Date: 20050412
Docket: A-349-04
Citation: 2005 FCA 129
CORAM: DESJARDINS J.A.
PELLETIER J.A.
BETWEEN:
MICHAEL J. CULHANE
Appellant
and
ATP AERO TRAINING PRODUCTS INC.,
REILLY JAMES BURKE
Respondents
Heard at Vancouver, British Columbia, on April 11, 2005.
Judgment delivered from the Bench at Vancouver, British Columbia, on April 11, 2005.
REASONS FOR JUDGMENT OF THE COURT BY: ROTHSTEIN J.A.
Date: 20050412
Docket: A-349-04
Citation: 2005 FCA 129
CORAM: DESJARDINS J.A.
ROTHSTEIN J.A.
PELLETIER J.A.
BETWEEN:
MICHAEL J. CULHANE
Appellant
and
ATP AERO TRAINING PRODUCTS INC.,
REILLY JAMES BURKE
Respondents
REASONS FOR JUDGMENT OF THE COURT
(Delivered from the Bench at Vancouver, British Columbia, on April 11, 2005)
ROTHSTEIN J.A.
[1] This is an appeal of a decision of the Federal Court which dismissed the Appellant's claim for damages against the Respondents. The Appellant's action was brought pursuant to paragraphs 50(1)(c) and 36(1)(a) of the Competition Act. Paragraph 50(1)(c) deals with predatory pricing. Paragraph 36(1)(a) provides a remedy in damages resulting from conduct contrary to any provision of Part VI of the Competition Act which includes paragraph 50(1)(c).
[2] It is not necessary to deal with the Trial judge's analysis of paragraph 50(1)(c) and we make no comments with respect to it. The Trial judge was not satisfied that the Respondents' conduct actually caused damage to the Appellant. Rather he found the evidence suggested various causal factors at play which could explain the loss in the Appellant's sales aside from the Respondent's conduct. Proof of loss or damage resulting from conduct contrary to paragraph 50(1)(c) by the Respondents was an essential element of the Appellant's case. The Trial judge was not satisfied that element had been made out. We cannot say that he made any palpable or overriding error in coming to that conclusion.
[3] As a result we will dismiss the appeal with costs. In view of this result it is not necessary to deal with the cross-appeal and it will also be dismissed but without costs.
"Marshall Rothstein"
J.A.
FEDERAL COURT OF APPEAL
NAMES OF COUNSEL AND SOLICITORS OF RECORD
(Appeal from an Order of the Federal Court dated March 24, 2004, Docket No. T-1491-00)
STYLE OF CAUSE: Michael J. Culhane v. ATP Aero Training Products Inc. et al.
PLACE OF HEARING: Vancouver, British Columbia
DATE OF HEARING: April 11, 2005
OF THE COURT: DESJARDINS J.A.
ROTHSTEIN J.A.
PELLETIER J.A.
Michael J. Culhane |
THE APPELLANT on his own behalf
|
Gene H. Fraser, Grant Morrison and Shawn C.D. Neylan |
FOR THE RESPONDENTS
|
Michael J. Culhane Barrister & Solicitor Richmond, British Columbia
|
THE APPELLANT on his own behalf
|
Burke Tomchenko & Fraser Barristers & Solicitors Port Moody, British Columbia
and
Stikeman Elliot LLP Vancouver, British Columbia |
FOR THE RESPONDENTS
|