ONTARIO SUPERIOR COURT OF JUSTICE

COURT FILE NO.: CV-21-00672135

DATE: 20220113

RE: Dr. Azim Parekh, Smiles First Corporation, and Dr Parekh Dentistry Professional Corporation, Plaintiffs

AND:

Dr. Ira Schecter, DR. Michael Schecter, Schecter Dentistry Professional Corporation, Dr. Vanessa Mendes, Dr. Joseph Fava, Dr. Charles Pine, and Dr. Joseph Fava Dentisty Professional Corporation, Jane Rubin, Defendants

BEFORE: Justice Mohan D. Sharma

COUNSEL: Paul J. Martin and Frank B. Portman, for the Plaintiffs

Paul Fruitman and Tom Macintosh Zheng (student-at-law), for the Defendant, Dr. Ira Schecter

HEARD: December 12, 2021

ENDORSEMENT – INTERLOCUTORY INJUNCTION

[1] The plaintiffs bring this interlocutory injunction motion. They seek orders:

a. Prohibiting the defendant, Dr. Ira Schecter, from carrying on or engaging in the practice of dentistry within 5 kilometers of the plaintiffs’ business, namely, Regal Heights Dental Centre at 930 St. Clair Avenue West (“RHD”), until October 27, 2023;

b. Prohibiting the defendants from assisting or associating with Dr. Ira Schecter for the purpose of practicing dentistry within 5 kilometers of RHD;

c. Prohibiting the defendants from soliciting any patients from RHD until October 27, 2023;

d. Requiring the defendants, within 24 hours, to return all patient information of any patients of RHD within their possession to the plaintiffs.

[2] The defendant, Dr. Ira Schecter, defends each issue and also argues that the plaintiffs should be denied equitable relief because they do not have clean hands.

I. Practice Note - Use of CaseLines

[3] Before I turn to the facts and issues, and for the benefit of the profession, I comment on counsel’s use of CaseLines in this case. The moving parties have uploaded 56 separate documents to CaseLines. The responding party has uploaded 175 separate documents. Many of the individually uploaded documents are exhibits to affidavits. Many cases are also uploaded individually. Some documents exceed 500 pages.

[4] I appreciate that the use of CaseLines remains relatively new for counsel and the Court. There are inconsistencies in how it is used. In every case, materials must be uploaded with a view to ensuring they are usable by the Court. Justice Dunphy recently commented on this problem which he described as “endemic”: Basaraba v. Bridal Image Inc., 2021 ONSC 8083 at para 26. The reality for most judges and associate judges is that they cannot scroll through a list of hundreds of documents in CaseLines in search of a specific document, then click in and click out of those documents for the evidence or authorities to which counsel seeks to direct the Court.

[5] When we relied on paper documents, evidence would be in a single motion record, and authorities would be in a single book of authorities (although often with multiple volumes), with appropriate tabs. In contrast, in this case and others I have heard, hundreds of documents were uploaded. Notably, exhibits were not uploaded with the affidavit and hyperlinked within the affidavit. They were uploaded individually. To find an exhibit and marry it up with the appropriate affidavit, I was required to search the complete list of documents that were uploaded. CaseLines allows only two documents to be viewed at the same time. Documents that exceeded 500 pages would freeze as I scrolled through them.

[6] I am not advocating for a return to paper documents. CaseLines is a powerful technological tool. With it, both counsel and the judiciary can take advantage of its many features to save time and resources. Like me, many of my colleagues seek to maximize its functionality. But to do so, counsel are required to use CaseLines properly which requires greater effort on their part.

[7] In particular, I direct counsel to a document titled, CaseLines Hearings – Tips for Counsel and Self-represented Parties”, found at: CaseLines Hearings – Tips for Counsel and Self-represented Parties | Superior Court of Justice (ontariocourts.ca). Tip 5 In this document states:

Affidavits with attached exhibits should be uploaded in one PDF document with hyperlinks from the affidavit to the exhibits for ease of reference. Similarly, where a Book of Authorities is provided to the court, it should be uploaded as a single PDF document with a table of contents hyperlinked to the cases contained in it. This will assist the judicial official in easily locating the exhibits and/or caselaw. A party’s factum can also be linked to caselaw in publicly available on-line sources such as , where available.

When uploading a document to CaseLines, ensure the document is under 500 pages in length. This will allow you to avoid issues with your document freezing while scrolling during your hearing. As such, if a document such as a book of authorities is loner than 500 pages, it should be broken down into Book of Authorities Vol. 1, Book of Authorities Vol 2, etc. to remain under the maximum number of pages.

[8] In addition, when preparing PDF documents, counsel should bookmark the relevant sections, tabs, or exhibits within a PDF document before uploading them to CaseLines. It is my practice to download from CaseLines the PDF versions of documents. I know some of my colleagues do as well, but not all. If the relevant sections are bookmarked, it assists with finding material within a PDF document. For example, it is of no use to identify in a factum a case found at a tab of a Book of Authorities, if those tabs have not been created by way of bookmarks in the PDF document.

[9] Had these steps been taken by counsel in this case, the time required to dispose of this time-sensitive injunction motion would have been reduced. Other cases similarly waiting for disposition could have been dealt with sooner. Counsel must accept responsibility in assisting the Court, and the consequent delays on the administration of justice when they fail to do so.

II. Background Facts

[10] The facts in this case are straightforward, although the complexity is within the details and the analysis. The basic facts are recounted first.

[11] In 2020, the plaintiffs purchased a dental practice from Dr. Michael Schecter (“Michael”), the son of Dr. Ira Schecter (“Ira”). Ira and Michael are dentists. I refer to them as Ira and Michael out of no disrespect, but only to distinguish among the Drs. Schecter in these reasons.

[12] The plaintiff, Dr. Azim Parekh, is the founder of the plaintiff, Smiles First Corporation (“Smiles First”). Smiles First manages RHD. The plaintiff, Dr. Parekh Dentistry Professional Corporation (“Parekh PC”) is the legal name of RHD.

[13] Ira originally owned the dental practice. In 2006, Michael joined the practice as a dentist. In 2008, the practice was renamed Schecter Dental, and social media and promotional material had images of the father-son team who worked out of the practice.

[14] In 2012 or 2013, Ira sold his shares in the practice to Michael for $500,000. However, Ira continued to work out of the clinic and continued to treat his patients as an associate. There is evidence that Ira continued to be involved in the management of the clinic, or at least the management of his own patients.

[15] In 2020, Michael sold the practice to the plaintiffs for $5.6 million. There is evidence that Ira was involved in some aspect of the sale of the practice, although Ira stays it was minimal. A term of the Share Purchase Agreement was that all associate dentists at the practice, including Ira, would enter into Associate Agreements on closing. A further condition of the Share Purchase Agreement was that Ira would continue working at the practice for four years. The plaintiffs state that this term was sought because the plaintiffs were fully aware of the importance of Ira to the practice, and the amount of the practice’s goodwill that was vested in Ira.

[16] The plaintiffs specifically sought three restrictive covenants from Ira within the Associate Agreement, namely: (1) a non-compete covenant, restricting Ira from practicing dentistry within a 5 km radius of RHD; (2) a non-solicitation covenant, restricting Ira from directly or indirectly soliciting patients from RHD; and (3) a clause restricting Ira’s use of confidential information, which in this case, relates to confidential patient information which forms part of RHD’s patient files. There is evidence that Ira was involved in negotiating the terms of his Associate Agreement.

[17] Following the purchase of the practice by the plaintiffs, the practice was renamed Regal Heights Dental Centre (defined as “RHD” in these reasons).

[18] Ira remained as an associate at RHD until his resignation in late October 2021. Shortly thereafter, he began to practice at Yorkville Village Dentistry (“YVD”).

[19] It is not disputed that while YVD is just over a 5 km drive from RHD, it is within a 5 km radius of RHD. It is also argued that he may have solicited patients from RHD because his first few weeks of practice involved seeing patients that used to attend RHD. And there is evidence that Ira took patient dental moulds from RHD when he ceased working there.

[20] On November 30, 2021, Justice Sugunasiri issued her interim injunctive relief decision, pending the hearing of this interlocutory motion. In her endorsement, Justice Sugunasiri enjoined the defendants from directly or indirectly soliciting clients of RHD until the interlocutory motion is decided. She did not enjoin Dr. Ira Schecter from treating 29 patients who already had booked appointments between December 6 and 10, 2021.

[21] On December 10, 2021, I heard the interlocutory motion. Until my decision was released, I made the following interim orders:

a. The defendants are enjoined from directly or indirectly soliciting clients of Regal Heights Dentistry Centre (“RHD”) in Toronto.

b. Dr. Ira Schecter is prohibited from carrying on or engaging in the practice of dentistry within a 5 kilometre radius of Regal Heights Dental Centre, located at 930 St. Clair Avenue West.

III. Issues

[22] Should injunctive relief be granted with respect to:

a. The Non-Competition Clause, prohibiting the defendant, Ira, from carrying on or engaging in the practice of dentistry within a 5 km radius of RHD, and prohibiting the defendants from assisting or associating with Ira for the purpose of practicing dentistry within a 5 km radius of RHD, both until October 27, 2023;

b. The Non-Solicitation Clause, prohibiting the defendants from soliciting any patients from RHD until October 27, 2023;

c. The Confidential Information clause, requiring the defendants, within 24 hours, to return all patient information of any patients of RHD within their possession to the plaintiffs.

IV. Analysis

Issue 1: Should equitable relief be denied because the plaintiffs do not come with clean hands?

[23] The responding parties argue, as a threshold issue, the moving parties are disentitled from relief because they do not come to court with “clean hands”. They rely on authority for the proposition that where a party’s improper conduct is tied to the matters in issue, the Court will “more often than not disentitle them” to injunctive relief regardless of the motion’s merits: See FLS Transportation Services Inc. v Charger Logistics Inc., 2016 ONSC 3652 at para 66; Toronto (City) v. Polai (1969), 1969 CanLII 339 (ON CA), [1970] 1 OR 483 at para 46; and Altam Holdings Ltd. v. Lazette, 2009 ABQB 458 at para 190 (“Altam”).

[24] Ira points to various allegations as evidence of a lack of clean hands. They include how the plaintiffs have brought this injunction motion; that the plaintiffs moved Ira’s assistant of 22 years to another office without his input; the plaintiffs’ treatment of long-term staff; the failure to train new staff on clinic protocols; the plaintiffs ignoring COVID-19 protocols recommended by the Royal College of Dental Surgeons of Ontario (“College”); and a refusal to pay Ira for work performed in September and October of 2021 pursuant to the Associate Agreement, representing $28,999.83 and approximately $16,000, respectively, for each month.

[25] I am not persuaded that these allegations directly relate to the subject of this injunction motion. In Toronto (City) v Polai, supra, at para 46, the Court of Appeal stated that “[t]he misconduct charged against the plaintiff as a ground for invoking the maxim against him must relate directly to the very transaction concerning which the complaint is made, and not merely to the general morals or conduct of the person seeking relief.”

[26] For the most part, the allegations raised against the plaintiffs are modest or have no relation to the Associate Agreement. One complaint that does relate to the Associate Agreement is the non-payment of billings due under it. If those funds are due to Ira, they should be paid or addressed at a mediation or arbitration, as required under the Associate Agreement. If they are due, they are only three or four months outstanding. The plaintiffs note that there is nothing in the Associate Agreement that states time is of the essence in paying these amounts. They rely upon Singh v 3829537 Canada Inc., 2005 CanLII 20816 (ON SC) at para 66, where the absence of such a clause was relevant to the judge’s determination of whether equitable relief should be barred. Furthermore, I was unable to identify in the record an admission that these amounts are owed, which distinguishes this case from Altam. In any event, I cannot conclude that the non-payment of billings is directly related to the matters that are in dispute – namely, the enforceability of the restrictive covenants. The Associate Agreement contemplates a mediation/arbitration for disputes arising from the agreement, but it reserves the rights of the parties to come to court for injunctive relief.

[27] Ira further argues that the plaintiffs have made unsupported allegations, specifically with respect to a solicitation campaign, and therefore, equitable relief should be rejected: Royal Bank v. Boussoulas, 2012 ONSC 2070 at paras 29, 52-55. While some allegations may be unsupported, I am not satisfied that the scope of those allegations rises to the level of disentitling the plaintiffs from equitable relief.

[28] I, therefore, reject the responding party’s argument that equitable relief should be barred due to the conduct of the plaintiffs.

[29] Before considering each issue, I first look at the applicable legal tests and principles to be applied.

Legal Principles

[30] Injunctions are discretionary, equitable relief. They may be granted where the moving party establishes:

(1) there is a serious issue to be tried, or in the case of enforcement of a non-competition clause, there is a strong prima facie case;

(2) the moving party will suffer irreparable harm if the injunction is not granted; and

(3) the balance of convenience favours granting the injunction, based on an assessment of which of the parties will suffer the greater harm from the granting or refusal of the injunction pending the decision on the merits: RJR-Macdonald Inc. v Canada (AG), 1994 CanLII 117 (SCC), [1994] 1 SCR 311 at p 334 (“RJR”); R v. Canadian Broadcasting Corp., 2018 SCC 5 at para 17 (“CBC”).

[31] With respect to the first prong, the responding party argues that the more stringent standard of a strong prima facie case applies when the moving party is seeking enforcement of a non-competition clause. They rely upon Boehmer Box L.P. v. Ellis Packaging Limited, 2007 CanLII 14619 at para 39; Phoenix Restorations Ltd. v. Brownlee, 2010 BCSC 1749 at para 24 (“Brownlee”); and Hired Resources Ltd. v Lomond, 2019 SKQB 195 at para 13 (“Lomond”). The plaintiff has conceded this point.

[32] What the strong prima facie case standard means is “that upon a preliminary review of the case, the application judge must be satisfied that there is a strong likelihood on the law and the evidence presented that, at trial, the applicant will be ultimately successful in proving the allegations set out in the originating notice.” CBC, supra at para 17.

[33] Where a strong prima facie case is shown, the latter branches of the test, while still relevant are of lesser importance: Van Wagner Communications Company, Canada v. Penex Metropolis Ltd., 2008 CanLII 1427 (ON SC) at para 39 (“Van Wagner Communications”).

[34] A strong prima facie case is required when considering a non-competition clause because it limits a person’s ability to engage in their chosen profession (Jet Prink Ink v. Cohen, [1999] O.J. No. 2864 at para 11). However, the plaintiffs need only meet the lesser test of “a serious issue to be tried” in assessing whether Ira has breached the Confidential Information Clause because it is not a restrictive covenant (see Quick Pass Master Tutorial School Ltd. v. Zhao, 2018 BCSC 683 at para 30). An unambiguous non-solicitation clause restricted as to geographic scope and duration does not prevent a person’s ability to engage in their chosen profession, and therefore, the appropriate test is whether a serious issue is raised. (Crawford Packaging Inc. v. Dorata, 2020 ONSC 3555 at para 29).

[35] The following legal principles govern the enforcement of restrictive covenants in a contract of employment:

a. Covenants in restraint of trade are contrary to the public policy in favour of trade, but certain such covenants will be upheld if they are found to be reasonable in the circumstances. Covenants in an employment contract will be subject to stricter scrutiny as compared to ones which formed part of the consideration of a sale of a business. Shafron v. KRG Insurance Brokers (Western) Inc., 2009 SCC 6, [2009 1 SCR 157 (“Shafron”).

b. An ambiguous restrictive covenant will be prima facie unenforceable (e.g., with respect to activity, time or geography), because the party seeking to enforce it will be unable to demonstrate it is reasonable in the face of the ambiguity. Shafron, paras 27 and 43.

c. Principles to apply when assessing whether a restrictive covenant in a contract of employment is unreasonable, and therefore, unenforceable were set out in Mason v. Chem-Trend Limited Partnership, 2011 ONCA 344 at para 16:

I. Is the covenant “reasonable between the parties and with reference to the public interest” (see J.G. Collins Insurance Agencies Ltd. v. Elsley Estate, 1978 CanLII 7 (SCC), [1978] 2 SCR 916 at p 923 (“Elsley”).

II. The balance is between the public interest in maintaining open competition and discouraging restraints on trade on the one hand, and the right of an employer to protect its trade secrets, confidential information and trade secrets, on the other.

III. The validity of a restrictive covenant can be determined only upon an overall assessment of the clause, the agreement within which it is found, and all the surrounding circumstances (see Elsley at 924).

IV. With this context, three factors to consider are: (1) did the employer have a proprietary interest entitled to protection; (2) are the temporal or special limits too broad; and (3) is the covenant overly broad in the activity it proscribes because it prohibits competition generally and not just solicitation of the employer’s customers?

Issue 2: Should the non-competition clause, prohibiting Ira from carrying on or engaging in the practice of dentistry within a 5 km radius of RHD until October 27, 2023, be enforced? Should an order similarly issue preventing the other defendants from assisting or associating with Ira for the purpose of practicing dentistry within a 5 km radius of RHD until October 27, 2023?

[36] The non-competition clause in the Associate Agreement, dated January 20, 2020, which Ira signed, states:

Non-Competition. The Associate shall not during the Term of this Agreement and for two (2) years thereafter, either directly or indirectly, whether as a proprietor, partner, shareholder, employee, associate or otherwise, carry on or be engaged in the practice of dentistry anywhere within a five (5) kilometer radius of the Premises.

[37] Is there a strong prima facie case that the non-competition clause has been breached?

[38] There is no dispute that Ira now works as a dentist at YVD which is within a 5 km radius of RHD. Although Ira states that he understood the restriction to be travel distance between the two locations, and not radius. YVD is between 5.2 to 6.2 km from RHD depending on the travel route taken. Therefore, there has been a breach.

[39] The question then becomes whether the restrictive covenant should be enforced.

Effect of Bill 27, [Working for Workers Act, 2021](https://www.canlii.org/en/on/laws/astat/so-2021-c-35/latest/so-2021-c-35.html)

[40] To answer this, and before I apply the common law with respect to restrictive covenants, I must address new statutory provisions enacted in Ontario under Bill 27, which received Royal Assent on December 2, 2021 and is titled Working for Workers Act, 2021, S.O. 2021, c. 35 (“WWA”).

[41] Section 4 of Schedule 2 the WWA adds a new part to the Employment Standards Act, 2000, S.O. 2000, c. 41 (“ESA”). It prohibits non-competition clauses in employment contracts, subject to certain exceptions – those who sell a business, and “executives”. The new ESA provisions relevant to this motion read:

67.1 …

“employee” means an employee as defined in subsection 1 (1) and includes an applicant for employment; (“employé”)

“employer” means an employer as defined in subsection 1 (1) and includes a prospective employer; (“employeur”)

“non-compete agreement” means an agreement, or any part of an agreement, between an employer and an employee that prohibits the employee from engaging in any business, work, occupation, profession, project or other activity that is in competition with the employer’s business after the employment relationship between the employee and the employer ends. (“clause de non-concurrence”)

67.2 (1) No employer shall enter into an employment contract or other agreement with an employee that is, or that includes, a non-compete agreement.

(2) For greater certainty, subsection 5 (1) applies and if an employer contravenes subsection (1), the non-compete agreement is void.[^1]

(3) If there is a sale of a business or a part of a business and, as a part of the sale, the purchaser and seller enter into an agreement that prohibits the seller from engaging in any business, work, occupation, profession, project or other activity that is in competition with the purchaser’s business after the sale and, immediately following the sale, the seller becomes an employee of the purchaser, subsection (1) does not apply with respect to that agreement.

(4) Subsection (1) does not apply with respect to an employee who is an executive.

Definitions

(5) In this section,

“executive” means any person who holds the office of chief executive officer, president, chief administrative officer, chief operating officer, chief financial officer, chief information officer, chief legal officer, chief human resources officer or chief corporate development officer, or holds any other chief executive position; (“cadre supérieur”)

“sale” includes a lease. (“vente”)

[42] The respondent argues the WWA applies to void the non-compete clause because Ira was an employee of RHD, and the non-compete provision is found in the Associate Agreement, which is an employment contract. He states that it applies retroactively by necessary implication. If it did not, it would cause a lack of legal uniformity and create two tiers of employees with vastly different levels of protection.

[43] I believe the respondent confuses the terms “retroactivity” with “retrospectivity”. The following explanation of these terms was cited with approval by Iacobucci J. in Benner v. Canada (Secretary of State), 1997 CanLII 376 (SCC) at para 39:

The terms, “retroactivity” and “retrospectivity”, while frequently used in relation to statutory construction, can be confusing. E. A. Driedger, in “Statutes: Retroactive Retrospective Reflections” (1978), 56 Can. Bar Rev. 264, at pp. 268-69, has offered these concise definitions which I find helpful:

A retroactive statute is one that operates as of a time prior to its enactment. A retrospective statute is one that operates for the future only. It is prospective, but it imposes new results in respect of a past event. A retroactive statute operates backwards. A retrospective statute operates forwards, but it looks backwards in that it attaches new consequences for the future to an event that took place before the statute was enacted. A retroactive statute changes the law from what it was; a retrospective statute changes the law from what it otherwise would be with respect to a prior event. [Emphasis in original.]

[44] It seems the respondent is arguing the legislation has retrospective effect – imposing new results (i.e. the voiding of non-compete clauses in the future) in respect of past events (i.e., the creation of non-compete clauses in employment contracts in the past). Whether it is retroactive or retrospective, in my view, the legislation does not apply to void the non-compete clause in the Associate Agreement entered into on January 20, 2020.

[45] Remedial legislation is to have a broad and liberal interpretation: Machtinger v. HOJ Industries Ltd., 1992 CanLII 102 (SCC), [1992] 1 SCR 986 at p. 1002-1003. However, “new legislation that affects substantive rights will be presumed to have only prospective effect unless it is possible to discern a clear legislative intent that it is to apply retrospectively” (see R. v. Dineley, 2012 SCC 58, [2012] 3 S.C.R. 272 at para 10).

[46] Section 34(3) of the WWA states that section 4 (containing the new ESA provisions prohibiting non-compete clauses) “is deemed to have come into force on October 25, 2021.” Typically, legislation comes into effect when a Bill receives Royal Assent, or on a date to be named by proclamation by the Lieutenant Governor. But here, the legislature selected a specific date before Royal Assent happened on December 2, 2021.

[47] Faced with this express legislative intent to make the ESA amendments applicable as of October 25, 2021, and not earlier, it cannot be said the provisions with respect to the non-compete clause applies to contracts of employment with non-compete clauses entered into before October 25, 2021.

[48] At most, and in respect of this case, the new ESA provisions confirms the public policy against restraint of trade, which has already been accepted in the common law.

Application of Common Law Test for Injunctions

[49] The first part of the common law test is whether the non-competition clause is ambiguous.

[50] In my view, the temporal term is clear and specific. It applies for two years after the term of the Associate Agreement.

[51] The geographic term is also clear and specific. It states, “within a five-kilometer radius of [RHD]”, and not five-kilometer travel distance. It is specific in terms of identifying “radius”, rather than simply stating “within five kilometers of RHD”.

[52] In his factum, the respondent states that Ira “relied on the plaintiffs’ representations that the geographic restriction in Article 6.4(b) related to travel distance.” They cite paragraph 34 of Ira’s November 23, 2021 affidavit as evidence of this, but that paragraph makes no mention of the plaintiffs’ representations. It only states that Ira understood the restriction related to travel distance. Therefore, the respondent has not pointed me to evidence that there was any representation by the plaintiffs. In any event, there is an entire agreement clause in Article 9.4 that would preclude any qualification or amendment to the language of the agreement, unless it was subsequently set out in writing.

[53] With respect to the proscribed activity, the respondent argues it is ambiguous. He argues the terms, “indirectly…carry on or be engaged in the practice of dentistry” was not capable of definition by Dr. Parekh during his cross-examination. Similarly, Dr. Parekh refused to answer whether the non-compete clause would prevent Ira from owning shares in a dental practice within a 5 km radius of RHD.

[54] I am not persuaded that the description of the proscribed activity is ambiguous. I repeat the relevant part, which states: “either directly or indirectly, whether as a proprietor, partner, shareholder, employee, associate or otherwise, carry on or be engaged in the practice of dentistry…” The prohibited activity is clear, namely “carry on or be engaged in the practice of dentistry”. While various non-exhaustive roles are listed (proprietor, partner, shareholder, employee, associate, or otherwise), those roles only matter when Ira “carries on or engages in the practice of dentistry.” It speaks clearly to an intention to limit Ira’s ability to carry on or engage in the practice of dentistry, and covers areas where he might seek to subvert the intention of the non-compete clause by being remunerated through roles other than as an employee for his services (e.g., through shares, partnership revenue). In my view, the non-compete clause is not ambiguous.

Have the plaintiffs established a strong prima facie case to enforce the non-competition clause?

[55] The evidence on this motion was that Ira was directly involved in negotiating his Associate Agreement.

[56] On November 26, 2019, Ira sent an email to Ms. Carrafiello, the vice president of operations of Smiles First. His email started with:

“Below are the working points of any contract I would consider signing. As you can well understand I am at the stage of my career where I feel I have plenty to offer but will need sufficient security to ensure my confidence in a new and to me, an unknown entity….”

[57] On January 2, 2020, Ms. Carrafiello responded. She explained that she had sent an associate agreement and believed that Smiles First “had covered everything that was important to [Ira].”

[58] On January 5, 2020, Ira responded. He sent back “a detailed listing of all of [his] comments to both clarify the language in some sections of the agreement and as well to create an agreement that more appropriately relates to someone of [his] experience and stature…” His email then continued, including detailed revisions and edits to the Associate Agreement. In a responding email, Ms. Carrafiello agreed to many of Ira’s requested amendments.

[59] This email chain identifies over 15 separate issues within the Associate Agreement that were negotiated, and many were modified in response to Ira’s request. The items discussed ranged from the number of hours Ira would work, the supplies that Ira wanted to have available in his dentistry practice, that Ira would have sole discretion over setting his fess, Ira’s ability to provide pro bono dentistry, his ability to provide dental services to family members free of charge, the ability of Ira to perform corrective dental work for patients, how much of his billings would be held back, and that Ira would be entitled to take 24 weeks off each year.

[60] Notably, Ira specifically requested a change in the non-compete clause to reduce the geographic distance from 10 km to 5 km. This change was also ultimately agreed to by the plaintiffs.

[61] I recognize the public policy against restraint of trade which is subject to stricter scrutiny in the employment context, and that Ira did not receive payment for goodwill upon the sale of the practice (Michael did). However, the evidence shows Ira’s inextricable role in the practice was well beyond that of a regular employee, and that Ira’s goodwill was significantly attached to the dental practice. This evidence suggests that the non-compete covenant was more closely attached to the contract for the sale of business as compared to one prepared in an employment context.

a. Ira was directly involved in negotiations around his Associate Agreement, and many, if not most, of his demands were accepted. Some of the issues on which concessions were made in favour of Ira were ones that would normally fall within the decision-making responsibility of a manager or employer rather than an employee, such as working hours, setting his fees, vacation time, use of the employer’s premises after hours for pro bono services, and the supplies to be used in the employer’s business. This establishes Ira had bargaining power in these negotiations beyond that of a typical employee.

b. It was an express condition of the Share Purchase Agreement that Ira sign an Associate Agreement, with a 3-year term. Both agreements were executed on the same day, January 20, 2020.

c. While the practice was sold by Michael, there was evidence that among its assets was sizeable goodwill in the practice which was due to Ira, his reputation and consequent goodwill of the patients he served. The goodwill of the dental practice was assessed at $4,305,900, representing the majority of the $5.6 million purchase price.

d. There was further evidence from social media posts that Ira and Michael advertised the clinic with images of the two appearing side-by-side, just prior to the sale, when the clinic was called Schecter Dental. This shows that the goodwill of the practice did not rest exclusively with Michael, but also significantly with Ira.

e. The Share Purchase Agreement confirmed that the plaintiffs were purchasing the practice’s goodwill. The Share Purchase agreement evidences that Ira’s goodwill was part and parcel of the deal. It expressly stated that Ira would enter into an Associate Agreement whereby Ira would continue to work at the practice for a 3 year term – 1 year longer than the other two associates. Ms. Carrafiello’s evidence was that “the plaintiffs were fully aware of the importance of Ira to the practice, and specifically the amount of the Clinic’s goodwill that was vested in Ira. If Ira did not commit to a long-term contract with the Clinic, the value of the Clinic would be reduced.” It is for this reason, according to Ms. Carrafiello, that the plaintiffs paid the purchase price, which was above the appraised value.

f. While Michael was the seller in the Share Purchase Agreement, the plaintiffs argue Ira continued to exercise significant managerial control. For example, he continued to be the lessee of the practice’s dental equipment until the sale. Ms. Carrafiello deposed that Ira played a significant role in the negotiations of the sale. Evidence from Ira and Michael dispute that Ira continued to have any managerial control over the practice. Without deciding that factual dispute, I am satisfied there is evidence which suggests he continued to have some managerial control and involvement in the sale transaction.

First, it is clear he negotiated his own Associate Agreement on terms that he sought, and which aligned more with a former managerial role, such as the ability to serve family members for free, sole discretion in setting his fees, to order unique supplies of Ira’s choosing, and input into personnel hiring and termination.

Second, the Share Purchase Agreement had an express condition that Ira continue to work at the practice for 3 years, and he continued to work there on this basis. It is improbable to conclude that the Share Purchase Agreement with this term was negotiated without Ira’s input or knowledge. There was no evidence that he did not agree to this 3-year term as set out in the Share Purchase Agreement.

Third, even after the sale, and as a reason why Ira resigned from RHD, Ira appears to have perceived continuing management controls. In his responding material on this motion, and as a reason why he resigned from RHD, Ira complained that his assistant of 22 years was moved to another office without his input, he was concerned that long-term staff members had left because they were overworked, and that staff were inadequately trained causing delays in treating patients of the dental clinic. These are matters with which a proprietor or manager of a business would typically be concerned, and not an employee, and most certainly not of an independent contractor, which is how his position was described in the Associate Agreement.

[62] In Payette v. Guay, 2013 SCC 45, [2013] 3 SCR 95 at para 45, the Supreme Court provided guidance on whether a restrictive covenant flows from an employment or commercial context:

To determine whether a restrictive covenant is linked to a contract for the sale of assets or to a contract of employment, it is, in my view, important to clearly identify the reason why the covenant was entered into. The “bargain” negotiated by the parties must be considered in light of the wording of the obligations and the circumstances in which they were agreed upon. The goal of the analysis is to identify the nature of the principal obligations under the master agreement and to determine why and for what purpose the accessory obligations of non-competition and non-solicitation were assumed.

[63] I am satisfied, based on the aforementioned evidence, that the non-compete covenant flowed from the bargain struck with respect to the sale of the business. Ira’s goodwill in the practice was part and parcel of the sale transaction, and the Associate Agreement in which the non-compete covenant was found was a necessary and corresponding extension of the Share Purchase Agreement.

[64] I also find that the non-compete covenant was not unreasonable with reference to the public interest, and after assessing the entire Share Purchase Agreement and Associate Agreement, as well as all surrounding circumstances, including Ira’s negotiations around the Associate Agreement.

[65] The non-compete clause does not preclude Ira from working anywhere – only within a 5 km radius of RHD, and only for a fixed period of two years following the end of the Associate Agreement. The plaintiffs pointed to a case where a 3-year prohibition on practicing dentistry within 15 kms of a practice after the sale of that practice was found reasonable: Dr. Jack Newton Dentistry Professional Corporation v. Towell, 2005 CanLII 37351 (ON SC) (“Towell”).

[66] The non-compete clause was negotiated in the context of the sale of the goodwill of the dental practice, for which a purchase price was paid that exceeded the assessed value. The Share Purchase and Associate agreements were signed the same day. The plaintiffs rightly have a legitimate and acquired interest in protecting the goodwill of RHD, which would be at risk if the non-compete clause was not enforced.

[67] Finally, the clause was not imposed on Ira; he was directly involved in negotiating it. It cannot be said to have resulted in a hard or unfair bargain. While YVD may have unique equipment required for the way in with Ira practices dentistry, I am not satisfied that there does not exist other similarly equipped dental clinics that extend outside the 5 km radius, even if it means Ira has to find a clinic outside the Greater Toronto Area if he intends to continue practicing dentistry. In any event, Ira ought to have considered this issue before agreeing to the non-compete clause.

[68] Accordingly, I am satisfied that there is a strong likelihood that the plaintiffs will ultimately be successful in proving their case, and they have therefore established a strong prima facie case.

Will the plaintiffs suffer irreparable harm if the non-compete clause is not enforced?

[69] As noted previously, if a strong prima facie case is shown, the latter branches of the test for an injunction, while still relevant, are of lesser importance: Van Wagner Communications, at para 39.

[70] In her interim interlocutory decision, Justice Sugunasiri held there is no irreparable harm if 29 patients of RHD, who were already booked at YVD between December 6 and 10, 2021, received that treatment from Ira. She also expressed the view that “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.”

[71] The plaintiffs argue they will suffer irreparable harm if the injunction is not issued. They note that Ira’s Associate Agreement expressly states that in the event of a breach of the restrictive covenants, they would be entitled to seek interlocutory relief from the Court, which creates a presumption of irreparable harm. They also cite one case where this Court held that the loss of goodwill associated with a dental practice constitutes irreparable harm: Towell at paras 26-27.

[72] The respondent argues that 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: RJR, at p. 315. He further argues that the plaintiffs must adduce evidence that is not speculative, and that a contractual clause acknowledging irreparable harm is not a substitute for evidence: Berkeley v. Miller, 2018 ONSC 3645 at para 23.

[73] On this interlocutory motion, the potential for more patients “jumping ship” pending the final hearing of this action, and the resultant loss of goodwill which the plaintiffs have purchased, is greater than the 29 patients and four days dealt with by Justice Sugunasiri.

[74] There are cases where the loss of goodwill can be irreparable harm, but it is not a hard and fast rule that goodwill can never be quantified. I refer to the cases cited by Justice Sugunasiri for this proposition. The respondent argues that due to the records dentists must keep it is possible to quantify damages. Moreover, there is evidence that the plaintiffs rely upon about the appraised value of the practice, showing that goodwill can be quantified.

[75] I accept that it may be possible to assess damages, although I am equally confident that any such assessment will be near impossible to quantify with accuracy.

[76] The challenge I find with the respondent’s position is that in this case, there is a strong prima facie case that Ira has promised not to do one thing, yet he has gone ahead and done it. A court, exercising its equitable jurisdiction, is obliged to respond to those facts. It is for this reason that in cases dealing with enforcement of restrictive covenants, courts have placed less weight on irreparable harm and the balance of convenience test. I quote the following passage from Towell at paras 28-29:

[28] In the case of Button v. Jones, [2001] O.J. No. 1976 (Ont. Sup. Ct.), Hambly J. stated that where the plaintiff seeks a prohibitory injunction to enforce a negative covenant it need not prove that it will suffer irreparable harm if the injunction is not granted, or that the balance of convenience favours granting an injunction. He quotes a passage from Hardee Farms International Ltd. v. Cam & Crank Grinding Ltd. (1973), 1973 CanLII 688 (ON SC), 33 D.L.R. (3d) 266, [1973] 2 O.R. 170 (H.C.J.) also cited in Canadian Medical Laboratories Ltd. v. Windsor Drug Store Inc. (1993), 1992 CanLII 8630 (ON SC), 99 D.L.R. (4th) 559 (Ont. Gen. Div.):

The best analysis with which I am acquainted of the law applicable to prohibitory injunctions, as distinguished from mandatory injunctions, is contained in the judgment of Megarry, J. in Hampstead & Suburban Properties Ltd. v. Diomedous [1969] 1 Chancery 248. The learned Judge [at p. 257] examined the classic statement of Lord Cairns, L.C. in Doherty v. Allman (1878), 3 App. Cas. 709 at p. 720:

If the parties, for valuable consideration, with their eyes open, contract that a particular thing shall not be done, all that a Court of Equity has to do is to say, by way of injunction, that which the parties have already said by way of covenant, that the thing shall not be done; and in such case the injunction do nothing more than give the sanction of the process of the Court to that which already is a contract between the parties. It is not then a question of the balance of convenience or inconvenience, or of the amount of damage or of injury – it is the specific performance, by the Court, of that negative bargain which the parties have made, with their eyes open, between themselves.

[29] The court went on to state that where there is a plain and uncontested breach of a clear covenant not to do a particular thing and the covenantor promptly begins to do what he has promised not to do, then, absent of special circumstances, it seems to me that the sooner he is compelled to keep his promise the better.

[77] Justice Myers in Canadian Hedge Watch Inc. v. Street, 2015 ONSC 454 (“Canadian Hedge Watch”) reached a similar conclusion about the role of a court of equity in enforcing a restrictive covenant where reputation and goodwill were at stake. In that case, as the respondent points out, the defendants were impecunious which may have been a factor in Justice Myers’ assessment of irreparable harm. However, paras 46-47 of his decision make clear that principles of equity were equally compelling:

…Appellate courts have made it clear that, at trial, judges are to value damages as best they can. The valuation may not be scientific or precise, but a fair and just assessment of money damages is likely possible for almost any cause of action. Why then do some cases say that there should be an interlocutory injunction because loss of goodwill is irreparable harm, but other cases say that damage to goodwill is readily calculable? Why do some cases say that loss of market share is irreparable harm and others say that loss of profit consequent upon a loss of market share is readily calculable? The answer, it seems to me, is in the equitable nature of the relief being sought. There are three factors in the RJR and American Cyanamid tests for interlocutory injunctions not just one. The court looks at the strength of the case, the risk of irreparable harm, and the balance of convenience to determine if it is just and equitable to confine the plaintiff to a remedy in damages in the circumstances of each case. In most cases, it may well be adequate for the plaintiff to be compensated in damages for monetary loss especially in a business context. But each case is decided on its own facts and circumstances.

In this case, to confine the plaintiff to a remedy in damages would be most unjust and inadequate. The defendants cannot pay. The calculation is ephemeral and uncertain being bound up in the value of reputation and goodwill that is at the very core of why conferences exist as a marketing tool. The potential spillover effect from the loss of clients and sponsors from the premier NID Conference into other aspects of the plaintiff’s business will be very difficult and expensive to prove. Moreover, allowing the defendants to succeed in their unlawful design is contrary to any conception of fairness. It is not clear that the NID Conference can recover from the harm inflicted upon it already. However, saying to the plaintiff “Too bad; so sad; see you at trial” is unacceptable. Doing so would vindicate the defendants’ surreptitious breaches of duty and intentional torts.

[78] In this case, there was evidence of 28 patients having “jumped ship” in December of 2021, and there was further evidence of 40 additional patients of RHD having booked appointments with Ira in January of 2022 at YVD. Therefore, the evidence of loss was not speculative, but real. It would suggest this is just the beginning of a loss of goodwill and market share, a risk which was carefully considered when the parties negotiated, and for which Ira gave an unambiguous promise to protect against.

[79] Other losses that would be difficult or near impossible to quantify are referrals from patients who were clients of RHD, but who moved to YVD.

[80] In the circumstances of this case, I believe it would be fundamentally unjust to confine the plaintiffs to a remedy in damages. This is an appropriate case, in my view, to compel Ira to do what he promised to do.

Balance of Convenience

[81] In my view, the balance of convenience favours granting the injunction.

[82] Ira argues the balance of convenience favours him, since granting this injunction would likely mean the end of his career. I find this proposition difficult to accept, since the only restriction is that he not practice within a 5 km radius of RHD. He also cites the impact this would have on his patients, but again, if Ira chooses to work at a dental centre outside the 5 km radius, his patients would not be denied services. Dentists, like other professionals, often move their practices, and sometimes, their patients or clients choose to move with them; sometimes they do not.

[83] Considering the plaintiffs’ interests, Ira only recently left RHD, and there are only a handful of patients who have since left RHD to schedule appointments to see him at YVD. If this injunction were not granted, there is increased potential that the purchased goodwill would bleed out of RHD with even more patients “jumping ship” by the time this case comes to trial.

[84] I am also mindful of the cost to the parties if this injunction is not granted, as they will undoubtedly spend countless hours in legal, accounting and administrative fees to quantify the loss, to what end and at what cost? Given Ira’s clear promise, there is a manifest unfairness in compelling the plaintiffs to undergo these legal and administrative costs.

[85] With continued litigation, comes related burdens on the administration of justice as this case slowly makes its way to trial. At which point, the purchased goodwill in the practice may well have significantly diminished, and a trial judge will be left with the unenviable position of seeking to calculate lost profits, loss of market share and competitive advantage, to come up with their best estimate of damages.

[86] For these reasons, I find the balance of convenience favours granting this injunction.

[87] The plaintiffs also seek an order with respect to the other defendants, notably, Jane Rubin who was once employed at RHD and now works at YVD, and other defendants who are dentists at YVD. Those other defendants were not represented and did not appear at the hearing before me, but they had opportunity to do so. As they had notice of this hearing, and to ensure there is consistent application of the injunction, in my view, it is appropriate to issue an order compelling the remaining defendants to not assist Ira in the practice of dentistry within a 5 km radius of RHD.

[88] Accordingly, I grant an order prohibiting Ira from carrying on or engaging in the practice of dentistry within a 5-kilometer radius of RHD until October 27, 2023, and similarly prohibit the defendants from assisting or associating with Ira for the purpose of practicing dentistry within a 5-kilometer radius of RHD.

Issue 3: Should an injunction issue prohibiting the defendants from soliciting any patients from RHD until October 27, 2023?

[89] For the reasons given with respect to the enforcement of the non-competition clause and further reasons that I will explain, I am satisfied that Ira ought to be compelled to honour his covenant not to solicit patients from RHD.

[90] The non-solicitation clause in Ira’s Associate Agreement reads:

Non-Solicitation of Patients. The Associate shall not during the Term of this Agreement and for two (2) years thereafter, either directly or indirectly, solicit any patients of the Practice for the purposes of providing dental services to such patients or in any way encourage such patients of the Principal to seek dental treatment at any other dental practice. For the purpose of this paragraph, “patients” include any individuals who received dental treatment at the Premises within a three (3) year period of the termination date of this Agreement. In the event of a breach of this paragraph by the Associate, the Associate agrees to pay to the Principal as liquidated damages an amount equal to sixty percent (60%) of the average annual gross revenues directly or indirectly billed to such patients within a three (3) year period of the termination date of this Agreement.

[91] The relevant sections of the College’s Practice Advisory on the Release and Transfer of Patient Records, dated August 2007 states (with relevant sections italicized):

Issues Related to Associates or Partners

A dentist's responsibilities and obligations are no different in circumstances where the dentist who a patient chooses is a former associate, partner or shareholder in a common health profession corporation. When there is a termination of the arrangement under which two or more dentists practise together, each dentist is responsible for ensuring that disputes between them do not in any way impact the ongoing care of patients.

In this regard, the dentist who has possession of the original patient records should act in accordance with this Practice Advisory. As emotionally difficult as it may be, dentists must ensure that they co-operate, to the extent necessary, so that patient care is not compromised or delayed. Patients should never become a bargaining pawn in disputes which may develop between practitioners.

If the owners of practices wish to attempt to protect their goodwill, this should be done by entering into appropriate contractual arrangements. Prudent practitioners should ensure that the agreement is in writing, and deals specifically with the rights of each party upon termination of the arrangement, including payment for duplication of dental records and radiographs.

The contract should not, however, provide any terms which would in any way prejudice the future treatment of patients, restrict patients’ right to choose the dentist of their choice, or limit the access of the patient to their dental records.

Disputes between practitioners or contractual arrangements should not prejudice the future treatment of patients, restrict patients’ rights to choose the dentist of their choice, or limit the access of patients to their dental charts or records.

[92] Have the plaintiffs established there is a serious triable issue?

[93] Ira states that he did not invite, request or urge patients to leave RHD or to attend his new practice site. In accordance with his duty to the College and to patients, Ira simply informed them of his impending departure and of their dental care choices, including to remain at RHD. If a patient told Ira that they wanted to stay under his care, he would give his personal email or his cell phone number (which was also on RHD stationery). Ira told patients that they could contact him after his last day at RHD, or that he could include them on a list to contact when he began at the new clinic. Ira did not tell patients to what clinic he was going. He told patients that he would be in the Yorkville area. He never gave out YVD’s address or phone number as he did not want any conversation to be misinterpreted as solicitation.

[94] He further states that patients regularly asked to see Ira privately after they learned that he was leaving. He says there was nothing improper about this since patients are entitled to have privacy when discussing their dental care choices.

[95] The plaintiffs say that Ira did not disclose to them his plans to begin working at YVD. They say they learned from a staff member that Ira had mentioned to a patient that he would be practicing in Yorkville above a certain store. After some investigation, they determined that the likely practice was YVD. One of the plaintiffs’ staff called YVD on October 18, 2021, to learn that Ira would begin practicing at YVD in mid-November 2021. Then, on October 28, 2021, Ira sent an email to the plaintiffs demanding that “his” patients be provided with “their” dentist’s personal contact information. The plaintiffs view is that they only were required to pass on his business contact information pursuant to College guidelines, and therefore denied the request. Ira then subsequently admitted that he had advised patients he treated that they had the option to continue under his care at YVD. Ira never advised the plaintiffs of where he would be practicing after his departure.

[96] In my view, the evidence shows there is a serious triable issue. Ira states that he did not invite patients to follow him to YVD; he simply informed them he was going to a dental clinic in Yorkville and that they could contact him. Ira’s position seems like splitting hairs. I find it difficult to see how telling patients that you are moving to a new practice, and then giving your personal contact information, could not be construed as an invitation. While I am not deciding this issue, I am satisfied it is a serious triable issue. The plaintiffs have pointed to authority which holds that “solicitation” necessarily implies a request or invitation: Committee for the Commonwealth of Canada v. Canada (1991), [1991] 1 SCR 139.

[97] That Ira had conversations with patients with respect to his future practice plans, that he had these conversations behind closed doors without the plaintiffs’ knowledge, and that Ira gave an express non-solicitation covenant, casts suspicion as to what was communicated between Ira and those patients. If Ira was truly concerned about his conversations not being misinterpreted as solicitation, he ought to have been transparent with the plaintiffs on what he was communicating before any such communication.

[98] Ira submitted several affidavits of patients who he treated at RHD and who Ira told he was moving to a practice in Yorkville. These affidavits, I understand, were adduced to persuade the court that what Ira said to these patients did not constitute solicitation. They essentially say what Ira said with respect to what he told patients. These were boiler plate affidavits, with handwritten edits to identify the affiant and any particular information with respect to the affiant but were otherwise identical. I do not give them any weight for this reason, and because a physician holds a position of trust over a patient. Given this position of trust, I must question the patients’ motive in swearing these affidavits. Moreover, I question whether these affidavits were proper, since the College’s practice advisory on which Ira relies states that “patients should never become a bargaining pawn in disputes which may develop between practitioners.” Using patients in this litigation between disputing dentists, in my view, ought to be discouraged for this reason.

[99] Is there irreparable harm? For the reasons given in the previous section, I am satisfied that the nature of harm in this case – namely the loss of goodwill – is irreparable if Ira is not held to the promise he gave not to solicit patients from RHD. While the non-solicitation clause contains a formula for quantifying damages, the facts of this case suggest that the nature of the harm is one that would be difficult to quantify accurately.

[100] Where does the balance of convenience lie? Again, for the same reasons given in the previous section, I believe the balance of convenience favours granting the injunction with respect to the non-solicitation clause.

[101] I therefore grant the injunction prohibiting Ira from soliciting any patients of RHD to receive dental treatment other than at RHD until October 27, 2023.

[102] The plaintiffs seek this same order with respect to the other defendants. I would normally be reluctant to make such an order because those defendants did not make a covenant not to solicit patients from RHD. However, the concern is that Ira may have passed on confidential information to them, giving them the ability to solicit patients away from RHD and to YVD by using that confidential information. In my view, RHD should not suffer harm as a result of Ira’s breaches of his covenant, nor should the defendant dentists at YVD profit from Ira’s breaches. The other defendants did not appear before me to oppose this relief. For these reasons, I grant the injunction prohibiting the other defendants from soliciting any patients of RHD to receive dental treatment other than at RHD until October 27, 2023.

What about the patients?

[103] This leaves outstanding how to address the question of patient care for those patients at RHD who Ira treated, but who he no longer treats at RHD (or YVD), so that they continue to have access to dental care consistent with the College’s practice advisory guidelines. Those guidelines require:

a. Dentists departing a practice to cooperate with those remaining in a practice, to the extent necessary, to ensure patient care is not compromised or delayed.

b. Disputes should not in any way impact ongoing care of patients, restrict patients’ rights to choose the dentist of their choice, or limit the access of patients to their dental charts or records.

[104] In my view, what ought to have happened in this case, consistent with the College’s Practice Advisory, is that Ira and the plaintiffs ought to have agreed to a written communication that would be sent to patients that Ira treated before or at the time of his departure. Absent agreement, it could have been mediated or arbitrated. That communication could have been carefully drafted to adhere to Ira’s obligation not to solicit, and to adhere to the College’s Practice Advisory to inform patients when a treating dentist leaves a practice. That communication could have come been sent by RHD.

[105] Ira has not brought a counter motion seeking this sort of relief, and there was no party before me representing the patients Ira treated. In my view, whether Ira resumes a dental practice beyond a 5 km radius of RHD or not, it seems to me that the parties should cooperate on drafting the communication I proposed, perhaps with assistance or practice advice from the College, and if there remains a dispute as to the wording of the communication, it should be dealt with by way of mediation or arbitration as the parties had agreed. Although I make no order in this regard.

Issue 4: Should the defendants be required, within 24 hours, to return all patient information of any patients of RHD within their possession to the plaintiffs?

[106] There is video evidence of Ira taking patient dental moulds with him on his last day working at RHD. The fact that he took these dental moulds is not in dispute. Ira admits that he took two to three dozen patient moulds. The plaintiffs had not received any requests from patients to transfer any part of their dental records, including moulds, to Ira.

[107] Ira says he did this out of concern for the continuing treatment of the patients who had already confirmed that they wanted Ira to continue their care. Ira said that this constituted implied consent of the patients.

[108] It is clear to me that this is a breach of the Associate Agreement (Art. 5.5), whereby Ira acknowledged and agreed that “all information concerning or relating to the Practice or patients of the Practice, including, without limitation, all charts, radiographs, patient lists, files and dental and non-dental records,… (a) shall remain the exclusive property of [RHD], and (b) shall not be removed from the Premises without the prior written consent of [RHD].”

[109] It was also a breach of the confidential information covenant in the Associate Agreement which provided that Ira “agrees not to, either during the Term of this Agreement or any time thereafter, use such Confidential Information, directly or indirectly, for its own account or for the account of any other person or entity, or disclose…such Confidential Information to any other person or entity.” Confidential information is defined in the Associate Agreement to include patient files, dental and non-dental records.

[110] Even if Ira had the patient’s implied consent, I am not satisfied this would have been sufficient. At minimum, a proper written direction from the patient should have been obtained before Ira took it upon himself to remove these dental moulds. This would have been consistent with the College’s Practice Advisory, which requires record retention by the dentist owner of the practice, and the ability to send copies of a patient’s records to a new dentist upon written direction signed by a patient. The relevant parts of the Practice Advisory read:

Retention of Original Records

The record retention requirements of the College mandate that original patient records, including radiographs and diagnostic study models, be retained by the dentist owner of the practice or, in the case of a partnership or health profession corporation, the principal dentist in the office where the treatment originated. Information about this is available in the College’s Guidelines on Dental Recordkeeping…

Introduction

When a patient ceases to be a patient of a particular dentist, copies of his or her dental records may be given to the patient or transferred to another practitioner upon receipt of a written direction signed by the patient, or his or her representative. In the case of a child, in most instances, a direction signed by the child's parent or legal guardian will be sufficient…

[111] For these reasons, I order that the defendants shall, within 24 hours, return all patient information of any patients of RHD within their possession to the plaintiffs.

V. Conclusion

[112] For the reasons given, I make the following orders:

a. Ira is prohibited from carrying on or engaging in the practice of dentistry within a 5-kilometer radius of the plaintiffs’ business, namely, Regal Heights Dental Centre at 930 St. Clair Avenue West, until October 27, 2023;

b. The defendants are prohibited from assisting or associating with Ira for the purpose of practicing dentistry within a 5-kilometer radius of RHD;

c. The defendants are prohibited from soliciting any patients of RHD to receive dental treatment other than at RHD until October 27, 2023

d. The defendants shall, within 24 hours, return all patient information of any patients of RHD within their possession to the plaintiffs.

VI. Costs

[113] Parties are encouraged to agree on an appropriate cost award. If no agreement is reached, and pursuant to rule 57.01(6), parties are directed to prepare a costs outline with an attached Bill of Costs, which shall not exceed three pages in length. The plaintiffs shall have 14 days to deliver its submissions, and Ira shall have 14 days thereafter to deliver his submissions. Copies of submissions shall be sent to my assistant and uploaded to CaseLines.

Justice Mohan D. Sharma

Date: January 13, 2022

[^1]: Section 5(1) and 5(2) of the ESA states:

5(1) Subject to subsection (2), no employer or agent of an employer and no employee or agent of an employee shall contract out of or waive an employment standard and any such contracting out or waiver is void.

5(2) If one or more provisions in an employment contract or in another Act that directly relate to the same subject matter as an employment standard provide a greater benefit to an employee than the employment standard, the provision or provisions in the contract or Act apply and the employment standard does not apply.