Court File and Parties

COURT FILE NO.: CV-15-533847 DATE: 20180731 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

OVERSEAS INSURANCE BROKERS CORPORATION Plaintiff/Responding Party – and – DEBBIE KO and BROKER TEAM INSURANCE SOLUTIONS INC. Defendants/Moving Parties

Counsel: Steven Belissimo, for the Plaintiff/Responding Party Stephen F. Gleave, for the Defendants/Moving Parties

HEARD: June 25, 2018

NAKATSURU J.

[1] Ms. Debbie Ko (“Ms. Ko”) used to work for Overseas Insurance Brokers Corporation (“OIBC”). OIBC is an insurance brokerage in Richmond Hill with a good reputation in the Cantonese speaking community. It is owned and operated by husband and wife, Mr. Patrick Lau and Ms. Marina Chik. Ms. Ko worked a long time there. On May 1, 2015, she resigned saying she was tired and wanted to spend more time for herself after 23 years of service. The next day, Ms. Ko changed her mind, and contacted the defendant insurance brokerage, Broker Team Insurance Solutions Inc., (“Broker Team”) to inquire about a job. She was hired and within a week, Ms. Ko started actively working for them. Overtime, a significant number of OIBC’s clients transferred over to Ms. Ko. This lead to a very unsatisfactory state of affairs for OIBC. They have sued for a number of claims including breach of contract, interference with contractual relations, breach of fidelity and fiduciary duty.

[2] The Defendants have moved for summary judgment. They ask that the claims be dismissed. The Plaintiff has also brought a cross-motion for summary judgment and leave to amend the statement of claim. In oral argument, the Plaintiff makes the primary submission that the matter is not fit for summary judgment and requires a trial. Both parties rely upon well-known and settled law.

I. TEST ON SUMMARY JUDGMENT MOTION

[3] Rule 20.04(2)(a) of the Rules of Civil Procedure provides that the court shall grant summary judgment if: "the court is satisfied that there is no genuine issue requiring a trial with respect to a claim or defence." The Supreme Court of Canada in Hryniak v. Mauldin, 2014 SCC 7, [2014] 1 S.C.R. 87 established the test to be applied.

[4] The court should first determine if there is a genuine issue requiring trial based only on the evidence in the motion record, without using the fact-finding powers set out in rule 20.04(2.1) and (2.2). The analysis of whether there is a genuine issue requiring a trial should be done by reviewing the factual record and granting a summary judgment if there is sufficient evidence to fairly and justly adjudicate the dispute and a summary judgment would be a timely, affordable and proportionate procedure.

[5] If there appears to be a genuine issue requiring a trial, then the court should determine if the need for a trial can be avoided by using the fact-finding powers under rule 20.04. Their use will not be against the interest of justice if their use will lead to a fair and just result and will serve the goals of timeliness, affordability and proportionality in light of the litigation as a whole.

[6] I recognize the importance of ensuring that the analysis under this two-step process is clearly conducted: Marsland Centre Ltd., v. Wellington Partners International Inc., [2017] O.J. No. 4069 (C.A.); 1615540 Ontario Inc. v. Simon, [2016] O.J. No. 6606 (C.A.).

[7] A responding party may not rest solely on the allegations or denials in the party’s pleadings. Under rule 20.0(2), they “must set out, in affidavit material or other evidence, specific facts showing that there is a genuine issue requiring a trial”. Each side must “put its best foot forward” with respect to the existence or non-existence of material issues to be tried. A court is entitled to assume that the record contains all the evidence that the parties would present if the matter proceeded to trial.

II. ANALYSIS

[8] In this case, as my reasons will show, there are a number of issues where due to the conflicting evidence, there are matters that require a trial. However, I find that I am able to use my expanded powers to make findings of fact and assess the evidence in order to confidently come to a just and fair result. The affidavit evidence was cross-examined upon where that was possible. What documents that could reasonably be said to exist have been put forward. As well, importantly, I have assumed that each party has put their best foot forward in terms of evidence. In doing so, it is clear to me that summary judgment is a timely, affordable, and proportionate manner to come this result.

[9] I will deal in turn with the issues that have been raised on this motion.

A. Lack of a Restrictive Covenant

[10] I fully appreciate that there is a dispute as to whether an employment contract was ever signed. Ms. Ko says there was and it specifically was amended to remove any restrictive covenant. She attached these contracts to her affidavit. The Plaintiff contends there never was any contract. On this motion, it is not fully necessary to resolve this conflict in the evidence since regardless of the correctness of each party’s position; the bottom line is that there were no restrictive covenants contracted for. Further, this factual dispute does not have a significant impact on credibility given how long ago these events were. The Plaintiff could not retrieve data that could have assisted them. Ms. Chik claims she did not sign them. However, she could not be cross-examined on her affidavit. Here I note that Ms. Chik is unlikely able to provide probative evidence at a trial or perhaps give any evidence at all, given her health condition.

[11] Frailties in memory and the inherent bias of the witnesses to aver to these conflicting versions can readily explain the nature of the conflicting evidentiary record on this issue.

[12] I would prefer the evidence of Ms. Ko on this since she has produced the two contract agreements that were signed in October of 1997 and was not impeached on this in cross-examination. There is no probative evidence to the contrary. A trial will not change this state of the evidence.

[13] In addition, there is no issue that Ms. Chik, on behalf of OIBC, accepted the resignation. I am not ignorant of the fact that the timing of the resignation and subsequent acceptance of employment at Broker Team raises a red flag. However, I have considered this carefully. Ms. Ko does acknowledge that she had met with Broker Team earlier and had visited there on April 27, 2015. Her contacts with Broker Team after her resignation are partially corroborated by electronic communications. Looking at the whole of the record, while I do not find her explanation as to why she resigned and then start working at a competitor so quickly, (i.e., to spend more time cooking and gardening and then contacting Broker Team because there were rumours of her illness spread by the Plaintiff), particularly compelling, I am satisfied that this does not raise an issue requiring a trial. The bottom line is that she moved quickly to a competitor. Her motivation for doing so is a factor to be considered on this motion. However, it is something that I can consider properly on this summary judgment motion. A trial is not required for this reason.

B. Ms. Ko was not in a fiduciary relationship with OIBC

[14] The moving parties submit given the absence of any contractual arrangement that Ms. Ko owes no greater obligations to OIBC than a past employee. OIBC submits that Ms. Ko owes fiduciary obligations to it. Firstly, this determination of the establishment of a fiduciary relationship in an employment context is very much a fact based assessment. Secondly, again, I appreciate there is some conflict in the evidence between Ms. Ko and Mr. Lau with exactly what Ms. Ko did and what her title as “Assistant Manager” actually meant. Nevertheless, I still am of the view that this issue can be decided on summary judgment with my expanded fact finding powers. A trier’s ability to assess the evidence will not get any better at trial and it will not be timely, affordable, and commensurate with what is at stake.

[15] The legal test regarding the establishment of a fiduciary relationship in this context is flexible and can capture individuals who are not just directing minds of a company or who have top management roles in a corporate employer. Looking at the whole record, I find that Ms. Ko was not in a fiduciary relationship with OIBC for the following reasons:

• OIBC was owned and operated by Mr. Lau and his wife. Aside from the two, there was no other formal management structure. There were customer service representatives, sales people, and a few others.
• I appreciate that Ms. Ko’s business card had her listed as “Assistant Manager” but it also listed her as an Insurance Broker. Ms. Ko’s evidence was that this title was only essentially given to her for PR purposes and perhaps to help her gain some advantage such as assisting with her sister’s immigration issues. However, this title did not change the fundamentals of what she did at OIBC which was far from management like duties. OIBC has offered very little evidence despite assertions that Ms. Ko performed managerial functions; something which she denied. When I assess the entire record, including the nature of her payment by basic salary and commissions, I find I accept Ms. Ko’s description of what her job related activities were. Some of Mr. Lau’s assertions were contradictory (for example, whether it was her role to obtain new business or only do renewals) and his averments about the key nature of her responsibilities are self-serving and supported by very little other evidence. She did not have the type of access to all the information of OIBC like Mr. Lau and Ms. Chik had. Her ability to unilaterally make any decisions affecting the business was limited. As a result, I find that Ms. Ko did not perform any significant management functions of the business.
• A significant part of Ms. Ko’s responsibilities was to sell insurance policies, either renewals or new ones. She was not the only one to do so at OIBC. She was involved directly in the interactions of some but not all of the customers. She was far from being a primary contact for customers or a person that OIBC significantly relied upon to obtain new business or keep existing business.
• The fact that Ms. Ko has worked a long time with OIBC and has developed trusting relationships with many clients supports OIBC’s position. That said, this is but one factor. A factor that is tempered by the fact that this type of relationship established is an industry norm and the evidence does not establish frequent contact or interactions with each customer: H.L. Staebler v. Allen, 2008 ONCA 576 at paras. 55-56.
• The evidence that Ms. Ko had some unique function or knowledge gained through her employment that no one else had that made her indispensable or had unique value to OIBC is significantly lacking. Indeed, as the cross-examination of Mr. Lau revealed, she was indeed replaceable by someone who could be trained and he pointed only to the most speculative of reasons why his business would suffer from the replacement. This also is supported by the very brief and basic contract entered into by Ms. Ko and OIBC. On Mr. Lau’s version, it is reasonable to infer any contract with Ms. Ko was not sufficiently important enough to maintain as a record or somehow recall. This is finally supported by the circumstances of her resignation whereby nothing was done or offered to Ms. Ko to attempt to get her to stay.
• As explained below, I find there to be no misuse of confidential information.

[16] When looked at with common sense, although Ms. Ko was a long-time and no doubt valued employee with OIBC, she was fundamentally an ordinary salesperson and customer service representative with some supervisory role, who due to her length of time there had a closer working relationship with Mr. Lau and Ms. Chik than others. But this falls significantly short of being in top management or a key employee. Her duties and responsibilities are not such that one could reasonably characterize her as essential to the OIBC’s business.

[17] Further, OIBC was not in a position where it was unable to prevent the injurious unilateral exercise of power or discretion, if indeed there was any, by Ms. Ko. If it was concerned about potential competition by Ms. Ko when the time came that she left their employ, this could have been negotiated and a reasonable protection clause could have been placed in her contract of employment. This was not done.

[18] In sum, I am satisfied that OIBC was not at the mercy of Ms. Ko’s discretion. There was no relationship of dependency nor was Overseas vulnerable. In my opinion, Ms. Ko was entitled to compete with Overseas by working for its competitor, Broker Team, subject to some well-known limitations. I will next discuss one and determine whether there is a genuine issue requiring a trial regarding this.

C. Ms. Ko did not take confidential information of OIBC

[19] It is well-established law that an employee cannot take an employer’s customer list with them and use it to solicit customers. However, in an effort to draw an appropriate line, the law does permit a former employee to solicit customers from memory: Alberts v. Mountjoy (1977), 16 O.R. (2d) 682 (O.H.C.J.); Benson Kearly & Associates Insurance Brokers Ltd. v. Valerio, [2016] O.J. 3476 (S.C.J.).

[20] An added layer of complexity is that in Tomenson Saunders Whitehead Ltd. v. Baird, [1980] O.J. No. 386, Keith J. held that where insurance salesmen took personal diaries with them that had the names of clients and telephone numbers in them, he held this did not amount to misuse of confidential information when those salesmen, in their new positions, solicited past clients of the employer. Keith J. reasoned that they were entitled to take their diaries which also had other personal information in them, and found that no doubt they could have reconstructed the list from memory and have found the customers’ numbers in a phone directory. The reasoning and conclusion of Keith J. in Tomenson was approved of by the British Columbia Court of Appeal in Barton Insurance Brokers Ltd. v. Irwin (1999), 1999 BCCA 73, 170 D.L.R. (4th) 69 at para. 38. Nordheimer J. (as he then was) also relied on the judgment and found that in the case before him, the information of names, addresses, and telephone numbers of clients transferred to the former employee’s computer could not be reasonably characterized as confidential given that this information would have been readily available to the defendant without the computer list and he could have easily recreated it: Edac Inc. v. Tullo, [1999] O.J. No. 4837 (S.C.J.). See also Professional Court Reporters v. Carter, [1993] O.J. No. 673 (O.C.J.G.D.) at para. 35; Penncorp Life Insurance Co. v. Edison, [2008] O.J. No. 3763 (S.C.J.).

[21] From these authorities, I find that the courts have considered the settled distinction between information in an employee’s memory and the removal of a customer list, as well as the nature of the information, (i.e., mere names and contact information of the customers compared to more detailed information) as being important considerations in drawing the line between what is fair and unfair in the employment context.

[22] In this case, OIBC has produced no evidence that Ms. Ko took a client list. There is no direct evidence she did. There is no forensic evidence such as computer analysis supporting this inference. OIBC simply argues that she must have since she could not have solicited all their clients without having done so. It is OIBCs’ position that 432 letters of authorization were used to improperly transfer the files from OICB to Broker Team in a year period. On the other hand, Ms. Ko does not contend that she recreated a list of over 200 contacts by memory. She expressly admits that she had these clients’ names and contact information stored on her personal cellphone as part of a personal contact list she had developed over the years. She did this as a means to stay in touch with the clients. She also averred that OIBC gave her a list of clients and their renewal and expiry dates to her every month for the purpose of reconciling the commissions she earned.

[23] On this motion, I find that Ms. Ko did not take with her a written or electronic customer list. That conclusion is amply supported by the evidence. OIBC cannot establish that she did on a balance of probabilities based upon the evidence on this motion. Ms. Ko denied it, was cross-examined and was not impeached on this, and OIBC has not presented any evidence to the contrary. That said, the names and contact information were of OIBC’s clients and she only obtained them through her employment with OIBC. That information was provided by the clients to OIBC on forms they filled out.

[24] A complicating fact is that it is clear Ms. Ko would not have been able to recreate this list from memory. As such, it does not readily fall within this distinction made by the case law. At the same time, all that was stored were names and contact information. The specific details of the policies etc. was not inputted into her phone by Ms. Ko.

[25] While the law is settled, I find its application somewhat difficult in this case. That being acknowledged, in my opinion, this does not make it inappropriate for summary judgment. I am confident that I can make the findings of fact. A trial is not needed to make these findings. It is far more proportionate to decide this issue on a summary judgment motion than at trial. What is difficult is the rather unique constellation of facts in this case that the law must be applied to.

[26] After some careful consideration, I find that the names and contact information taken does not amount to confidential information of OIBC.

[27] First of all, I cannot agree with the Ms. Ko and Broker Team that the information being on Ms. Ko’s personal property, a cell-phone, is a complete answer to OIBC’s claim. It is the confidential information that the law is designed to protect; not property per se. The fact that Ms. Ko did not actually remove any tangible item from her employer’s office does not get at the mischief the law is designed to capture. Otherwise, rather than taking it physically, a departing employee could simply copy down a customer list to immunize themselves from liability. In this digital age, the act of copying can be done easily. Where it ultimately is stored, like a personal phone, is immaterial.

[28] The fundamental issue is whether this information has a quality of confidence about it and whether it was communicated in circumstances where the obligation of confidence arises: Lac Minerals Ltd. v. International Corona Resources Ltd., [1989] 2 S.C.R. 574. In assessing this, the nature of the information is important. In the case at bar, the information in question reveals little beyond the bare name of a client and a contact number/address. It does not involve details about the policyholder or policy that might be important to the employer. Information that one reasonably could say is confidential in the sense that, contextually, those involved would see significant reason for limiting its disclosure to others. For instance, had Ms. Ko left with profiles of the customers, their personal or family circumstances, the kinds of policies they held or did not hold, or the premiums they were paying, this type of information would have the quality of confidence that OIBC would want to limit disclosure of especially to competitors. Names and contact information do not per se. I appreciate that these names and contact information, being those of clients, can be of use to someone like Ms. Ko, a departing employee, to potentially use it as a “springboard” for her new employment. On the other hand, I do note that she did not take the names and contacts of other OIBC clients that she herself did not deal with. I further recognize that the mere existence of a relationship may in other circumstances, i.e., solicitor-client relationships, have the required quality of confidence, but I do not find that this to be necessarily so in this context of insurance policyholders and insurance brokerage firms.

[29] Secondly, I have given consideration to the law which has placed emphasis on memorization is an important factor. I have no doubt it is a proper factor. It is something that can guide the application of the rule. It also has the advantage of certainty. However, I do not feel it should on its own be determinative. Much will depend on the information that is said to be confidential and the circumstances in which it was conveyed. In this case, it is names and contact information that Ms. Ko, albeit accessed through work, obtained herself in a rather collateral fashion and not through a confidential employer compilation of customers/clients. In the end, I feel that the determination of confidentiality should not rest on the acuteness of an individual’s memory. Some people can remember vastly more than others. This factor should be another yardstick to help measure whether something is truly confidential. The fact something is beyond the capacity of an employee to remember, does not make it confidential. For instance, the case law recognizes that individuals are not likely able to memorize more than a few telephone numbers of customers but the law does not treat those numbers as confidential since that type of information can readily be discovered by public sources.

[30] In the determination of whether confidential information was taken, all of the circumstances of the case should be considered. In this analysis, the amount of information taken is a factor since whether the information can be recreated without a list based on memory alone remains an important distinction. However, it should be only one consideration.

[31] In this case, while the Plaintiff disputes that Ms. Ko had any valid reason to write down the information of her clients in her phone, I do not find it unreasonable that she did. She is being paid commission as a part of her remuneration. It would be reasonable she would want to track who she serviced or may wish to in the future on renewals. She also had the contact list in her phone to stay in touch with the clients. This too makes sense if one wished to establish and maintain a good relationship. All of this was developed by her over the years and she inputted the information in her phone. This was not something OIBC compiled on their own. This was not something OIBC instructed her to do or make it a part of her job duties. This is not a case where the former employee simply copied a customer list and then departed. Rather the fact that she stored it on her personal telephone along with other personal data supports her position as to how the information was communicated to her initially and why she placed it in her telephone. Once she left the employ of OIBC, the information stored in her phone was essentially used as an aide-memoire to determine the names of her clients. The contact information could be re-created from public sources although I agree likely not easily or completely.

[32] Taking all the circumstances into account, I find that Ms. Ko did not leave with the confidential information of OIBC.

[33] If I am wrong about this, summary judgment should still be given as I will go onto explain why Ms. Ko did not solicit OIBC’s clients or otherwise misuse this confidential information.

D. Ms. Ko did not solicit OIBC’s clients

[34] Almost immediately after Ms. Ko’s resignation, the Plaintiff wrote letters to the clients that Ms. Ko had serviced advising them of her departure and the fact that Ms. Chik, the general manager, would take over their files. Then Ms. Ko wrote letters to the 242 clients in the contact list on her phone. These were generic form letters in English and Chinese. It is on Broker Team letterhead. One is attached to Ms. Ko’s affidavit as a sample. It reads:

Dear client,

I am writing to keep you up-to-date of my recent move to a reputable insurance brokerage, Broker Team Insurance solutions Inc., effective immediately. As my clients, your interests are well protected and my responsibilities to you are not reduced.

Your current policies are not affected at all and they will continuously be looked after by my previous employer, OIBC.

If you have any questions or concerns, my cell phone remains unchanged and is 416-721-8688.

Thank you for your continuous support and patronage.

Yours sincerely,

Ms. Ko

[35] Ms. Ko denied ever phoning these clients. Rather she averred that they visited or phoned her and asked her to continue to handle their insurance needs. She agreed and the proper documentation was signed to have Broker Team recognized as the brokerage of record and having the insurance company release the file to Ms. Ko. Ms. Ko avers that she did not use any confidential information of the Plaintiff to service the clients. She denied misusing any information. What information she needed to transfer the files came from the client and the insurance company once the client decided to switch brokerages and properly authorized her and Broker Team to do so.

[36] In my view, the letter and the actions of Ms. Ko do not constitute solicitation. It is informative, assuring, and professional. Ms. Ko does not ask for anything: Investors Group Financial Services Inc. v. Smith, [1994] N.S.J. No. 466 (N.S.S.C) at paras. 22-24; Dr. P. Andreou Inc. v. McCaig, [2007] B.C.J. No. 537 (B.C.C.A.) at paras 27-37. In Mr. Lau’s affidavit, aside from bald assertions that Ms. Ko improperly solicited clients, he points to only one instance as evidence of any purported solicitation. He confirmed this in his cross-examination. I find there is no evidence from any clients or from any other source that substantiates solicitation or contradicts Ms. Ko’s evidence. In the one instance he gives, Mr. Lau states one OIBC client, a Mr. Qian Shi Mu, signed a letter saying he never gave anyone any authority to transfer his policy to another brokerage. There is no affidavit from Mr. Qian. There is no letter of authorization that is said to be falsely signed by Mr. Qian. In my opinion, this evidence does not raise a triable issue. Aside from Mr. Qian’s letter and any inference one could draw from that, there is no other evidence substantiating that Ms. Ko improperly or falsely solicited this transfer. Indeed, to be strict, there is no reasonably available inference that Mr. Qian was even “solicited” by Ms. Ko; the inference only being that he did not even sign the letter of authorization that was said to have been given. Ms. Ko denies any improper solicitation. She denies ever requesting a letter of authorization to be signed by Mr. Qian and states this was a communication error by the insurance company that was later rectified. There is no reason given the context of the evidence as a whole to reject her evidence. And as the records point out, Mr. Qian never did transfer his policy to Broker Team and OIBC suffered no damages.

[37] In coming to this decision, I am very sensitive to the fact that a large number of OIBC’s clients have transferred their policies to Broker Team since Ms. Ko started to work for them. This fact alone raises an understandable suspicion on OIBC’s part that Ms. Ko must have solicited them. In other words, that she asked them to change their policies to Broker Team. But numbers alone do not establish solicitation: Aquafor Beech Ltd. et al v. Whyte et al (2010), 2010 ONSC 2733, 102 O.R. (3d) 139 (S.C.J.) at para. 52. I find that a plausible and reasonable explanation for this transference of business other than solicitation by Ms. Ko could well be, as Ms. Ko states, her longstanding business and professional relationship with these clients built on mutual trust. In my view, Ms. Ko, having worked hard at building her reputation, is entitled in these circumstances, to benefit from it.

[38] I also recognize that the letters sent by Ms. Ko while not solicitation itself, could be but the first step in a solicitation process that may have occurred. However, I must decide this summary judgment motion on the evidence produced. Not on speculative theories. As they say, parties are required to lead trump. Here Ms. Ko has denied solicitation. I find OIBC has not provided any evidence that can counter that denial.

[39] I find that there was no solicitation by Ms. Ko on the state of the evidence lead in this summary judgment motion: see Calvise v. Tripemco Burlington Insurance Group Ltd., 2017 ONCA 989 at para. 5: IBM Canada Ltd. v. Almond, [2015] A.J. No. 573 at paras. 74 – 83.

E. OIBC’s amendment of the statement of claim

[40] OIBC has amended its statement of claim. It now also alleges that Ms. Ko did not give reasonable notice of her departure to OIBC. This is in addition to her other claims. Ms. Ko and Broker Team submit that this is statute barred given the expiry of the limitation period. OIBC counters with the argument that this is not a new cause of action but falls within the existing statement of claim.

[41] A new cause of action is not asserted if the amendment pleads an alternative claim for relief out of the same facts previously pleaded and no new facts are relied on, amounts to a different legal conclusion drawn from the same set of facts, or simply provide particulars of an allegation already pled or additional facts upon which the original right of action is based: Davis v. East Side Mario’s Barrie, 2018 ONCA 410.

[42] In this case, I appreciate that only two paragraphs of the claim were amended to add that Ms. Ko failed to give reasonable notice and the Plaintiff now claims $55,000 as damages. However, the claim about the failure to give reasonable notice is a significantly different legal creature than the previous claims being made against Ms. Ko and Broker Team which mainly dealt with the misuse of confidential information. While it is true the date of her resignation is included in the claim and no additional new facts were pleaded, no particulars were given either why the Plaintiff now claims a 6-month notice period and what damages resulted from this failure to give reasonable notice. The evidence lead at this summary judgment motion demonstrates the claim has little substantive merit. In some ways, this new claim, added some 2.5 years after the issuance of the original statement of claim, seems contorted to fit the existing framework of the claim.

[43] I find that the new claim is a fundamentally different claim. As a new cause of action, it is statute-barred as it is raised for the first time long after the two-year limitation period.

F. Conclusion

[44] OIBC makes a valid point that the authorities relied upon by Ms. Ko and Broker Team are not summary judgment decisions. But, in my view, on the particular facts of this case, I am confident that this case can be disposed of this way. The settled law can be applied to the facts. There are no issues requiring a trial after using my expanded powers. There is no unfairness in settling this dispute in this way. To do it in this way is far more timely and affordable given the amount of money at stake. The result is just. The line I have drawn accords with established legal principles that is well expressed by the British Columbia Court of Appeal in Barton Insurance Brokers in this passage (at para. 39):

[t]he general interest of the public in free competition and the consideration that in general, citizens should be free to pursue new opportunities, in my opinion, requires courts to exercise caution in imposing restrictive duties on former employees in less than clear circumstances. Generally speaking, as I noted from the earlier authorities referred to, the law favours the granting of freedom to individuals to pursue economic advantage through mobility in employment.

[45] This summary judgment motion is therefore allowed and OIBC’s cause of action is dismissed.

[46] Regarding costs, the parties have agreed on partial indemnity costs in the amount of $25,000. The Plaintiff shall pay the Defendants’ costs in that amount forthwith all inclusive.

Justice S. Nakatsuru Released: July 31, 2018

COURT FILE NO.: CV-15-533847 DATE: 20180731 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

OVERSEAS INSURANCE BROKERS CORPORATION Plaintiff/Responding Party – and – DEBBIE KO and BROKER TEAM INSURANCE SOLUTIONS INC. Defendants/Moving Parties

REASONS FOR JUDGMENT

NAKATSURU J. Released: July 31, 2018