Garford Pty. Ltd. v. Dywidag Systems International Canada Ltd. et al.

• Jurisdiction: Federal Jurisdiction (Canada)
• Court: Federal Court (Canada)
• Judge: Russell, J.
• Citation: (2010), 375 F.T.R. 38 (FC),2010 FC 996
• Date: 06 October 2010

Garford Pty. v. Dywidag Systems (2010), 375 F.T.R. 38 (FC)

MLB headnote and full text

Temp. Cite: [2010] F.T.R. TBEd. OC.007

Garford Pty. Ltd. (plaintiff) v. Dywidag Systems International, Canada, Ltd., Mr. Bob Bishop and Mr. Kenneth Sostek (defendants)

Dywidag Systems International, Canada, Ltd. (plaintiff by counterclaim) v. Garford Pty. Ltd. (defendant by counterclaim)

(T-1270-08; 2010 FC 996)

Indexed As: Garford Pty. Ltd. v. Dywidag Systems International Canada Ltd. et al.

Federal Court

Russell, J.

October 6, 2010.

Summary:

The defendant Dywidag Systems International, Canada, Ltd. moved for summary judgment dismissing that part of the plaintiff's claim for damages and losses pursuant to ss. 36(1) and 45(1) of the Competition Act, because the action was commenced well after the expiry of the limitation period in s. 36(4) of the Act.

The Federal Court allowed the motion. The defendant had established a case for summary judgment. The claims presented no genuine issue for trial because the relevant limitation period expired before the action was commenced.

Actions - Topic 1510

Cause of action - General principles - New or extended cause of action - [See third Trade Regulation - Topic 513 ].

Limitation of Actions - Topic 15

General principles - Discoverability rule - Application of - [See second Trade Regulation - Topic 513 ].

Limitation of Actions - Topic 17

General principles - Continuing acts and continuing losses - [See third and fourth Trade Regulation - Topic 513 ].

Limitation of Actions - Topic 9305

Postponement or suspension of statute - General - Discoverability rule - [See second Trade Regulation - Topic 513 ].

Practice - Topic 5701

Judgments and orders - Summary judgments - General - The Federal Court considered the case law pertaining to summary judgment and summarized the basic principles to be applied in a summary judgment motion - The court also set out the fundamental differences between preliminary motions and trials, including that "[a] motion for summary judgment is not intended, and should not be treated, as a substitute for a trial. In determining whether a trial is unnecessary and would serve no purpose, the motions judge must guard against assuming the role of a trial judge and deciding the issues" - See paragraphs 1 to 10.

Trade Regulation - Topic 513

Competition - General - Limitation period - The defendant's motion for summary judgment pertained to the plaintiff's claim for damages under s. 36(1) of the Competition Act - The claim was subject to the limitation period set out in s. 36(4)(a)(i), namely, two years from a "day on which the conduct was engaged in" - The conduct in question was that referred to in s. 45(1), namely the negotiations leading up to and including three purchase agreements and related transactional documents recorded in those agreements - The limitation period for each transaction expired as follows: November, 2005; February, 2007; and March, 2008 - The action was commenced on August 15, 2008 - The Federal Court stated that, if s. 36(4)(a)(i) was given its plain and obvious meaning, the plaintiff's claim was time-barred and so disclosed no reasonable cause of action - The plaintiff sought to avoid that result, asserting three reasons why the limitation period did not exclude its s. 36(1) claims - The court addressed and rejected each of the plaintiff's points, and dismissed the claims - See paragraphs 11 to 27.

Trade Regulation - Topic 513

Competition - General - Limitation period - A defendant moved for summary judgment dismissing the plaintiff's claim for damages and losses pursuant to ss. 36(1) and 45(1) of the Competition Act, because the action was commenced well after the expiry of the limitation period in s. 36(4) - The plaintiff asserted that s. 36(4) was subject to a general discoverability rule, and that until it had received copies of the acquisition agreements in question it could not have known that it had a claim under s. 36(1), or the extent of the damages it might suffer - The Federal Court held that the plaintiff could not rely on the discoverability principle to extend the limitation period - There was no general application of the discoverability rule - The relevant authorities established that an application of "discoverability" was a matter of statutory construction - The time period in s. 36(4) ran from a specific date that was independent of knowledge - In addition, the court was satisfied on the evidence that, even if the discoverability principle applied, the claim would still be time-barred - See paragraphs 28 to 38.

Trade Regulation - Topic 513

Competition - General - Limitation period - The plaintiff sought to avoid the application of the limitation period in s. 36(4) of the Competition Act by alleging that the acquisition agreements in question contemplated various forms of action that carried forward into the future so that the offending conduct continued and was not time-barred - The Federal Court held that the alleged offence under s. 45(1) was complete at the time of the conclusion of the acquisition agreements, and any ongoing effects did not extend the time period - There was no succession or repetition of the offence - "The allegation is of one offence, which occurs when the agreements are concluded and which has continuing effects or consequences" - The limitation period was based upon "conduct", i.e., the conspiracy or agreement, and not upon its effects - If the cause of action under s. 36(1) persisted as long as the effects and consequences of the conduct, then the limitation period would be illusory - See paragraphs 39 to 45.

Trade Regulation - Topic 513

Competition - General - Limitation period - The plaintiff sought to avoid the consequences of the limitation period established by s. 36(4) of the Competition Act by saying that it continued as long as the plaintiff suffered damage as a result of the impugned conduct - The Federal Court held that such a proposition ran directly contrary to the principles and authorities - See paragraph 46.

Cases Noticed:

Granville Shipping Co. v. Pegasus Lines Ltd. S.A. et al., [1996] 2 F.C. 853; 111 F.T.R. 189 (T.D.), refd to. [para. 2].

Pizza Pizza Ltd. v. Gillespie (1990), 75 O.R.(2d) 225 (Gen. Div.), refd to. [para. 3].

ITV Technologies Inc. v. WIC Television Ltd., [2001] N.R. Uned. 33; 2001 FCA 11, refd to. [para. 4].

Feoso Oil Ltd. v. Ship Sarla (1995), 184 N.R. 307 (F.C.A.), refd to. [para. 4].

Von Langsdorff (F.) Licensing Ltd. v. S.F. Concrete Technology Inc. (1999), 165 F.T.R. 74 (T.D.), refd to. [para. 5].

Laboratoires Servier et al. v. Apotex Inc. et al. (2008), 332 F.T.R. 193; 2008 FC 825, refd to. [para. 24].

Eli Lilly & Co. et al. v. Apotex Inc. (2009), 351 F.T.R. 1; 2009 FC 991, refd to. [para. 25].

R. v. Smith (Howard) Paper Mills Ltd., [1957] S.C.R. 403, refd to. [para. 26].

R. v. Northern Electric Co., [1955] 3 D.L.R. 449, refd to. [para. 26].

R. v. Aetna Insurance Co. et al., [1978] 1 S.C.R. 731; 15 N.R. 117; 20 N.S.R.(2d) 565; 27 A.P.R. 565, refd to. [para. 26].

Fehr v. Jacob and Bethel Hospital (1993), 85 Man.R.(2d) 63; 41 W.A.C. 63; 14 C.C.L.T.(2d) 200 (C.A.), refd to. [para. 28].

Peixeiro v. Haberman, [1997] 3 S.C.R. 549; 217 N.R. 371; 103 O.A.C. 161, refd to. [para. 29].

Ryan v. Moore et al., [2005] 2 S.C.R. 53; 334 N.R. 355; 247 Nfld. & P.E.I.R. 286; 735 A.P.R. 286, refd to. [para. 29].

Waschkowski v. Hopkinson Estate (2000), 129 O.A.C. 287; 47 O.R.(3d) 370; 184 D.L.R.(4th) 281 (C.A.), refd to. [para. 29].

Manitoba v. Human Rights Commission (Man.), Galbraith and Lylyk (1983), 23 Man.R.(2d) 102 (Q.B.), affd. (1983), 25 Man.R.(2d) 117 (C.A.), refd to. [para. 41].

R. v. Rutherford (1990), 38 O.A.C. 41 (C.A.), refd to. [para. 41].

R. v. Pickles (D.) (2004), 184 O.A.C. 78 (C.A.), refd to. [para. 41].

Statutes Noticed:

Competition Act, R.S.C. 1985, c. C-34, sect. 36(4)(a)(i) [para. 13].

Counsel:

P. Bradley Limpert and Christina Cupone Settimi, for the plaintiff;

Heather E.A. Watts and Robert J.C. Deane, for the defendants.

Solicitors of Record:

Cameron Mackendrick, LLP, Intellectual Property Law, Toronto, Ontario, for the plaintiff;

Deeth Williams Wall, LLP, Toronto, Ontario, for the defendants.

This summary judgment motion was heard on September 7-8, 2010, at Toronto, Ontario, before Russell, J., of the Federal Court, who delivered the following reasons for judgment and judgment, at Ottawa, Ontario, dated October 6, 2010.