Court of Appeal for Ontario

Date: 2017-12-15 Docket: C63463

Panel: Hourigan, Brown JJ.A., and Himel J. (ad hoc)

Between

Carmine Calvise, CJCF Investment Corp., MacMillan Lawson Insurance Brokers Ltd., Douglas MacMillan Respondents

and

Tripemco Burlington Insurance Group Limited Appellant

Counsel

Ray Di Gregorio, for the appellant

Stephen Gleave and Sean Sells, for the respondents

Heard and released orally: December 11, 2017

On appeal from: the order of Justice Kim A. Carpenter-Gunn of the Superior Court of Justice, dated February 3, 2017.

Reasons for Decision

[1] The appellant, Tripemco Burlington Insurance Group Limited ("Tripemco"), sued the respondents, Carmine Calvise and his personal corporation, CJCF Investment Corp., for damages for breach of non-solicitation and non-interference covenants contained in a December 20, 2013 Asset Purchase Agreement ("APA") and related Non-Disclosure and Non-Solicitation Agreement ("NDA"). Tripemco also sought a permanent injunction enforcing the covenants, which ran for two years until December 16, 2015. Tripemco joined in the action MacMillan Lawson Insurance Brokers Ltd., the brokerage Calvise joined upon his resignation from Tripemco, as well as its principal, Douglas MacMillan.

[2] All defendants moved for summary judgment. The motion judge granted summary judgment and dismissed the action. Tripemco appeals only in respect of the respondents, Calvise and CJCF.

[3] On the summary judgment motion, the appellant admitted the non-interference clause in the NDA was likely unenforceable. Accordingly, the narrow issue Tripemco raises on appeal is the motion judge's finding that the non-solicitation clauses in the APA and NDA were unreasonable and therefore unenforceable.

[4] Tripemco submits the motion judge made several errors in interpreting the non-solicitation covenant, including failing to interpret the reasonableness of the covenant binding the respondents in light of a mutual restrictive covenant binding Tripemco.

[5] Although we have some concerns about the interpretive approach of the motion judge, in our view this appeal can be determined on another basis. Tripemco sought damages for breach of the 2-year non-solicitation covenant and an injunction enforcing the covenant. The 2-year period covered by the covenant expired on December 16, 2015. In her reasons, the motion judge specifically found that "there is no evidence showing that Mr. Calvise solicited clients of the plaintiff." Tripemco does not contend that finding of fact is tainted by palpable and overriding error. Tripemco acknowledges there is no direct evidence in the record from a former client stating it was solicited by Calvise. Given that state of the evidence, it was open to the motion judge to make the finding of fact that she did. In light of that finding of fact, Tripemco could not succeed in its action even if the motion judge erred in concluding the non-solicitation covenant was not enforceable.

[6] Accordingly, we see no reason to interfere with the judgment dismissing the action.

[7] The respondents are entitled to their costs of the appeal fixed in the amount of $15,000, inclusive of disbursements and applicable taxes.

"C.W. Hourigan J.A." "David Brown J.A." "Himel J."