Spartek Systems Inc. v. Brown et al., 2014 ABQB 526

• Judge: Ross, J.
• Court: Court of Queen's Bench of Alberta (Canada)
• Case Date: October 08, 2013
• Citations: 2014 ABQB 526;(2014), 596 A.R. 60 (QB)

Spartek Systems Inc. v. Brown (2014), 596 A.R. 60 (QB)

MLB headnote and full text

Temp. Cite: [2014] A.R. TBEd. SE.022

Spartek Systems Inc. (plaintiff) v. Robert Brown, 1133098 Alberta Ltd., Carlos Claveria, Real Time Measurements Inc., Petroniks Systems Inc., Terrence Matthews, Chris Holt and Mark Hartwell (defendants)

(1010 00250; 2014 ABQB 526)

Indexed As: Spartek Systems Inc. v. Brown et al.

Alberta Court of Queen's Bench

Judicial District of Red Deer

Ross, J.

August 25, 2014.

Summary:

Brown was the president, director and one of the two largest shareholders of Spartek, which manufactured and marketed downhole tools. In 2004, Brown agreed to sell his interest. Brown and his wholly owned company (113) entered into a share sale agreement with Spartek, which included confidentiality, non-solicitation and non-competition provisions. Spartek alleged that Brown, in a conspiracy with the defendants Matthews, Holt, Claveria and Hartwell, had breached Brown's contractual and common law obligations to Spartek. Claveria and Holt entered into settlement agreements with Spartek. 113 sued Spartek for monies allegedly owing under the agreement on a promissory note.

The Alberta Court of Queen's Bench held that Brown's involvement with and actions on behalf of the corporation Petroniks violated the non-competition covenant in the share sale agreement. Brown, Matthews, Holt and Claveria were parties to a conspiracy. The claims against Hartwell were dismissed. Spartek had proven damages for lost profits in the amount of $1,298,366, plus interest. Spartek was also entitled to recover its recruitment and training costs of $104,993. Matthews' claim for contribution against Brown and 113 was allowed to the extent of 25% of Spartek's damages. 113 was jointly responsible with Brown (the corporate veil had been lifted). 113 was entitled to payment under the promissory note, subject to a set off with respect to Brown's liability to Spartek.

Editor's Note: For a related decision, see (2009), 481 A.R. 213.

Company Law - Topic 311

Nature of corporations - Lifting the corporate veil - One person company - [See Company Law - Topic 315 ].

Company Law - Topic 315

Nature of corporations - Lifting the corporate veil - Preventing injustices - Brown was the president, director and one of the two largest shareholders of Spartek, which manufactured and marketed downhole tools - In 2004, Brown agreed to sell his interest - Brown and his wholly owned company (113) entered into a share sale agreement with Spartek, which included confidentiality, non-solicitation and non-competition provisions - Spartek alleged that Brown, in a conspiracy with other defendants, had breached Brown's contractual and common law obligations to Spartek - 113 sued Spartek for monies allegedly owing under the agreement - The court found that Brown had breached the share sale agreement and that a conspiracy had been proven - At issue was whether the corporate veil between 113 and Brown should be pierced - The Alberta Court of Queen's Bench pierced the corporate veil - Brown and 113 had joint obligations under the agreement - 113's sole purpose was the receipt of monies under the agreement - If the corporate veil was not pierced, 113 might receive the benefit of full payment under the agreement while avoiding any responsibility for Brown's breach - 113 had to be held liable for Brown's unlawful actions - See paragraphs 277 to 286.

Contracts - Topic 1503

Formation of contract - Consensus or agreement - What constitutes a consensus necessary for a binding contract - Brown was the president, director and one of the two largest shareholders of Spartek, which manufactured and marketed downhole tools - In 2004, Brown agreed to sell his interest - Brown and his wholly owned company (113) entered into a share sale agreement with Spartek, which included confidentiality, non-solicitation and non-competition provisions - Spartek alleged that Brown, in a conspiracy with other defendants, had breached Brown's contractual and common law obligations to Spartek - Brown asserted, inter alia, that the share sale agreement was not enforceable as there was no consensus ad idem on its terms, as shown by differences between a memorandum of understanding (MOU) between the parties and the share sale agreement - The Alberta Court of Queen's Bench held that the share sale agreement was valid and enforceable - Brown had an opportunity to review the agreement and to obtain legal advice before signing and he chose not to do so - He was responsible for his decision - Further, there were no differences in substance between the MOU and the agreement - Finally, payments had been made and accepted by Brown and 113 and 113 had sued for the final payment - Having affirmed the agreement in this way, Brown and 113 were estopped from claiming that the agreement was invalid - See paragraphs 41 to 54.

Contracts - Topic 2107.2

Terms - Express terms - Limitation on quantum of damages clauses - [See Contracts - Topic 4045 ].

Contracts - Topic 2120

Terms - Express terms - Exclusionary clauses - [See Contracts - Topic 4045 ].

Contracts - Topic 3523

Performance or breach - Breach - What constitutes a breach - [See Equity - Topic 3726 ].

Contracts - Topic 3523

Performance or breach - Breach - What constitutes a breach - Brown was the president, director and one of the two largest shareholders of Spartek, which manufactured and marketed downhole tools - In 2004, Brown agreed to sell his interest - Brown and his wholly owned company entered into a share sale agreement with Spartek, which included confidentiality, non-solicitation and non-competition provisions - Spartek alleged that Brown, in a conspiracy with other defendants, had breached Brown's contractual and common law obligations to Spartek - The Alberta Court of Queen's Bench held that Brown's involvement with and actions on behalf of the corporation Petroniks violated the non-competition covenant in the share sale agreement - Brown was directly involved in plans to create a company that would undertake a number of activities in the oil field industry, including some that would not compete with Spartek's business and some that would - Petroniks developed a pressure gauge that Brown and the others involved knew was in competition with Spartek - Brown's steps to pull back from or minimize his involvement did not change the reality that he was a founder of Petroniks - See paragraphs 121 to 130.

Contracts - Topic 3730

Performance or breach - Fundamental breach - What constitutes a fundamental breach - Brown was the president, director and one of the two largest shareholders of Spartek, which manufactured and marketed downhole tools - In 2004, Brown agreed to sell his interest - Brown and his wholly owned company entered into a share sale agreement with Spartek, which included confidentiality, non-solicitation and non-competition provisions - Spartek's claim alleged that Brown, in a conspiracy with the defendants Matthews, Claveria and Holt, had breached Brown's contractual and common law obligations to Spartek - Claveria and Holt entered into settlement agreements with Spartek, which imposed certain obligations on Claveria and Holt in exchange for a release from liability - The court found that the defendants were parties to a conspiracy - Claveria was protected from liability by the settlement - However, Spartek asserted that Holt had breached his obligations and was no longer entitled to the benefit of the agreement - The Alberta Court of Queen's Bench held that Holt was protected from liability by the settlement agreement - The general rule was that only a fundamental breach by one party to an agreement would justify the other party being relieved of its obligations under the agreement - For Holt to lose the benefit of the agreement, Spartek had to show a refusal or neglect by Holt of his obligations that would substantially deprive Spartek of its benefit under the agreement - Spartek failed to meet that onus - See paragraphs 187 to 204.

Contracts - Topic 3730

Performance or breach - Fundamental breach - What constitutes a fundamental breach - Brown was the president, director and one of the two largest shareholders of Spartek, which manufactured and marketed downhole tools - In 2004, Brown agreed to sell his interest - Brown and his wholly owned company (113) entered into a share sale agreement with Spartek, which included confidentiality, non-solicitation and non-competition provisions - Spartek alleged that Brown, in a conspiracy with other defendants, had breached Brown's contractual and common law obligations to Spartek - 113 sued Spartek for monies allegedly owing under the agreement - The court found that Brown had breached the share sale agreement and that a conspiracy had been proven - Spartek asserted that it should have no further liability under the agreement due to Brown's breach - The Alberta Court of Queen's Bench held that 113 was entitled to payment under the promissory note, subject to a set off with respect to Brown's liability to Spartek (the corporate veil had been lifted) - Brown and 113 performed their most fundamental obligation under the share sale agreement, the transfer of shares to Spartek - Brown's breaches, though serious, had not frustrated the very object of the agreement and had not gone to its root - See paragraphs 287 to 292.

Contracts - Topic 3826

Performance or breach - Frustration or impossibility - Application of doctrine - [See second Contracts - Topic 3730 ].

Contracts - Topic 4045

Remedies for breach - Liquidated damages and penalties - Enforceability of liquidated damages or penalty clause - Brown was the president, director and one of the two largest shareholders of Spartek, which manufactured and marketed downhole tools - In 2004, Brown agreed to sell his interest - Brown and his wholly owned company entered into a share sale agreement with Spartek, which included confidentiality, non-solicitation and non-competition provisions - Spartek alleged that Brown, in a conspiracy with other defendants, had breached Brown's contractual and common law obligations to Spartek - The court found that Brown had breached the share sale agreement and that a conspiracy had been proven - Brown asserted that his liability was limited to the amount set out in clause 8 of the agreement regarding liquidated damages for a breach of the covenants ($1,000 per day for as long as the breach continued) - The Alberta Court of Queen's Bench rejected Brown's argument - Brown was liable in conspiracy as well as contract - Clause 8 only applied to a breach of the contract - Further, the liquidated damages clause did not exclude other forms of liability - See paragraphs 266 to 276.

Contracts - Topic 6732

Illegal contracts - Contrary to public policy - Restraint of trade - Agreements not to compete or solicit - Brown was the president, director and one of the two largest shareholders of Spartek, which manufactured and marketed downhole tools - In 2004, Brown agreed to sell his interest - Brown and his wholly owned company entered into a share sale agreement with Spartek, which included confidentiality, non-solicitation and non-competition provisions - Spartek alleged that Brown, in a conspiracy with other defendants, had breached Brown's contractual and common law obligations to Spartek - Brown asserted, inter alia, that the confidentiality, non-solicitation and non-competition covenants were unenforceable due to breadth and ambiguity - The Alberta Court of Queen's Bench held that the covenants were lawful - The requirement of reasonableness applied much more strictly in the context of employment contracts than in commercial agreements - There was no evidence that the terms here were unreasonable as to the extent of the activity prohibited or the temporal or spatial scope of the prohibition - See paragraphs 55 to 64.

Damage Awards - Topic 696

Torts - Injury to economic or business relations - Conspiracy to injure - Brown was the president, director and one of the two largest shareholders of Spartek, which manufactured and marketed downhole tools - In 2004, Brown agreed to sell his interest - Brown and his wholly owned company entered into a share sale agreement with Spartek, which included confidentiality, non-solicitation and non-competition provisions - Spartek alleged that Brown, in a conspiracy with other defendants, had breached Brown's contractual and common law obligations to Spartek - The court found that Brown had breached the share sale agreement and that a conspiracy had been proven - At issue was whether Spartek had suffered a loss as a result of the unlawful conduct - The Alberta Court of Queen's Bench found that the expert evidence on damages did establish that Spartek's expected performance, as based on its performance up to and including 2004, was not met by its actual performance for the years 2005 to 2008 - Spartek's worse than expected growth in 2005 and 2006 was attributed to the defendants' actions - Spartek lost personnel in 2005 - Recruitment and training continued in 2006 - However, this situation did not continue in 2007 and 2008 - Accordingly, Spartek had proven damages for lost profits for the years 2005 and 2006 in the amount of $1,298,366, plus interest - A deduction for contingencies was not justified - Spartek was also entitled to recover its recruitment and training costs of $104,993 - However, a claim for unpaid accounts that were written off as bad debts linked to Brown were not recoverable as the non-payment was not proven to have resulted from the defendants' wrongful conduct - See paragraphs 205 to 265.

Damages - Topic 3942

Interference with economic relations - Conspiracy to injure or defraud - Measure of damages - [See Damage Awards - Topic 696 ].

Damages - Topic 5708

Contracts - Breach of contract - Apportionment - [See second Torts - Topic 7381 ].

Damages - Topic 5713

Contracts - Breach of contract - Loss of profits - [See Damage Awards - Topic 696 ].

Damages - Topic 6305

Contracts - Sale of shares - Breach of restrictive covenant - [See Damage Awards - Topic 696 ].

Equity - Topic 3607

Fiduciary or confidential relationships - General principles - Relationships which are not fiduciary - Brown was the president, director and one of the two largest shareholders of Spartek, which manufactured and marketed downhole tools - In 2004, Brown agreed to sell his interest - Brown and his wholly owned company entered into a share sale agreement with Spartek, which included confidentiality, non-solicitation and non-competition provisions - Spartek's claim alleged that Brown, in a conspiracy with other defendants, had breached Brown's contractual and common law obligations to Spartek - Against the defendant Hartwell, a Spartek employee who had provided drawings to Brown and the other defendants, Spartek alleged breach of confidence and breach of fiduciary obligations in relation to Hartwell's use of Spartek's confidential information - The Alberta Court of Queen's Bench dismissed these claims against Hartwell - Hartwell had breached his duty of confidence to Spartek as well as his contractual obligation to keep Spartek information confidential - However, there was no evidence that Spartek suffered any loss as a result - Further, it was not clear that Hartwell was in a fiduciary relationship to Spartek - He worked on data management and design projects under supervision - It was not clear that there was any significant scope for the exercise of discretion or power in his employment or an ability to unilaterally affect Spartek's interests - See paragraphs 176 to 182.

Equity - Topic 3646

Fiduciary or confidential relationships - Breach of fiduciary relationship - By director or officer of company - [See Equity - Topic 3726 ].

Equity - Topic 3726

Fiduciary or confidential relationships - The employer-employee relationship - Duty of employee after termination - Brown was the president, director and one of the two largest shareholders of Spartek, which manufactured and marketed downhole tools - In 2004, Brown agreed to sell his interest - Brown and his wholly owned company entered into a share sale agreement with Spartek, which included confidentiality, non-solicitation and non-competition provisions - Spartek alleged that Brown, in a conspiracy with other defendants, had breached Brown's contractual and common law obligations to Spartek - The Alberta Court of Queen's Bench held that, in soliciting a Spartek employee to work for a new company being formed, Brown was in breach of an implied term of his employment contract and in breach of his duty of good faith to his employer - The fact that Brown was not engaged in active work on behalf of Spartek at the time did not relieve him from these obligations, which constituted a form of fiduciary obligation - Fiduciary obligations of senior employees did not automatically cease on termination of employment - Further, Brown's invitation to the employee remained open after the share sale agreement came into effect - Thus, the solicitation also breached the share sale agreement - See paragraphs 112 to 120.

Equity - Topic 3902

Fiduciary or confidential relationships - Breach of confidence - What constitutes - [See Equity - Topic 3607 ].

Estoppel - Topic 1426

Estoppel in pais (by conduct) - Acceptance - Of money or property - [See Contracts - Topic 1503 ].

Master and Servant - Topic 4207

Duties of servant - Fiduciary duty - [See Equity - Topic 3726 ].

Master and Servant - Topic 4307

Duties of servant - On termination - Competition in business - Solicitation of clients of former employer - [See Equity - Topic 3726 ].

Practice - Topic 9869

Settlements - Breach - What constitutes - [See first Contracts - Topic 3730 ].

Torts - Topic 5703

Conspiracy - General - Elements - [See both Torts - Topic 5706 ].

Torts - Topic 5706

Conspiracy - General - Conspiracy - What constitutes - Brown was the president, director and one of the two largest shareholders of Spartek, which manufactured and marketed downhole tools - In 2004, Brown agreed to sell his interest - Brown and his wholly owned company entered into a share sale agreement with Spartek, which included confidentiality, non-solicitation and non-competition provisions - Spartek alleged that Brown, in a conspiracy with other defendants, had breached Brown's contractual and common law obligations to Spartek - The Alberta Court of Queen's Bench found that the essential elements of agreement and intention regarding the alleged conspiracy had been proven in relation to Brown and the defendants Matthews, Holt and Claveria - Brown and Matthews agreed to act unlawfully to create the company Petroniks and to cause it to carry on business in competition with Spartek - They knew that harm to Spartek was likely to occur - Holt and Claveria were Spartek employees who joined Petroniks, pursuing a common intention with Brown and Matthews to cause Petroniks to compete with Spartek - They acted unlawfully as they were aware that Brown was bound by contract not to compete with Spartek and that harm to Spartek was likely - See paragraphs 131 to 158.

Torts - Topic 5706

Conspiracy - General - Conspiracy - What constitutes - Brown was the president, director and one of the two largest shareholders of Spartek, which manufactured and marketed downhole tools - In 2004, Brown agreed to sell his interest - Brown and his wholly owned company entered into a share sale agreement with Spartek, which included confidentiality, non-solicitation and non-competition provisions - Spartek alleged that Brown, in a conspiracy with other defendants, had breached Brown's contractual and common law obligations to Spartek - The Alberta Court of Queen's Bench found that the allegation of a conspiracy was not proven against the defendant Hartwell - Hartwell was a Spartek employee who responded to requests for drawings from Brown and the other defendants - There was no evidence that he was aware of Brown's agreement with Spartek - He had only marginal involvement in the company developed by Brown and the other defendants - As the essential elements of agreement and intention had not been proven regarding Hartwell, he was not liable for conspiracy - See paragraphs 163 to 175.

Torts - Topic 7381

Joint and concurrent tortfeasors - Contribution between tortfeasors - Indemnity between tortfeasors - Brown was the president, director and one of the two largest shareholders of Spartek, which manufactured and marketed downhole tools - In 2004, Brown agreed to sell his interest - Brown and his wholly owned company (113) entered into a share sale agreement with Spartek, which included confidentiality, non-solicitation and non-competition provisions - Spartek alleged that Brown, in a conspiracy with the defendants Matthews, Holt, Claveria and Hartwell, had breached Brown's contractual and common law obligations to Spartek - Claveria and Holt entered into settlement agreements with Spartek - The court found that Brown had breached the share sale agreement and that Brown, Matthews, Holt and Claveria were parties to a conspiracy - At issue were Brown and 113's third party notices, seeking contribution and indemnity from Hartwell, Claveria and Holt - The Alberta Court of Queen's Bench dismissed the third party claims - Under the Tort-feasors Act, the claim for contribution was subject to the condition precedent that the contribution was from a tortfeasor who was or would be liable, if sued - Hartwell had no liability to Spartek - Neither Holt nor Claveria had been or could be found to be liable to Spartek due to their settlement agreements - The fact that Holt and Claveria would have been liable prior to the settlement agreements was of no assistance - See paragraphs 293 to 311.

Torts - Topic 7381

Joint and concurrent tortfeasors - Contribution between tortfeasors - Indemnity between tortfeasors - Brown was the president, director and one of the two largest shareholders of Spartek, which manufactured and marketed downhole tools - In 2004, Brown agreed to sell his interest - Brown and his wholly owned company (113) entered into a share sale agreement with Spartek, which included confidentiality, non-solicitation and non-competition provisions - Spartek alleged that Brown, in a conspiracy with the defendants Matthews, Holt, Claveria and Hartwell, had breached Brown's contractual and common law obligations to Spartek - Claveria and Holt entered into settlement agreements with Spartek - The court found that Brown had breached the share sale agreement and that Brown, Matthews, Holt and Claveria were parties to a conspiracy - At issue were Matthews' third party claims for contribution against Brown and 113 - The Alberta Court of Queen's Bench allowed the claim for contribution against Brown and 113 to the extent of 25% of Spartek's damages - Both Brown and 113 had been found liable to Spartek for the same damage - Accordingly, Matthews was entitled to contribution to the extent of Brown's fault - The evidence showed that the defendants' original intention was to be equal owners of the company that would have competed with Spartek - On that basis, as well as their essentially equal responsibility for the actions that caused damage to Spartek, the court concluded that each of Brown, Matthews, Holt and Claveria were 25% at fault - 113 was jointly responsible with Brown - See paragraphs 315 to 320.

Torts - Topic 7382

Joint and concurrent tortfeasors - Contribution between tortfeasors - Apportionment of fault - General - [See second Torts - Topic 7381 ].

Torts - Topic 7383

Joint and concurrent tortfeasors - Contribution between tortfeasors - Considerations in apportionment of fault - [See second Torts - Topic 7381 ].

Torts - Topic 7420

Joint and concurrent tortfeasors - Contribution between tortfeasors - Settlement by one tortfeasor - [See first Torts - Topic 7381 ].

Cases Noticed:

Jeske and Waymore Management Ltd. v. Maritime Life Assurance Co. (1990), 105 A.R. 81; 42 C.C.L.I. 203 (Q.B.), affd. (1991), 117 A.R. 162; 2 W.A.C. 162 (C.A.), refd to. [para. 54].

KRG Insurance Brokers (Western) Inc. v. Shafron et al., [2009] 1 S.C.R. 157; 383 N.R. 217; 265 B.C.A.C. 1; 446 W.A.C. 1; 2009 SCC 6, refd to. [para. 56].

Guay Inc. v. Payette et al., [2013] 3 S.C.R. 95; 448 N.R. 1; 2013 SCC 45, refd to. [para. 58].

RBC Dominion Securities Inc. v. Merrill Lynch Canada Inc. et al., [2008] 3 S.C.R. 79; 380 N.R. 166; 260 B.C.A.C. 198; 439 W.A.C. 198; 2008 SCC 54, refd to. [para. 118].

Zesta Engineering Ltd. v. Cloutier et al., [2010] O.T.C. Uned. 5810; 77 B.L.R.(4th) 7; 2010 ONSC 5810, refd to. [para. 119].

Hunt v. T & N plc et al., [1990] 2 S.C.R. 959; 117 N.R. 321; 74 D.L.R.(4th) 321, refd to. [para. 131].

Hunt v. Carey Canada Inc. - see Hunt v. T & N plc et al.

Bram Enterprises Ltd. et al. v. A.I. Enterprises Ltd. et al., [2014] 1 S.C.R. 177; 453 N.R. 273; 416 N.B.R.(2d) 1; 1079 A.P.R. 1; 2014 SCC 12, refd to. [para. 132].

Alleslev-Krofchak et al. v. Valcom Ltd. et al. (2010), 266 O.A.C. 356; 322 D.L.R.(4th) 193; 2010 ONCA 557, refd to. [para. 132].

Big Bear Hills Inc. et al. v. Bennett Jones Alberta Limited Liability Partnership et al. (2010), 507 A.R. 21; 2010 ABQB 764, refd to. [para. 132].

Miller (Ed) Sales and Rentals Ltd. v. Caterpillar Tractor Co. et al., [1994] 5 W.W.R. 473; 151 A.R. 1; 17 Alta. L.R.(3d) 251 (Q.B.), refd to. [para. 132].

Trimac Ltd. v. C-I-L Inc. (1989), 99 A.R. 30; 69 Alta. L.R.(2d) 113 (Q.B.), refd to. [para. 136].

Wilnap Properties Ltd. and Byrne v. Janes, Bearns, Bowden and Paradise (Town Council) (1986), 61 Nfld. & P.E.I.R. 22; 185 A.P.R. 22 (Nfld. T.D.), refd to. [para. 136].

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. 137].

F.H. v. McDougall, [2008] 3 S.C.R. 41; 380 N.R. 82; 260 B.C.A.C. 74; 439 W.A.C. 74; 2008 SCC 53, refd to. [para. 141].

R. v. Gagnon (1956), 115 C.C.C. 361 (S.C.C.), refd to. [para. 144].

Indutech Canada Ltd. v. Gibbs Pipe Distributors Ltd. et al. (2011), 508 A.R. 1; 2011 ABQB 38, refd to. [para. 148].

CC Petroleum Ltd. v. Allen, [2003] O.A.C. Uned. 384; 36 B.L.R.(3d) 244; 46 C.B.R.(4th) 221 (C.A.), refd to. [para. 161].

International Corona Resources Ltd. v. LAC Minerals Ltd., [1989] 2 S.C.R. 574; 101 N.R. 239; 36 O.A.C. 57, refd to. [para. 177].

Lysko v. Braley et al. (2006), 212 O.A.C. 159; 79 O.R.(3d) 721 (C.A.), refd to. [para. 179].

Frame v. Smith and Smith, [1987] 2 S.C.R. 99; 78 N.R. 40; 23 O.A.C. 84, refd to. [para. 180].

Syncrude Canada Ltd. et al. v. Hunter Engineering Co. and Allis-Chalmers Canada Ltd. et al., [1989] 1 S.C.R. 426; 92 N.R. 1; 57 D.L.R.(4th) 321, refd to. [para. 192].

Photo Production Ltd. v. Securicor Transport Ltd., [1980] A.C. 827 (H.L.), refd to. [para. 192].

First City Trust Co. v. Dobler et al. (1989), 94 A.R. 106; 65 Alta. L.R.(2d) 193; 1989 ABCA 28, supplementary reasons (1989), 97 A.R. 119; 66 Alta L.R.(2d) 314 (C.A.), leave to appeal refused (1989), 104 N.R. 318; 102 A.R. 240 (S.C.C.), refd to. [para. 192].

First City Trust Co. v. Triple Five Trust Corp. - see First City Trust Co. v. Dobler et al.

Freyberg v. Fletcher Challenge Oil and Gas Inc. et al. (2005), 363 A.R. 35; 343 W.A.C. 35; 2005 ABCA 46, refd to. [para. 194].

National Trust Co. v. Wong Aviation Ltd., [1969] S.C.R. 481, refd to. [para. 194].

Snell v. Farrell, [1990] 2 S.C.R. 311; 110 N.R. 200; 107 N.B.R.(2d) 94; 267 A.P.R. 94, refd to. [para. 194].

Naylor Group Inc. v. Ellis-Don Construction Ltd., [2001] 2 S.C.R. 943; 277 N.R. 1; 153 O.A.C. 341; 2001 SCC 58, refd to. [para. 215].

Westcan Bulk Transport Ltd. v. Stewart et al. (2005), 373 A.R. 236; 2005 ABQB 97, refd to. [para. 215].

Fidler v. Sun Life Assurance Co. of Canada, [2006] 2 S.C.R. 3; 350 N.R. 40; 227 B.C.A.C. 39; 374 W.A.C. 39; 2006 SCC 30, refd to. [para. 216].

Blackwater et al. v. Plint et al., [2005] 3 S.C.R. 3; 339 N.R. 355; 216 B.C.A.C. 24; 356 W.A.C. 24; 2005 SCC 58, refd to. [para. 216].

Nathu v. Imbrook Properties Ltd. (1992), 125 A.R. 34; 14 W.A.C. 34; 2 Alta. L.R.(3d) 48 (C.A.), refd to. [para. 217].

Polar Ice Express Inc. v. Arctic Glacier Inc. (2007), 434 A.R. 261; 2007 ABQB 717, affd. (2009), 446 A.R. 295; 442 W.A.C. 295; 2009 ABCA 20, refd to. [para. 217].

Cadbury Schweppes Inc. et al. v. FBI Foods Ltd. et al., [1999] 1 S.C.R. 142; 235 N.R. 30; 117 B.C.A.C. 161; 191 W.A.C. 161; 59 B.C.L.R.(3d) 1, refd to. [para. 220].

Claiborne Industries Ltd. et al. v. National Bank of Canada et al. (1989), 34 O.A.C. 241; 59 D.L.R.(4th) 533; 69 O.R.(2d) 65 (C.A.), refd to. [para. 251].

Tercon Contractors Ltd. v. British Columbia (Minister of Transportation and Highways), [2010] 1 S.C.R. 69; 397 N.R. 331; 281 B.C.A.C. 245; 457 W.A.C. 245; 2010 SCC 4, refd to. [para. 272].

Felty v. Ernst & Young LLP et al., [2013] B.C.T.C. Uned. 815; 2013 BCSC 815, refd to. [para. 273].

Swift v. Eleven Eleven Architecture Inc. et al. (2012), 551 A.R. 76; 2012 ABQB 764, refd to. [para. 273].

Bow Valley Husky (Bermuda) Ltd. et al. v. Saint John Shipbuilding Ltd. et al., [1997] 3 S.C.R. 1210; 221 N.R. 1; 158 Nfld. & P.E.I.R. 269; 490 A.P.R. 269; 153 D.L.R.(4th) 385, refd to. [para. 274].

Collins (J.G.) Insurance Agencies Ltd. v. Elsley Estate, [1978] 2 S.C.R. 916; 20 N.R. 1, dist. [para. 276].

Kosmopoulos et al. v. Constitution Insurance Co. of Canada et al., [1987] 1 S.C.R. 2; 74 N.R. 360; 21 O.A.C. 4; 34 D.L.R.(4th) 208, refd to. [para. 279].

Elbow River Marketing Limited Partnership v. Canada Clean Fuels Inc. et al. (2012), 539 A.R. 68; 561 W.A.C. 68; 2012 ABCA 328, refd to. [para. 280].

Tirecraft Group Inc. v. High Park Holdings ULC et al. (2010), 511 A.R. 17; 2010 ABQB 653, refd to. [para. 281].

Botiuk v. Bardyn et al., [1995] 3 S.C.R. 3; 186 N.R. 1; 85 O.A.C. 81; 126 D.L.R.(4th) 609, refd to. [para. 293].

Canadian Natural Resources Ltd. v. Arcelormittal Tubular Products Roman S.A., et al. (2013), 556 A.R. 188; 584 W.A.C. 188; 2013 ABCA 279, refd to. [para. 297].

Arcelormittal Tubular Products Roman S.A. v. Fluor Canada Ltd. - see Canadian Natural Resources Ltd. v. Arcelormittal Tubular Products Roman S.A., et al.

Pupiec v. Dereniowski, [1998] O.A.C. Uned. 273; 39 O.R.(3d) 150; 1998 CarswellOnt 2005 (C.A.), refd to. [para. 299].

Howalta Electrical Services Inc. v. CDI Career Development Institutes Ltd. et al. (2011), 515 A.R. 163; 532 W.A.C. 163; 2011 ABCA 234, appld. [para. 300].

Authors and Works Noticed:

Fridman, Gerald Henry Louis, The Law of Torts in Canada (1990), vol. 2, pp. 265 to 266 [para. 131].

Klar, Lewis N., Tort Law (5th Ed. 2012), pp. 571 to 572 [para. 297]; 578 [para. 308].

McGuinness, Kevin P., Canadian Business Corporations Law (2nd Ed. 2007), p. 1044 [para. 119].

Counsel:

Robert Hawkes, Q.C., and Stacy Petriuk (Jensen Shawa Solomon Duguid Hawkes LLP), for the plaintiff;

Bruce N. Bothwell (Siewert Bothwell), for the defendants, Robert Brown and 1133098 Alberta Ltd.;

Christopher E. Forgues, for the defendant, Mark Hartwell;

Carlos Claveria, self-represented;

Terrence Matthews, self-represented and for Real Time Measurements Inc.;

Chris Holt, self-represented and for Petroniks Systems Inc.

These actions were heard on various dates from October 8, 2013, up to and including January 31, 2014, by Ross, J., of the Alberta Court of Queen's Bench, Judicial District of Red Deer, who delivered the following reasons for judgment on August 25, 2014.