Citation: Jostens v. Gibsons Date: 19990428 1999 BCCA 273 Docket: V03357 Registry: Victoria COURT OF APPEAL FOR BRITISH COLUMBIA BETWEEN: JOSTENS CANADA LTD. PLAINTIFF (RESPONDENT) AND: GIBSONS STUDIO LTD., GIBSON'S PHOTOGRAPHY LTD. GIBSONS STUDIOS INC., SERGEI GIBSON, JOYCE GIBSON, BRUCE GIBSON, STEPHANIE GIBSON, ROBERT GIBSON and KARMEN GIBSON DEFENDANTS (APPELLANTS) Before: The Honourable Mr. Justice Lambert The Honourable Mr. Justice Donald The Honourable Madam Justice Huddart P. Guy Counsel for the Appellants M. Tevlin Counsel for the Respondent A. Albright Place and Date of Hearing Victoria, British Columbia March 12, 1999 Place and Date of Judgment Vancouver, British Columbia April 28, 1999 Written Reasons by: The Honourable Mr. Justice Lambert Concurred in by: The Honourable Mr. Justice Donald Reasons Concurring in the Result by: The Honourable Madam Justice Huddart (p.23, para.42) Reasons for Judgment of the Honourable Mr. Justice Lambert: I [1] This appeal is from an assessment of damages directed by this Court following a decision by this Court that the defendants had committed a legal and equitable wrong by breaching a contract of agency and an obligation of good faith and fidelity flowing from that contract. The appeal involves a consideration of the principles underlying the awarding of compensation where the wrong is compensable under both common law principles and equitable principles. II [2] The Gibson family have been involved in the photography business on Vancouver Island since early this century. In the mid-60s the Gibson companies and family ("Gibsons") entered into the first of a continually renewed series of three year contracts to act as agents for Jostens Canada Ltd. ("Jostens"), the Canadian arm, located in Winnipeg, of an United States company engaged in the business of photographing primary school classes and high school graduates and of selling reproductions of the photographs to whoever wanted them, mostly the families of the school children and young adults being photographed. [3] In carrying out the agency relationship, Gibsons would make fixed appointments with each school for the photographs to be taken. The primary school class photographs were taken in the fall and the high school graduates in the spring. Gibsons would come to the school with their photographic equipment and take the photographs. The undeveloped film would be sent to Jostens in Winnipeg and Jostens would develop the film, arrange for prints to be made available in the schools with order forms, and print the photographs which had been ordered. In due course photographs would be delivered at the school and the purchase price would be paid. Gibsons would receive a commission based on the total price paid for the photographs purchased. The school would also receive a payment equal to 10% of the total of the purchases made of photographs taken at the school. Gibsons were the only agent of Jostens on Vancouver Island, but the business was a competitive one and there were a number of other photographic concerns engaged in school photography on Vancouver Island. [4] The three year contract in effect from 1 July, 1990 to 30 June, 1993 contained these terms: WHEREAS, the parties desire to establish an agency relationship on the basis that all customers both before, during and after the term of this Contract are those of Company and that a fundamental term of this Contract is the covenant of Agent and its employees and sub-employees set forth in paragraph 14 herein; . . . 4. Agent will devote its full time and best efforts and that of its sub-employees to the promotion of Company's business in the territory. Agent shall faithfully perform its duties as they are described by Company and in a manner satisfactory to Company. Agent agrees to forward to Company all photography business done by Agent in the territory, regardless of type or kind, unless Company's most current policy manual allows exceptions. The negatives from film submitted by the Agent to Company, become the sole exclusive property of Company upon acceptance and development of the film. . . . 10. Agent agrees to instruct customers to remit payments for merchandise directly to Company. If, for any reason, payments are received by Agent, Agent will hold the entire amount of such payments in trust for Company and remit such payments to Company within 72 hours after receipt, together with the information showing the identity of the customer and of the product purchased. In the event Company must resort to legal action to collect any money due Company from Agent, then Agent shall pay all of Company's costs and attorneys' fees. . . . 14. Agent recognizes that all customers within the territory assigned (as it may have changed over the life of the contract), are exclusively Company's customers. (my emphasis) I have quoted only the first paragraph of clause 14, but the remainder of the clause contains non-competition covenants. [5] In the spring of 1993 Jostens sent out to Gibsons the renewal contracts for a one year period after 1 July, 1993. The contracts were not returned. Over the first six months of 1993 Gibsons had been making arrangements to set up their own photography development studios and to cease their agency relationship with Jostens and to enter into competition with Jostens and others as an independent organization in the school photography business. Gibsons did not tell Jostens of those intentions until September, 1993, though they had been conceived many months before. [6] In the spring of 1993 Gibsons made arrangements with the schools at which they had usually taken photographs as agents of Jostens to take the primary school photographs in the fall of 1993. When those arrangements were made Gibsons did not inform the schools that they did not anticipate that they would be acting as agents of Jostens when the photographs were to be taken and that instead they would be acting on their own behalf. 30th June, 1993 passed without any renewal contracts being signed, but without any notice from Gibsons to Jostens that the contracts were not going to be renewed. On 1 August, 1993 Gibsons wrote letters to all of the schools with whom the usual arrangements for fall photographs had been made in the spring of 1993 saying that the relationship between Gibsons and Jostens was going to come to an end on 31 August, 1993, just before the start of the school year, but that Gibsons would be keeping the appointments previously made for primary school photographs and would be doing the developing and processing in their own new studios recently built on Vancouver Island. [7] It was not until September, 1993, a day or two before the start of the photographing process in the schools that Gibsons informed Jostens that the agency relationship was at an end. They did so by returning all of Jostens' equipment and supplies to the Jostens' plant in Winnipeg, as they were obliged to do under the expired contracts. [8] Gibsons kept the fall appointments which they had made on behalf of Jostens. They took the fall business as if it were their own. They shot the photographs, developed the prints, received the orders and delivered the photographs in exchange for payments. They increased the price a little. None of the schools took any steps to open the photographing of the primary classes up for competitive bids. Jostens later took steps to re-establish contact with the schools with whom they had developed a relationship through Gibsons but it was extremely difficult. Gibsons were a local company on Vancouver Island and the representatives of Gibsons had been the very people with whom the schools had done business, some times for many years. III [9] Jostens brought this action against Gibsons for breach of the agency agreement, specifically for breach of the non- competition clause; for breach of the fiduciary obligations owed by an agent to a principal; and for breach of the obligations of good faith and fidelity that were specified in the contract and which flowed from the agency relationship. [10] The trial judge dismissed the action. He decided that the non-competition clause, by its terms, did not apply when the contract came to an end by effluxion of time rather than for cause, and that once the agency contract was at an end Gibsons were at liberty to compete in the way that they did. [11] That judgment was appealed to this Court. The appeal was allowed. Madam Justice Southin's reasons were concurred in by Mr. Justice Hollinrake and Mr. Justice Goldie. They are reported at (1998), 42 B.C.L.R. (3d) 149. Jostens did not attack the finding that the non-competition clause had no application. They said instead that there was a breach of fiduciary duty and a breach of the duty of fidelity. [12] Madam Justice Southin's reasons reached their conclusion in this way: Every servant and every agent owes to his master or principal duties of good faith and fidelity. He owes those duties because the law imports those duties as a contractual term or because the contract contains an express term to that effect or because a court of equity would have imposed an obligation of good faith and fidelity as a matter of conscience. . . . Today with the fusion of law and equity it is common to put the obligation, where there is no express term, upon an implied term but, where appropriate, to grant equitable relief for its non- observance. . . . The law has never looked kindly upon restraints of trade. What the appellant seeks is to use the concept of fiduciary obligation to restrain trade in the absence of a covenant protecting the business of a principal or employer from the competition of a departing employee or agent. The appellant did have sufficient interest in protecting its relations with its customers to support a covenant but this Court cannot give the appellant the benefit of a covenant it does not have by holding that the manner in which the business was conducted by the appellant is a species of property. . . . The claim of the appellant for the fair market value of the business as a going concern must fail. The appellant does, however, have a right to relief founded on the actions of the respondent after 30th June 1993 in taking unto itself business which had been booked before that date. When that business was booked, the respondent was contractually bound to "devote its full time and best efforts ... to the promotion of Company's business" (clause 4). That business belonged to the appellant. The respondent was in breach of its contractual obligation. See also Canadian Aero Service Ltd. v. O'Malley (1973), [1974] S.C.R. 592, 40 D.L.R. (3d) 371. On that footing, the appellant is entitled either to damages at law for breach of that clause of the contract or in equity to an account of profits acquired by the breach, either of which may be ascertained by a reference under Rule 32. It is for the court below to decide the question of relief and, therefore, I would allow the appeal to the extent indicated and remit the matter to the court below to determine that issue. (my emphasis) [13] At the direction of Madam Justice Southin the "operative paragraphs" of this Court's order on the appeal were couched in these terms: This Court doth further order and adjudge that the appeal be and the same is hereby allowed to the extent that the appellant is entitled to damages against the respondents for their actions after 30th June, 1993 in taking unto respondent Gibsons Studios Ltd. or any or all of the other respondents business which had been booked before that date; And this Court doth further order and adjudge that it be remitted to the court below to assess such damages. So the "question of relief" must be regarded as having included a determination of the basis for an award of compensation within the ambit of the cause of action for which liability was imposed and an assessment of the compensation itself. Those matters were directed to come before a judge of the Supreme Court of British Columbia. IV [14] The "question of relief" came before Mr. Justice Cowan. [15] Mr. Justice Cowan relied on this passage from Halsbury, vol. 16, 4th ed. at p.676 para 744: The principle underlying relief at law is that the plaintiff has suffered loss by the defendant's breach of contract or wrongful conduct, and damages are awarded for the purpose of making good this loss. The principle underlying relief in equity is that the defendant has improperly received or withheld property, or profits from property (such property or profits belonging to the plaintiff) and he is required to restore the property or to account for the profits. ... Thus at law the extent of the remedy is measured by the loss to the plaintiff, which is covered by the damages awarded; in equity the extent of the remedy is measured by the gain to the defendant, which is ascertained by directing an account against him. (my emphasis) [16] In reliance on that extract from Halsbury, Mr. Justice Cowan said that two approaches should be considered in assessing compensation, namely: They are the loss occasioned to Jostens by Gibsons' breach of contract or the gain made by Gibsons as a result of such breach. (my emphasis) [17] Mr. Justice Cowan referred to para.10 of the contract between Jostens and Gibsons, which I have quoted in Part II of these reasons, and which provided that all payments received for the delivery of photographs were to be held in trust for Jostens. Then Mr. Justice Cowan said this: By virtue of that paragraph, Gibsons held any payments it received "in trust" for Jostens. That being so, it is my opinion that the proper approach to the assessment of damages in this case is to deal with them on an equity basis, that is, to determine the "property" acquired by Gibsons from its breach of contract and to require Gibsons to account for what it gained as a result. (my emphasis) Of course, the contract terminated on 30 June, 1993 and with it, clause 10. So when Gibsons received the payments for photographs taken in the fall of 1993 those payments were not directly governed by the terms of the contract which had expired. But once it is established, as it is established by the reasons of Madam Justice Southin and the precise decision of this Court that the payments for the photographs were received by Gibsons at a time when Gibsons was in breach of its agency obligation of good faith and fidelity, I consider that Mr. Justice Cowan was correct in saying that the proper approach to the assessment of damages in this case is to deal with them on an equity basis. It is not a necessary aspect of that conclusion that it be based on a finding that the funds received by Gibsons for the fall photographs in 1993 were held by them "in trust" for Jostens. I do not rely on any such finding, if there is one. [18] Mr. Justice Cowan quoted from the reasons of Chancellor Van Koughnet in the case of Wightman v. Helliwell (1867), 13 Gr. 330 (Upper Can. Chan.) at 334: The principle and the object in every case is to make good the loss caused by the acts of omission or commission of the trustee, or to wrest from him any benefit he has, or is taken to have, derived from the use of the trust money. (my emphasis) That passage was adopted and applied by this Court in Moore International (Canada) Ltd. v. Carter, (1984), 56 B.C.L.R. 207 in the assessment of damages in a case involving a breach of fiduciary duty owed by an employee to an employer similar to the obligation of good faith and fidelity in this case. [19] Mr. Justice Cowan then made his assessment on the basis of the evidence before him. The records of Gibsons were inadequate to decide what their receipts were from the photographs sold in breach of the obligation of good faith and fidelity owed to Jostens. So Mr. Justice Cowan took the figure for Jostens' revenue from the same schools for the preceding year, which was $497,966.36. From that figure he deducted the commissions that were paid to Gibsons for the preceding year in relation to the same photographs, namely $180,121.64, leaving a balance of $317,844.72 as the amount that should be regarded as the total which, if received by Gibsons, would have been held in trust by them under the terms of the agency contract in the preceding year. Mr. Justice Cowan had evidence that projected sales of photographs in the fall of 1993 were in the amount of $515,000 rather than the $497,966 of the previous year. In accordance with sound principle Mr. Justice Cowan avoided a precise mathematical calculation for his award of equitable compensation. The figures I have mentioned provided his assessment with an anchor in the evidence. Mr. Justice Cowan assessed the compensation for the equitable wrong committed by Gibsons at $335,000. [20] Mr. Justice Cowan denied a claim for mitigation expenses of Jostens on the ground that while those expenses were incurred in an effort to save the Vancouver Island business as a whole they were incurred beyond the time when they could have had any effect on the fall 1993 school photography business. V [21] In my opinion the approach adopted by Mr. Justice Cowan to the analysis of the "question of relief" and to the assessment of compensation was correct. Unless there was an error in principle, or unless the damages were inordinately high or low, this Court should not intervene and make its own assessment. [22] Counsel for Gibsons, on the appeal, said that the measure of damages should be the loss of profit of Jostens, or alternatively, the gain in profit by Gibsons, with the gain in profit by Gibsons being measured, in the absence of any better evidence, by the loss of profit of Jostens, but certainly not supporting a higher figure than the loss of profit of Jostens. In determining the loss of profit of Jostens, counsel for Gibsons argued that profit should be calculated as it would be presented on financial statements or for tax purposes, and he adopted, by implication from his argument, the fifth meaning of profit contained in the Shorter Oxford English Dictionary, 1973, as being the excess of returns over outlay, or, in political economy, the surplus product of industry after deducting costs of raw materials, rent, and charges. On that basis, counsel for Gibsons relied on Jostens' internal financial records to determine customer sales, net of commission, but also to determine, for the purposes of deduction from net sales revenue, first, direct costs of sales, consisting of charges such as materials, direct labour, and variable overhead; second, costs reflecting manufacturing expenses, including managed manufacturing overhead, plant management expenses, and plant services; and third, the costs allocated by Jostens for administrative expenses, including customer service and data processing, all as shown in Jostens' own statements prepared for its own internal purposes. Finally, counsel for Gibsons said that there should be deducted in the calculation the amount of 10% commission paid to the schools, which did not show up on the internal financial statements prepared by Jostens for their own purposes. [23] In my opinion this argument is directed towards questions involved in the calculation of the net loss that might be said to have been suffered by Jostens as a result of not having had the school photography business on Vancouver Island in the fall of 1993, being the business of which they had been deprived by the breach of the obligations of confidence, fidelity and trust committed by Gibsons. But that method of calculation does not deal correctly with the equitable remedy for the equitable wrong. The equitable remedy requires that any gain or benefit by Gibsons as a result of the wrongful act in breach of their obligation of good faith and fidelity should be taken from them. [24] Mr. Justice Cowan concentrated on this equitable form of compensation and used Jostens' figures to make an assessment of the benefit or gain derived by Gibsons from their breach of the obligation of good faith and fidelity. In my respectful opinion he correctly applied the rule described in Halsbury where the equitable remedy is said to be "measured by the gain to the defendant" and the same equitable rule enunciated by Chancellor Von Koughnet in Wightman v. Helliwell where the remedy was described as "to wrest from him any benefit he has, or is taken to have, derived from the use of the trust money." [25] The principle underlying the award of equitable relief was described in this way by Madam Justice Wilson in Lac Minerals Ltd. v. International Corona Resources Ltd. (1989), 61 D.L.R. (4th) 14 (S.C.C.) at p.17: The remedy It seems to me that when the same conduct gives rise to alternate causes of action, one at common law and the other in equity, and the available remedies are different, the court should consider which will provide the more appropriate remedy to the innocent party and give the innocent party the benefit of that remedy. Since the result of LAC's breach of confidence or breach of fiduciary duty was its unjust enrichment through the acquisition of the Williams property at Corona's expense, it seems to me that the only sure way in which Corona can be fully compensated for the breach in this case is by the imposition of a constructive trust on LAC in favour of Corona with respect to the property. Full compensation may or may not be achieved through an award of common law damages depending upon the accuracy of valuation techniques. It can most surely be achieved in this case through the award of an in rem remedy. I would therefore award such a remedy. The imposition of a constructive trust also ensures, of course, that the wrongdoer does not benefit from his wrongdoing, an important consideration in equity which may not be achieved by a damage award. (the italics are Madam Justice Wilson's emphasis and the underlining is mine) [26] I emphasize that it is the benefit flowing from the wrongful act that should be taken from the equitable wrongdoer, not the net financial advantage after deducting the wrongdoer's own expenses in committing his wrongful act. It is "profit" in the sense of benefit or gain, not "profit" in the sense of net financial advantage after deduction of expenses, that is the measure of the equitable compensation. In most cases it could not be otherwise, because the expenses are under the sole control of the wrongdoer and could be readily manipulated to reduce the latter type of "profit" though, of course, those expenses do not have any effect in the measurement of the benefit or gain. It should be noted that the equitable remedy awarded in Lac Minerals for breach of the obligation of confidence, was the imposition of a remedial constructive trust. Such a remedy deprives the wrongdoer of the whole of the benefit or gain. But it also serves as an indication that expenses incurred for the benefit of the trust property may be credited to the person who incurred them, but that expenses incurred to create an improper advantage may not be deducted from the benefit obtained by the commission of the equitable wrong in calculating the equitable compensation. [27] In this Court's decision in Moore International (Canada) Ltd. v. Carter at pp.213-215, this Court did not take sufficient pains to distinguish between the two uses of the word "profit", though I think that the better view of the reasoning makes it clear that the word is being used as a synonym for "benefit" or "gain". Perhaps I may be excused for criticizing a prior judgment of this Court by the fact that the error of imprecision was mine. [28] The importance of avoiding an illusion of mathematical certainty arising from a precise calculation from imprecise foundations is emphasized in Moore International and in other cases. Mr. Justice Binnie, for the Supreme Court of Canada, in Cadbury Schweppes Inc. v. FBI Foods Ltd. (S.C.C. File No. 25778, 28 January, 1999) concluded his reasons by reminding the parties that the objective of an assessment of equitable compensation was a broadly equitable result, and that mathematical exactitude was neither required nor obtainable. [29] Mr. Justice Binnie quoted, with approval, a passage from the reasons of the Manitoba Court of Appeal in Apotex Fermentation Inc. v. Novopharm Ltd. (1998), 80 C.P.R. (3d) 449, in these terms, at p.512: Where injury has been suffered in a complex commercial setting, a "flexible and imaginative approach" to the assessment of the damages may be required. That passage invites me to add that I am not suggesting in these reasons that no deduction from gross revenue can ever be made in assessing benefit or gain (commissions paid by Jostens to Gibsons in the previous year were deducted by Mr. Justice Cowan in his analysis), nor am I suggesting that profit as it would be shown in a financial statement can never be a correct tool in assessing equitable compensation. What I am saying is simply that Mr. Justice Cowan made no error in principle in this case. [30] There is one further relevant factual point with respect to considering the benefit derived by Gibsons from the breach of the obligation of confidence, trust and fidelity. The whole timing of the plan was designed to ensure that no significant notice was given to Jostens, to the schools, or to any competitor on Vancouver Island, until just before Gibsons turned up to take the photographs in September, 1993. If Gibsons had carried out their obligation of fidelity they would not have taken the fall pictures in 1993 in any of the schools which had been previous customers in their agency relationship with Jostens, and with whom they had a continuing relationship. The schools would have had to make arrangements with other photographers, perhaps Jostens, or perhaps different photographers in the competitive business on Vancouver Island, and Gibsons would have lost the continuity of their business with those schools for the future. The retention of those contracts was a valuable benefit to Gibsons which continued long after the fall of 1993 but which was derived entirely from their own wrongful acts in both the spring and the fall of 1993. [31] I have concluded that no error in principle has been shown and that the assessment of equitable compensation was not inordinately high. [32] I would dismiss the appeal. VI [33] There was a cross-appeal. Jostens said that Mr. Justice Cowan erred when he refused to award to Jostens an amount equal to the expenses they incurred in trying to revitalize the Vancouver Island business which was taken over by Gibsons. This was an argument in relation to expenses incurred in potential mitigation of loss. The evidence in support of this mitigation claim was led at trial where the principal claim was that the entire Jostens' business on Vancouver Island had been usurped by Gibsons, in breach of the non-competition clause or otherwise. I agree with Mr. Justice Cowan that when the claim is restricted to the narrow compass of the wrongful act of taking photographs that had been arranged as agent for Jostens in the fall of 1993, the mitigation expenses are not related to the loss that is being compensated. I would dismiss the cross- appeal. VII [34] A further argument was made on behalf of Jostens as part of the appeal, though perhaps it should have been a part of the cross-appeal. [35] Counsel for Jostens referred to the concluding sentence of clause 10 of the agreement and said that all of Jostens' legal fees and disbursements throughout this litigation should be paid as a head of damages by Gibsons to Jostens. For convenience of reference I will set out clause 10 again: 10. Agent agrees to instruct customers to remit payments for merchandise directly to Company. If, for any reason, payments are received by Agent, Agent will hold the entire amount of such payments in trust for Company and remit such payments to Company within 72 hours after receipt, together with the information showing the identity of the customer and of the product purchased. In the event Company must resort to legal action to collect any money due Company from Agent, then Agent shall pay all of Company's costs and attorneys' fees. (my emphasis) [36] There are legal questions to be considered in relation to the applicability of that provision. The contract had expired when funds were received by Gibsons for the fall 1993 photography, and the breach of the obligation of good faith and fidelity did not, in the spring of 1993, result in any funds being received by Gibsons at that time. The equitable compensation awarded by Mr. Justice Cowan may not be "money due Company from Agent" within the meaning of the provision. There are no doubt other legal questions. [37] But those questions were not argued before Mr. Justice Cowan. Indeed, this potential head of damages was never addressed in argument before him. What is more, no evidence was led at any stage of the proceedings in relation to any claim for damages or other compensation under this provision. Evidence was essential in order to establish such a claim. In accordance with the practice of this Court, I would not permit such a claim to be made for the first time at this stage. [38] The reason this claim was not made before Mr. Justice Cowan is probably because it was seen as unlikely to be accepted by the Court and because counsel for Jostens decided to concentrate on the claim which had a greater chance of success. In the end, in this Court, as an alternative to the new head of damages, counsel for Jostens asked for an award of costs "at a higher scale". [39] I think that this was an appeal "of unusual difficulty" within the meaning of Appendix B of the Court of Appeal Rules and I would award costs on scale 3 of Appendix B. I do not think that such an award of costs constitutes "an unjust result" so I would not make an order for special costs. I would not interfere with the award of costs in the Supreme Court of British Columbia for the hearing before Mr. Justice Cowan. VIII [40] I would dismiss the appeal and the cross-appeal and I would order that the respondent, Jostens, be paid its costs by the appellant, Gibsons, on scale 3. [41] Since writing the foregoing, I have had the benefit of reading the reasons of Madam Justice Huddart. There is nothing in them with which I disagree. "The Honourable Mr. Justice Lambert" I agree: "The Honourable Mr. Justice Donald" Reasons for Judgment of the Honourable Madam Justice Huddart: [42] I agree with the disposition of this appeal and cross- appeal proposed by Mr. Justice Lambert whose reasons I have had the advantage of reading in draft. I wish however to set down my reasons for that conclusion. They differ somewhat from those of Mr. Justice Lambert, particularly his agreement with the analysis of the "question of relief" by Mr. Justice Cowan. [43] The appellant's wrong ordered by this Court to be remedied by an award of damages was the wrongful diversion to itself of the business opportunity the bookings of the school year 1993/4 represented. The diversion was wrongful because the appellant had acquired the business opportunity for the defendant in fulfillment of an obligation contained in a contract carrying with it the obligation contained of "good faith and fidelity" in the words of Madam Justice Southin. [44] When the appellant began its preparation in the spring of 1993 to compete with the respondents at the expiration of the contract, included in their plans was the diversion of that business opportunity. At the very least an agent acting in good conscience would have advised its principal of the conflict of interest inherent in seeking bookings not only for the potential use of its principal but also and more likely for itself. That wrong was compounded each day the appellant did not advise the respondent of its decision not to renew the agency agreement and to compete for the bookings it was making or had made for the respondent. [45] By its conduct the appellant ensured the permissible competition in the marketplace would be unfair: it eliminated any risk the respondent might be successful in retaining those bookings. In these circumstances the appropriate remedy was to restore to the respondent the value of the lost business opportunity. That opportunity included not only the loss of the profits to be earned on the 1993/4 bookings but also the competitive advantage those bookings gave the holder of them for ensuing years. On the facts of this case an accounting for profits or compensation measured by the profits earned by the appellant, or notionally by the respondent, on the 1993/4 bookings would not be fair or appropriate. Such a measure would not take proper account of the value of the competitive advantage provided by the bookings nor the need to deter breaches of loyalty. [46] The compensation awarded by Mr. Justice Cowan does both. In measuring the "gain" of the appellant he was measuring the loss of the respondent. In this case the value of the business opportunity diverted is that which the appellant gained and the respondent lost. I would not interfere with his assessment although it was reached by a different analysis. I agree with Mr. Justice Lambert that a broadly equitable result was reached in this case by the trial judge and that this Court should not interfere with it. "The Honourable Madam Justice Huddart" January 24, 2000 - Corrigendum to para 15 adding vol. 16 and correct page number (676) of Halsbury's.