DATE: 20051206

DOCKET: C42977

COURT OF APPEAL FOR ONTARIO

RE:

DUFORT TESTING SERVICES LIMITED, AND, MARIO DUFORT (Plaintiffs (Appellants)) – and – GUY BERUBE, GLENN CARSON, ADVANCDED EMISSIONS TECHNOLOGIES LTD., CAR-BER TESTIG SERVICES INC., CARBER TESTING SERVICE (partnership), PHILIP MITCHES, ORANGE & CHARI (partnership), McCARTHY, TÉTRAULT LLP, and BLAKE, CASSELS AND GRAYDON LLP. (Defendants (Respondents))

BEFORE:

GOUDGE, BLAIR AND LAFORME JJ.A.

COUNSEL:

Gordon S. Clarke and Roberto R. Cucci

for the appellants

C. Clifford Lax, Q.C. and Sean Werger

for the respondents McCarthy Tétrault

Glenn A. Smith and Jaan Lilles

for the respondents Blake Cassels & Graydon LLP

HEARD:

November 30, 2005

On appeal from the judgment of Justice Thea P. Herman of the Superior Court of Justice dated December 16, 2004.

E N D O R S E M E N T

[1] Counsel for the respondents correctly assert that it is difficult to discern from the statement of claim the causes of action being advanced. Nonetheless, the motion judge was able to find five causes of action and, for reasons with which we substantially agree, concluded that none are viable.

[2] In this court the appellants advance the same five. We will briefly deal with each in turn.

[3] First, the relationship between the respondents and the appellants could create neither a fiduciary obligation nor a duty of care. The appellants were not entitled to expect that the respondents, who were never their patent agents, would act in their interest to the exclusion of the respondents’ clear duty to their own principles the CarBer defendants. This hallmark of a fiduciary relationship does not exist here. Nor is there sufficient proximity between the respondents and the appellants to create a duty of care. The respondents were not their patent agents but the patent agents of their competitors.

[4] For the same reasons, the respondents cannot be said to owe an equitable obligation to the appellants so as to entitle the appellants to the remedy of a constructive trust.

[5] The statement of claim discloses no alleged conspiracy or agreement to harm the appellants. There is therefore nothing to amend to support the plea of conspiracy.

[6] The pleading also does not sustain a cause of action in conversion. It does not allege that the respondents converted any property of the appellants to their own use and what it does allege is inconsistent with that assertion.

[7] Finally the alleged statutory cause of action for false statement is fatally flawed because the respondents are not competitors of the appellants, as explained by the motion judge.

[8] In summary, while there is a real legal dispute pleaded here, it simply is not one that as a matter of law could be asserted against the respondents. Hence the appeal must be dismissed and there is no basis to grant leave to amend the claim.

[9] The appeal is dismissed with costs to the respondent McCarthys in the amount of $15,000 and to the respondent Blakes in the amount of $10,000 both inclusive of disbursements and G.S.T.

“S. T. Goudge J.A.”

“R. A. Blair J.A.”

“H. S. LaForme J.A.”