CITATION: Premore-Advantage Realty Ltd v. Oliveira, 2007 ONCA 172

DATE: 20070315

DOCKET: C44815

COURT OF APPEAL FOR ONTARIO

RE:

PREMORE-ADVANTAGE REALTY LTD. and FERNANDO Vilhena (Plaintiffs/Respondents) v. JOHN Oliveira also known as JOHN DE OLIVEIRA (Defendant/Appellant)

BEFORE:

DOHERTY, MOLDAVER and CRONK JJ.A.

COUNSEL:

Alexander P. Torgov

for the appellant

Ronald Birken

for the respondents

HEARD & ENDORSED:

March 13, 2007

On appeal from the judgment of Justice E. Eva Frank of the Superior Court of Justice dated September 26, 2005.

A P P E A L B O O K E N D O R S E M E N T

[1] The appeal and the cross-appeal are dismissed.

[2] On the appeal, it is argued that the trial judge erred in holding that the agreement was not unconscionable. In our view, the trial judge was correct. There was no evidence that the respondent took advantage of his mentor/mentee relationship with the appellant. To the contrary, the appellant had every opportunity to review the agreements and seek legal advice. He chose to proceed without doing either.

[3] The trial judge’s finding that the appellant having terminated his relationship with the respondent could not use the customer list he took from the respondent to solicit clients in his new position is correct in law and supportable on the evidence.

[4] The appellant did not pursue the other issues raised in his factum.

[5] On the cross-appeal, we are satisfied that the “non-compete” clause is unenforceable having regard to its unduly broad terms.

[6] The trial judge’s finding that the appellant was not a fiduciary is fully supported by the evidence and we would not interfere with it.

[7] The parties agree that the respondent, Vilhena, should have costs in the amount of $7,500.00, inclusive of GST and disbursements. So ordered.