ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
B E T W E E N:
LUDWIG HEIMRATH and HEIMRATH HOLDINGS INC.
Plaintiffs
- and -
1290100 ONTARIO INC.
Defendant
Joel D. Farber, for the Plaintiffs
David A. Taub, for the Defendant
HEARD: October 7, 2002
JARVIS J.: (Orally)
1The plaintiff seeks injunctive relief against the defendants which purchased a business and/or its assets by an agreement dated April 12, 2000 from him. It is conceded by both sides that the draftsmanship of the agreement is not ideal and it may well be that a trial will be necessary to interpret its terms.
2This proceeding is not a motion for judgment and the test for the granting of an injunctive relief by the Court have been well established by the authorities. I have decided that the applicant is not entitled to injunctive relief for the reasons which follow. I consider it only fair that I avoid any pointed review of the evidence so as not to skew or influence the manner in which this dispute might be dealt with by the trial judge.
IS THERE A SERIOUS ISSUE TO BE TRIED?
3I have considered the record before me in some detail and am mindful of the onus on the plaintiff to establish that the arms of the RJR MacDonald test have been met. I do not consider the issues raised by the plaintiff to establish sufficiently that there is a serious issue to be determined. The computer equipment complained of in Mr. Heimrath's affidavit does not form part of the relief sought in the action. There has been a proceeding before the Registrar of the Company's Branch and the resulting orders have not been appealed nor been the subject of judicial review. These issues are therefore not for the Court to adjudicate upon in the present case.
4Several incidents involving clients and a supplier are said to have caused the plaintiff great embarrassment. On review it seems likely that petulant interference in the affairs of the defendant corporation is a more likely reason and likely explains the plaintiff's motivation in bringing this proceeding.
IRREPARABLE HARM AND BALANCE OF CONVENIENCE
5There is absolutely nothing in the evidence which convinces me that there is any risk that the plaintiff will suffer such harm should an injunction should not be granted. The defendant corporation on the other hand appears to be prospering but the requested order would have the effect of harming their business greatly. In my view the balance of convenience clearly involves the preservation of the status quo.
6I am also influenced by the apparent delay in bringing this matter on from when Mr. Heimrath first saw the sign saying "Heimrath Performance Cars" and the further delay following the decision of the Corporation Branch is also a factor. It is also clear that Mr. Heimrath has been unable to avoid making harmful comments about the defendants during the course of their dealings. In the circumstances this is less than honourable behavior and is also a factor in my decision. To rule in the plaintiff's favour would be to rule finally on these issues in effect. The evidence before me falls far short of what would be required for me to consider any such finding and any such finding would fail to be fair and equitable in the interest of justice. The motion is therefore dismissed.
7I have heard submissions from counsel from the respondent to the effect that I ought to award costs on the substantial indemnity scale in view of my comments regarding motivation of the plaintiff and submission made on behalf of the plaintiff that there be no order as to costs or that costs be reserved to the trial judge. I have been shown an offer to settle which I don't propose to deal with in any detail. It's clear that the success obtained on this motion by the defendant is not enough to justify a punitive order.
8In all of the circumstances, my order is that costs be awarded on a partial indemnity scale, this is not the trial I cannot be taken to know all of the details of the dealings between these parties and I am not sufficiently convinced of this conduct to make a punitive order at this point. It may well be appropriate at trial.
9Costs will be awarded on a partial indemnity basis. I am here to fix those costs. Counsel are you in a position to tell me what they ought to be today and you can discuss it, if you can agree, fine, write me a note and I will endorse the record accordingly. Otherwise you can make an appointment to see me.
JARVIS J.
Date of Reasons for Judgment: October 7, 2002
Date of Release: October 16, 2002
COURT FILE NO.: 02-CV-225017 CM
DATE: 20021007
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
B E T W E E N:
LUDWIG HEIMRATH and HEIMRATH HOLDINGS INC.
Plaintiff
- and -
1290100 ONTARIO INC.
Defendant
ORAL REASONS FOR JUDGMENT
JARVIS J.
Date of Reasons for Judgment: October 7, 2002
Date of Release: October 16, 2002