Court File and Parties

COURT FILE NO.: CV-21-658386-0000

DATE: 20210323

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Labrador Recycling, Inc.

AND:

Fabio Folino and Sempris Trading Inc.

BEFORE: J.T. Akbarali J.

COUNSEL: Jed Blackburn, Pamela J. Hinman and Joseph Hamaliuk, for the Plaintiff

Stephen Wolpert and Athanasios Makrinos, for the Defendants

HEARD: March 22, 2021

ENDORSEMENT

Overview

[1] The plaintiff brings this motion seeking urgent injunctive relief to restrain the defendants from competing with it, contrary to what it argues are the fiduciary and contractual obligations of the defendant, Mr. Folino.

[2] The plaintiff is a brokerage for the purchase and sale of scrap aluminum. Mr. Folino began working for the plaintiff in 2013. He resigned on December 21, 2020, providing 60 days’ working notice. His last day with the plaintiff was February 19, 2021. The defendant, Sempris Trading Inc., is Mr. Folino’s company, through which he is running a business in competition with the plaintiff.

Procedural Issues Regarding Evidence

[3] This urgent motion was scheduled in Civil Practice Court on March 10, 2021. The endorsement of Diamond J. provides for a timetable for the exchange of material. The defendants’ responding materials were due by March 18, 2021. No provision was made for reply materials.

[4] However, the plaintiff filed two affidavits in reply and a reply factum. Before the hearing, I was advised by way of email from the defendants to court staff that the defendants objected to the reply evidence. By the time the motion was heard, the plaintiff had filed a supplementary reply affidavit, in addition to the earlier two reply affidavits, and the defendant had filed a sur-reply affidavit, in which he indicated he did not have sufficient time to address all the new evidence filed, but in which he addressed certain allegations that had been made. At the outset of the motion, the parties indicated their agreement that all the evidence come before me.

[5] I do not endorse the approach of a flurry of evidence being presented to the court at the outset of the hearing, inconsistent with the terms of the timetabling endorsement. However, given the parties’ insistence that the evidence was necessary in the interests of justice, I held the hearing down while I reviewed the material that had been filed although not contemplated by Diamond J.’s endorsement, and thereafter heard the motion.

Test for Injunctive Relief

[6] To obtain injunctive relief under s. 101 of the Courts of Justice Act, R.S.O. 1990, c. C. 43, and r. 40 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, a party must satisfy the three-part test established by the Supreme Court of Canada in RJR MacDonald Inc. v. Canada (Attorney-General), 1994 117 (SCC), 1994 SCC 117, [1994] 1 S.C.R. 311:

a. Is there a serious question to be tried;

b. Will the moving party suffer irreparable harm if the injunction is not granted;

c. Does the balance of convenience favour granting the injunction?

[7] There was some debate about whether the strength of the case the party seeking the injunction must demonstrate changes when what is at stake is someone’s ability to earn a living. In my view, when the party seeking an interlocutory injunction seeks to impede the ability of the responding party to earn a livelihood, the moving party must show a strong prima facie case, rather than a serious question to be tried: Camino Modular Systems Inc. v. Kranidis, 2019 ONSC 7437, 58 C.C.E.L. (4th) 243, at para. 15.

Has the plaintiff established a strong prima facie case?

[8] The plaintiff grounds its claim for injunctive relief based on (i) breach of fiduciary duty, and (ii) breach of a contractual restrictive covenant.

Breach of Fiduciary Duty

[9] There are three defining characteristics of a fiduciary employee: (i) the fiduciary has the scope for the exercise of some discretion or power; (ii) the fiduciary can unilaterally exercise that power or discretion so as to affect the beneficiary’s legal or practical interests; (iii) the beneficiary is peculiarly vulnerable to or at the mercy of the fiduciary holding the discretion or power: Frame v. Smith, 1987 74 (SCC), [1987] 2 S.C.R. 99, at para. 60; GasTOPS Ltd. v. Forsyth, 2009 66153 (Ont. S.C.), at para. 80.

[10] In determining whether someone is a fiduciary, the court must look at the nature of the relationship between the parties, the job function and the responsibilities being performed. These are more determinate than the title held by the employee. “The varying degrees of trust, confidence and reliance given to the employee and the corresponding vulnerability or dependency of the employer to competition when the person leaves are the most pertinent factors in determining whether a fiduciary duty exists”: GasTOPS, at para. 81.

[11] The plaintiff alleges that it has a strong prima facie case that Mr. Folino was a fiduciary because:

a. all power, discretion and control over its affairs lay with Mr. Folino;

b. Mr. Folino had the authority to unilaterally exercise that power, discretion or control over the plaintiff’s day-to-day affairs and in respect of all significant business decisions. Mr. Folino had the authority to contractually bind the plaintiff without prior approval;

c. Mr. Folino was the sole salesperson for the plaintiff and as such was the personification of the plaintiff’s business to all its customers in Canada and the United States. He had access to all the plaintiff’s confidential information.

[12] Mr. Folino disputes the characterization of his role with the plaintiff. He deposes that he was not the only salesperson, but another employee had some sales responsibility. Moreover, he states that there were meaningful limits on his authority. He explains that the plaintiff was closely related to an entity known as JFC. John Freedman was president of both entities. Both the plaintiff and JFC exercised control over his work. He states he could not sell to a purchaser the beyond credit limits established by the JFC’s CFO. He deposes that Mr. Freedman set insurance limits which limited the quantities of aluminum that Mr. Folino and the other salesperson could secure. He also deposed to ways in which his production was monitored by JFC and Mr. Freedman.

[13] For his part, Mr. Freedman disagrees, arguing that it was Mr. Folino who established insurance limits. He states he did not review the deals Mr. Folino made, but only reviewed Labrador’s monthly financial performance. He denies that Mr. Folino was subject to significant oversight by JFC’s CFO.

[14] Mr. Folino’s job description, which the evidence suggests he helped to draft, indicates that he has “primary responsibility for the development of a new company, Labrador Recycling, Inc.” It describes the role of the leader of a start-up, with responsibility for developing a business plan, developing a marketing strategy, and creating a network of dealers. Moreover, it is apparent that his role was different than the other employees, whose salaries were a small fraction of Mr. Folino’s earnings.

[15] I accept that Mr. Folino had significant responsibilities at Labrador and was a key player in its operations. He had the scope to exercise some discretion or power. However, even assuming he could exercise that discretion or power unilaterally, I have difficulty on this record concluding that the plaintiff was peculiarly vulnerable to the exercise of power by Mr. Folino, and in particular, on his departure.

[16] Mr. Folino’s evidence describes the nature of the aluminum scrap industry, in which he has worked virtually his entire life. According to Mr. Folino, the aluminum scrap metal industry is not characterized by customer loyalty. Rather, it is an industry largely pegged to prices on public pricing indexes. Thousands of vendors and purchasers in the aluminum scrap industry publicly post on their websites and send mass emails stating the prices they are prepared to accept or pay. Prices are volatile; deals come together in hours, not days or months. Mr. Folino deposes:

There are likely thousands of small aluminum brokers that operate in Canada and the northern parts of the United States. To my knowledge, none – including Labrador – can lay claim to any proprietary relationship with any of the vendors or purchasers. On both sides, the goal is to get the best price, and the broker with the best price will typically get the order. Indeed, for many vendors, when they have aluminum to sell, they will often notify dozens of brokers (sometimes including Labrador) and mills at the same time. Whoever can bring them the best price will typically win the deal.

[17] The plaintiff does not agree with this characterization, and states that the fact that Mr. Folino was charged with creating a network of customers to sell and buy from, and the fact that he makes note of the relationships he brought with him to the plaintiff, is indicative of an industry where relationships matter. The plaintiff alleges it has invested resources in developing customer relationships. However, there is no specificity to the plaintiff’s allegations. It does not describe any steps it has taken to build relationships with customers; there is no evidence of events with customers, or regular meetings, for example, to solidify relationships. There is no evidence from Mr. Folino’s replacements of the efforts he has taken to build relationships apart from sending some emails to enquire about possible deals. There is no evidence of efforts to target new customers, or how they might be approached. Importantly, there is no evidence to contradict Mr. Folino’s evidence that companies send out mass emails or that pricing is the most important factor in finalizing a deal. In other words, having a lot of contacts is important, but the closeness of the relationships with the contact is not.

[18] There is evidence that Mr. Folino gave the plaintiff two months’ notice, during which time his replacement was hired, and Mr. Folino introduced him to the plaintiff’s customers. There is also evidence that Mr. Folino’s replacement had his own, pre-existing relationships with some of those customers, including one key customer, AIM, about which more will be said. Although the plaintiff argues that the emails Mr. Folino sent to customers introducing them to his replacement were thinly veiled attempts to solicit work, I do not agree with that reading of the emails. At no time did Mr. Folino offer that he was going into competition with the plaintiff, nor did he share his new contact information. In response to some enquiries from customers about his plans, he indicated he was staying in the industry, but again did not offer specifics. Some customers asked Mr. Folino to reach out to them once he was settled, but that is not the same thing as Mr. Folino soliciting customers.

[19] In my view, the plaintiff does not make out a strong prima facie case that it was peculiarly vulnerable to, or at the mercy of, Mr. Folino. Rather, the evidence suggests that relationships between Labrador and purchasers or vendors of aluminum scrap were not the determining factor in closing deals. In the aluminum scrap industry, deals come together quickly based primarily on price. Because price is the determining factor, purchasers and vendors of aluminum are incentivized to seek out multiple contacts to increase their chances of reaching the best deal possible. Customer loyalty is not a feature of the industry. Mr. Folino’s relationships with vendors and purchasers in the aluminum scrap industry (some of which predated Mr. Folino’s employment with Labrador) did not drive the plaintiff’s ability to close deals: it was all about price. On Mr. Folino’s departure, the plaintiff retained all its contacts, and thus its ability to compete.

Breach of the Contractual Restrictive Covenant

[20] The plaintiff relies on a clause in the employment agreement that it describes as a “non-solicitation clause” and a “non-acceptance clause.” The defendants argue that the clause is in fact a non-compete clause, which are void as a general rule, and will only be enforced in exceptional cases where a non-solicitation or non-disclosure provision will not be sufficient to protect the employer’s legitimate proprietary interest. As Kristjanson J. held in Ceridian Dayforce Corporation v. Daniel Wright, 2017 ONSC 6763, at para. 37:

Void as a General Rule: Non-competition clauses in employment agreements are void as a general rule, and will only be enforced in exceptional cases, where a non-solicitation or non-disclosure provision will not be sufficient to protect the employer’s legitimate proprietary interest. Even then, the clause must be carefully drafted. The Supreme Court has held that rigorous scrutiny must be applied to non-compete clauses in the employment context, “where an imbalance of bargaining power may lead to oppression and a denial of the right of the employee to exploit, following termination of employment, in the public interest and in his own interest, knowledge and skills obtained during employment:” J.G. Collins Insurance Agencies Ltd. v. Elsley, 1978 7 (SCC), [1978] 2 S.C.R. 916, [1978] S.C.J. No. 47 at para. 16. A non-compete clause in an employment context may be enforceable if it is reasonable between the parties and with reference to the public interest.

[21] The plaintiff agrees that, however one characterizes the clause at issue, the primary question is whether it is reasonable in the circumstances. The onus lies on the party seeking to enforce the clause to establish on a balance of probabilities that it has a proprietary interest entitled to protection, that the temporal and spatial features of the clause are not too broad, that its terms are clear and certain, not vague and ambiguous, and that, in all the circumstances, the restriction is reasonably required for the employer’s protection: Ceridian, at para. 39.

[22] When a restrictive covenant prescribes, not simply solicitation of customers, but also the acceptance of business from customers, it constitutes a non-competition covenant rather than a non-solicitation covenant: Donaldson Travel Inc. v. Murphy, 2016 ONSC 740 at paras. 23, 28, aff’d 2016 ONCA 649, at paras. 3-5.

[23] An unreasonable restrictive covenant cannot be rendered reasonable by notional severance or by reading it down: Donaldson Travel, (S.C.J.) at para. 32.

[24] I agree with the defendants that the contractual provision on which the plaintiff relies is a restrictive covenant. It purports to prohibit Mr. Folino from soliciting and accepting business from any of the plaintiff’s current or prospective customers. It defines a “current or prospective customer of the company” as “an individual or entity with which [Mr. Folino] personally had direct or indirect contact, or access to conduct confidential information about, during the last two years of [his employment].” Notably, the definition of customer or potential customer of the company includes no relationship between the customer or potential customer and the plaintiff. For example, it does not say that a customer or potential customer is someone with whom Mr. Folino had contact in connection with his employment duties. The only limitation on who is customer or potential customer when it comes to someone with whom Mr. Folino had contact is that the contact take place within the last two years of his employment. As drafted, his drycleaner would qualify.

[25] In my view, the plaintiff has not established a strong prima facie case that the clause is reasonable:

a. Given the evidence that deals come together in the aluminum scrap industry within hours, a one-year temporal limit is unreasonably long. The plaintiff agrees the point of a non-solicitation or non-competition period is to allow the employer to solidify its relationships with its customers after the departure of the employee. Here, the plaintiff will have frequent contact with its vendors and purchasers due to the nature of the industry and so would not require a year to solidify any relationships that require solidifying.

b. There is no geographic limit set out in the clause. On its own, in a non-solicitation clause, no geographic limit may be reasonable if the customers are reasonably defined and identifiable. In this case, the definition current or prospective customers that the restrictive covenant purports to prevent Mr. Folino from accepting work from casts a very broad net and is imprecise.

c. The terms of the clause are not clear and unambiguous. For example, the clause restricts Mr. Folino from accepting work from a person he may never have had contact with but in respect of whom he had access to confidential information. It is not clear how he would identify such people. The clause also purports to restrict Mr. Folino from soliciting or accepting work from someone with whom he has had indirect contact over the past two years. It is not clear what “indirect contact” means.

d. Moreover, in prohibiting Mr. Folino from soliciting or accepting work from anyone with whom he personally had direct contact during the last two years of his employment, the clause purports to restrict him from accepting work from his personal contacts who may have had nothing to do with the plaintiff at any time. The plaintiff says this is ridiculous but as I have noted, the definition in the agreement of customer or potential customer of the company does link that person in any way to the company or Mr. Folino’s employment duties.

Misuse of Confidential Information

[26] The plaintiff does not argue that it has a strong prima facie case based on the contractual provisions that prevent misuse of confidential information. However, it does make reference to the confidential information provisions in the employment agreement and the issue is addressed by the defendants so I will consider it.

[27] In Camino, at para. 56, citing Edac Inc. v. Tullo, 1999 14868 (ON SC) at para. 52, the court set out the elements a plaintiff must prove to succeed in a claim for breach of confidence:

a. The information at issue is confidential;

b. The information was misused by the defendant;

c. The plaintiff suffered harm from the misuse.

[28] The plaintiff alleges that Mr. Folino misused confidential information because he is soliciting the plaintiff’s customers. To the extent that the plaintiff relies on the fact that the defendants have contacted vendors and purchasers in the aluminum scrap market, the evidence indicates that vendors and purchasers make their contact information available online because they are interested in having a broad network from which to solicit quotes in order to maximize profits. Therefore, I do not accept that the identity of the vendors and purchasers in the aluminum scrap market is information that is confidential to the plaintiff.

[29] There is no evidence that any other confidential information belonging to the plaintiff has been misused, or of any resulting harm. The plaintiff alleges that the defendants have misused confidential information regarding its pricing to undercut the plaintiff with respect to one customer, AIM, but there is no evidence to back up that claim. The purchase order from Sempris to AIM is in the record, but there is nothing to which to compare it to ascertain whether the defendants have undercut the plaintiff’s profit margin as alleged. The evidence in the record of AIM’s sales to the plaintiff do not include details of the transactions. Moreover, no one has explained to me how a purchaser can undercut the price of another purchaser impacting profit margins. I am not satisfied by the quality of this evidence.

[30] As a result, I conclude that the plaintiff has not established a strong prima facie case. On its own, this conclusion is enough to dismiss the plaintiff’s motion. However, I will address the other aspects of the test.

Has the plaintiff established irreparable harm?

[31] In 2158124 Ontario Inc. v. Pitton, 2017 ONSC 411, at paras. 449, the court held that it is insufficient to merely assert that a plaintiff is likely to suffer irreparable harm. “It is necessary for the evidence to support a finding that the defendant would suffer irreparable harm.” The onus lies on the party seeking the injunction to place clear evidence before the court to ground a finding of irreparable harm. Irreparable harm cannot be founded on mere speculation.

[32] The plaintiff argues that without injunctive relief, it will suffer irreparable harm including the permanent loss of market share, substantial loss of revenue, damage to its business reputation, and the disclosure, misuse or misappropriation of its confidential information.

[33] The plaintiff gives evidence about one deal that the defendants made with AIM, a large industry player to which I have already referred in these reasons. The plaintiff asserts that Mr. Folino deferred deals with AIM while he was working for the plaintiff so that he could take advantage of them after his departure, noting that Sempris purchased from AIM shortly after Mr. Folino left the plaintiff.

[34] As I have noted, the evidence indicates that deals in the aluminum scrap industry come together within hours and that the price of aluminum is volatile. The plaintiff did not contradict this evidence in its reply evidence. It is not commercially reasonable to suggest that deals could be deferred in this market. Moreover, the evidence also suggests that the plaintiff continues to do business with AIM without a significant drop in that business, with the possible exception of the period of time during which prices on the global export market were preferable and AIM looked to that market as a result. While the plaintiff argues that this was not the true reason AIM did not sell to it, it adduced no evidence to contradict the evidence about more favourable pricing being available on the global export market.

[35] The plaintiff argues it has concluded only one deal with AIM since Mr. Folino left a month ago, and that this is indicative of a drop in business. However, the evidence in the record indicates that in 2019, the plaintiff concluded one deal with AIM in each of February, March, May, June, July, September and October, and two in December. In 2020, the plaintiff concluded four deals in January, one in April, and six in July. At this point, the evidence does not establish that the plaintiff’s business from AIM has fallen off since Mr. Folino’s departure, especially in view of the pricing on the global market in the last quarter of 2020.

[36] I have already rejected the plaintiff’s argument that the evidence shows that the defendants have undercut it in dealing with AIM, and negatively impacted the plaintiff’s profit margins going forward. Moreover, to the extent that argument is used to advance a claim of irreparable harm, I note that, despite the information about the dealings with AIM being known to the plaintiff before it filed its original motion materials, it did not raise the alleged irreparable harm relating to its profit margins until its reply evidence, after Mr. Folino gave evidence that the plaintiff was continuing to deal with AIM.

[37] This leads me to my concern about the plaintiff’s evidence regarding AIM generally. In the affidavit filed in its amended motion record, Mr. Freedman deposes:

…I have also learned that shortly before Folino’s departure, there was a complete or near complete drop off of purchase orders with [AIM]. AIM had historically placed orders on a roughly monthly basis prior to January 2020, when it began placing orders on a quarterly basis to be fulfilled monthly. However, no orders were made by AIM in the final quarter of 2020 or in January or February 2021, the months immediately prior to Folino’s departure.

[38] What is remarkable about this paragraph is that, although the affidavit is sworn on March 11, 2021, it does not disclose that the plaintiff closed a deal with AIM on March 5, 2021. The paragraph appears deliberately drafted to be technically true, while obscuring that important fact, which was adduced by Mr. Folino in his responding evidence. I have concerns about whether the plaintiff has been forthright in its evidence with respect to AIM, which in turn causes me concerns about the credibility of its evidence generally. If Mr. Folino had not been aware that the plaintiff had dealt with AIM, would it have been content to leave me with the impression that it had had no dealings with AIM since Mr. Folino’s departure? Based on Mr. Freedman’s original affidavit, it appears so.

[39] In its reply material, the plaintiff also states that it has just learned that another customer, Winpak, has indicated it will not have loads available for the plaintiff until January 2022. The plaintiff expresses concern that Mr. Folino has entered into an agreement to steal Winpak’s business from Labrador. Mr. Folino’s evidence indicates that neither defendant has solicited, had negotiations with, or entered into any agreements with, Winpak. An email from Winpak’s representative, contained in the plaintiff’s supplementary reply material, indicates Winpak confirmed it was not doing business with Sempris, and that Mr. Folino would have to wait. There is no evidence to allow me to conclude that Winpak has diverted its business to the defendants. The suggestion that the defendants are responsible for the plaintiff’s loss of business from Winpak is pure speculation.

[40] Mr. Folino gives evidence that he understands the plaintiff is hiring to meet increased demand for its services. The plaintiff does not deny this; it simply argues that profitability is not the measure of irreparable harm. While I agree that profitability can co-exist with irreparable harm, the plaintiff’s evidence is not that it is profitable, but less so than it would be due to Mr. Folino’s actions. The affidavit evidence of Mr. Freedman is that the plaintiff is at risk of having its business significantly diminished or destroyed entirely, evidence which is not consistent with hiring. This is yet another example of evidence from the plaintiff that appears to be unreliable, in this case because it is exaggerated.

[41] In making its case for irreparable harm, the plaintiff alleges that it invested resources, time, and effort in building customer relationships. However, this is a bald statement without specific evidence to back it up. There is no evidence of how the plaintiff invested resources in building up its customer relationships. Moreover, the evidence indicates the customer relationships are not what drive the deals in the aluminum scrap industry, but rather price does.

[42] I am not satisfied on this record that the plaintiff is at risk of loss of market share, substantial loss of revenue, or damage to its business reputation. The plaintiff’s evidence is, at turns, speculative, exaggerated, unsupported, or not forthright.

[43] The plaintiff notes that in cases involving misuse of confidential business and personal information, irreparable harm is presumed. I accept that this conclusion is consistent with the jurisprudence: Carecor Health Services v. Health Trans Services Inc., 2006 CarswellOnt 3781 (S.C.), at para. 20. I have some concern that misuse of confidential information is not harm in and of itself, but rather the means by which irreparable harm, including loss of market share, revenue or reputation, may be caused. However, I need not grapple with that issue here because, as I noted above, there is no evidence that Mr. Folino has misused confidential information. The plaintiff’s allegations are mere speculation.

[44] I find that the plaintiff has not made out a case that it is likely to suffer irreparable harm on the evidence.

The Balance of Convenience

[45] In my view, the balance of convenience in this case favours the defendants. The plaintiff has alleged, but not proven, harm, or the likelihood of it. On the other hand, the evidence indicates that Mr. Folino has spent virtually his entire working life in the aluminum scrap industry. The order the plaintiff seeks would be a serious impediment to Mr. Folino’s ability to earn a living.

Costs

[46] The parties delivered costs outlines at the hearing and agreed that, after reaching my conclusion on the motion, I could review the outlines and make a determination of costs without further submissions.

[47] The three main purposes of modern costs rules are to indemnify successful litigants for the costs of litigation, to encourage settlement, and to discourage and sanction inappropriate behaviour by litigants: Fong v. Chan (1999), 1999 2052 (ON CA), 46 O.R. (3d) 330, at para. 22.

[48] Subject to the provisions of an Act or the rules of court, costs are in the discretion of the court, pursuant to s. 131 of the Courts of Justice Act, R.S.O. 1990, c. C.43. The court exercises its discretion taking into account the factors enumerated in r. 57.01 of the Rules of Civil Procedure, including the principle of indemnity, the reasonable expectations of the unsuccessful party, and the complexity and importance of the issues. Overall, costs must be fair and reasonable: Boucher v. Public Accountants’ Council for the Province of Ontario, 2004 14579 (Ont. C.A.), 71 O.R. (3d) 291, at paras. 4 and 38. A costs award should reflect what the court views as a fair and reasonable contribution by the unsuccessful party to the successful party rather than any exact measure of the actual costs to the successful litigant: Zesta Engineering Ltd. v. Cloutier, 2002 25577 (ON CA), 2002 CarswellOnt 4020, 118 A.C.W.S. (3d) 341 (C.A.), at para. 4.

[49] The defendants are the successful parties on this motion and are presumptively entitled to their costs.

[50] On a partial indemnity scale, the defendants’ seek costs of $47,488.82, all inclusive. The plaintiff’s partial indemnity costs, according to its bill of costs, are $64,169.41, all inclusive.

[51] With respect to the fair and reasonable quantum of costs, I note the following:

a. The defendants are entitled to some measure of indemnity;

b. There are no formal offers to consider. The plaintiff indicates it sought an interim injunction on consent, which was not forthcoming.

c. Although I have concerns about whether the plaintiff was forthright in its evidence, I am not prepared to go so far as to conclude it behaved unreasonably on the motion. The defendants did not behave unreasonably on the motion.

d. I am not willing to consider the skirmishes around the delivery of reply evidence and sur-reply evidence in my assessment of costs. Had I been asked to determine the admissibility of the reply evidence, I would have found that Diamond J.’s order did not provide for reply material. Because the parties’ consented to the admission of the evidence, and indicated it was necessary to receive it in the interests of justice, I allowed it, but I am not prepared to find that one party or the other behaved unreasonably in either seeking to admit further evidence or to exclude it;

e. There was moderate complexity to both the facts and the law in this case;

f. The issues raised were very important to both parties.

[52] In the circumstances, I find that the costs claimed by the defendant on a partial indemnity scale are fair and reasonable, particularly in view of the fact that they are substantially lower than the costs incurred by the plaintiff, and thus within the plaintiff’s reasonable expectations. The plaintiff shall pay the defendants’ costs of $47,488.82, all inclusive, within thirty days.

Next Steps

[53] Justice Diamond’s endorsement left to me the scheduling of the return of the plaintiff’s motion for an interlocutory injunction.

[54] Given what transpired with the reply evidence, I assume the parties will each need to file further evidence. I direct that each party shall have leave to file one additional affidavit of no more than eight pages.

[55] The Registrar canvassed dates on which the parties are available for the motion. The motion shall be scheduled for August 4, 2021 at 10 a.m. for one day.

[56] The parties shall cooperate to timetable the exchange of further affidavit evidence, cross-examinations, and the exchange of factums for the interlocutory injunction. If they have any difficulty in reaching a timetable, they may request a chambers appointment. If it is necessary, it need not take place before me.

J.T. Akbarali J.

Date: March 23, 2021