Donaldson Travel Inc. v. Murphy et al., 2016 ONSC 740
Court File No.: C-285-12
Date: 2016-02-05
Superior Court of Justice - Ontario
Re: DONALDSON TRAVEL INC., Plaintiff
And:
MARY MURPHY, PETER VAN DER HEYDEN and 1631318 ONTARIO INC. Defendants
Before: The Honourable Mr. Justice D.A. Broad
Counsel: John W. McDonald, for the Plaintiff Gary E. Flaxbard, for the Defendant Mary Murphy, Patricia J. Forte, for the Defendants Peter Van Der Heyden and 1631318 Ontario Inc.
Heard: January 13, 2016
Endorsement
Background
[1] The plaintiff and the defendant 1631318 Ontario Inc. each carry on business as travel agencies, the former under the business names “Donaldson Travel” and “Uniglobe Donaldson Travel”, and the latter under the business name “Goliger’s TravelPlus”. For ease of reference I will refer to the plaintiff as “Donaldson” and to the corporate defendant as “Goliger’s”. Donaldson carries on business from an office in the City of Cambridge and Goliger’s from an office in the City of Waterloo.
[2] The defendant Peter Van Der Heyden (“Van Der Heyden”) is the President and director of Goliger’s.
[3] The defendant Mary Murphy (“Murphy”) was employed by Donaldson as a travel agent from October 2004 to April 2007 and then again from June 2007 to February 3, 2012 when she resigned from that employment. On February 6, 2012 Murphy commenced employment as a travel agent with Goliger’s.
[4] Murphy was subject to three written employment contracts entered into during her tenure with Donaldson. The first two contracts were dated October 7, 2004 and June 25, 2007 respectively and the last contract was undated, but was stated to be effective November 16, 2009. It is acknowledged by Donaldson that, for the purpose of this action, the last contract effective November 16, 2009 (hereafter the “employment agreement”) is the relevant contract upon which it relies in support of its claims against the defendants.
Allegations in Statement of Claim
[5] Donaldson commenced this action by Statement of Claim issued on March 21, 2012. In the prayer for relief in the Statement of Claim Donaldson seeks the following:
(a) compensatory damages against Murphy for breach of the employment agreement in the sum of $500,000;
(b) in addition or in the alternative, compensatory damages against Murphy for misappropriation of confidential information in the sum of $500,000;
(c) in addition, or in the alternative, compensatory damages against Van Der Heyden and Goliger’s for misappropriation of confidential information in the sum of $500,000;
(d) in addition, or in the alternative, compensatory damages against Van Der Heyden and Goliger’s for wrongful interference with contractual relations in the sum of $500,000;
(e) in addition, or in the alternative, an interim, interlocutory and permanent injunction restraining Murphy, Van Der Heyden and Goliger’s from directly or indirectly breaching the employment agreement and misappropriating confidential information of Donaldson.
Motions for Summary Judgment
[6] Van Der Heyden and Goliger’s brought a motion on March 10, 2015 for summary judgment dismissing the action against them. Murphy brought a motion on April 1, 2015 for summary judgement dismissing the action against her.
[7] Van Der Heyden and Goliger’s motion is supported by the affidavit of Van Der Heyden sworn March 10, 2015 (the “Van Der Heyden affidavit”). Murphy’s motion is supported by an affidavit sworn by her on April 1, 2015 (the “Murphy affidavit”). Donaldson responded to the motions by delivery of the affidavit of Barbara Donaldson sworn April 30, 2015 (the “Donaldson affidavit”). Van Der Heyden and Goliger’s delivered responding affidavits of Sharon Bouchard sworn May 27, 2015 (the “Bouchard affidavit”) and Peter Monsberger sworn May 28, 2015 (the “Monsberger affidavit”). Murphy delivered a responding affidavit sworn by her on May 28, 2015 (the “responding Murphy affidavit”). The plaintiff delivered a Supplementary Motion Record containing a further affidavit of Barbara Donaldson sworn on June 27, 2015 (the “supplementary Donaldson affidavit”) and an affidavit of Anne Lochead sworn July 8, 2015 (the Lochead affidavit”).
[8] None of the affiants were cross-examined on their affidavits, however Barbara Donaldson, on behalf of Donaldson, Van Der Heyden on behalf of Goliger’s and himself, and Murphy were each examined for discovery prior to the bringing of the motions.
Analysis
(a) Factual Allegations in the Statement of Claim
[9] The Statement of Claim, in summary, alleges the following:
(a) that the defendants, both before and after Murphy terminated her employment with Donaldson, actively solicited customers of Donaldson;
(b) Van Der Hayden and Goliger’s knew or ought to have known that by soliciting customers of Donaldson Murphy was in breach of the employment agreement and that she was misappropriating confidential information of Donaldson;
(c) the defendants Van Der Heyden and Goliger’s, or either of them, induced Murphy to breach the employment agreement and participated in her misappropriation of confidential information such that those acts constituted wrongful interference with contractual relations;
(d) there are four former customers of Donaldson that are now customers of the defendants as a result of the defendants’ breach of the employment agreement and/or as a result of the defendants’ misappropriation of confidential information, namely:
(i) Jamesway Incubators Company Inc.;
(ii) TeledyneDALSO Waterloo;
(iii) E Craftsmen; and
(iv) IGNIS Innovation.
[10] It is not pleaded in the Statement of Claim that Murphy was a fiduciary employee of Donaldson. Nor was it alleged, either in the responding affidavit material filed on behalf of Donaldson or during submissions, that she was ever in a fiduciary capacity with Donaldson.
(b) Principles Applying to Summary Judgment Motions
[11] The Court of Appeal in the case of Combined Air Mechanical Services et al v. Flesch et al 2011 ONCA 764, at paras. 40-44 observed that generally there are three types of cases that are amenable to summary judgment pursuant to Rule 20 of the Rules of Civil Procedure, namely:
(a) a case where the parties agree that it is appropriate to determine an action by way of a motion for summary judgment;
(b) a case where a claim or a defence is shown to be without merit; and
(c) a case where the trial process is not required in the interest of justice.
[12] The Supreme Court of Canada in Hryniak v. Mauldin, [2014] S.C.R 87 stated at para. 49 that there will be no genuine issue requiring a trial when a judge hearing a summary judgment motion is able to reach a fair and just determination on the merits, and that this will be the case where the process (1) allows the judge to make the necessary findings of fact, (2) allows the judge to apply the law to the facts, and (3) is a proportionate, more expeditious and less expensive means to achieve a just result.
[13] The Supreme Court of Canada went on to provide a roadmap or approach to be followed by judges hearing motions for summary judgment at paras. 66-68. The judge should first determine if there is a genuine issue requiring trial based only on the evidence before her, without using the new fact-finding powers in sub rules 20.04(2.1) and (2.2). There will be no genuine issue requiring a trial if the summary judgment process provides the motions judge with the evidence required to fairly and justly adjudicate the dispute and is a timely, affordable and proportionate procedure. If there appears to be a genuine issue requiring a trial, she should then determine if the need for a trial can be avoided by using the new powers under sub rules 20.04(2.1) and (2.2). While summary judgment must be granted if there is no genuine issue requiring a trial, the decision to use either the expanded fact-finding powers or to call oral evidence is discretionary.
(c) Legal Bases for the Plaintiff’s Claims
[14] It is to be observed that, as pleaded in the statement of claim, the plaintiff’s claim against the defendants has three legal bases, namely:
(a) Murphy breached the employment agreement with Donaldson by actively soliciting customers of Donaldson and misappropriating confidential information;
(b) Van Der Heyden and Goliger’s actively solicited customers of Donaldson and participated in Murphy’s misappropriation of confidential information of Donaldson, thereby inducing Murphy to breach the employment agreement;
(c) Van Der Heyden and Goliger’s participated in Murphy’s misappropriation of confidential information which constituted wrongful interference with contractual relations.
[15] Although not pleaded in the Statement of Claim, except in the prayer for relief, a fourth legal basis was advanced by counsel for the plaintiff in submissions, namely that Murphy was under an obligation at common law, that is, apart from the employment agreement, not to misappropriate confidential information of Donaldson and that she did so. The plaintiff, in the prayer for relief, claimed that Van Der Heyden and Goliger’s participated in the misappropriation of confidential information and are therefore liable.
[16] It is evident from the Statement of Claim, and in particular at paragraphs 25 and 26 (where the particulars of the allegations against the defendants as set out) that the claim advanced against Goliger’s and Van Der Heyden for “wrongful interference with contractual relations” is based upon an alleged interference with the contractual relations between Donaldson and Murphy and not with the contractual relations between Donaldson and its customers. This is confirmed by a review of Donaldson’s Factum, and in particular, paras. 29-35.
[17] I propose to examine each of these four bases for liability in turn to assess whether there is a genuine issue for trial in respect of any one or more of them.
(d) Claim that Murphy breached the Employment Agreement
[18] The covenant in the employment agreement upon which Donaldson relies reads as follows:
Mary agrees that in the event of termination or resignation that she will not solicit or accept business from any corporate accounts or customers that are serviced by Uniglobe Donaldson Travel, directly, or indirectly.
[19] It is noted that this covenant (hereinafter referred to as the “restrictive covenant”) contains neither a geographic nor a temporal restriction on Murphy’s obligation. It is also noted that the obligation which the the restrictive covenant purports to place on Murphy extends beyond an obligation not to solicit corporate accounts or customers that were and are serviced by Donaldson to include an obligation not to “accept business from” such accounts or customers. It also purports to extend the obligation not to solicit or accept business, of any nature, from corporate accounts and customers of Donaldson generally, without restricting them to corporate accounts and customers which had been serviced by Murphy during the course of her employment with Donaldson or even which were corporate accounts or customers of Donaldson during her tenure.
[20] The Court of Appeal, in the case of H.L. Staebler Company Ltd. v. Allan, (2008) 2008 ONCA 576, 92 O.R. (3d) 107 (C.A.) observed, at para. 33, that the legal principles that apply when determining whether a restrictive covenant in an employment contract is enforceable have long been settled - in short, such a covenant is enforceable only if it is reasonable between the parties and with reference to the public interest. At para. 34 the court stated that this test reflects the competing principles that must be balanced, namely the important public interest in discouraging restraints on trade and maintaining free and open competition on the one hand, and that the disinclination to restrict the right to contract, particularly when that right has been exercised by knowledgeable persons of equal bargaining power.
[21] At para. 36 of Staebler the Court set forth a framework for assessing whether a restrictive covenant is overly broad or is only that which is reasonably required for the employer’s protection. The Court indicated that the starting point is an overall assessment of the clause, the agreement within which it is found, and all of the surrounding circumstances. Thereafter, the three factors must be considered are:
(i) did the employer have a proprietary interest entitled to protection?
(ii) are the temporal or spatial features of the covenant too broad?
(iii) Is the covenant on enforceable as being against competition generally, and not limited to proscribing solicitation of clients of the former employer?
[22] At para. 40 the Court cited the Supreme Court of Canada case of Elsley Estate v. J.G. Collins Insurance Agencies Ltd.., 1978 CanLII 7 (SCC), [1978] 2 S.C.R. 916 as making it clear that a non-solicitation clause is normally sufficient to protect an employer’s proprietary interest and that a non-competition clause is warranted only in exceptional circumstances. The Court quoted Dickson, J. at pp. 925-926 of Elsley as stating “the next and crucial question is whether the covenant is unenforceable as being against competition generally, and not limited to proscribing solicitation of clients of the former employer. In the conventional employer/employee situation the clause might well be held invalid for that reason.”
[23] In my view, insofar as the restrictive covenant in this case purports to proscribe not simply solicitation of Donaldson’s corporate accounts and customers but also the acceptance of business from such customers, it constitutes a non-competition covenant rather than a non-solicitation covenant. At para. 38 of Staebler the Court of Appeal observed that “a non-competition clause restrains the departing employee from conducting business with former clients and customers whereas a non-solicitation clause merely prohibits the departing employee from soliciting their business.” “Accepting business” in the restrictive covenant in this case is equivalent to “conducting business” in the formulation set forth in Staebler.
[24] There is nothing in the evidence presented by Donaldson to suggest that there were exceptional circumstances which would warrant the imposition of a non-competition covenant, rather than merely a non-solicitation covenant, to protect its proprietary interests.
[25] At paragraph 62 of the Donaldson affidavit, Barbara Donaldson deposed “the Third Employment Agreement [i.e. the employment agreement stated to be effective November 16, 2009] was drafted to delete the non-competition provisions that had been inserted in both the First Employment Agreement and the Second Employment Agreement in view of the developing case law that favoured non-solicitation agreements as a reasonable form of protection for Donaldson’s proprietary interest.”
[26] Ms. Donaldson does not point, in her affidavits, to any exceptional circumstances, insofar as Murphy was concerned, which would warrant the imposition of a non-competition covenant on Murphy in order to protect Donaldson’s proprietary interests.
[27] At para. 70 of the Donaldson affidavit it is stated that “this proprietary interest of Donaldson [i.e. the development of a special relationship and loyalty between an agent such as Murphy with Donaldson’s clients as referred to in para. 69 of the affidavit] needed to be protected by a non-solicitation agreement that is drafted, in this case, not as a non-competition agreement but as a non-solicitation agreement and restricted to Donaldson clients.”
[28] Contrary to what Ms. Donaldson states, the restrictive covenant is not drafted merely as a non-solicitation agreement but is clearly drafted as a non-competition agreement insofar as it restricts Murphy from “accepting business” from Donaldson clients, including clients that she had nothing to do with during her tenure with Donaldson.
[29] At para. 43 of Staebler the Court of Appeal states that “the fact that the clause might have been enforceable had been drafted in narrower terms will not save it. The question is not whether a valid agreement might have been made but whether the agreement that was made is valid.”
[30] To similar effect the Supreme Court of Canada in Shafron v. KRG Insurance Brokers 2009 SCC 6, [2009] 1 S.C.R. 157 stated, at p.159:
There is no objective of bright-line test for reasonableness in applying notional severance simply amounts to a court rewriting a covenant in a manner that it subjectively considers reasonable. Employer should not be invited to draft overly broad restrictive covenants with the prospect that the court will sever the unreasonable parts or read down the covenant to what the courts consider reasonable. This would change the risks assumed by the parties and inappropriately increase the risk that an employee will be forced to abide by an unreasonable covenant.”
[31] I find that the restrictive covenant in this case is unreasonable and therefore unenforceable. It constitutes a non-competition covenant which was not warranted, by the existence of any exceptional circumstances, for the reasonable protection of Donaldson’s proprietary interests. It contains no temporal limitation and it purports to restrict Murphy from doing business with any “corporate accounts and customers” of Donaldson regardless of whether she had any contact or involvement with them during her tenure with Donaldson or whether they were customers of Donaldson at all during her tenure. The restrictive covenant also purports to restrict Murphy from accepting business with any Donaldson clients without regard to the type of business involved. The restrictive covenant is not limited to Murphy accepting business that competes with Donaldson in the travel industry but rather, on its face, would extend to any type of business which may be completely unrelated to Donaldson’s business.
[32] The unreasonable restrictive covenant cannot be rendered reasonable by notional severance or by reading it down.
[33] Donaldson points to Donaldson’s “Company Policy” dated January 2009 signed by Murphy on January 9, 2009 (the “policy manual”) and argues that it must be considered together with the restrictive covenant.
[34] Policy III-01 of the policy manual states that:
each employee has to sign a non-solicitation of clients or corporate accounts agreement as a prerequisite for employment by the Company. An agreement will be prepared for signature of the new employee. Upon acceptance of a position with the company the employee will have to sign the agreement that is required to be submitted on the first day of work. Any refusal to do so will be considered a resignation.
This will include a non-solicitation agreement and an agreement not to entice any clients the employee has worked with while in the employ of the Company, should they leave this employer.
[35] It is evident from a plain reading of this policy that it is not intended to be an operative and enforceable restrictive covenant but rather simply constitutes notice to employees that they will be required, as a condition of their continued employment, to sign a “non-solicitation of clients or corporate accounts agreement.” The operative restriction which Donaldson sought to impose upon Murphy was not this policy but rather the restrictive covenant contained in the employment agreement stated to be effective November 16, 2009. As it transpired, the scope of the purportedly operative restrictive covenant contained in the employment agreement went far beyond the scope of the covenant signalled by the policy manual. The policy manual cannot be used to read down the restrictive covenant in an effort to make it reasonable and therefore enforceable.
[36] The policy manual does not therefore assist Donaldson.
[37] There is, for the reasons set forth above, no issue requiring a trial with respect to Donaldson’s claim that Murphy breached the employment agreement by actively soliciting customers of Donaldson and misappropriating confidential information.
(e) Claim against Van Der Heyden and Goliger’s for Inducing Breach of Contract
[38] The essential elements of the tort of inducing a breach of contract are:
(a) the existence of an enforceable contract;
(b) knowledge on the part of the defendant of the existence of the plaintiff’s contract;
(c) an intentional act on the part of the defendant to cause a breach of that contract;
(d) wrongful interference on the part of the defendant; and
(e) resulting damage.
(see Butler v. Dimitrieff, [1991] O.J. No. 1031 (Ont. Ct. Gen Div.) at p. 2 (appeal allowed on other grounds [1994] O.J. No. 3518 (C.A.))
[39] In light of my finding that the restrictive covenant in the employment agreement is not enforceable, the first element of the tort is not present and the action against Van Der Heyden and Goliger’s for “wrongful interference with contractual relations” cannot be maintained. There is no issue requiring a trial in relation to this aspect of the claim.
(f) Claim based on Breach of Confidence
[40] The defendants concede that there is a common-law obligation for an employee to maintain confidence. In this case there was also a confidentiality provision in Donaldson’s policy manual.
[41] In the case of Lac Minerals Ltd. v. International Corona Resources, 1989 CanLII 34 (SCC), [1989] 2 S.C.R. 574 (S.C.C.) is the Supreme Court of Canada, at p. 635 confirmed a three-part test for determining whether there has been a breach of confidence, as follows:
(a) that the information conveyed was confidential;
(b) that it was communicated in confidence; and
(c) it was misused by the party to whom it was communicated.
[42] The factors to be considered by the court to determine if the information has a quality of confidence about it are as follows:
(a) the extent to which the information is known outside the business;
(b) the extent to which the information was acquired in the course of employment;
(c) the extent to which it is known by other employees or others involved in the business;
(d) measures taken to guard the secrecy of the information;
(e) the ease or difficulty with which the information can be properly acquired or duplicated by others; and
(f) whether the holder and taker of the secret treated the information as confidential.
(see Pharand Ski Corp v. Alberta, 1991 CanLII 5869 (ABQB), a para. 136
[43] Ms. Donaldson deposed in her initial affidavit that, on or about March 12, 2012, she became aware that Murphy was misappropriating confidential information based on an email from Teledyne DALSA addressed to Donaldson. The email simply advised that the company had decided to move its corporate travel business to another agency effective immediately. No misappropriation by Murphy of confidential information of Donaldson can be discerned or inferred from this email.
[44] Ms. Donaldson further deposed that on March 12, 2012 she became aware, by means of an internal e-mail from a staff member of Donaldson, that Murphy had booked for a customer E Craftsman a flight with Air Canada on February 3, 2012 through Donaldson which Murphy then re-booked with Air Canada on February 23, 2012 through Goliger’s. In the responding Murphy affidavit Ms. Murphy explained that after moving to Goliger’s she was contacted by two employees to whom she provided services while they were at E Craftsman, but who were now working for another company Lumastream. They contacted her about doing work for Lumastream, not for E Craftsman. She deposed that after joining Goliger’s she had not done any work for E. Craftsman. The transaction referred to in Ms. Donaldson’s affidavit related to Ms. Murphy voiding the Goliger’s booking for an employee of Lumastream who had formerly been an employee of E Craftsman. In my view, no misappropriation by Murphy of confidential information of Donaldson can be inferred from this transaction. It appears that Murphy was simply carrying out instructions from a client to re-book a flight.
[45] Ms. Donaldson appended as an exhibit a memorandum prepared by her and addressed to a staff member Anne Lochead dated April 4, 2012 in which Ms. Donaldson sought to confirm what Ms. Lochead told her about Murphy’s change of employment (note although this employee’s surname is spelt “Locheed” in various places in the material, her own affidavit spells her surname “Lochead”. I will refer to her as “Ms. Lochead”) Ms. Lochead’s signature appears at the bottom of the memorandum. The memorandum stated in part “she [i.e. Murphy”] advised you [i.e. Ms. Lochead] that she had shared with Mr. Vanderhayden (sic) confidential information of the Accounts that she had been assigned to work on for Uniglobe Donaldson Travel. This confidential information she shared him (sic) included account names, sales volume and revenues. She advised you that he then offered her a position based on that information, and to start immediately.”
[46] In her affidavit sworn July 8, 2015 Ms. Lochead confirmed the “complete truthfulness of the statement made” in the memorandum of April 4, 2012 from Ms. Donaldson to her. She deposed further that in the April 4, 2012 memorandum she accurately documented the evidence related to Murphy sharing confidential information with Van Der Heyden.
[47] In her responding affidavit Murphy deposed that she did not tell Ms. Lochead that she had shared confidential information with Van Der Heyden including account names, sales volume and revenues. She did recall telling Ms. Lochead that at the end of the interview she told Van Der Heyden that she expected that she would get a lot of calls from clients wanting to follow her. She deposed that she was not in a position, even if she had been inclined to give the information to Van Der Heyden, which she was not of the inclination and did not do, to provide detailed information about sales volume and revenues on an individual account basis as she did not have access to that information. She deposed that all she was ever privy to was a yearly total of the sales for all of the clients that she handled for Donaldson.
[48] In her initial affidavit in support of her motion, Murphy deposed that at the interview with Van Der Heyden she discussed with him the volume of sales that she was doing per year and told him that in some years it was $1.8 million in that one year and was over $2 million in another, but she did not go into details of who the clients were. Van Der Heyden did not ask her the composition of the $1.8 million or $2 million in sales and she did not show him any documentation related to the work that she was doing for Donaldson and she did not discuss any of the clients with him.
[49] For his part, Van Der Heyden deposed in his affidavit, among other things, that during the interview with Murphy he advised her that the position entailed providing backup services for other agents and providing some direct services to Goliger’s existing clients. During the interview he did not inquire about Murphy’s “client base” or the names of clients, nor did they discuss the composition of the book of business that she serviced with Donaldson. He deposed that at no time during the interview did he ask for or review Donaldson company records and they did not discuss Donaldson policies and procedures. He did, however, asked Murphy about the volume of work that she was used to working because he needed to gauge her capacity to assume a busy role. He deposed that Murphy responded that to her knowledge she handled between $1.3 million and $1.5 million in annual sales.
[50] It must be assumed that should this action go to trial the evidence of Donaldson in its responding material to the motions will be its evidence at trial. Donaldson is expected to put its “best foot forward” in response to the motions.
[51] The statement of Ms. Lochead in the memorandum prepared by Ms. Donaldson as to what Murphy told her is, in my view, not inconsistent with the evidence of Murphy and Van Der Heyden deposed to in their affidavits. Ms. Lochead did not tell Ms. Donaldson that Murphy had told her that she had provided Van Der Heyden with sales volumes and revenues related to individual customers of Donaldson nor any other information about specific customers. Ms. Lochead simply said “sales volume and revenues” which is consistent with Murphy’s and Van Der Heyden’s evidence of what was discussed during their interview.
[52] In my view, Murphy, by disclosing to Van Der Heyden the annual work volume that she was capable of, based upon her experience with Donaldson, was not disclosing information of Donaldson that had a “quality of confidence” according to the factors laid down in Pharand. The same can be said about the names of clients, which can be readily ascertained from public sources.
[53] On her examination for discovery Ms. Donaldson acknowledged that her position that Murphy disclosed confidential information was “just based on her [i.e. Murphy’s]words to Ann Locheed (sic) that she shared that information with Mr. Van Der Heyden” (see discovery transcript Q. 1240). When asked whether the information that she was claiming was confidential was in “physical form on paper” she responded that she didn’t know (see Q. 1241-1243). Donaldson presented no evidence that Murphy shared confidential information with Goliger’s by means of the delivery of electronic or paper documentation. Donaldson relies solely on the information related by Ms. Lochead as to what Murphy told her was discussed in her interview with Van Der Heyden.
[54] Even if Ms. Lochead’s evidence is to be preferred over the more specific evidence of Murphy and Van Der Heyden as to what was discussed in their interview, the information that Ms. Lochead said that Murphy related to her did not have the “quality of confidence” to support a claim for breach of confidence on the case law.
[55] Since the evidence does not support a finding of breach of confidence or misuse of confidential information on the part of Murphy, it follows that there can be no such finding as against Goliger’s and Van Der Heyden. Donaldson has advanced no independent claim against Goliger’s and Van Der Heyden for breach of confidence but rather claimed that they participated in Murphy’s alleged misappropriation of confidential information.
[56] On the basis of the foregoing I find that there is no genuine issue requiring a trial with respect to Donaldson’s claim against the defendants for misappropriation of confidential information.
Disposition
[57] I find that I am able to reach a fair and just determination on the merits of the action based upon the motion material. The summary judgment process has allowed me to make the necessary findings of fact and to apply the law to the facts. I find further that summary judgment is a proportionate, more expeditious and less expensive means to achieve a just result in this case. I am able to make a determination that there are no genuine issues requiring trial based only on the evidence before me, without using the fact-finding powers in sub rules 20.04(2.1) and (2.2).
[58] The motions of the defendants for summary judgment are therefore granted and the action against them is dismissed.
[59] If the parties cannot agree on the costs of the action and the motions, the defendants may make written submissions as to costs within 14 days of the release of this endorsement. The plaintiff has 14 days after receipt of the defendants’ submissions to respond. The submissions shall be brief, not exceeding five double spaced pages, excluding Bills of Costs. The defendants may deliver brief reply submission (not exceeding three double-spaced pages) within 7 days after receipt of the plaintiff’s submissions. All such written submissions are to be forwarded to me at my chambers at 85 Frederick Street, 7th Floor, Kitchener, Ontario N2H 0A7. If no submissions are received within this timeframe, the parties will be deemed to have settled the issue of costs as between themselves.
D.A. Broad J.
Date: February 5, 2016