COURT FILE NO.: CV-21-672135
DATE: 20211130
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Dr. Azim Parekh, Smiles First Corporation, and Dr Parekh Dentistry Professional Corporation
Plaintiffs
– and –
Dr. Ira Schecter, D. Michael Schecter, Schecter Dentistry Professional Corporation, Dr. Vanessa Mendes, Dr. Joseph Fava, Dr. Charles Pine, and Dr. Joseph Fava Dentisty Professional Corporation
Defendants
COUNSEL:
Martin, P., for the Plaintiffs
Fruitman, P., for the Schecter Defendants and as agent for Janice Rubin, Proposed Defendant
HEARD: November 23, 29, 2021
SUGUNASIRI, J:
Overview and Brief Conclusion
[1] Dr. Parekh and the Drs. Ira and Michael Schecter are dentists who formerly practiced together at Regal Heights Dentistry Centre (“RHD”) in Toronto. RHD was formerly owned by the Schecters (first Ira then Michael) until 2020 when Dr. M. Schecter sold the practice to the Plaintiffs. Both Schecter doctors stayed on at RHD as associates. Dr. I. Schecter resigned in October 2021 and now “associates” at Yorkville Village Dentistry (“YVD”). Under the terms of Dr. I. Schecter’s Associate Agreement with RHD, he agreed not to solicit former patients and practice inside a 5 km radius from RHD. Jane Rubin is a receptionist formerly at RHD until she resigned in October of 2021. She is now at YVD. The Plaintiffs suspect that Ms. Rubin is assisting Dr. I. Schecter is soliciting his former patients.
[2] The Plaintiffs originally moved for an interim injunction to prevent Dr. I. Schecter from practicing “within” 5 kms of RHD and soliciting patients. They also seek to enjoin all Defendants from soliciting RHD’s patients and wish to add Ms. Rubin to the action and the prohibition on solicitation of patients. At the time of the hearing, the court was unable to hear the full interlocutory injunction motion until July of 2022. After the hearing, the court advised the parties that December 10, 2021 was available to argue the full motion. Dr. I Schecter is out of the country until December 6, 2021. This alters the length and the nature of the interim injunction. Given the new return date, the Schecter Defendants and Ms. Rubin agree to a non-solicitation interim order. There is also no issue about adding Ms. Rubin to the action. The limitation period has not passed. The only issue is whether Dr. I. Schecter can treat former RHD patients scheduled at YVD between December 6 and 10, 2021.
[3] I do not enjoin Dr. I. Schecter from treating the 29 patients scheduled to have treatment with him between December 6 and December 10, 2021 because the Plaintiffs have not persuaded me that they will suffer irreparable harm if he is permitted to treat them. Damages are quantifiable for those 29 patients. Even if erosion of goodwill is unquantifiable, it has already happened when these patients decided to book with Dr. I. Schecter at YVD. There is no utility in preventing them from receiving the booked treatment. I leave it to the motions judge to decide if he or she wishes to extend my order to patients Dr. I. Schecter is slated to see after December 10, 2021.
[4] I elaborate below.
Analysis:
[5] To obtain interim injunctive relief, a party generally must establish that there is a serious issue to be tried, that the plaintiff will suffer irreparable harm if the court does not grant the injunction, and the balance of convenience favours the injunction.[^1] In a case involving restrictive covenants that impede the ability of a person to earn a livelihood, many courts have required the moving party to establish a prima facie case. Justice Akbarali sets out a good discussion of the divergent case law in Point One Graphics Inc v Roszkowski et al.[^2]
[6] I need not resolve that issue in this case. Assuming that the Plaintiffs are able to demonstrate a serious issue to be tried or a prima facie case, the motion fails on the irreparable harm branch. In addition to the extensive materials filed for use on the larger motion, Dr. Schecter prepared a supplementary affidavit upon my request, indicating how many patients from RHD he was scheduled to treat between December 6 and 10. He also described the type of procedure and the reason why each patient had to be seen in that period. I permitted Dr. Parekh to comment on the proposed procedure for each patient in terms of its urgency. Dr. Schecter’s evidence reveals that he is scheduled to treat 29 RHD patients between December 6 and 10. He categorizes all of the proposed treatments as urgent or mid-care visits. Dr. Parekh disagrees that most are urgent and suggests that many of the procedures can be done by any dentist.
[7] “Irreparable harm” refers to the nature of the harm suffered rather than its magnitude. It is harm that either cannot be quantified in monetary terms, or which cannot be cured.[^3] Here there is a list of patients, details about treatment and date of treatment. The Plaintiffs can readily calculate business losses with this information if they need to. Beyond that the Plaintiffs claim loss of goodwill. In some cases, loss of goodwill can be irreparable harm.[^4] However it is not a hard and fast rule that goodwill can never be quantified.[^5] It depends on the circumstances of the case whether or not goodwill is calculable. I need not delve into that issue to resolve this motion. Calculable or not, goodwill is not at stake if Dr. I.Schecter is permitted to treat patients who have already jumped ship. It is a patient’s realization that Dr. I. Schecter’s name is now associated with another dental practice that might erode goodwill. There is simply no utility in forcing these 29 patients to go to another dentist or reschedule appointment. There is no irreparable harm to the Plaintiffs if Dr. I. Schecter is permitted to treat the 29 patients already booked. I so concluded regardless of the type or urgency of the treatment these 29 people will receive
[8] Given my conclusion on irreparable harm, I do not need to discuss the balance of convenience. However, I will say that even if I am incorrect on the issue of irreparable harm, the balance of convenience does not favour an injunction. Allowing 29 patients to be treated over four days does not so irreparably damage the Plaintiffs that it warrants the court preventing these patients from receiving expected treatment on scheduled days. A four-day interim injunction in the current circumstances does not particularly protect the Plaintiffs. On the other hand, it unduly inconveniences these patients at a time of uncertainty. The pandemic continues and as new variants emerge that may trigger public health restrictions, access to medical appointments when they are available is even more important.
Conclusion:
[9] I add Janice Rubin to this action. The Defendants and Ms. Rubin shall not directly or indirectly solicit RDH clients from today’s date until the interlocutory motion returnable December 10, 2021 is decided. I do not enjoin Dr. I. Schecter from treating the 29 patients already booked for appointments between December 6 and 10. This is without prejudice to the Plaintiffs applying to the motions judge for an extension of my order for appointments arising between December 10, 2021 and the release of the interlocutory injunction decision.
Costs:
[10] Given the significant overlap in materials between this motion for interim relief and the motion for and interlocutory injunction, I reserve costs to the motions judge hearing the interlocutory injunction.
Justice P.T. Sugunasiri
Released: November 30, 2021
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ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
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[^1]: RJR-McDonald Inc. v Canada, 1994 117 (SCC), [1994] 1 SCR 311 at pp 314-315.
[^2]: 2021 ONSC 629.
[^3]: RJR supra at p. 315.
[^4]: See for example Ontario Graphite Ltd. v Janik, supra, at paras. 62-63, Messa Computing Inc. v Phipps, 1997 CarswellOnt 5596 (Gen Div) at para. 32.
[^5]: See for example Nakatsuru, J.’s comments in Berkeley Payment Solutions Inc. v Miller et al, 2018 ONSC 3645.