Jennifer Pocock

Following the release of the court's reasons on appeal, the parties agreed on the costs of the application.

The Court of Appeal ordered costs of the application to the appellants in the agreed amount of $35,000, inclusive of disbursements and HST.

The plaintiff, FLS Transportation Services Inc., sought an interim injunction against former employees and their new employer, Charger Logistics Inc., to restrain them from working for a competitor, soliciting clients and employees, and misusing confidential information.

The court applied the three-part test for an interlocutory injunction (serious issue to be tried, irreparable harm, balance of convenience) and also considered the "clean hands" doctrine.

The court found that FLS failed to establish a strong prima facie case for breach of restrictive covenants, breach of confidence, or fiduciary duty, largely due to FLS's own prior statements in other proceedings that the information was not confidential.

Furthermore, FLS failed to demonstrate irreparable harm, and the balance of convenience favoured the defendants.

The motion was dismissed, also noting that FLS's conduct in misrepresenting the court's order to a client constituted a failure to come to court with "clean hands."

The appellants, former franchisees of a home medical equipment business, appealed a decision enforcing a restrictive covenant that prevented them from operating a similar business within a 30-mile radius for 18 months after the franchise agreement expired.

The franchisor's corporate parent operated a competing store in the same territory, and the franchisor admitted it had no intention of opening another franchise in that area.

The Court of Appeal allowed the appeal, holding that because the franchisor had no intention of operating in the protected territory, it had no legitimate or proprietary interest to protect there.

Consequently, the restrictive covenant was unreasonable and unenforceable.

The Liquor Control Board of Ontario appealed a motion judge's refusal to grant a sealing order for Minutes of Settlement entered into with the respondents in 2001.

The appellant sought to rely on the settlement in its defence of new actions brought by the respondents while preserving its confidentiality.

The Divisional Court allowed the appeal, finding that the motion judge erred by failing to recognize settlement privilege as an important interest under the Sierra Club test.

The Court held that the appellant had not waived privilege and that the salutary effects of protecting settlement privilege outweighed the deleterious effects on the open court principle.

The applicant franchisor sought to enforce a restrictive covenant against a former franchisee who continued to operate a similar home medical equipment business at the same location after the franchise agreement expired.

The respondents argued the covenant was unenforceable due to a failure to provide a disclosure document under the Arthur Wishart Act and that the covenant was an unreasonable restraint of trade.

The court found that disclosure was not required because the franchisor was not sufficiently involved in the sale of the franchise.

The court also held that the restrictive covenant was unambiguous, reasonable in its 18-month and 30-mile scope, and protected the franchisor's legitimate business interests.

The application was granted and the respondents were ordered to cease operating the competing business.

A case conference was held to manage the scheduling of the defendants' outstanding motions to strike and for summary judgment, as well as the plaintiffs' proposed cross-motion and summonses to witness.

The court established a timetable for the delivery of affidavits of documents, notices of cross-motion, and the scheduling of motions to quash the summonses.

The court emphasized the need for efficient scheduling and discouraged the strict enforcement of procedural rights that would cause unnecessary delay.

The defendants sought leave to appeal a motion judge's decision refusing a sealing order for Minutes of Settlement from prior litigation between the parties.

The motion judge had found insufficient evidence to justify sealing the documents under the Sierra Club test.

The Divisional Court granted leave to appeal, finding that there was reason to doubt the correctness of the motion judge's decision, particularly in light of Supreme Court of Canada jurisprudence establishing settlement privilege as a class privilege.

The court also granted an interim sealing order pending the appeal and awarded costs to the moving parties.