Audience Communications Inc. v. Sguassero, 2010 ONCA 510

DATE: 20100714

DOCKET: C48822

COURT OF APPEAL FOR ONTARIO

O’Connor A.C.J.O., Rouleau and Epstein JJ.A.

BETWEEN:

Audience Communications Inc., Brian Marshall, Trustees of the Marshall Family Trust and Constance Dykun

Applicants (Respondents on Appeal)

and

Carlo Sguassero, Martin Teplitsky and Human Contact Inc.

Respondents (Appellant on Appeal)

Nancy J. Tourgis and Jonathon M. Kappy, for the appellant

R. Macklin and M. Whelton, for the respondents

Heard: July 13, 2010

On appeal from the judgment of Justice Lederman of the Superior Court of Justice dated April 22, 2008.

APPEAL BOOK ENDORSEMENT

[1] We see no inconsistency between the trial judge’s finding that the appellant did not breach a fiduciary duty owed to the respondent, Audience Communications Inc., and his finding that the appellant breached the non-competition provision in the Shareholders Agreement.

[2] The trial judge found that the parties expected that the appellant would take the TDL business if he left his employment with Audience. On this basis, he found the appellant did not breach a fiduciary duty.

[3] The Shareholders Agreement provided a means by which the appellant could leave Audience and take the TDL business without breaching the agreement. Clause 14.04 provided that, as an alternative to the non-competition provision in the agreement, the appellant could relinquish his shares in Audience. The appellant did not do so at the time he took a new position and carried on the TDL business.

[4] There was no evidence that Audience or any of the other parties to the Shareholders Agreement, either by words or conduct, indicated to the appellant that he could take the TDL business and keep his shares. There was no evidence that Audience or the other parties to the Shareholders Agreement waived Clause 14.04.

[5] Thus, we see no basis to interfere with the trial judge’s conclusion that the appellant breached the non-competition provision in the Shareholders Agreement.

[6] The appeal is dismissed. Costs to the respondents are fixed in the amount of $11,000, inclusive of GST and disbursements.