Syncrude Canada Ltd. v. Highland Consulting Group Inc. et al., (2013) 571 A.R. 338 (QB)

• Judge: Manderscheid, J.
• Court: Court of Queen's Bench of Alberta (Canada)
• Case Date: August 07, 2013
• Citations: (2013), 571 A.R. 338 (QB);2013 ABQB 594

Syncrude Can. Ltd. v. Highland Consulting (2013), 571 A.R. 338 (QB)

MLB headnote and full text

Temp. Cite: [2013] A.R. TBEd. OC.075

Syncrude Canada Ltd. (plaintiff) v. The Highland Consulting Group Inc., The Highland Group International GmbH, and High Energy Consultants, Inc. (defendants)

(1103 11934; 2013 ABQB 594)

Indexed As: Syncrude Canada Ltd. v. Highland Consulting Group Inc. et al.

Alberta Court of Queen's Bench

Judicial District of Edmonton

Manderscheid, J.

October 11, 2013.

Summary:

The applicants, two American (Maryland) corporations and a Swiss corporation, applied to set aside default judgment entered against them by Syncrude Canada Ltd. and to be allowed to file a statement of defence.

The Alberta Court of Queen's Bench allowed the application.

Conflict of Laws - Topic 7285

Contracts - Jurisdiction - Real and substantial connection - [See Practice - Topic 2566 ].

Estoppel - Topic 379

Estoppel by record (res judicata) - Res judicata as a bar to subsequent proceedings - Cause of action - On October 18, 2011, Syncrude Canada Ltd. entered default judgment against the applicants (two American (Maryland) corporations and a Swiss corporation) in an action commenced by statement of claim on July 26, 2011 - The applicants had attempted to resist enforcement of that judgment in Maryland, but had failed (order of Bennett, J.) - On February 15, 2013, the applicants applied to set aside the default judgment in Alberta - Syncrude argued that the matter was res judicata because cause of action estoppel applied - The Alberta Court of Queen's Bench rejected the argument - The matter before Judge Bennett only concerned recognition of the Alberta Judgment under Maryland's Uniform Foreign Money Judgment Recognition Act - While the proceedings in Maryland took the form of summary judgment applications, Judge Bennett's reasons made clear that they related to summary judgment on the issue of whether Maryland should recognize the Alberta Judgment - Judge Bennett did not address, nor did he need to address, the substance of Syncrude's claim - He might have had materials before him regarding the underlying contractual relationship between the parties, the work done, and the basis of Syncrude's claim, but that did not transform an action for recognition of a foreign judgment into an action on the merits - See paragraphs 47 to 53.

Estoppel - Topic 381

Estoppel by record (res judicata) - Res judicata as a bar to subsequent proceedings - In civil proceedings - [See Estoppel - Topic 379 ].

Practice - Topic 2562

Service - Service of notice, writ or statement of claim out of jurisdiction - Requirement of good cause of action against named defendant - [See Practice - Topic 2566 ].

Practice - Topic 2566

Service - Service of notice, writ or statement of claim out of jurisdiction - Setting aside service or order for service ex juris - General - On October 18, 2011, Syncrude Canada Ltd. entered default judgment against the applicants (two American (Maryland) corporations and a Swiss corporation) in an action commenced by statement of claim on July 26, 2011 - The action arose out of the parties' contractual relations - The applicants had attempted to resist enforcement of the judgment in Maryland, but had failed - On February 15, 2013, the applicants applied to set aside the default judgment in Alberta - They argued, inter alia, that the court lacked jurisdiction because Syncrude did not properly serve the applicants ex juris under rule 11.25, as it read at the time - The Alberta Court of Queen's Bench rejected the argument (i.e., defence) - As rule 11.25(2)(a) had provided when Syncrude effected service, a plaintiff could serve a commencement document on a defendant outside Canada if there was a real and substantial connection between the plaintiff's claim and Alberta - The case law stated that a plaintiff had to demonstrate a good arguable case on an application to set aside service ex juris - Syncrude had clearly established a real and substantial connection between the facts underlying its claim and Alberta - Further, Syncrude had established a good arguable case as required to properly effect service ex juris - The good arguable case test required the plaintiff to bring some evidence that the case it proposed to bring had a foundation in fact - The court was not to try the case or prejudice the parties on the merits - The court looked to ensure that the case was not "fanciful or speculative" - The consideration of a good arguable case occurred early in the litigation, often before disclosure and questioning - The court could not expect the plaintiff to have full knowledge of the claim at that point - See paragraphs 40 to 46.

Practice - Topic 2566.1

Service - Service of notice, writ or statement of claim out of jurisdiction - Setting aside service or order for service ex juris - Evidence - [See Practice - Topic 2566 ].

Practice - Topic 6197

Judgments and orders - Setting aside default judgments (incl. noting in default) - Grounds - On October 18, 2011, Syncrude Canada Ltd. entered default judgment against the applicants (two American (Maryland) corporations and a Swiss corporation) in an action commenced by statement of claim on July 26, 2011 - The applicants had attempted to resist enforcement of that judgment in Maryland but failed - On February 15, 2013, the applicants applied to set aside the default judgment in Alberta - The Alberta Court of Queen's Bench allowed the application - Although the applicants let judgment go by default, they did not do so intentionally - The court found that the applicants decided to delay in applying to set aside the Alberta judgment once it came to their attention but they did so in the interest of time and expense and not with the deliberate aim of delay - Further, the delay was short and Syncrude did not suffer any irreparable harm that the applicants could not remedy through a payment of costs - Finally, the applicants had raised good arguable defences to Syncrude's claim - Those defences related directly to the existence and terms of a contract between Syncrude and the applicants and the application of those terms to the facts - These issues had to be decided by argument and evidence from the parties.

Practice - Topic 6199

Judgments and orders - Setting aside default judgments (incl. noting in default) - Delay in applying - [See Practice - Topic 6197 ].

Practice - Topic 6201

Judgments and orders - Setting aside default judgments (incl. noting in default) - Requirement of reasonable excuse for default - [See Practice - Topic 6197 ].

Cases Noticed:

Scott & Associates Engineering Ltd. v. Ghost Pine Windfarm, LP et al. (2011), 520 A.R. 190; 2011 CarswellAlta 1911; 2011 ABQB 630, refd to. [para. 21].

Lia Sophia Canada, LP v. Parklane Jewelry Ltd. et al., [2013] A.R. Uned. 61; 2013 CarswellAlta 119; 2013 ABQB 53, refd to. [para. 21].

Murray et al. v. Canada (Attorney General) et al. (2003), 340 A.R. 215; 2003 CarswellAlta 597; 2003 ABQB 260, refd to. [para. 21].

Hubert v. Outlaws Group Inc. et al. (2007), 425 A.R. 327; 418 W.A.C. 327; 2007 ABCA 352, refd to. [para. 23].

Wilson Arches Ltd. v. Sayers, [1974] 2 W.W.R. 277 (Alta. C.A.), refd to. [para. 23].

Ernst & Young Inc. v. Central Guaranty Trust Co. (2006), 397 A.R. 225; 384 W.A.C. 225; 2006 CarswellAlta 1479; 2006 ABCA 337, refd to. [para. 24].

Black Gold Leasing Ltd. v. S. & W. Holdings Ltd. (1983), 42 A.R. 219; 1982 CarswellAlta 475 (Q.B. Master), refd to. [para. 28].

Kelland v. Hardestine Holdings Ltd., 2007 CarswellOnt 9383, refd to. [para. 28].

420093 B.C. Ltd. v. Bank of Montreal (1995), 174 A.R. 214; 102 W.A.C. 214; 1995 CarswellAlta 439 (C.A.), refd to. [para. 30].

Henderson v Henderson, [1843-60] All E.R. Rep. 378; 3 Hare 100, refd to. [para. 30].

Palin v. Duxbury et al., [2010] A.R. Uned. 911; 2010 CarswellAlta 2517; 2010 ABQB 833, refd to. [para. 31].

Fjeld v. Alberta - see Alberta v. Fjeld.

Alberta v. Fjeld (2008), 459 A.R. 272; 2008 Carswell Alta 1262; 2008 ABQB 558, refd to. [para. 31].

Reid (Don) Upholstery Ltd. v. Patrie (1995), 173 A.R. 233; 32 Alta. L.R.(3d) 281; 1995 CarswellAlta 357 (Q.B.), refd to. [para. 32].

Goulet v. da Silva et al. (2002), 313 A.R. 32; 2002 ABQB 369, refd to. [para. 34].

Atchison et al. v. Boyd et al. (1985), 61 A.R. 189; 1985 CarswellAlta 486 (Q.B. Master), refd to. [para. 38].

Van Breda et al. v. Village Resorts Ltd. et al. (2012), 429 N.R. 217; 291 O.A.C. 201; 2012 SCC 17, refd to. [para. 42].

Esso Resources Canada Ltd. et al. v. Stearns Catalytic Ltd. et al. (1990), 216 A.R. 122; 175 W.A.C. 122; 1990 CarswellAlta 730 (C.A.), refd to. [para. 43].

Doering v. Grandview (Town), [1976] 2 S.C.R. 621; 7 N.R. 299; 1975 CanLII 16, refd to. [para. 49].

Church v. Abell (1877), 1 S.C.R. 442, refd to. [para. 49].

Klein v. Schile, [1921] 2 W.W.R. 78; 14 Sask. L.R. 220 (C.A.), refd to. [para. 57].

Eagle Copters Maintenance Ltd. v. Nipissing Helicopters Inc. et al. (1996), 187 A.R. 29; 127 W.A.C. 29; 1996 CarswellAlta 653 (C.A.), refd to. [para. 65].

Field House v. Buxton, [1918] 2 W.W.R. 355; 1918 CarswellAlta 26 (C.A.), refd to. [para. 65].

Authors and Works Noticed:

Lange, Donald J., The Doctrine of Res Judicata in Canada (3rd Ed. 2010), p. 1 [para. 48].

Counsel:

Jonathan W. McCully (Sharek Logan & van Leenen LLP), for the plaintiff;

Peter T. Linder, Q.C. (Peacock Linder & Halt LLP), for the defendants.

This application was heard on August 7, 2013, by Manderscheid, J., of the Alberta Court of Queen's Bench, Judicial District of Edmonton, who delivered the following decision on October 11, 2013.