When a claim is filed under Alberta\u2019s Public Works Act<\/em>, payments on a public project (where the Province of Alberta is the owner) can be frozen with very little recourse for the contractor. Despite recent amendments, Alberta contractors performing work on a construction project that constitutes a \u201cpublic work\u201d under the Public Works Act<\/em>[1]<\/a>will continue to be challenged by the Act\u2019s simplified claims process as it provides almost no opportunity to challenge claims submitted against a public project. This is consistently an issue as the provincial government will almost certainly withhold payments from the contractor where there are outstanding Public Works claims.<\/p>\n\n\n\n In a noteworthy decision, Opabin Sand and Gravel Inc. v Tsuu T\u2019ina Contracting Limited Partnership<\/em><\/a>,[2]<\/a> the court found that common law remedies, including claims in tort, may be available as against parties to a construction project who commence claims under the Public Works Act<\/em> that fall outside that statute\u2019s provisions in respect to eligible claims and the timing of such claims. <\/p>\n\n\n\n This decision is of importance to general contractors on public works because it suggests there may be a route to recovery when wrongful claims under the Act lead to withholding of funds.<\/p>\n\n\n\n In Opabin Sand<\/em>,the appellant corporation, Vinci Geoinfrastructure Canada Limited (\u201cVinci<\/strong>\u201d), was retained by His Majesty the King in Right of Alberta (the \u201cCrown<\/strong>\u201d) as the general contractor for construction work on the Springbank Off-Stream Reservoir (the \u201cSR1 Project<\/strong>\u201d), a project undertaken by the Government of Alberta to protect the City of Calgary and its surrounding areas from flooding.[3]<\/a> Pursuant to Section 1(g) of the Public Works Act<\/em> (the \u201cAct<\/strong>\u201d), the SR1 Project constituted a \u201cpublic work\u201d.[4]<\/a><\/p>\n\n\n\n As part of its work on the SR1 Project, Vinci was required to work with subcontractors that were selected by the Crown, including Sarcee Sand and Gravel Products Limited Partnership (\u201cSarcee<\/strong>\u201d).[5]<\/a><\/p>\n\n\n\n In Summer 2022, after Sarcee encountered difficulty in fulfilling its aggregate supply obligations, Vinci directed Sarcee to implement a recovery plan to address Sarcee\u2019s delivery delays.[6]<\/a> Sarcee subsequently retained the Respondent, Opabin Sand and Gravel Inc (\u201cOpabin<\/strong>\u201d), as sub-subcontractor to assist Sarcee in fulfilling its supply obligations.[7]<\/a> Between August and September 2022, Opabin delivered materials to Sarcee for the SR1 Project, for which Opabin was paid in full.[8]<\/a><\/p>\n\n\n\n In July 2023, Opabin submitted a Notice of Claim pursuant to Section 14 of the Act, in the amount of approximately $9 million, \u201cfor \u2018costs related to material processing, site setup, mobilization, permitting, agreements, royalties, labour, equipment, financing, management, and damages that are extra and are currently unrecoverable\u2019\u201d (the \u201cPWA Claim<\/strong>\u201d).[9]<\/a><\/p>\n\n\n\n The Crown subsequently withheld payments from Vinci in the amount of the PWA Claim.[10]<\/a> However, Vinci investigated the PWA Claim and found that:<\/p>\n\n\n\n 1. Opabin was not a recognized claimant under the Act;<\/p>\n\n\n\n 2. Opabin submitted the PWA Claim late; and<\/p>\n\n\n\n 3. the PWA Claim claimed for damages that were not permitted under the Act.[11]<\/a><\/p>\n\n\n\n Opabin commenced an action as against Vinci and other entities, claiming it had incurred damages in the amount of the PWA Claim after relying on representations that further work would be assigned for the SR1 Project.[12]<\/a> Vinci filed a statement of defence and counterclaim, \u201casserting \u2026 it had no contractual relationship with Opabin\u201d.[13]<\/a> Vinci subsequently filed an amended counterclaim, alleging that, among other things, the PWA Claim and the action were an abuse of process, brought for the purpose of applying pressure on Sarcee \u201cto acquiesce to Opabin\u2019s claims for compensation or, alternatively, to obtain further supply agreements, for the SR1 Project or otherwise\u201d.[14]<\/a><\/p>\n\n\n\n The amended counterclaim also alleged that:[15]<\/a><\/p>\n\n\n\n Opabin applied to strike Vinci\u2019s amended counterclaim on the basis that it disclosed no reasonable cause of action, pursuant to Rule 3.68(2)(b) of the Alberta Rules of Court<\/em>.[16]<\/a> An Applications Judge granted Opabin\u2019s application, which was appealed to a Justice of the Court of King\u2019s Bench of Alberta.[17]<\/a><\/p>\n\n\n\n Rule 3.68(2)(b) permits Alberta courts \u201cto strike all or part of a pleading if it is plain and obvious it discloses no reasonable cause of action\u201d.[18]<\/a> The threshold for striking a claim under the Rule \u201cis \u2018extremely high\u2019\u201d, such that \u201c[i]t must be \u2018beyond doubt\u2019 the claim will fail\u201d.[19]<\/a><\/p>\n\n\n\n In considering an application to strike pleadings under Rule 3.68(2)(b), a court will \u201cassume the facts pled are true on their face \u2018without resort to evidence and without considering the merits of the claim except to the extent the allegations are based on assumptions or speculations or where they are patently ridiculous or incapable of proof\u201d.[20]<\/a><\/p>\n\n\n\n The tort of abuse of process addresses \u201csituations where the legal process is used \u2018to gain an end which the legal process does not entitle the plaintiff to obtain\u201d.[21]<\/a> To succeed in establishing abuse of process, a plaintiff must establish that:[22]<\/a> <\/p>\n\n\n\n For a legal process to constitute \u201can \u2018improper purpose\u2019, the proceeding must be brought for a purpose \u2018outside the ambit of the litigation\u2019 that the party knew or ought to have known was unfounded\u201d.[23]<\/a> Here, the court found that:[24]<\/a><\/p>\n\n\n\n Thus, it was \u201cnot <\/em>plain and obvious \u2026 that [Opabin\u2019s claim] was not <\/em>brought for an improper purpose\u201d.[25]<\/a><\/p>\n\n\n\n In considering the third element, Vinci\u2019s amended counterclaim alleged that \u201cthe PWA Claim was used to disrupt payment flows and \u2018harm Vinci\u2019s financial interests\u2019\u201d.[26]<\/a> The court found that determining whether the PWA Claim constitutes a \u201cdefinite act\u201d in furtherance of an improper purpose should be determined on a full evidentiary record.[27]<\/a> Finally, the court found that the amended counterclaim plead for special damages relating to the PWA Claim, as Vinci incurred costs for investigating and responding to the PWA Claim.[28]<\/a><\/p>\n\n\n\n Thus, while the court found that Vinci may ultimately be unsuccessful in its counterclaim, it allowed this ground of appeal and declined to strike the provisions in the amended counterclaim in respect to abuse of process.[29]<\/a><\/p>\n\n\n\n The tort of conversion \u201cinvolves a wrongful interference with the goods of another, such as taking, using or destroying these goods in a manner inconsistent with the owner\u2019s right of possession\u201d.[30]<\/a> The elements of conversion include:[31]<\/a><\/p>\n\n\n\n An owner must establish that, at all relevant times, it had possession or an immediate right of possession to the chattel.[32]<\/a><\/p>\n\n\n\n In determining whether the amended counterclaim should be struck for failing to disclose a reasonable cause of action in relation to a claim for conversion, the court found that, under the first element, it was arguable that the filing of the PWA Claim constituted a wrongful act because \u201cOpabin was not in the class of claimants contemplated by the [Act], filed its claim out of time, and the damages sought [did] not fit within the parameters of the [Act]\u201d.[33]<\/a><\/p>\n\n\n\n Second, the court found it was \u201cnot hopeless that Vinci could show it had a right of possession to the amount withheld by the Minister pursuant to the PWA Claim\u201d, as Section 15 of the Act provides that funds \u201cpaid in respect of a claim are deducted from the money\u2019 due and payable to the contractor\u2019\u201d.[34]<\/a><\/p>\n\n\n\n In considering the third and fourth elements for the tort of conversion, it was \u201cforeseeable that filing the PWA Claim would have resulted in the progress payments due to Vinci being withheld\u201d as, pursuant to Section 15 of the Act, the Minister has discretion over the administration of progress payments.[35]<\/a> The filing of the PWA Claim also effectively denied Vinci\u2019s access to the funds, which \u201cwhich were no longer due and payable at the relevant time\u201d.[36]<\/a><\/p>\n\n\n\n Thus, the court allowed this ground of appeal, finding that the provisions in the amended counterclaim in respect to conversion were sufficiently plead and the claim in conversion was not hopeless.<\/p>\n\n\n\n While Opabin<\/em> Sand <\/em>merely considered the claims for abuse of process and conversion in relation to an application to strike a counterclaim pursuant to Rule 3.68(2)(b), the decision provides support for permitting contractors to commence tort claims against parties bringing improper claims brought under the Public Works Act<\/em>, such as those that are ineligible under the Public Works Act <\/em>or those brought for the purpose of triggering the Minister\u2019s withholding of funds.<\/p>\n\n\n\n Practically speaking, the decision helps fill a gap in the current legislation by permitting a party to seek a common law remedy where payments have been withheld on a \u201cpublic work\u201d construction project because of an improper claim brought under the Public Works Act.<\/em><\/p>\n\n\n\n Such claims often present difficulties as, unlike the Prompt Payment and Construction Lien Act<\/em>, which provides for a period of 180 days to file a Statement of Claim,[37]<\/a> the Public Works Act <\/em>fails to provide a statutory timeline by which a claim must be commenced. Further, the PPCLA <\/em>provides for remedies where a lien is registered improperly or for an amount grossly in excess of what is owed, including the imposition of legal costs and damages.[38]<\/a> In contrast, no such remedies are available under the Public Works Act<\/em> for improper claims.<\/p>\n\n\n\n While the effect of the court\u2019s decision in Opabin Sand<\/em> 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<\/em>. If you require support in navigating claims brought under the Public Works Act<\/em>, Miller Thomson\u2019s Construction and Infrastructure<\/a> lawyers are prepared to assist you in obtaining meaningful remedies and in providing practical advice. <\/p>\n\n\n\n [1]<\/a> RSA 2000, c P-46 [Public Works Act<\/em>].<\/p>\n\n\n\n [2]<\/a> 2025 ABKB 623 [Opabin Sand<\/em>].<\/p>\n\n\n\n [3]<\/a> Ibid <\/em>at para 4.<\/p>\n\n\n\n [4]<\/a> Public Works Act<\/em>, supra <\/em>note 1, s. 1(g).<\/p>\n\n\n\n [5]<\/a> Opabin Sand, supra <\/em>note 2at para 6.<\/p>\n\n\n\n [6]<\/a> Ibid <\/em>at paras 7-8.<\/p>\n\n\n\n [7]<\/a> Ibid <\/em>at para 9.<\/p>\n\n\n\n [8]<\/a> Ibid <\/em>at paras 9-10.<\/p>\n\n\n\n [9]<\/a> Ibid <\/em>at para 11.<\/p>\n\n\n\n [10]<\/a> Ibid.<\/em><\/p>\n\n\n\n [11]<\/a> Ibid <\/em>at para 12.<\/p>\n\n\n\n [12]<\/a> Ibid <\/em>at para 13.<\/p>\n\n\n\n [13]<\/a> Ibid <\/em>at para 14.<\/p>\n\n\n\n [14]<\/a> Ibid <\/em>at para 16(a).<\/p>\n\n\n\n [15]<\/a> Ibid <\/em>at para 16(c).<\/p>\n\n\n\n [16]<\/a> Ibid <\/em>at para 15.<\/p>\n\n\n\n [17]<\/a> Ibid <\/em>at para 1.<\/p>\n\n\n\n [18]<\/a> Ibid <\/em>at para 37, citing RK v GSG<\/em>, 2024 ABKB 121 at para 12.<\/p>\n\n\n\n [19]<\/a> Opabin Sand, ibid <\/em>at para 61, citing Alberta Adolescent Recovery Centre v Canadian Broadcasting [20]<\/a> Opabin Sand, ibid <\/em>at para 62, citing Shodunke v Alberta<\/em>, 2025 ABKB 250 at para 26.<\/p>\n\n\n\n [21]<\/a> Opabin Sand, ibid <\/em>at para 43, citing Hunt Oil Company of Canada, Inc v Galleon Energy Inc<\/em>, 2010 [22]<\/a> Opabin Sand, ibid <\/em>at para 44, citing 3058354 Nova Scotia Company v On*Site Equipment Ltd.<\/em>, 2011 [23]<\/a> Ibid <\/em>at para 47.<\/p>\n\n\n\n [24]<\/a> Ibid <\/em>at paras 63, 65-67, citing Oei v Hui<\/em>, 2020 BCCA 214 at para 26.<\/p>\n\n\n\n [25]<\/a> Opabin Sand, ibid <\/em>at para 67 (emphasis included).<\/p>\n\n\n\n [26]<\/a> Ibid <\/em>at para 68.<\/p>\n\n\n\n [27]<\/a> Ibid.<\/em><\/p>\n\n\n\n [28]<\/a> Ibid <\/em>at para 69.<\/p>\n\n\n\n [29]<\/a> Ibid <\/em>at paras 70-71.<\/p>\n\n\n\n [30]<\/a> Ibid <\/em>at para 72, citing Boma Manufacturing Ltd v Canadian Imperial Bank of Commerce<\/em>, 140 DLR [31]<\/a> Opabin Sand, ibid <\/em>at paras 73-74, citing Driving Force Inc v I Spy-Eagle Eyes Safety Inc<\/em>, 2022 ABCA [32]<\/a> Ibid <\/em>at para 74.<\/p>\n\n\n\n [33]<\/a> Ibid <\/em>at para 80.<\/p>\n\n\n\n [34]<\/a> Ibid <\/em>at para 81.<\/p>\n\n\n\n [35]<\/a> Ibid <\/em>at para 82.<\/p>\n\n\n\n [36]<\/a> Ibid <\/em>at para 83 (emphasis omitted).<\/p>\n\n\n\n [37]<\/a> RSA 2000, c P-26.4, s. 43 [PPCLA<\/em>].<\/p>\n\n\n\nBackground: How a Public Works Act<\/em> claim led to a $9 million payment holdback<\/h2>\n\n\n\n
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When will courts strike a claim under Rule 3.68?<\/h2>\n\n\n\n
When does a Public Works Act<\/em> claim becomes an abuse of process?<\/h2>\n\n\n\n
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<\/li>\n\n\n\nWhen may a Public Works Act<\/em> claim amount to conversion?<\/h2>\n\n\n\n
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Key takeaways for parties whose payments are withheld under the Public Works Act<\/em><\/h2>\n\n\n\n
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Corporation<\/em>, 2012 ABQB 48 at para 29; Clark v Hunka<\/em>, 2017 ABCA 346 at para 20.<\/p>\n\n\n\n
ABQB 212 at para 18.<\/p>\n\n\n\n
ABCA 168 at para 57.<\/p>\n\n\n\n
(4th) 463, [1997] 2 WWR 153 (SCC).<\/p>\n\n\n\n
25 at paras 30-31.<\/p>\n\n\n\n