Anderson v. Berry-Heldt et al.

• Jurisdiction: British Columbia
• Court: Court of Appeal (British Columbia)
• Judge: Donald, Hall and Lowry, JJ.A.
• Citation: 2007 BCCA 100,(2007), 238 B.C.A.C. 39 (CA)
• Date: 09 February 2007

Anderson v. Berry-Heldt (2007), 238 B.C.A.C. 39 (CA);

    393 W.A.C. 39

MLB headnote and full text

Temp. Cite: [2007] B.C.A.C. TBEd. MR.014

Kristen Anderson (appellant/petitioner) v. Trilink Travel Inc., Lynn Berry-Heldt, 0706787 B.C. Ltd. and Melody McLennan (respondents/respondents)

(CA033693; 2007 BCCA 100)

Indexed As: Anderson v. Berry-Heldt et al.

British Columbia Court of Appeal

Donald, Hall and Lowry, JJ.A.

February 9, 2007.

Summary:

Anderson was a travel agent and a one-third shareholder in Trilink Travel Inc. She misappropriated monies from Trilink. Trilink's two other shareholders bought out Anderson's interest under a shot-gun provision in their shareholders agreement. Anderson petitioned for a declaration that a non-competition clause in the shareholders agreement was unenforceable because it was void as an unlawful restraint of trade.

The British Columbia Supreme Court, in a decision reported at [2005] B.C.T.C. 1825, dismissed the petition. Anderson appealed.

The British Columbia Court of Appeal dismissed the appeal

Contracts - Topic 6732

Illegal contracts - Contrary to public policy - Restraint of trade - Agreements not to compete or solicit - Anderson was a travel agent and a one-third shareholder in Trilink Travel Inc. - She misappropriated monies from Trilink - Trilink's two other shareholders bought out Anderson's interest under a shot-gun provision in their shareholders agreement - Anderson petitioned for a declaration that a non-competition clause in the shareholders agreement was unenforceable because it was void as an unlawful restraint of trade - Under the clause Anderson was prohibited from competing with Trilink in British Columbia, Alberta, Saskatchewan, Manitoba and Ontario in the travel business for one year following the sale of her interest in Trilink - A chambers judge dismissed the petition - The British Columbia Court of Appeal dismissed Anderson's appeal - Although the chambers judge erred in considering Anderson's fraud in dealing with the enforceability of the non-competition covenant, there was otherwise a sound basis for his conclusion that it was reasonable and that it ought to be enforced between the parties without any alteration of its scope.

Cases Noticed:

Collins (J.G.) Insurance Agencies Ltd. v. Elsley Estate, [1978] 2 S.C.R. 916; 20 N.R. 1, refd to. [para. 12].

Counsel:

N.J. Preovolos, for the appellant;

M.C. Guiton, for the respondent.

This appeal was heard in Vancouver, B.C., on February 9, 2007, by Donald, Hall and Lowry, JJ.A., of the British Columbia Court of Appeal. Hall, J.A., delivered the following oral decision for the court on February 9, 2007.