Overview

[1] There are two motions. One is a motion for partial summary judgment on the plaintiff’s claim for damages for breach of a share purchase agreement. The issue in this motion is whether a restrictive covenant contained in the share purchase agreement prohibited the defendant, David Fickel, from accepting former clients of the plaintiff as clients of his new firm in the absence of any influence or encouragement from Mr. Fickel to transfer their accounts.

[2] The second motion for summary judgment is by Mr. Fickel, as plaintiff by counterclaim, for payment of a $400,000 instalment on the purchase price for his shares which was due May 13, 2016. The issues on that motion are whether the defendant to the counterclaim, a subsidiary of the plaintiff in the main action, is entitled to legal or equitable set-off and whether, if judgment were to be granted, execution should be stayed pending final resolution of the main action.

Background

[3] Jones Collombin Investment Counsel Inc. is an independent investment firm that provides wealth management services to high net worth individuals and families, charities and small foundations. It was founded in 1993 by Douglas Jones, David Fickel and Beverley Collombin. Stephen Smith joined the firm in 1999. John Pitfield joined the firm in 2011.

[4] By 2009, Mr. Collumbin had divested his shares. He stayed on under contract in a client relationship support capacity until 2013.

[5] Mr. Fickel, throughout his tenure at JCIC, was the chief investment officer.

[6] The shareholders of JCIC have always been parties to a shareholders’ agreement. Although the shareholders’ agreement has gone through various iterations, every version has had a provision concerning non-solicitation and confidential information which remained largely unchanged since 1999.

[7] In the most current version of the shareholders’ agreement, each shareholder agreed that, upon ceasing to be a shareholder, he would not solicit, endeavor to solicit or “gain” the business of, or interfere with the relationship of JCIC and, any person who had been a client of JCIC within 12 months of the date upon which the shareholder left the firm. The shareholders’ agreement provides:

4.01 Non Solicitation and Confidential Information

(1) Each Officer Shareholder severally agrees that he must not in any manner whatsoever, whether individually, as a shareholder of a corporation or in a partnership or with any other person, without the prior written consent of the Corporation at any time jointly during a period of one year from the date upon which he ceases to be a Shareholder, directly or indirectly:

(a) induce or endeavor to induce any employee of the Corporation to leave his or her employment;

(b) employee or attempts to employ or assist any person to employ any employee of the Corporation; or

(c) solicit, endeavor to solicit or gain the business with respect to investment management of, or interfere with the relationship of the Corporation with, any person who was at any time during the period of 12 months immediately preceding the date upon which he ceases to be a shareholder a client of the Corporation (hereinafter collectively referred to as “Customers”).

[8] By the end of 2012, Mr. Fickel wanted to phase out his involvement with the firm. The four remaining shareholders discussed various options but were unable to come to terms. Both sides blame the other: JCIC felt Mr. Fickel was being obstinate; Mr. Fickel felt the other shareholders were isolating him, trying to force him out of the business. By 2014, the relationship between Mr. Fickel and the other shareholders had deteriorated. In November 2014, the parties began to negotiate in earnest the terms by which Mr. Fickel would sell his shares and leave the company.

[9] Both sides retained experienced counsel through whom the negotiations were conducted. JCIC was represented by Joel Binder from Stikeman Elliot LLP. Mr. Finkel was represented by Kelley McKinnon of Gowlings.

[10] On March 24, 2015, Mr. Fickel made an offer containing two options:

(1) option one: this was referred to as the “retirement option.” It sought a purchase price of $461 per share. That was based on a 1.5 multiplier of 2014 revenues along with retained earnings of $72 per share. Payment of this price would be accompanied by a three-year non-competition clause which would guarantee that JCIC would not lose clients to Mr. Fickel.

(2) option two: this option was similar to an earlier offer made by Mr. Fickel, but with a lower share price. Mr. Fickel would sell all of his shares for $2 million, or $206 per share. This was the lowest share price he had tabled throughout the negotiations. It represented a revenue multiplier of .79 and a much lower amount for retained earnings. As to the restrictive covenant, the offer stated: “all terms and conditions of the current shareholders agreement are terminated, other than the 12 month no solicitation covenant.”

[11] Conceptually, JCIC accepted option two. On April 30, 2015, the parties signed a letter of intent that incorporated the terms of the agreement. Under the heading “Non-solicitation,” the term sheet stated that Mr. Fickel “would agree to a non-solicitation and non-disclosure covenant in the form contained in Section 4.01 of the current shareholders agreement.”

[12] On May 13, 2015, Mr. Fickel and 2466043 Ontario Inc. (a subsidiary of JCIC) entered into a share purchase agreement. Mr. Fickel agreed to sell his JCIC shares to 246 for approximately $2 million according to a payment schedule. The payment terms were: an initial payment of $1,150,000 and two subsequent payments, supported by promissory notes, of $400,000 on May 13, 2016 and 2107.

[13] Section 5 of the share purchase agreement contained the restrictive covenant which is the subject of the present dispute. It tracks the language of the shareholders’ agreement quoted above and provides:

Non Solicitation and Confidential Information

(1) The Vendor agrees that he must not in any manner whatsoever, whether individually, as a shareholder of a corporation, in a partnership, or otherwise with any other person, without prior written consent of the Corporation, at any time during the period from the date hereof and ending on May 13, 2016 (the “Restricted Period”), directly or indirectly:

(a) induce or endeavor to induce any employee of the Corporation to leave his or her employment;

(b) employee or attempt to employ or assist any person to employ any employee of the Corporation; or

(c) solicit, endeavor to solicit or gain the business with respect to investment management of, or interfere with the relationship of the Corporation with, any person who was at any time during the prior 12 months from the date hereof a client of the Corporation (hereinafter collectively referred to as “Customers”).

[14] On May 14, 2015, Mr. Fickel accepted a position with RBC Dominion Securities in Toronto. Shortly after Mr. Fickel joined RBC DS, some JCIC clients transferred their accounts to RBC DS. Mr. Fickel, in his statement of defence, concedes that some clients who held accounts at JCIC “have asked to become clients of RBC and have since been accepted as such.” The number and value of these transfers is not in issue on this motion.

Is There a Genuine Issue Requiring a Trial?

The Test For Summary Judgment

[15] The test for summary judgment is set out in Rule 20.04(2)(a) of the Rules of Civil Procedure. The Court shall grant summary judgment if it is satisfied that there is no genuine issue of requiring a trial with respect to a claim or defence.

[16] The Supreme Court of Canada unanimously held in Hyrniak v. Mauldin, 2014 SCC 7, that there is no genuine issue requiring a trial when, on a motion for summary judgment, the judge hearing the motion:

(a) is able to make necessary findings of fact;

(b) can apply the law to the facts; and

(c) as a result, determines that summary judgment is a proportionate, most expeditious and less expensive means of achieving a just result.

[17] The moving party bears the onus to prove that there is no genuine issue requiring a trial. However, the responding party bears an evidentiary burden to provide the evidence on which it relies to show that a genuine issue for trial exists. The responding party is required to put its best foot forward. It must lead trump or risk losing. The judge hearing the motion is entitled to expect that all of the evidence that would be before the judge at trial is before the judge hearing the motion.

[18] The evidence on a motion for summary judgment must be sufficient to give a judge confidence that he or she can fairly resolve the dispute on the written record.

[19] The judge hearing the motion must consider the evidence submitted by the parties and may exercise any of the following powers, unless it is in the interest of justice for such powers to be exercised only at a trial:

weighing the evidence;
evaluating the credibility of a deponent;
drawing any reasonable inference from the evidence.

The Interpretation of Commercial Contracts

[20] There are many useful formulations outlining the basic principles of contract interpretation. I find the decision of the Court of Appeal for Ontario in Salah v. Timothy’s Coffees of the World Inc., 2010 ONCA 673 at para. 16 particularly helpful and succinct:

When interpreting a contract, the court aims to determine the intentions of the parties in accordance with the language used in the written document and presumes that the parties have intended what they have said. The court construes the contract as a whole, in a manner that gives meaning to all of its terms, and avoids an interpretation that would render one or more of its terms ineffective. In interpreting the contract, the court must have regard to the objective evidence of the “factual matrix” or context of the underlying negotiation of the contract, but not the subjective evidence of the intention of the parties. The court should interpret the contract so as to accord with sound commercial principles and good business sense, and avoid commercial absurdity.

[21] Thus, a commercial contract is to be interpreted:

(d) as a whole, in a manner that gives meaning to all of its terms and avoids an interpretation that would render one or more of its terms ineffective;

(e) by determining the intention of the parties in accordance with the language they have used in the written document and based upon the “cardinal presumption” that they have intended what they said;

(f) with regard to objective evidence of the factual matrix underlying the negotiation of the contract, but without reference to the subjective intention of the parties; and

(g) in a fashion that accords with sound commercial principles and good business sense and that avoids a commercial absurdity.

[22] The Supreme Court of Canada also considered the principles of contract interpretation in Sattva Capital Corp. v. Creston Moly Corp., 2014 SCC 53 at para. 47. The overriding concern is to determine the intent of the parties. To do so the decision-maker must read the contract as a whole, giving the words used their ordinary and grammatical meaning, consistent with the surrounding circumstances known to the parties at the time.

[23] In their affidavit material on these motions, both sides rely on the course of negotiations and on evidence of their subjective intentions and understandings of their own and the other parties’ objectives, and upon a good deal of argument, opinion and supposition. It is therefore important to note that, while the surrounding circumstances will be considered in interpreting the terms of the contract, they must never be allowed to overwhelm the words of the agreement. The goal of examining such evidence is to deepen the decision-maker’s understanding of the mutual and objective intentions of the parties as expressed in the words of the contract. Interpretation of a written contractual provision must always be grounded in the text and read in light of the entire contract (Sattva, supra, para. 57).

[24] While the nature of the evidence to be considered as surrounding circumstances varies from case to case, it should consist only of objective evidence of the background facts at the time of the execution of the contract. This involves facts that were or reasonably ought to have been within the knowledge of both parties at or before the date of contracting (para. 58).

[25] The parol evidence rule precludes admission of evidence outside the words of the written contract that would add to, subtract from, vary, or contradict a contract that has been wholly reduced to writing. The rule precludes, among other things, evidence of the subjective intentions of the parties. The purpose of the parol evidence rule is primarily to achieve finality and certainty in contractual obligations, and secondarily to hamper a party’s ability to use fabricated or unreliable evidence to attack or vary the terms of a written contract (para. 59).

[26] Prior drafts and evidence of the negotiations leading up to a final agreement are generally not considered part of the factual matrix and tend to be excluded from the interpretive process, see Indian Molybdenum Ltd. v. The King, 1951 CanLII 378 (SCC), [1951] 3 D.L.R. 497 (SCC) and Prenn v. Simmonds, [1971] 3 All E.R. 237 (HL). As I wrote in Actuate v. Symcor, 2015 ONSC 689 at para. 68:

I have grave doubts that pre-contract negotiations form part of the factual matrix typically admissible in contract interpretation cases. Contract interpretation involves construing the bargain the parties made, not the bargain they wanted, or hoped, to make. Even if contract negotiations were admissible under the rubric of factual matrix, they should be treated with caution as inherently suspect as they necessarily involve an element of subjectivity. Positions in negotiations may be taken for purely strategic reasons. At best, they tend to show only what a party wanted, not what they got, in the ultimate bargain.

To this might be added an additional reason for treating evidence of negotiations as suspect; that a position deemed by a party to be acceptable at one stage of the negotiation might well be viewed by the same party as unacceptable at a different stage of the negotiation.

[27] In some circumstances, however, the fact of an offer or counter-offer being made could constitute objective evidence within the knowledge of both parties before the final contract is made. In this sense, therefore, there may be some limited scope (where it is relevant) for evidence of the negotiations, provided it is objective (i.e., does not involve subjective intentions, opinion or argument) and is known to both sides before the final contract is made, see discussion of this topic in Hall, Canadian Contractual Interpretation Law (2nd ed.) LexisNexus 2012, at pp. 29-30 and 80-81.

Positions of the Parties

[28] The plaintiff’s argument is simple. The share purchase agreement says Mr. Fickel cannot “gain” the business of a former client for a year. “Gain” means “obtain or secure.” By accepting former clients as clients of his new firm within a year, Mr. Fickel “gained” the business of those clients. If “gain” merely meant “no solicitation,” the use off the word “gain” in the restrictive covenant would be superfluous and would be read out of the contract entirely, contrary to the rules of contract interpretation. Accordingly, by accepting former clients as clients of RBC DS, Mr. Fickel breached the restrictive covenant in the share purchase agreement and is liable for damages in accordance with the terms of that agreement.

[29] Mr. Fickel advances three arguments in response. First, he argues that the clients came to RBC DS on their own, without solicitation, inducement or any other action taken on his part whatsoever. All RBC DS did was accept them as clients. “Gain” requires more than “accept.” Mere acceptance of a former client is not prohibited by the use of the word “gain,” which imports the notion of some action or effort having to be taken on Mr. Fickel’s or others’ part.

[30] Second, Mr. Fickel argues that there are material disputes about the factual matrix which can only be resolved by a trial. The most significant aspect of this argument involves the course of negotiations leading to the share purchase agreement. Specifically, Mr. Fickel argues that the course of negotiations reveals that JCIC knew it was not getting a comprehensive non-compete regarding clients of the firm when it signed the share purchase agreement.

[31] Finally, Mr. Fickel argues that the restrictive covenant is, in any event, unenforceable as being unreasonably broad.

Analysis

The Plain Meaning of the Restrictive Covenant

[32] There are good reasons to be wary of motions for partial summary judgment, see Baywood Homes Partnership v. Haditaghi, 2014 ONCA 450, [2014] O.J. No. 2745 (C.A.) at para. 44. I have carefully considered whether any of those reasons apply here. I am satisfied that the central issue, the proper interpretation of the restrictive covenant in section 5 of the share purchase agreement, does not turn on credibility or disputed issues of material fact. Accordingly, I have concluded that this is a case where partial summary judgment may be warranted.

[33] For reasons I will outline below, I agree with the plaintiff that there are no material facts in dispute requiring a trial on the narrow question of the scope of the phrase “solicit, endeavor to solicit or gain.” I am, however, unable to agree with the plaintiff that the language of the share purchase agreement prohibited Mr. Fickel from accepting any former client, acting independently, who, without encouragement or any other action whatsoever by Mr. Fickel, chose to transfer his or her account to RBC DS.

[34] The words restricting Mr. Fickel’s activities in section 5 of the share purchase agreement are all verbs. All of them suggest some kind of positive action, not mere passive acquiescence, is necessary before the non-solicitation provision is engaged. The dictionary definitions of the relevant terms illustrate this point.

Induce:

a) prevail on; persuade: The Canadian Oxford Dictionary;

b) to move by persuasion or influence; to call forth or bring about by influence or stimulation; to cause (someone or something) to do something: Merriam-Webster Dictionary.

Employ:

a) use (a thing, time, energy, strategy, etc.) especially to good effect: COD;

b) to use (something) for a particular purpose or to do something; to use or direct (something, such as your time or effort) in order to achieve a particular goal: Webster.

Assist:

a) help (a person, process, etc.): COD;

b) to give support or help; to make it easier for someone to do something or for something to happen: Webster.

Interfere:

a) (of a person) meddle or obstruct a process: COD;

b) to enter into or take a part in the concerns of others; to interpose in a way that hinders or impedes: Webster.

Solicit:

a) ask repeatedly or earnestly for or seek or invite: COD;

b) to approach with a request or plea; to make petition to; to urge (as one's cause) strongly: Webster.

Gain:

a) obtain or secure: COD;

b) to acquire or get possession of usually by industry, merit, or craft; to win in competition or conflict; to cause to be obtained or given: Webster.

[35] The words “obtain” and “secure” are themselves words which suggest achievement or success through some form of effort on the part of the one who has gained. The verb “gain,” therefore, imports a sense that the result gained has been obtained or secured by virtue of some action or effort on the part of the party who has achieved the gain.

[36] The plaintiff’s argument focuses on the word “gain” because Mr. Fickel presumably received some kind of a benefit when his former clients followed him to RBC DS, even though (for the purposes of this motion for partial summary judgment) he took no positive steps to convince them to join him. While it is true that “a gain,” used as a noun, can mean “an increase of possessions, etc.; a profit, advance, or improvement” (COD), the use of the definition of “gain” as a noun is not supported by the context of the provision: grammatically, the contract uses “gain,” as well as all of the other terms listed above, as a verb.

[37] My interpretation of the verb “gain” does not render its use in the restrictive covenant superfluous. I say this because it is used, in the context of section 5 of the share purchase agreement, as a “catchall” to broaden the scope of prohibited actions or effort, used to “acquire or get possession of” the transferring client beyond “solicitation.”

[38] Further support for this conclusion can be derived from the fact that the restrictive covenant appears under the heading “Non Solicitation and Confidential Information.” “Non-acceptance” of a client is much more restrictive than “non-solicitation” of a client. Although clearly not dispositive, the implication from this choice of heading is that the section prohibits Mr. Fickel from persuading clients to switch firms, not from accepting clients who switch firms of their own accord.

[39] In addition, JCIC’s customers are strangers to the shareholders’ agreement and the share purchase agreement. A restrictive covenant which purports to preclude the customers’ choice of investment advisor is a significant infringement of the customers’ otherwise untrammeled freedom of choice in an important relationship based on confidence and trust. While it is by no means impossible for parties to reach such an agreement, clear language would have to be used. I do not think the word “gain” provides sufficient clarity to conclude that such a limitation on the customer’s choice was intended. Rather, the language used in section 5 of the share purchase agreement is directed at the prohibition of actions by Mr. Fickel (or RBC DS on his behalf) that would encourage or influence customers to transfer their business to the new firm.

[40] For these reasons, construing the contract as a whole, in a manner that gives meaning to all of its terms and avoids an interpretation that would render one or more of its terms ineffective, I conclude that the language of section 5 of the share purchase agreement does not prohibit Mr. Fickel or RBC DS from merely accepting former customers of Mr. Fickel/JCIC as customers of the new firm, provided that the customers have acted independently and that Mr. Fickel (or RBC DS on his behalf) has taken no action to encourage or influence the customers to leave JCIC and follow him to RBC DS.

The Factual Matrix Evidence

[41] Both parties have, in the guise of factual matrix, sought to adduce “evidence” of their intentions or imputed intentions, as well as speculation on the intentions or understandings of the other party. Both parties’ affidavits also contain a good deal of argument and opinion. Most of this evidence concerns the course of negotiations leading to the completion of the share purchase agreement. I have disregarded this evidence as inadmissible for the most part.

[42] It is clear, and simply common sense, that the price to be paid for Mr. Fickel’s shares and the scope of the restrictive covenant to which he might be subject were important, related issues in the negotiation of the purchase of his shares.

[43] It is also fair to say that JCIC was after the lowest price and the broadest restrictive covenant it could achieve, while Mr. Fickel wanted the highest price and the least restrictive covenant available.

[44] The agreement ultimately reached reflects an assessment, by both parties, of the balance between these competing objectives that was acceptable to them at the time.

[45] Mr. Fickel’s two options presented on March 24, 2015 reflected this relationship. Option one was for a high price accompanied by a highly restrictive covenant against competition of any kind. Option two was for a lower price, accompanied by a less restrictive covenant. JCIC opted for a slightly revised version of option two and must, therefore, be taken, on the basis of objective fact, to have accepted that it was not getting a total and comprehensive ban on any competition of any kind. This conclusion, it seems to me, does not involve any material dispute of fact or other controversy. But, beyond this common sense and rather obvious conclusion, I do not think any more can be taken from the evidence about the course of negotiations.

[46] When restricted to the objective facts known to both sides, the evidence of negotiations does no more than help to establish a context for the negotiations. I say this because, of course, the dispute in this case is not over whether Mr. Fickel agreed to a broad, comprehensive non-competition clause (it is clear he did not) but whether he agreed to a prohibition on RBC DS accepting any of his former clients for a year, regardless of how those clients came to transfer their accounts away from JCIC to RBC DS.

[47] The disputed evidence, which counsel for Mr. Fickel seeks to rely upon as requiring a trial, seeks to address the latter issue but, as I have concluded earlier, that evidence is largely inadmissible as an attempt to adduce evidence of the parties’ intentions or imputed intentions, including speculation on the alleged intentions or understandings of the other party, as derived from the negotiations.

[48] Counsel for Mr. Fickel relied on the decision of D. Brown J. in George Weston Ltd. v. Domtar Inc., 2012 ONSC 5001, 2012 O.J. No. 4123 for the proposition that rulings concerning the admissibility of evidence are best left for trial. While there are many circumstances in which I would agree with that proposition, this, it seems to me, is not one of them. I note that D. Brown J. relied upon the decision of this court in Kentucky Fried Chicken of Canada, a Division of Pepsi-Cola Canada Ltd. v. Scotts Foods Services Inc., [1997] O.J. No. 3773 (Gen. Div.) That case, however, involved a motion at the outset of trial for a blanket ruling, based on the counsel’s opening statements, to exclude as inadmissible any evidence of negotiations and evidence of either party’s subjective intentions. The trial judge declined to make that ruling until the evidence was actually presented. I also note that the Domtar decision was issued before the release of the decision of the Supreme Court of Canada in Hyrniak. In this case, no blanket ruling is sought. The evidence in controversy is before the court. A trial judge would be in no better position than I am to rule on its admissibility.

[49] I conclude, therefore, that on the limited issue of the proper interpretation of the restrictive covenant in section 5 of the share purchase agreement, there are no issues of material fact the resolution of which requires the forensic machinery of the trial.

Enforceability of the Restrictive Covenant

[50] Mr. Fickel’s argument that a trial is required to determine whether the restrictive covenant is unenforceable on grounds of restraint of trade is based upon his alternative position that the restrictive covenant is ambiguous. Given my disposition of this motion on the first issue, it is not necessary to deal with this argument.

Judgment on the Promissory Note

[51] Mr. Fickel, as plaintiff by counterclaim, has brought a cross motion for summary judgment seeking payment of a promissory note in the amount of $400,000 which became due on May 13, 2016.

[52] The share purchase agreement established a schedule by which 246 must pay Mr. Fickel for his shares in JCIC:

(a) a non-interest-bearing promissory note for $1,150,000 was due on demand as of May 13, 2015; and

(b) two non-interest-bearing promissory notes for $400,000 each, are due respectively on the first and second anniversaries of the share purchase agreement (i.e., May 13, 2016 and May 13, 2017).

[53] 246 paid the required $1,150,000 on May 13, 2015. JCIC’s statement of claim in this matter was issued in August 2015. As a result of this litigation, 246 declined to pay on the promissory note due May 13, 2016 for $400,000.

[54] The only issues on Mr. Fickel’s motion are whether 246 can rely on the doctrines of legal or equitable set off and whether, in any event, if judgment is granted, there ought to be a stay of execution pending the disposition of JCIC’s action against Mr. Fickel.

[55] The doctrine of legal setoff is narrow in scope:

(1) the monies owing must be debts which arise from mutual cross obligations; and

(2) the debts must be liquidated sums or money demands which can be ascertained with certainty.

Holt v. Telford, 1987 CanLII 18 (SCC), [1987] 2 S.C.R. 193.

[56] A mutual cross obligation is a debt due from each party to the other. Mutuality requires symmetry of debt obligations. The requisite symmetry does not exist in this case. This is because there is only one debt obligation between these parties; 246 owes Mr. Fickel $400,000 on the promissory note. JCIC has a claim for unliquidated damages against Mr. Fickel; 246 has no claims against Mr. Fickel. JCIC’s claim is not for a debt and not for an ascertainable liquid amount. Legal set-off is not available to 246 on the facts of this case.

[57] Equitable set off is available where there are cross obligations so closely connected or related that it would be unjust to permit one party to enforce its obligation without permitting a set-off, Holt v. Telford, supra. However, the common law has established that equitable set-off does not apply to bills of exchange, Iraco Ltd. v. Staiman Steel, 1987 CanLII 4072 (ON CA), [1987] O.J. No. 233 (C.A.). For the purposes of equitable set-off, promissory notes must be treated as bills of exchange, Dhaliwal v. Gulati, [2012] O.J. No. 6413 (S.C.J.); Balilty v. Commercial Aluminum Solutions Inc., 2004 CanLII 33467 (ON CA), [2004] O.J. No. 4177 (C.A.). Equitable set-off, therefore, is also not available to 246 on the facts of this case.

[58] There being no set-off available, judgment is granted against 246 for $400,000 on the May 2016 promissory note.

[59] Rule 20.08 provides that the enforcement of a summary judgment may be stayed pending the determination of any other issue in the action or a counterclaim, cross-claim or third party claim, on such terms as are just. A stay of execution involves the exercise of discretion, taking into account the nature of the defendant’s claims and the equities between the parties, Comtract Air Compressors Inc. v. A.W. Service Industries Inc., 2000 CanLII 22763 (ON SC), [2000] O.J. No. 1867 (S.C.J.).

[60] There is no question that JCIC’s claims for breach of the share purchase agreement are tied up with Mr. Fickel’s claims for payment under the share purchase agreement. They arise out of the same contract. There is, in my view, the potential for a circuity of action in these claims given the nature of the claims and the stage of proceedings at which they will be resolved. In the circumstances, I order that execution of this judgment be stayed pending final resolution of JCIC’s claim in the main action.

Costs

Costs to the successful party on the main motion should be fixed at $50,000 and on the cross motion at $10,000. Costs are therefore awarded to Mr. Fickel in the amount of $60,000.

Penny J.

Released: October 26, 2016

CITATION: Jones Collombin Investment Counsel Inc. v. Fickel, 2016 ONSC 6536

COURT FILE NO.: CV15-11078-00CL

DATE: 20161026

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

Jones Collombin Investment Counsel Inc.

Plaintiff

– and –

David W. Fickel and Beverley Collombin

Defendants

REASONS FOR JUDGMENT

Penny J.

Released: October 26, 2016

Jones Collombin Investment Counsel Inc. v. Fickel, 2016 ONSC 6536

Case Summary

Overview

Background

Is There a Genuine Issue Requiring a Trial?

The Test For Summary Judgment

The Interpretation of Commercial Contracts

Positions of the Parties

Analysis

The Plain Meaning of the Restrictive Covenant

The Factual Matrix Evidence

Enforceability of the Restrictive Covenant

Judgment on the Promissory Note

Costs

Judge

Counsel

Parties

Areas of Law

Fact Patterns

Financial Outcomes

Issues

Statutory Provisions 2

Legal Tests 3