Jason M. Berall

The plaintiffs purchased the defendant's software business for $1.25 million.

As part of the transaction, the defendant agreed to a three-year non-competition covenant.

The defendant subsequently incorporated a new company and launched a competing software product while still employed by the plaintiffs.

The plaintiffs moved for an interlocutory injunction to enforce the non-competition clause.

The court granted the injunction, finding that the plaintiffs established a strong prima facie case of breach, irreparable harm, and that the balance of convenience favoured the plaintiffs.

The plaintiff brought a motion to compel the defendants to answer undertakings and refusals given during examinations in aid of execution, and to produce documents.

The court found that the plaintiff had established a sufficient connection between the individual defendants and various corporate entities and properties to justify the questions asked.

The court ordered the defendants to answer the outstanding questions, produce the requested documents, reattend examinations within 30 days, and pay costs for both the examinations and the motion.

The plaintiff in a wrongful dismissal action brought a motion to compel answers to questions refused at an examination for discovery.

The refused questions sought production of an external law firm's unredacted fee accounts, investigation file, and unredacted board meeting minutes.

The defendants claimed solicitor-client privilege over the documents.

The court found that the law firm was retained to provide legal advice, making the investigation file privileged.

The court also held that the defendants did not waive privilege by producing the investigation report or by referring to the investigation in the plaintiff's termination letter.

The motion was dismissed.

Following a trial where the defendants successfully defended against the plaintiff's claim regarding a restrictive covenant, the defendants sought costs of $163,328.87.

The plaintiff argued for a reduced partial indemnity award of $53,191.82, citing an unproven fraud allegation by the defendants.

The court declined to award substantial indemnity costs but noted the importance of the indemnity principle given the employment-like relationship.

Costs were fixed at $110,000 inclusive of fees, disbursements, and HST.

The plaintiff, an IT service provider, sued the defendant independent contractors for breach of a non-competition clause after they declined to renew their sub-contracts and instead provided services to the RCMP through a competitor.

The court found that one defendant was not bound by the clause because it was inserted into an electronic renewal without notice, while the other defendant was bound but the clause itself was unreasonably broad and unenforceable.

The court held that the plaintiff had no proprietary interest in the identity of the client (the RCMP) and the restriction was an unjustified restraint of trade.

The action was dismissed.

The plaintiff brought a motion for summary judgment to enforce promissory notes and personal guarantees arising from a share purchase transaction.

The defendants argued that an Inter-Creditor Agreement with a senior lender prevented the corporate debtor from making payments, and therefore the guarantors were also shielded from liability.

The court found that while the Inter-Creditor Agreement restricted the corporate debtor from repaying the principal amounts, it did not restrict the payment of monthly interest.

Furthermore, the court held that the guarantees operated independently of the Inter-Creditor Agreement, making the guarantors jointly and severally liable for the principal amounts and unpaid interest.

The plaintiff's claim for punitive damages was dismissed.

Following the dismissal of the defendants' motion on the basis of forum non conveniens, the Litigation Trust and the Class sought costs.

The court awarded the Class $6,000 on a partial indemnity basis for maintaining a watching brief.

The court awarded the Litigation Trust full indemnity costs of $208,590.73, finding that the defendants' motion was captured by the Standstill Agreement between the parties, which provided for full indemnity costs in the event of a breach.

The defendants moved for summary judgment to dismiss the plaintiff's claims for breach of an independent contractor agreement and interference with business opportunities.

Alternatively, the defendants sought an order holding themselves liable but assessing damages based on the motion record.

The court dismissed the motion, finding genuine issues requiring a trial regarding whether the termination of the agreement was justified.

The court also rejected the defendants' alternative request, noting that Rule 20.01(3) does not contemplate a defendant moving for summary judgment in favour of the plaintiff to assess damages, and that partial summary judgment was inappropriate as the issues could not be readily bifurcated.

The applicants sought an order under the oppression remedy provisions of the OBCA to force the sale of the respondents' shares in a jointly owned corporation, alleging an irreconcilable relationship breakdown and corporate deadlock.

The applicants also sought a winding up of related corporations.

The court found that the applicant, who was the sole director and officer, continued to operate the business successfully and had manufactured the alleged deadlock to circumvent a contractual moratorium on a shotgun buy-sell provision.

The application was dismissed as the court found no oppressive conduct and no justification for a just and equitable winding up.