Soler & Palau Canada Inc. v. Meyer's Sheet Metal Ltd.,

• Judge: Hanebury
• Neutral Citation: 2012 ABQB 496
• Citation: 2012 ABQB 496,(2012), 545 A.R. 391 (QBM),545 AR 391,(2012), 545 AR 391 (QBM),545 A.R. 391
• Date: 06 June 2012
• Court: Court of Queen's Bench of Alberta (Canada)

Soler & Palau Can. v. Meyer's Sheet Metal (2012), 545 A.R. 391 (QBM)

MLB headnote and full text

Temp. Cite: [2012] A.R. TBEd. AU.019

Soler & Palau Canada Inc. (plaintiff/defendant by counterclaim) v. Meyer's Sheet Metal Ltd. (defendant/plaintiff by counterclaim)

(1101 01191; 2012 ABQB 496)

Indexed As: Soler & Palau Canada Inc. v. Meyer's Sheet Metal Ltd.

Alberta Court of Queen's Bench

Judicial District of Calgary

Hanebury, Master

July 27, 2012.

Summary:

Soler sold fans. Meyer's was one of its customers. In the summer of 2008, Meyer's got behind on the payment of Soler's invoices. In October 2008, Soler sent a letter to Meyer's wherein it offered to continue supplying fans to Meyer's on the basis that Meyer's prepay all new invoices, and provide an additional payment of 50% of the value of any new invoice which would be applied toward the outstanding debt. There was no written response to the letter. However, Meyer's subsequently placed two more orders and sent Soler cheques that included the value of the orders plus the additional 50% that had been requested. Soler received the last cheque on January 27, 2009. The business relationship of the parties then ceased. From April 2009 to June 2011, Soler sent invoices to Meyer's seeking payment of the outstanding invoices. Soler filed a statement of claim on January 26, 2011. Meyer's filed a defence and counterclaim that alleged Soler had breached an exclusive distributorship agreement. Soler applied for summary judgment, and claimed that the original limitation period of two years was extended by the payment received on January 27, 2009, or by its demand for payment in April 2009.

A Master of the Alberta Court of Queen's Bench granted summary judgment only for the balance outstanding on the oldest invoice. There were triable issues in relation to the remainder of Soler's claim. Meyers' counterclaim did not constitute a defence against summary judgment.

Limitation of Actions - Topic 2060

Actions in contract - Actions for debt - Part payments - [See Practice - Topic 5702 ].

Practice - Topic 5702

Judgments and orders - Summary judgments - Jurisdiction or when available or when appropriate - Soler sold fans to Meyer's - Meyer's got behind on the payment of Soler's invoices in the summer of 2008 - In October 2008, Soler sent a letter to Meyer's wherein it offered to continue supplying fans to Meyer's on the basis that Meyer's prepay all new invoices, and provide an additional payment of 50% of the value of any new invoice which would be applied toward the outstanding debt - There was no written response to the letter - However, Meyer's subsequently placed two more orders and sent Soler cheques that included the value of the orders plus the additional 50% that had been requested - Soler received the last cheque on January 27, 2009 - The business relationship of the parties then ceased - From April 2009 to June 2011, Soler sent invoices to Meyer's seeking payment of the outstanding invoices - Soler filed a statement of claim on January 26, 2011 - Soler applied for summary judgment, and claimed that the original limitation period of two years was extended by the payment received on January 27, 2009, or by its demand for payment in April 2009 - A Master of the Alberta Court of Queen's Bench granted summary judgment only for the balance outstanding on the oldest invoice - The evidence indicated that the extra funds had been credited toward the oldest invoice - The facts were insufficient to clearly find that the debt had been treated as a single global debt - There was a genuine issue for trial as to whether there was one claim or several claims, with the result that the last payment either restarted the limitation period only for the invoice against which it was applied or for all of the outstanding invoices - The evidence was insufficient to establish that Soler only knew that proceedings were warranted after April 2009 - This also constituted a genuine issue for trial - See paragraphs 21 to 33.

Practice - Topic 5706

Judgments and orders - Summary judgments - Counterclaim or set-off - Soler brought an action against Meyer's for unpaid invoices - Meyer's filed a defence and counterclaim that alleged Soler had breached an exclusive distributorship agreement - Soler applied for summary judgment - Meyer's argued that summary judgment should not be granted because its counterclaim was inextricably linked with Soler's claim - A Master of the Alberta Court of Queen's Bench granted summary judgment only for part of Soler's claim - The counterclaim did not constitute a defence against the summary judgment that had been granted - Meyers' pleadings alleged facts that were unsubstantiated by the evidence, and this did not create a triable issue - See paragraphs 45 to 56.

Practice - Topic 5708

Judgments and orders - Summary judgments - Bar to application - Existence of issue to be tried - [See Practice - Topic 5702 ].

Practice - Topic 5717

Judgments and orders - Summary judgments - For part of claim - [See Practice - Topic 5702 ].

Cases Noticed:

Pioneer Exploration Inc. Estate (Bankrupt) v. Euro-Am Pacific Enterprises Ltd. (2003), 339 A.R. 165; 312 W.A.C. 165; 2003 ABCA 298, appld. [para. 19].

Manufacturers Life Insurance Co. v. Executive Centre at Manulife Place Inc., [2011] A.R. Uned. 252; 2011 ABQB 189, refd to. [para. 20].

Kamloops Estates Ltd. v. Avon Holdings Ltd. et al. (2001), 162 B.C.A.C. 37; 264 W.A.C. 37; 2001 BCCA 685, refd to. [para. 25].

Chiang v. Hefzi, [2006] B.C.T.C. Uned. 12; 2006 BCSC 32, refd to. [para. 26].

Sawchuk v. Bourne, [2004] A.R. Uned. 404; 2004 ABQB 344, refd to. [para. 27].

Boyd et al. v. Cook (2012), 540 A.R. 46; 2012 ABQB 284, refd to. [para. 40].

National Motor Coach Systems Ltd. et al. v. Sunshine Coach Ltd., [2006] A.R. Uned. 402; 2006 ABQB 466 (Master), refd to. [para. 41].

Penhold (Town) v. Boulder Contracting Ltd. (2009), 492 A.R. 132; 2009 ABQB 550 (Master), refd to. [para. 41].

Owners-Condominium Plan No. 9421549 v. Main Street Developments Ltd. et al., [2005] A.R. Uned. 266; 2005 ABQB 218, folld. [para. 42].

Balm v. Aikins, MacAulay and Thorvaldson LLP et al. (2012), 522 A.R. 402; 544 W.A.C. 402; 2012 ABCA 96, refd to. [para. 44].

McBride v. Kolenko (1990), 115 A.R. 348 (Q.B.), refd to. [para. 48].

Canadian Imperial Bank of Commerce v. Tucker Industries Inc. et al. (1983), 149 D.L.R.(3d) 172 (B.C.C.A.), refd to. [para. 48].

Coba Industries Ltd. v. Millie's Holdings (Canada) Ltd. and Tsang, [1985] 6 W.W.R. 14 (B.C.C.A.), refd to. [para. 49].

Telford v. Holt, [1987] 2 S.C.R. 193; 78 N.R. 321; 81 A.R. 385, refd to. [para. 49].

Tucson Properties Ltd. v. Sentry Resources Ltd. and Fournel (1982), 39 A.R. 341; 22 Alta. L.R.(2d) 44 (Q.B. Master), folld. [para. 53].

Hall et al. v. HSBC Capital (Canada) Inc. et al., [2012] A.R. Uned. 158; 2012 ABQB 114, refd to. [para. 54].

Lameman et al. v. Canada (Attorney General) et al. (2008), 372 N.R. 239; 429 A.R. 26; 421 W.A.C. 26; 2008 SCC 14, refd to. [para. 54].

Reed (Lorne H.) & Associates Ltd. v. Promax Energy Inc. et al., [2003] A.R. Uned. 372; 2003 ABQB 121, refd to. [para. 54].

Jager Industries Inc. v. Canadian Occidental Petroleum Ltd. et al. (2000), 273 A.R. 1; 2000 ABQB 592, refd to. [para. 54].

Counsel:

Courtney Kachur (Blake, Cassels & Graydon LLP), for the plaintiff/defendant by counterclaim);

Brian K. Dell (Wilson Laycraft LLP), for the defendant/plaintiff by counterclaim.

This application was heard on June 6, 2012, by Hanebury, Master, of the Alberta Court of Queen's Bench, Judicial District of Calgary, who delivered the following judgment on July 27, 2012.