The Court of Appeal of Alberta has struck a contractor’s counterclaim alleging that a supplier abused legal processes and interfered with project payments, finding that the pleaded facts did not establish either tort.
The June 24 decision in Opabin Sand and Gravel Inc v VINCI GeoInfrastructure Canada Limited, 2026 ABCA 212 arose from an approximately $9-million compensation claim connected to Alberta’s Springbank Off-Stream Reservoir project. The court allowed Opabin’s appeal and struck VINCI’s amended counterclaim for abuse of process and conversion.
The ruling did not decide whether Opabin was owed the compensation it sought. It addressed whether VINCI’s allegations, taken as true for the pleading analysis, disclosed legally viable counterclaims.
A payment dispute became a counterclaim
VINCI was the project’s general contractor. According to the reasons, subcontractors obtained materials from Opabin under purchase orders in 2022, and Opabin was paid for that work.
Opabin alleged that representations and agreements called for its supply work to resume in spring 2023. Instead, it said, the subcontractors stopped proceeding with the remaining purchase orders at VINCI’s direction. Opabin claimed it had incurred additional expenses in reliance on the arrangements.
In July 2023, Opabin notified Alberta of its compensation claim under the Public Works Act. The province withheld progress payments to VINCI and directed the contractor to investigate. Those payments were released after VINCI obtained a letter of credit as security.
Opabin subsequently sued VINCI, the subcontractors and Alberta. VINCI counterclaimed, alleging that Opabin had used its civil action and statutory notice to exert improper economic pressure: either to force acceptance of its compensation demands or to obtain further supply agreements.
An applications judge struck the counterclaim. A King’s Bench judge restored it, finding the claims were not hopeless. The Court of Appeal reversed that result.
Settlement pressure was not enough
The appeal court explained that abuse of process requires more than a damaging or allegedly meritless lawsuit. The tort requires a legal process initiated predominantly to achieve an improper objective outside that process, a definite act or threat advancing the objective, and special damages.
Obtaining compensation from the subcontractors was within the subject of Opabin’s litigation and Public Works Act claim. Seeking settlement of that dispute did not become an improper collateral purpose merely because VINCI alleged the demand lacked merit or created financial pressure.
The court distinguished that objective from using litigation to force new, unrelated commercial agreements. Such a purpose could potentially meet the improper-objective requirement. But VINCI had not pleaded facts supporting that inference beyond its allegation that Opabin wanted further supply contracts.
The same lack of particulars undermined the required connection between an external act and the alleged improper purpose. Even if the statutory notice could be treated as an act outside the civil lawsuit, the counterclaim did not adequately connect it to an effort to obtain unrelated supply agreements. Reversing the analysis—treating the notice as the allegedly abusive process and the lawsuit as the external act—did not cure the problem.
The court did not decide the separate question about the pleading of special damages, because the other deficiencies were sufficient.
Public-works claims were not treated as construction liens
VINCI also relied on a British Columbia decision concerning exaggerated builders’ liens. The Alberta appeal court declined to recognize an analogous novel claim on the facts pleaded.
Alberta’s Prompt Payment and Construction Lien Act expressly provides a remedy for certain grossly exaggerated or meritless liens. The Public Works Act did not provide comparable relief. The court also noted a practical difference: a public-works claim could interrupt payment, but it did not encumber title to land in the way a lien did.
The court rejected VINCI’s argument that the Public Works Act excluded a sub-subcontractor such as Opabin from giving notice. Under the wording applicable when the notice was sent, a person supplying materials reasonably required for a Crown public-works contract could give notice of a claim.
That conclusion was limited. The court did not decide the separate question of a sub-subcontractor’s entitlement to money paid into court. Nor did it determine whether Opabin had filed its notice on time.
The judgment also noted changes to the legislation after the events in dispute, including April 2025 amendments allowing certain lower-value disputes to use adjudication procedures. Its analysis of the 2023 notice should not be read as a complete statement of today’s statutory process.
No conversion of the progress payments
The conversion claim failed for a different reason. Opabin’s notice invoked a statutory mechanism for deciding who was entitled to disputed funds. That did not amount to taking or using VINCI’s payments.
The court left open a broader question about whether a contractual debt or account receivable of this kind could be property subject to conversion. It did not need to resolve that issue because the pleaded notice was not the required wrongful interference.
The unanimous result removed the amended counterclaim. It did not establish that Opabin’s underlying allegations were true, award it $9 million, or finally resolve the parties’ compensation dispute.
