CITATION: Mannion Heating & Plumbing, Strang and Strang Management, v, Bam Industries and Bruce Minty Ltd. 2017 ONSC 934
COURT FILE NO.: 16-70474
DATE: 2017/02/07
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Mannion Heating & Plumbing, Christopher Strang and Strang Management Ltd., Applicants
AND
BAM Industries Ltd and Bruce Minty, Respondents
BEFORE: Justice Marc R. Labrosse
COUNSEL: David Capra and Aaron Heard, Counsel for the Applicants
Ryan D. Garrett, Counsel for the Respondents
HEARD: February 3, 2017
ENDORSEMENT
[1] At this motion’s hearing, I provided the parties with oral reasons and advised I would be issuing written reasons, but I reserved the right to supplement the reasons provided at the conclusion of the motion.
[2] This is the return date of the Order of Kane J. dated November 4, 2016 and extended on November 21, 2016 which enjoins the Respondents BAM Industries and Bruce Minty from various matters relating to the termination of Mr Minty’s involvement in Mannion Heating & Plumbing Ltd. (“Mannion”).
[3] I adopt and repeat the findings made by Kane J. in granting the injunctive relief that the criteria set out in RJR MacDonald Inc. v. Canada, (Attorney General) 1994 117 (SCC), [1994] 1 SCR 311 has been met.
[4] Specifically, I am of the view that Mannion continues to be at risk of suffering irreparable harm not only from the loss of business but also the loss of goodwill resulting of the special role played by Mr. Minty on the front lines along with his relationship with clients of Mannion, . This warrants that the injunction be maintained subject to the terms set out herein.
[5] I specifically disagree with the Respondents whereby a reasonable time has passed (approx. 3 months) and that Mr. Minty should be allowed to solicit and/or induce clients of Mannion to follow him over to BAM Industries. This is again attributable to Mr. Minty’s high level of trust and confidence while he was with Mannion: see Anderson, Smyth & Kelly Customs Brokers Ltd v. World Wide Customs Brokers Ltd. et al. at para 32.
[6] The evidence clearly demonstrates a serious issue to be tried and given the short period of 3 months since the original injunction, the balance of convenience continues to favour the Applicants: see RJR MacDonald.
[7] Having considered the submissions of Counsel, I am of the view that paras. 1 to 4, 6 and 8 of the November 4, 2016 Order of Kane J. shall continue to trial.
[8] With respect to para 5 and 7 of the Order of Kane J., these shall remain in effect until November 4, 2017 but shall be amended to apply as follows:
(a) the Respondents should refrain from initiating any communications and/or soliciting work from and/or inducing clients of Mannion to leave the services of Mannion. This will apply to any clients who were clients of Mannion from January 1, 2016 to November 4, 2016;
(b) the Respondents will be entitled to accept unsolicited work from any present or past client of Mannion.
[9] I have attributed a one-year period prohibiting solicitation of work by Mr. Minty from Mannion’s clients. This period is not determined on a final basis and it shall remain open to the Plaintiffs to seek a further extension to this Order. Mannion will provide a list of its clients for whom it did work from January 1, 2016 to November 4, 2016, within 15 days of the date of this Order
[10] In coming to the conclusion that the Respondents should be entitled to accept unsolicited work, I rely and adopt the findings of Parell J. at para 30 of Optilinx Systems Inc. v. Fiberco Solutions Inc., 2014 ONSC 6944.
[11] I am of the view that sufficient time has passed since the original date of the injunction for Mannion to contact clients and confirm their continued availability in the provision of services. The Respondents shall be entitled to accept unsolicited work but shall not however engage in direct solicitation of those clients.
[12] However, all work performed by the Respondents for any clients of Mannion shall be subject to Mannion’s claims as outlined in the Statement of Claim. Mannion’s right to be paid the profits obtained from a breach of fiduciary duty shall be determined at trial.
[13] Costs of this appearance are in the cause.
Justice Marc R. Labrosse
Date: February 07, 2017
CITATION: Mannion Heating & Plumbing, Strang and Strang Management, v, Bam Industries and Bruce Minty Ltd. 2017 ONSC 934
COURT FILE NO.: 16-70474
DATE: 2017/02/07
ONTARIO
SUPERIOR COURT OF JUSTICE
RE: Mannion Heating & Plumbing, Christopher Strang and Strang Management Ltd., Applicants
AND
BAM Industries Ltd and Bruce Minty, Respondents
BEFORE: Justice Marc R. Labrosse
COUNSEL: David Capra and Aaron Heard, Counsel for the Applicants
Ryan D. Garrett, Counsel for the Respondents
HEARD: February 3, 2017
ENDORSEMENT
Justice Marc R. Labrosse
Released: February 07, 2017