Executive Summary: Key Legal and Evidentiary Issues

• The appeal concerned whether Vinci’s Amended Counterclaim for abuse of process and conversion disclosed a reasonable cause of action under Rule 3.68(2)(b) of the Alberta Rules of Court.

• Central issues included whether filing a claim under the Public Works Act (PWA) constitutes a “legal process” for the tort of abuse of process, and whether Vinci had a sufficient possessory right to withheld progress payments to support a claim in conversion.

• The Applications Judge initially struck Vinci’s Amended Counterclaim, finding the PWA claim was an administrative process and that Vinci’s entitlement to progress payments was not established.

• On appeal, the Court determined Vinci’s pleadings, if accepted as true, were sufficient to allow the abuse of process and conversion claims to proceed.

• The threshold for striking a pleading was found not to be met, as it was not “beyond doubt” that Vinci’s claims would fail.

• Vinci’s appeal was allowed, and Vinci was awarded costs for the application.

Facts of the case

The case arises from the Springbank Off-Stream Reservoir (SR1 Project), a public work under section 1(g) of the Public Works Act, RSA 2000, c P-46, undertaken by the Government of Alberta to protect Calgary and surrounding areas from flooding. Vinci Geoinfrastructure Canada Limited (Vinci) was retained by His Majesty the King in Right of Alberta (the Crown) as the general contractor. Vinci was required to work with subcontractors pre-selected by the Crown, including Sarcee Gravel Products Limited Partnership (Sarcee).

In the summer of 2022, Sarcee had difficulty meeting its aggregate supply obligations for the SR1 Project. Vinci instructed Sarcee to implement a recovery plan. Sarcee retained Opabin Sand and Gravel Inc. (Opabin) as a sub-subcontractor. Opabin delivered materials to Sarcee under a series of purchase orders issued between August 9, 2022 and September 8, 2022, and was paid in full for those deliveries. No further purchase orders were issued to Opabin.

On July 28, 2023, Opabin submitted a notice of claim under section 14 of the PWA seeking $9,059,579.58 for “costs related to material processing, site setup, mobilization, permitting, agreements, royalties, labour, equipment, financing, management and damages that are extra and are currently unrecoverable.” The Crown then withheld progress payments from Vinci in an amount equal to the PWA claim. Vinci, at the Crown’s request, investigated the PWA claim and advised Opabin that it was not a recognized claimant under the PWA, the claim was submitted late, and the claim sought damages not permitted under the statute.

Procedural history

On March 6, 2024, Opabin filed a Statement of Claim against Vinci and others, alleging it had relied on representations that further work would be assigned and incurred damages of $9,059,579.58. The Civil Claim states that Opabin also filed a claim for these damages under the PWA.

On September 24, 2024, Vinci filed its Statement of Defence and Counterclaim, denying liability and asserting, among other things, that it had no contractual relationship with Opabin, and that Opabin’s conduct constituted an abuse of process and conversion. On October 10, 2024, Opabin applied to strike the Counterclaim pursuant to Rule 3.68(2)(b) for disclosing no reasonable cause of action. Vinci filed an Amended Counterclaim on October 25, 2024, alleging, among other things, that Opabin’s PWA Claim and Civil Claim constituted an abuse of process and conversion, and that Vinci incurred damages for the cost of financing ($400,000) and for the costs of investigating the PWA Claim ($200,000).

Opabin’s application to strike the Amended Counterclaim was heard on October 29, 2024. On November 20, 2024, the Applications Judge struck the Amended Counterclaim. On March 3, 2025, Opabin filed an amended Civil Claim, decreasing its damages claim to $4,924,690.62. On March 21, 2025, Vinci filed an Amended Statement of Defence.

Discussion of policy terms and clauses at issue

The case involved interpretation of the Public Works Act, particularly sections 14 and 15, which govern the process for submitting claims and the Minister’s discretion regarding payment. The legal standard for striking pleadings under Rule 3.68(2)(b) of the Alberta Rules of Court was also at issue. The torts of abuse of process and conversion were analyzed, including whether administrative processes under the PWA could ground such claims and whether Vinci had a possessory right to the withheld funds.

Legal arguments and analysis

Vinci argued that its Amended Counterclaim pleaded all four elements of the tort of abuse of process: (1) the Civil Claim is the “legal process;” (2) it was brought for the purpose of creating inappropriate settlement leverage; (3) the PWA Claim is the “definite act;” and (4) Vinci incurred “special damages” associated with investigating and responding to the PWA Claim and with financing costs connected to the withheld progress payments. Vinci also argued that Opabin committed conversion by filing the “wrongful” PWA Claim, which led the Crown to withhold Vinci’s progress payments for over a year.

Opabin maintained that the tort of abuse of process does not extend to administrative processes like the PWA claim and that Vinci’s alleged damages were common incidents of litigation. Regarding conversion, Opabin argued it had not interfered with any chattel or Vinci’s rights.

The appellate court reviewed the standard under Rule 3.68(2)(b), emphasizing that claims should only be struck if it is “beyond doubt” they will fail. The Court found Vinci’s pleadings, if accepted as true, were sufficient to proceed. It was arguable that the Civil Claim and PWA Claim could constitute a legal process for abuse of process, and that Vinci could have a possessory right to the withheld payments for conversion.

Outcome and ruling

The Court allowed Vinci’s appeal and permitted the proposed amendments to the Amended Counterclaim. The Court held that the claims for abuse of process and conversion were sufficiently pleaded and could not be said, at this stage, to be “beyond doubt” to fail. Vinci was awarded its costs of the application under Schedule “C.” The successful party on appeal was Vinci Geoinfrastructure Canada Limited. No specific amount was ordered or granted at this stage.