WEBMASTER
March 10, 1999
Phil McNeil
10820-102st
Grande Prairie, AB
T8V 2X3
Master Michael Funduk
Court of Queens Bench
Edmonton, AB
Dear Sir;
I am not sure how appropriate it is for me to contact you regarding this matter, but the circumstances that have arisen have put me in a position that gives me little choice.
Last year you presided over a case involving myself and Stanley Canada (Mac Tools) about, among numerous things, breaches of the Alberta Franchise Act. In particular section seven involving good faith and fair dealing. As you may recall, the action was stayed based on an ADR clause in an agreement. Though I obviously am not in agreement with the interpretation of the agreement and therefore the stay of proceedings, this is not the purpose of my letter to you and I remain respectful of your decision.
Early in my dispute with Mac I realized that I was not being treated in a fair manner. I requested we have someone more neutral assist us in settling our problems and was flat out refused by Mac and its agents. I was told that their decision was final and ".... if you feel you are not being treated fairly then sue us." So I did.
I am convinced that if this action would have commenced, I would have been successful. I also believe Mac Tools realized this and that is why they argued for the ADR clause. I did not consider your decision to be a total defeat as I was equally confident an arbitrator would also rule in my favour. Either way I looked forward to exposing their unfair dealings and be compensated for the damage they caused me.
Now, having said all that, this is the reason for my letter. After almost a year after your decision, they refuse to resolve this dispute. They have refused to negotiate or mediate (despite my many requests) and will not entertain arbitration. In fact, both Mac Tools and their council will not return calls at all. It is not fair dealing and is most certainly not in good faith. If I can't settle my dispute in court and they refuse to abide by their own agreements what recourse do I have?
My understanding of the reasoning behind the Franchise Act was to prevent these types of abuses within the franchise context. This situation, in my humble opinion, has shown a flagrant disregard for the public policy and the moral interests of the people of Alberta. Their disarming of the Franchise Act gives them, and perhaps others, justification for abuses past, present and future. In this situation the Franchise Act was impotent in doing what it was designed to. It has shown Mac Tools that they are free to do business as they see fit in Alberta as the Franchise law does not apply to them. To get around a dispute brought under the act, all they have to do is invoke the ADR clause and it stays out of court. If they have a case like mine where they have well founded concern about judgement in my favour, all they have to do is ignore me and hope it goes away. The end result is that I and all the people of Alberta are the real losers. Legislation written to protect us becomes ineffective and the result is big corporations flaunting their contempt for our policies.
I share this information with you for two reasons. Firstly, I wanted to point out the lack of respect this corporation has shown for both our policies and the decision you brought forth. I am sure the architects of the revised Franchise Act did not envision this type of outcome and I am equally sure you fully expected Mac Tools to settle this dispute through ADR like they argued for and you ruled in favour of. Secondly, if you are as outraged by this as I am, do you possess some special judicial powers that you could invoke to require them to immediately follow through with arbitration or move the proceedings back into Alberta court? As it currently sits, they simply are refusing to honour the law of our land, their own agreements and your ruling.
In sum, because of the actions of this company, I have depleted all financial resources to the point that I can no longer retain council and without intervention will likely lose everything. I refuse to give up my rights under my own laws so an American corporation can skirt our laws and continue to do business contrary to the law of our land. If you are in a position, and have the inclination, to be of assistance in this matter in any capacity, I implore you to do so.
Respectfully Yours,
Phil McNeil
(780) 532 7553
pmcneil@telusplanet.net
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