Miller (Ed) Sales and Rentals Ltd. v. Caterpillar Tractor Co. et al., (1994) 151 A.R. 1 (QB)

• Judge: Berger, J.
• Court: Court of Queen's Bench of Alberta (Canada)
• Case Date: March 08, 1994
• Citations: (1994), 151 A.R. 1 (QB);1994 CanLII 8937 (AB QB);[1994] 5 WWR 473;151 AR 1;17 Alta LR (3d) 251;54 CPR (3d) 1;[1994] AJ No 212 (QL)

Miller Sales v. Caterpillar Tractor Co. (1994), 151 A.R. 1 (QB)

MLB headnote and full text

Ed Miller Sales and 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 and Rentals Ltd. v. Caterpillar Tractor Co. et al.

Alberta Court of Queen's Bench

Judicial District of Edmonton

Berger, J.

March 8, 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 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.

Damages - Topic 4044

Interference with economic relations - Interference with business relations - Damages - Measure of - Caterpillar sold heavy equipment and parts through independent dealers assigned "exclusive" territories - However, Caterpillar tolerated and benefitted from intra-brand competition within territories - Miller, a "reseller", competed in Alberta with the authorized dealer by obtaining parts from a U.S. dealer - It was a running contract with no termination date - Caterpillar unilaterally imposed a parts policy on dealers to prohibit sales to resellers like Miller - Miller's sole viable source of parts was gone - Miller received at most six weeks' notice of termination, which was not reasonable notice - The Alberta Court of Queen's Bench found Caterpillar liable for interference with contractual relations and unlawful interference with Miller's business or economic interests - Miller's financial losses were attributable to market forces (high interest rates and decreased demand combined with high-debt expansion), but Caterpillar's actions did deprive Miller of lost net revenue, for a limited time, from parts and the service that parts sales generated - The court assessed damages at $5,000,000 - See paragraphs 329 to 405.

Damages - Topic 4044

Interference with economic relations - Interference with business relations - Damages - Measure of - The Alberta Court of Queen's Bench stated that in an action for interference with contractual relations the court may award damages at large - Once the plaintiff established damages were suffered, it need not prove the quantum of the damages with mathematical certainty - See paragraphs 387 to 388.

Practice - Topic 1300

Pleadings - Stating material facts - A plaintiff did not specifically plead the tort of unlawful interference with economic interests - The Alberta Court of Queen's Bench stated that the cause of action itself need not be pleaded provided that the factual situation pleaded disclosed the cause of action - Here, the facts giving rise to the claim were specifically pleaded - See paragraphs 312 to 313.

Practice - Topic 1463

Pleadings - Statement of claim - Requirement of disclosing cause of action - [See Practice - Topic 1300 ].

Torts - Topic 5086

Interference with economic relations - Conspiracy - Conspiracy to injure - Caterpillar sold heavy equipment through independent dealers assigned "exclusive" territories - However, Caterpillar tolerated and benefitted from intra-brand competition within territories - Miller, a "reseller", competed in Alberta with the authorized dealer by obtaining equipment from U.S. dealers - Miller claimed Caterpillar's allocation policy with authorized dealers constituted a conspiracy to injure Miller and other resellers by discouraging dealers from selling to resellers and by discouraging extra-territorial sales - The Alberta Court of Queen's Bench dismissed the claim - The allocation policy benefitted resellers like Miller and allocation of equipment was not proved to be an economic instrument to further the alleged conspiracy - See paragraphs 164 to 171.

Torts - Topic 5086

Interference with economic relations - Conspiracy - Conspiracy to injure - Caterpillar sold heavy equipment through independent dealers assigned "exclusive" territories - However, Caterpillar tolerated and benefitted from intra-brand competition within territories - Miller, a "reseller", competed in Alberta with the authorized dealer by obtaining equipment from U.S. dealers - Miller claimed Caterpillar selectively utilized "price protection" to arbitrarily increase Miller's cost of doing business and to discourage dealers from selling to Miller - The Alberta Court of Queen's Bench stated that there was no cogent evidence to establish that price protection was an economic mechanism to further the alleged conspiracy to injure Miller - See paragraphs 172 to 180.

Torts - Topic 5086

Interference with economic relations - Conspiracy - Conspiracy to injure - Caterpillar sold heavy equipment through independent dealers assigned "exclusive" territories - However, Caterpillar tolerated and benefitted from intra-brand competition within territories - Miller, a "reseller", competed in Alberta with the authorized dealer by obtaining equipment from U.S. dealers - Miller claimed Caterpillar's parts transhipment policy was implemented to injure Miller and other resellers - The Alberta Court of Queen's Bench stated that the policy was a unilateral act by Caterpillar - There was no common design and, accordingly, no conspiracy to injure Miller - See paragraphs 181 to 182.

Torts - Topic 5086

Interference with economic relations - Conspiracy - Conspiracy to injure - Caterpillar sold heavy equipment through independent dealers assigned "exclusive" territories - However, Caterpillar tolerated and benefitted from intra-brand competition within territories - Miller, a "reseller", competed in Alberta with the authorized dealer by obtaining equipment from U.S. dealers - Miller claimed that a 5% service fee charged to dealers selling equipment outside their territory, to compensate the dealer in the territory who had to perform warranty and service work, was designed to prevent inter-territorial sales and to impede intra-brand competition from resellers such as Miller - The Alberta Court of Queen's Bench stated that there was no conspiracy to injure Miller - The fee fairly reflected the dealer's cost of providing product support services and it did not constitute a barrier to arbitrage by brokers and resellers - See paragraphs 183 to 202.

Torts - Topic 5086

Interference with economic relations - Conspiracy - Conspiracy to injure - Caterpillar sold heavy equipment through independent dealers assigned "exclusive" territories - However, Caterpillar tolerated and benefitted from intra-brand competition within territories - Miller, a "reseller", competed in Alberta with the authorized dealer by obtaining equipment from U.S. dealers - Miller claimed that arbitrary transportation costs were used to impair its ability to compete with dealers - The Alberta Court of Queen's Bench stated that there was no conspiracy to injure Miller - See paragraphs 203 to 211.

Torts - Topic 5086

Interference with economic relations - Conspiracy - Conspiracy to injure - The Alberta Court of Queen's Bench stated that defendants were civilly guilty of conspiracy to injure the plaintiff if "(1) whether the means used by the defendants are lawful or unlawful, the predominant purpose of the defendants' conduct is to cause injury to the plaintiff" or "(2) where the conduct of the defendants is unlawful, the conduct is directed towards the plaintiff (alone or together with others), and the defendants should know in the circumstances that injury to the plaintiff is likely to and does result" - The latter category required only constructive intent derived from the fact that the defendants should have known injury to the plaintiff would ensue - See paragraphs 99 to 103.

Torts - Topic 5099

Interference with economic relations - Conspiracy - Evidence and proof - The plaintiff commenced an action for damages against the defendants for conspiracy to injure - The Alberta Court of Queen's Bench examined the appropriate standard of proof for criminal allegations in a civil action - The court agreed with the following: "the case may be proved by a preponderance of probability, but there may be degrees of probability, within that standard. The degree depends on the subject matter. ... It does not adopt so high a degree as in a criminal court, even when it is considering a charge of a criminal nature, but still it does require a degree of probability which is commensurate with the occasion." - See paragraphs 111 to 123.

Torts - Topic 5099

Interference with economic relations - Conspiracy - Evidence and proof - Statutory action under Combines Investigation Act (now Competition Act) - The Alberta Court of Queen's Bench stated that "because the nature of the statutory cause of action is a civil remedy, albeit relying upon a breach of one of the provisions of Part V of the Act, without any express language to the contrary, the traditional civil burden of persuasion must apply. ... the common law tort of conspiracy is not subsumed by the statute, but rather remains available to the plaintiff. That being so, the civil common law evidentiary rules continue to apply where the statute is silent, in order to fill the void. It follows ... that satisfying the common law requirements of proof would satisfy the statutory requirements, absent express words to the contrary." - See paragraph 134.

Torts - Topic 5201

Interference with economic relations - Contracts - General - The Alberta Court of Queen's Bench stated that "interference with contractual relations is traditionally an intentional tort. The courts have resisted imposing liability for negligent acts in this area." - See paragraph 214.

Torts - Topic 5208

Interference with economic relations - Contracts - Inducing or procuring breach of contract - Caterpillar sold heavy equipment and parts through independent dealers assigned "exclusive" territories - However, Caterpillar tolerated and benefitted from intra-brand competition within territories - Miller, a "reseller", competed in Alberta with the authorized dealer by obtaining parts from a U.S. dealer - It was a running contract with no termination date - Caterpillar unilaterally imposed a parts policy on dealers to prohibit sales to resellers like Miller - Miller's sole viable source of parts was gone - Miller received at most six weeks' notice of termination, which was not reasonable notice - The Alberta Court of Queen's Bench held that Caterpillar deliberately intended to injure Miller by persuading, inducing and procuring the U.S. dealer to breach its running contract with Miller - The parts policy was aimed directly at Miller with intent to injure - The court stated that Caterpillar was liable in tort for interference with contractual relations and for unlawful interference with economic interests - The defence of justification was not made out - See paragraphs 231 to 313.

Torts - Topic 5208

Interference with economic relations - Contracts - Inducing or procuring breach of contract - The plaintiff sued the defendants for inducing breach of a contract with a third party - The Alberta Court of Queen's Bench stated that direct interference was actionable without an unlawful act if the interference hindered or prevented completion of a contract - While the plaintiff must prove the defendants knew there was a contract, it need not prove the defendants knew the details of the contract or its terms - Specific or subjective intent to injure the plaintiff was not required, where the breached contract was foreseeable - Some cases had founded liability where the defendant was reckless or wilfully blind towards the contractual interference - Actual breach or nonperformance was not required - The court stated that "liability for inducing breach could arise in respect of an arrangement amounting to a running contract, established by a course of dealing in the absence of any written terms, that was not determinable at will but only on reasonable notice" - See paragraphs 215 to 222.

Torts - Topic 5208

Interference with economic relations - Contracts - Inducing or procuring breach of contract - The Alberta Court of Queen's Bench stated that "liability will attach if the intervenor, with knowledge of the contract and intent to prevent or hinder its performance, either (i) persuades, induces or procures one of the contracting parties not to perform his obligations, or (ii) commits some act, wrongful in itself to prevent such performance. The first is usually described as 'direct', the second as 'indirect' interference; the first involving immediate pressure on one of the contracting parties, while in the second the intervenor acts 'at one remove'" - See paragraph 212.

Torts - Topic 5208

Interference with economic relations - Contracts - Inducing or procuring breach of contract - The Alberta Court of Queen's Bench stated that there were two types of actionable interference with contractual performance: direct interference and indirect interference - The court isolated the following seven elements of direct interference from the case law: "(1) a contract between the plaintiff and another contracting party; (2) the defendant knew or can be assumed to be aware of the contract; (3) there has been breach or non-performance of the primary obligation of a contract by the contracting party; (4) the defendant intended to interfere with the contract; (5) the breach or nonperformance was induced by the defendant; (6) the plaintiff has suffered damage; and (7) the defendant acted without justification" - See paragraph 213.

Torts - Topic 5215

Interference with economic relations - Contracts - Defences - Justification - The Alberta Court of Queen's Bench stated that the defence of justification applied where the defendant's interference with the plaintiff's contractual relations was based on an equal or superior legal right - The right may be contractual or derived from property - The court adopted as correct the following statement: "the legitimate exercise of a contractual right obtained prior to the right allegedly interfered with cannot give support to a claim in tort for interference with contractual relations ... It follows that [the plaintiff] can make a case for interference with contractual relations only if the contractual right which the [defendants] are exercising is invalid or if they are exercising that right in an unlawful way." - However, the court stated that the traditional view that the defence of justification does not apply where the interference results from unlawful means was not finally settled - See paragraphs 223 to 229.

Torts - Topic 5241

Interference with economic relations - Interference with business relations - General - The Alberta Court of Queen's Bench stated that the tort of unlawful interference with trade, business or economic interests was broader than the tort of interference with contractual relations - The court stated that "the unlawful act need not involve procuring another person to break a subsisting contract or to interfere with the performance of a subsisting contract" - See paragraph 199.

Torts - Topic 5703

Conspiracy - Elements - The Alberta Court of Queen's Bench stated that the three elements of conspiracy were agreement, intention and damage - There must be an agreement between two or more people to act unlawfully or to injure another - Intent traditionally had two forms: intent to injure and intent to act unlawfully - The court stated that "self-interest would permit defendants to avoid liability, notwithstanding damage to the plaintiff, where it was shown to be the predominant purpose" - Examples of intent to act unlawfully were oppression, coercion and intimidation - See paragraphs 85 to 93.

Torts - Topic 5704

Conspiracy - Conspiracy defined - The Alberta Court of Queen's Bench adopted the statement that "conspiracy ... may be established by inference from the conduct of the parties. ... Ordinarily the evidence must proceed by steps. The actual agreement must be gathered from 'several isolated doings' ... having possibly little or no value taken by themselves, but the bearing of which one upon the other must be interpreted; and their cumulative effect, properly estimated in the light of all surrounding circumstances, may raise a presumption of concerted purpose entitling the jury to find the existence of the unlawful agreement." - See paragraph 58.

Torts - Topic 5706

Conspiracy - What constitutes - The Alberta Court of Queen's Bench stated that "the court may find the existence of a conspiracy through examination of the contractual material, statements of the defendants, inferences from the circumstances and other acts, declarations and conduct of the parties including (without deciding the point) tacit acceptance or silent acquiescence. When a vertical restraint conspiracy is alleged as in the case at bar, even though the restraints are imposed by the manufacturer, the court can look at all of the foregoing factors and, whether acquiescence is communicated or not, find an agreement which amounts to a conspiracy." - See paragraph 65.

Cases Noticed:

Paradis v. R., [1934] S.C.R. 165; [1934] 2 D.L.R. 88; 61 C.C.C. 184, appld. [para. 58].

R. v. McGavin Bakeries Ltd. (No. 6) (1951), 101 C.C.C. 22 (Alta. T.D.), refd to. [para. 59].

R. v. McDonald, [1973] 1 W.W.R. 481 (Alta. C.A.), refd to. [para. 60].

R. v. Canadian General Electric Co. (1976), 29 C.P.R.(2d) 1 (Ont. H.C.), refd to. [para. 62].

Lawrence Management Services Ltd. v. Hartford Investments Ltd. (1964), 49 W.W.R.(N.S.) 129 (Man. Q.B.), refd to. [para. 64].

Crofter Hand Woven Harris Tweed Co. v. Veitch, [1942] A.C. 435; [1942] 1 All E.R. 142 (H.L.), refd to. [para. 73].

R. v. Cotroni; R. v. Papalia (1979), 26 N.R. 133; 45 C.C.C.(2d) 1 (S.C.C.), refd to. [para. 75].

R. v. McCutcheon (1916), 25 C.C.C. 310 (Ont. H.C.), refd to. [para. 77].

R. v. Gagnon (1956), 115 C.C.C. 361 (S.C.C.), refd to. [para. 79].

Mogul Steamship Co. v. McGregor, Gow and Co. (1889), 23 Q.B.D. 598 (C.A.), affd. [1892] A.C. 25 (H.L.), refd to. [para. 80].

Mulcahy v. R. (1868), L.R. 3 H.L. 306 (H.L.), refd to. [para. 81].

Canada Cement LaFarge Ltd. et al. v. British Columbia Lightweight Aggregate Ltd. et al., [1983] 1 S.C.R. 452; 47 N.R. 191; 145 D.L.R.(3d) 385, refd to. [para. 83].

Gibbins v. Metcalfe (1905), 1 W.L.R. 139 (Man. C.A.), refd to. [para. 83].

Southam Co. v. Gouthro, [1948] 1 W.W.R. 593 (B.C.S.C.), refd to. [para. 83].

Western Ontario Natural Gas Co. v. Aikens, [1946] O.R. 661 (H.C.), refd to. [para. 85].

Saskatchewan Farm and Land Co. v. Smith, [1923] 1 W.W.R. 1179 (Sask. K.B.), refd to. [para. 85].

Sweeney v. Coote, [1907] A.C. 221 (H.L.), refd to. [para. 87].

Lapointe v. Wait (J.T.) Co., [1938] 4 D.L.R. 418 (Que. S.C.), refd to. [para. 87].

Exco Corp. et al. v. Nova Scotia Savings & Loan Co. et al. (1987), 78 N.S.R.(2d) 91; 193 A.P.R. 91 (T.D.), refd to. [para. 90].

Wilnap Properties Ltd. and Byrne v. Janes et al. (1986), 61 Nfld. & P.E.I.R. 22; 185 A.P.R. 22 (Nfld. T.D.), refd to. [para. 91].

Shaw v. Lewis, [1948] 2 D.L.R. 189 (B.C.C.A.), refd to. [para. 93].

Canadian Western Natural Gas Co. v. Central Gas Utilities Ltd. (1964), 49 W.W.R.(N.S.) 513 (Alta. T.D.), revd. (1965), 53 W.W.R.(N.S.) 705 (Alta. C.A.), revd. [1966] S.C.R. 630, refd to. [para. 95].

Lonrho Ltd. v. Shell Petroleum Co. (No. 2), [1981] 2 All E.R. 456; [1982] A.C. 173 (H.L.), refd to. [para. 101].

Trimac Ltd. v. C-I-L Inc. (1989), 99 A.R. 30 (Q.B.), refd to. [para. 103].

Canadian Training and Development Group Inc. v. Air Canada (1986), 39 C.C.L.T. 72 (Ont. Div. Ct.), refd to. [para. 107].

Claiborne Industries Ltd. et al. v. National Bank of Canada et al. (1989), 34 O.A.C. 241 (C.A.), refd to. [para. 108].

Mount Baker Enterprises Ltd. v. Big Rig Collision Inc. et al. (1990), 64 Man.R.(2d) 180 (Q.B.), refd to. [para. 109].

Thorvaldson et al. v. Saskatchewan et al. (1990), 82 Sask.R. 257 (Q.B.), refd to. [para. 109].

Italian Realty Co. v. Guardian Assurance Co., [1935] 2 D.L.R. 425 (N.S.C.A.), refd to. [para. 113].

Rejfek v. McElroy (1965), 39 A.L.J.R. 177, refd to. [para. 114].

New York State v. Phillips' Heirs, [1939] 3 All E.R. 952 (P.C.), refd to. [para. 116].

Doe d. Devine v. Wilson (1855), 10 Moo. P.C.C. 502; 14 E.R. 581 (P.C.), refd to. [para. 117].

Smith v. Smith, [1952] 2 S.C.R. 312, refd to. [para. 119].

Briginshaw v. Briginshaw (1938), 60 C.L.R. 336 (Aust. H.C.), refd to. [para. 120].

Dalton Cartage Co. v. Continental Insurance Co. et al., [1982] 1 S.C.R. 164; 40 N.R. 135, refd to. [para. 121].

Bater v. Bater, [1950] 2 All E.R. 458 (C.A.), refd to. [para. 122].

Scottish Co-operative Wholesale Society Ltd. v. Glasgow Fleshers' Trade Defence Association (1898), 35 Sc. L.R. 645, refd to. [para. 125].

R. v. Elliot (1905), 9 C.C.C. 505 (Ont. C.A.), refd to. [para. 127].

Direct Lumber Co. v. Western Plywood Co., [1962] S.C.R. 646, refd to. [para. 129].

Westfair Foods Ltd. v. Lippens Inc. and 43887 Manitoba Ltd. (1989), 61 Man.R.(2d) 282 (C.A.), refd to. [para. 132].

Allen v. Flood, [1898] A.C. 1 (H.L.), refd to. [para. 213].

Posluns v. Toronto Stock Exchange (1964), 46 D.L.R.(2d) 210 (Ont. H.C.), refd to. [para. 213].

Northern Messenger (Calgary) Ltd. v. Frost (1966), 56 W.W.R.(N.S.) 412 (Alta. T.D.), refd to. [para. 213].

Bennett & White Alberta Ltd. v. Van Reeder (1956), 6 D.L.R.(2d) 326 (Alta. C.A.), refd to. [para. 213].

Thomson (D.C.) and Co. v. Deakin, [1952] Ch. 646; [1952] 2 All E.R. 361 (C.A.), refd to. [para. 213].

Torquay Hotel Co. v. Cousins, [1969] 2 Ch. 106; [1969] 1 All E.R. 522 (C.A.), refd to. [para. 213].

Fabbi v. Jones (1972), 28 D.L.R.(3d) 224 (S.C.C.), refd to. [para. 213].

McLaren v. British Columbia Institute of Technology (1978), 94 D.L.R.(3d) 411 (B.C.S.C.), refd to. [para. 214].

Nicholls v. Richmond (Township) (1983), 145 D.L.R.(3d) 362 (B.C.C.A.), refd to. [para. 214].

Thorvaldson et al. v. Saskatchewan et al., [1991] 5 W.W.R. 436; 93 Sask.R. 22; 4 W.A.C. 22 (C.A.), refd to. [para. 215].

College of Dental Surgeons (Sask.) v. Thorvaldson - see Thorvaldson et al. v. Saskatchewan et al.

Greig v. Insole; World Series Cricket Pty. Ltd. v. Insole, [1978] 1 W.L.R. 302; [1978] 3 All E.R. 449 (Ch. D.), refd to. [para. 217].

Dirassar v. National Trust Co. (1966), 59 D.L.R.(2d) 452 (B.C.C.A.), refd to. [para. 217].

Dirassar & James v. Kelly, Douglas & Co. - see Dirassar v. National Trust Co.

Provincial Bank of Canada et al. v. Thermo King Corp. (1981), 130 D.L.R.(3d) 256 (Ont. C.A.), leave to appeal refused (1982), 42 N.R. 352; 130 D.L.R.(3d) 256 (S.C.C.), refd to. [paras. 217, 219].

Emerald Construction Co. v. Lowthian, [1966] 1 W.L.R. 691; [1966] 1 All E.R. 1013 (C.A.), refd to. [para. 217].

Jones Brothers (Hunstanton) Ltd. v. Stevens, [1955] 1 Q.B. 275; [1954] 3 All E.R. 677 (C.A.), refd to. [para. 217].

Merkur Island Shipping Corp. v. Laughton, [1983] 2 All E.R. 189; [1983] 2 W.L.R. 778 (H.L.), refd to. [para. 221].

Daily Mirror Newspapers Ltd. v. Gardner, [1968] 2 Q.B. 762; [1968] 2 All E.R. 163 (C.A.), refd to. [para. 222].

Pacific Western Airlines Ltd. v. British Columbia Federation of Labour (1986), 70 B.C.L.R. 108 (C.A.), refd to. [para. 224].

Gordon Mines Ltd. and TIW Industries Ltd. v. United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada, Locals 179 and 264 (1987), 59 Sask.R. 104; 45 D.L.R.(4th) 22 (C.A.), refd to. [para. 225].

Garry v. Sherritt Gordon Mines Ltd. - see Gordon Mines Ltd. and TIW Industries Ltd. v. United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada, Locals 179 and 264.

Glamorgan Coal Co. v. South Wales Miners' Federation, [1903] 2 K.B. 545 (C.A.), refd to. [para. 230].

Bank of America Canada Mortgage Corp. v. Collingwood Investments Ltd., [1988] 3 W.W.R. 673; 85 A.R. 241 (C.A.), refd to. [para. 256].

Martin-Baker Aircraft Co. v. Canadian Flight Equipment Ltd.; Martin-Baker Aircraft Co. v. Murison, [1955] 2 All E.R. 722; [1955] 2 Q.B. 556, refd to. [para. 257].

Clarke, Irwin & Co. v. Harrap (George G.) & Co. (1980), 9 B.L.R. 97 (Ont. H.C.), refd to. [para. 257].

Paper Sales Corp. v. Miller Brothers Co. (1962) Ltd. (1975), 55 D.L.R.(3d) 492 (Ont. C.A.), refd to. [para. 257].

Associated British Ports v. Transport and General Workers' Union, [1989] 3 All E.R. 796 (C.A.), refd to. [para. 300].

Dufferin Real Estate Ltd. v. Giralico, [1989] O.J. No. 1525 (H.C.), refd to. [para. 301].

Gershman v. Vegetable Producers' Marketing Board (Man.) (1976), 69 D.L.R.(3d) 114 (Man. C.A.), refd to. [para. 303].

Lonrho v. Fayed, [1990] 2 Q.B. 479; [1989] 2 All E.R. 65 (C.A.), refd to. [para. 305].

Letang v. Cooper, [1965] 1 Q.B. 232; [1964] 2 All E.R. 929 (C.A.), refd to. [para. 313].

Bank of Nova Scotia v. Dunphy Leasing Enterprises Ltd. (1987), 77 A.R. 181 (C.A.), refd to. [para. 313].

Exchange Telegraph Co. v. Gregory & Co., [1896] 1 Q.B. 147 (C.A.), refd to. [para. 387].

Nathu v. Imbrook Properties Ltd., [1992] 4 W.W.R. 373; 125 A.R. 34; 14 W.A.C. 34 (C.A.), refd to. [para. 388].

Penvidic Contracting Co. v. International Nickel Co. of Canada Ltd., [1976] 1 S.C.R. 267; 4 N.R. 1, refd to. [para. 388].

Cassell & Co. v. Broome, [1972] A.C. 1027; [1972] 1 All E.R. 801 (H.L.), refd to. [para. 388].

Statutes Noticed:

Combines Investigation Act, R.S.C. 1970, c. C-23, sect. 31.1 [para. 2]; sect. 31.1(1) [para. 129]; sect. 31.2, sect. 31.4 [para. 310]; sect. 32 [para. 2]; sect. 32(1), sect. 32(1.1), sect. 32(2), sect. 32(3), sect. 32(4), sect. 32(5), sect. 32.1(1) [para. 130]; sect. 38(1), sect. 38(2), sect. 38(3), sect. 38(4), sect. 38(5), sect. 38(6), sect. 38(7), sect. 38(7.1), sect. 38(8), sect. 38(9) [para. 131].

Competition Act, R.S.C. 1985, c. C-34, sect. 36, sect. 45 [para. 2].

Rules of Court (Alta.), rule 260 [para. 316].

Authors and Works Noticed:

Blair, D. Gordon, "Canada": Antitrust Laws A Comparative Symposium (W. Friedmann, ed.), p. 1 [para. 128].

Burns, Peter, Civil Conspiracy: An Unwieldy Vessel Rides a Judicial Tempest (1982), 16 U.B.C. L.R. 229 [para. 80].

Clerk and Lindsell on Torts (14th Ed. 1975), p. 425 [para. 298].

Clerk and Lindsell on Torts (16th Ed. 1989), pp. 785 to 826 [para. 213]; 826 to 827 [paras. 213, 229]; 873 [para. 84]; 874 [para. 86].

Fleming, John G., The Law of Torts (7th Ed. 1987), pp. 647 to 652 [para. 214]; 653 [para. 212]; 654 to 665 [para. 214].

Fridman, G.H.L., The Law of Torts in Canada (1990), vol. 2, pp. 261 [para. 74]; 265 [paras. 69, 99]; 265 to 266 [para. 100]; 267 [para. 85]; 279 to 301 [para. 214]; 302 [para. 387]; 303 to 312 [para. 214.].

Fridman, G.H.L., The Tort Law Review (No. 2) (1993), vol. 1, pp. 104 [para. 300]; 105 [para. 302]; 113 [paras. 304, 305]; 117 [paras. 306, 307].

James, General Principles of the Law of Torts (3rd Ed.), p. 353 [para. 124].

Ketchum, J.D., Hymn to Free Enterprise, in Restrictive Trade Practices in Canada (L.A. Skeoch, ed.), p. vii [para. 47].

Klar, Lewis N., Tort Law (1991), pp. 433 to 448, 454 to 456 [para. 214].

McGregor on Damages, pp. 1070 to 1071 [para. 387].

Skeoch, L.A., Restrictive Trade Practices in Canada, p. vii [para. 47].

Waddams, S.M., The Law of Damages (2nd Ed. 1991), pp. 13-1 to 13-3 [para. 388].

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 action was heard before Berger, J., of the Alberta Court of Queen's Bench, Judicial District of Edmonton, who delivered the following judgment on March 8, 1994.