Culhane v. ATP Aero Training Products Inc., 2004 FC 535

Date: 20040406

Docket: T-1491-00

Citation: 2004 FC 535

BETWEEN:

                                                         MICHAEL J. CULHANE

                                                                                                                                               Plaintiff

                                                                         - and -

                                         ATP AERO TRAINING PRODUCTS INC.,

REILLY JAMES BURKE

                                                                                                                                         Defendants

                                                        REASONS FOR ORDER

O'KEEFE J.

[1]                This is a claim (action) by the plaintiff against the defendants for:

1.          A declaration that the defendants' free on-line Canadian aviation exam guides on the internet are contrary to paragraph 50(1)(c) of the Competition Act, R.S.C. 1985, c. C-34;

2.          A permanent, prohibitory injunction restraining the defendants and any entity owned, controlled or operated by the defendant, Reilly James Burke, from offering in Canada on the internet, or by any other means of publication, any Canadian aviation exams, or similar products, free of charge or at an unreasonably low price;

3.          Damages pursuant to paragraph 36(1)(a) of the Competition Act, supra as a consequence of the defendants' conduct that is contrary to paragraph 50(1)(c) of the Competition Act, supra;

4.          Damages, including punitive and exemplary damages, for unlawful interference with the plaintiff's economic interests;

5.          Costs;

6.          Interest pursuant to the Court Order Interest Act; and

7.          Such further and other relief as this Honourable Court may deem just.

Factual Background

[2]                The plaintiff, Michael Culhane, is an aviation author and publisher who carries on business as a sole proprietor under the name "Accelerated Aviation Training". The plaintiff is the author of a group of aviation publications that consist of practice exam guides and background reference sources (training manuals), which are used by Canadian pilots in preparing for various regulatory examinations. These materials were published in 1989 and have been periodically revised. The publications are copyrighted and are sold by the plaintiff to various aviation product suppliers, retail bookstores, flying schools, flying clubs, and individuals across Canada and worldwide. The publications are also available for sale on the plaintiff's website. The plaintiff has also published, and offers for sale, Canadian aviation exams in an on-line, electronic format from his website.

[3]                According to the plaintiff, the publications that are in issue are the private pilot and recreational pilot written test book, private pilot and recreational pilot ground school course, commercial pilot written test book, commercial pilot ground school course and AME Regulations written test book.

[4]                The purpose of the examination guides and flight courses was to train pilots and prepare them for the Transport Canada written examinations and a flight examination with a qualified flight examiner. After passing the exams, a student may apply for a pilot's licence.

[5]                The defendant, Reilly James Burke, is the sole principal, director, president/secretary and controlling mind of the defendant, ATP Aero Training Products Inc. ("ATP"), a British Columbia corporation. Other corporate and business names have been used by the defendants as publishers and distributors. The defendants are the authors, creators, publishers and distributors of a line of pilot exam preparation guides. These guides were initially published in or about 1976 and have been periodically updated and revised. Additionally, ATP is a publisher and distributor of aviation books. It also provides on-line Canadian aviation exam guides which are distributed, sold and/or given away to training establishments and to individual pilot trainees across Canada and worldwide.    The defendants have claimed copyright and trademark protection for their on-line aviation exam guides that are the subject of this action.

[6]                Up until approximately May 1999, the defendant, ATP purchased the plaintiff's publications from him and resold or distributed them to others.

[7]                The parties had different viewpoints with respect to the terms of payment for the orders obtained from the plaintiff, and also with respect to the plaintiff's return policy.

[8]                In 1977, Mr. Burke started to write and publish his own exam guides. The guides were sold for a price and this continued until 1997, although in the early 1990s, some guides were given away when an order for other goods was placed. In 1997, ATP started offering free on-line exam guides over the internet. In order to access these exams, a website visitor had to provide their e-mail address.

[9]                Use of the free on-line exams required the user to provide an e-mail address. The defendants then could send advertising and promotional material to the holders of these e-mail addresses who were potential customers.

[10]            The defendants' expert, Aaron Drake, stated that obtaining e-mail addresses is a very valuable and effective way for internet businesses to market their products and that visitors to web sites do not readily provide their e-mail addresses unless they are offered something of value.

[11]            ATP was one of the plaintiff's top four customers as a wholesale operation.

[12]            The plaintiff claims that ATP's free on-line examinations were the cause of the reduction of sales of his allegedly competing publications.

[13]            Exhibit P-19 consists of pages from the plaintiff's web site and it shows how a customer can take the plaintiff's on-line exams. It also shows that the cost of his exams are $19.95 or $24.95, plus taxes. There is also an additional cost for a required textbook. The customer has seven days to write the test, and the exam results are provided to the writer within 48 hours.

[14]            The defendants' on-line exams were graded automatically and a response was sent to the student instantly, with suggestions about other publications that the student could consult to obtain additional knowledge.

Issues

[15]            1.         Did the defendants' conduct amount to predatory pricing?

2.          Did the defendants unlawfully interfere with the plaintiff's economic interests?

Analysis and Decision

[16]            A civil action based on predatory pricing is made possible by the combination of subsections 36(1) and 50(1) of the Competition Act, supra. These subsections read as follows:

[17]            In Boehringer Ingelheim (Canada) Inc. v. Bristol-Myers Squibb Canada Inc. (1988), 83 C.P.R. (3d) 51 (Ont. Ct. (Gen. Div.)), Dambrot J. stated at paragraphs 10 and 11 as follows:

. . .

By virtue of s. 50(1)(c) and s. 36, a plaintiff making an allegation of predatory pricing in a civil suit must prove five essential elements, the absence of any one of which disentitles the plaintiff to success. The five elements of predatory pricing in a civil context are as follows:

(a) that the defendant is engaged in a business;

(b) that the defendant is engaged in a policy of selling products;

(c) that pursuant to the policy, the products are being sold at prices which are unreasonably low;

(d) that the policy has the effect or tendency of substantially lessening competition or eliminating a competitor; and

(e) that the defendant's unreasonably low pricing causes loss or damage to the plaintiff.

The essence of predatory pricing is well-described in the 1992 Predatory Pricing Enforcement Guidelines issued by the Director of Investigation and Research under the Competition Act, as follows:

The concept of predatory pricing is best illustrated by a dominant firm in a market setting its prices so low, over a long enough period of time, that it may drive one or more of its competitors from the market, or deter other companies [page57] from entering the market, or both. Following the exit of the competitors from the market, or upon successfully deterring new entry, the predator is expected to raise prices significantly in an attempt, in the now less-competitive market it had created, to recover the costs incurred (i.e. losses or foregone profits) during the period of predation.

[18]            In Regina v. Hoffmann-LaRoche Limited (1980), 28 O.R. (2d) 164 (H.C.J.), aff'd (1981), 33 O.R. (2d) 694 (C.A.), Linden J. stated at pages 192 to 193:

This section is aimed at combatting predatory pricing. The classic example that is given to demonstrate the evil of predatory pricing is this: One company, the predator, decides to sell its product at a very low price in order to put his competitor out of business, because they cannot or will not sell at such a low price. If the competitor goes out of business, the predator may then increase his prices, make back any loss as a result of the predatory campaign and continue to reap the benefits of greater profits, because his former competitor has now departed from the scene.

Although tactics such as this may make good business sense in certain circumstances, Parliament has decided to forbid these practices because the public interest demands a system in which fair competition thrives. As was said by Chief Justice Fitzpatrick, in Weidman et al. v. Shragge (1912), 46 S.C.R. 1 at p. 3, 20 C.C.C. 117 at p. 121, 2 D.L.R. 734 at p. 737:

....an agreement which might in itself be perfectly lawful as made by the parties in the exercise of the freedom to contract or to abstain from contracting, which the English law has for many years recognized in every individual, is unlawful if the object of the parties is to unduly prevent or lessen competition ... It is not necessary ... that the agreement should be in itself fraudulent or otherwise illegal ... the mischief aimed at is the undue and abusive lessening of competition which operates to the oppression of individuals or is injurious to the public generally.

Although the Weidman case dealt with a combination of junk dealers to keep the prices they paid for junk down, the same philosophy as espoused by Chief Justice Fitzpatrick underlies the entire Combines Investigation Act, that is, to foster fair competition in the marketplace to the benefit of Canadian consumers and to prevent agreements or activities that interfere with that fair competition, even though these agreements or activities may make sound business sense to those involved in them.

I would note that Hoffman-LaRoche, supra involved a prosecution under paragraph 34(1)(c) of the Combines Investigation Act, R.S.C. 1970, c. C-23 (what is now paragraph 50(1)(c) of the Competition Act, supra) and not a civil case.

[19]            In a civil case, the plaintiff must prove his case on the balance of probabilities.

[20]            The plaintiff called himself as a witness and the defendants called as witnesses Reilly James Burke (the personally-named defendant) and Aaron Drake, who was an expert witness.

[21]            Issue 1

Did the defendants' conduct amount to predatory pricing?

I will now apply each of the factors set out in Boehringer Ingelheim, supra, to the factual situation of this case.

[22]            (a)        That the defendants are engaged in a business

There is no dispute in this case that the corporate defendant is engaged in the business of selling aviation products. The defendant Reilly James Burke is the "sole principal, director, president/secretary and controlling mind of the defendant ATP" (statement of claim, paragraph 7, which was admitted by the defendants).

[23]            (b)        That the defendants are engaged in a policy of selling products

The defendants submitted that they were not engaged in a policy of selling on-line practice exams. The defendants, up until approximately 1998, were one of the largest sellers of practice aviation exam guides. In or about 1997, ATP began to make its practice exams available free on the internet. ATP also offers a free on-line correcting service for the exams. The defendant states that it is not selling the exam guides but are giving them away free. They compare the free exams to the free newspapers that are available on the internet. The defendants also state that the provision of the free exam guides is a marketing tool to sell its other products. Also, the defendants noted that Mr. Burke testified that there was no intention or plan to sell the exam guides for a fee in the future. Consequently, the defendants submitted that this case is distinguishable from Hoffman-LaRoche, supra where the defendant gave away valium for only a one year period.

[24]            Since ATP traditionally sold the exam guides for a price and continue to update the exam guides on-line to make them current, I am of the opinion that by giving the practice exams away for free, the defendants are engaged in a policy of selling products.

[25]            (c)        That pursuant to the policy, the products are being sold at prices which are unreasonably low

ATP originally sold the exam guides for a profit. For example, in 1988, ATP sold the private pilot exam guide, the commercial pilot exam guide and the exam guide for IFRS ratings for $7.95 each. The defendant, Mr. Burke, indicated that it takes some time for him to keep the on-line practice exams up-to-date. The plaintiff sells his practice exams for approximately the same price as did ATP, and the plaintiff also has a web site where his practice exams are offered for sale.

[26]            In Hoffman-LaRoche, supra, Linden J. stated at page 194 as follows:

The reasonableness or unreasonableness of a price is an objective matter, not a subjective one. What is in the seller's mind is not important in deciding whether the price is unreasonable. In other words, it need not be proved that the accused actually meant to sell at an unreasonably low price as long as he did so in fact. A price may be found to be unreasonably low even though the seller honestly believed it was not. The subjective state of mind of the seller is vital, however, in determining the mens rea issue, which I shall discuss later.

And at page 200:

In assessing whether a seller has sold for unreasonably low prices, the Courts must examine all of the circumstances involved in the case. Reasonableness has a flexible meaning, depending on all of the facts. Parliament chose to enact that word in order to give the Courts some latitude in making their decisions about the legality or illegality of the prices charged. There is nothing rigid about the concept of reasonableness. Business decisions should not be condemned, unless the Courts find that the price charged is unreasonable in all the circumstances.

[27]            Linden J. then proceeded to list a number of factors to be considered by the Court in deciding whether a price is unreasonable. The factors and an explanation of them is stated at pages 200 to 201:

The factors to be considered by the Courts in deciding whether a price is unreasonable are several. First, the actual difference between the production cost or accounting cost and the sale price is important. If an article is sold for more than cost, it can never be held to be unreasonable. If an object, however, is sold for less than cost, this may or may not be held to be unreasonable. If it sold for 95% of its cost, for example, this is less likely to be held unreasonable than if it is sold for 50% or 5% of its cost. In other words, the greater the reduction below cost price, the more likely it is that the price is an unreasonable one.

Second, the length of time during which sales at the questionable prices take place is significant. If articles are sold below cost for a day or a week, this is less likely to be unreasonable than if it is done for a month, six months or a year. For example, an introductory, promotional sale of goods for a few days or even weeks is not prevented, for that is eminently reasonable to get potential customers to try one's product. The longer the deal lasts, however, the more suspect it would become. At some point, a Court would hold that what had been a reasonable price at first had become an unreasonable one.

Third, the circumstances of the sales must be taken into account. If a seller lowers his price to counteract a decrease in the price of his competitor, this is different than reducing the price initially. In other words, defensive price-cutting is viewed differently than offensive price-cutting. A level of prices may be reasonable in the former situation that may not be reasonable in the latter. Moreover, one need not wait for the competitor to attack first -- if one has information that an assault from a competitor is being planned, one may strike pre-emptively. In R. v. Allied Chemical Canada Ltd. et al. (1975), 29 C.C.C. (2d) 460 at p. 490, 69 D.L.R. (3d) 506 at p. 536, 24 C.P.R. (2d) 221 at p. 251, Mr. Justice Ruttan stated: "One is not required to wait until competitors get well established and then seek to meet them and their demands." Consequently, whereas a price reduction of 50% by itself might appear unreasonable in certain circumstances, it might not be if a competitor had reduced its price by 40% just prior to that time or if he had indicated that he would do so in the near future. Competition is a battle after all, and competitors must be allowed to engage in that battle, as long as they do so within reason.

A fourth factor to consider is whether any external or long-term economic benefits will accrue to the seller by reducing its prices below cost. An example is, a manufacturer may wish to keep its business alive, its customers supplied and its employees working during a difficult economic period, even though it cannot do so profitably. It may consider selling its products at less than cost for a time in the hope that they will recoup those losses when conditions improve. Another example may be that, for prestige reasons, a supplier may wish to be represented in a particular market, such as well-regarded retail outlets. Or, as here, it may be thought to be economically advantageous in the long run to have one's drugs used in the hospital market.

[28]            The application of the facts of this case to the factors set out by Linden J. in Hoffman-LaRoche, supra, are as follows.

[29]            The actual difference between the production cost or accounting cost and the sale price

There is no doubt that there are some costs associated with preparing and placing the exams at an on-line site even if Mr. Burke does the work himself. There is also the cost, albeit a declining cost, of maintaining the exams on-line. As well, there are costs incurred by way of Mr. Burke's work to up-date the exams in order to keep them current. As well, the fact that Mr. Burke sold the exams for $7.95 each in 1988 indicates that they are of some value. As Linden J. stated in Hoffman-LaRoche, supra:

. . . the greater the reduction below cost price the more likely it is that the price is an unreasonable one.

In the present case, the exam guides are given away for free. This factor therefore, suggests an unreasonably low price.

[30]            The length of time during which sales at the questionable prices take place is significant

The defendants intend to offer the exam guides free for an indefinite period of

time and do not intend to begin charging for them in the future. The Courts have stated that the longer the price decrease lasts, the more suspect it would become.

[31]            The circumstances of the sale must be taken into account

By way of example, for a seller to lower its price to counteract a price decrease by its competitor is viewed differently than reducing the price initially, i.e. defensive versus offensive price-cutting. A drop in selling price in a defensive price cutting situation may be reasonable, but the same price cut in an offensive price cutting situation may be unreasonable. In this case, ATP's price cutting was an offensive price cutting situation, since it was not in reaction to any price decrease implemented by the plaintiff or anyone else in the marketplace.

[32]            Whether any external or long-term economic benefits will accrue to the seller by reducing its prices below costs

The defendants submit that since an objective standard of reasonableness is used to assess a seller's activities, ATP need only demonstrate that it can reasonably expect long term economic benefits from providing on-line examinations for free, it need not provide proof that it has already benefited economically. The economic benefit that the defendants claim is that the free on-line exams will aid them in selling more of their other products. The evidence of Mr. Burke is to the effect that he does not know what portion of his sales result from the provision of his free on-line exam guides to customers. It seems to me that in order to assess whether long term economic benefits would accrue to the defendants as a result of the free exam guides, it would be very useful to the Court to know what economic benefits have already accrued since 1997 or 1998. There is no evidence that the free give-aways have increased the sales of the defendants' other products now or that it will likely occur in the future.

[33]            Based on the above considerations, I have come to the conclusion that the defendants selling their free on-line exam guides is selling at an unreasonably low price for the purpose of the test set out in Hoffman-LaRoche, supra.

[34]            (d)        That the policy has the effect or tendency of substantially lessening competition or eliminating a competitor

Linden J. discussed this factor in Hoffman-LaRoche, supra at page 205:

Having decided that the accused has engaged in a policy of selling articles at unreasonably low prices does not lead to a conviction, unless this had the effect or tendency of substantially lessening competition or eliminating a competitor or that it was designed to have such an effect. There is, therefore, an additional element of the offence that must be proven beyond a reasonable doubt before a conviction may be registered.

The additional element consists of two possible alternatives: one dealing with the effect of the policy and another dealing with a mens rea element. Either will suffice; both are not required. Thus, if engaging in a policy of selling at unreasonably low prices has the effect or tendency of substantially lessening competition or of eliminating a competitor, the offence is complete. So, too, even if there is no such actual effect or tendency, but the conduct was designed to have the effect or tendency of substantially lessening competition or of eliminating a competitor, the offence is committed. Thus, to engage in a policy of selling at unreasonably low prices with the intention that this will substantially lessen competition or eliminate a competitor is criminal, even though the tactic is entirely ineffective in achieving its aim. This state of mind, however, must be present at the same time the accused is performing the offending conduct. If the conduct takes place without the required state of mind, this is insufficient. So too, if the state of mind is present but the offending conduct is not perpetrated, this will not suffice. There must be proof that the guilty acts were done while the accused had a guilty mind.

[35]            As noted above, the plaintiff must show either that the defendants engaged in a policy of selling at unreasonably low prices that have the effect or tendency of substantially lessening competition or eliminating a competitor. If there is no such actual effect or tendency, the plaintiff must establish that the defendants' conduct was designed to have the effect or tendency of substantially lessening competition or of eliminating a competitor.

[36]            I am not satisfied from the evidence before me that the defendants had a design to substantially lessen competition or to eliminate a competitor, that is, the plaintiff. Nor am I satisfied that the defendants' conduct had the effect or tendency to substantially lessen competition. Mr. Burke testified that he did not intend to harm the plaintiff's business. It may well be that the manner of doing business will change as time progresses, but that does not mean that the defendants are necessarily breaching the Competition Act, supra. I have reviewed the September 25, 1998 fax (exhibit P-14) sent out by the defendant, Mr. Burke, concerning the 1999 exam guide editions and the return of the unsold 1998 editions, but I cannot accept that this helps the plaintiff establish that the defendants' conduct was designed to have the effect or tendency of eliminating him from the market of practice exams. I reach the same conclusion with respect to the other evidence raised by the plaintiff in his closing arguments. I would also note that the plaintiff testified that he "made the hunch or the judgment that they are not buying my products, and I saw my overall sales were declining in that period and I made the judgment that it was a consequence of that announcement" (September 25, 1998 fax). The defendant, Mr. Burke also testified that he was giving away the exam guides as a marketing tool to increase the sales of his other products. Whether or not that occurred or would occur in the future is not the issue under this factor.

[37]            (e)        That the defendants' unreasonably low pricing causes loss or damage to the plaintiff

The plaintiff has presented evidence to show that his sales of his competing exam guides have decreased in the relevant time period but that is not the relevant issue under this factor. The issue is whether the defendants' unreasonably low price of their exam guides actually caused the loss or drop in sales to the plaintiff. The plaintiff testified that he believed his loss of sales to be attributable to the defendants giving away free its exam guides. The defendant, Mr. Burke testified that the aviation business has been in serious trouble for several years and that a number of airlines went out of business in Canada in the last eight years. Mr. Burke also testified that there has been a tendency in the past five years for aviation training schools to put their own training material together rather than to purchase these publications. The evidence also establishes that American test books are being used by flight schools in Canada. Mr. Burke stated that with the job loss for commercial pilots, these pilots train to become instructors. This is supported by Mr. Culhane's sales figures as there has been a 32% increase in the sale of instructor manuals in recent years. This evidence suggests various causal factors at play that could explain fluctuations in the plaintiff's sales, aside from the defendants' conduct.

[38]            The plaintiff, on cross-examination, when being questioned about his sales relative to the number of licences issued, stated at pages 299 to 300 of the transcript:

Q.             Okay, but you would agree with me, though, that the percentage figure that you give for 2002 could relate to events not only in that year but in the previous years as well.

A.             In terms of my sales?

Q.             Yes.

A.             Or in terms of my sales declining, you're saying that - -

Q.             Sales relative to licences.

A.             And you're saying my sales relative to licences could relate, in the sense that they're low, to some other event in the year previous?

Q.             To numerous events, possibly numerous different events in previous years, not just the events in 2002.

A.             It could be a factor, certainly.

[39]            As earlier noted, ATP ceased to sell the plaintiff's publications in or around May 1999 with the exception of an order placed in 2000 which was not filled due to a difference over terms. The defendants state this could also be a cause of any decline in the plaintiff's sales.

[40]            As is obvious from the above discussion, there are a number of factors put forward for the drop in sales experienced by the plaintiff. I cannot ascertain from the evidence that the defendants' unreasonably low pricing caused loss or damage to the plaintiff.

[41]            In conclusion on this issue, I am not satisfied that the plaintiff has, on the balance of probabilities, established a breach of paragraph 50(1)(c) of the Competition Act, supra. Therefore, the plaintiff's action based on predatory pricing must fail.

[42]            Issue 2

Did the defendants unlawfully interfere with the plaintiff's economic interests?

The plaintiff contends that the actions of the defendants constitute unlawful interference with his economic interests. In Whistler Cable Television Ltd. v. Ipec Canada Inc. (1992), 75 B.C.L.R. (2d) 48 (S.C.), Braidwood J. set out at page 53, the four ingredients of this tort (adopting the test of Henry J. in Barrets & Baird (Wholesale) v. Institution of Professional Civil Servants, [1987] 1 F.T.L.R. 121). The four ingredients that must be established are:

1.          interference with the plaintiff's trade or business;

2.          unlawful means;

3.          intent to injure the plaintiff; and

4.          actual injury.

[43]            Interference with the plaintiff's trade or business

The plaintiff listed the following as acts interfering with the plaintiff's business - the giving away of the free internet on-line exams, the sending out of the September 1998 fax regarding returns, the late payment of invoices and the abuse of the plaintiff's rebate and return policies. I have reviewed the testimony surrounding these acts and I am of the opinion that these acts do not amount to an interference with the plaintiff's trade or business. There were explanations given for each of these acts that satisfy me that the defendants did not interfere with the plaintiff's trade or business.

[44]            Unlawful means

The plaintiff has relied on a breach of paragraph 50(1)(c) of the Competition Act, supra to establish this requirement of the tort and since he has failed to establish a breach of paragraph 50(1)(c) of the Act, he has failed to establish this requirement of the tort.

[45]            Intent to injure the plaintiff

I have already concluded that the defendants did not intend to injure the plaintiff by giving away free on-line examinations. The defendants' expert witness, Mr. Drake, was of the opinion that free examinations on the internet are offered with a view to making a profit in the future from the sale of other goods such as test books or course material. It is not necessarily the case that goods are offered for free to injure competitors, and I find that in this case, a distinct intent did not exist on the part of the defendants.

[46]            Actual Injury

Earlier in my reasons I was unable to ascertain from the evidence that the unreasonably low pricing of the exam guides by ATP caused loss or damage to the plaintiff. I would again adopt that position with respect to actual injury to the plaintiff.

[47]            As the plaintiff has not established the requirements to make out the tort of unlawful interference with his economic interests, the claim on this ground is dismissed.

[48]            The plaintiff's claims (action) against the defendants are dismissed with costs to the defendants.

                                                                               "John A. O'Keefe"                

                                                                                                   J.F.C.                      

Ottawa, Ontario

April 6, 2004

                         FEDERAL COURT OF CANADA

                                      TRIAL DIVISION

    NAMES OF COUNSEL AND SOLICITORS OF RECORD

DOCKET:                  T-1491-00

STYLE OF CAUSE: MICHAEL J. CULHANE

- and -

ATP AERO TRAINING PRODUCTS INC.,

REILLY JAMES BURKE

                                                     

PLACE OF HEARING:                                 Vancouver, British Columbia

DATES OF HEARING:                                 February 25 - 28, 2003

March 4, 2003

September 22 - 24, 2003

REASONS FOR ORDER OF O'KEEFE J.

DATED:                     April 6, 2004

APPEARANCES:

Bronson Toy

Michael J. Culhane

FOR PLAINTIFF

Gene H. Fraser              

FOR DEFENDANTS

SOLICITORS OF RECORD:

Steele Urquhart Payne

Vancouver, British Columbia

FOR PLAINTIFF

Burke Tomchenko

Coquitlam, British Columbia

FOR DEFENDANTS