Anderson Preece & Associates Inc. v. Dominium Appraisal Group Inc. et al., (2001) 309 A.R. 124 (QB)

• Judge: Wilkins, J.
• Court: Court of Queen's Bench of Alberta (Canada)
• Case Date: September 17, 2001
• Citations: (2001), 309 A.R. 124 (QB);2001 ABQB 1073

Anderson Preece v. Dominium Appraisal (2001), 309 A.R. 124 (QB)

MLB headnote and full text

Temp. Cite: [2002] A.R. TBEd. JA.040

Anderson Preece & Associates Inc. (plaintiff) v. Dominium Appraisal Group Inc., Mark Osske, Glenn Bramley, Marvin Desormeau, Linda Thiem and Harold Weidman and Weidman Appraisals Ltd. (defendants)

(Action No. 9810-01611; 2001 ABQB 1073)

Indexed As: Anderson Preece & Associates Inc. v. Dominium Appraisal Group Inc. et al.

Alberta Court of Queen's Bench

Judicial District of Red Deer

Wilkins, J.

December 12, 2001.

Summary:

The individual defendants left their employment with the plaintiff real estate appraisal firm and set up a competing firm. They took a multitude of the plaintiff's documents. The plaintiff sued the defendants, alleging, inter alia, theft of confidential business information and breach of fiduciary duty.

The Alberta Court of Queen's Bench allowed the action and determined damages accordingly.

Damage Awards - Topic 643

Torts - Injury to the person - Breach of fiduciary duty - [See both Equity - Topic 3655 ].

Equity - Topic 3648

Fiduciary or confidential relationships - Breach of fiduciary relationship - By employee - The individual defendants left their employment with the plaintiff real estate appraisal firm and set up a competing firm - They took a multitude of the plaintiff's documents and software programs and continually utilized the materials in their new firm until receipt of a notice of an Anton Pillar order - The Alberta Court of Queen's Bench held that the individual defendants breached the fiduciary duty they owed the plaintiff as their employer - Their access to the plaintiff's records gave them considerable power to affect their employer's business - They unilaterally exercised that power to affect the plaintiff's legal interests by copying and removing business records and systems to assist the operations of their new firm - The plaintiff was peculiarly vulnerable to their wrongful actions - See paragraphs 20 to 35.

Equity - Topic 3655

Fiduciary or confidential relationships - Breach of fiduciary relationship - Damages - The individual defendants left their employment with the plaintiff real estate appraisal firm and set up a competing firm - They took a multitude of the plaintiff's documents and software programs and used them until an Anton Pillar order was issued - The Alberta Court of Queen's Bench held that the individual defendants breached their fiduciary duty to the plaintiff and breached the plaintiff's confidence - They and their new firm were unjustly enriched by their use of the plaintiff's property in competition with the plaintiff - The appropriate remedy was to require the defendants to disgorge completely the benefit of that unjust enrichment - The court awarded $150,000 as equitable compensation for the unlawful conduct of the defendant appraisers and their new firm - See paragraphs 48 to 85.

Equity - Topic 3655

Fiduciary or confidential relationships - Breach of fiduciary relationship - Damages - The individual defendants left their employment with the plaintiff real estate appraisal firm and set up a competing firm - They took a multitude of the plaintiff's documents and software programs and used them until an Anton Pillar order was issued - One defendant, Thiem, had been the co-office manager for the plaintiff and became the office manager at the new firm - The Alberta Court of Queen's Bench held that the individual defendants breached their fiduciary duty to the plaintiff and breached the plaintiff's confidence - Thiem was not unjustly enriched by her participation with the other defendants - The court awarded the plaintiff $15,000 against Thiem for her part in the wrongful removal and conversion of the plaintiff's property - See paragraph 86.

Equity - Topic 3726

Fiduciary or confidential relationships - The employer-employee relationship - Duty of employee after termination - [See Equity - Topic 3648 and Equity - Topic 3902 ].

Equity - Topic 3902

Fiduciary or confidential relationships - Breach of confidence - What constitutes - The individual defendants left their employment with the plaintiff real estate appraisal firm and set up a competing firm - They took a multitude of the plaintiff's documents and software programs and continually utilized the materials in their new firm until receipt of a notice of an Anton Pillar order - The Alberta Court of Queen's Bench held that the individual defendants breached the confidence of the plaintiff as their employer - Their actions constituted a misuse of the plaintiff's confidential information - See paragraphs 35 to 47.

Equity - Topic 3905

Fiduciary or confidential relationships - Breach of confidence - Remedies - Damages - [See both Equity - Topic 3655 ].

Master and Servant - Topic 4306

Duties of servant - On termination - Competition in business - Use of employer's material or process - [See Equity - Topic 3648 and Equity - Topic 3902 ].

Cases Noticed:

International Corona Resources Ltd. v. LAC Minerals Ltd., [1989] 2 S.C.R. 574; 101 N.R. 239; 36 O.A.C. 57, refd to. [para. 24].

Anderson, Smyth & Kelly Customs Brokers Ltd. v. World Wide Customs Brokers Ltd. et al. (1996), 184 A.R. 81; 122 W.A.C. 81 (C.A.), refd to. [para. 24].

Physique Health Club Ltd. v. Carlsen et al. (1996), 193 A.R. 196; 135 W.A.C. 196 (C.A.), refd to. [para. 24].

Cadbury Schweppes Inc. et al. v. FBI Foods Ltd. et al., [1999] 1 S.C.R. 142; 235 N.R. 30; 117 B.C.A.C. 161; 191 W.A.C. 161, refd to. [para. 24].

Frame v. Smith and Smith, [1987] 2 S.C.R. 99; 78 N.R. 40; 23 O.A.C. 84, refd to. [para. 26].

Pre-Cam Exploration & Development Ltd. v. McTavish, [1966] S.C.R. 551, refd to. [para. 27].

Jostens Canada Ltd. v. Gibsons Studio Ltd. et al. (1999), 122 B.C.A.C. 122; 200 W.A.C. 122 (C.A.), refd to. [para. 49].

Apotex Fermentation Inc. et al. v. Novopharm Ltd. et al. (1998), 129 Man.R.(2d) 161; 180 W.A.C. 161; 80 C.P.R.(3d) 449 (C.A.), refd to. [para. 62].

Authors and Works Noticed:

Gautreau, J.R.M., Demystifying the Fiduciary Mystique (1989), 68 Can. Bar Rev. 1, generally [para. 49].

Thorburn, Julie A., and Fairbairn, Keith G., Law of Confidential Business Information, para. 4: 3400 [para. 36].

Counsel:

Gary W. Wanless, for the plaintiff;

Neal A. McLennan, for the defendants, Dominium Appraisal Group Inc., Mark Osske and Marvin Desmoreau;

No one appeared for the defendants Glenn Bramley or for Linda Thiem.

This action was heard on September 17, 2001, before Wilkins, J., of the Alberta Court of Queen's Bench, Judicial District of Red Deer, who delivered the following judgment on December 12, 2001.