Endorsement

COURT FILE NO.: CV-09-390581
DATE: 20120605
SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Corporative Investigative Services – Plaintiff

AND:

William Blair Steele and AFI International Group Inc. - Defendants

BEFORE: Justice Kevin Whitaker

COUNSEL: Daniel A. Lublin , for the Plaintiff/Responding party

Lisa M. Bolton , for the Defendants/ Moving Parties

HEARD: April 23, 2012

What This Case is About

[ 1 ] This is a summary judgment motion brought by the defendants to dismiss the action. The action is in essence for breach of an employment contract.

[ 2 ] The defendant Steele was employed by the plaintiff Corporative Investigative Services (“CIS”). Steele quit his job with CIS and went to work for a competitor, the defendant AFI International (“AFI”).

[ 3 ] CIS seeks damages from Steele for breach of contract, breach of fiduciary obligations and wrongful resignation. CIS seeks damages from AFI for breach of contract and intentional interference with economic relations. CIS seeks punitive damages and disgorgement of profits from AFI.

[ 4 ] I conclude that this case is not appropriate for summary judgment. For reasons which follow, this motion is dismissed.

The Facts

[ 5 ] There is a considerable amount of affidavit material filed with transcripts of cross examinations.

[ 6 ] Few facts are agreed. Most are contested.

[ 7 ] CIS and AFI are both in the business of providing investigative and logistical services to protect people and property during regular business operations and labour disruptions.

[ 8 ] Steele started working for CIS on June 23, 1997. He began as a part-time hourly paid security officer. Before commencing employment, Steele signed a written employment contract agreeing to a number of post-employment obligations.

[ 9 ] On May 26, 1999 Steele accepted a full time position with CIS as a Strike Coordinator. In 2003 he became Vice President of Protective Services with CIS.

[ 10 ] In 2005, CSI proposed a new employment contract with Steele. There were discussions about the proposal. The parties disagree as to whether there was an agreement to the proposed new contract, either verbal or written, express or implied.

[ 11 ] Steele resigned from CIS effective October 31, 2008. He provided two weeks written notice.

[ 12 ] Beyond these brief and general facts, all else is vigorously contested.

[ 13 ] The parties disagree on:

(i) Steele’s job duties at CIS at the point of resignation;

(ii) Steele’s job duties after he started with AFI;

(iii) the significance of the 1997 contract;

(iv) whether Steele was the “face of CIS” to clients;

(v) whether Steele had signed or agreed expressly or by implication to the 2005 proposed employment contract;

(vi) whether Steele was subject to a non-solicitation obligation, express or implied;

(vii) if Steele was subject to such a provision, for how long;

(viii) whether some of AFI clients were also CIS clients;

(ix) what constitutes a “client” when those in the market for these services may regularly change their providers;

(x) what constitutes solicitation in this industry;

(xi) whether Steele and/or AFI solicited CIS client;

(xii) Steele’s particular responsibilities for sales at AFI.

[ 14 ] At paragraph 41 of the plaintiff’s factum, counsel set out 26 different discrete questions of fact and/or characterizations of mixed fact and law that must be adjudicated and determined. Not all 26 questions relate to what I would consider to be questions of fact only and some issues clearly overlap. I accept, however, that many of these points must be eventually decided to dispose of this action. Many will turn on credibility. Questions of intention may be raised (note the intentional interference claim).

The Law

[ 15 ] The critical issue is whether this matter may now be disposed on a summary judgment basis. The parties agree that the applicable law is set out in Combined Air Mechanical Services Inc. v. Flesch , 2011 ONCA 764.

[ 16 ] The general question is whether the motions judge is capable of a full appreciation of the evidence and issues on the basis of the material on the motion – or is a trial required to properly understand the facts and issues.

[ 17 ] This is not a simple case which will turn on a review of documents. I suspect that this case will require at least a week if not more to hear. Many of the contested issues and facts will require an investigation into whether certain statements and expressions of position were made over many occasions in the last four years.

[ 18 ] Counsel for CIS relies on comments made by the Court of Appeal in dealing with Mauldin v. Hyrniak , one of the cases dealt with in the Combined Air hearing.

[ 19 ] In Hyrniak , the Court indicated that a full appreciation of the evidence can only be achieved at trial where:

(i) there is a voluminous motion record and evidence filed on the motion;

(ii) there are many witnesses, affidavits and cross examinations on the affidavits;

(iii) where there are different theories of liability;

(iv) where numerous findings of fact are required;

(v) where credibility issues are at the heart of the case;

(vi) where the evidence of major witnesses is contested;

(vii) where there is an absence of reliable documentary yardsticks.

[ 20 ] In my view, these observations apply to the essential features of this matter. I conclude that this is not an appropriate case for summary judgment.

Costs

[ 21 ] At the conclusion of argument I asked the parties to provide me with their costs submissions in the event of their success. The defendants moving parties sought their costs in the action on a partial indemnity basis and inclusive of the motion of $112,360.17. Fees sought on the motion were only $76,585.00.

[ 22 ] The plaintiff responding party seeks on a partial indemnity basis and on the motion only, $25,546.24. This figure is inclusive of disbursements and taxes.

[ 23 ] In considering these submissions, I have regard to the factors described in Rule 57 which should govern the exercise of my discretion to award costs. I have also turned my mind to the costs sought by each side in the event of success. This assists as a measure of what a losing party might reasonably expect to contribute to the other party’s costs.

[ 24 ] The plaintiff, responding party is entitled to its costs fixed at $25,546.24 inclusive of taxes, and disbursements, payable forthwith.

Outcome and Result

[ 25 ] The motion is dismissed. Order accordingly.

Whitaker, J.

Date: June 5, 2012