Executive Summary: Key Legal and Evidentiary Issues

• The dispute centered on whether a Supplier Agreement's verification provision required RMC to conduct third-party verification of delivered aggregate quantities before it could later dispute them.
   
• Following an appellate remand, Justice Simard concluded that the verification clause did not permanently bar RMC from later challenging delivery quantities, contrary to the trial judge's earlier finding.
   
• Evidentiary reliability became central when RMC's overcharge claim relied on a single laser survey and batch records rather than expert testimony on density conversion.
   
• Alberta's two-year limitations period barred most of RMC's counterclaim because any shortfall was discoverable well before the claim was formally advanced.
   
• Hauling charges required separate scrutiny because RBee's invoiced rate did not match the amount RMC's own change order with the project's prime contractor had approved.
   
• Ultimately, the court found the Receiver had proven its claim for delivered product and approved hauling costs, while RMC's set-off argument failed for lack of reliable proof.
   

Facts of the case

RBee Aggregate Consulting Ltd. operated a gravel crushing business at various sites in Alberta and British Columbia. On May 7, 2018, RBee entered into a Supplier Agreement with RMC Construction Materials Inc., under which RBee supplied washed and crushed aggregate ("Product") that RMC used to produce concrete for the Site C hydroelectric dam project near Fort St. John, British Columbia. RBee's seasonal deliveries ran from approximately April until the start of winter, over four seasons from 2018 to 2021. On March 11, 2022, FTI Consulting Canada Inc. was appointed as RBee's receiver. The Receiver sought to collect $4,485,480.64 (including GST), plus interest, from RMC under three final invoices RBee had issued in September, October, and December 2021 for both Product and hauling services. RMC refused to pay, asserting that RBee had overcharged it for more Product than was actually delivered, both in these final invoices and earlier ones, and claimed a right of equitable set-off. The Receiver applied to the Court of King's Bench of Alberta on November 29, 2022. In the first decision (2023 ABKB 724), Justice Romaine ordered RMC to pay the full claimed amount and dismissed RMC's set-off claim. RMC appealed, and the Court of Appeal (2025 ABCA 117) found the relevant contractual provisions ambiguous, ruled that extrinsic evidence should have been admitted, and remitted the matter for re-hearing. Justice Simard heard the re-hearing on March 17-18, 2026, with supplementary written submissions received April 1 and 8, 2026, and issued a decision on August 7, 2026, later corrected by a corrigendum dated August 10, 2026.

Policy and legislative provisions at issue

The central contractual term was the Verification Provision in article 5 of the Supplier Agreement, which stated that RMC's payment obligations were "subject to third-party verification... of volume of Products," with a certification to "emanate from" RMC or its designate within 60 days of delivery, and that RBee's entitlement to payment would be "based on such Verifications." Article 9 addressed risk of loss, providing that Product delivered to the designated stockpile passed risk to RMC at that point. Article 6 listed separate conditions to payment unrelated to proof of delivery, and article 22 set out a multi-step dispute resolution process involving management discussion, optional mediation, and arbitration, with no express language excluding disputes over delivered quantities. Articles 25 and 26 contained entire-agreement and no-oral-amendment clauses. On limitations, the court applied section 3(1) of the Alberta Limitations Act, RSA 2000, c. L-12, which bars a remedial order sought more than two years after a claim becomes discoverable; a footnote also noted the British Columbia Limitation Act, SBC 2012, c. 13, as potentially relevant to the Supplier Agreement's own governing-law clause, though the court did not need to resolve that point.

Reasoning and analysis

On re-hearing, Justice Simard rejected both parties' interpretations of the Verification Provision. The Receiver's position—that RMC's failure to verify within 60 days made an invoice conclusively payable and immune from later challenge—was found to be commercially unreasonable, since it would render other payment conditions in article 6 meaningless and effectively exclude quantity disputes from the broadly worded dispute resolution mechanism in article 22. RMC's position—that verification was a mere option with no consequence, and that the parties had tacitly agreed to a final reconciliation instead—was equally rejected, particularly given evidence from Nicholas Burak that any shared understanding of a "final reconciliation" could not have predated the Supplier Agreement, since it was the parties' first contract. The court instead held that non-verification made RBee's invoices prima facie evidence of delivered quantity, triggering RMC's payment obligation, but did not extinguish RMC's ability to dispute quantities later under article 22, subject to limitations. Applying this to the facts, the court found the Receiver had proven delivery of the quantities in the September and October 2021 Product invoices, since RMC tendered no contrary evidence. On hauling, the court found RBee had proven entitlement only to the $469,687.28 that RMC's own change order with AFDE had approved for the relevant months, not the full $617,044.93 invoiced, as no evidence explained the discrepancy. Turning to RMC's counterclaim that RBee had overcharged it by $7,634,939.43, the court found RMC's "Product Reconciliation"—based on batch-plant records and a single October 31, 2021 laser survey of the stockpile—unreliable, citing the absence of qualified expert evidence on converting surveyed volumes to weights using density factors, unresolved questions about the survey instrument's calibration and the flatness of the stockpile site, and, most fundamentally, that the survey provided only a point-in-time snapshot incapable of showing when any shortfall occurred. This last flaw was fatal because the Alberta Limitations Act barred RMC from pursuing claims for under-deliveries in 2018 and most of 2019, leaving only 2020 and 2021 open, for which the reconciliation could not isolate any shortfall.

Ruling and overall outcome

Because RMC's counterclaim failed on the evidence, the court did not need to decide whether equitable set-off would otherwise have applied. The Receiver, acting for Crown Capital Partner Funding LP, was substantially successful: the court ordered RMC to pay $3,663,496.50, plus GST and interest, for delivered Product, and a further $469,687.28, plus GST and interest, for hauling charges — with the Receiver's claim for the remaining hauling amount and RMC's entire counterclaim otherwise dismissed. The court left costs to be resolved by written submissions, limited to five pages per side, if the parties could not agree within 45 days of the decision.