Alberta Newspapers Group Inc. v. Peters, (2004) 360 A.R. 33 (PC)

• Judge: LeGrandeur, P.C.J.
• Court: Provincial Court of Alberta (Canada)
• Case Date: April 23, 2004
• Citations: (2004), 360 A.R. 33 (PC);2004 ABPC 71

Alta. Newspapers Group v. Peters (2004), 360 A.R. 33 (PC)

MLB headnote and full text

Temp. Cite: [2004] A.R. TBEd. JN.035

Alberta Newspapers Group Inc., operating as Lethbridge Herald (plaintiff/defendant by counterclaim) v. Ellie Peters, operating as AVI Communications (defendant/plaintiff by counterclaim)

(0202600649; 2004 ABPC 71)

Indexed As: Alberta Newspapers Group Inc. v. Peters

Alberta Provincial Court

LeGrandeur, P.C.J.

April 23, 2004.

Summary:

The plaintiff sued the defendant for the value of advertising services provided, seeking either the full amount owing or a reduced amount under an alleged compromise agreement settling the matter. The defendant denied that any binding compromise agreement was reached and denied any indebtedness. The defendant counterclaimed for damages for the costs it incurred following the plaintiff's termination of their business relationship respecting the production of bi-annual bridal shows.

The Alberta Provincial Court allowed the plaintiff's claim based on an enforceable compromise or settlement agreement and the defendant's counterclaim for the plaintiff's failure to give reasonable notice of the termination of their contractual relationship.

Contracts - Topic 1585

Formation of contract - Consent - Duress defined - [See Practice - Topic 9857 ].

Contracts - Topic 4706

Discharge and termination - By notice - What constitutes reasonable notice - The plaintiff sponsored bi-annual bridal shows for 10 years - Every show was coordinated and run on the plaintiff's behalf by the defendant, first as an employee, and for the last five years through her business - Two months before the Spring 2002 show, the plaintiff cancelled any further shows - The defendant, having already begun work on the show, sued for damages on the basis that she was entitled to reasonable notice of termination of their arrangement - The Alberta Provincial Court allowed the action - Given the longstanding relationship and the exclusivity, the relationship between to plaintiff and defendant was more akin to an employer-employee relationship, or exclusive distributorship, than an independent contractor - The court fixed the period of reasonable notice of their relationship at 10 months and awarded the defendant damages for loss of profits accordingly - See paragraphs 23 to 69.

Damages - Topic 1636

General damages - Considerations in assessing general damages - Taxes - The defendant was awarded damages equal to the lost profit she would have earned on a contractual arrangement terminated without reasonable notice - The Alberta Provincial Court allowed the defendant's claim for G.S.T. on the damage award, on the basis of s. 182 of the Excise Tax Act - The damages were based on lost profits on the supply of taxable services, for which the defendant had to remit G.S.T. - Accordingly, the defendant was entitled to add that amount to the damage award - See paragraphs 70 to 83.

Practice - Topic 9852

Settlements - What constitutes a settlement - The plaintiff and defendant had an ongoing business relationship - A dispute arose as to what the defendant owed the plaintiff for advertising services - The plaintiff alleged a compromise or settlement agreement whereby it withdrew certain claims in return for the defendant's agreement to pay a portion of disputed accounts - The Alberta Provincial Court held that there existed a binding compromise or settlement agreement - The court stated that "it is ... entirely possible for two people to contract, in the form of a compromise, for the settlement of a portion of a dispute between them and to leave other matters for further discussion and resolution, provided that there is sufficient consideration being given in exchange for the promise received from the other party" - See paragraphs 11 to 14.

Practice - Topic 9857

Settlements - Setting aside - Grounds - The defendant breached a settlement agreement by failing to pay a reduced amount by a specified date in exchange for the plaintiff withdrawing a portion of its claim - The plaintiff chose to seek enforcement of the settlement rather than repudiating it and seeking the full amount claimed - The defendant submitted that the settlement was executed under duress and therefore voidable - The Alberta Provincial Court held that there was no duress - The court stated that "there was no form of economic or other pressure imposed upon her, such that it amounted to a coercion of her will, such as to vitiate her consent to the compromise agreement" - See paragraphs 19 to 20.

Sales and Services Taxes - Topic 5226

Goods and services tax (incl. harmonized sales tax) - Administration, collection and enforcement - Persons obligated to collect - Suppliers of goods and services - [See Damages - Topic 1636 ].

Cases Noticed:

Abraham v. Wingate Properties Ltd., [1986] 1 W.W.R. 568; 36 Man.R.(2d) 264 (C.A.), refd to. [para. 11].

Chapman v. Ginter, [1968] S.C.R. 560, refd to. [para. 15].

Byle v. Byle (1990), 65 D.L.R.(4th) 641 (B.C.C.A.), refd to. [para. 19].

Carter v. Bell & Sons (Canada) Ltd., [1936] 2 D.L.R. 438 (Ont. C.A.), refd to. [para. 38].

Martin-Baker Aircraft Co. v. Canadian Flight Equipment Ltd.; Martin-Baker Aircraft Co. v. Murison, [1955] 2 All E.R. 722; [1955] 2 Q.B. 556, refd to. [para. 41].

Watt (W.F.) & Sons Agencies Ltd. v. Nightingagle Industries Ltd. (1983), 18 A.C.W.S.(2d) 116 (Ont. H.C.), refd to. [para. 42].

Marbry et al. v. Avrecan International Inc. (1999), 119 B.C.A.C. 266; 194 W.A.C. 266 (C.A.), refd to. [para. 43].

JKC Enterprises Ltd. et al. v. Woolworth Canada Inc. et al. (2001), 300 A.R. 1; 2001 CarswellAlta 1346; 2001 ABQB 791, refd to. [para. 45].

Hillis Oil and Sales Ltd. v. Wynn's Canada Ltd., [1986] 1 S.C.R. 57; 65 N.R. 23; 71 N.S.R.(2d) 353; 171 A.P.R. 353, refd to. [para. 45].

Techform Products Ltd. v. Wolda (2000), 5 C.P.R.(4th) 25, additional reasons at (2000), 5 C.P.R.(4th) 289 (Ont. Sup. Ct.), refd to. [para. 47].

Clarke, Irwin & Co. v. Harrap (George G.) & Co. (1980), 9 B.L.R. 97 (Ont. H.C.), refd to. [para. 49].

Bardal v. Globe and Mail Ltd. (1960), 24 D.L.R.(2d) 140 (Ont. H.C.), refd to. [para. 54].

Lazarowycz v. Orenda Engine Ltd. (1961), 26 D.L.R.(2d) 433 (Ont. C.A.), refd to. [para. 55].

Lefebvre v. HOJ Industries Ltd.; Machtinger v. HOJ Industries Ltd., [1992] 1 S.C.R. 986; 136 N.R. 40; 53 O.A.C. 200, refd to. [para. 55].

Wallace v. United Grain Growers Ltd., [1997] 3 S.C.R. 701; 219 N.R. 161; 123 Man.R.(2d) 1; 159 W.A.C. 1, refd to. [para. 55].

M'Cartan v. Belfast Harbour Commissioners, [1911] 2 I.R. 143 (H.L.), refd to. [para. 56].

Lawson v. Dominion Securities Corp., [1997] 2 A.C.W.S. 259 (Ont. C.A.), refd to. [para. 63].

Forshaw v. Aluminex Extrusions Ltd. (1989), 39 B.C.L.R.(2d) 140 (C.A.), refd to. [para. 66].

Michaels et al. v. Red Deer College, [1976] 2 S.C.R. 324; 5 N.R. 99, refd to. [para. 67].

Authors and Works Noticed:

Harris, David, Wrongful Dismissal, vol. 1, p. 2-9 [para. 60].

Patterson, Derek E., Some G.S.T. Considerations for Litigators (1992), The Advocate, vol. 50, p. 43 [para. 71].

Shragi, Allan, Applicability of s. 182 of the Excise Tax Act with respect to Damage Awards, G.S.T. - Client Transactions and Legal Advice, pp. 2 [para. 72]; 3 to 25 [para. 73]; 12 [para. 85]; 20 [para. 81].

Counsel:

Kenneth C. Reeder (Maclean, MacDonald, Wiedermann, Pitcher), for the plaintiff;

Tammy L. Praskash (Davidson & Williams), for the defendant.

This action and counterclaim were heard before LaGrandeur, P.C.J., of the Alberta Provincial Court, who delivered the following judgment on April 23, 2004.