Consbec Inc. v. Walker et al., (2016) 385 B.C.A.C. 92 (CA)

• Judge: Frankel, Tysoe and Goepel, JJ.A.
• Court: Court of Appeal (British Columbia)
• Case Date: November 05, 2015
• Jurisdiction: British Columbia
• Citations: (2016), 385 B.C.A.C. 92 (CA);2016 BCCA 114

Consbec Inc. v. Walker (2016), 385 B.C.A.C. 92 (CA);

    665 W.A.C. 92

MLB headnote and full text

Temp. Cite: [2016] B.C.A.C. TBEd. MR.022

Consbec Inc. (appellant/respondent on cross-appeal/plaintiff) v. Peter Walker, Rock Construction & Mining Inc., and P&T Walker Capital Ltd. (respondents/appellants on cross-appeal/defendants) and Tracy Walker, 1627436 Ontario Limited, 0794940 B.C. Ltd., and Walker Investments Ltd. (defendants)

(CA42390; 2016 BCCA 114)

Indexed As: Consbec Inc. v. Walker et al.

British Columbia Court of Appeal

Frankel, Tysoe and Goepel, JJ.A.

March 11, 2016.

Summary:

After five years of employment, Walker left his employment with Consbec Inc. without giving notice, and went into competition with Consbec through his company, Rock Construction & Mining Inc. Consbec sued Walker for breach of fiduciary duty, breach of confidence, and breach of contract. Walker's and his wife's companies were also named as defendants. Within that action, Consbec asserted that Walker had fraudulently conveyed his interest in real property to his wife to avoid a potential judgment. Walker counterclaimed for wrongful (constructive) dismissal.

The British Columbia Supreme Court, in a decision reported at [2014] B.C.T.C. Uned. 2070, dismissed the majority of Consbec's claims and Walker's counterclaim. The court held that Walker was not Consbec's fiduciary and had not breached his common-law duties as an employee. However, the court found that Walker had failed to give Consbec reasonable notice before terminating his employment, and awarded Consbec damages in that regard. The court also found that Walker had fraudulently conveyed property to his wife and voided that transfer as against Consbec. The court awarded Walker the costs of a six-day trial in relation to the fiduciary issue and awarded Consbec the costs of a one-day trial in relation to the notice issue and special costs of a three-day trial in relation to the fraudulent conveyance issue. The court made no specific costs order respecting Walker's counterclaim. Consbec appealed, asserting that the court committed a number of errors in dismissing its claim for breach of fiduciary duty. Alternatively, Consbec asserted that the court erred in finding that Walker had not breached his common-law duties of confidentiality, good faith, and fidelity that he owned as an employee. Walker cross-appealed, asserting that the court erred in (1) finding that he had engaged in a fraudulent conveyance; (2) the manner in which it determined damages for his failure to give reasonable notice; and (3) its ruling on costs.

The British Columbia Court of Appeal dismissed Consbec's appeal, allowed Walker's cross-appeal, and awarded Walker (and the other defendants) one set of costs respecting both appeals.

Damages - Topic 6781

Contracts - Employment relationship or contract - Breach by employee - General - See paragraphs 67 to 83.

Equity - Topic 3606

Fiduciary or confidential relationships - General principles - What constitutes a fiduciary relationship - See paragraphs 38 to 42.

Equity - Topic 3607

Fiduciary or confidential relationships - General principles - Relationships which are not fiduciary - See paragraphs 38 to 42.

Evidence - Topic 464

Functions of counsel, judge and jury - Credibility of evidence - See paragraphs 31 to 37.

Master and Servant - Topic 343

Fiduciary duty - When owed - See paragraphs 38 to 42.

Master and Servant - Topic 4204

Duties of servant - General - Duty not to complete with employee - See paragraphs 43 to 48.

Master and Servant - Topic 4302

Duties of servant - On termination - Confidentiality - See paragraphs 43 to 48.

Master and Servant - Topic 4307

Duties of servant - On termination - Competition in business - Solicitation of clients of former employer - See paragraphs 43 to 48.

Master and Servant - Topic 4526

Liabilities of servant - To master - Breach of employment contract - See paragraphs 67 to 83.

Practice - Topic 8800

Appeals - Duty of appellate court regarding findings of fact by a trial judge - See paragraphs 31 to 66.

Practice - Topic 8820

Appeals - Duty of appellate court re findings of credibility by trial judge - See paragraphs 31 to 37.

Counsel:

N.A. Keith and G. Cameron, for the appellant;

R.V. Aldridge and M.D. Preston, for the respondents.

This appeal was heard at Vancouver, British Columbia, on November 5, 2015, by Frankel, Tysoe and Goepel, JJ.A., of the British Columbia Court of Appeal. Frankel, J.A., delivered the following reasons for judgment for the court on March 11, 2016.