CCS Corp. v. Secure Energy Services Inc. et al., (2014) 575 A.R. 1

• Judge: Paperny, Watson and Slatter, JJ.A.
• Court: Court of Appeal (Alberta)
• Case Date: March 06, 2014
• Citations: (2014), 575 A.R. 1;2014 ABCA 96

CCS Corp. v. Secure Energy Services Inc. (2014), 575 A.R. 1; 612 W.A.C. 1 (CA)

MLB headnote and full text

Temp. Cite: [2014] A.R. TBEd. MR.029

CCS Corporation (appellant/plaintiff/respondent) v. Secure Energy Services Inc. (respondent/defendant/applicant) and Rene Amirault, Daniel Steinke, Nick Wieler, Gordon Getzinger, Gary Perras, Myron Newman, David Engel, Stan Moodie, Corey Higham, Karen Myrheim, Enerland Consulting Services Ltd., David Baldock, Triumph EPCM Ltd. and Pembina Pipeline Corporation (not a party to the appeal/defendants)

(1301-0345-AC; 2014 ABCA 96)

Indexed As: CCS Corp. v. Secure Energy Services Inc. et al.

Alberta Court of Appeal

Paperny, Watson and Slatter, JJ.A.

March 6, 2014.

Summary:

CCS Corp. and Secure Energy Services Inc. were competitors in the oilfield waste disposal industry in Alberta. CCS alleged that a number of former employees, acting in concert with the defendant Pembina Pipelines Inc., took CCS' confidential information and ultimately formed Secure for the purpose of competing with CCS and taking certain business opportunities from it. CCS claimed damages for breach of contract, breach of confidence, breach of fiduciary duty, and unlawful interference with economic interests. In its counterclaim, Secure claimed that CCS had engaged in unlawful conduct with the intent of causing injury to Secure. The unlawful conduct alleged included abusing regulatory processes, disparaging Secure to employees, customers and investors, making threats to Secure's customers, offering illegal inducements to third parties and interfering in Secure's relationships with partners and investors. CCS applied to strike many, though not all, of the allegations in the counterclaim. Secure applied to amend the counterclaim to add allegations relating to a transaction that occurred after the filing of its counterclaim, which concerned a landfill facility in northeast British Columbia (the Babkirk Landfill).

The Alberta Court of Queen's Bench, in a decision reported at 571 A.R. 365, determined the issues. CCS appealed the allowance of the amendments to the counterclaim.

The Alberta Court of Appeal allowed the appeal in part.

Editor's Note: for other cases involving these parties, see 476 A.R. 111 (Q.B.), 495 A.R. 191 (Q.B.), 503 A.R. 94 (Q.B.) and [2013] A.R. Uned. 231 (Q.B.).

Practice - Topic 2110

Pleadings - Amendment of pleadings - Adding new cause of action or "claim" - CCS Corp. and Secure Energy Services Inc. were competitors in the oilfield waste disposal industry in Alberta - CCS alleged that a number of former employees, acting in concert with the defendant Pembina Pipelines Inc., took CCS' confidential information and ultimately formed Secure for the purpose of competing with CCS and taking certain business opportunities from it - CCS claimed damages for breach of contract, breach of confidence, breach of fiduciary duty, and unlawful interference with economic interests - In its counterclaim, Secure claimed that CCS had engaged in unlawful conduct with the intent of causing injury to Secure - The unlawful conduct alleged included abusing regulatory processes, disparaging Secure to employees, customers and investors, making threats to Secure's customers, offering illegal inducements to third parties and interfering in Secure's relationships with partners and investors - Secure applied to amend the counterclaim to add allegations relating to a transaction that occurred after the filing of its counterclaim, which concerned a landfill facility in northeast British Columbia (the Babkirk Landfill) - CCS argued that the claims were barred by s. 3(1)(a) of the Limitations Act - The application judge allowed the amendment - The evidentiary threshold for allowing an amendment was not a high one - There was evidence that permitted the court to conclude that the alleged conspiracy and interference in Secure's efforts to acquire the Babkirk Landfill was not complete until January 2011, and Secure's motion to amend was therefore brought within two years - It was therefore not necessary to determine whether these claims fell within the exception set out in s. 6(2) of the Limitations Act - The Alberta Court of Appeal affirmed the decision - See paragraph 2.

Practice - Topic 2110

Pleadings - Amendment of pleadings - Adding new cause of action or "claim" - CCS Corp. and Secure Energy Services Inc. were competitors in the oilfield waste disposal industry in Alberta - CCS alleged that a number of former employees, acting in concert with the defendant Pembina Pipelines Inc., took CCS' confidential information and ultimately formed Secure for the purpose of competing with CCS and taking certain business opportunities from it - CCS claimed damages for breach of contract, breach of confidence, breach of fiduciary duty, and unlawful interference with economic interests - In its counterclaim, Secure claimed that CCS had engaged in unlawful conduct with the intent of causing injury to Secure - The unlawful conduct alleged included abusing regulatory processes, disparaging Secure to employees, customers and investors, making threats to Secure's customers, offering illegal inducements to third parties and interfering in Secure's relationships with partners and investors - Secure applied to amend the counterclaim to add allegations relating to a transaction that occurred after the filing of its counterclaim, which concerned a landfill facility in northeast British Columbia (the Babkirk Landfill), including a claim for unlawful interference with economic relations - The application judge allowed the amendment - CSS appealed - The Alberta Court of Appeal allowed the appeal - The respondents conceded the appeal with respect to the pleading of unlawful interference with economic relations, given the decision in Bram Enterprises Ltd. et al. v. A.I. Enterprises Ltd. et al. (SCC 2014) - See paragraph 3.

Practice - Topic 2110

Pleadings - Amendment of pleadings - Adding new cause of action or "claim" - CCS Corp. and Secure Energy Services Inc. were competitors in the oilfield waste disposal industry in Alberta - CCS alleged that a number of former employees, acting in concert with the defendant Pembina Pipelines Inc., took CCS' confidential information and ultimately formed Secure for the purpose of competing with CCS and taking certain business opportunities from it - CCS claimed damages for breach of contract, breach of confidence, breach of fiduciary duty, and unlawful interference with economic interests - In its counterclaim, Secure claimed that CCS had engaged in unlawful conduct with the intent of causing injury to Secure - The unlawful conduct alleged included abusing regulatory processes, disparaging Secure to employees, customers and investors, making threats to Secure's customers, offering illegal inducements to third parties and interfering in Secure's relationships with partners and investors - Secure applied to amend the counterclaim to add allegations relating to a transaction that occurred after the filing of its counterclaim, which concerned a landfill facility in northeast British Columbia (the Babkirk Landfill), including a claim of conduct contrary to s. 45 of the Competition Act - CCS asserted that the proposed claim was barred by s. 36 of the Act and because Secure had not brought sufficient evidence to support the proposed amendment - The application judge allowed the amendment - It was open to the court, on a preliminary application, and in view of the relatively low evidentiary standard, to infer an intention to cause injury to Secure from the evidence available - With respect to whether the parties from whom CCS acquired shares and therefore ownership of the Babkirk Landfill were "competitors" of CCS, it was the view of the court that this was a determination that should be made after a consideration of the evidence - The Alberta Court of Appeal affirmed the decision - See paragraphs 4 and 5.

Practice - Topic 2111

Pleadings - Amendment of pleadings - Prohibition against adding new action or "claim" which is statute barred (incl. exceptions) - [See first Practice - Topic 2110 ].

Cases Noticed:

Bram Enterprises Ltd. et al. v. A.I. Enterprises Ltd. et al. (2014), 453 N.R. 273; 416 N.B.R.(2d) 1; 1079 A.P.R. 1; 2014 SCC 12, refd to. [para. 3].

Eli Lilly & Co. et al. v. Apotex Inc. (2009), 351 F.T.R. 1; 2009 FC 991, refd to. [para. 4].

Garford Pty. Ltd. v. Dywidag Systems International Canada Ltd. et al. (2010), 375 F.T.R. 38; 2010 FC 996, refd to. [para. 4].

Commissioner of Competition v. CSS Corporation, 2012 Comp. Trib. 14; [2012] CCTD No. 14, refd to. [para. 5].

Tervita Corp. et al. v. Commissioner of Competition et al., [2012] CCTD No. 14 (Comp. Trib.), affd. (2013), 446 N.R. 261; 360 D.L.R.(4th) 717; 2013 FCA 28, leave to appeal granted (2013), 464 N.R. 394 (S.C.C.), refd to. [para. 5].

Counsel:

L.Y. Pan, Q.C., and B.L. Robinson, for the appellant;

D.F. Younggren, Q.C., and R.C. Penner, for the respondent.

This appeal was heard on March 6, 2014, by Paperny, Watson and Slatter, JJ.A., of the Alberta Court of Appeal. The memorandum of judgment of the Court of Appeal was delivered from the bench by Slatter, J.A., on March 6, 2014, and was filed on March 10, 2014.