Executive Summary: Key Legal and Evidentiary Issues

• Disputed whether contracts were made with the Estate or with individual family members named in quotes and invoices.

• Defendants challenged personal liability of McIntyre, asserting he had no direct role or communications in the disputed work.

• Plaintiff alleged faulty workmanship and negligent misrepresentation based on post-repair system failures.

• Key defence evidence relied on hearsay from a former employee, undermining its admissibility at summary judgment.

• Court found unresolved factual issues, including the identity of contracting parties and causation of damages.

• Summary dismissal denied; appeal dismissed due to genuine issues requiring trial and insufficiency of the record for early resolution.

Facts of the case

Between 2015 and 2018, septic system installation and repair services were carried out at a property in Lacombe County, Alberta, by THS Septic & Civil Solutions (“THS”). The services included installation of a system connecting to the County of Lacombe wastewater system, as well as later repairs involving a grinder pump, piping, frost plug, backflow preventor, and heat tracing. These were performed by Kris Novotney, an employee of THS, and invoices for the work were paid in full.

The Estate of Kent Williamson initiated the work through Jeff Williamson, its litigation representative. Communications and payments were made by Jeff, Chad, and Ellen Williamson. The Estate of Kent Williamson filed a claim in 2020 against 715057 Alberta Ltd. (operating as THS), 1592898 Alberta Ltd., Travis McIntyre (the sole director of 715057), and unnamed parties. The allegations included breach of contract, negligence, negligent misrepresentation, and faulty workmanship. The plaintiff also sought to pierce the corporate veil to hold McIntyre personally liable.

The defendants admitted that 715057 performed the work but denied entering into contracts with the Estate. They argued no liability existed because the quotes and invoices were addressed to individuals rather than the Estate. They also denied knowledge of any system failures following completion of the work in 2018. On March 19, 2024, Applications Judge Farrington dismissed the claims against 1592898 Alberta Ltd. but allowed the claims against the remaining defendants to proceed, finding the evidentiary record insufficient for summary dismissal.

Legal issues and policy terms

The appeal focused on whether there was a provable cause of action against the defendants and whether the summary dismissal should have been granted. The defendants argued that:

• No contract existed with the Estate;

• McIntyre had no connection to the plaintiff and should not be personally liable; and

• There was no evidence that the work was inadequate or caused damage.

Justice Kubik reviewed the summary judgment test as articulated in Hyrniak v Mauldin, 2014 SCC 7 and Weir-Jones Technical Services v Purolator Courier Ltd, 2019 ABCA 49. The court reiterated that an applicant must prove on a balance of probabilities that there is no genuine issue requiring trial. The evidence must be admissible, and hearsay is not normally sufficient unless independently supported.

McIntyre filed an additional affidavit on appeal, asserting he had no involvement with the work, did not communicate with the plaintiffs, and that contracts were with individuals, not the Estate. However, this evidence contained hearsay and was not first-hand. He relied on business records and second-hand reports regarding the system and the alleged complaints.

The plaintiff’s evidence included affidavits and questioning transcripts from Jeff and Chad Williamson. Jeff testified that while quotes and invoices named individuals, he disclosed his representative status for the Estate and paid invoices using Estate funds. Chad described the sewer backup in 2018, repairs made, and a further failure in 2022. Both affidavits included hearsay concerning alleged design defects and Novotney’s opinions on cause.

Justice Kubik emphasized that references in communications to “Kent” and the “Estate,” combined with payments from Estate accounts and lack of clarity over THS’s corporate status before 2017, raised unresolved factual issues. McIntyre's potential liability as an undisclosed principal also remained open due to the ambiguity in THS’s corporate registration timeline and representations made by others on behalf of THS.

Outcome of the decisions

Justice Kubik upheld Applications Judge Farrington’s decision and dismissed the appeal. He concluded that genuine issues requiring trial remained unresolved, including:

• The true identity of the contracting parties;

• Whether McIntyre could be held personally liable as an undisclosed principal;

• Whether the work performed by 715057 caused the alleged damage.

The hearsay nature of the defendants’ evidence, lack of direct complaint records, and conflicting accounts of contractual relationships prevented the court from making findings sufficient for summary judgment. The appeal was dismissed with costs awarded to the plaintiff based on Column 2 of Schedule C of the Alberta Rules of Court.

Tha plaintiff was awarded costs. However, the judgement did not state a specific amount.