Alberta v. Fjeld, 2008 ABQB 558

• Judge: Yamauchi, J.
• Court: Court of Queen's Bench of Alberta (Canada)
• Case Date: August 22, 2008
• Citations: 2008 ABQB 558;(2008), 459 A.R. 272 (QB)

Alta. v. Fjeld (2008), 459 A.R. 272 (QB)

MLB headnote and full text

Temp. Cite: [2008] A.R. TBEd. SE.082

Her Majesty the Queen in Right of Alberta (plaintiff/respondent) v. Rhonda Fjeld (defendant/appellant)

(0503 02287; 2008 ABQB 558)

Indexed As: Alberta v. Fjeld

Alberta Court of Queen's Bench

Judicial District of Edmonton

Yamauchi, J.

August 22, 2008.

Summary:

Alberta issued a Commercial Timber Permit to Fjeld. According to the terms of the Permit, Fjeld had to pay the outstanding timber dues to Alberta in accordance with the Timber Management Regulations. Alberta obtained a default judgment against Fjeld respecting nonpayment of the timber dues. Fjeld applied to set aside the default judgment.

A Master of the Alberta Court of Queen's Bench, in a decision not reported in this series of reports, dismissed the application on the grounds that Fjeld did not have an arguable defence and there was undue delay in bringing the application. Fjeld appealed.

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

Courts - Topic 1127

Masters - Appeals from - Standard of review - The appellant appealed a Master's order in which he denied the appellant's application to set aside a default judgment on the grounds that the appellant did not have an arguable defence and there was undue delay in bringing the application - The Alberta Court of Queen's Bench discussed the test to be applied on an appeal from a Master's ruling - The court applied a correctness standard on the appeal - See paragraphs 14 and 15.

Limitation of Actions - Topic 15

General principles - Discoverability rule - Application of - Alberta issued a Commercial Timber Permit to Fjeld - According to its terms, Fjeld had to pay the outstanding timber dues to Alberta in accordance with the Timber Management Regulations - Alberta obtained a default judgment against Fjeld respecting nonpayment of the timber dues - Fjeld argued that the action was statute barred by s. 3(1) of the Limitations Act where Alberta cancelled the Permit on or about August 28, 2000, and notified Fjeld in a letter dated September 18, 2000 that: (a) all forest products and chattels were to be removed from the permit lands within 30 days; (b) holding and forest charges had been adjusted to the date of cancellation; and (c) Fjeld was to be advised further of the finalization of the account - The Alberta Court of Queen's Bench disagreed - Fjeld never filed a return as required, so Alberta had no way of knowing if the timber had been harvested and if so how much was owed - Alberta requested the timber return and dues from the date of the permit's termination - It sent Fjeld a demand letter on August 26th, 2003, to which Fjeld did not respond, so it sent an invoice on February 27, 2004 which it had calculated from April 2001 - It used that date as the time of the audit, but did not know exactly what was owing until it did its calculations based on the "full amount of the timber volume estimated prior to harvest." - It was not unreasonable for a creditor to give a debtor time within which to pay amounts owing - In fact, the law required it - One could even argue that Alberta was magnanimous in giving Fjeld so much time within which to file the returns and submit the amounts owed - As Fjeld never reported the timber harvest, Alberta had no choice but to assess the amount owing by using the full amount of timber volume as expressed on the Permit - Realizing that Fjeld was not cooperating, it sent the August 26th, 2003 letter and filed its statement of claim on February 4, 2005 - Since Alberta filed its claim within two years of the assessment, the claim was not statute barred - See paragraphs 19 to 25.

Limitation of Actions - Topic 2050

Actions in contract - Actions for debt - General - [See Limitation of Actions - Topic 15 ].

Limitation of Actions - Topic 2052

Actions in contract - Actions for debt - When time begins to run - [See Limitation of Actions - Topic 15 ].

Limitation of Actions - Topic 9305

Postponement or suspension of statute - General - Discoverability rule - [See Limitation of Actions - Topic 15 ].

Practice - Topic 6199

Judgments and orders - Setting aside default judgments (incl. noting in default) - Delay in applying - Alberta issued a Commercial Timber Permit to Fjeld - According to the terms of the Permit, Fjeld had to pay the outstanding timber dues to Alberta in accordance with the Timber Management Regulations - Alberta obtained a default judgment against Fjeld respecting nonpayment of the timber dues - Fjeld applied to set aside the default judgment - A Master dismissed the application on the grounds that Fjeld did not have an arguable defence and there was undue delay in bringing the application - Fjeld appealed - The Alberta Court of Queen's Bench dismissed the appeal - The court held, inter alia, that Fjeld filed a statement of defence but failed to serve it as required and as stated on the back of the statement of claim - She also delayed in obtaining counsel - Further, the history of the matter showed intentional and wilful delay on her part - From the beginning, she tried to avoid paying the outstanding timber dues - See paragraphs 26 to 32.

Practice - Topic 6201

Judgments and orders - Setting aside default judgments (incl. noting in default) - Requirement of reasonable excuse for default - [See Practice - Topic 6199 ].

Cases Noticed:

Armstrong v. Esso Resources Canada Ltd. (1992), 10 C.P.C.(3d) 343 (Alta. C.A.), refd to. [para. 14].

Ross v. Whissell Estate (Bankrupt) (1999), 237 A.R. 344; 197 W.A.C. 344; 1999 ABCA 227, refd to. [para. 7].

Ross v. McRoberts - see Ross v. Whissell Estate (Bankrupt).

Hongkong Bank of Canada v. Krywolt, [2002] A.R. Uned. 408; 2002 CarswellAlta 920 (Q.B.), refd to. [para. 14].

Dickey et al. v. Pep Homes Ltd. et al. (2006), 401 A.R. 149; 391 W.A.C. 149; 2006 ABCA 402, folld. [para. 15].

Taylor v. Workers' Compensation Board (Alta.), [2005] A.J. No. 968 (Q.B.), refd to. [para. 15].

Graylake Holsteins Ltd. v. Kzam Farms Ltd. et al., [2004] A.R. Uned. 715; 2004 ABQB 828, appld. [para. 16].

Central Trust Co. v. Rafuse and Cordon, [1986] 2 S.C.R. 147; 69 N R. 321; 75 N.S.R.(2d) 109; 186 A.P.R. 109, refd to. [para. 21].

De Shazo v. Nations Energy Co. et al. (2005), 367 A.R. 267; 346 W.A.C. 267; 2005 ABCA 241, refd to. [para. 21].

Peixeiro v. Haberman, [1997] 3 S.C.R. 549; 217 N.R. 371; 103 O.A.C. 161; 151 D.L.R.(4th) 429, refd to. [para. 21].

Goulet v. da Silva et al. (2002), 313 A.R. 32; 2002 ABQB 369, refd to. [para. 29].

Hyde Estate v. Foan (1991), 5 B.C.A.C. 43; 11 W.A.C. 43; 1991 CarswellBC 768 (C.A.), appld. [para. 31].

Statutes Noticed:

Limitations Act, R.S.A. 2000, c. L-12, sect. 3(1) [para. 20].

Counsel:

Allyson F. Jeffs (Ackroyd LLP), for the defendant/appellant;

Glenn Epp (Alberta Justice, Civil Litigation Legal Services), for the plaintiff/respondent.

This appeal was heard by Yamauchi, J., of the Alberta Court of Queen's Bench, Judicial District of Edmonton, who rendered the following oral decision on August 22, 2008, which was released in writing on September 16, 2008.