Tangerine Financial Products Limited Partnership et al. v. Reeves Family Trust et al., (2013) 339 B.C.A.C. 223 (CA)

• Judge: Tysoe, Bennett and Garson, JJ.A.
• Court: Court of Appeal (British Columbia)
• Case Date: May 01, 2013
• Jurisdiction: British Columbia
• Citations: (2013), 339 B.C.A.C. 223 (CA);2013 BCCA 283

Tangerine Financial v. Reeves Family Trust (2013), 339 B.C.A.C. 223 (CA);

    578 W.A.C. 223

MLB headnote and full text

Temp. Cite: [2013] B.C.A.C. TBEd. JN.040

Tangerine Financial Products Limited Partnership, TFP Management Ltd. in its capacity as General Partner of Tangerine Financial Products Limited Partnership, Tangerine Financial Products Corp. (respondents/petitioners) v. RSP Generation Limited Partnership and RSP Generation Corp. in its capacity as General Partner of RSP Generation Limited Partnership and Ernst & Young Inc., Receiver of Tangerine Financial Products Limited Partnership (respondents/applicants) and Grant Sutherland and Vivre Financial Products Corp. (appellants/respondent/application respondent)

(CA040603)

Tangerine Financial Products Limited Partnership, TFP Management Ltd. in its capacity as General Partner of Tangerine Financial Products Limited Partnership, Tangerine Financial Products Corp. (respondents/petitioners) v. RSP Generation Limited Partnership and RSP Generation Corp. in its capacity as General Partner of RSP Generation Limited Partnership and Ernst & Young Inc., Receiver of Tangerine Financial Products Limited Partnership (respondents/applicants) and Geoffrey Briant (appellant/respondent)

(CA40604; 2013 BCCA 283)

Indexed As: Tangerine Financial Products Limited Partnership et al. v. Reeves Family Trust et al.

British Columbia Court of Appeal

Tysoe, Bennett and Garson, JJ.A.

June 17, 2013.

Summary:

Tangerine FP Investments Ltd. (Tangerine FP) executed an "Assignment of Business Know-How and Consent to Use of Name Agreement". The agreement assigned to the limited partnership, Tangerine Financial Products Limited Partnership (Tangerine LP), the right, title and interest in a financial product known as the "Open Up RRSP Catch-Up Loan & Investment Strategy" (the Strategy), which included the business model and plan for the marketing, sales and distribution in Canada of the Strategy (the Business Know-How). The Strategy involved the financing of unused RRSP contributions of Canadian investors through the Business Know-How marketing plan and model. In September 2011, Tangerine LP obtained an order for the winding- up and dissolution of the company, the appointment of a liquidator and receiver, and an order for the sale of its assets to a third party (Receivership Order). Under the Receivership Order, all persons were required to provide the receiver access to records and information of any kind relating to the business of Tangerine LP. Tangerine LP's assets were ordered sold to a third party, subject to a determination of a dispute between the parties as to the ownership of two of its assets. The assets in dispute related to the Business Know-How (i.e., the marketing, sales and distribution of the Strategy). They could be summarized as the right of Tangerine LP to: (i) develop the Strategy outside of Canada (the Worldwide Rights); and (ii) the website property.

The British Columbia Supreme Court, in a decision reported at [2012] B.C.T.C. Uned. 894, was satisfied that the issue of the contractual interpretation of the Agreement could be determined by summary trial pursuant to Supreme Court Civil Rule 9-7 and found that it could determine the objective intention of the parties from the Agreement alone. The court concluded that the assets of Tangerine LP included: (i) the worldwide rights to the concept and processes of the Strategy; and (ii) the website with the URL "tangerinefp.com" that was used by Tangerine LP in relation to its business, along with the website property. As such, both assets were subject to the Receivership Order, under which the receiver was authorized to sell them. Tangerine FP appealed.

The British Columbia Court of Appeal, in a decision reported at 331 B.C.A.C. 246; 565 W.A.C. 246, dismissed the appeal.

The purchaser of the assets came to believe that Briant and Sutherland (from Tangerine LP) were marketing a product through Vivre Financial Products Corp. that was virtually the same as the product the purchaser was marketing pursuant to the Strategy. The purchaser, the Receiver and the Limited Partnership each applied for an order to prevent them from doing so. A chambers judge granted an order restraining Briant, Sutherland and Vivre (the appellants) from marketing or promoting the Strategy. The chambers judge also ordered the appellants, Briant and Sutherland, to pay special costs. The appellants each appealed.

The British Columbia Court of Appeal dismissed the appeals.

Bankruptcy - Topic 6749

Practice - Jurisdiction - To grant an injunction - See paragraphs 39 to 51.

Injunctions - Topic 1441

Permanent injunctions - When granted - General - See paragraphs 39 to 51.

Injunctions - Topic 1568

Permanent injunctions - Practice - Costs - See paragraphs 52 to 55.

Injunctions - Topic 1604.5

Interlocutory or interim injunctions - Second application for interlocutory or interim injunction - See paragraphs 52 to 55.

Practice - Topic 7454

Costs - Solicitor and client costs - Entitlement to - Improper, irresponsible or unconscionable conduct - See paragraphs 52 to 55.

Practice - Topic 7470.1

Costs - Solicitor and client costs - Entitlement to solicitor and client costs - Deliberate breach of agreement - See paragraphs 52 to 55.

Cases Noticed:

Amazon.com Inc. v. Canada (Attorney General), [2012] 2 F.C.R. 459; 423 N.R. 337; 2011 FCA 328, refd to. [para. 15].

R. v. Wilson, [1983] 2 S.C.R. 594; 51 N.R. 321; 26 Man.R.(2d) 194, refd to. [para. 39].

Danyluk v. Ainsworth Technologies Inc. et al., [2001] 2 S.C.R. 460; 272 N.R. 1; 149 O.A.C. 1; 2001 SCC 44, refd to. [para. 39].

Allnorth Consultants Ltd. v. Tercon Construction Ltd. et al. (2010), 297 B.C.A.C. 254; 504 W.A.C. 254; 79 B.L.R.(4th) 238; 2010 BCCA 570, refd to. [para. 42].

Pepper's Produce Ltd. v. Medallion Realty Ltd. et al. (2012), 324 B.C.A.C. 132; 551 W.A.C. 132; 34 B.C.L.R.(5th) 226; 2012 BCCA 247, refd to. [para. 42].

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. 46].

Icahn Partners LP et al. v. Lions Gate Entertainment Corp. et al. (2011), 306 B.C.A.C. 173; 516 W.A.C. 173; 2011 BCCA 228, refd to. [para. 46].

Slocan Forest Products Ltd. v. Trapper Enterprises Ltd. et al., [2011] B.C.A.C. Uned. 112; 2011 BCCA 351, refd to. [para. 47].

Garcia v. Crestbrook Forest Industries Ltd. (1994), 45 B.C.A.C. 222; 72 W.A.C. 222; 119 D.L.R.(4th) 740; 9 B.C.L.R.(3d) 242 (C.A.), refd to. [para. 52].

Chancery Estate Holdings Corp. et al. v. Sahara Real Estate Investment Inc. et al. (2013), 335 B.C.A.C. 225; 573 W.A.C. 225; 2013 BCCA 145, refd to. [para. 53].

North Vancouver (District) v. Sorrenti (2004), 198 B.C.A.C. 282; 324 W.A.C. 282; 242 D.L.R.(4th) 152; 2004 BCCA 316, refd to. [para. 53].

Grewal v. Nijjer et al., [2011] B.C.A.C. Uned. 153; 2011 BCCA 505, refd to. [para. 53].

Counsel:

P.A. Hildebrand, for the appellants (CA040603), Grant Sutherland and Vivre Financial Products Corp.;

G. Briant, appeared on his own behalf (CA040604);

J.J.L. Hunter, Q.C., and C.E. Hunter, for the respondents, RSP Generation Limited Partnership and RSP Generation Corp.;

W.E.J. Skelly, for the respondent, Ernst & Young Inc., Receiver;

R.A. Millar, for the respondents, Tangerine Financial Products Limited Partnership, TFP Management Ltd. and Tangerine Financial Products Corp.

These appeals were heard at Vancouver, B.C., on May 1, 2013, by Tysoe, Bennett and Garson, JJ.A., of the British Columbia Court of Appeal. The following reasons for judgment of the Court of Appeal were delivered by Tysoe, J.A., on June 17, 2013.