Executive Summary: Key Legal and Evidentiary Issues

• Appeal concerned whether BSI's negligence and contract claims against Canbert and Daniel Huang could be summarily dismissed where corporate identity and contracting relationships were unclear.

• Evidence about who actually contracted with Megacad and who performed the Victoria Project work (Canbert vs. 1362751 BC Ltd. vs. Mr. Huang personally) was conflicting and incomplete, creating a genuine issue for trial.

• New affidavits and expert reports on code and installation deficiencies (HVAC, mechanical, plumbing, electrical) were admitted on appeal as relevant and material to the alleged negligent work.

• The Application Judge's focus on the absence of detailed negligence particulars, and on 136 as the sole contracting entity, was found too narrow in light of timing issues and mixed evidence about who did the work.

• Questions about potential personal liability of Mr. Huang as an individual actor, distinct from any corporation, were intertwined with unresolved contractual and policy issues, making summary dismissal inappropriate.

• The Court granted BSI's appeal and dismissed the respondents' summary dismissal application, so all claims against Canbert and Mr. Huang will proceed to trial; no specific damages amount was determined at this stage.

Facts of the case

BSI Build Inc. is a general commercial contractor and construction manager operating across Canada. In February 2022, BSI and Mary Brown's Inc. entered into a contract for the construction of a restaurant in Victoria (the "Victoria Project"). In May 2022, they entered into another contract for the construction of a restaurant in Chilliwack (the "Chilliwack Project"). For the Victoria Project, BSI entered into a subcontract in March 2022 with Luan Diep, also known as Lou Diep, operating as Megacad Design and Developments, to perform leasehold improvement construction.

Daniel Huang, also known as Daniel Zhiwei Huang, is the sole director and shareholder of Canbert Building Services Ltd. He is also the sole director and shareholder of 1362751 BC Ltd. ("136"). 136 is not a named defendant in either the Statement of Claim or the Amended Statement of Claim.

On June 7, 2023, BSI filed a Statement of Claim against Luan Diep (operating as MegaCad Design & Developments) and against Canbert. BSI alleged that, to the best of its knowledge, Mr. Diep entered into a subcontract with Canbert to perform work on the Victoria Project, including electrical, HVAC, plumbing, and various other construction work. Mr. Diep did not respond to the claim. On September 13, 2023, he was noted in default, and on March 13, 2024, default judgment was granted against him in the sum of $483,474.96, plus interest in the amount of $22,432.22, and costs in accordance with Schedule "C."

Procedural history and summary dismissal below

Canbert did not file a Statement of Defence. Instead, on December 4, 2023, it brought an application for summary dismissal, asserting that it was not a party to, nor liable for, the contracts, projects, or claims at issue in the Statement of Claim. In support of the application, Canbert filed an affidavit sworn by Mr. Huang, in which he attested that the corporation that carried out the electrical, HVAC, and plumbing work on the Victoria Project was 136, and that 136 was hired by Megacad.

On March 20, 2024, BSI filed a cross-application to amend its Statement of Claim and to add Mr. Huang personally as a defendant. In its Amended Statement of Claim, BSI alleged that, to the best of its knowledge, Mr. Diep entered into a subcontract with Canbert and/or Mr. Huang to perform work on the Victoria Project, including electrical, HVAC, plumbing, and various other construction work. The Amended Statement of Claim asserted that, as subcontractors hired by Mr. Diep to work on the Victoria Project, Canbert and/or Mr. Huang owed BSI a common law duty of care with respect to the work performed, and that Mr. Huang personally owed a duty of care for the portions of work he performed himself or supervised. It further alleged negligence and deficient work that failed to comply with BC building, plumbing, electrical, and fire codes and fell below the standard of care expected of a competent subcontractor.

At the hearing on May 15, 2024, following a fiat granted by the Application Judge, the application for summary dismissal was amended to seek a declaration that Mr. Huang, in addition to Canbert, was not a party to or liable for the contracts, projects, or claims at issue. It also sought dismissal of the Statement of Claim against them and dismissal of the application to amend the Statement of Claim to add Mr. Huang as a defendant. Counsel for Canbert and Huang confirmed their consent to the amendment being filed.

Referring to Rule 7.3 of the Alberta Rules of Court, Alta Reg 124/2010, and the test for summary judgment set out in Weir-Jones Technical Services Incorporated v Purolator Courier Ltd, 2019 ABCA 49, the Application Judge stated that the applicant must demonstrate that the claim has no merit and that there is no genuine issue requiring a trial. If the applicant's burden is satisfied, the respondent must then put its best foot forward and demonstrate from the record that there is a genuine issue requiring a trial.

The Application Judge determined that the applicant's original argument was that Canbert was not the appropriate party because the contract was with 136. She concluded that the record did not contain any concrete evidence or assertion of how the work was negligently done. Ultimately, the Application Judge held that the primary ground for dismissing the claim against Canbert was that it was not a contracting party because the record established that the oral contract was with 136, not Canbert. She referred to the following in support: (i) the only evidence about who the contract was with came from Mr. Huang, who attested that the contract was with 136; (ii) 136 was not incorporated until after some of the work was done; and (iii) 136 was the entity that had the permits, the WCB coverage, and met the regulatory requirements. With respect to the fact that the invoices relating to the work on the Victoria Project referenced Canbert, the Application Judge relied on Mr. Huang's evidence that 136 was created solely for this small job, so he did not set up another accounting system, and later 136 invoiced Canbert for payment.

The Application Judge further determined that there was no genuine issue for trial regarding the negligence claims against Mr. Huang because the record did not contain any concrete evidence or assertion of how the work was negligently done, nor did Mr. Hiscock's affidavit provide any particulars of what Mr. Huang or his helper may have done wrong. On that basis, she summarily dismissed BSI's action against Canbert and dismissed BSI's application to amend the Statement of Claim to add Mr. Huang as a defendant. On June 5, 2024, BSI filed its Notice of Appeal.

New evidence introduced on appeal

On appeal, BSI brought forward three new affidavits with cross-examination transcripts:

1. David Gibson (BSI superintendent)
   Mr. Gibson's affidavit is two pages long and does not include any exhibits. He identifies himself as a superintendent with BSI. He states that he was on site at the Victoria Project from time to time, particularly during the final month of the project when inspections and remediation were taking place. He attests that he both observed and was informed that Mr. Huang and his helper were the individuals on site who personally performed the electrical, HVAC, and plumbing work. He further attests that he was informed while on site that Mr. Huang signed off on the electrical, HVAC, gas, and plumbing work, and that inspectors advised him the work was deficient and required substantial remediation, such that Mr. Huang should not have approved it. The Court rejected the argument that this affidavit was not relevant and material because it was inconsistent with other evidence on the record, holding that inconsistency with other evidence does not mean the affidavit lacks relevance or materiality.

2. Jesse Tremblay (HVAC expert)
   Mr. Tremblay's affidavit is two pages long and includes as exhibits his CV, qualifications, and the report he prepared after reviewing the installation on the Victoria Project. Mr. Tremblay is a journeyman Sheet Metal Mechanic and the Foreman and Estimator for Custom Fabrication at Playsted Sheet Metal Ltd. He is presented as an individual with expertise regarding the installation of various components within the HVAC scope of work on the Victoria Project. He attests that, in his opinion, the work reviewed was deficient and that the remaining sheet metal installation may not comply with NFPA 96 or BC seismic requirements. The Court found his evidence satisfied the R. v. Mohan, 1994 CanLII 80 (SCC), criteria as refined in White Burgess Langille Inman v. Abbott and Haliburton Co., 2015 SCC 23. The Court rejected the argument that Mr. Tremblay lacks impartiality because his company was later hired by BSI, finding that this fact alone does not lead to the conclusion that he lacks impartiality.

3. Mirek Demidow (professional engineer)
   Mr. Demidow's affidavit is two pages long and includes as exhibits his CV, qualifications, and the report he prepared. Mr. Demidow is a professional engineer with Avalon Mechanical Consultants and works as a mechanical consultant and inspector. He conducted an installation inspection at the Victoria Project. He attests that the work reviewed was deficient, and his report identifies 16 items that require corrective action. The Court held that whether Mr. Demidow's report establishes a link between alleged deficiencies and the work performed by 136 is not conclusive as to whether this evidence is relevant and material.

The Court applied the low threshold for new evidence on an appeal from an Application Judge under Rule 6.14(3), which requires that new evidence be relevant and material. The Court found that each of these affidavits might reasonably be expected to significantly help determine one or more of the issues raised on the appeal, and therefore admitted them all.

Key issues on appeal

The standard of review is correctness, as stated in Bahcheli v Yorkton Securities Inc, 2012 ABCA 166. Although it is an appeal on the record, it is considered de novo due to the ability of the appellant to expand on the factual record from the court below, in certain circumstances.

Pursuant to Rule 7.3(1)(b), a defendant may apply for summary judgment in respect of all or part of a claim where there is no merit to the claim or any part of it. The party moving for summary judgment must prove that there is no genuine issue requiring a trial. Weir-Jones at para 47 sets out the proper approach to summary judgment: there is no genuine issue requiring a trial when the judge is able to reach a fair and just determination on the merits on a motion for summary judgment. This occurs when the process (1) allows the judge to make the necessary findings of fact, (2) allows the judge to apply the law to the facts, and (3) is a proportionate, more expeditious, and less expensive means to achieve a just result.

Findings on the contract claims

Canbert and Mr. Huang submitted that they are not properly named parties, arguing that they had no contractual relationship concerning the Victoria Project. They relied on Mr. Huang's affidavit, in which he attests that Megacad contracted with 136 and that 136 obtained the necessary permits to complete the work for Megacad on the Victoria Project.

The Court closely examined the evidence and found that the record remained unclear whether Canbert was involved as a subcontracting party. Mr. Huang's evidence is that Megacad entered into an oral contract with 136 to perform the work on the Victoria Project, not Canbert. He attests that 136 was incorporated to obtain the necessary regulatory permits, WCB coverage and approvals to work for Megacad in BC, as BC does not issue trade permits to Alberta corporations.

Attached as Exhibit A to Mr. Huang's affidavit is the BC Registry Services incorporation application, which states: "Recognition Date and Time: Incorporated on May 13, 2022, at 02:40 PM Pacific Time."

Regarding the timing of when the oral contract was entered into with Megacad and when work began at the Victoria Project, Mr. Huang testified that in April 2022 Megacad hired 136 and that he believed his first day on site was in early May. Exhibit B to Mr. Hiscock's affidavit is the daily site report dated May 6, 2022. This site report does not reference Mr. Huang, Canbert, or 136. The report lists Megacad as a subtrade on site and under work in progress states: "Rough in plumbing 80% complete."

On cross-examination, the May 6, 2022 site report was put to Mr. Huang, who acknowledged that one of the photos shows his helper and a pipe going through the framing. Mr. Huang stated that he believed "it was installed by us." The Court noted this evidence suggests that some work was performed prior to the incorporation of 136, which raises the question of who performed the work visible in the May 6, 2022 site report and what the nature of the contracting relationships was at that time.

Attached as Exhibit C to Mr. Huang's affidavit is Invoice 1769 dated June 27, 2022, with the biller listed as "Canbert Building Services Ltd," the biller email address from @canbert.ca, and the customer as "MEGA CAD Design." The description of work refers to the Victoria Project. In July 2022, Mr. Huang forwarded this same invoice to BSI seeking payment. Invoice 1769 was sent from the @canbert.ca email, and beneath Mr. Huang's name appeared "Canbert Building Services Ltd."

Mr. Huang's evidence in his affidavit and under cross-examination was that he did not create a specific email address for 136, as this BC corporation was created only for this small job. Instead, he used his Canbert email address to communicate on 136 business. He used Canbert software to create the invoices, which explains why the Canbert logo appears on the invoice. Mr. Huang testified that this was an accounting error. He stated that in October 2022, he realized that Canbert received the cheque related to the June 27, 2022 invoice, but the money was actually earned by 136. He corrected this by issuing an invoice from 136 to Canbert, attached as Exhibits D and E to his affidavit.

The Court found that Canbert and Mr. Huang had not met their burden. The record and the evidence raise a genuine issue for trial regarding the contracting relationships and who was performing the work on the Victoria Project, particularly during the period before 136 was incorporated.

Findings on the negligence and personal liability claims

The crux of Canbert and Mr. Huang's arguments regarding the negligence claims is that they were improperly named as parties. They contend that the question of negligence would only arise if BSI can connect them to the work, and they assert there is no evidence on the record linking them to the work.

BSI argues that Mr. Huang is personally liable for any deficient work he performed because, as a subcontractor, he owed a duty of care. In support of the allegations of personal liability against Mr. Huang, BSI relies on the affidavit evidence of Mr. Demidow and Mr. Tremblay, which identifies various deficiencies in the HVAC, electrical, and plumbing work at the Victoria Project. They also rely on Mr. Huang's testimony under cross-examination where he stated it was "mainly me" performing the work. BSI argues that Mr. Huang has not sworn that he did not perform the deficient work, nor has he provided any evidence to show that the work was neither deficient nor dangerous.

The Court reviewed the elements of negligence: (1) the defendant owed the plaintiff a duty of care; (2) the defendant's conduct breached the standard of care; (3) the plaintiff sustained damage; and (4) the damage was caused in fact and in law by the defendant's breach (citing 1688782 Ontario Inc v Maple Leaf Foods Inc, 2020 SCC 35 at para 18).

The Court noted that the conduct of a contractor may constitute not only a breach of contract but also negligence (citing Vermillion & District Housing Foundation v Binder Construction Limited, 2017 ABQB 365 at para 123). Concurrent liability may arise where a party is liable in both tort and contract for the same action (citing Driving Force Inc v I Spy-Eagle Eyes Safety Inc, 2022 ABCA 25 at para 22).

Regarding corporate liability, the Court stated that corporations are separate legal persons, and shareholders and directors are not personally liable for the corporation's obligations. However, because corporations can only act through human agents, a corporate tort generally involves concurrent human actions. When an individual is found concurrently liable for a tort committed in the name of a corporation, the individual's liability is based on their breach of an individual duty owed in tort (citing Driving Force at paras 48–49). There is no universal and categorical rule that individual human agents of corporations are invariably concurrently liable for corporate torts (citing Driving Force at para 65).

The Court noted the competing policy objectives between the principle that tort law seeks to compensate parties injured by negligent conduct and the principle that corporate law provides corporations are separate legal entities and that corporate shareholders are not personally liable for corporate obligations. There is a generalized concern that imposing personal liability too readily in the context of corporate business will negatively impact the viability and efficacy of corporate structures (citing Hogarth v Rocky Mountain Slate Inc, 2013 ABCA 57 at paras 63, 110; Hall v Stewart, 2019 ABCA 98 at paras 11–14; ADGA Systems International Ltd v Valcom Ltd, 1999 CanLII 1527 (ON CA) at paras 9, 43; H2 Canmore Apartments LP v Cormode & Dickson Construction Edmonton Ltd., 2024 ABKB 423 at para 28).

The Court found that determining the negligence claims depends on identifying who performed the work. The record and evidence are unclear regarding the nature of the contractual relationships and who was performing work on the Victoria Project, particularly before 136 was incorporated. While Mr. Huang's affidavit states that 136 was the contracting party and completed the work, there is also evidence suggesting that work was performed before 136 was incorporated. Additionally, Mr. Huang testified under cross-examination that it was mainly him who completed the work, yet it remains unclear whether he performed the work under Canbert, under 136, or in his personal capacity at some point before 136 was incorporated.

As noted in Kudzin v APM Construction Services Inc, 2023 ABKB 425 at para 157, unresolved contractual and policy issues can make summary judgment of negligence claims inappropriate. The Court held that whether Canbert or Mr. Huang owed a duty of care, the nature of such duty, and whether there was a breach of any standard of care depends on determining the contracting relationships and identifying who was performing the work at specific points in time. This raises a genuine issue for trial.

The Court also noted the uncontested evidence from BSI that work performed on the Victoria Project was deficient and did not meet the applicable codes. Mr. Tremblay's report references BC seismic codes that prescribe a particular method for installing HVAC systems and hood vents. He also notes potential fire hazards due to improper vent hood installation. Mr. Demidow's report identifies various incorrect and improper installation issues, suggesting possible deficiencies.

Canbert and Mr. Huang have not provided any evidence to the contrary regarding the negligence claims. Their argument appears to rest on the position that the evidence does not link Canbert or Mr. Huang to the work and that all work was performed by 136.

Based on the law and the record, the Court found that Canbert and Mr. Huang have not met their burden to show that there is no merit to the negligence claims against them. They have not provided any evidence regarding the negligence claims. The unresolved contractual issues make summary judgment of the negligence claims inappropriate.

Ruling and overall outcome

Justice D.A. Labrenz found that Canbert and Mr. Huang have not met their burden to show that there is no merit to the claims against them and that there is no genuine issue requiring a trial. BSI has demonstrated that there is a genuine issue requiring a trial. The state of the record does not allow a fair and just determination on the merits.

The Court granted BSI's appeal and dismissed Canbert and Mr. Huang's summary dismissal application. No specific damages amount was ordered against Canbert or Mr. Huang at this stage; liability and quantum will be matters for later determination at trial. The parties shall make every effort to resolve the question of costs between themselves. If they are unable to agree on costs, they may provide written submissions not exceeding five pages each within 60 days of the date of this decision.

The appeal was heard on August 15, 2025, and the decision was dated December 12, 2025, at the City of Calgary, Alberta. John Gilbert appeared for the Appellant, and Vikramjot Singh appeared for the Respondents Canbert Building Services Ltd. and Daniel Huang.