FACTORS WESTERN INC v POINT DESIGN HOMES LTD, 2018 ABQB 1004
1.3: General authority of the Court to provide remedies
3.72: Consolidation or separation of claims and actions
7.3: Summary Judgment (Application and decision)
The Plaintiff, Factors Western Inc. (“Factors”) made a Summary Judgment Application pursuant to Rule 7.3 in respect of a debt claim stemming from an invoice that had been assigned to it by another construction company and payable by Point Design Homes Ltd (“Point Design”). Point Design had also signed an acknowledgement that the invoice was payable to Factors without dispute (the “Acknowledgment”).
Master Farrington denied the Summary Judgment Application on the basis that there were real issues as to whether Factors had a valid contractual claim against Point Design. There was no apparent consideration for Point Design’s Acknowledgement or promise to pay. Furthermore, the Acknowledgement may well raise issues of estoppel.
Master Farrington then addressed how the Action should proceed given that another related Action had been filed by Point Design (the “Lien Action”). Point Design had filed the Lien Action seeking the ability to pay lien funds into Court to protect against the possibility of having to pay for the services contemplated in the Factors invoice twice (because it was not Factors who initially issued it). The Lien Action requested that the lien fund be calculated to exclude the payment of the Factors invoice, and to give priority to Factors over other claimants.
Master Farrington stated that it would not be appropriate to consolidate the two Actions because not all of the participants in the Lien Action were participants in this Action. However, Master Farringdon confirmed that Rule 3.72 allows the Court to do various things to ensure the efficient resolution of claims including directing that one or more Actions be stayed until another is determined, or directing that two or more Actions be tried at the same time. Furthermore, Rule 1.3 empowers the Court to give a remedy regardless of whether it is specifically sought in an Action.
Master Farrington then ordered that this Action be tried consecutively and following the Lien Action, subject to the discretion of the Hearing Justice to decide how to best take evidence and whether to adopt evidence from one Action in the other Action.
The Summary Judgment Application was dismissed with Costs in the cause.View CanLII Details