Miller (Ed) Sales & Rentals Ltd. v. Caterpillar Tractor Co. et al., (1994) 170 A.R. 341 (QB)

• Judge: Berger, J.
• Court: Court of Queen's Bench of Alberta (Canada)
• Case Date: December 09, 1994
• Citations: (1994), 170 A.R. 341 (QB)

Miller Sales v. Caterpillar Tractor Co. (1994), 170 A.R. 341 (QB)

MLB headnote and full text

Ed Miller Sales & Rentals Ltd. (plaintiff) v. Caterpillar Tractor Co., Caterpillar Americas Co., Caterpillar of Canada Ltd. and R. Angus Alberta Ltd. (defendants)

(Action No. 8003 12393)

Indexed As: Miller (Ed) Sales & Rentals Ltd. v. Caterpillar Tractor Co. et al.

Alberta Court of Queen's Bench

Judicial District of Edmonton

Berger, J.

December 9, 1994.

Summary:

The Caterpillar group of companies sold heavy equipment and parts through a net­work of independent dealers assigned spe­cif­ic territories. Angus was an authorized dealer for Alberta. Miller was a "grey marketeer" obtaining Caterpillar machines and parts from a U.S. dealer and selling in Angus' territory. This scenario, profitable for Caterpillar, was tolerated notwithstanding the illusion of dealer territorial exclusivity. Miller expanded into the large-scale parts resale market, sourcing its parts from U.S. dealers. In 1982, Caterpillar imposed a parts policy that prevented dealers from selling to Miller. Miller sued the Caterpillar companies and Angus for damages for unlawfully interfering with its business by limiting or foreclosing its ability to acquire parts and equipment. Miller claimed the defendants conspired to unduly lessen competition contrary to s. 32 of the Combines Investiga­tion Act (now s. 45 of the Competition Act) and claimed damages under the Act. Miller also claimed the defendants committed the torts of conspiracy, interference with con­tractual relations, intimidation and unlawful interference with Miller's business or eco­nomic interests.

The Alberta Court of Queen's Bench, in a decision reported 151 A.R. 1, dismissed the action against Angus and allowed the action in part against the Caterpillar companies. The court found the Caterpillar companies liable in damages for interference with contractual relations and unlawful interfer­ence with Miller's business or economic interests. The court dismissed the conspiracy claim and found it unnecessary to deal with the intimidation claim. The court assessed $5,000,000 total damages.

The Alberta Court of Queen's Bench, in the decision reported below, dealt with costs accordingly.

Practice - Topic 6931

Costs - Discretion of court - The Alberta Court of Queen's Bench discussed the discretion of the court to award selective costs - See paragraphs 11 to 18.

Practice - Topic 7021

Costs - Party and party costs - Entitle­ment - Successful party - Exceptions - Conduct - The Alberta Court of Queen's Bench held that in considering the exercise of its discretion respecting costs, it is proper for the court to take into account the conduct of the parties - See paragraph 8.

Practice - Topic 7030

Costs - Party and party costs - Entitle­ment - Where success or fault divided - Miller obtained judgment against three Caterpillar companies (the defendants) for $5,000,000, plus prejudgment interest, for interference with contractual relations and unlawful interference with Miller's busi­ness or economic interests - The amount owing as of June 1994, including prejudg­ment interest, was approximately $9.5 million - The Alberta Court of Queen's Bench allowed the plaintiff to recover 60% of its party and party costs from the Cat­erpillar defendants based on a multiple of four times column 6 - See paragraphs 1 to 21.

Practice - Topic 7030

Costs - Party and party costs - Entitle­ment - Where success or fault divided - [See Practice - Topic 6931 ].

Practice - Topic 7110

Costs - Party and party costs - Special orders - Increase in scale of costs - Gen­eral - The Alberta Court of Queen's Bench discussed the factors to be taken into account in exercising the discretion of the court to order that costs be paid based on a multiple of column 6 - See paragraph 19.

Practice - Topic 7110

Costs - Party and party costs - Special orders - Increase in scale of costs - Gen­eral - [See first Practice - Topic 7030 ].

Practice - Topic 7155

Costs - Party and party costs - Liability for - Bullock order or Sanderson order where success divided among plaintiffs or defendants - The Alberta Court of Queen's Bench referred to the threshold tests to be met before a judge should make a Bullock order or a Sanderson order - See para­graphs 25 to 27 - The court stated that a Bullock order is inappropriate when dis­tinct causes of action are alleged against defendants - See paragraph 28.

Practice - Topic 7155

Costs - Party and party costs - Liability for - Bullock order or Sanderson order where success divided among plaintiffs or defendants - Miller obtained judgment against three defendants, the Caterpillar companies, for $5,000,000, plus prejudg­ment interest, for interference with con­tractual relations and unlawful interference with Miller's business or economic inter­ests - Miller's claim against a third defendant, Angus, a Caterpillar dealer, was dismissed - The plaintiffs sought a Bul­lock or Sanderson order, requiring the Caterpillar defendants to pay Angus's costs - The Alberta Court of Queen's Bench held that Angus was entitled to costs on a scale of two and one-half times column 6 and a counsel fee for first and second counsel - The costs were to be paid 60% by the Caterpillar companies and 40% by the plain­tiff - See paragraphs 24 to 31.

Practice - Topic 7610

Costs - Taxation of costs - "Amount claimed or involved" for purpose of apply­ing or varying scale of costs - The Alberta Court of Queen's Bench agreed that pre­judgment interest is to be taken into account in determining the amount of the judgment for the purpose of awarding costs - See paragraph 6.

Cases Noticed:

Campbell (Donald) and Co. v. Pollak, [1927] A.C. 732 (H.L.), refd to. [para. 5].

Papp v. Nakaska (1989), 96 A.R. 161 (Q.B.), refd to. [para. 6].

Jivraj et al. v. Fischer (1992), 128 A.R. 360 (Q.B.), refd to. [para. 6].

Pharand Ski Corp. v. Alberta (1991), 122 A.R. 81 (Q.B.), refd to. [para. 8].

Olson v. New Home Certification Program of Alberta (1986), 69 A.R. 356 (Q.B.), refd to. [para. 8].

Sara's Pyrohy Hut v. Brooker et al., [1992] 1 W.W.R. 556; 123 A.R. 57 (Q.B.), affd. [1993] 3 W.W.R. 662; 141 A.R. 42 (C.A.), refd to. [para. 8].

Kevel Holdings Ltd. v. 408230 Alberta Ltd. (1994), 148 A.R. 286 (Q.B.), refd to. [para. 8].

Collins v. Wilson (1922), 70 D.L.R. 642 (Sask. C.A.), refd to. [para. 8].

Jackson and Parkview Holdings Ltd. v. Trimac Industries Ltd. et al. (1993), 138 A.R. 161 (Q.B.), refd to. [para. 8].

Nathu v. Imbrook Properties Ltd. (Supple­mentary Reasons) (1992), 131 A.R. 186 (C.A.), refd to. [para. 11].

Wilde v. Isfeld (1994), 149 A.R. 237 (C.A.), refd to. [para. 12].

Jackson v. Trimac Ltd. (1994), 155 A.R. 42; 73 W.A.C. 42 (C.A.), refd to. [para. 13].

Pharand Ski Corp. v. Alberta (1991), 122 A.R. 395 (Q.B.), refd to. [para. 19].

Claudio's Restaurant Group Inc. and La­monaco v. Calgary (City) (1993), 147 A.R. 355 (Q.B.), refd to. [para. 19].

McCarthy v. Board of Education of Calgary Roman Catholic Separate School District No. 1 (No. 1), [1980] 5 W.W.R. 524; 30 A.R. 208 (Q.B.), refd to. [para. 20].

Mobil Oil Canada Ltd. v. Canadian Superior Oil Ltd. and Nielsen (1979), 21 A.R. 111 (Q.B.), refd to. [para. 20].

Nova, An Alberta Corp. v. Guelph Engin­eering Co. (1988), 89 A.R. 363 (Q.B.), refd to. [para. 20].

Kassam v. Dragish (1991), 123 A.R. 161 (Q.B.), refd to. [para. 22].

Besterman v. British Motor Cab Co., [1914] 3 K.B. 181, refd to. [para. 25].

Macleod v. Great West Distributors Ltd., [1941] 3 W.W.R. 827 (Alta. Dist. Ct.), refd to. [para. 27].

Mulready v. J.H. & W. Bell Ltd., [1953] 2 All E.R. 215 (C.A.), refd to. [para. 28].

Petrogas Processing Ltd. v. Westcoast Transmission Co. (1990), 105 A.R. 384 (Q.B.), refd to. [para. 33].

Statutes Noticed:

Court of Queen's Bench Act, R.S.A. 1980, c. C-29, sect. 19 [para. 2].

Rules of Court (Alta.), rule 601(1) [paras. 3, 32]; rule 601(2) [para. 4].

Counsel:

D.R. Pahl, Q.C., H. Rubin and J.B. Laskin, for the plaintiff;

M.H. Dale, Q.C., G.J. Draper and L.M. Ziola, for the Caterpillar defendants;

I.H. Baker and P. Purdon, for the defen­dant, R. Angus Alberta Ltd.

This matter was heard before Berger, J., of the Alberta Court of Queen's Bench, Judicial District of Edmonton, who delivered the following judgment on December 9, 1994.