See Conflict of Laws - Topic 1664 ].

Conflict of Laws - Topic 7284

Contracts - Jurisdiction - Forum conveniens - [See Conflict of Laws - Topic 1664 ].

Conflict of Laws - Topic 7286

Contracts - Jurisdiction - Choice of forum by parties - [See Conflict of Laws - Topic 1664 ].

Practice - Topic 4648

Discovery - Affidavit or list of documents - Order for further and better affidavit or list - The defendants applied for an order requiring the representative (Golosky) of a corporate plaintiff to prepare a better affidavit of records and submit to a second discovery by way of questioning - The defendants asserted that it was odd that a man in Golosky's position had produced so little - They were concerned that Golosky's lawyer might have reviewed a "mountain" of material and concluded that only a small fraction of it was material which had to be disclosed in an affidavit of record - They asserted that "we don't know what we don't know" - The Alberta Court of Queen's Bench dismissed the application - The defendants had not established a rational basis for their request - The application appeared to be the definition of a fishing expedition - See paragraphs 68 and 69.

Practice - Topic 5260

Trials - General - Trial of preliminary issues - General principles - When available or appropriate - The defendants applied for a pre-trial determination of the validity of the contracts between the parties - They asserted that, in light of the parties' failure to be ad idem, the validity of the contracts was a pure question of law which could be determined by examining the four corners of the contract and without referring to any other evidence - The Alberta Court of Queen's Bench dismissed the application - Examining a document for the purpose outlined by the defendants was merely a prelude to a finding of fact that the parties were not ad idem - No dispute as to the issues surrounding the concept of ad idem had been brought to the court's attention - It did not appear that there was a dispute on the law which the court could resolve without making any fact findings - An alleged written contract could, on its face, provide evidence that the parties were not ad idem so that the court could make a finding of fact even without a trial - However, the only finding of fact that could be made that would benefit the defendants was that the parties were not agreed on the facts and therefore a trial was necessary to determine if the parties had ever reached a consensus - If the court were to find that the parties were ad idem when they executed the contracts, that would not end the lawsuit absent a formal concession by the defendants of all the other contract issues - It made no economic sense to litigate the contract in pieces - See paragraphs 70 to 73.

Practice - Topic 5261

Trials - General - Trial of preliminary issues - Issues of law - [See Practice - Topic 5260 ].

Practice - Topic 5262

Trials - General - Trial of preliminary issues - Issue of fact - [See Practice - Topic 5260 ].

Cases Noticed:

Pompey (Z.I.) Industrie et al. v. Ecu-Line N.V. et al., [2003] 1 S.C.R. 450; 303 N.R. 201; 2003 SCC 27, appld. [para. 11].

Van Breda et al. v. Village Resorts Ltd., [2012] 1 S.C.R. 572; 429 N.R. 217; 291 O.A.C. 201; 2012 SCC 17, refd to. [para. 11].

Club Resorts Ltd. v. Van Breda - see Van Breda et al. v. Village Resorts Ltd.

Banro Corp. v. Éditions Écosociété Inc. et al., [2012] 1 S.C.R. 636; 429 N.R. 293; 291 O.A.C. 277; 2012 SCC 18, refd to. [para. 11].

Black v. Breeden et al., [2012] 1 S.C.R. 666; 429 N.R. 192; 291 O.A.C. 311; 2012 SCC 19, refd to. [para. 11].

Dyck v. Questrade Inc. (2012), 533 A.R. 99; 557 W.A.C. 99; 2012 ABCA 187, refd to. [para. 11].

Boulianne et al. v. Two Hills No. 21 (County) (1996), 207 A.R. 150 (Q.B.), refd to. [para. 11].

Taylor v. Administrator, Motor Vehicle Accident Claims Act (Alta.) et al. (2005), 385 A.R. 161; 2005 ABQB 612, refd to. [para. 11].

Boulianne et al. v. Two Hills No. 21 (County), 1998 ABCA 240, refd to. [para. 11].

Gallant v. Farries (2012), 522 A.R. 13; 544 W.A.C. 13; 2012 ABCA 98, refd to. [para. 11].

Edmonton Flying Club et al. v. Edmonton Regional Airports Authority et al. (2013), 544 A.R. 6; 567 W.A.C. 6; 2013 ABCA 91, refd to. [para. 11].

Nowicki v. Price et al. (2011), 516 A.R. 105; 2011 ABQB 133, refd to. [para. 11].

Envision Edmonton Opportunities Society et al. v. Edmonton (City) (2011), 507 A.R. 275; 2011 ABQB 29, refd to. [para. 11].

Ponich Estate, Re (2011), 511 A.R. 190; 2011 ABQB 33, refd to. [para. 11].

Momentous.ca Corp. et al. v. Canadian American Association of Professional Baseball Ltd. et al., [2012] 1 S.C.R. 359; 428 N.R. 141; 290 O.A.C. 202; 2012 SCC 9, refd to. [para. 12].

2249659 Ontario Ltd. et al. v. Sparkasse Siegen et al. (2013), 306 O.A.C. 288; 2013 ONCA 354, refd to. [para. 12].

Cincurak et al. v. Lamoureux et al. (2002), 328 A.R. 1; 2002 ABQB 777, refd to. [para. 12].

Stockman v. Hopkins (2013), 427 Sask.R. 4; 591 W.A.C. 4; 2013 SKCA 118, refd to. [para. 12].

Ermineskin Cree Nation v. Canada (1999), 251 A.R. 90; 1999 CarswellAlta 969 (Q.B.), refd to. [para. 12].

Kainth v. Capital Health Authority, 2004 ABQB 626, refd to. [para. 12].

Elder Advocates of Alberta Society et al. v. Alberta et al. (2013), 574 A.R. 89; 2013 ABQB 649, refd to. [para. 12].

Anderson, Smyth & Kelly Customs Brokers Ltd. v. World Wide Customs Brokers Ltd. et al. (1996), 184 A.R. 81; 122 W.A.C. 81; 1996 CarswellAlta 395 (C.A.), refd to. [para. 12].

Expedition Helicopters Inc. v. Honeywell Inc. (2010), 262 O.A.C. 195; 2010 ONCA 351, refd to. [para. 13].

Mobile Mini Inc. v. Centreline Equipment Rentals Ltd. (2004), 190 O.A.C. 149 (C.A.), refd to. [para. 13].

BTR Global Opportunity Trading Ltd. et al. v. RBC Dexia Investor Services Trust et al., [2011] O.A.C. Uned. 478; 2011 ONCA 518, refd to. [para. 13].

Straus v. Decaire et al., [2007] O.T.C. Uned. 760 (Sup. Ct.), affd. [2007] O.A.C. Uned. 508; 2007 ONCA 854, refd to. [para. 13].

Magill v. Expedia Canada Corp. et al., [2010] O.T.C. Uned. 5247; 2010 ONSC 5247, refd to. [para. 13].

Aldo Group Inc. v. Moneris Solutions Corp. et al. (2013), 313 O.A.C. 122; 2013 ONCA 725, refd to. [para. 13].

Donohue v. Armco Inc. et al., [2001] UKHL 64; 294 N.R. 356, refd to. [para. 13].

Amchem Products Inc. et al. v. Workers' Compensation Board (B.C.), [1993] 1 S.C.R. 897; 150 N.R. 321; 23 B.C.A.C. 1; 39 W.A.C. 1, refd to. [para. 13].

Hryniak v. Mauldin (2014), 453 N.R. 51; 314 O.A.C. 1; 2014 SCC 7, refd to. [para. 13].

Windsor v. Canadian Pacific Railway Ltd. (2014), 572 A.R. 317; 609 W.A.C. 317; 2014 ABCA 108, refd to. [para. 13].

Holly Downs Development Ltd. v. 1248508 Ontario Ltd., 2014 ONSC 1628, refd to. [para. 13].

Counsel:

Robert B. White, Q.C., and Deborah McGuire (Robert B White & Company), for the defendants/applicants;

Carmen L. Plante (Bishop & McKenzie LLP), for the plaintiffs/respondents.

These applications were heard on April 29 and May 27, 2014, by Veit, J., of the Alberta Court of Queen's Bench, Judicial District of Edmonton, who delivered the following memorandum of decision on June 9, 2014.