Jackson and Parkview Holdings Ltd. v. Trimac Industries Ltd. et al., (1993) 138 A.R. 161 (QB)

• Judge: Hutchinson, J.
• Court: Court of Queen's Bench of Alberta (Canada)
• Case Date: March 17, 1993
• Citations: (1993), 138 A.R. 161 (QB);1993 CanLII 7031 (AB QB);[1993] 4 WWR 670;138 AR 161;8 Alta LR (3d) 403;[1993] CarswellAlta 310;[1993] AJ No 218 (QL)

Jackson v. Trimac Ind. Ltd. (1993), 138 A.R. 161 (QB)

MLB headnote and full text

Donald K. Jackson and Parkview Holdings Ltd. (plaintiffs) v. Trimac Industries Limited and Trimac Limited (defendants)

Trimac Limited and Trimac Industries Limited (plaintiffs by counterclaim) v. Donald K. Jackson and Parkview Holdings Ltd. (defendants by counterclaim)

(Action No. 8901-16051)

Donald K. Jackson and Parkview Holdings Ltd. (plaintiffs) v. John Robert McCaig (defendant)

(Action No. 8901-17470)

Indexed As: Jackson and Parkview Holdings Ltd. v. Trimac Industries Ltd. et al.

Alberta Court of Queen's Bench

Judicial District of Calgary

Hutchinson, J.

March 17, 1993.

Summary:

Jackson was the executive vice-president of Trimac. It was agreed that Jackson would leave Trimac to be president of a new company, a subsidiary of Trimac. Jackson was to be allowed, as an incentive, to purchase a minority interest in the new company with an option to purchase additional shares. Trimac owned 50% of Tricil, another subsidiary, which was to be sold. Trimac agreed to inject the amount of the sale price exceeding $45,000,000 into the new company, without consideration. When the sale price greatly exceeded $45,000,000, Trimac, through its Chairman (JR), interpreted the agreement differently and refused to inject the monies into the new company. Jackson resigned. Jackson commenced two actions for damages, one against Trimac and the new company and one against JR. Jackson claimed he was constructively dismissed, that Trimac and JR induced the breach of his employment contract, the shareholder's agreement and the option agreement. Jackson also claimed Trimac was liable to indemnify him for legal costs incurred when he was added as a third party in litigation between Trimac and CIL, the other 50% owner of Tricil. Jackson also claimed punitive damages against JR. The two actions were not consolidated, but were heard together.

The Alberta Court of Queen's Bench, in a judgment reported 134 A.R. 321, allowed the action in part. The court held that (1) Jackson was not constructively dismissed, he resigned; (2) Trimac breached the shareholder's agreement and induced breach of the option agreement; (3) JR induced the breach of the shareholder's agreement, the option agreement and the agreement to inject excess sale proceeds into the new company. The court awarded Jackson $7,212,375 damages, found Trimac liable for Jackson's legal costs in the Trimac-CIL litigation and rejected the claim for punitive damages. The court deferred the matter of costs. The plaintiffs sought indemnity in the form of solicitor-client costs.

The Alberta Court of Queen's Bench awarded the plaintiffs solicitor and his own client costs (indemnity for all legal costs), without any apportionment of the costs or award of selective costs.

Practice - Topic 7762

Costs - Special orders - Indemnity - [See Practice - Topic 7803 ].

Practice - Topic 7803

Costs - Solicitor and his own client costs - Entitlement to - The plaintiffs successfully sued to recover monies wrongfully withheld from them - The person controlling the corporate defendant forced the plaintiffs to exhaust all legal proceedings to obtain what was clearly theirs - Contempt was shown for the plaintiffs' rights -The Alberta Court of Queen's Bench, after discussing when full indemnity for costs was appropriate, held that the defendant's positive misconduct justified full indemnity to the plaintiffs for their legal costs (i.e., solicitor and his own client costs) - The court declined to apportion costs between the plaintiffs and the defendants on the basis of success or failure of the parties on procedural matters raised during the trial - These matters did not go to the real issues in dispute.

Cases Noticed:

Max Sonnenberg Inc. v. Stewart, Smith (Can.) Ltd., [1987] 2 W.W.R. 75; 48 Alta. L.R.(2d) 367 (Q.B.), refd to. [para. 10].

Sturrock et al. v. Ancona Petroleums Ltd. et al. (1990), 111 A.R. 86; 75 Alta. L.R.(2d) 216 (Q.B.), refd to. [para. 10].

Pharand Ski Corp. v. Alberta (1991), 122 A.R. 395 (Q.B.), refd to. [para. 10].

Canada Deposit Insurance Corp. v. Canadian Commercial Bank (1987), 50 Alta. L.R.(2d) 1; 76 A.R. 271 (Q.B.), refd to. [para. 10].

Mobil Oil Canada Ltd. v. Canadian Superior Oil Ltd. and Nielsen, [1980] 1 W.W.R. 453; 21 A.R. 111; 150 D.L.R.(3d) 355 (Q.B.), refd to. [para. 10].

McCarthy v. Board of Trustees of Calgary Roman Catholic Separate School District No. 1, [1980] 5 W.W.R. 524; 30 A.R. 208 (Q.B.), refd to. [para. 10].

Wenden v. Trikha (1991), 118 A.R. 319; 1 Alta. L.R.(3d) 283 (Q.B.), refd to. [para. 10].

Fleck v. Stewart (1991), 118 A.R. 345; 80 Alta. L.R.(2d) 334 (Q.B.), refd to. [para. 10].

Olson v. New Home Certification Program of Alberta (1986), 69 A.R. 356; 44 Alta. L.R.(2d) 207 (Q.B.), refd to. [para. 10].

Calbar Securities Ltd. v. Toole Peet Co. and Barton (1984), 50 A.R. 393; 30 Alta. L.R.(2d) 286 (C.A.), refd to. [para. 10].

Nathu v. Imbrook Properties Ltd. (1992), 131 A.R. 186; 25 W.A.C. 186; 4 Alta. L.R.(3d) 149 (C.A.), refd to. [para. 10].

Petrogras Processing Ltd. v. Westcoast Transmission Co., [1990] 4 W.W.R. 461; 105 A.R. 384; 73 Alta. L.R.(2d) 246 (Q.B.), refd to. [para. 10].

Reese et al. v. Alberta (Minister of Forestry, Lands and Wildlife) (1992), 5 Alta. L.R.(3d) 40 (C.A.), refd to. [para. 10].

Nova, an Alberta Corp. v. Guelph Engineering Co. (1988), 89 A.R. 363; 60 Alta. L.R.(2d) 366 (Q.B.), refd to. [para. 10].

Evaskow v. International Brotherhood of Boilermakers et al. (1969), 71 W.W.R.(N.S.) 565 (Man. C.A.), refd to. [para. 12].

Vanderclay Development Co. v. Inducon Engineering Ltd., [1969] 1 O.R. 41; 1 D.L.R.(3d) 337 (H.C.), refd to. [para. 12].

Seitz, Re (1974), 6 O.R.(2d) 460, refd to. [para. 17].

EMI Records Ltd. v. Wallace (Ian Cameron) Ltd., [1983] Ch. 59; [1982] 2 All E.R. 980, refd to. [para. 17].

Dusik v. Newton (1984), 51 B.C.L.R. 217 (S.C.), refd to. [para. 22].

Foulis v. Robinson (1979), 21 O.R.(2d) 769; 8 C.P.C. 198; 92 D.L.R.(3d) 134 (C.A.), refd to. [para. 28].

Davis v. Davis (1981), 9 Man.R.(2d) 236 (Q.B.), refd to. [para. 28].

Kepic v. Tecumseh Road Builders et al. (1987), 23 O.A.C. 72 (C.A.), refd to. [para. 28].

Reid, Hewitt and Co. v. Joseph, [1918] A.C. 738 (H.L.), refd to. [para. 43].

Ireton v. Heizer, [1971] 3 W.W.R. 77 (B.C.S.C.), refd to. [para. 48].

Canada Rice Mills Ltd. v. Morgan (1934), 49 B.C.R. 202 (S.C.), refd to. [para. 51].

Howell v. Dering (1915), 84 L.J.K.B. 198 (C.A.), refd to. [para. 51].

Statutes Noticed:

Court of Queen's Bench Act, R.S.A. 1980, c. 29, sect. 19 [para. 11].

Rules of Court (Alta.), rule 600, rule 601, rule 605 [para. 11].

Authors and Works Noticed:

Stevenson and Côté, Civil Procedure Guide (1989), p. 219 [para. 22].

Counsel:

A.D. Hunter, Q.C., and M.L. Sigurdson, for the plaintiffs;

D.R. Haigh, Q.C., V.M. May, Q.C., and B.W. Conway, for the defendants.

This application was heard before Hutchinson, J., of the Alberta Court of Queen's Bench, Judicial District of Calgary, who delivered the following judgment on March 17, 1993.