RBee Aggregate: one stockpile survey against four seasons of Site C gravel

For four seasons, from about April until the start of winter in each year from 2018 to 2021, RBee Aggregate Consulting Ltd. crushed and washed gravel on the Site C hydroelectric dam project near Fort St. John, British Columbia, and left it in stockpiles east of the batch plant where RMC Construction Materials Inc. turned it into concrete for the dam. Their Supplier Agreement of May 7, 2018 priced the gravel by the tonne and passed the risk of loss to RMC once it reached the piles, per the Reasons for Decision, 2026 ABKB 561, Aug. 7, 2026, paras. 1, 8, 21. RMC paid approximately 35 invoices under it, the last for August 2021, but not the three that followed, for September, October and December 2021, which total $4,485,480.64 with GST, per the Fifth Report of the Receiver, Oct. 28, 2022, paras. 5, 21 and the Reasons for Decision, Aug. 7, 2026, para. 2.

RMC's answer, as the court summarized it, is that RBee charged for more gravel than it delivered, both in those invoices and in earlier ones RMC had paid. On August 7, 2026, after a first hearing, an appeal and a rehearing, Justice C.D. Simard of the Court of King's Bench of Alberta ordered RMC to pay $3,663,496.50 for the aggregate in the three invoices and $469,687.28 for hauling, each plus GST and interest; the receiver failed to prove the remaining $138,702.52 of hauling charges, per the Reasons for Decision, Aug. 7, 2026, paras. 3, 5, 42. On August 17, RMC filed a second notice of appeal, per the Civil Notice of Appeal, filed Aug. 17, 2026, p. 1.

A receivable and a set-off

RBee was incorporated on or around September 13, 2017. In November 2017 it assumed $17,255,000 of the Petrowest group's debt to a Crown Capital fund as consideration for assets it bought out of Petrowest's receivership; as adjusted and with interest, the debt stood at $22,734,432.15 on March 7, 2022. The fund, by then RBee's sole voting shareholder, applied for a receiver under s. 243(1) of the Bankruptcy and Insolvency Act, per the Second Report of the Trustee, Mar. 9, 2026, para. 1 and the Affidavit of Tim Oldfield, Mar. 7, 2022, paras. 5–10, 26. On March 11, 2022 Justice A.D. Grosse appointed FTI Consulting Canada Inc. as receiver. RBee reported approximately $8.2 million of receivables and holdbacks that day; approximately $4.5 million of it, plus interest, was the RMC invoices, per the Fifth Report of the Receiver, Oct. 28, 2022, paras. 1–2, 5. A bankruptcy order followed on May 18, 2022, with FTI as trustee, per the Second Report of the Trustee, Mar. 9, 2026, para. 4.

The receiver spoke to RMC on March 15, 2022; by the receiver's account, RMC said it "had recently become aware that RBee had undersupplied Product over the course of the Supplier Agreement," and a letter from its counsel on April 12 put its set-off claim at approximately $3.2 million more than the unpaid invoices. The letter said the reconciliation behind the figure had been "corroborated by third parties (BC Hydro and AFDE)," AFDE being the Aecon-Flatiron-Dragados-EBC Partnership, the project's prime contractor. The receiver asked AFDE. Aecon's senior legal counsel, writing for AFDE, replied that "[i]t is true that AFDE conducted surveys of aggregate stockpiles but this was done for AFDE's Quality Control processes, not billing," per the Fifth Report of the Receiver, Oct. 28, 2022, paras. 18, 29, 33–38.

When the receiver asked the court to order payment in October 2022, it argued that RMC had not used its verification rights within 60 days of each delivery and was "now time-barred from challenging the volume of Products delivered." It also attacked the reconciliation itself, which it called "a point in time measurement that purports to verify the Product delivered throughout the entirety of the Supplier Agreement" and which "does not establish which delivery of Product was allegedly undersupplied," per the Fifth Report of the Receiver, Oct. 28, 2022, paras. 47(f), 49.

The Fifth Report also recorded that on May 6, 2022 the court had approved the receiver's sale of RBee's Site C equipment to A-1 Quality Belting Ltd., wholly owned by RBee's former principal, Bernie Reed; the receiver understood that RBee's former management was now supplying RMC through A-1, and said the relationship had made it harder to get their cooperation, per the Fifth Report of the Receiver, Oct. 28, 2022, paras. 41–43. RMC's account is that it faced $25,000 a day in liquidated damages if concrete was not available on a pour day, needed a supplier urgently, and "had little choice," per the Brief of Law of RMC Construction Materials, Mar. 6, 2026, paras. 9, 26.

Two readings of one clause

The dispute turned on article 5 of the agreement: "All payments from [RMC] to [RBee] will be subject to third-party verification (the 'Verifications') of volume of Products, and a certification will emanate from [RMC] or its designates within sixty (60) days of delivery." RMC commissioned no verification of any of RBee's deliveries. Justice Romaine read the clause as the one way the parties had agreed RMC could challenge RBee's quantities; having let the 60 days run, RMC had lost that right, and on December 18, 2023 she ordered it to pay the whole claim. She also excluded the second affidavit of Nicholas Burak, RMC's vice-president and chief financial officer, as opinion evidence and parol evidence and as filed late. In April 2025 the Court of Appeal held articles 5 and 9 ambiguous, said the extrinsic evidence including Mr. Burak's second affidavit should have been admitted, and sent the application back for rehearing without itself interpreting the provisions, per the Reasons for Decision, Aug. 7, 2026, paras. 6–11.

Justice Simard reheard it in March 2026 and took further written submissions on April 1 and 8. Her reading sits between the parties': RMC could, but did not have to, commission a verification; if it did not, it accepted the invoice "on a prima facie basis" and had to pay it, but it kept the right to dispute the quantities later under the agreement's dispute clause, article 22, subject to limitations law. The receiver's reading, under which payment became final whenever RMC skipped a verification, she found "unreasonable and commercially impractical": it would arguably render meaningless the conditions of payment in article 6, and reading quantity disputes out of article 22 would be "commercially absurd." RMC's reading, a free option followed by an end-of-project reconciliation, was "also untenable," because the parties had listed in article 6(c) what RBee had to provide to be paid on its final invoice and a reconciliation was not among them. Mr. Burak's evidence that RBee shared that understanding from "prior" projects got no weight, since the Supplier Agreement was the first contract between the two. "This result follows logically from the very essence of the parties' arrangement: RMC was only to pay for quantities it actually received," per the Reasons for Decision, Aug. 7, 2026, paras. 12, 17, 25–30.

On that reading the receiver proved the product invoices. Each came with a daily log, and in the judge's words RMC "does not deny that RBee delivered Products on each of the days listed in the two invoices" and "has tendered no evidence to prove that the quantities listed in the two invoices were not accurate," per the Reasons for Decision, Aug. 7, 2026, paras. 34–35.