Executive Summary: Key Legal and Evidentiary Issues

• Opabin Sand and Gravel Inc. appealed a chambers judge's decision refusing to strike VINCI GeoInfrastructure Canada Limited's amended counterclaim alleging abuse of process and conversion.
   
• Central to the appeal was whether the appellant's Civil Claim and Public Works Act notice were initiated for improper purposes — specifically, to pressure a subcontractor into settlement or to obtain further supply agreements.
   
• The Court of Appeal held it was plain and obvious that neither alleged improper purpose satisfied the second element of the tort of abuse of process, as both purposes fell within the ambit of the legal proceedings themselves.
   
• No overt act external to the impugned claims was sufficiently pleaded; the amended counterclaim contained only bare, speculative allegations without reasonable particulars.
   
• Regarding conversion, the Court found that invoking the Public Works Act's statutory dispute resolution mechanism to determine entitlement to funds does not constitute a wrongful interference with progress payments.
   
• Applying a correctness standard, the Court concluded the amended counterclaim disclosed no reasonable cause of action in either abuse of process or conversion, and struck it in its entirety.

Facts of the case

Opabin Sand and Gravel Inc. (Opabin) supplied materials to the Alberta Springbank Off-Stream Reservoir project, a major public infrastructure initiative. VINCI GeoInfrastructure Canada Limited (VINCI) was the general contractor for the project. Alberta had assigned VINCI subcontracts for materials to be provided by Sarcee Gravel Products Ltd. When Sarcee allegedly had difficulty meeting its contractual obligations, Sarcee and a related entity, Tsuu T'ina Contracting Limited Partnership (collectively, the "subcontractors"), issued purchase orders to Opabin and another company in 2022. Opabin provided materials pursuant to those purchase orders in 2022 and was paid for doing so. Opabin alleges that the parties had agreed its work providing materials would resume in the spring of 2023, but the subcontractors — on the direction of VINCI — did not proceed with the balance of the purchase orders, thereby breaching their agreements with Opabin. Opabin says it incurred additional expenses based on its understanding of the agreements and representations made to it.

On July 28, 2023, Opabin delivered to Alberta notice of an approximately $9,000,000 claim in respect of the project pursuant to section 14(1) of the Public Works Act, RSA 2000, c P-46. As a result, Alberta held back progress payments payable to VINCI and directed VINCI to investigate Opabin's claim. Alberta only released those progress payments after VINCI obtained a letter of credit as security. On March 6, 2024, Opabin filed a statement of claim against VINCI, the subcontractors, and Alberta in relation to the project, which it amended on March 3, 2025 (the "Civil Claim"). On September 24, 2024, VINCI filed a statement of defence and counterclaim, amending the counterclaim on October 25, 2024. In its amended counterclaim, VINCI alleged Opabin was liable for the torts of abuse of process and conversion, characterizing the Civil Claim and Public Works Act notice as having been advanced for the improper purpose of using the economic pressures caused by withheld progress payments to pressure Sarcee into acquiescing to Opabin's claims for compensation or, alternatively, to obtain further supply agreements for the Springbank Off-Stream Reservoir project or otherwise.

Procedural history

An applications judge initially struck VINCI's counterclaim under Rule 3.68(2)(b) of the Alberta Rules of Court, Alta Reg 124/2010, as disclosing no reasonable claim (Vinci GeoInfrastructure Canada Limited v Opabin Sand and Gravel Inc, 2024 ABKB 683). A chambers judge then reversed that decision, finding the amended counterclaim had sufficiently pleaded the four elements of abuse of process and that the conversion claim was not hopeless (Opabin Sand and Gravel Inc v Tsuu T'ina Contracting Limited Partnership, 2025 ABKB 623). Opabin appealed to the Court of Appeal.

Statutory framework at issue

A key provision at issue was section 14(1) of the Public Works Act, which permits a person who provides labour, equipment, material, or services in the performance of a contract with the Crown for the construction, alteration, demolition, repair, or maintenance of a public work to send notice of a claim to the province if not paid by the party legally obliged to pay them. Section 15(4) of the Act further permits the Crown to apply to the Court of King's Bench to have funds paid into court and allows the court to determine the persons entitled to those funds. The Court considered whether invoking this statutory mechanism could constitute either an improper purpose for abuse of process or a wrongful interference with progress payments for conversion.

Reasoning and analysis

The Court of Appeal applied a correctness standard to the question of whether the amended counterclaim disclosed a cause of action in abuse of process or conversion, as it is a question of law. The four elements of the tort of abuse of process are: (1) the plaintiff is a party to a legal process initiated by the defendant; (2) the legal process was initiated for the predominant purpose of furthering some indirect, collateral, and improper objective; (3) the defendant took or made a definite act or threat in furtherance of the improper purpose; and (4) some measure of special damages has resulted.

On the second element, the Court found it plain and obvious that neither alleged improper purpose was sufficient. The first alleged improper purpose — pressuring Sarcee to acquiesce to Opabin's compensation claims — fell squarely within the ambit of the Civil Claim, which expressly sought compensation from Sarcee for work performed on the project. As the Court noted, obtaining compensation from Sarcee was factually and legally intertwined with the claim against VINCI, and the mere fact VINCI alleged the compensation claim was meritless or made in bad faith did not render its purpose indirect, collateral, or improper. The second alleged improper purpose — obtaining further, unrelated supply agreements — could in principle constitute an indirect, collateral, and improper objective, but the amended counterclaim failed to plead that purpose with any reasonable particulars beyond a bare allegation, which is insufficient to withstand an application to strike.

On the third element, the Court found no overt act external to the impugned proceedings was sufficiently pleaded. The connection between the Public Works Act claim and the goal of obtaining "further supply agreements" was described as a bare, speculative allegation without reasonable particulars. On the conversion claim, the Court held it was plain and obvious that Opabin's notice under the Public Works Act did not constitute a "wrongful interference" with the progress payments. Providing notice of a claim under s. 14(1) is not "taking, using or destroying" payments owed to VINCI; it invokes a statutory mechanism to determine entitlement to funds, which does not amount to conversion of those funds.

Ruling and overall outcome

The Court of Appeal allowed the appeal and struck the amended counterclaim in its entirety. Opabin Sand and Gravel Inc. was the successful party. No monetary award was ordered or specified in this decision; the disposition was procedural, striking the counterclaim as disclosing no reasonable cause of action in either abuse of process or conversion.