Attila Dogan Construction and Installation Co. v. AMEC Americas Ltd. et al.,

• Judge: Wittmann
• Neutral Citation: 2015 ABQB 120
• Citation: 2015 ABQB 120,(2015), 605 A.R. 303 (QB),605 AR 303,(2015), 605 AR 303 (QB),605 A.R. 303
• Date: 18 February 2015
• Court: Court of Queen's Bench of Alberta (Canada)

Attila Dogan Constr. v. AMEC Am. Ltd. (2015), 605 A.R. 303 (QB)

MLB headnote and full text

Temp. Cite: [2015] A.R. TBEd. MR.090

Attila Dogan Construction and Installation Co. Inc. (applicant) v. AMEC Americas Limited, formerly AMEC E&C Services Limited and AGRA Monenco Inc. (respondent)

(0701 09436; 2015 ABQB 120)

Indexed As: Attila Dogan Construction and Installation Co. v. AMEC Americas Ltd. et al.

Alberta Court of Queen's Bench

Judicial District of Calgary

Wittmann, C.J.Q.B.

February 18, 2015.

Summary:

Attila Dogan Construction and Installation Co. (the plaintiff) was a company incorporated in Turkey and carried on business principally in the Middle East. The plaintiff had no offices in Alberta. AMEC Americas Ltd. (the defendant) was registered as an extra-provincial corporation in Alberta. The plaintiff and defendant participated in a joint venture to design and build a magnesium oxide plant in the Kingdom of Jordan for Jordan Magnesia Co. (JorMag). The project was plagued by problems. Arbitration proceedings ensued involving the joint venture and JorMag and ultimately a settlement was reached. The plaintiff then sued the defendant for damages arising out of the failure of the project. The defendant counterclaimed for 50% of the litigation costs of the JorMag proceedings pursuant to a claims agreement between the plaintiff and defendant. Three applications were filed. The defendant applied for summary dismissal of the plaintiff's claim based on allegations of delay in the defendant's performance of the joint venture. The defendant applied for summary judgment on its counterclaim against the plaintiff for litigation expenses. The plaintiff applied for an adjournment of both the summary dismissal and summary judgment applications.

The Alberta Court of Queen's Bench refused the plaintiff's request to adjourn the applications. The court granted the defendant summary judgment on part of its counterclaim and granted the defendant's application for summary dismissal of the plaintiffs' claim against the defendant based on delay. (A number of the plaintiff's claims were not dismissed).

Evidence - Topic 1656

Hearsay rule - Hearsay rule exceptions and exclusions - Affidavits - General - [See all Practice - Topic 3628 ].

Practice - Topic 3073.1

Applications and motions - Applications - Adjournments - The plaintiff sued the defendant over a failed joint venture for the design and construction of a magnesium oxide plant - The defendant counterclaimed for litigation costs incurred under a claims agreement - The defendant applied for summary dismissal of the plaintiff's claim and for summary judgment on its counterclaim - The plaintiff applied for an adjournment, arguing that its newly retained counsel lacked to the necessary materials and sufficient time to prepare adequate responses to the applications - The Alberta Court of Queen's Bench considered the history of the proceedings, prejudice to the parties, the explanation provided by the plaintiff for the adjournment, the likelihood the adjournment would achieve its stated aims, and whether an adjournment was necessary to make a just determination on the merits of the summary applications - In the result, the court dismissed the adjournment application - See paragraphs 5 to 47.

Practice - Topic 3603

Evidence - Affidavits - General - Contents of (incl. attachments) - [See all Practice - Topic 3628 ].

Practice - Topic 3628

Evidence - Affidavits - Making of - Affidavit of information and belief (incl. requirement of personal knowledge) - General - Rule 13.18(1) of the Alberta Rules of Court provided that an affidavit could be sworn on the basis of "personal knowledge" - The Alberta Court of Queen's Bench stated that the "personal knowledge" requirement heightened the former "knowledge" standard under old rule 305(1) - The personal knowledge requirement ensured that the opposing party could cross-examine the affiant on his or her knowledge, testing the soundness of the evidentiary foundation for the application - The court stated that older cases considering rule 305(1) were instructive so long as they were viewed in light of that higher threshold - Thus, rule 13.18 required that the affiant know of a circumstance or fact through firsthand observation or experience, rather than learning of such circumstance or fact from some other person or source - In effect, the affiant could not rely on hearsay - See paragraphs 55 to 63.

Practice - Topic 3628

Evidence - Affidavits - Making of - Affidavit of information and belief (incl. requirement of personal knowledge) - General - Rule 13.18(1) of the Alberta Rules of Court (ARC) provided that an affidavit could be sworn on the basis of "personal knowledge" - The Alberta Court of Queen's Bench discussed "personal knowledge" in the context of a corporate representative - The court stated that an affiant had to have "personal knowledge" as the basis of a sworn statement submitted in support of a final application - "A corporate representative may, in familiarizing his or herself with corporate records, establish 'personal knowledge' within the meaning of ARC 13.18(3). The representative may not, however, rely on otherwise inadmissible hearsay. Where the corporate representative lacks personal knowledge, he or she may rely on direct evidence exhibited to the affidavit or otherwise before the Court. Such direct evidence must be admissible in accordance with the common law rules of evidence, and thus hearsay must either fall under a common law or principled exception, or must be relied on for non-hearsay purposes" - See paragraphs 64 to 88.

Practice - Topic 3628

Evidence - Affidavits - Making of - Affidavit of information and belief (incl. requirement of personal knowledge) - General - The plaintiff sued the defendant, claiming that delays by the defendant in the performance of a joint venture led to the failure of the project - The defendant counterclaimed for litigation costs allegedly incurred under a claims agreement - The defendant applied for summary judgment on its counterclaim - The plaintiff argued that an affidavit filed by the defendant in support of its summary judgment application was inadmissible because the affiant (a director of the defendant corporation) lacked personal knowledge of some of the documents attached to the affidavit as required by rule 13.18 of the Alberta Rules of Court - The Alberta Court of Queen's Bench held that a number of the exhibits were inadmissible for the truth of their contents - They did not fall within an exception to the hearsay rule, nor had the defendant established that the director had personal knowledge of the contents - See paragraphs 53 and 89 to 99.

Practice - Topic 3679

Evidence - Affidavits - Use of - Affidavits - Evidence - Admissibility - [See all Practice - Topic 3628 ].

Practice - Topic 5702

Judgments and orders - Summary judgments - Jurisdiction or when available or when appropriate - The Alberta Court of Queen's Bench reviewed the principles applicable on a summary judgment application (Alberta Rules of Court, rule 7.3) - The court noted the "cultural shift" to broaden the application of summary proceedings in Hryniak v. Mauldin (SCC 2014) and Windsor v. Canadian Pacific (2014 ABCA) - The court stated, inter alia, that "... the principle of proportionality and what has been described as the less stringent test for summary judgment in Alberta does not affect the evidentiary requirements for such applications ... affidavit evidence sworn in support of summary judgment must comply with the provisions of the ARC [Alberta Rules of Court] and these are unaffected by Hryniak and Windsor. Furthermore, a self-serving affidavit in and of itself is not sufficient to create a triable issue in the absence of detailed facts and supporting evidence ... Finally, the principle of proportionality will require that the procedure used to adjudicate the dispute should fit the nature of the claim, but proportionality has more than one aspect. The magnitude of the claim in terms of monetary value may have some place in this analysis, but the nature of the claim will as well ..." - See paragraphs 58 to 52.

Practice - Topic 5702

Judgments and orders - Summary judgments - Jurisdiction or when available or when appropriate - The plaintiff and defendant participated in a joint venture to design and build a magnesium oxide plant in the Kingdom of Jordan for Jordan Magnesia Co. (JorMag) - The project was plagued by problems - Arbitration proceedings ensued involving the joint venture and JorMag and ultimately a settlement was reached - The plaintiff then sued the defendant for damages arising out of the failure of the project - The defendant counterclaimed for 50% of the costs of pursuing the JorMag litigation pursuant to a claims agreement between the plaintiff and defendant - The defendant sought summary judgment on the counterclaim - The Alberta Court of Queen's Bench granted summary judgment with respect to a portion of the costs claimed - See paragraphs 100 to 130.

Practice - Topic 5702

Judgments and orders - Summary judgments - Jurisdiction or when available or when appropriate - The plaintiff sued the defendant for damages arising out of a failed joint venture - The defendant counterclaimed under a claims agreement for 50% of the costs of pursuing third party litigation on behalf of the plaintiff and defendant - The defendant sought summary judgment on the counterclaim - The plaintiff argued that the potential for an equitable set-off in this case operated as a defence to the defendant's counterclaim - The Alberta Court of Queen's Bench rejected the plaintiff's argument - There was nothing in the jurisprudence cited by the plaintiff to suggest that the potential for an equitable set-off was sufficient to operate as a defence such that summary judgment should be refused entirely - The potential for set-off was no reason, in and of itself, to dismiss the defendant's application for summary judgment - See paragraph 107.

Practice - Topic 5710

Judgments and orders - Summary judgments - Evidence - [See third Practice - Topic 3628 ].

Cases Noticed:

Lameman et al. v. Alberta et al., [2011] A.R. Uned. 79; 2011 ABQB 40, refd to. [para. 23].

Dreco Energy Services Ltd. et al. v. Wenzel Downhole Tools Ltd., [2010] A.R. Uned. 303; 2010 ABCA 257, refd to. [para. 27].

Wenzel Downhole Tools Ltd. v. National Oilwell Varco Inc. - see Dreco Energy Services Ltd. et al. v. Wenzel Downhole Tools Ltd.

R. v. Barrette, [1977] 2 S.C.R. 121; 10 N.R. 321, refd to. [para. 28].

Hryniak v. Mauldin, [2014] 1 S.C.R. 87; 453 N.R. 51; 314 O.A.C. 1, refd to. [para. 49].

Windsor v. Canadian Pacific Railway Ltd. (2014), 572 A.R. 317; 609 W.A.C. 317; 2014 ABCA 108, refd to. [para. 49].

Access Mortgage Corp. (2004) Ltd. v. Arres Capital Inc. (2014), 584 A.R. 68; 623 W.A.C. 68; 2014 ABCA 280, refd to. [para. 51].

Beier et al. v. Proper Cat Construction Ltd. et al. (2013), 564 A.R. 357; 2013 ABQB 351, refd to. [para. 51].

Guarantee Co. of North America v. Gordon Capital Corp., [1999] 3 S.C.R. 423; 247 N.R. 97; 126 O.A.C. 1, refd to. [para. 52].

Tottrup et al. v. Clearwater No. 99 (Municipal District) (2006), 401 A.R. 88; 391 W.A.C. 88; 2006 ABCA 380, refd to. [para. 52].

Murphy v. Cahill et al., [2012] A.R. Uned. 843; 2012 ABQB 793, refd to. [para. 59].

Alberta Teachers' Association v. Information and Privacy Commissioner (Alta.) (2011), 509 A.R. 92; 2011 ABQB 19, refd to. [para. 61].

Renfrew Insurance Ltd. v. Donald et al. (2012), 538 A.R. 324; 2012 ABQB 228, refd to. [para. 62].

Alberta (Treasury Branches) v. Leahy et al. (1999), 234 A.R. 201; 1999 ABQB 185, refd to. [para. 65].

Advance Rumely Thresher Co. v. LaClair, [1917] 1 W.W.R. 875 (Alta. C.A.), refd to. [para. 67].

Alberta v. Wenley Enterprises & Sales Ltd. et al. (1985), 66 A.R. 232 (Q.B. Master), refd to. [para. 67].

Principal Savings & Trust Co. v. Bowlen (1991), 1 C.P.C.(3d) 206 (Alta. Q.B. Master), refd to. [para. 67].

R. v. Monkhouse (1987), 83 A.R. 62; 1987 ABCA 227, refd to. [para. 70].

Scotia Mortgage Corp. v. Aab, [2012] A.R. Uned. 470; 2012 ABQB 464 (Master), refd to. [para. 74].

Kin Franchising Ltd. v. Donco Ltd. (1993), 7 Alta. L.R.(3d) 313 (C.A.), refd to. [para. 78].

Indian Residential Schools, Re, [2002] A.R. Uned. 563; 9 Alta. L.R.(4th) 84 (Q.B.), refd to. [para. 78].

R. v. Schwartz, [1988] 2 S.C.R. 443; 88 N.R. 90; 56 Man.R.(2d) 92, refd to. [para. 80].

Harco Holdings 2000 Inc. v. M.B. (2010), 500 A.R. 258; 2010 ABQB 442 (Master), refd to. [para. 81].

Horrey v. Litterst et al. (1995), 178 A.R. 216; 110 W.A.C. 216; 37 Alta. L.R.(3d) 74 (C.A.), refd to. [para. 81].

R. v. Khan, [1990] 2 S.C.R. 531; 113 N.R. 53; 41 O.A.C. 353, refd to. [para. 82].

R. v. Smith (A.L.), [1992] 2 S.C.R. 915; 139 N.R. 323; 55 O.A.C. 321, refd to. [para. 82].

Ares v. Venner, [1970] S.C.R. 608, refd to. [para. 83].

Setak Computer Services Corp. v. Burroughs Business Machines Ltd. (1977), 15 O.R.(2d) 750 (Sup. Ct.), refd to. [para. 91].

Five Oaks Inc. v. 784566 Alberta Ltd. et al., [2000] A.R. Uned. 119; 2000 ABQB 152, refd to. [para. 107].

Alberta Medical Association v. Alberta et al. (2012), 537 A.R. 75; 2012 ABQB 113, affd. (2012), 542 A.R. 27; 566 W.A.C. 27; 2012 ABCA 391, refd to. [para. 120].

Calgary (City) v. International Association of Fire Fighters, Local 255 (2006), 398 A.R. 26; 2006 ABQB 133, affd. (2008), 429 A.R. 235; 421 W.A.C. 235; 2008 ABCA 77, refd to. [para. 120].

Creston Moly Corp. v. Sattva Capital Corp. (2014), 461 N.R. 335; 358 B.C.A.C. 1; 614 W.A.C. 1; 2014 SCC 53, refd to. [para. 120].

Canadian Natural Resources Ltd. v. ShawCor Ltd. et al. (2014), 580 A.R. 265; 620 W.A.C. 265; 376 D.L.R.(4th) 289; 2014 ABCA 289, refd to. [para. 128].

Radhakrishnan v. University of Calgary Faculty Association et al. (2002), 312 A.R. 143; 281 W.A.C. 143; 2002 ABCA 182, refd to. [para. 146].

Statutes Noticed:

Rules of Court (Alta.), rule 5.15 [para. 56]; rule 6.11 [para. 53]; rule 7.3 [para. 51]; rule 13.18 [para. 55].

Authors and Works Noticed:

Lederman, Sidney N., Bryant, Alan W., and Fuerst, Michelle K., Sopinka, Lederman & Bryant: The Law of Evidence in Canada (4th Ed. 2014), p. 6.27 [para. 58].

Waddams, Stephen M., The Law of Contracts (5th Ed. 2005), p. 417 [para. 121].

Counsel:

Matthew Diskin, Salim Dharssi and Zarya Cynader, for Attila Dogan Construction and Installation Co. Inc.;

David Tupper and Chris Petrucci, for AMEC Americas Limited, formerly AMEC E&C Services Limited and Agra Monenco Inc.

This application was heard on September 10 and 11, 2014, before Wittmann, C.J.Q.B., of the Alberta Court of Queen's Bench, Judicial District of Calgary, who delivered the following reasons for judgment on February 18, 2015.