Indutech Canada Ltd. v. Gibbs Pipe Distributors Ltd. et al., 2013 ABCA 111

• Judge: Picard, Bielby and O'Ferrall, JJ.A.
• Court: Court of Appeal (Alberta)
• Case Date: Wednesday November 07, 2012
• Citations: 2013 ABCA 111;(2013), 544 A.R. 205

Indutech Can. v. Gibbs Pipe Distr. (2013), 544 A.R. 205; 567 W.A.C. 205 (CA)

MLB headnote and full text

Temp. Cite: [2013] A.R. TBEd. AP.037

Indutech Canada Limited (respondent/plaintiff) v. Gibbs Pipe Distributors Ltd., Barry Gibbs Sales Limited, 724192 Alberta Ltd., 974038 Alberta Ltd., Borealis Fabrication Ltd., Barry Gibbs, Guy Gibbs, ABC Corp. (appellants/defendants) and Cladtech Canada Inc., Barry Kossowan, Kossowan Holdings Inc. and 1036795 Alberta Ltd. (not a party to the appeal/defendants)

(1101-0096-AC; 2013 ABCA 111)

Indexed As: Indutech Canada Ltd. v. Gibbs Pipe Distributors Ltd. et al.

Alberta Court of Appeal

Picard, Bielby and O'Ferrall, JJ.A.

April 9, 2013.

Summary:

The plaintiff, Indutech Canada Ltd., manufactured specialized steel products for sale to petroleum producers in the Alberta oil sands. The defendants Gibbs Pipe Distributors Ltd. (GPD) and Barry Gibbs Sales Limited (BGS) (together with Guy Gibbs, Barry Gibbs, 724192 Alberta Ltd., 974038 Alberta Ltd., and Borealis Fabrication Ltd. (the Gibbs Group)) were related individuals and companies that for a number of years marketed and sold Indutech's products in the oil sands pursuant to two agency agreements. Indutech sued the defendants, alleging that the actions taken by GPD and BGS breached the agency agreements and the fiduciary and good faith duties owed by GPD and BGS to Indutech, in particular, as they related to the steps taken to set up Cladtech Canada Inc., a competitor in the business. Indutech further alleged that the individual defendants (Guy Gibbs, Barry Gibbs and Barry Kossowan), and through them, their corporations, induced the breach of the agency agreements by assisting in the set up of Cladtech and by other conduct. Indutech alleged that Guy Gibbs, Barry Gibbs and Barry Kossowan, and corporations that they controlled, were co-conspirators with respect to the alleged breaches of duty, knowingly assisted in the breaches of fiduciary duty and unlawfully interfered with the economic relations of Indutech. Indutech also claimed that BGS, GPD and the Gibbs Group further breached the agreements and sought damages or disgorgement of profits or restitution in connection with: (1) the prohibited supply of bulk welding wire to competitors; (2) the diversion of sales to third parties, including Cladtech; (3) the receipt of remuneration greater than the 5% mark-up allowed under the agency agreements; and (4) the loss of sales and the recovery of commissions and profits related to what was referred to as the Millennium Project. GPD counterclaimed, alleging that it was owed commissions pursuant to the second agency agreement.

The Alberta Court of Queen's Bench, in a decision reported at 508 A.R. 1, held that Indutech had established that BGS and GPD breached the agency agreements in multiple ways. Further, fiduciary obligations arose by reason of the agency relationship and BGS, GPD and the Gibbs Group breached their fiduciary obligations to Indutech in a number of ways. Guy Gibbs, Barry Gibbs and Kossowan et al. were also liable to Indutech for breach of fiduciary obligations by reason of the operation of the doctrine of knowing assistance. The court found all of the defendants liable for inducing the breach of the agreements. The court noted that while it found liability on other grounds, had it been necessary to do so, it would have found the defendants liable as parties to a conspiracy to unlawful means. The court dismissed the counterclaim and assessed damages. The parties made submissions on costs.

The Alberta Court of Queen's Bench, in a decision reported at [2012] A.R. Uned. 764, awarded Indutech enhanced costs. GPD, BGS and the Gibbs Group appealed the decisions.

The Alberta Court of Appeal dismissed the appeals.

Agency - Topic 301

Creation of relations - General - What constitutes - The Alberta Court of Appeal stated that "The fact that the Agency agreements are called 'Agency' agreements is something of a trap for the unwary; if the facts do not support the existence of a fiduciary relationship, calling it one does not make it one; the use of this label does not turn what is not an agency relationship into one, and thereby impose fiduciary obligations on the parties ..." - See paragraph 20.

Agency - Topic 3084

Relations between principal and agent - Agent's duty - General - Fiduciary duty - Indutech Canada manufactured specialized steel products for sale to petroleum producers in the Alberta oil sands - Gibbs Pipe Distributors (GPD) and Barry Gibbs Sales (BGS) (together with other individuals and corporations (the Gibbs Group)) marketed and sold Indutech's products in the oil sands pursuant to two agency agreements - The trial judge concluded that GPD, BGS and the Gibbs Group (the appellants) were fiduciaries because, inter alia, the relationship met the requirements for a fiduciary relationship established in Frame v. Smith and Smith (1987, S.C.C.) - The Alberta Court of Appeal affirmed the decision - The trial judge made fact findings leading to the conclusion that each of the three Frame requirements were met - (1) BGS purported to act as Indutech's representative in the market and the market perceived it as being Indutech's sales arms - It had exercised power on Indutech's behalf, which relied on it to make full disclosure of market information and provide information and advice relating to matters such as pricing, scheduling and planned future work - (2) Both agreements granted power and discretion to the appellants, with a resulting vulnerability arising on Indutech's part - The absence of authority to bind Indutech did not defeat the conclusion that the appellants had and could unilaterally exercise a power or discretion so as to affect Indutech's interests - That power and discretion was created through the nature of the appellants' unlimited access to Indutech's customers and sales - (3) Indutech had been particularly vulnerable to the risk of misuse of confidential business information - That vulnerability supported a fiduciary claim where it arose directly from the relationship created by the agreements - The appellants also had expressed contractual obligations of loyalty and non-competition which gave rise to a fiduciary inference - See paragraphs 13 to 35.

Agency - Topic 3084

Relations between principal and agent - Agent's duty - General - Fiduciary duty - Indutech Canada manufactured specialized steel products for sale to petroleum producers in the Alberta oil sands - Gibbs Pipe Distributors (GPD) and Barry Gibbs Sales (BGS) (together with other individuals and corporations (the Gibbs Group)) marketed and sold Indutech's products in the oil sands pursuant to two agency agreements - The trial judge concluded that GPD, BGS and the Gibbs Group (the appellants) were fiduciaries where, inter alia, the requirements for an ad hoc fiduciary duty were met - The Alberta Court of Appeal affirmed the decision - The trial judge found that the second and third requirements for an ad hoc finding was as an aspect of her Frame analysis (which analysis the court affirmed) - As to the first requirement, undertakings of loyalty were found in both agency agreements - Given those provisions, the judge reasonably concluded that the appellants owed a fiduciary duty to Indutech to act in its interests, to keep it informed, to refer all inquiries to it and to withhold from directly competing with it - Had the court been required to address the issue as a question of law, it would have found the judge's conclusion to be correct - See paragraphs 36 to 41.

Contracts - Topic 4062

Remedies for breach - Accounting of profits (disgorgement) - When available or appropriate - The Alberta Court of Appeal stated that "Disgorgement is the correct remedy when the fiduciary's profit is greater than the beneficiary's loss and may be awarded in addition to the consequential damages suffered by the beneficiary ..." - See paragraph 45.

Contracts - Topic 4062

Remedies for breach - Accounting of profits (disgorgement) - When available or appropriate - The plaintiff manufactured specialized steel products for sale to petroleum producers in the Alberta oil sands - The defendants were related individuals and companies that for a number of years marketed and sold the plaintiff's products in the oil sands pursuant to two agency agreements - The plaintiff sued the defendants for damages for breach of contract, breach of fiduciary duties, inducing breach of contract, etc. - The trial judge allowed the action and, in assessing damages, ordered disgorgement of profit for contract breaches involving fiduciary duties - The defendants asserted that the judge erred in ordering disgorgement of the profits earned on the sale of bulk welding wire manufactured by another company - The defendants asserted that the judge should not have characterized the breach as fiduciary in nature because there was no element of vulnerability on the plaintiff's part which exposed it to the loss - The Alberta Court of Appeal dismissed the appeal - The defendants' assertion ignored the availability of the plaintiff's customer list to them, which exposed the plaintiff to harm through misuse - Loyalty and exclusivity, when specific requirements of a relationship (as was the case here), were values that required defending - A fiduciary's decision to ignore its obligations to its beneficiary because it was more profitable to break than to keep a promise should not be affirmed through limiting its resulting liability - It was no answer to say that the secret commissions paid to the defendants did not cause any out-of-pocket loss to the plaintiff or that the ends justified the breach in the face of the defendants' express undertaking to be loyal to the plaintiff's business interests - A fiduciary was generally prohibited from making a secret profit - If disgorgement was not ordered, no remedy would exist for the breach as the plaintiff was not in the business of manufacturing bulk welding wire - The "doctrine of efficient breach", had no place in addressing remedies for breach of fiduciary duty - See paragraphs 50 to 57.

Contracts - Topic 4062

Remedies for breach - Accounting of profits (disgorgement) - When available or appropriate - The plaintiff manufactured specialized steel products for sale to petroleum producers in the Alberta oil sands - The defendants were related individuals and companies that for a number of years marketed and sold the plaintiff's products in the oil sands pursuant to two agency agreements - The plaintiff sued the defendants for damages for breach of contract, breach of fiduciary duties, inducing breach of contract, etc. - The trial judge allowed the action and, in assessing damages, ordered disgorgement of profit for contract breaches involving fiduciary duties - The defendants asserted that the sum ordered disgorged was overstated by about $30,000 - The $30,000 represented sales made during the last half of 1999, prior to the signing of second agency agreement - That agreement was backdated to mid-1999 - The Alberta Court of Appeal rejected the assertion - The defendants had a duty of loyalty to the plaintiff - They could have avoided the loss simply by disclosing the sales at the time the 2000 agreement was executed - Similarly, no error arose from the judge's calculating the sums earned from a competitor of the plaintiff in 1999 by extrapolating from the evidence of the sums that the defendants earned from the competitor in later years - That inference was available to her - Any resulting risk to the defendants was within their control and could have been addressed had they led evidence as to their actual income from that source during the latter half of 1999 - See paragraphs 58 and 59.

Contracts - Topic 4062

Remedies for breach - Accounting of profits (disgorgement) - When available or appropriate - The plaintiff manufactured specialized steel products for sale to petroleum producers in the Alberta oil sands - The defendants were related individuals and companies that for a number of years marketed and sold the plaintiff's products in the oil sands pursuant to two agency agreements - The plaintiff sued the defendants for damages for breach of contract, breach of fiduciary duties, inducing breach of contract, etc. - The trial judge allowed the action and, in assessing damages, ordered disgorgement of profit for contract breaches involving fiduciary duties - The defendants asserted that the trial judge erred in holding that they breached a fiduciary duty by entering into a commission agreement to manage the CCO portion a bitumen production facility and ordering it to disgorge $292,8776 earned form the contract - The Alberta Court of Appeal rejected the assertion - Instead of acting as they had agreed to do, solely for the plaintiff, a manufacturer in the CCO industry, the defendants also acted for one of the biggest purchasers and earned commissions in so doing - That created a conflict of interest for them in the form of divided loyalties - See paragraph 61.

Contracts - Topic 7409

Interpretation - General principles - Subsequent conduct of parties - The plaintiff manufactured specialized steel products for sale to petroleum producers in the Alberta oil sands - The defendants were related individuals and companies that for a number of years marketed and sold the plaintiff's products in the oil sands pursuant to two agency agreements - The plaintiff sued the defendants for damages for breach of contract, breach of fiduciary duties, inducing breach of contract, etc. - The trial judge allowed the action - In calculating damages, the judge determined that clause 4.5 of the second agency agreement established that 5% of the price was the maximum commission that the defendants could earn on a sale - The judge concluded that the defendants had charged more than 5% on occasion and ordered a disgorgement for the overcharging - On appeal, the defendants asserted that the 5% should be interpreted to apply only to those orders where the customer specified that the product was to come from the plaintiff - The Alberta Court of Appeal affirmed the trial judge's interpretation - Section 4.5 was ambiguous - The judge relied on the parties' practice as an aid in resolving the inconsistency - The parties conduct was a relevant consideration in resolving any ambiguity in contractual terms on this issue - See paragraphs 62 to 66.

Damage Awards - Topic 2018.1

Exemplary or punitive damages - Breach of contract - The plaintiff manufactured specialized steel products for sale to petroleum producers in the Alberta oil sands - The defendants marketed and sold the plaintiff's products in the oil sands pursuant to two agency agreements - The plaintiff sued the defendants for damages for breach of contract, breach of fiduciary duties, and inducing breach of contract - The trial judge allowed the action and awarded compensatory damages for certain contract breaches, disgorgement of profits for contract breaches involving fiduciary duties and $150,000 punitive damages - The defendants manipulated the market in specialized steel products to their own advantage for the four years of the agency agreements while lulling the plaintiff with contractual commitments that promised loyalty and exclusivity - While the compensatory awards were substantial and liability extended to the individual defendants, they were insufficient to satisfy the need for deterrence and denunciation - The message had to be delivered that this type of conduct in business had grave monetary consequences - Also, the defendants had not been entirely held to account through the other award - The defendants appealed, asserting that the award of punitive damages was disproportionate in light of the other remedies ordered against them - The Alberta Court of Appeal dismissed the appeal - Punitive damages could exist alongside a compensatory award - The court could not conclude that the trial judge exercised her discretion unreasonably or that the sum awarded was disproportionate to the defendants' wrong given the context of the quantum of the balance of the award (almost $1,850,000) and the long period of deliberate flagrant dishonest contract breaches, commencing right on the heels of the parties' entry into the agency agreements and continuing until the issuance of the statement of claim - See paragraphs 91 to 95.

Damage Awards - Topic 2030.2

Exemplary or punitive damages - Inducing or causing breach of contract - [See Damage Awards - Topic 2018.1 ].

Damage Awards - Topic 2030.5

Exemplary or punitive damages - Breach of fiduciary duty - [See Damage Awards - Topic 2018.1 ].

Damages - Topic 1296

Exemplary or punitive damages - General - [See Damage Awards - Topic 2018.1 ].

Damages - Topic 1297

Exemplary or punitive damages - Conditions precedent (or when awarded) - [See Damage Awards - Topic 2018.1 ].

Damages - Topic 5715

Contracts - Breach of contract - Loss of business - The plaintiff manufactured specialized steel products for sale to petroleum producers in the Alberta oil sands - The defendants were related individuals and companies that for a number of years marketed and sold the plaintiff's products in the oil sands pursuant to two agency agreements - The plaintiff sued the defendants for damages for breach of contract, breach of fiduciary duties, inducing breach of contract, etc. - The trial judge allowed the action and assessed damages, including $54,000 for loss of revenue from a customer (MSI) which arose from the plaintiff unexpectedly having to terminate the second agency agreement in June 2004 - The judge referred to the plaintiff's need to re-establish itself with MSI as a result of the defendants' fiduciary breaches - At the date that the plaintiff's relationship with the defendants ended, it had no other or replacement sales force in the Fort McMurray area - The judge calculated the award based on applying the 36% net profit the plaintiff earned on sales to its estimate of $150,000 in lost sales for the last half of 2004 - She was satisfied that the plaintiff suffered economic loss as a result of the early termination of the second agreement and awarded what she accepted as an arbitrary number - The defendants appealed, asserting that the plaintiff was not entitled to compensation for the loss of revenue - The Alberta Court of Appeal dismissed the appeal - The trial judge was reasonable in setting the award as she did - See paragraphs 87 to 90.

Equity - Topic 1006

Equitable relief - General - Accounting of profits - [See second, third and fourth Contracts - Topic 4062 ].

Equity - Topic 3601

Fiduciary or confidential relationships - General principles - Indutech Canada manufactured specialized steel products for sale to petroleum producers in the Alberta oil sands - Gibbs Pipe Distributors (GPD) and Barry Gibbs Sales (BGS) (together with other individuals and corporations (the Gibbs Group)) marketed and sold Indutech's products in the oil sands pursuant to two agency agreements - The trial judge concluded that while the parties' relationship did not meet the requirements for the imposition of traditional fiduciary obligations, GPD, BGS and the Gibbs Group (the appellants) were fiduciaries by each of three other means: (1) by existence of quasi agency relationship; (2) because the relationship met the requirements for a fiduciary relationship established in Frame v. Smith and Smith (1987, S.C.C.); and (3) on an ad hoc basis - The trial judge concluded that certain contract breaches by the appellants attracted disgorgement of profits rather than simply damages - On appeal, the appellants asserted that they were not fiduciaries with a view to reducing the recovery against them - The Alberta Court of Appeal stated that it might be that the latter two fiduciary categories relied on by the trial judge were merely different ways of stating the same thing, but given the court's ultimate conclusion that the judge was reasonable, even correct, in her conclusions in relation to them, it was convenient to analyze them separately as she did at trial - See paragraphs 15 and 16.

Equity - Topic 3606

Fiduciary or confidential relationships - General principles - What constitutes a fiduciary relationship - [See Agency - Topic 301 and both Agency - Topic 3084 ].

Equity - Topic 3654

Fiduciary or confidential relationships - Breach of fiduciary relationship - Remedies - The Alberta Court of Appeal stated that "The remedies for breach of fiduciary duty are discretionary. They are dependent on all the facts before the court and are designed to address not only fairness between the parties, but also the public concern about the maintenance of the integrity of fiduciary relationships ... Accordingly, the standard of review of the trial judge's decision to award equitable remedies, absent an error of law, is reasonableness." - See paragraph 9.

Equity - Topic 3718

Fiduciary or confidential relationships - Commercial relationships - Broker (incl. agent) and principal - [See both Agency - Topic 3084 ].

Equity - Topic 3807

Fiduciary or confidential relationships - Secret profits - Liability to account - [See second, third and fourth Contracts - Topic 4062 ].

Equity - Topic 3807

Fiduciary or confidential relationships - Secret profits - Liability to account - The plaintiff manufactured specialized steel products for sale to petroleum producers in the Alberta oil sands - The defendants marketed and sold the plaintiff's products in the oil sands pursuant to two agency agreements - The plaintiff terminated the second agreement in June 2004 and sued the defendants for damages for breach of contract, breach of fiduciary duties, inducing breach of contract, etc. - The defendants counterclaimed for unpaid commissions of $113,563.29 pursuant to s. 3.4 of the second agreement - The trial judge allowed the action and dismissed the counterclaim - The trial judge relied on her interpretation of s. 6 of the agreement which provided that entitlement to commissions for sales made post-termination of the agreement did not apply where the cause of termination was breach - She also relied on the equitable conclusion that a fiduciary had to disgorge benefits obtained form its role as a fiduciary - The defendants appealed the dismissal of the counterclaim, asserting that the judge's conclusion was inconsistent with her failure to make them repay the commissions that they earned and received prior to the agreement's termination - The Alberta Court of Appeal dismissed the appeal - The fiduciary breaches went to the root of the defendants' duties, justifying a withholding of any further remuneration even where it was earned - A faithless fiduciary was not entitled to remuneration, particularly where it had earned a secret profit or put itself in a position of conflict of interest, except in exceptional circumstances where the fiduciary could show that the principal benefited from its skill and effort, which was not the case here - The trial judge correctly interpreted s. 6 and her conclusion on disentitlement was reasonable - See paragraphs 96 to 99.

Practice - Topic 7110.1

Costs - Party and party costs - Special orders - Increase in scale of costs - Conduct of opposite party - The plaintiff manufactured specialized steel products for sale to petroleum producers in the Alberta oil sands - The defendants marketed and sold the plaintiff's products in the oil sands pursuant to two agency agreements - The plaintiff sued the defendants for damages for breach of contract, breach of fiduciary duties, and inducing breach of contract - The trial judge allowed the action and awarded damages, including $150,000 punitive damages - The judge also awarded enhanced costs under some categories under Column 5 of Schedule C of the Rules of Court - The judge's reasons for the enhancement were founded in the complexity and duration of the various steps in the proceeding rather than the defendants' misconduct prior to the commencement of the litigation (excepting her award for enhanced costs for "questioning" where she also gave reasons founded in concealment of wrongdoing and lack of candour on the part of defendants) - The judge rejected the assertion that the harm addressed by the costs was met by the punitive damages - The Alberta Court of Appeal held that the costs award was well within the trial judge's properly exercised discretion - The judge implicitly concluded that the punitive damages were insufficient to account for the defendants' wrongdoing - Adverse credibility findings did not preclude enhanced costs - The nature and depth of the negative credibility findings made against the defendants elevated the case from the more typical situation where a trial judge simply accepted the evidence of one witness over that of others - For example, the defendants produced 11 separate affidavits of records - There was evidence that preparation for questioning took an inordinate amount of time because the transgressions could be uncovered only through detailed examination of those records, encompassing between 15,000 to 20,000 pages of documents - Enhanced costs would have been justified simply on the basis of the complexity and duration of the ligation, without reference to litigation misconduct - That practice was often followed by a judge electing to give a multiple of the appropriate column in Schedule C to reflect atypical or extraordinary aspects in the procedure leading up to the judgment - That consideration more than offset any concern of double-compensation arising from the award of punitive damages for pre-litigation conduct - See paragraphs 100 to 106.

Practice - Topic 7115

Costs - Party and party costs - Special orders - Increase in scale of costs - Difficulty and complexity of proceedings - [See Practice - Topic 7110.1 ].

Practice - Topic 8421

Costs - Appeals - Grounds - General - The Alberta Court of Appeal stated that "Costs awards are discretionary and will not be interfered with unless it is shown that the judge misdirected herself on the applicable law or made a palpable and overriding error in her assessment of the facts, ie. that the award is plainly wrong ..." - See paragraph 12.

Practice - Topic 8425

Costs - Appeals - Grounds - Error in principle - [See Practice - Topic 8421 ].

Practice - Topic 8800

Appeals - General principles - Duty of appellate court regarding findings of fact - The Alberta Court of Appeal stated that "The standard of review for a finding of a fiduciary relationship arising from the specific circumstances of a particular relationship is primarily a question of fact which will be upheld on appeal barring palpable and overriding error ... This statement of the standard of review appears to have overtaken earlier jurisprudence suggesting that a determination of whether a fiduciary relationship arises in a particular circumstance is a question of law ...." - See paragraph 8.

Practice - Topic 8800.2

Appeals - General principles - Duty of appellate court regarding findings of law - The Alberta Court of Appeal stated that "Under what circumstances an award of punitive damages can be made is a question of law for which the standard of review is correctness; ... However, a trial judge has discretion in determining whether those circumstances exist in a given situation, and as to the amount of that award; those exercises of discretion, if reasonable, should be treated with deference upon appellate review ..." - See paragraph 11.

Practice - Topic 8802

Appeals - General principles - Duty of appellate court regarding damage awards by a trial judge - The Alberta Court of Appeal stated that "Quantification of various claims will warrant appellate intervention only when the trial judge applied a wrong principle of law, took an irrelevant factor into account, failed to take into account a relevant factor or where the amount awarded is so inordinately high or low that it is a 'wholly erroneous estimate of the damage' ..." - See paragraph 10.

Practice - Topic 8804

Appeals - General principles - Duty of appellate court regarding discretionary orders - [See Equity - Topic 3654 , Practice - Topic 8421 and Practice - Topic 8800.2 ].

Cases Noticed:

Perez v. Galambos et al., [2009] 3 S.C.R. 247; 394 N.R. 209; 276 B.C.A.C. 272; 468 W.A.C. 272; 2009 SCC 48, refd to. [para. 8].

Adeco Exploration Co. et al. v. Hunt Oil Co. of Canada Inc. et al. (2008), 437 A.R. 33; 433 W.A.C. 33; 2008 ABCA 214, refd to. [para. 8].

155569 Canada Ltd. v. 258524 Alberta Ltd. et al. (2000), 255 A.R. 1; 220 W.A.C. 1; 2000 ABCA 41, refd to. [para. 8].

Mace et al. v. Dirk et al. (2006), 412 A.R. 207; 404 W.A.C. 207; 2006 ABCA 106, refd to. [para. 8].

Mady Development Corp. et al. v. Rossetto et al. (2012), 287 O.A.C. 277; 2012 ONCA 31, refd to. [para. 9].

Cherwoniak v. Walker (1999), 249 A.R. 74; 1999 ABQB 680, affd. (2001), 293 A.R. 198; 257 W.A.C. 198; 2001 ABCA 172, refd to. [para. 10].

Nagy v. Canada et al. (2006), 397 A.R. 94; 384 W.A.C. 94; 2006 ABCA 227, refd to. [para. 10].

3058354 Nova Scotia Co. v. On*Site Equipment Ltd. et al. (2011), 505 A.R. 289; 522 W.A.C. 289; 2011 ABCA 168, refd to. [para. 11].

Richard v. Time Inc. et al., [2012] 1 S.C.R. 265; 427 N.R. 203; 2012 SCC 8, refd to. [para. 11].

2703203 Manitoba Inc. v. Parks et al. (2007), 253 N.S.R.(2d) 85; 807 A.P.R. 85; 280 D.L.R.(4th) 653; 2007 NSCA 36, refd to. [para. 11].

Conway et al. v. Zinkhofer, [2008] A.R. Uned. 306; 2008 ABCA 392, refd to. [para. 12].

Anderson v. Amoco Canada Oil and Gas et al. (2002), 312 A.R. 112; 281 W.A.C. 112; 2002 ABCA 162, refd to. [para. 12].

Condominium Corp. No. 9813678 et al. v. Statesman Corp. et al. (2012), 536 A.R. 213; 559 W.A.C. 213; 2012 ABCA 265, refd to. [para. 12].

Hamilton v. Open Window Bakery Ltd. et al., [2004] 1 S.C.R. 303; 316 N.R. 265; 184 O.A.C. 209; 2004 SCC 9, refd to. [para. 12].

Professional Institute of the Public Service of Canada et al. v. Canada (Attorney General) (2012), 438 N.R. 1; 300 O.A.C. 202; 2012 SCC 71, refd to. [para. 15].

Frame v. Smith and Smith, [1987] 2 S.C.R. 99; 78 N.R. 40; 23 O.A.C. 84, refd to. [para. 15].

Elder Advocates of Alberta Society et al. v. Alberta et al., [2011] 2 S.C.R. 261; 416 N.R. 198; 499 A.R. 345; 514 W.A.C. 345; 2011 SCC 24, refd to. [para. 17].

International Corona Resources Ltd. v. LAC Minerals Ltd., [1989] 2 S.C.R. 574; 101 N.R. 239; 36 O.A.C. 57; 69 O.R.(2d) 287, dist. [para. 19].

Imperial Oil v. H.H.L. Fuels Ltd. et al. (2006), 294 N.B.R.(2d) 371; 765 A.P.R. 371; 2006 NBCA 1, dist. [para. 20].

Trophy Foods Inc. v. Scott et al. (1995), 140 N.S.R.(2d) 92; 399 A.P.R. 92; 123 D.L.R.(4th) 509 (C.A.), dist. [para. 20].

Hodgkinson v. Simms et al., [1994] 3 S.C.R. 377; 171 N.R. 245; 49 B.C.A.C. 1; 80 W.A.C. 1; 117 D.L.R.(4th) 161, dist. [para. 28].

Cadbury Schweppes Inc. et al. v. FBI Foods Ltd. et al., [1999] 1 S.C.R. 142; 235 N.R. 30; 117 B.C.A.C. 161; 91 W.A.C. 161; 167 D.L.R.(4th) 577; 83 C.P.R.(3d) 289, dist. [para. 28].

Ironside et al. v. Smith (1998), 223 A.R. 379; 183 W.A.C. 379; 1998 ABCA 366, dist. [para. 21].

McBride Metal Fabricating Corp. v. H & W Sales Co. (2002), 158 O.A.C. 214; 59 O.R.(3d) 97 (C.A.), refd to. [para. 44].

Canadian Aero Service Ltd. v. O'Malley, [1974] S.C.R. 592; 40 D.L.R.(3d) 371, refd to. [para. 45].

Canson Enterprises Ltd. v. Boughton & Co., [1991] 3 S.C.R. 534; 131 N.R. 321; 6 B.C.A.C. 1; 13 W.A.C. 1; 85 D.L.R.(4th) 129, refd to. [para. 45].

Waxman et al. v. Waxman et al. (2004), 186 O.A.C. 201 (C.A.), refd to. [para. 92].

Huff v. Price (1990), 76 D.L.R.(4th) 138; 51 B.C.L.R.(2d) 282 (C.A.), refd to. [para. 92].

Sharpe v. McCarthy et al. (1994), 48 B.C.A.C. 145; 78 W.A.C. 145; 94 B.C.L.R.(2d) 384 (C.A.), refd to. [para. 92].

Dhillon v. Dhillon (2006), 232 B.C.A.C. 249; 385 W.A.C. 249; 2006 BCCA 524, refd to. [para. 92].

Polar Ice Express Inc. v. Arctic Glacier Inc. (2009), 446 A.R. 295; 442 W.A.C. 295; 2009 ABCA 20, refd to. [para. 102].

Counsel:

A.J. Jordan, Q.C., and G.B. Laviolette, for the respondent/plaintiff;

F. Kozak, Q.C., and S.E. Ward, for the appellants/defendants.

This appeal was heard on November 7, 2012, by Picard, Bielby and O'Ferrall, JJ.A., of the Alberta Court of Appeal. The following memorandum of judgment of the court was filed at Calgary, Alberta, on April 9, 2013.