CT Comm Edmonton Ltd. v. Shaw Communications Inc. et al., (2007) 423 A.R. 338 (QB)

JudgeMurray, J.
CourtCourt of Queen's Bench of Alberta (Canada)
Case DateNovember 24, 2006
Citations(2007), 423 A.R. 338 (QB);2007 ABQB 473

CT Comm Edmonton Ltd. v. Shaw Comm. (2007), 423 A.R. 338 (QB)

MLB headnote and full text

Temp. Cite: [2007] A.R. TBEd. JL.074

CT Comm Edmonton Ltd. (plaintiff) v. Shaw Communications Inc. and Telus Corporation (defendants)

(0503 16213; 2007 ABQB 473)

Indexed As: CT Comm Edmonton Ltd. v. Shaw Communications Inc. et al.

Alberta Court of Queen's Bench

Judicial District of Edmonton

Murray, J.

February 14, 2007.

Summary:

The plaintiff, an online computer parts sales and services website operator, brought an action, alleging that the defendant internet service providers implemented spam-filtering technology that indiscriminately blocked incoming emails, including those from the plaintiff to its customers, causing "significant damages to the plaintiff". The plaintiff applied to amend its statement of claim. The defendants applied to strike all or part of the statement of claim as disclosing no cause of action and for orders for a further and better affidavit of records and regarding confidentiality.

The Alberta Court of Queen's Bench declined to strike the statement of claim in its entirety. The court determined the allowable amendments and deletions and set out the amended statement of claim. The court allowed the application for a further and better affidavit of records. An order respecting confidentiality was granted.

Fraud and Misrepresentation - Topic 2512

Misrepresentation - General principles - Action for economic loss arising from misstatement - [See Practice - Topic 2230 ].

Fraud and Misrepresentation - Topic 4081

Practice - Pleadings - General - [See Practice - Topic 2230 ].

Practice - Topic 2103

Pleadings - Amendment of pleadings - To remedy deficiency - The plaintiff's business was an online computer parts marketplace operated through a series of email addresses, each dealing with an aspect of the business - The plaintiff brought an action, alleging that the defendant internet service providers implemented spam-filtering technology that indiscriminately blocked incoming emails, including those from the plaintiff to its customers, causing "significant damages to the plaintiff" - The plaintiff sought to amend its statement of claim to add a previously missed email address - The defendants opposed the amendment, asserting that the effect of adding another email address was like adding a new plaintiff - The Alberta Court of Queen's Bench rejected the argument - Though the effect of the amendment might be similar to adding a new plaintiff, the plaintiff and the defendants remained the same - Nor did the amendment seek to change the capacity in which the plaintiff sued or the basis on which the defendants were being sued - The amendment was allowed - See paragraphs 88 to 96.

Practice - Topic 2230

Pleadings - Striking out pleadings - Grounds - Failure to disclose cause of action or defence - The plaintiff, an online computer parts sales and services website operator, brought an action, alleging that the defendant internet service providers (ISP) implemented spam-filtering technology that indiscriminately blocked incoming emails, including those from the plaintiff to its customers, causing "significant damages to the plaintiff" - The defendants applied to strike all or part of the statement of claim as disclosing no cause of action in, inter alia, negligence for pure economic loss - The Alberta Court of Queen's Bench declined to strike the statement of claim - While there was no suggestion of damage in the nature of physical harm or property damage, the plaintiff claimed that it fell within a class of persons who had been harmed by misrepresentations by the defendants as to the quality of their internet service technology and by their negligence - This raised the question of whether what was pled could be interpreted as giving rise to a duty of care owed by the defendants to the plaintiffs - The question of whether an ISP was in such proximity to all users of the internet and of the email services it provided such that a particular duty of care existed was not one that could be answered at this stage of the litigation process - If such a duty of care was imposed, the statement of claim could be interpreted as alleging that the duty was breached, resulting in damages - Thus, the statement of claim, with some alterations, was allowed to stand - See paragraphs 52 to 64.

Practice - Topic 4638

Discovery - Affidavit or list of documents - Sufficiency of statement of grounds of privilege - [See Practice - Topic 4648 ].

Practice - Topic 4639

Discovery - Affidavit or list of documents - Description of documents - [See Practice - Topic 4648 ].

Practice - Topic 4648

Discovery - Affidavit or list of documents - Order for further and better affidavit or list - The plaintiff, an online computer parts sales and services website operator, brought an action, alleging that the defendant internet service providers implemented spam-filtering technology that indiscriminately blocked incoming emails, including those from the plaintiff to its customers, causing "significant damages to the plaintiff" - The defendants applied under rule 196(1) for a further and better affidavit of records - The defendants asserted that (i) the plaintiff had not provided any documents that related to its claim for damages, (ii) certain documents were not properly described, (iii) the plaintiff had improperly claimed privilege over certain documents and (iv) documents referred to in the pleadings were not listed - The Alberta Court of Queen's Bench allowed the application - The plaintiff had to provide details of each and every document referred to sufficient to enable both defendants to understand in a general way what the document contained, where and when it originated and the number of documents referred to - Further, the plaintiff had to produce all relevant and material records whether it wished to or not - Documents in respect of which the plaintiff claimed privilege had to be identified such that the defendants could understand what area of privilege was being claimed - See paragraphs 113 to 129.

Torts - Topic 5098

Interference with economic relations - Conspiracy - Pleading - The plaintiff, an online computer parts sales and services website operator, brought an action, alleging that the defendant internet service providers implemented spam-filtering technology that indiscriminately blocked incoming emails, including those from the plaintiff to its customers, causing "significant damages to the plaintiff" - At issue in the context of the defendants' applications to strike all or parts of the statement of claim was an allegation of conspiracy on the part of the defendant, Shaw Communications Inc., alone - The Alberta Court of Queen's Bench struck the allegation - The claim did not name another party nor did it allege that Shaw had acted in combination with that other party to cause harm to the plaintiff - It did not allege that the predominant purpose of their conduct was to cause injury to the plaintiff or that Shaw and another should have known that what they were doing would result in injury to the plaintiff - It was plain and obvious that such a claim would fail - See paragraphs 81 to 83.

Torts - Topic 5218

Interference with economic relations - Contracts - Pleading - The plaintiff, an online computer parts sales and services website operator, brought an action, alleging that the defendant internet service providers implemented spam-filtering technology that indiscriminately blocked incoming emails, including those from the plaintiff to its customers, causing "significant damages to the plaintiff" - The defendants applied to strike all or part of the statement of claim as disclosing no cause of action in, inter alia, intentional interference with contractual relations - The Alberta Court of Queen's Bench struck the allegations regarding inducing breach of contract - The contract involved was that between the plaintiff and its customers who bought and sold items through the plaintiff's internet service - While it was possible to infer that the defendants knew or ought to have known that the plaintiff used their services on a commercial basis and that there was, therefore, a contractual relationship between the plaintiff and its customers, it was too much of a stretch to say that the defendants were aware of these contracts or that they induced, or intended to induce, breaches of those contracts - Those two prerequisites of the tort were not pled with sufficient specificity - See paragraph 72.

Torts - Topic 5248

Interference with economic relations - Interference with business relations - Pleadings - The plaintiff, an online computer parts sales and services website operator, brought an action, alleging that the defendant internet service providers implemented spam-filtering technology that indiscriminately blocked incoming emails, including those from the plaintiff to its customers, causing "significant damages to the plaintiff" - The defendants applied to strike all or part of the statement of claim as disclosing no cause of action in, inter alia, intentional interference with economic interests - The Alberta Court of Queen's Bench allowed the allegations to stand, but changed the wording from "wrongful interference with plaintiff's trade and commercial activity" to "unlawful interference with the plaintiff's legitimate business expectancy" - The contract or economic interest involved was that between the plaintiff and its customers who bought and sold items through the plaintiff's internet service - The plaintiff alleged that the defendants intentionally blocked emails sent by the plaintiff to customers, causing it to lose customers and suffer damages - The statement of claim alleged sufficient facts regarding the existence of a valid business relationship, the defendants' intentional interference with that relationship and the resulting damage - See paragraph 73.

Cases Noticed:

R. v. Jones (S.L.) (1994), 154 A.R. 118 (Q.B.), refd to. [para. 4].

R. v. Rain (M.M.) (1998), 223 A.R. 359; 183 W.A.C. 359; 130 C.C.C.(3d) 167; 1998 ABCA 315, leave to appeal denied (1999), 239 N.R. 197; 250 A.R. 192; 213 W.A.C. 192 (S.C.C.), refd to. [para. 4].

R. v. Phillips (M.A.) (2003), 320 A.R. 172; 288 W.A.C. 172; 2003 ABCA 4, affd. [2003] 2 S.C.R. 623; 311 N.R. 94; 339 A.R. 50; 312 W.A.C. 50; 2003 SCC 57, refd to. [para. 4].

C.H.S. et al. v. Director of Child Welfare (Alta.) (2006), 403 A.R. 103; 2006 ABQB 528, refd to. [para. 19].

Murphy Oil Co. et al. v. Predator Corp. et al. (2002), 316 A.R. 1; 7 Alta.L.R.(4th) 369; 2002 ABQB 403, refd to. [para. 19].

Rago Millwork & Supplies Co. v. Woodhouse (D.) Construction Ltd. (1981), 28 A.R. 499 (Q.B. Master), refd to. [para. 19].

Mikisew Cree First Nation v. Canada et al. (2000), 278 A.R. 375; 86 Alta. L.R.(3d) 139; 2000 ABQB 899, refd to. [para. 19].

Gouin et al. v. Gouin et al., [2005] A.R. Uned. 944; 2005 ABQB 899, refd to. [para. 21].

Balm v. 3512061 Canada Ltd. et al. (2003), 327 A.R. 149; 296 W.A.C. 149; 14 Alta. L.R.(4th) 221; 2003 ABCA 98, refd to. [para. 22].

Stolk v. 382779 Alberta Inc. et al. (2005), 383 A.R. 203; 46 Alta. L.R.(4th) 308; 2005 ABQB 440, refd to. [para. 24].

Knight Rebel Enterprises v. New Holland Canada Ltd. et al., [2002] A.R. Uned. 337; 2002 ABQB 549 (Master), refd to. [para. 24].

De Shazo v. Nations Energy Co. et al. (2005), 367 A.R. 267; 346 W.A.C. 267; 256 D.L.R.(4th) 502; 2005 ABCA 241, refd to. [para. 27].

Hunt v. T & N plc et al., [1990] 2 S.C.R. 959; 117 N.R. 321; 74 D.L.R.(4th) 321, refd to. [para. 30].

Hunt v. Carey Canada Inc. - see Hunt v. T & N plc et al.

Tottrup v. Lund et al. (2000), 255 A.R. 204; 220 W.A.C. 204; 81 Alta. L.R.(3d) 27; 2000 ABCA 121, refd to. [para. 31].

Tottrup v. Alberta (Minister of Environment) - see Tottrup v. Lund et al.

Fazel v. C.G.U. Insurance Co. of Canada et al., [2006] A.R. Uned. 126; 2006 ABQB 305 (Master), refd to. [para. 32].

Fullowka et al. v. Whitford (No. 1) et al., [1997] N.W.T.R. 1; 147 D.L.R.(4th) 531 (C.A.), leave to appeal refused [1997] 2 S.C.R. xvi; 222 N.R. 320, refd to. [para. 32].

Jamieson et al. v. Denman et al. (2004), 365 A.R. 201; 34 Alta. L.R.(4th) 113; 2004 ABQB 593, refd to. [para. 35].

Holloway v. Alberta Pork Producers Development Corp. and Rennie (1996), 185 A.R. 349; 40 Alta. L.R.(3d) 312 (Q.B. Master), refd to. [para. 36].

Dolphin Delivery Ltd. v. Retail, Wholesale and Department Store Union, Local 580, Peterson and Alexander, [1986] 2 S.C.R. 573; 71 N.R. 83; 33 D.L.R.(4th) 174; 38 C.C.L.T. 184; 25 C.R.R. 321; [1987] 1 W.W.R. 577, refd to. [para. 38].

McKinney v. University of Guelph et al., [1990] 3 S.C.R. 229; 118 N.R. 1; 45 O.A.C. 1; 76 D.L.R.(4th) 545, refd to. [para. 38].

Blacklaws et al. v. 470433 Alberta Ltd. (2000), 261 A.R. 28; 225 W.A.C. 28; 84 Alta. L.R.(3d) 270; 2000 ABCA 175, refd to. [para. 53].

Cooper v. Registrar of Mortgage Brokers (B.C.) et al., [2001] 3 S.C.R. 537; 277 N.R. 113; 160 B.C.A.C. 268; 261 W.A.C. 268; 2001 SCC 79, refd to. [para. 53].

Canadian National Railway Co. et al. v. Norsk Pacific Steamship Co. and Tug Jervis Crown et al., [1992] 1 S.C.R. 1021; 137 N.R. 241; 91 D.L.R.(4th) 289, refd to. [para. 53].

Hercules Management Ltd. et al. v. Ernst & Young et al., [1997] 2 S.C.R. 165; 211 N.R. 352; 115 Man.R.(2d) 241; 139 W.A.C. 241; 146 D.L.R.(4th) 577, refd to. [para. 60].

Gainers Inc. v. Pocklington Holdings Inc. (2000), 271 A.R. 280; 234 W.A.C. 280; 88 Alta. L.R.(3d) 209; 2000 ABCA 307, refd to. [para. 65].

369413 Alberta Ltd. v. Pocklington - see Gainers Inc. v. Pocklington Holdings Inc.

Miller (Ed) Sales and Rentals Ltd. v. Caterpillar Tractor Co. et al., [1996] 9 W.W.R. 449; 187 A.R. 81; 127 W.A.C. 81 (C.A.), reving. [1994] 5 W.W.R. 473; 151 A.R. 1 (Q.B.), leave to appeal refused (1997), 215 N.R. 159; 209 A.R. 400; 160 W.A.C. 400 (S.C.C.), refd to. [para. 66].

Kotch v. Casino St. Albert Inc., [2005] A.J. No. 1122; 2005 ABQB 649, refd to. [para. 66].

Dufferin Real Estate Ltd. v. Giralico, [1989] O.J. No. 1525; 1989 CarswellOnt 1866 (H.C.), refd to. [para. 73].

671122 Ontario Ltd. v. Sagaz Industries Canada Inc. et al. (1998), 67 O.T.C. 22; 40 O.R.(3d) 229 (Gen. Div.), refd to. [para. 73].

Canada Cement Lafarge Ltd. et al. v. British Columbia Lightweight Aggregate Ltd. et al., [1983] 1 S.C.R. 452; 47 N.R. 191; 145 D.L.R.(3d) 385, refd to. [para. 82].

Mustard v. Brache (2006), 397 A.R. 361; 384 W.A.C. 361; 62 Alta. L.R.(4th) 203; 2006 ABCA 265, refd to. [para. 115].

Canadian Engineering and Surveys (Yukon) Ltd. et al. v. Banque Nationale de Paris (Canada) (1995), 179 A.R. 394 (Q.B.), refd to. [para. 116].

Dorchak v. Krupka (1997), 196 A.R. 81; 141 W.A.C. 81 (C.A.), refd to. [para. 125].

Authors and Works Noticed:

Stevenson, William A., and Côté, Jean E., Annotated Alberta Civil Procedure Handbook (2007), pp. 118 [para. 77]; 200 to 203 [para. 117].

Stevenson, William A., and Côté, Jean E., Civil Procedure Guide (1996), vol. 1 [para. 36].

Counsel:

Yoseph Teferra, self-represented, and representing CT Comm Edmonton Ltd.;

T.J. Coates, for the defendant, Shaw Communications Inc.;

David Wotherspoon, for the defendant, Telus Corp.

These applications were heard on November 24, 2006, by Murray, J., of the Alberta Court of Queen's Bench, Judicial District of Edmonton, who delivered the following reasons for judgment on February 14, 2007.

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9 practice notes
  • Condominium Corp. No. 022 5840 v. Executive Loft Inc. et al., 2010 ABQB 232
    • Canada
    • Court of Queen's Bench of Alberta (Canada)
    • 25 Noviembre 2009
    ...[para. 17]. Waquan v. Canada - see Mikisew Cree First Nation v. Canada et al. CT Comm Edmonton Ltd. v. Shaw Communications Inc. et al. (2007), 423 A.R. 338; 2007 ABQB 473, refd to. [para. Marin v. Rask (2000), 282 A.R. 308; 2000 ABQB 931, refd to. [para. 18]. Hunter Financial Group Ltd. et ......
  • Cold Lake First Nations v. Alberta (Minister of Tourism, Parks and Recreation) et al., 2012 ABCA 36
    • Canada
    • Court of Appeal (Alberta)
    • 28 Diciembre 2011
    ...Farms Ltd. et al. (2001), 356 A.R. 1; 2001 ABQB 748, refd to. [para. 24]. CT Comm Edmonton Ltd. v. Shaw Communications Inc. et al. (2007), 423 A.R. 338; 2007 ABQB 473, refd to. [para. College of Optometrists (Ont.) v. SHS Optical Ltd. et al. (2008), 241 O.A.C. 225; 93 O.R.(3d) 139; 2008 ONC......
  • Schnick v. Rosen, 2009 ABQB 189
    • Canada
    • Court of Queen's Bench of Alberta (Canada)
    • 6 Marzo 2009
    ...Corp. et al. (1998), 224 A.R. 116; 1998 ABQB 419, refd to. [para. 13]. CT Comm Edmonton Ltd. v. Shaw Communications Inc. et al. (2007), 423 A.R. 338; 2007 ABQB 473, refd to. [para. C.H.S. et al. v. Director of Child Welfare (Alta.) (2006), 403 A.R. 103; 2006 ABQB 528, refd to. [para. 14]. M......
  • Weatherford Canada Partnership v. Addie et al., 2010 ABQB 477
    • Canada
    • Court of Queen's Bench of Alberta (Canada)
    • 4 Mayo 2010
    ...proceedings - Discovery - [See Practice - Topic 4166 ]. Cases Noticed: CT Comm Edmonton Ltd. v. Shaw Communications Inc. et al. (2007), 423 A.R. 338 (Q.B.), refd to. [para. Liu v. West Edmonton Mall Property Inc. et al. (2000), 279 A.R. 305 (Q.B.), refd to. [para. 9]. Weatherill Estate v. W......
  • Request a trial to view additional results
7 cases
  • Condominium Corp. No. 022 5840 v. Executive Loft Inc. et al., 2010 ABQB 232
    • Canada
    • Court of Queen's Bench of Alberta (Canada)
    • 25 Noviembre 2009
    ...[para. 17]. Waquan v. Canada - see Mikisew Cree First Nation v. Canada et al. CT Comm Edmonton Ltd. v. Shaw Communications Inc. et al. (2007), 423 A.R. 338; 2007 ABQB 473, refd to. [para. Marin v. Rask (2000), 282 A.R. 308; 2000 ABQB 931, refd to. [para. 18]. Hunter Financial Group Ltd. et ......
  • Cold Lake First Nations v. Alberta (Minister of Tourism, Parks and Recreation) et al., 2012 ABCA 36
    • Canada
    • Court of Appeal (Alberta)
    • 28 Diciembre 2011
    ...Farms Ltd. et al. (2001), 356 A.R. 1; 2001 ABQB 748, refd to. [para. 24]. CT Comm Edmonton Ltd. v. Shaw Communications Inc. et al. (2007), 423 A.R. 338; 2007 ABQB 473, refd to. [para. College of Optometrists (Ont.) v. SHS Optical Ltd. et al. (2008), 241 O.A.C. 225; 93 O.R.(3d) 139; 2008 ONC......
  • Schnick v. Rosen, 2009 ABQB 189
    • Canada
    • Court of Queen's Bench of Alberta (Canada)
    • 6 Marzo 2009
    ...Corp. et al. (1998), 224 A.R. 116; 1998 ABQB 419, refd to. [para. 13]. CT Comm Edmonton Ltd. v. Shaw Communications Inc. et al. (2007), 423 A.R. 338; 2007 ABQB 473, refd to. [para. C.H.S. et al. v. Director of Child Welfare (Alta.) (2006), 403 A.R. 103; 2006 ABQB 528, refd to. [para. 14]. M......
  • Weatherford Canada Partnership v. Addie et al., 2010 ABQB 477
    • Canada
    • Court of Queen's Bench of Alberta (Canada)
    • 4 Mayo 2010
    ...proceedings - Discovery - [See Practice - Topic 4166 ]. Cases Noticed: CT Comm Edmonton Ltd. v. Shaw Communications Inc. et al. (2007), 423 A.R. 338 (Q.B.), refd to. [para. Liu v. West Edmonton Mall Property Inc. et al. (2000), 279 A.R. 305 (Q.B.), refd to. [para. 9]. Weatherill Estate v. W......
  • Request a trial to view additional results

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