COURT FILE NO.: CV-15-1989-00 DATE: 2017 06 12 SUPERIOR COURT OF JUSTICE – ONTARIO

RE EZMONEY TARIO, INC. : Plaintiff (Respondent on Motion)

AND:

7724934 CANADA INC. and EASYFINANCIAL SERVICES INCORPORATED, Defendants (Moving Party)

BEFORE: Trimble J.

COUNSEL: A. Dick, Lawyer for the Plaintiff (Responding Party) J.Chen, J. Woycheshyn, W. Bortolin, Lawyers for the defendant Easyfinancial Services Incorporated

HEARD at Brampton: In writing

SUPPLEMENTARY ENDORSEMENT

Introduction

[1] On 19 April, 2017, I released my endorsement granting leave to appeal from the order of Andre, J., dated November 25, 2016, granting an injunction that the Defendant, 7724934 Canada Inc. comply with a restrictive covenant in its lease with EZMoney Tario Inc. by not permitting Easyfinancial to continue to operate its business from the Kingspoint Plaza in Brampton (see 2017 ONSC 2412).

[2] I said in the second paragraph of those reasons that neither EZMoney nor 772 had filed responding material to the Motion for Leave although served.

[3] In fact, EZMoney did file responding materials, and easyfinancial filed reply materials, none of which were put before me in April, although they were filed. For this oversight, I apologize to the litigants on behalf of the Court system.

[4] I have reconsidered by decision of 19 April in light of the full record and still grant leave.

ANALYSIS

[5] In paragraph 15 of my original decision, I granted leave to appeal on the basis that I had reason to doubt the correctness of the learned motions judge’s order, namely:

a. EZMoney conceded that Easyfinancial did not broker, market, service, or make payday loans or advances. Further, EZMoney never alleged that Easyfinancial cashed cheques or purchased precious metals or stones. Therefore, in order for the restrictive covenant to apply and the injunction to issue EZMoney must make the strong prima facie case that the term in the restrictive covenant, “instalment advance” is the same as an “instalment loan”, which describes Easyfinancial’s activities, but which is not used in the covenant. Easyfinancial led much evidence comparing the business that EZMoney and Easyfinancial conducted. Based on the evidence, I have reason to doubt the correctness of the learned motions judge’s interpretation of the restrictive covenant.

b. The covenant contained an exception for “financing institutions such as CitiFinancial or HSBC Financial”. Easyfinancial led evidence of its similarities to those institutions; EZMoney led no evidence. Based on the evidence, I have reason to doubt the correctness of the learned motions judge’s interpretation of the exception to the covenant.

c. In holding that “the potential loss of market share may well be significant” satisfies the irreparable harm arm of the RJR Macdonald test, the learned motions judge may have fundamentally altered this arm of the RJR Macdonald test.

d. Further, the learned motions judge did not consider under the third arm of the RJR Macdonald test the effect or impact on EZMoney’s delay in bringing its application. I have reason to doubt the correctness of the learned motions judge’s decision in this respect.

[6] I also said that I was satisfied that the issues involved in the leave to appeal motion are matters of sufficient importance that leave to appeal ought to be granted since restrictive covenants such as the one at issue in this motion are common, if not standard, in commercial leases. Appellate review of this case will affect more than the interests of the parties.

[7] For the reasons originally stated, I am still of the view that leave to appeal should be granted. Notwithstanding the helpful submissions of the Responding party and the reply submissions of the Moving party, I remain of the view that there are no conflicting decisions that justify granting leave to appeal, it is arguable that the learned Motion Judge erred, and there are issues of importance that transcend the interests of the parties given the common use of restrictive covenants in commercial leases, such as the one at issue in this litigation.

Costs:

[8] I leave the matter of costs to the Divisional Court. Unless the parties can agree to the quantum of the costs, I will fix them, after receiving written submissions from the applicant and the respondent, not exceeding three double spaced pages, excluding cases and bill of cost. The Applicant’s submissions are due two weeks after the release of these reasons and the Respondent’s three weeks after the release of these reasons.

J. K. Trimble, J. Date: June 12, 2017