Pedersen v. Soyka et al., 2014 ABCA 179

• Judge: Côté, Paperny and McDonald, JJ.A.
• Court: Court of Appeal (Alberta)
• Case Date: Wednesday April 02, 2014
• Citations: 2014 ABCA 179;(2014), 575 A.R. 217

Pedersen v. Soyka (2014), 575 A.R. 217; 612 W.A.C. 217 (CA)

MLB headnote and full text

Temp. Cite: [2014] A.R. TBEd. JN.001

Karen Joan Pedersen (respondent/plaintiff) v. Michael R. (Rick) Soyka and Tax Back Ltd. (appellants/defendants)

(1301-0142-AC; 2014 ABCA 179)

Indexed As: Pedersen v. Soyka et al.

Alberta Court of Appeal

Côté, Paperny and McDonald, JJ.A.

May 29, 2014.

Summary:

The defendants, Soyka and Tax Back Ltd., had a business that charged commissions for processing requests by individuals for government refunds of fuel taxes. Soyka and the plaintiff, Pedersen, entered into a serious personal relationship. Tax Back Ltd. hired Pederson in its refund business. Following a disagreement at work, Pedersen resigned and the personal relationship broke up. Subsequently, Pederson formed a competing business (Advantage). About two weeks after learning of the competition, Soyka allegedly instigated some discussions with Pedersen. Thereafter, Pederson went back to working for Tax Back Ltd. and abandoned her new business. Subsequently, Pedersen sued Sokya and Tax Back Ltd. for breach of contract arising from those discussions.

The Alberta Court of Queen's Bench found that there was an oral contract wherein Soyka agreed to give Pederson 50 percent of his shares in Tax Back and they would share all future profits 50-50, and in exchange Pedersen agreed she would not be a competitor of Tax Back, would leave Advantage and return to work with Tax Back. As to damages, the trial judge found that Pedersen could not get any relief for not getting any company shares, because she sued more than two years after knowing that she was not getting them. However, the trial judge found that each year had given a new right to get half the profits, and so the later past years' profits were sued for in time, even though the last two years' profits were statute-barred by the time of the suit. Soyka and Tax Back Ltd. appealed.

The Alberta Court of Appeal, McDonald, J.A., dissenting, dismissed the appeal.

Contracts - Topic 1104

Formation of contract - General principles - Oral contracts - A trial judge found that Soyka breached an oral agreement to give Pedersen 50 percent of his shares in Tax Back Ltd. and share all future profits 50/50 - Pedersen and Tax Back Ltd. (the defendants) appealed, arguing that the agreement was void for uncertainty of terms - The Alberta Court of Appeal rejected the defendants' argument - See paragraphs 40 to 65.

Limitation of Actions - Topic 17

General principles - Continuing acts and continuing losses - A trial judge found that Soyka breached an oral agreement to give Pedersen 50 percent of his shares in Tax Back Ltd. and share all future profits 50/50 - Limitations issues arose - The trial judge found that Pedersen's claim for company shares was statute barred - However, the trial judge found that each year gave a new right to get half the profits, and so the later past years' profits were sued for in time, even though the last two years' profits were statute-barred by the time of the suit - Soyka and Tax Back (the defendants) appealed - The defendants argued that the contract sued on promised only shares, that the reference to profits was redundant, and that one could not separate shares and profits - The Alberta Court of Appeal disagreed with all aspects of the defendants' proposition - See paragraphs 1 to 39.

Limitation of Actions - Topic 17

General principles - Continuing acts and continuing losses - The Alberta Court of Appeal stated that "... Every time that there is a contract which calls for periodic payments, does the limitation period always start running afresh when each payment falls due? The answer is, 'No, not always'. Authority for that is Halter v. Standard Life Assurance Co, 2014 ABCA 57 (Feb 10). However, that case does not say that the answer is 'Never'. In the Halter case, other precedents finding a 'rolling' limitation period were distinguished (on facts or legislation), not stated to be wrong" - See paragraph 17.

Limitation of Actions - Topic 2023

Actions in contract - Actions for breach of contract - When time commences to run - [See both Limitation of Actions - Topic 17].

Cases Noticed:

Halter v. Standard Life Assurance Co. of Canada (2014), 569 A.R. 148; 606 W.A.C. 148; 2014 ABCA 57, refd to. [para. 17].

Ali v. O-Two Medical Technologies Inc. (2013), 313 O.A.C. 189; 118 O.R.(3d) 321; 2013 ONCA 733, refd to. [para. 21].

Meek (James H.) Trust et al. v. San Juan Resources Inc. et al. (2005), 376 A.R. 202; 360 W.A.C. 202; 2005 ABCA 448, refd to. [para. 37].

Dominion Taxicab Association v. Minister of National Revenue, [1954] S.C.R. 82; [1954] 2 D.L.R. 273, refd to. [para. 60].

Montreal Coke and Manufacturing Co. v. Minister of National Revenue, [1942] S.C.R. 89, affd. [1944] A.C. 126; [1944] 3 D.L.R. 545, refd to. [para. 60].

Montreal Light, Heat and Power Consolidated v. Minister of National Revenue - see Montreal Coke and Manufacturing Co. v. Minister of National Revenue.

Bussieres v. Canadian Exploration Ltd., [1938] S.C.R. 60; [1938] 1 D.L.R. 257, refd to. [para. 60].

Canderel Ltd. v. Minister of National Revenue, [1998] 1 S.C.R. 147; 222 N.R. 81, refd to. [para. 60].

Canadian Natural Resources Ltd. v. Jensen Resources Ltd., [2014] 4 W.W.R. 212; 566 A.R. 76; 597 W.A.C. 76; 2013 ABCA 399, refd to. [para. 84].

Ko v. Hillview Homes Ltd. (2012), 536 A.R. 93; 559 W.A.C. 93; 2012 ABCA 245, refd to. [para. 84].

Authors and Works Noticed:

Fridman, G.H.L., The Law of Contract in Canada (5th Ed. 2006), p. 17 [paras 61, 88].

Counsel:

J.H. Wilson, Q.C., for the appellant;

C.W. Ford, for the respondent.

This appeal was heard on April 2, 2014, before Côté, Paperny and McDonald, JJ.A., of the Alberta Court of Appeal. The following memorandum was filed in Calgary, Alberta, on May 29, 2014, including the following opinions:

Côté and Paperny, JJ.A. - see paragraphs 1 to 66;

McDonald, J.A., dissenting - see paragraphs 67 to 98.