Challenges often arise for Alberta contractors performing work on construction projects constituting \u201cpublic works\u201d under the Public Works Act <\/em>(the \u201cAct<\/strong>\u201d).[1]<\/a> 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<\/em>, payments on the public project \u2013 wherein the Province of Alberta is the owner \u2013 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.<\/p>\n\n\n\n Recently, Miller Thomson\u2019s Construction and Infrastructure Group summarized a noteworthy decision of the Court of King\u2019s Bench of Alberta, Opabin Sand and Gravel Inc. v Tsuu T\u2019ina Contracting Limited Partnership<\/em><\/a>,[2]<\/a> 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<\/em> that fall outside that statute\u2019s provisions in respect to the timing and eligibility of such claims. <\/p>\n\n\n\n However, the Court of Appeal of Alberta (the \u201cCourt<\/strong>\u201d) recently overturned the lower court\u2019s decision, holding that the tort of abuse of process was not established in the circumstances.[3]<\/a> The Court held that the Respondent, Vinci Geoinfrastructure Canada Limited (\u201cVinci<\/strong>\u201d), had failed to demonstrate that the claim filed under the Public Works Act <\/em>by the Appellant, Opabin Sand and Gravel Inc. (\u201cOpabin<\/strong>\u201d),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]<\/a> The Court thus held that the amended counterclaim failed to disclose a reasonable cause of action in abuse of process.<\/p>\n\n\n\n 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<\/em>. As a result, contractors may continue to encounter difficulties receiving payment when a claim is commenced under the Act. <\/p>\n\n\n\n Vinci was retained by His Majesty the King in Right of Alberta (the \u201cCrown<\/strong>\u201d) as the general contractor for a construction project on the Springbank Off-Stream Reservoir (the \u201cSR1 Project<\/strong>\u201d), which was undertaken by the Government of Alberta to protect the City of Calgary and its surrounding areas from flooding.[5]<\/a> The SR1 Project constituted a \u201cpublic work\u201d under the Public Works Act<\/em>.[6]<\/a><\/p>\n\n\n\n The Crown assigned Vinci subcontracts for materials to be provided by a third-party, Sarcee Gravel Products Ltd. (\u201cSarcee<\/strong>\u201d).[7]<\/a> When Sarcee had difficulty in meeting its contractual obligations, it issued purchase orders to Opabin to obtain the necessary materials, which Opabin provided.[8]<\/a><\/p>\n\n\n\n Upon Vinci\u2019s instructions, no further purchase orders were issued by Sarcee to Opabin. Opabin alleged that Vinci\u2019s instructions constituted a breach of the parties\u2019 agreement, in that the parties had agreed that Opabin\u2019s provision of materials would resume in Spring 2023 and that Opabin allegedly incurred additional expenses based upon this agreement.[9]<\/a><\/p>\n\n\n\n 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]<\/a> Opabin subsequently filed a Statement of Claim as against Vinci and others in relation to the Project.<\/p>\n\n\n\n Vinci counterclaimed as against Opabin, alleging that Opabin was liable for abuse of process and conversion (the \u201cCounterclaim<\/strong>\u201d).[11]<\/a> Specifically, Vinci alleged that the Statement of Claim and the notice issued to the Crown under the Public Works Act <\/em>\u201cwere advanced for the \u2018improper purpose of using the economic pressures caused by withheld progress payments that result from the Opabin [Public Works Act<\/em>] Claim to improperly pressure Sarcee to acquiesce to Opabin\u2019s claims for compensation or, alternatively, to obtain further supply agreements\u2019\u201d for the Project.[12]<\/a><\/p>\n\n\n\n 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<\/em>. The Applications Judge found that the Counterclaim should be struck, as \u201c[f]iling a claim under the [Public Works Act<\/em>] is not \u2018a legal process\u2019 within the meaning of that term\u201d.[13]<\/a> Rather, \u201cthe process for addressing a claim under the Public Works Act <\/em>is administrative, not legal\u201d.[14]<\/a><\/p>\n\n\n\n On appeal, the Court of King\u2019s Bench of Alberta reversed the Application Judge\u2019s decision, finding that the Counterclaim satisfied each of the four requisite elements for abuse of process:[15]<\/a><\/p>\n\n\n\n In determining whether to strike the Counterclaim for abuse of process, the court found as follows:<\/p>\n\n\n\n Opabin further appealed the decision to the Court of Appeal of Alberta.<\/p>\n\n\n\n The Court of Appeal held that, while the Court of King\u2019s Bench correctly identified the relevant legal test for the tort of abuse of process, it \u201cerred in law with respect to the scope of the tort\u201d.[20]<\/a><\/p>\n\n\n\n In respect to the first element of the test, the Court held that \u201cabuse of administrative process can give rise to liability under the tort of abuse of process\u201d.[21]<\/a> The Public Works Act <\/em>permits courts to determine disputed claims and, therefore, the administrative \u201cprocedures are … not siloed from those of the court, suggesting their abuse may give rise to the same concerns with protecting court resources that animate \u2026 the tort of abuse of process\u201d.[22]<\/a><\/p>\n\n\n\n However, in considering the second element of the test, the Court held that \u201c[t]he improper purpose must be the predominant purpose of, and external to, the impugned proceedings\u201d.[23]<\/a> That is, \u201c[t]he legal process must have been used \u2018to gain an end which the legal process does not entitle the plaintiff to obtain\u2019\u201d.[24]<\/a> Merely advancing a claim to achieve settlement, or seeking to antagonize, impoverish, or intimidate a defendant, does not suffice to establish an \u2018improper purpose\u2019.[25]<\/a><\/p>\n\n\n\n While determining whether a claim was advanced for an \u2018improper purpose\u2019 is a fact-specific exercise, the commencement of the claim must be for the purpose of \u201cexploit[ing] the law to accomplish an end outside the law\u2019s parameters\u201d.[26]<\/a> In this case, however, the Public Works Act <\/em>expressly contemplates the type of claim advanced, such that \u201c[t]he alleged purpose of pressuring Sarcee into settlement \u2026 falls within, not \u2018entirely outside\u2019, the ambit of the Public Works Act <\/em>claim\u201d.[27]<\/a><\/p>\n\n\n\n Further, while commencing a claim for the purpose \u201cof securing further, unrelated supply agreements\u201d 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]<\/a><\/p>\n\n\n\n Thus, the Court held that, \u201c[a]s the alleged improper purpose of obtaining compensation from Sarcee was within the ambit of the legal process \u2026 that purpose does not constitute an indirect, collateral and improper objective sufficient to satisfy the second element of the tort\u201d.[29]<\/a><\/p>\n\n\n\n In considering the third element of the test for abuse of process, the Court held that the requirement of \u201can overt act or threat exists to prevent the risk that \u2018any legal process could be challenged on account of its hidden agenda\u2019\u201d.[30]<\/a> Therefore, \u201c[t]he overt act must be external to the impugned claim [and fall] \u2018outside the ambit of the action\u2019, rather than simply arising from \u2026 alleged bad motives\u201d.[31]<\/a><\/p>\n\n\n\n In this case, the Court acknowledged that the allegation that the Public Works Act <\/em>claim was in furtherance of an improper purpose constituted a novel claim, unrecognized in law.[32]<\/a> Further, while Section 40 of the PPCLA <\/em>imposes liability on a party filing \u201cgrossly exaggerated liens or liens which they know or ought to know are without merit\u201d, the Public Works Act <\/em>does not provide for such statutory relief.[33]<\/a><\/p>\n\n\n\n Thus, given \u201cthe legislature has chosen to provide relief for improper use of one type of pre-judgment enforcement mechanism, but not for another\u201d, the Court \u201cdecline[d] to recognize a novel claim the legislature has chosen not to recognize\u201d.[34]<\/a><\/p>\n\n\n\n While the lower court\u2019s decision in Opabin<\/em> Sand <\/em>permitted contractors to commence tort claims as against parties bringing improper claims under the Public Works Act<\/em>, the Court of Appeal has narrowed the scope for such common law remedies. Practically speaking, the Court of Appeal\u2019s decision reaffirms the previously existing gap in the Public Works Act<\/em>, such that payments may continue to be withheld from contractors on a \u201cpublic work\u201d construction project because of improper claims brought under the Act, except in limited circumstances.<\/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 lawyers<\/a> 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 #1<\/em>].<\/p>\n\n\n\n [3]<\/a> Alta Reg 124\/2010 [Alberta Rules of Court<\/em>].<\/p>\n\n\n\n [4]<\/a> 2026 ABCA 212 [Opabin Sand #2<\/em>].<\/p>\n\n\n\n [5]<\/a> Ibid <\/em>at para 4.<\/p>\n\n\n\n [6]<\/a> Public Works Act<\/em>, supra <\/em>note 1, s. 1(g).<\/p>\n\n\n\n [7]<\/a> Opabin Sand #2, supra <\/em>note 4 at para 2.<\/p>\n\n\n\n [8]<\/a> Ibid<\/em> at para 2.<\/p>\n\n\n\n [9]<\/a> Ibid<\/em> at para 3.<\/p>\n\n\n\n [10]<\/a> Ibid<\/em> at para 4; Public Works Act, supra <\/em>note 1, s. 14(1).<\/p>\n\n\n\n [11]<\/a> Opabin Sand #2, ibid<\/em> at para 6.<\/p>\n\n\n\n [12]<\/a> Ibid.<\/em><\/p>\n\n\n\n [13]<\/a> Ibid <\/em>at para 12.<\/p>\n\n\n\n [14]<\/a> Ibid<\/em>.<\/p>\n\n\n\n [15]<\/a> Ibid <\/em>at paras 13, 19.<\/p>\n\n\n\n [16]<\/a> Ibid <\/em>at para 14, citing Opabin Sand #1, supra <\/em>note 2 at para 63.<\/p>\n\n\n\n [17]<\/a> Ibid <\/em>at para 15, citing Opabin Sand #1, supra <\/em>note 2 at para 64.<\/p>\n\n\n\n [18]<\/a> Ibid <\/em>at para 17, citing Opabin Sand #1, supra <\/em>note 2 at para 67.<\/p>\n\n\n\n [19]<\/a> Ibid <\/em>at para 18, citing Opabin Sand #1, supra <\/em>note 2 at paras 69-70.<\/p>\n\n\n\n [20]<\/a> Ibid <\/em>at paras 20-21.<\/p>\n\n\n\n [21]<\/a> Ibid <\/em>at para 25, citing Grenon v Canada Revenue Agency<\/em>, 2017 ABCA 96.<\/p>\n\n\n\n [22]<\/a> Ibid <\/em>at para 26.<\/p>\n\n\n\n [23]<\/a> Ibid <\/em>at para 30.<\/p>\n\n\n\n [24]<\/a> Ibid<\/em>.<\/p>\n\n\n\n [25]<\/a> Ibid <\/em>at para 31.<\/p>\n\n\n\n [26]<\/a> Ibid <\/em>at para 33.<\/p>\n\n\n\n [27]<\/a> Ibid <\/em>at para 38.<\/p>\n\n\n\n [28]<\/a> Ibid <\/em>at para 47.<\/p>\n\n\n\n [29]<\/a> Ibid <\/em>at para 41.<\/p>\n\n\n\n [30]<\/a> Ibid <\/em>at para 50, citing Sappideen et al, Fleming\u2019s The Law of Torts<\/em>, 11th ed (Pyrmont, NSW: Thomson \u00a0Reuters [Professional] Australia Limited: Lawbook Co, 2024) at 816.<\/p>\n\n\n\n [31]<\/a> Ibid<\/em>.<\/p>\n\n\n\n [32]<\/a> Ibid <\/em>at para 57.<\/p>\n\n\n\nBackground: The Public Works Act<\/em> claim <\/h2>\n\n\n\n
Decisions of the lower courts<\/h2>\n\n\n\n
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The Public Works Act <\/em>claim was not commenced for an improper purpose<\/h2>\n\n\n\n
The Public Works Act <\/em>claim was not an act in furtherance of an improper purpose<\/h2>\n\n\n\n
Key takeaways for parties whose payments are withheld under the Public Works Act<\/em><\/h2>\n\n\n\n
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