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Monday Morning Case Bites for January 21, 2019

Last Week’s Court Rulings from the Alberta Court of Queen’s Bench, Court of Appeal and SCC.

Edited by Amanda Kostek & Christie Dewar

Shamrock Maintenance & Hotspot Services Ltd (Shamrock Maintenance & Autobody) v Finning International Inc (Finning Canada), 2019 ABQB 7
Dismissal for Long Delay I Supplemental Affidavit of Records

This was an application for dismissal due to long delay, and in the alternative, for partial summary judgment on the basis that a part of the claim was out of time pursuant to the Limitations Act. The application was successful in part. The claim was not dismissed for long delay but partial summary judgment was granted.

The Plaintiff provided mechanic services to Finning, and the claim was for debt from more than 100 invoices. The first supplemental Affidavit of Records was filed more than three years before the within application was filed, which the Defendants asserted was the last significant advance. The issue was whether the subsequent production of a spreadsheet of the invoices prepared by the Plaintiff’s accountants, and the second supplemental Affidavit of Records, which contained electronic copies of the invoices, advanced the action. The Court concluded that they did:

[6] What constitutes a significant advance must be assessed by taking a functional approach. The analysis is to be undertaken in the context of the particular lawsuit having regard to the nature, value, importance and quality of the advance including the genuineness and timing (Ursa Ventures Ltd v Edmonton (City), 2016 ABCA 135 (CanLII)). Finning and PHH quite appropriately describe the spreadsheet as an index and say that it was prepared at the instance of Shamrock. Furthermore, as Shamrock acknowledges, the creation of the index did not require the expertise of an accounting firm for its preparation. The counter to these arguments is that the index provided a concise document setting out the claims of the Plaintiff which would be useful in discussions among counsel (settlement), during questioning and ultimately at trial notably for the convenience of the trial judge. Unfortunately, no settlement discussions or questioning took place so its value in those respects might be said to have yet to materialize.

[7] The Second Supplemental Affidavit of Documents contained the index and a memory stick containing electronic copies of the invoices and additionally the back-up documentation for those invoices. The back-up documentation is clearly relevant and material in light of the defences filed. Finning’s denial that services were received or were provided without authorization required the production of this documentation. They quite obviously were not new documents and would have been available when the action was initiated. Nonetheless, when the documents were provided in combination with the index they directly addressed core outstanding issues similar to the circumstances in Ro-Dar Contracting Ltd v Verbeek Sand and Gravel Inc., 2016 ABCA 123 (CanLII).

The Defendants also argued that all but 8 invoices were statute barred. The Court agreed on the basis that invoices were not connected:

[8] As noted above the invoices sued upon date back to as early as November 15, 2007. Finning and PHH note that the action was commenced on June 7, 2011 and take the position that 95 of the 103 invoices were sued upon beyond the limitation period set out in s 3(1) of the Limitations Act. It is Shamrock’s evidence that work was performed and a bundle of invoices were delivered each week. The weekly bundle of invoices was typically paid by a single cheque. The invoices stipulated they were due 30 days from their date. Shamrock argues that the long history of the relationship with Finning and the manner of invoicing of payment amounted to a running account or prevenient arrangement. Finning has provided no evidence in this regard. They are not obliged to do so. Regardless, the simple answer is that Shamrock’s evidence fails to establish the existence of a running account. Each invoice was for a single repair. Other than being “stacked” together with other invoices for convenience there is no connection between each invoice or with other invoices rendered later. There is no suggestion by Shamrock that there was a credit facility established or that payments were received and applied on account. The evidence is that invoices were issued for each repair albeit bundled for a week and the payment received applied on those invoices. The record is sufficiently clear that a fair and just determination on this issue can be made.