Evans v. Sports Corp., (2011) 523 A.R. 22 (QB)

• Judge: Graesser, J.
• Court: Court of Queen's Bench of Alberta (Canada)
• Case Date: December 21, 2010
• Citations: (2011), 523 A.R. 22 (QB);2011 ABQB 244

Evans v. Sports Corp. (2011), 523 A.R. 22 (QB)

MLB headnote and full text

Temp. Cite: [2011] A.R. TBEd. ap.051

Richard Evans (plaintiff) v. The Sports Corporation (defendant)

(0603 07734; 2011 ABQB 244)

Indexed As: Evans v. Sports Corp.

Alberta Court of Queen's Bench

Judicial District of Edmonton

Graesser, J.

April 7, 2011.

Summary:

Evans was formerly employed as a sports agent by The Sports Corporation (TSC). Evans claimed that he was owed salary which was deferred during the National Hockey League lockout for the 2004 - 2005 season, as well as pay for the last few days of his employment. He also claimed that he was owed certain bonuses. TSC counterclaimed for damages for alleged breaches of the restrictive covenant or non-solicitation agreement in Evans' employment contract with TSC or, alternatively, breaches of fiduciary duties owed by Evans to TSC.

The Alberta Court of Queen's Bench held that Evans was entitled to judgment against TSC relating to the outstanding bonuses and for part of the period that his salary was suspended during the lockout period. With respect to TSC's counterclaim, the court found that Evans breached the non-solicitation provisions of the employment agreement. However, the court held that TSC's damages should be reduced by 50% for its failure to mitigate by making an effort to retain its clients. The court assessed TSC's damages accordingly. Evans was entitled to set-off the amount of his claim against TSC against the amounts he owed TSC.

Editor's Note: The court issued a memorandum of judgment reported at 523 A.R. 80, in which it amended its decision with respect to the damages awarded to TSC.

Contracts - Topic 4045

Remedies for breach - Liquidated damages and penalties - Enforceability of liquidated damages or penalty clause - [See first Damages - Topic 6785 ].

Contracts - Topic 7426

Interpretation - Ambiguity - What constitutes ambiguity - Evans was formerly employed as a sports agent by The Sports Corporation (TSC) - At issue was whether Evans breached para. 7(c) of the employment agreement by directly or indirectly through others, calling on, soliciting, diverting or taking away or attempting to call on, solicit, divert or take away any client of TSC within 24 months from the end of his employment - TSC urged an interpretation of para. 7(c) tantamount to a prohibition against Evans accepting former TSC clients - The Alberta Court of Queen's Bench stated that "I am unable to give the words in the Employment Agreement an interpretation that would prevent Mr. Evans from accepting a TSC client as his during the two year prohibition period unless he has done something deliberate or overt to cause the client to leave TSC, or done things to divert them from TSC, or done something or some step to encourage clients to join him" - There was no ambiguity in para. 7(c) - If TSC wanted to restrict Evans from accepting any business from any TSC client, or even the TSC clients who had been assigned to him, clearer wording would have had to have been used, such as the word "accept" - That could not be read into or inferred from para. 7(c) - Such clauses were to be construed narrowly - Even if the court had found ambiguity, contra proferentem should not be applied - Both parties had a meaningful opportunity to participate in drafting the employment agreement, there was no great disparity in bargaining positions, and both parties had access to legal advice - See paragraphs 250 to 271.

Contracts - Topic 7428

Interpretation - Ambiguity - Relevant considerations - Evans was formerly employed as a sports agent by The Sports Corporation (TSC) - Evans argued that TSC had characterized the restrictions in para. 7(c) of his employment agreement as being restrictions against competition, and not merely restrictions against solicitation - He submitted that this characterization by TSC was evidence that para. 7(c) was ambiguous - The Alberta Court of Queen's Bench stated that "Ambiguity is not determined by the parties' own interpretation and actions. Ambiguity is determined by the courts. The fact that TSC has from time to time characterized the restrictions in paragraph 7(c) as non-competition provisions does not make them non-competition provisions" - See paragraph 247.

Contracts - Topic 7433

Interpretation - Ambiguity - Contra proferentem rule - [See Contracts - Topic 7426 ].

Damages - Topic 1002

Mitigation - General principles - Duty to mitigate - [See second Damages - Topic 6785 ].

Damages - Topic 1038

Mitigation - In contract - Effect of failure to mitigate - [See second Damages - Topic 6785 ].

Damages - Topic 6785

Contracts - Employment relationship or contract - Breach by employee - Breach of restrictive covenant - Evans was formerly employed as a sports agent by The Sports Corporation (TSC), a sports agency - The Alberta Court of Queen's Bench found that Evans breached the non-solicitation provisions of the employment agreement where he solicited the withdrawal of Henys and Kadlacek from TSC and he solicited TSC clients through Henys and Kadlecek within 24 months of the end of his employment with TSC - With respect to damages, the court stated, inter alia, "while the interpretation of paragraph 7(j) of the Employment Agreement as being a liquidated damages provision is a reasonable interpretation of that paragraph, the deeming of 'all revenues generated by Evans' activities which contravene' the Employment Agreement as an unjust enrichment and deemed trust in favour of TSC is not a genuine pre-estimate of liquidated damages. Mr. Evans' gross revenues do not reflect the measure of TSC's losses, or Mr. Evans' profits. There is no consideration of expenses in 7(j), such that enforcement of that paragraph would result in a windfall to TSC ... There would undoubtedly have been significant costs, and I do not think it can be said, therefore, that the provisions of 7(j) are not punitive and are instead a genuine pre-estimate of damages. As such, the deeming provision regarding the quantification of damages in 7(j) is unenforceable, and damages must be assessed in the 'ordinary' way. ... I prefer the approach that looks at the loss actually sustained by the claimant so the claimant is restored to the same position as it would have been in but for the breach" - See paragraphs 301 to 305.

Damages - Topic 6785

Contracts - Employment relationship or contract - Breach by employee - Breach of restrictive covenant - Evans was formerly employed as a sports agent by The Sports Corporation (TSC), a sports agency - The Alberta Court of Queen's Bench found that Evans breached the non-solicitation provisions in the employment agreement where he solicited the withdrawal of Henys and Kadlacek from TSC and he solicited TSC clients through Henys and Kadlecek within 24 months of the end of his employment with TSC - The court held that it was appropriate to reduce TSC's damages by 50% as a result of its failure to adequately mitigate its losses by making an effort to retain its clients - With respect to the assessment of damages the court stated that "I have difficulty with TSC's damage claim as it relates to Mr. Evans' revenues during the 2008-2009 and 2009-2010 seasons totalling $141,652.65. Those payments resulted from player contracts negotiated by Mr. Evans during the prohibition period, but related to a period beyond the expiry of the prohibition period. I am not satisfied that there is a valid claim for full payment beyond the end of the 2007-2008 season. Mr. Evans should not have been negotiating for those players at all. But TSC should not have a windfall. In my view, the payments for those latter two seasons should be treated as if they had been made for contracts negotiated by TSC, but where TSC had been fired and another agent retained to service the client. ... TSC is entitled to 10% of those amounts. As a result, TSC should also have damages in the amount of 50% of the $362,770.41 US and $3,543.75 (Can) generated for the first two seasons following Mr. Evans' departure, namely $181,385.20 US, plus 10% of the $141,652.65 US, or $7,082.63 US relating to the latter two seasons" - TSC's judgment was to be converted into Canadian dollars at the average exchange rate for the day prejudgment interest was to begin to run on each tranche of the judgment - See paragraphs 306 to 329 and 332 to 338.

Equity - Topic 3606

Fiduciary or confidential relationships - General principles - What constitutes a fiduciary relationship - Evans was formerly employed as a sports agent with The Sports Corporation (TSC), a sports agency - The Alberta Court of Queen's Bench found that Evans satisfied the elements for a fiduciary relationship to TSC - "He clearly exercised discretion and power as to the acceptance of clients and the work he did for such clients. He was unilaterally able to exercise those powers, and sign clients (or not sign clients, as the case may be), negotiate contracts for those clients (without approval from others at TSC) and service those clients' needs. It is clear that from the commencement of Mr. Evans' employment with TSC, the Czech-Slovak pipeline was essentially turned over to him. ... By assigning these clients to him, with little if no supervision exercised over him, TSC left itself vulnerable to Mr. Evans" - See paragraphs 207 to 209.

Equity - Topic 3721

Fiduciary or confidential relationships - The employer-employee relationship - General - [See Equity - Topic 3606 ].

Equity - Topic 3721

Fiduciary or confidential relationships - The employer-employee relationship - General - Evans was formerly employed as a sports agent with The Sports Corporation (TSC), a sports agency headed by Winter and Kotlowitz - Evans disputed that he was a fiduciary to TSC - He argued that because Winter thought he was not a good sports agent and would not allow Kotlowitz to offer him a new contract, that demonstrated that he was not a key employee - The Alberta Court of Queen's Bench stated that "No authority is cited for that proposition. The test for whether an employee is a fiduciary or not is set out above, not whether he is valued by the shareholders and other key employees. One can still be a key employee or fiduciary in the face of declining performance, or dissatisfaction on the part of the employer. The determination is made on the basis of what the employee does, not what the employer thinks of him" - See paragraphs 203 to 204.

Equity - Topic 3726

Fiduciary or confidential relationships - The employer-employee relationship - Duty of employee after termination - Evans was formerly employed as a sports agent with The Sports Corporation (TSC), a sports agency - TSC claimed for damages for alleged breaches of the restrictive covenant or non-solicitation agreement in Evans' employment contract or, alternatively, breaches of fiduciary duties owed by Evans to TSC - The Alberta Court of Queen's Bench found that Evans satisfied the elements for a fiduciary relationship - The court stated that "The fiduciary obligations Mr. Evans is alleged to have breached are those with respect to solicitation. As a result, if the non-solicitation provisions in the Employment Agreement are valid and enforceable, there is nothing in addition to or broader than those obligations that would flow from the finding that he was a fiduciary employee. Only if the non-solicitation provisions fail for some reason would Mr. Evans' fiduciary duties be relevant to the issue of breach and damages" - See paragraph 210.

Master and Servant - Topic 1310

Contract of hiring (employment contract) - Covenants in restraint of trade, restrictive covenants - General - The Alberta Court of Queen's Bench set out basic principles applicable to restrictive covenants and non-solicitation obligations - See paragraph 229.

Master and Servant - Topic 1317

Contract of hiring (employment contract) - Covenants in restraint of trade - Restrictive covenants - Interpretation - [See Contracts - Topic 7426 and Contracts - Topic 7428 ].

Master and Servant - Topic 1323

Contract of hiring (employment contract) - Covenants in restraint of trade - Restrictive covenants - Whether reasonable - General - [See Master and Servant - Topic 1325 ].

Master and Servant - Topic 1325

Contract of hiring (employment contract) - Covenants in restraint of trade - Restrictive covenants - Whether reasonable - Term - Evans was formerly employed as a sports agent by The Sports Corporation (TSC), a sports agency - The Alberta Court of Queen's Bench concluded that the non-solicitation provisions in para. 7(c) of Evans' employment agreement were valid and enforceable - The two year restriction, having regard to the fact that when Evans joined TSC he had no clients, was not unreasonable - All but a few clients he worked for while at TSC had been provided to him by TSC - There were hundreds of other NHL players Evans could solicit for business, and countless prospects - There was no evidence of any shortage of skilled sports agents so as to engage public concerns over any restrictions - See paragraphs 272 to 275.

Master and Servant - Topic 1326

Covenants in restraint of trade - Restrictive covenants - Whether reasonable - Area - Evans was formerly employed as a sports agent by The Sports Corporation (TSC) - Evans argued that if the restrictions in para. 7(c) of the employment agreement were considered to be a restrictive covenant (on the basis that TSC urged the interpretation that Evans could not accept any TSC clients), they were unenforceable because there was no geographic restriction - The Alberta Court of Queen's Bench rejected the argument - The court stated that "The 'requirement' that a restrictive covenant have a geographic and temporal restriction is not an absolute requirement; it is part of the analysis to determine if the restrictions are reasonable between the parties and reasonable in the public interest. ... Subject to public policy concerns (such as with professionals and a patient/client's freedom of choice), it does not appear to be prima facie unreasonable to prevent someone from dealing with his former employer's clients for a reasonable period of time, wherever they may be located" - See paragraphs 230 to 241.

Master and Servant - Topic 1330

Contract of hiring (employment contract) - Covenants in restraint of trade - Restrictive covenants - Breach of - What constitutes - Evans was formerly employed as a sports agent with The Sports Corporation (TSC), a sports agency - TSC claimed damages for alleged breaches of the restrictive covenant or non-solicitation agreement in Evans' employment contract - TSC argued that Evans obtained the withdrawal of Kadlecek as an employee of TSC, and obtained, or attempted to obtain the withdrawal of Henys as an employee of TSC - Evans noted that Kadlecek had not signed an employment contract with TSC and that there was no evidence that Henys was ever an employee of TSC - He noted that according to the National Hockey League Players' Association (NHLPA) rules, a sports agent was required to register with the NHLPA the names of all employees working for them - Neither Henys nor Kadlecek were registered as employees of TSC - The Alberta Court of Queen's Bench stated that "I place no store in Mr. Evans' arguments that neither Mr. Henys nor Mr. Kadlecek were TSC 'employees'" - Henys and Kadlecek were key personnel associated with TSC - While the formal arrangement with Henys was through Henys' corporation, it was Henys' services that TSC required - If TSC failed to notify the NHL of employment or agency relationships, that was a matter between TSC and the NHL - It did not affect the characterization of the relationship between TSC and Henys or Kadlecek - Evans breached the employment agreement when he solicited Henys to provide services to him and his new sports agency and by soliciting and entering into arrangements with Kadlecek - See paragraphs 178 to 195.

Master and Servant - Topic 1330

Contract of hiring (employment contract) - Covenants in restraint of trade - Restrictive covenants - Breach of - What constitutes - Evans was formerly employed as a sports agent by The Sports Corporation (TSC), a sports agency - At issue was whether Evans breached para. 7(c) of the employment agreement by directly or indirectly through others, calling on, soliciting, diverting or taking away or attempting to call on, solicit, divert or take away any client of TSC within 24 months from the end of his employment - The Alberta Court of Queen's Bench found that Evans breached para. 7(c) - There was no evidence of any overt action on Evans' part which caused any TSC client to leave and join Evans - However, the court found: (a) Evans wanted Kadlecek and Henys to continue to work with him and not TSC after he left; (b) arrangements with both Kadlecek and Henys (in the case of Henys at a minimum through his son as intermediary); (c) Evans improperly solicited both Henys and Kadlecek; (d) within a very short time after his departure from TSC, Kadlecek had facilitated the departure of a number of players from TSC and their signing with Evans; (e) within several months of his departure, Henys had facilitated the departure of some players from TSC and their signing with Evans; and (f) within six or seven months of his departure, Evans and Henys were negotiating an agreement to form up a relationship - While Evans may have not specifically asked either Henys or Kadlecek to do anything, he was undoubtedly aware of the results of their efforts - They were pursuing clients on his behalf - The evidence established solicitation on Evans' part - Evans had also breached para. 7(b) of the employment agreement, which prohibited him from obtaining or attempting to obtain the withdrawal from TSC of any TSC employees for 24 months after his employment ended - See paragraphs 276 to 297.

Master and Servant - Topic 1802

Remuneration - General - Employee defined - Evans was formerly employed as a sports agent by The Sports Corporation (TSC) - His employment contract contained provisions which anticipated a strike/lockout for the 2004-2005 NHL season - In June 2004, the lockout clause was activated and payment of Evans' salary was suspended - Evans argued that non-payment of his regular wages during the lockout constituted a breach of s. 4 of the Employment Standards Code - TSC argued that the Code had no application because Evans left his employment over the lockout period and could not claim to be an employee of TSC while he was representing to the Government (and receiving unemployment benefits) that he was unemployed - The Alberta Court of Queen's Bench stated that the effect of TSC completing a Record of Employment and Evans claiming and receiving employment insurance during the lockout was that Evans was not an employee of TSC during that period - See paragraphs 143 to 164.

Master and Servant - Topic 1812

Remuneration - Wages - Payment of - Suspension or reduction - Evans was formerly employed as a sports agent by The Sports Corporation (TSC), a sports agency headed by Winter and Kotlowitz - The employment contract contained provisions which anticipated a strike/lockout for the 2004-2005 NHL season - At the end of June 2004, the lockout clause was activated and payment of Evans' salary was suspended effective June 30 - The lockout ended on July 13, 2005 - TSC resumed salaries for July and August 2006 but on a rolled-back basis - Evans began to receive his full salary as of September 1, 2005 - Evans claimed that he was owed salary which was deferred during the lockout - The Alberta Court of Queen's Bench found that the strike/lockout clause in the employment agreement was clearly drafted - It allowed TSC, in the event of a labour dispute between the owners and the NHL Players Association, to suspend Evans' salary during the duration of the labour dispute - Evans was to be treated in a similar fashion to Kotlowitz in regard to salary suspension or reduction, and repayment of any deferred or missed salary - The court concluded that TSC did not have the right to suspend salaries under the employment agreement until September 16, 2004, when the lockout officially began - Further, Evans' salary should have resumed on July 14, 2005, the day after the lockout officially ended - However, Evans had no entitlement to payment for the balance of the lockout period as Kotlowitz had received nothing for that period - See paragraphs 95 to 113.

Master and Servant - Topic 1812

Remuneration - Wages - Payment of - Suspension or reduction - Evans was formerly employed as a sports agent by The Sports Corporation (TSC) - His employment contract contained provisions which anticipated a strike/lockout for the 2004-2005 NHL season - In June 2004, the lockout clause was activated and payment of Evans' salary was suspended - Evans argued that non-payment of his regular wages during the lockout constituted a breach of s. 4 of the Employment Standards Code and he was entitled to be paid his full salary over the lockout period - He submitted that TSC could not contract with him to receive no salary as such an agreement would violate the minimum wage provisions under the Code and the Employment Standards Regulations - The Alberta Court of Queen's Bench found that Evans did receive some salary from TSC over the relevant period and what he received was more than the minimum wage - Having regard to the payments made by TSC to Evans during the lockout period, the employment agreement did not offend the Code - However, it had to be interpreted as not permitting TSC to reduce salaries below minimum wage for any relevant period - The court further stated that "Even if the labour disruption provision were found to be void, that does not automatically mean that Mr. Evans would be entitled to full salary for a labour disruption period. The Force Majeure provisions of the Employment Agreement might have been brought into play. There could have been a quantum meruit assessment of the value of services provided by Mr. Evans over the labour disruption period" - There was insufficient evidence to conclude that on a quantum meruit basis Evans should be paid any more than he was paid - See paragraphs 114 to 142.

Master and Servant - Topic 1827

Remuneration - Wages - Payment of - For period after notice of resignation - The employment agreement between Evans and The Sports Corporation (TSC) required each party to notify the other by February 17, 2006, as to whether they wanted to terminate the agreement or renew it - Evans notified TSC before that date that he wished to renew - As the expiry date drew closer, neither Evans nor TSC budged from their position of wanting the other to make the first offer - On April 12, 2006, Evans announced that he would be leaving when his contract expired a few days later - TSC had Evans leave immediately - The Alberta Court of Queen's Bench held that Evans was entitled to be paid the remaining five days of his salary - TSC could decide they no longer wanted Evans around, but apart from termination for cause (which was not alleged) they had to continue to pay him and provide his benefits for the term of the agreement - See paragraphs 90 to 93.

Master and Servant - Topic 1849

Remuneration - Statutory regulation - Minimum wage - General - [See second Master and Servant - Topic 1812 ].

Master and Servant - Topic 1912

Remuneration - Bonuses - Entitlement - Evans was formerly employed as a sports agent with The Sports Corporation (TSC) - Evans claimed that he was owed a bonus of $4,750 US relating to the recruitment of Vrbata as a client of TSC - The Alberta Court of Queen's Bench held that Evans was entitled to the bonus - Evans' evidence was that he was the effective cause of the signing of Vrbata - TSC's evidence was that Henys had claimed to be the effective cause of the signing and had also claimed entitlement to a bonus or compensation as a result - TSC did not pay Evans or Henys - Henys was now dead - There was no evidence that he had ever advanced any formal claim against TSC in regard to Vrbata - The matter was undoubtedly statute-barred with regard to any claim by Henys - Evans, on the other hand, had pursued his claim - TSC could not expect to receive a windfall of not having to pay anyone with respect to Vrbata - TSC disputed Evans' claim only on the basis of hearsay - There was no evidence to dispute Evans' claim - The court had no reason to disbelieve Evans on this subject - See paragraphs 165 to 175.

Master and Servant - Topic 4207

Duties of servant - Fiduciary duty - [See Equity - Topic 3726 ].

Practice - Topic 5402

Judgments and orders - Currency of judgments (incl. conversion) - [See second Damages - Topic 6785 ].

Practice - Topic 5402

Judgments and orders - Currency of judgments (incl. conversion) - The Alberta Court of Queen's Bench stated that "From my review of the relevant authority, it appears that the guiding principle for conversion is to attempt to achieve neutrality with respect to currency conversions, but if that is not reasonably possible, any conflict should be resolved in favour of the injured party" - See paragraph 332.

Cases Noticed:

Lefebvre v. HOJ Industries Ltd.; Machtinger v. HOJ Industries Ltd., [1992] 1 S.C.R. 986; 136 N.R. 40; 53 O.A.C. 200, refd to. [para. 120].

Beaulne v. Kaverit Steel & Crane ULC (2002), 325 A.R. 237; 219 D.L.R.(4th) 482; 2002 ABQB 787, refd to. [para. 120].

Transport North American Express Inc. v. New Solutions Financial Corp. (2004), 316 N.R. 84; 183 O.A.C. 342; 2004 SCC 7, refd to. [para. 121].

Chapell v. Canadian Pacific Railway Co., [2010] A.R. Uned. 531; 29 Alta. L.R.(5th) 380; 2010 ABQB 441, refd to. [para. 160].

Desforge v. E-D Roofing Ltd., [2008] O.T.C. Uned. J40; 69 C.C.E.L. 115 (Sup. Ct.), refd to. [para. 160].

Firemaster Oilfield Services Ltd. v. Safety Boss (Canada) (1993) Ltd., 2000 ABQB 929, refd to. [para. 200].

Altam Holdings Ltd. v. Lazette et al. (2009), 479 A.R. 89; 2009 ABQB 458, refd to. [para. 200].

Physique Health Club Ltd. v. Carlsen et al., [1997] 11 W.W.R. 609; 209 A.R. 239; 160 W.A.C. 239; 141 D.L.R.(4th) 64 (C.A.), refd to. [para. 201].

Tree Savers International Ltd. et al. v. Savoy et al. (1992), 120 A.R. 368; 8 W.A.C. 368 (C.A.), refd to. [para. 201].

Anderson, Smyth & Kelly Customs Brokers Ltd. v. World Wide Customs Brokers Ltd. et al. (1996), 184 A.R. 81; 122 W.A.C. 81; 20 C.C.E.L.(2d) 1 (C.A.), refd to. [para. 201].

Torcana Valve Services Inc. v. Anderson et al. (2007), 421 A.R. 157; 2007 ABQB 356, refd to. [para. 202].

Adler Firestopping Ltd. et al. v. Rea et al. (2008), 441 A.R. 18; 2008 ABQB 95, refd to. [para. 202].

Clarke et al. v. Rossburger et al. (1999), 254 A.R. 30; 1999 ABQB 821, refd to. [para. 211].

Aquafor Beech Ltd. et al. v. Whyte et al., [2010] O.T.C. Uned. 2733; 2010 ONSC 2733, refd to. [para. 211].

Loreto v. Little et al., [2010] O.T.C. Uned. 755; 2010 ONSC 744, refd to. [para. 218].

Goodman v. Newman, [1986] O.J. No. 922, affd. [1988] O.J. No. 298 (C.A.), refd to. [para. 219].

Bacher v. Obar (1989), 28 C.C.E.L. 160 (Ont. H.C.J.), affd. [1993] O.J. No. 358 (C.A.), refd to. [para. 219].

Layne v. Michaels, [1990] B.C.T.C. Uned. 874 (S.C.), refd to. [para. 219].

Vertlieb Anderson v. Nelford, [1989] B.C.J. No. 2084 (S.C.), refd to. [para. 219].

Lodwig v. Mather (1995), 168 A.R. 390 (Q.B.), refd to. [para. 219].

Cressman, Foster Health Facility Inc. et al. v. Furniss et al., [2006] O.T.C. Uned. E97 (Sup. Ct.), refd to. [para. 219].

Clarke et al. v. Rossburger et al. (1999), 254 A.R. 30; 1999 ABQB 821, refd to. [para. 220].

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. 228].

Physique Health Club Ltd. v. Carlsen et al. (1996), 193 A.R. 196; 135 W.A.C. 196 (C.A.), refd to. [para. 229].

KRG Insurance Brokers (Western) Inc. v. Shafron et al., [2009] 1 S.C.R. 157; 383 N.R. 217; 265 B.C.A.C. 1; 446 W.A.C. 1; 2009 SCC 6, refd to. [para. 229].

Collins (J.G.) Insurance Agencies Ltd. v. Elsley's Estate, [1978] 2 S.C.R. 916; 20 N.R. 1, refd to. [para. 229].

Staebler (H.L.) Co. v. Allan et al. (2008), 239 O.A.C. 230; 2008 ONCA 576, refd to. [para. 229].

Promotional Wearhouse Inc. v. Campbell (2002), 331 A.R. 344; 2002 ABQB 502, refd to. [para. 229].

KOS Oilfield Transportation Ltd. v. Mitchell et al. (2010), 490 A.R. 108; 497 W.A.C. 108; 2010 ABCA 270, refd to. [para. 229].

RBC Dominion Securities Inc. v. Merrill Lynch Canada Inc. et al. (2007), 235 B.C.A.C. 126; 388 W.A.C. 126; 2007 BCCA 22, refd to. [para. 242].

ATB Securities Inc. v. RBC Dominion Securities Inc. et al., [2008] A.R. Uned. 636; 2008 ABQB 392, refd to. [para. 245].

Edward Jones et al. v. Klassen (2006), 390 A.R. 66; 2006 ABQB 41, refd to. [para. 245].

Gainers Inc. v. Pocklington Holdings Inc. (2000), 255 A.R. 373; 220 W.A.C. 373; 2000 ABCA 151, refd to. [para. 251].

Brouwer Claims Canada & Co. v. Doge et al., [2002] B.C.T.C. 988 (S.C.), refd to. [para. 257].

Burns v. Alberta Chiropractic Association (1981), 31 A.R. 176 (C.A.), refd to. [para. 260].

Travel Company Ltd. v. Keeling et al. (2009), 473 A.R. 336; 2009 ABQB 399, refd to. [para. 261].

Globex Foreign Exchange Corp. v. Kelcher et al. (2005), 376 A.R. 133; 360 W.A.C. 133; 2005 ABCA 419, refd to. [para. 261].

Johnson v. Top-Co LP (2009), 488 A.R. 182; 2009 ABQB 731, refd to. [para. 270].

Bell ExpressVu Limited Partnership v. Rex et al., [2002] 2 S.C.R. 559; 287 N.R. 248; 166 B.C.A.C. 1; 271 W.A.C. 1; 2002 SCC 42, refd to. [para. 270].

Canadian National Railway Co. et al. v. Royal & Sun Alliance Insurance Co. of Canada et al., [2008] 3 S.C.R. 453; 381 N.R. 332; 243 O.A.C. 340; 2008 SCC 66, refd to. [para. 271].

Senos v. Pacesetter Performance Drilling Ltd. et al. (2010), 497 A.R. 1; 2010 ABQB 533, refd to. [para. 271].

Dynamex Canada Inc. v. Miller (1998), 161 Nfld. & P.E.I.R. 97; 497 A.P.R. 97 (Nfld. C.A.), refd to. [para. 272].

Gunning and Associates Marketing Inc. v. Kesler et al., [2005] O.T.C. 204 (Sup. Ct.), refd to. [para. 278].

London Life Insurance Co. v. Heaps, [1993] O.J. No. 1403 (Gen. Div.), refd to. [para. 279].

Sheehan & Rosie Ltd. v. Northwood, [2000] O.T.C. 167 (Sup. Ct.), refd to. [para. 280].

CIBC World Markets Inc. v. MacDonald et al., [2000] B.C.T.C. 650; 2000 BCSC 503, refd to. [para. 280].

RBC Dominion Securities Inc. v. Merrill Lynch Canada Inc. et al., [2003] B.C.T.C. 1773; 2003 BCSC 1773, refd to. [para. 280].

Monarch Messenger Services Ltd. v. Houlding (1984), 56 A.R. 147 (Q.B.), refd to. [para. 330].

Stevenson Estate v. Siewart et al. (2000), 266 A.R. 35; 228 W.A.C. 35; 2000 ABCA 222, refd to. [para. 333].

Tulsa Heaters Inc. v. Syncrude Canada Ltd., [2008] A.R. Uned. 754; 2008 ABQB 774, refd to. [para. 337].

Statutes Noticed:

Employment Standards Code, R.S.A. 2000, c. E-9, sect. 4 [para. 117].

Counsel:

Stephen Livingstone (McLennan Ross LLP), for the plaintiff/defendant by counterclaim;

P.D. Wilson, Q.C. (Fraser Milner Casgrain LLP), for the defendant/plaintiff by counterclaim.

This action and counterclaim were heard on June 14 to 18, September 30, October 1 and December 21, 2010, before Graesser, J., of the Alberta Court of Queen's Bench, Judicial District of Edmonton, who delivered the following reasons for judgment on April 7, 2011.