Federal Court of Appeal Decisions

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

                                  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"

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