Court File and Parties
Court File No.: 27387/17 Date: 2017-04-12 Ontario Superior Court of Justice
Between: PRIDDLE-LUCK PROFESSIONAL CORPORATION, Plaintiff – and – DENNIS THOMPSON PROFESSIONAL CORPORATION, DENNIS THOMPSON, GEORGIE CAMPBELL, BRENDA BEITH, NATHAN DOOL and BDO CANADA LLP, Defendants
Counsel: R. Douglas Elliot/Shruthi Raman, Counsel for the Plaintiff Orlando M. Rosa, Counsel for the Defendants, Georgie Campbell, Brenda Beith, Nathan Dool and BDO Canada LLP B. DeLorenzi, Counsel for Dennis Thompson and Dennis Thompson Professional Corporation
Heard: March 9, 2017
Gareau J.
Reasons for Ruling
[1] Before the court is the plaintiff’s motion for an interim interim interlocutory injunction. The motion for an interim interlocutory is scheduled to be heard on May 29, 2017 to allow counsel an opportunity to conduct cross-examinations on the affidavits filed in respect to the motion.
[2] This matter was argued on March 31, 2017. In the course of the argument plaintiff’s counsel indicated that he was seeking the following order on an interim interim basis pending the return of the matter to motions court on May 29, 2017:
(a) A mandatory order requiring the defendants to return to the plaintiff any and all client information, client files or other proprietary information belonging to the plaintiff whether in paper or electronic form currently in the possession of the defendants;
(b) A mandatory order requiring disclosure from the defendants of all written communications, in any form, transpiring between Dennis Thompson and Nathan Dool/BDO Canada LLP with respect to the clients of the plaintiff which have since been enticed away by the defendants;
(c) An interim and a permanent interlocutory injunction restraining the defendants herein from using the goodwill and client list of the plaintiff in a manner detrimental to the plaintiff;
(d) An interim and a permanent interlocutory injunction restraining the defendants herein from contacting or soliciting for any of the plaintiff’s clients until the return of this motion.
[3] This action arises out of the sale of the Defendant Thompson’s accounting practice in Thessalon, Ontario to the plaintiff, the former employment of the defendants Campbell and Beith with the plaintiff and the operation of the accounting practice of Dool and BDO in competition with the plaintiff in the Town of Thessalon, Ontario.
[4] In considering this motion, I am mindful of the comments of the Ontario Divisional Court in Traynor and UNUM Life Insurance Company of America, (2003) , 65 O.R. (3d) 7, in which that court states at paragraph 12,
We observe at the onset that the granting of a mandatory interlocutory injunction is exceptional relief to be granted only in exceptional circumstances.
[5] As Kane J. repeated in paragraph 31 of Allstate Insurance v. Larocque, 164 ACWS (3d), 277,
Interlocutory injunctions are considered an ‘”extraordinary” and “drastic” remedy and should only be granted pursuant to strict principles in circumstances which warrant taking “such a drastic and extraordinary step”.
[6] The caution to be exercised is even more so on an interim interim motion where an order may set or limit the conduct and actions of parties prior to further exploration into the merits of the motion through cross-examination on affidavit material and full argument on transcripts at the interim stage.
[7] The test for the granting of an interlocutory injunction is set out in RJR-MacDonald Inc. v Canada, [1994] 1 SCR 311. The three part test which must be established by the party seeking the injunction is:
a) there is a serious issue to be tried;
b) will the moving party suffer unreasonable harm if an injunction is not granted; and
c) the balance of convenience favours granting the relief sought.
All of the elements of this three-prong test must be established by the moving party.
[8] I do not intend on discussing the evidence and issues in detail in these reasons as I do not want to prejudice in any way the judge who ultimately hears the motion on an interim basis. Suffice it to say that at this stage there is a great divergence in the evidence of the parties which can only be more fully explored at the examination stage.
[9] After reflecting on the submissions made by counsel for the parties and reviewing the jurisprudence provided by them, I am of the view that the three part test as set out in RJR-MacDonald has not been met at this stage of the proceedings.
[10] Accordingly, the plaintiff’s motion for an interim interim interlocutory injunction is dismissed.
[11] Costs of this motion are reserved to the judge hearing the interim interlocutory injunction motion.