ADM Measurements Ltd. v. Bullet Electric Ltd. et al., 2012 ABQB 150

• Judge: Germain, J.
• Court: Court of Queen's Bench of Alberta (Canada)
• Case Date: March 07, 2012
• Citations: 2012 ABQB 150;(2012), 534 A.R. 333 (QB)

ADM Measurements Ltd. v. Bullet Electric Ltd. (2012), 534 A.R. 333 (QB)

MLB headnote and full text

Temp. Cite: [2012] A.R. TBEd. MR.093

ADM Measurements Ltd. (plaintiffs) v. Bullet Electric Ltd., Bullet Energy (Canada) Inc., Gregory William Young and Larry Warnock (defendants)

(0203 17582; 2012 ABQB 150)

Indexed As: ADM Measurements Ltd. v. Bullet Electric Ltd. et al.

Alberta Court of Queen's Bench

Judicial District of Edmonton

Germain, J.

March 7, 2012.

Summary:

The business relationship between Young (the director of Bullet Electric Ltd.) and ADM Measurements Ltd., broke down in September 2000, when Young ceased to be an employee at ADM. Young and Warnock formed a new company, Bullet Energy (Canada) Inc., in direct competition with ADM. Bullet Energy was immediately successful. ADM's revenues dropped. ADM sued Young and Bullet Electric, for breach of an alleged fiduciary duty. ADM also sued Bullet Energy and Warnock: (1) for unjustly enriching themselves at the expense of ADM, and (2) by unfairly interfering with contractual relationships between ADM and its customers and employees. ADM claimed some $2.5 million in damages. Young and Bullet Electric counterclaimed for unpaid bonuses.

The Alberta Court of Queen's Bench dismissed ADM's claim. The court allowed the counterclaim in the amount of $176,387 plus pre-judgement interest.

Company Law - Topic 4753

Contracts by companies - When and how company bound - Whether contract made by company - [See first Master and Servant - Topic 303 ].

Damages - Topic 4044

Interference with economic relations - Interference with business relations - Measure of damages - Young ceased to be an employee at ADM - He formed a new company (Bullet Energy) with Warnock, in direct competition with ADM - ADM's revenues dropped - ADM sued Young for breach of an alleged fiduciary duty - ADM also sued Bullet Energy and Warnock for interfering with contractual relationships between ADM and its customers and employees - ADM claimed some $2.5 million in damages - The Alberta Court of Queen's Bench concluded that the defendants did not engage in unlawful conduct towards ADM, and that ADM had not established a causative link between any alleged wrongdoing and its reduced business profits - The court provisionally assessed damages, in the event its analysis was incorrect, and concluded that the "plaintiff's loss" model was appropriate, rather than the "disgorgement of profits" approach - Given the nature of Young's alleged misconduct, ADM was owed, at best, its lost profits - See paragraphs 190 to 195.

Equity - Topic 3606

Fiduciary or confidential relationships - General principles - What constitutes a fiduciary relationship - [See first Master and Servant - Topic 343 ].

Equity - Topic 3648

Fiduciary or confidential relationships - Breach of fiduciary relationship - By employee - Solicitation of business - [See first Master and Servant - Topic 4305 ].

Equity - Topic 3721

Fiduciary or confidential relationships - The employer-employee relationship - General - [See first Master and Servant - Topic 343 ].

Equity - Topic 3726

Fiduciary or confidential relationships - The employer-employee relationship - Duty of employee after termination - [See second Master and Servant - Topic 4305 ].

Master and Servant - Topic 303

Nature of relationship - What constitutes an employer-employee relationship - The business relationship between Bullet Electric Ltd. and ADM Measurements Ltd. broke down when Bullet's director (Young) ceased to be an employee at ADM - Young formed a new company, in direct competition with ADM - ADM sued Bullet and Young, for breach of an alleged fiduciary duty - The Alberta Court of Queen's Bench characterized the relationship between Bullet and ADM - "Though never documented in a formal sense, ADM hired Bullet to provide Bullet's employee, Mr. Young, to provide services to ADM on Bullet's behalf. The relationship between ADM and Bullet would, by its nature, be an independent contractor relationship. The problem with this approach is that adding an intermediary corporation can distort the true nature of a worker/employer relationship. Courts have rejected any legal effect in an intermediary corporation such as Bullet when that corporation ' ... is principally a tool for tax planning and management for an individual employee who does the work while the money is paid to the corporate vehicle.' ... Bullet falls into that category, and can be ignored when evaluating the relationship between ADM and Mr. Young." - See paragraphs 37 to 39.

Master and Servant - Topic 303

Nature of relationship - What constitutes an employer-employee relationship - ADM Measurements Ltd. sued Bullet Electric Ltd. and its director, Young , for breach of an alleged fiduciary duty arising out of a contract of services provided by Bullet or Young to ADM - In 1993, Young had worked directly for ADM for a period of time - Young incorporated Bullet in 1995, and worked as a journeyman electrician through Bullet - In 1997, Young began to work for ADM as a general manager - The Alberta Court of Queen's Bench rejected any legal effect in Bullet (an intermediary) and evaluated the relationship between ADM and Young - The court concluded that Young was an employee, and not an independent contractor, from when he began to work as a manager - Young's management activities were subject to ADM's direct control - Young was assigned a supervisory type role, and thought of himself as a "part of ADM" - As a manager, Young used ADM's office infrastructure - Young contracted (via Bullet) for his services alone, favouring employee status - Last, Young was to receive a fixed monthly salary, and possibly a share of ADM's profits as a bonus, without an associated risk of loss - See paragraphs 40 to 51.

Master and Servant - Topic 343

Fiduciary duty - When owed - ADM alleged that Young had a fiduciary duty to act in ADM's best interests, and that following his departure from ADM he breached that fiduciary duty - The Alberta Court of Queen's Bench examined the nature of a fiduciary relationship - "Courts have concluded that certain employees have a fiduciary relationship with their employer ... Sometimes these fiduciary employees are identified as 'key employees' ... Fiduciary employees may be restrained from competing with their former employers ... The scope of who is or is not a fiduciary employee is a point of some dispute ... I believe I may safely conclude that the 'vulnerability' line of fiduciary employee cases are no longer an accurate statement of the law. ... [V]ulnerability alone does not define a fiduciary relationship. Rather, a fiduciary employee is one who also undertakes to put the best interests of an employer above his own." - See paragraphs 58 to 69.

Master and Servant - Topic 343

Fiduciary duty - When owed - The Alberta Court of Queen's Bench stated that "[u]ndertaking to put the best interests of an employer above your own arises in two circumstances. One is where an employee explicitly agrees by contract to undertake a fiduciary obligation" - In this case, factually, the defendant employee did not agree to take on a fiduciary's obligations - "[I]f equal contracting parties should explicitly identify their respective fiduciary relationships, then logically a fiduciary status should not be foisted on the more vulnerable of contracting parties in an employer/employee relationship. A fiduciary relationship should not be inferred but rather explicitly reflected in an agreement under which an employee agrees to work for an employer." - See paragraphs 70 to 72.

Master and Servant - Topic 343

Fiduciary duty - When owed - The Alberta Court of Queen's Bench considered that an employee might be in a fiduciary relationship where that employee was a key senior manager - "A contract of employment for a senior manager of this kind does not require explicit language that identifies the employee as operating in a fiduciary relationship. The director-like authority of this kind of employee warrants a special duty for an employee who operates in this central a role. An employee of this type may not experience the vulnerability and imbalance of power experienced by the typical employee. Thus, no injustice results from implying the onerous though time-limited non-competition obligation that flows from the fiduciary relationship." - See paragraphs 73 and 74.

Master and Servant - Topic 343

Fiduciary duty - When owed - Young, an electrician, was an employee of ADM (owned by McCullough) and not subject to any explicit or implied restrictive covenant - His role at ADM evolved over time - In 1997, Young began to work for ADM as a regional manager - His employment relationship with ADM broke down in 2000 - Young formed a new company and worked as an electrician in direct competition with ADM - ADM sued Young for breach of an alleged fiduciary duty - The Alberta Court of Queen's Bench concluded that Young had not undertook to be a fiduciary of ADM, nor was his position of a kind that was properly described as a senior manager and fiduciary with a broad and central control of that organization - ADM throughout 1997-2000 had one directing mind, McCullough - What Young knew was common knowledge - In any event, Young would still not be a fiduciary under the "vulnerability" test - He was an employee in a low-level non-administrative position who reported to McCullough, the ultimate owner and directing mind - See paragraphs 75 to 90.

Master and Servant - Topic 343

Fiduciary duty - When owed - [See both Master and Servant - Topic 4305 ].

Master and Servant - Topic 1330

Contract of hiring (employment contract) - Covenants in restraint of trade - Restrictive covenants - Breach of - What constitutes - The dispute was whether the defendant (Young) breached the terms of his contract when he ceased working for the plaintiff (ADM), and entered into competition with that business - The ADM and Young contract was never formalized - The conclusion on its substance flowed from the testimony of the parties and the manner in which the contract was implemented - The Alberta Court of Queen's Bench found no evidence of a restrictive covenant between ADM and Young - It would be against the presumption against restraint of trade for the court to infer that term into the ADM/Young contract - See paragraphs 55 to 57.

Master and Servant - Topic 4305

Duties of servant - On termination - Competition in business - General - The business relationship between the defendant Young, an electrician, and the plaintiff (ADM) broke down - The relationship was not documented in any way - Young formed a new company, in direct competition with ADM - The Alberta Court of Queen's Bench had concluded that Young was constructively dismissed - The court also concluded that Young's contract with ADM did not restrict his post-contract activity, and that Young was not in a fiduciary relationship with ADM - In the event that it was incorrect on those points, the court evaluated the effect of the constructive dismissal on any of Young's obligations - In the result, the court concluded that even if it were to imply a restriction on competition in Young's contract with ADM, that restriction was lifted following his constructive dismissal - See paragraphs 139 to 141 - Further, even if Young was a fiduciary of ADM, that fiduciary obligation would have ended when Young was constructively dismissed without cause - "The fiduciary employee can only be expected to serve the interests of the employer as long as that beneficiary maintains clean hands." - See paragraphs 142 to 147.

Master and Servant - Topic 4305

Duties of servant - On termination - Competition in business - General - The business relationship between Young and ADM broke down in September 2000, and Young ceased to be an employee of ADM - The relationship was not documented in any way - Young formed a new company, and worked in direct competition with ADM - ADM sued Young for breach of an alleged fiduciary duty - The Alberta Court of Queen's Bench concluded that Young did not assume a fiduciary duty towards ADM, and that if he did have that duty, then it was negated when he was wrongfully dismissed in September 2000 - If incorrect on both points, the court assessed a period of non-competition time during which Young's fiduciary responsibility extended past the end of his employment relationship with ADM - The court concluded that Young's obligation to not compete with his former employer ended on December 31, 2000 - A three month fiduciary non-competition period was appropriate: Young had only been in his current position for some 2.75 years; his managerial role was a limited one; Young was immediately replaced by a manager with similar skills and knowledge; and Young was constructively dismissed - Further, ADM was profitable throughout 2000 - See paragraphs 223 to 231.

Master and Servant - Topic 7502

Dismissal or discipline of employees - General principles - What constitutes dismissal or discharge (incl. constructive dismissal) - Young ceased to be an employee at ADM following a meeting with McCullough, the owner of ADM, on September 18, 2000 - At issue was whether Young quit or was fired - The Alberta Court of Queen's Bench concluded factually that on September 18, 2000, McCullough had unilaterally decided to withdraw from the agreement between ADM and Young, that Young would have the first opportunity to purchase ADM in 2003, after the five year profit share arrangement ended - McCullough did not intend to fire Young, nor sanction him - Rather, McCullough had decided to sell ADM to another person - See paragraphs 92 to 115 - The court concluded that McCullough's decision to withdraw the right to purchase ADM was a substantial change to the Young/ADM contract, and constructive dismissal - Young agreed to work for ADM because of his expectation that ADM would eventually be his own company - Young was entitled to treat his employment contract as terminated by ADM - Therefore Young was dismissed without cause on September 18, 2000 - See paragraphs 116 to 137.

Master and Servant - Topic 7614

Dismissal or discipline of employees - Defences - Resignation of employee - [See Master and Servant - Topic 7502 ].

Torts - Topic 5210

Interference with economic relations - Contracts - Interference with contractual rights - ADM alleged that the defendants, Bullet Energy and its directing minds (Young and Warnock), interfered with ADM's contractual relationships with its various oilfield industry clients, and with the employer/employee relationships formed between ADM and its other employees - The Alberta Court of Queen's Bench held that the plaintiff's argument failed on multiple bases "for a simple fact: while ADM and its clients interacted on a contractual basis, those contracts were for individual 'piece-work' tasks. Any long-term interaction between ADM and the oil patch businesses was informal, not contractual. ADM's business with each client was always precarious. That reflects the nature of the work conducted by businesses such as ADM. ... ADM had neither long-term contracts, nor any exclusive contracts with which Mr. Young or his new company could interfere." - The court therefore concluded that the defendants did not interfere with ADM's contractual relationships - Young and Warnock were willing to compete with ADM, and did so in an aggressive but legal manner - See paragraphs 161 to 165.

Cases Noticed:

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Walden v. Danger Bay Productions Ltd. et al., [1994] 6 W.W.R. 138; 42 B.C.A.C. 196; 67 W.A.C. 196; 114 D.L.R.(4th) 85 (C.A.), refd to. [para. 40].

Wiebe Door Services Ltd. v. Minister of National Revenue, [1986] 3 F.C. 553; 70 N.R. 214; 46 Alta. L.R.(2d) 83 (F.C.A.), refd to. [para. 40].

671122 Ontario Ltd. v. Sagaz Industries Canada Inc. et al., [2001] 2 S.C.R. 983; 274 N.R. 366; 150 O.A.C. 12; 2001 SCC 59, refd to. [para. 41].

Canada (Procureur général) v. Groupe Desmarais Pinsonneault & Avard Inc. (2002), 291 N.R. 389; 2002 FCA 144, refd to. [para. 44].

Te'mexw Treaty Association v. Minister of National Revenue, [2000] T.C.J. No. 447 (T.C.C.), refd to. [para. 46].

Truong v. British Columbia et al. (1999), 128 B.C.A.C. 240; 208 W.A.C. 240; 47 C.C.E.L.(2d) 307; 1999 BCCA 513, refd to. [para. 47].

Shaw Communications Inc. v. Minister of National Revenue, 2003 D.T.C. 1459 (T.C.C.), affd. [2003] N.R. Uned. 78; 2003 D.T.C. 5707; 2003 FCA 171, refd to. [para. 50].

Polimark Ltd. v. Minister of National Revenue, [2000] T.C.J. No. 52, refd to. [para. 50].

RBC Dominion Securities Inc. v. Merrill Lynch Canada Inc. et al., [2008] 3 S.C.R. 79; 380 N.R. 166; 260 B.C.A.C. 198; 439 W.A.C. 198; 2008 SCC 54, refd to. [para. 55].

Imperial Sheet Metal Ltd. et al. v. Landry et al. (2007), 315 N.B.R.(2d) 328; 815 A.P.R. 328; 2007 NBCA 51, refd to. [para. 55].

KRG Insurance Brokers (Western) Inc. v. Shafron et al., [2009] 1 S.C.R. 157; 383 N.R. 217; 265 B.C.A.C. 1; 446 W.A.C. 1; 2009 SCC 6, refd to. [para. 56].

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Capital Estate Planning Corp. v. Lynch et al. (2011), 510 A.R. 244; 527 W.A.C. 244; 337 D.L.R.(4th) 523; 2011 ABCA 224, refd to. [para. 63].

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Anderson, Smyth & Kelly Customs Brokers Ltd. v. World Wide Customs Brokers Ltd. et al. (1996), 184 A.R. 81; 122 W.A.C. 81; 39 Alta. L.R.(3d) 411; 1996 ABCA 169, refd to. [para. 63].

Imperial Sheet Metal Ltd. v. Landry; 57134 Manitoba Ltd. v. Palmer (1989), 37 B.C.L.R.(2d) 50; 44 B.L.R. 94 (C.A.), refd to. [para. 64].

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B & R Development Corp. v. Trail South Development Inc. - see 410675 Alberta Ltd. v. Trail South Developments Inc.

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Vanderleest v. Regina (City) (1992), 102 Sask.R. 24; 91 D.L.R.(4th) 538 (Q.B.), refd to. [para. 125].

Farquhar v. Butler Brothers Supplies Ltd. (1988), 23 B.C.L.R.(2d) 89; 8 A.C.W.S.(3d) 370 (C.A.), refd to. [para. 126].

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Ahmad v. Athabasca Tribal Council Ltd. et al. (2010), 490 A.R. 290; 497 W.A.C. 290; 2010 ABCA 341, leave to appeal refused (2011), 422 N.R. 389; 513 A.R. 404; 530 W.A.C. 404 (S.C.C.), refd to. [para. 161].

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Forsberg et al. v. Naidoo et al. (2011), 516 A.R. 201; 84 C.C.L.T.(3d) 179; 2011 ABQB 252, refd to. [para. 216].

R.J.V. Gas Field Services Ltd. v. Baxandall et al. (2003), 330 A.R. 115; 299 W.A.C. 115; 2003 ABCA 170, refd to. [para. 224].

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Authors and Works Noticed:

Ball, Stacey Reginald, Canadian Employment Law (2006) (Looseleaf), pp. 13-16, 13-17 [para. 65].

England, Geoffrey, Christie, Innis, and Christie, Merran, Employment Law in Canada (3rd Ed. 1998) (Looseleaf), pp. 11.103, 11.104 [para. 144].

Wardle, Peter, Post-Employment Competition - Canaero Revisited (1990), 69 Can. Bar Rev. 233, pp. 271, 272 [para. 144].

Counsel:

Roderick C. Payne and Tyler Moore (Hustwick Payne, Barristers and Solicitors), for the plaintiffs;

Murray L. Engelking (Engelking Wood), for the defendants.

This claim and counterclaim were heard on November 21 to 25, 2011, before Germain, J., of the Alberta Court of Queen's Bench, who delivered the following decision, dated at Edmonton, Alberta, on March 7, 2012.