Challenges often arise for Alberta contractors performing work on construction projects constituting “public works” under the Public Works Act (the “Act”).[1] In particular, the Act creates a claims process, but does not provide a statutory timeline by which a claim must be filed with the court to enforce the claim, nor does the Act provide remedies for claims registered improperly or for amounts grossly in excess of what is actually owed. As such, where a claim is filed under the Public Works Act, payments on the public project – wherein the Province of Alberta is the owner – are typically frozen, or reduced, with very little recourse available to the contractor to remedy the situation. Of course, this is the intent of the legislation, but it becomes problematic when the claims are improper or for spurious amounts.
Recently, Miller Thomson’s Construction and Infrastructure Group summarized a noteworthy decision of the Court of King’s Bench of Alberta, Opabin Sand and Gravel Inc. v Tsuu T’ina Contracting Limited Partnership,[2] wherein the Court found that a claim in tort may be available as against parties to a construction project who commence claims under the Public Works Act that fall outside that statute’s provisions in respect to the timing and eligibility of such claims.
However, the Court of Appeal of Alberta (the “Court”) recently overturned the lower court’s decision, holding that the tort of abuse of process was not established in the circumstances.[3] The Court held that the Respondent, Vinci Geoinfrastructure Canada Limited (“Vinci”), had failed to demonstrate that the claim filed under the Public Works Act by the Appellant, Opabin Sand and Gravel Inc. (“Opabin”),was a legal process initiated for the predominant purpose of furthering some indirect, collateral, and improper objective, or that Opabin took or made a definite act or threat in furtherance of that improper purpose by commencing the claim.[4] The Court thus held that the amended counterclaim failed to disclose a reasonable cause of action in abuse of process.
This decision is of importance to Alberta contractors on public works, as it confirms that common law remedies may be unavailable when an improper claim is filed under the Public Works Act. As a result, contractors may continue to encounter difficulties receiving payment when a claim is commenced under the Act.
Background: The Public Works Act claim
Vinci was retained by His Majesty the King in Right of Alberta (the “Crown”) as the general contractor for a construction project on the Springbank Off-Stream Reservoir (the “SR1 Project”), which was undertaken by the Government of Alberta to protect the City of Calgary and its surrounding areas from flooding.[5] The SR1 Project constituted a “public work” under the Public Works Act.[6]
The Crown assigned Vinci subcontracts for materials to be provided by a third-party, Sarcee Gravel Products Ltd. (“Sarcee”).[7] When Sarcee had difficulty in meeting its contractual obligations, it issued purchase orders to Opabin to obtain the necessary materials, which Opabin provided.[8]
Upon Vinci’s instructions, no further purchase orders were issued by Sarcee to Opabin. Opabin alleged that Vinci’s instructions constituted a breach of the parties’ agreement, in that the parties had agreed that Opabin’s provision of materials would resume in Spring 2023 and that Opabin allegedly incurred additional expenses based upon this agreement.[9]
In July 2023, Opabin delivered notice to the Crown of a claim in respect to the Project, in the amount of approximately $9,000,000.00, following which the Crown held back progress payments payable to Vinci, only releasing these progress payments after Vinci obtained a letter of credit as security.[10] Opabin subsequently filed a Statement of Claim as against Vinci and others in relation to the Project.
Vinci counterclaimed as against Opabin, alleging that Opabin was liable for abuse of process and conversion (the “Counterclaim”).[11] Specifically, Vinci alleged that the Statement of Claim and the notice issued to the Crown under the Public Works Act “were advanced for the ‘improper purpose of using the economic pressures caused by withheld progress payments that result from the Opabin [Public Works Act] Claim to improperly pressure Sarcee to acquiesce to Opabin’s claims for compensation or, alternatively, to obtain further supply agreements’” for the Project.[12]
Decisions of the lower courts
Opabin applied to strike the Counterclaim for abuse of process on the basis that it disclosed no reasonable cause of action, pursuant to Rule 3.68(2)(b) of the Alberta Rules of Court. The Applications Judge found that the Counterclaim should be struck, as “[f]iling a claim under the [Public Works Act] is not ‘a legal process’ within the meaning of that term”.[13] Rather, “the process for addressing a claim under the Public Works Act is administrative, not legal”.[14]
On appeal, the Court of King’s Bench of Alberta reversed the Application Judge’s decision, finding that the Counterclaim satisfied each of the four requisite elements for abuse of process:[15]
- The plaintiff is a party to a legal process initiated by the defendant;
- the legal process was initiated for the predominant purpose of furthering some indirect, collateral and improper objective;
- the defendant took or made a definite act or threat in furtherance of the improper purpose; and
- some measure of special damages has resulted.
In determining whether to strike the Counterclaim for abuse of process, the court found as follows:
- First, the court found that the Counterclaim “specifically alleged the Civil Claim was an abuse of process, which satisfied the first element of the tort”;[16]
- second, the Counterclaim “identified an improper purpose ‘of using economic pressures caused by withheld progress payments’ to ‘obtain acquiescence to Opabin’s ‘claims for compensation’ or [to] obtain ‘further supply agreements’”;[17]
- third, notice of a claim under the Public Works Act may constitute a “’definite act’ outside the legal process”, which should be determined on a full evidentiary record;[18] and
- fourth, “the fact that the special damages pleaded arose from the Public Works Act [and] not the Civil Claim did not preclude the action from proceeding”.[19]
Opabin further appealed the decision to the Court of Appeal of Alberta.
The Public Works Act claim was not commenced for an improper purpose
The Court of Appeal held that, while the Court of King’s Bench correctly identified the relevant legal test for the tort of abuse of process, it “erred in law with respect to the scope of the tort”.[20]
In respect to the first element of the test, the Court held that “abuse of administrative process can give rise to liability under the tort of abuse of process”.[21] The Public Works Act permits courts to determine disputed claims and, therefore, the administrative “procedures are … not siloed from those of the court, suggesting their abuse may give rise to the same concerns with protecting court resources that animate … the tort of abuse of process”.[22]
However, in considering the second element of the test, the Court held that “[t]he improper purpose must be the predominant purpose of, and external to, the impugned proceedings”.[23] That is, “[t]he legal process must have been used ‘to gain an end which the legal process does not entitle the plaintiff to obtain’”.[24] Merely advancing a claim to achieve settlement, or seeking to antagonize, impoverish, or intimidate a defendant, does not suffice to establish an ‘improper purpose’.[25]
While determining whether a claim was advanced for an ‘improper purpose’ is a fact-specific exercise, the commencement of the claim must be for the purpose of “exploit[ing] the law to accomplish an end outside the law’s parameters”.[26] In this case, however, the Public Works Act expressly contemplates the type of claim advanced, such that “[t]he alleged purpose of pressuring Sarcee into settlement … falls within, not ‘entirely outside’, the ambit of the Public Works Act claim”.[27]
Further, while commencing a claim for the purpose “of securing further, unrelated supply agreements” could constitute an indirect, collateral, and improper objective sufficient to satisfy the second element of the tort, the facts pleaded in the Counterclaim did not support that assertion.[28]
Thus, the Court held that, “[a]s the alleged improper purpose of obtaining compensation from Sarcee was within the ambit of the legal process … that purpose does not constitute an indirect, collateral and improper objective sufficient to satisfy the second element of the tort”.[29]
The Public Works Act claim was not an act in furtherance of an improper purpose
In considering the third element of the test for abuse of process, the Court held that the requirement of “an overt act or threat exists to prevent the risk that ‘any legal process could be challenged on account of its hidden agenda’”.[30] Therefore, “[t]he overt act must be external to the impugned claim [and fall] ‘outside the ambit of the action’, rather than simply arising from … alleged bad motives”.[31]
In this case, the Court acknowledged that the allegation that the Public Works Act claim was in furtherance of an improper purpose constituted a novel claim, unrecognized in law.[32] Further, while Section 40 of the PPCLA imposes liability on a party filing “grossly exaggerated liens or liens which they know or ought to know are without merit”, the Public Works Act does not provide for such statutory relief.[33]
Thus, given “the legislature has chosen to provide relief for improper use of one type of pre-judgment enforcement mechanism, but not for another”, the Court “decline[d] to recognize a novel claim the legislature has chosen not to recognize”.[34]
Key takeaways for parties whose payments are withheld under the Public Works Act
While the lower court’s decision in Opabin Sand permitted contractors to commence tort claims as against parties bringing improper claims under the Public Works Act, the Court of Appeal has narrowed the scope for such common law remedies. Practically speaking, the Court of Appeal’s decision reaffirms the previously existing gap in the Public Works Act, such that payments may continue to be withheld from contractors on a “public work” construction project because of improper claims brought under the Act, except in limited circumstances.
While the effect of the Court’s decision in Opabin Sand remains to be seen, parties to construction projects should be aware of their potential entitlement to common law remedies after payments have been withheld under the Public Works Act. If you require support in navigating claims brought under the Public Works Act, Miller Thomson’s Construction and Infrastructure lawyers are prepared to assist you in obtaining meaningful remedies and in providing practical advice.
[1] RSA 2000, c P-46 [Public Works Act].
[2] 2025 ABKB 623 [Opabin Sand #1].
[3] Alta Reg 124/2010 [Alberta Rules of Court].
[4] 2026 ABCA 212 [Opabin Sand #2].
[5] Ibid at para 4.
[6] Public Works Act, supra note 1, s. 1(g).
[7] Opabin Sand #2, supra note 4 at para 2.
[8] Ibid at para 2.
[9] Ibid at para 3.
[10] Ibid at para 4; Public Works Act, supra note 1, s. 14(1).
[11] Opabin Sand #2, ibid at para 6.
[12] Ibid.
[13] Ibid at para 12.
[14] Ibid.
[15] Ibid at paras 13, 19.
[16] Ibid at para 14, citing Opabin Sand #1, supra note 2 at para 63.
[17] Ibid at para 15, citing Opabin Sand #1, supra note 2 at para 64.
[18] Ibid at para 17, citing Opabin Sand #1, supra note 2 at para 67.
[19] Ibid at para 18, citing Opabin Sand #1, supra note 2 at paras 69-70.
[20] Ibid at paras 20-21.
[21] Ibid at para 25, citing Grenon v Canada Revenue Agency, 2017 ABCA 96.
[22] Ibid at para 26.
[23] Ibid at para 30.
[24] Ibid.
[25] Ibid at para 31.
[26] Ibid at para 33.
[27] Ibid at para 38.
[28] Ibid at para 47.
[29] Ibid at para 41.
[30] Ibid at para 50, citing Sappideen et al, Fleming’s The Law of Torts, 11th ed (Pyrmont, NSW: Thomson Reuters [Professional] Australia Limited: Lawbook Co, 2024) at 816.
[31] Ibid.
[32] Ibid at para 57.
[33] Ibid at para 58.
[34] Ibid.
