Elbow River Marketing Limited Partnership v. Canada Clean Fuels Inc. et al., (2011) 511 A.R. 356 (QB)

• Judge: Tilleman, J.
• Court: Court of Queen's Bench of Alberta (Canada)
• Case Date: March 30, 2011
• Citations: (2011), 511 A.R. 356 (QB);2011 ABQB 321

Elbow River Marketing v. Can. Clean Fuels (2011), 511 A.R. 356 (QB)

MLB headnote and full text

Temp. Cite: [2011] A.R. TBEd. MY.105

Elbow River Marketing Limited Partnership (appellant/respondent by counterclaim) v. Canada Clean Fuels Inc. and CCF International Corp. (respondents/appellants by counterclaim)

(0801 04501; 2011 ABQB 321)

Indexed As: Elbow River Marketing Limited Partnership v. Canada Clean Fuels Inc. et al.

Alberta Court of Queen's Bench

Judicial District of Calgary

Tilleman, J.

May 10, 2011.

Summary:

Elbow River Marketing Limited Partnership brokered fuels. It formed an agreement with CCF International Corp. (allegedly the wrong company) to deliver diesel fuel. Elbow River thought it was dealing with Canada Clean Fuels Inc. The companies used the same staff, same office and office managers; and had the same principal and president; same shareholders; and same website. Elbow River brought an action against both companies. The companies applied for summary judgment to dismiss the action.

A Master of the Alberta Court of Queen's Bench granted summary judgment dismissing the action against Canada Clean. Elbow River appealed. The issues involved the interpretation of new rule 6.14, and several issues of law, including: (a) partnership (b) agency, and (c) piercing the corporate veil.

The Alberta Court of Queen's Bench allowed the appeal. The question of a partnership between the companies was a genuine issue for trial. In light of that decision, the court did not address agency and the piercing of the corporate veil, and refrained from deciding Elbow River's application to amend the pleadings.

Courts - Topic 8350

Provincial courts - Alberta - Court of Queen's Bench - Jurisdiction - Appeals from Master - The plaintiff appealed from the decision of a Master granting summary judgment - The standard of review was set out in rule 6.14 of the Rules of Court (Alta.), 2010, namely, "overriding and palpable error" with respect to factual determinations and "correctness" with respect to questions of law - The plaintiff sought to introduce new evidence in the form of two affidavits and asserted that the test for admissibility of the new evidence under rule 6.14(3) was that "... the new evidence is significant enough that it could have affected the Master's decision" - The Alberta Court of Queen's Bench stated that "[f]or the new evidence to be 'significant', in my opinion, it would have to be prominent or noteworthy enough that it would have influenced or affected the Master's decision" - Neither of the two affidavits met that test - The evidence therein was not significant or new - Much of what the affidavits contained repeated evidence, exhibits, and positions already known - See paragraphs 5 to 9.

Partnership - Topic 10

General - Partnership - What constitutes - A Master granted summary judgment to the defendant company "Canada Clean Fuels Inc." - The action stemmed from confusion on the plaintiff's part between Canada Clean and its sister corporation, the similarly-named defendant company "CCF International Corp." - On appeal, the plaintiff argued that the Master erred when he found the defendants were not partners - It argued that a partnership was objectively defined and evaluated as two parties carrying on business with a view to dividing the profits - The Alberta Court of Queen's Bench held that the plaintiff's position accorded with the Partnership Act and also incorporated the common law - The Master relied too heavily on the absence of a formal partnership agreement and on the subjective view of Canada Clean's principal - The statutory test for partnership was found in s. 4 of the Partnership Act - The determination of partnership was both a matter of fact and law - The evidence indicated the question of a partnership between the defendants was a genuine issue for trial - See paragraphs 32 to 38.

Partnership - Topic 101

Tests of existence - General - [See Partnership - Topic 10 ].

Practice - Topic 9031

Appeals - Evidence on appeal - Admission of "new evidence" or "fresh evidence" - [See Courts - Topic 8350 ].

Cases Noticed:

Lee v. Lepage et al., [2010] A.R. Uned. 914; 2010 ABQB 829, refd to. [para. 5].

Heritage Station Inc. v. Professional Stucco Inc., [2011] A.R. Uned. 63; 2011 ABQB 18, refd to. [para. 5].

Ma v. Quinn et al., [2011] A.R. Uned. 325; 2011 ABQB 103, refd to. [para. 5].

Royal Bank of Canada v. Place (2010), 504 A.R. 230; 2010 ABQB 733, refd to. [para. 6].

Salomon v. Salomon (A.) and Co., [1897] A.C. 22 (H.L.), refd to. [para. 10].

Continental Bank Leasing Corp. v. Minister of National Revenue, [1998] 2 S.C.R. 298; 229 N.R. 58, refd to. [para. 15].

Backman v. Minister of National Revenue, [2001] 1 S.C.R. 367; 266 N.R. 246; 2001 SCC 10, refd to. [paras. 15, 36].

Doiron v. Manufacturers Life Insurance Co. et al. (2003), 339 A.R. 371; 312 W.A.C. 371; 2003 ABCA 336, refd to. [para. 20].

Tirecraft Group Inc. v. High Park Holdings ULC et al. (2010), 511 A.R. 17; 2010 ABQB 653, consd. [para. 22].

Casden v. Cooper Enterprises Ltd. et al. (1990), 34 F.T.R. 241(T.D.), affd. (1993), 151 N.R. 199 (F.C.A.), consd. [para. 22].

Transamerica Life Insurance Co. of Canada v. Canada Life Assurance Co. et al. (1996), 2 O.T.C. 146; 28 O.R.(3d) 423 (Gen. Div.), consd. [para. 22].

Sun Sudan Oil Co. et al. v. Methanex Corp. et al., [1993] 2 W.W.R. 154; 134 A.R. 1 (Q.B.), refd to. [para. 27].

Lameman et al. v. Canada (Attorney General) et al., [2008] 1 S.C.R. 372; 372 N.R. 239; 429 A.R. 26; 421 W.A.C. 26; 2008 SCC 14, refd to. [para. 29].

Poulos v. Caravelle Homes Ltd. et al., [1995] 9 W.W.R. 262; 172 A.R. 211; 32 Alta. L.R.(3d) 76 (Q.B.), refd to. [para. 32].

Partners in Psychiatry v. Canadian Psychiatric Association, [2011] O.A.C. Uned. 81; 2011 ONCA 109, refd to. [para. 35].

Board of Education of Wild Rose School Division No. 66 v. Pratch (Bert) Construction Co. et al. (1998), 238 A.R. 339; 1998 ABQB 831, refd to. [para. 41].

Statutes Noticed:

Partnership Act, R.S.A. 2000, c. P-3, sect. 1(g) [para. 16]; sect. 4 [para. 34]; sect. 22(1) [para. 33].

Rules of Court (Alta.), 2010, rule 6.14 [para. 4]; rule 6.14(3) [para. 8].

Authors and Works Noticed:

Fridman, Gerald Henry Louis, The Law of Agency (7th Ed. 1996), pp. 114 to 118 [para. 19].

Counsel:

Norm Machida and Michael Vogel, for the appellant;

Clinton Ford, for the respondents.

This appeal was heard on March 30, 2011, before Tilleman, J., of the Alberta Court of Queen's Bench, Judicial District of Calgary, who delivered the following Memorandum of Decision, dated May 10, 2011.