J. THE COURT OF APPEAL FOR SASKATCHEWAN Citation: 2006 SKCA 54 Date: 20060517 Between: Docket: 1064 Belterra Corporation and Ken Yaganiski Coram: Cameron, Gerwing Sherstobitoff JJ.A. Counsel: Jennifer D. Pereira for the Appellant Heather J. Laing for the Respondent Appeal: From: 2004 SKQB 448 (CanLII) Heard: May 17, 2006 Disposition: Dismissed (orally) Written Reasons: May 19, 2006 By: The Honourable Mr. Justice Cameron In Concurrence: The Honourable Madam Justice Gerwing The Honourable Mr. Justice Sherstobitoff CAMERON J.A. [1] It will not be necessary for us to call upon counsel for the respondent, Ken Yaganiski, for each of us is of the view that, even if his conduct constituted breach of the clause of the contract prohibiting him from soliciting the customers of the appellant, Belterra Corporation, Belterra failed to prove any loss attributable to the breach. [2] In light of the view we take of the matter, it is not necessary for us to decide whether Mr Yaganiski’s conduct amounted to a breach of contract, although on balance we incline to the opinion it did. Assuming it did (which is to put the case for the appellant at its highest), Belterra has not satisfied us that it suffered any loss attributable to the breach. We are not satisfied of this, having regard for the following facts: (i) effective July 1, 2000, Mato Corporation independently terminated its distributorship agreement with Belterra, meaning Belterra could no longer obtain Mato products for sale to its customers: (ii) in the ensuing year Belterra was able to sell existing inventory of Mato products to its customers at profit, which in fact it did: (iii) there is no evidence establishing that Belterra was unable to sell all of its existing inventory to its existing customers during the year, and no evidence that it was unable to do so by reason of anything the respondent did or might have done in breach of his contract with Belterra. [3] Belterra’s loss, so to speak, consisted of its inability to continue to obtain Mato products and sell them to its customers at profit. But this loss stemmed from the termination of its distributorship agreement with Mato, not from anything the respondent did. As the trial judge found, the termination of the distributorship was unconnected to the respondent. [4] Hence, we have decided to dismiss the appeal. The appeal is dismissed with costs, such costs to be taxed as usual on the basis of double column 5 of the Court of Appeal Tariff of costs.
The appellant appeal arguing that the respondent's conduct in soliciting the customers of the appellant constituted a breach of contract. HELD: Appeal dismissed orally. Even if the respondent's conduct constituted a breach of the clause of the contract prohibiting him from soliciting the customers of the appellant, the appellant failed to prove any loss attributable to the breach. The appellant's loss consisted of its inability to continue to obtain Mato products and sell them to its customers at a profit. This loss stemmed from the termination of its distributorship agreement with Mato, not from anything the respondent did. As the trial judge found, the termination of the distributorship was unconnected to the respondent.