No Limits Sportswear Inc. v. 0912139 B.C. Ltd. et al., 2014 BCCA 258

JudgeLevine, Garson and Stromberg-Stein, JJ.A.
CourtCourt of Appeal (British Columbia)
Case DateJune 12, 2014
JurisdictionBritish Columbia
Citations2014 BCCA 258;(2014), 359 B.C.A.C. 12 (CA)

No Limits Sportswear v. 0912139 B.C. (2014), 359 B.C.A.C. 12 (CA);

    615 W.A.C. 12

MLB headnote and full text

Temp. Cite: [2014] B.C.A.C. TBEd. AU.004

No Limits Sportswear Inc. (appellant/plaintiff) v. 0912139 B.C. Ltd., Pakage Holdings Inc., Keyhole Technologies Inc., KE Imports Ltd., Dustin Bigney, Desmond Price, Shawn Ellis, Scott Hannan, Glen Kirk, Pakage Apparel Inc., and Gregg Alfonso (respondents/defendants)

(CA041423; 2014 BCCA 258)

Indexed As: No Limits Sportswear Inc. v. 0912139 B.C. Ltd. et al.

British Columbia Court of Appeal

Levine, Garson and Stromberg-Stein, JJ.A.

June 20, 2014.

Summary:

No Limits Sportswear Inc. sued the defendants, asserting that in the course of unsuccessful negotiations respecting a potential joint investment, and while protected by a non-disclosure agreement, it revealed confidential information about the design and the marketing of their unique product, and that the defendants essentially copied it to market in direct competition with No Limits. No Limits sought damages for the loss of business opportunity, loss of market share and loss of market position, as well as payment for the profits wrongfully earned by the defendants (the No Limits action). After the failure of the proposed joint investment, the defendants moved ahead with their own business. A dispute arose between the defendants and they broke into two splinter groups (the Pakage parties and the KE parties). The KE parties entered into an agreement with No Limits to cooperate in the No Limits action. The individual KE parties accessed historical e-mail accounts belonging to the Pakage companies and gave the documents obtained from those accounts to No Limits. The Pakage parties sued the KE parties, asserting that the KE parties breached a settlement agreement and misappropriated confidential information, e-mail accounts, domain names and intellectual property from them (the Pakage action). The KE parties denied the settlement or at least claimed that the settlement was only a partial settlement. The Pakage parties obtained an injunction in the Pakage action, restraining the KE parties from further accessing the Pakage e-mail accounts or using documents already wrongfully obtained from them (see [2014] B.C.T.C. Uned. 884). The Pakage parties applied in the No Limits action for relief from the implied undertaking associated with discovery in the No Limits action in order to use certain documents produced by No Limits, as well as No Limits' list of documents in the Pakage action. No Limits sought a declaration that the Pakage parties had breached the implied undertaking.

The British Columbia Supreme Court, in a decision reported at [2014] B.C.T.C. Uned. 999, granted the Pakage parties relief from the implied undertaking rule. The court, without providing reasons, refused to grant a declaration that the Pakage parties were in breach of the implied undertaking. The Pakage parties amended their pleadings in the Pakage action and expanded the scope of their claims against the KE parties. No Limits appealed, asserting that the case did not constitute the exceptional circumstances that were a prerequisite to granting relief from an implied undertaking. No Limits also asserted that the court erred in dismissing their application to hold the Pakage defendants in breach of the implied undertaking.

The British Columbia Court of Appeal allowed the appeal to the extent of remitting the question of whether there had been a prior breach of the implied undertaking. In all other respects, the court dismissed the appeal.

Courts - Topic 583

Judges - Duties - Re reasons for decisions - See paragraphs 34 to 38.

Practice - Topic 4157

Discovery - General principles - Collateral use of discovery information (implied or deemed undertaking rule) - See paragraphs 27 to 33.

Cases Noticed:

Doucette v. Wee Watch Day Care Systems Inc. et al. (2008), 372 N.R. 95; 252 B.C.A.C. 1; 422 W.A.C. 1; 2008 SCC 8, refd to. [para. 1].

Stone v. Ellerman et al. (2009), 273 B.C.A.C. 126; 461 W.A.C. 126; 2009 BCCA 294, refd to. [para. 22].

Housen v. Nikolaisen et al., [2002] 2 S.C.R. 235; 286 N.R. 1; 219 Sask.R. 1; 272 W.A.C. 1; 2002 SCC 33, refd to. [para. 22].

Schober v. Tyson Creek Hydro Corp. (2014), 355 B.C.A.C. 1; 607 W.A.C. 1; 2014 BCCA 12, refd to. [para. 27].

Counsel:

P. Smith and A. Chow, for the appellant;

W.D. McEwan and C. DiPuma, for the respondents, 0912139 B.C. Ltd., Pakage Holdings Inc., Keyhole Technologies Inc., Pakage Apparel Inc., Dustin Bigney, Desmond Price;

J. Walker, for the respondent, Gregg Alfonso.

This appeal was heard at Vancouver, British Columbia, on June 12, 2014, by Levine, Garson and Stromberg-Stein, JJ.A., of the British Columbia Court of Appeal. Garson, J.A., delivered the following reasons for judgment orally for the court on June 20, 2014.

To continue reading

Request your trial
6 practice notes
  • British Columbia (Director of Civil Forfeiture) v. PacNet Services Ltd., 2018 BCSC 2070
    • Canada
    • Supreme Court of British Columbia (Canada)
    • November 23, 2018
    ...other than prosecuting the present action: Juman v. Doucette, 2008 SCC 8 at paras. 4-5; No Limits Sportswear Inc. v. 0912139 B.C Ltd., 2014 BCCA 258 at para. 28. [83] There is no substance to the stated concerns of the Defendants that “somehow” the VPD “may” gain access to document disclosu......
  • No Limits Sportswear Inc. v. 0912139 B.C. Ltd. et al., 2015 BCCA 193
    • Canada
    • British Columbia Court of Appeal (British Columbia)
    • March 12, 2015
    ...such information would not render the claimed privilege nugatory. Editor's note: for a related decision involving these parties see 359 B.C.A.C. 12; 615 W.A.C. Practice - Topic 4578 Discovery - Documents - What documents must be produced - Privileged documents - Documents prepared in contem......
  • XY, LLC v. Canadian Topsires Selection Inc. et al., 2015 BCSC 1617
    • Canada
    • Supreme Court of British Columbia (Canada)
    • August 7, 2015
    ...governing authority is Juman v. Doucette , 2008 SCC 8. Various principles were cited in No Limits Sportswear Inc. v. 0912139 B.C. Ltd. , 2014 BCCA 258. The relevant factors from Juman were cited at para. 28 and, happily, they are the same relevant factors that are applicable here. [20] It b......
  • Nuchatlaht v. British Columbia, 2021 BCCA 351
    • Canada
    • Court of Appeal (British Columbia)
    • September 24, 2021
    ...This Court has previously cited para. 32 for the test emerging from Juman: see No Limits Sportswear Inc. v. 0912139 B.C. Ltd., 2014 BCCA 258 at para. 28. In my view, the first sentence of para. 32 is a restatement of the test from para. 34. The reference to “excep......
  • Request a trial to view additional results
6 cases
  • British Columbia (Director of Civil Forfeiture) v. PacNet Services Ltd., 2018 BCSC 2070
    • Canada
    • Supreme Court of British Columbia (Canada)
    • November 23, 2018
    ...other than prosecuting the present action: Juman v. Doucette, 2008 SCC 8 at paras. 4-5; No Limits Sportswear Inc. v. 0912139 B.C Ltd., 2014 BCCA 258 at para. 28. [83] There is no substance to the stated concerns of the Defendants that “somehow” the VPD “may” gain access to document disclosu......
  • No Limits Sportswear Inc. v. 0912139 B.C. Ltd. et al., 2015 BCCA 193
    • Canada
    • British Columbia Court of Appeal (British Columbia)
    • March 12, 2015
    ...such information would not render the claimed privilege nugatory. Editor's note: for a related decision involving these parties see 359 B.C.A.C. 12; 615 W.A.C. Practice - Topic 4578 Discovery - Documents - What documents must be produced - Privileged documents - Documents prepared in contem......
  • XY, LLC v. Canadian Topsires Selection Inc. et al., 2015 BCSC 1617
    • Canada
    • Supreme Court of British Columbia (Canada)
    • August 7, 2015
    ...governing authority is Juman v. Doucette , 2008 SCC 8. Various principles were cited in No Limits Sportswear Inc. v. 0912139 B.C. Ltd. , 2014 BCCA 258. The relevant factors from Juman were cited at para. 28 and, happily, they are the same relevant factors that are applicable here. [20] It b......
  • Nielsen v. Nielsen, 2017 BCSC 269
    • Canada
    • Supreme Court of British Columbia (Canada)
    • February 20, 2017
    ...[36] Similar decisions were arrived at in similar situations in the following cases: · No Limits Sportswear Inc. v. 0912139 B.C. Ltd., 2014 BCCA 258 · Professional Components Ltd. v. Rigollet, 2010 BCSC 688. [37] It follows that the respondents’ argument with respect to breach of implied un......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT