SUPERIOR COURT OF JUSTICE – ONTARIO

COMMERCIAL LIST

COURT FILE NO.: CV-22-00685665-00CL

DATE: 20221219

RE: EVS (EDGE VALUE SOLUTIONS) CANADA LTD., Plaintiff

AND:

NESTLE CANADA INC., Defendant

BEFORE: Penny J.

COUNSEL: Monique J. Jilesen, Caroline H. Humphrey and Keely Kinley, counsel for the Plaintiff

Ilan Ishai and Meg Bennett, counsel for the Defendant

HEARD: December 9, 2022

ENDORSEMENT

[1] The plaintiff, EVS, brings a motion for an interlocutory injunction. The relief is characterized in the notice of motion as seeking to prohibit the defendant, which carries on business in Canada as Nespresso, from breaching an agreement, although there is a dispute about whether the relief sought is essentially prohibitory or mandatory in nature.

[2] In order to succeed, EVS must establish three basic issues:

• (a) Is the “merits-based” threshold a serious issue for trial or a strong prima facie case; and

(b) Has the applicable test been met?

• In the absence of an injunction, will EVS suffer irreparable harm, in the sense that money damages following a trial would not be an adequate remedy? and,

• Does the balance of convenience favour granting the injunction; that is, does the harm that will be suffered by EVS if the injunction is not granted outweigh the harm that will be suffered by Nespresso if it is?

Background

[3] Nespresso makes, distributes and sells Nespresso coffee machines, capsules and accessories. Since 2018, EVS has been a sales and service partner with Nespresso in Canada. EVS sells Nespresso’s coffee machines, capsules and accessories to end users. EVS and Nespresso have a lengthy relationship, based on this model, elsewhere in the world going back 20 years or more.

[4] In 2018, the parties signed a Sales and Service Partner Agreement. Among other things, the agreement contemplated that, annually, the parties would meet to review performance and discuss any requested modifications. Given that the expansion of the business relationship into Canada was new, the original agreement was amended twice in 2018 and again in 2019 to reflect experience in the market as the parties’ expansion plans were implemented. An Amended and Restated Sales and Service Agreement was signed in May 2019 incorporating these changes.

[5] The compensation model for EVS’ services in the 2019 Agreement was based on a “volume” model whereby different commissions were payable based on sales of difference products. Within months of the May 2019 amending agreement, however, the parties began discussing further changes to their relationship. This involved, among other things, a new model for determining commissions referred to as the net net sales (NNS) model. Under the NNS model, sales were tracked by total value of sales, not by specific product. This would simplify the process, alter the financial incentives for EVS sales employees (for the benefit of both parties), and increase EVS’ cash flow. A steering committee of senior management from both companies was formed to pursue these initiatives.

[6] At a February 2020 meeting of the steering committee, the parties identified the new terms that would form the basis for further contract amendments and laid out a timeline; this included “final” approval by March 2020, along with signing the new agreement later that month and implementation by April 2020. Three weeks later, on March 10, 2020, the parties held another steering committee meeting to finalize the new agreement. During this meeting, attended by the presidents of both EVS and Nespresso, the following specific terms were agreed upon:

(a) extending the term of the agreement by two years, to December 31, 2027

(b) adoption of the NNS model, effective January 1, 2020;

(c) adoption of the “Get Rolling 12 months” initiative, effective January 1, 2021[^1];

(d) adoption of the updated NNS sales objectives and commission rates; and

(e) amending the termination payment to account for the change to the NNS model.

In addition, the parties would continue to negotiate the terms of EVS’ expansion into the Ontario office sector for implementation January 1, 2021.

[7] The timing of the agreement on these negotiated amendments, it should be noted, occurred the day before the World Health Organization declared the COVID-19 outbreak to be a world-wide pandemic. The reality of the pandemic, and the various provincial government lockdowns which occurred in the ensuing weeks and months, were to have a significant impact on sales of Nespresso products and these parties’ business relationship.

[8] At the next steering committee meeting in April 2020, Nespresso summarized in a PowerPoint presentation, the new contract terms as well as additional measures it proposed to implement due to COVID-19. These measures included:

• the contract extension, the NNS model and the new sales objectives and commission rates, which were all noted to be items that were “validated in previous sessions” (i.e., in March 2020); and

• making the “GET Rolling 12 months” initiative (previously agreed to be effective January 1, 2021) effective retroactively to January 2020, which was noted to be a change “due to COVID”.

[9] The next month, on May 15, 2020, Nespresso sent a letter to EVS outlining relief it was providing to EVS “linked to COVID situation”:

• Cash payments to assist with the employee payroll for April, May, and June;

• a cash payment to assist with an acceleration/recruitment plan; and

• the retroactive January 2020 implementation of the NNS commission model and GET rolling 12 month system (Nespresso’s president confirmed in cross examination that the only COVID-specific measure was adding retroactivity to the GET rolling 12 month system, because the NNS commission model had been agreed to at the March 10, 2020 steering committee meeting).

[10] Although the parties got behind on the original timeline, on June 30, 2020, Mr. Facon, Nespresso’s national sales manager, emailed to Mr. Petro, EVS’ vice president[^2], a copy of the written amendments to the to the 2019 Agreement. The written amendments incorporated everything agreed upon at the March 10, 2020 meeting: the two year term extension to December 31, 2027; the change to the NNS model effective January 1, 2020; the updated NNS sales objectives and commission rates; the GET Rolling 12 month initiative; and the revised termination payment to account for the change to the NNS model.

[11] In his covering note, Mr. Facon said: “Here [is] the latest version of the contract reviewed by Nespresso legal, we are good to go with this version.”[^3] He went on to say that if this version was “OK” with EVS, he would send a DocuSign version for electronic signature. On July 15, 2020, Mr. Petro confirmed that the written agreement was “all good on our end” and requested the DocuSign copy to sign. Mr. Facon replied that he would send one. Although Mr. Petro followed up with Mr. Facon later about the DocuShare copy of the 2020 Agreement, he received no reply. No DocuSign or other version was ever sent for signature. Mr. Facon did not give evidence and has not explained why the DocuSign contract was never sent.

[12] Nespresso then began paying commissions to EVS on the basis of the terms agreed to on March 10 and laid out in the 2020 Agreement, including the NNS commission model and rates and the retroactive payments from January 2020. Nespresso continued to do so until the end of September 2022.

[13] Following June 2020, the parties continued to negotiate the terms of EVS’ expansion into the Ontario office sector and other matters.

[14] The former president of Nespresso, Mr. Valleix left as president on June 20, 2020[^4]. Mr. Troisi took over as the new president of Nespresso in September 2020. In December 2021, Mr. Troisi met with Mr. Petro to discuss Nespresso’s “changing business needs”, indicating that he wished to re-negotiate certain terms of the Sales and Service Agreement. The identified issues for renegotiation did not, however, include the NNS model or the sales objectives and commission rates agreed to by EVS and Nespresso in March, 2020 and as reflected in the June 30, 2020 Agreement. As time went on, however, Nespresso took the position that only the written terms of the 2019 Agreement were of any force or effective. Concerned with this position (even though Nespresso had not yet purported to change or revoke the NNS model), EVS commenced these proceedings in August 2022, seeking, among other things, declaratory relief confirming that the 2020 Agreement was valid and enforceable. It was only on September 26, 2022 that Nespresso sent EVS a letter stating that, effective October 1, 2022, Nespresso was unilaterally reverting back to the terms of the 2019 Agreement and was going to re-implement the volume-based sales objectives and commissions rates set out in the Annexes to the 2019 Agreement. On October 4, 2022, Nespresso paid EVS its advance commission for Q1 2023 in accordance with the volume-based model under the terms of the 2019 Agreement.

[15] This is what prompted the EVS motion for an interlocutory injunction.

Analysis

The “Merits-Based” Test

Which Test?

[16] Traditionally, the distinction in the law of interlocutory injunctions between a prohibitory and a mandatory order determined whether the merits test to be applied was a ‘serious issue for trial’ or a ‘strong prima facie case’. The difference matters because a serious issue to be tried is said to mean an ‘arguable case’ or ‘not frivolous’ whereas a strong prima facie case is said to mean ‘likely to succeed’.

[17] For example, Nespresso argues that the practical effects of the injunction sought in this case would require Nespresso to take positive steps to implement certain terms of an alleged agreement, the existence of which Nespresso disputes. The order sought is, it submits therefore, mandatory such that the higher, strong prima facie test applies. Nespresso relies on a decision of this court in Cana International Distributing Inc. v. Standard Innovation Corporation, 2010 ONSC 6273, which held, at para. 88, that where, in similar circumstances, the very issue under the first requirement is whether a contract existed, the plaintiff must demonstrate a strong prima facie case.

[18] Some more recent case law has taken a less doctrinal approach and suggests that the distinction between prohibitory and mandatory may not involve such concrete silos. In Potash Corp. of Saskatchewan Inc. v. Mosaic Potash Esterhazy Limited Partnership, [2011] S.J. No. 627, 2011 SKCA 120, for example, the plaintiff owned a mine, paid the defendant to extract potash and deliver the processed product. A dispute arose about when the obligations of the defendant would come to an end. This was to be determined based on the amount of product yet to be delivered. The plaintiff commenced an action to answer that question. The defendant indicated that it intended to terminate supply as of July 2011. The trial was set to begin in January 2012. The plaintiff obtained an interlocutory injunction restraining the defendant from terminating the agreement pending the trial.

[19] The order was appealed. The Court of Appeal observed that a great deal of time can be taken up “working through… whether an injunction is, in fact, prohibitory or mandatory in effect”. The Court pointed out that an order that prohibits can have the “…effect of forcing the enjoined party to take considerable positive actions”. It went on to say that “it is more useful for a judge to focus on the practical effects of the injunction than to get bogged down attempting to make formalistic ‘all or nothing’ distinctions between what is prohibitory and what is mandatory…A more effective and more nuanced way to proceed is to consider the likely effect of a proposed mandatory order on a case-by-case basis and in the context of the balance of convenience analysis” (paras. 42-45). The Court concluded (at para. 46):

In other words, taking the position that the serious issue to be tried approach should be used in connection with applications for mandatory-type injunctions does not mean such injunctions will be easier to obtain than they have been historically. It means only that the analysis of the relevant risks and equities should not end, and the matter be resolved against the plaintiff, if the plaintiff can do no more than make out a serious issue to be tried. The potential burdens of the mandatory injunction on the defendant will, and must be, carefully weighed in the course of the balance of convenience analysis.

This general approach was followed by this court in Morguard Corporation v. InnVest Properties Ottawa GP Ltd., 2012 ONSC 80.

[20] Of note is that, in both Potash Corp. and Morguard, there were existing contracts; the dispute involved whether the contract had come to an end. In this case, while Nespresso takes the position that the only binding contract is the 2019 Agreement (and that the 2020 Agreement was never signed and is not, therefore, an enforceable agreement), it is undisputed that the provisions of the 2020 Agreement did, as a matter of fact, form the basis upon which Nespresso compensated EVS for its services from January 2020 to September 2022. The NNS model, therefore, represented the status quo for almost 3 years. Nespresso unilaterally terminated that arrangement effective October 1 of this year and has, since then, compensated EVS on the basis of the volume method under the strict terms of the 2019 Agreement. Thus, while it is strictly true, as Nespresso argues, that the order sought by EVS in this motion would require Nespresso to take positive action to do something that it is not presently doing, it is also true that the requested order would simply restore the basis upon which these parties did business from 2020 to September 2022. Thus, there is a substantive basis upon which the decision in Cana International could validly be distinguished.

[21] Whether the traditional approach or the more nuanced approach articulated by the Saskatchewan Court of Appeal in Potash Corp. is the correct approach in this case, however, need not be resolved because, as I will discuss in the next section of my analysis, I am satisfied on the available record that EVS is likely to succeed in its argument that the 2020 Agreement is a valid and binding contract and thus, that it meets the higher ‘strong prima facie case’ test.

Has the Merits-Based Test Been Met?

[22] Nespresso argues that under the terms of the 2019 Agreement (Articles 8.1(c) and 28), the 2019 Agreement cannot be modified, altered, or changed except by written instrument executed by all parties. Since the 2020 Agreement was never signed, it was not a valid amendment to the 2019 Agreement. Nespresso also argues that there was no agreement because Nespresso HQ was required to approve all contract amendments and never did so.

[23] Further, Nespresso argues that there were many issues being negotiated, only some of which were NNS commissions. This included not only the negotiation of the conditions under which EVS might expand operations into the Ontario office sector but other matters, such as subsequent commission rates. The negotiations were a packaged deal; agreement on some issues was not final and binding until there was agreement on all issues.

[24] Nespresso also argues that adopting the NNS commission model and rates along with the associated sales volumes in 2020 was a gratuitous gesture of goodwill to help EVS through the pandemic. In support of this position, Nespresso argues that EVS gave no consideration for the improved commission terms and condition under the NNS model, which it says was unilaterally implemented by Nespresso during the pandemic. EVS sales staff only did what they would have done anyway under the 2019 volume model.

[25] As a result of all these circumstances, Nespresso says it was entitled to terminate the NNS model, or any other concessions provided in connection with the “draft” 2020 Agreement, at any time.

[26] In spite of Mr. Ishai’s able arguments, I am unable to agree with Nespresso’s position on this issue.

[27] The parties agree that the test of whether there is an intention to contract is an objective one. Parties will be found to have reached a meeting of the minds where it is clear to the objective reasonable bystander, in light of all the material facts, that the parties intended to contract and the essential terms of that contract can be determined with a reasonable degree of certainty.

[28] The parties’ disagreement is about the application of these principles to the facts of this case.

The requirement for “signed and in writing”

[29] An agreement that amendments to a written, signed contract must also be in writing and signed is prima facie enforceable and represents, no doubt, good policy. However, it is well settled that this policy must yield when it is the manifest intention of the parties, viewed objectively, to adopt an agreement regardless of whether it is in writing or signed.

[30] Parties can manifest an intention to be bound to an agreement by their conduct, viewed objectively. The court must examine the words and conduct of the parties and consider evidence of the steps they have taken to perform the contract as required by the terms of the alleged agreement: Geoff R Hall, Canadian Contractual Interpretation Law, 4th ed (LexisNexis, 2021), 7.5. Evidence that the parties have “acted as if the deal were done” is a strong indicator that there was a binding contract: W. Braun Packaging Canada Ltd. v Alexandria Body Sugaring Inc., [1997] OJ No 3517 (aff’d 1999 18696 (ON CA), [1999] 126 OAC 382 (Ont CA)) at para. 21. The law recognizes that formal business agreements are often preceded by agreements on the essential provisions to be included in the final contract. Where parties have agreed to the essential provisions to be incorporated in a formal document with the intention that their agreement is binding, the requirements for contract formation will have been met. In such a case, the fact that a formal written document will be prepared and signed later does not alter the binding nature of the original agreement or signify that the parties only have an ‘agreement to agree’: Ruparell v JH Cochrane Investments Inc. et al, 2020 ONSC 7466 (aff’d 2021 ONCA 880) at paras. 20 and 21. Evidence that parties agreed to set out their contractual arrangements in writing should not be treated as dispositive of the issue of whether the execution of a written contract was a precondition to the creation of legal obligations between them: Canadian Northern Shield Insurance Company v. 2421593 Canada Inc., 2017 ONCA 570 at paras 17 to 20.

[31] Here, Nespresso’s national sales manager and lead negotiator, Mr. Facon, caused the March 10, 2020 points of agreement to be reduced to writing in June 2020. Drafts were exchanged and reviewed by Nespresso’s legal counsel. Ultimately, Mr. Facon presented the final version, indicating Nespresso was “good to go” with it, without further qualification of any kind. Mr. Facon indicated that, once EVS approved the draft, he would send a copy for signature. EVS approved it, also without qualification. Nespresso then paid NNS commissions to EVS in accordance with the terms of the 2020 Agreement, effectively from January 1, 2020 until September 2022. These facts bring this case squarely within the precedents cited above, which establish that once parties have agreed to the essential provisions to be incorporated in a formal document with the intention that their agreement is binding, the requirements for contract formation will have been met. The fact that a formal written document will be prepared and signed later does not alter the binding nature of the original agreement.

The requirement for head office approval

[32] Nespresso takes the position that Mr. Facon did not have authority to conclude the 2020 Agreement. Only someone from Nestle head office had that authority. Mr. Valleix, as noted, was gone from Nespresso by June 30, 2020. He has testified that, now in 2022 with the benefit of hindsight knowing a problem has emerged, he would never have agreed to the 2020 Agreement.

[33] The problem with this argument is that there is no evidence that EVS was aware of the so-called ‘head office’ requirement. There is no hint in Mr. Facon’s correspondence that someone else, higher up in Nespresso/Nestlé management, had to approve the 2020 Agreement draft before it could become effective. Mr. Facon had been the lead negotiator. When he said “we are good to go”, he meant not only himself but Melanie Daunais (who was in charge after Mr. Valleix’s departure) and in house counsel at Nespresso. In the context, “we” can only mean Nespresso, EVS’ counterparty to the contract. Mr. Facon had ostensible authority. Both his offer and Mr. Petro’s acceptance were unequivocal. The parties acted in accordance with the 2020 Agreement for over two years. Again, it is no answer to say now, with the benefit of hindsight when a problem has emerged, that Mr. Facon could not authorize the 2020 Agreement.

Whether there was agreement on all material terms

[34] Nespresso argues that throughout the fall of 2020, Nespresso and EVS continued to negotiate and exchanged additional draft amending agreements. The proposed amendments included potential amendments to various terms including the future commission percentages applicable to the NNS compensation model. Nespresso says there could be no agreement on one item without agreement on all items.

[35] It must be remembered that the 2020 Agreement represented an amendment to the 2019 Agreement. The 2019 Agreement continued in force except to the extent it was varied by the 2020 Agreement. Thus, the content of the expression “all material terms” must include not only the amending provisions of the 2020 Agreement but the unamended provisions of the 2019 Agreement.

[36] What is of central importance is that the business relationship between EVS and Nespresso was somewhat symbiotic. Nespresso does not have its own sales force across Canada selling its products; it relies on contractual relationships with others. Likewise, EVS has no material customers or products other than Nespresso. Their agreements contemplated annual discussion of performance and consideration of requested modifications. This is, in fact, exactly what the parties did in each prior year. There were amendments made to the 2018 Agreement in 2018 and in 2019 as a result of ongoing discussions which began almost immediately after the conclusion of the original agreement. This happened again after the execution of the 2019 Agreement. The fact that ongoing issues of concern were discussed following the conclusion of the 2020 Agreement is not unusual and does not mean there was no contract formed in June 2020. The outstanding issue of expansion in Ontario into the office market was explicitly contemplated in the 2020 Agreement and hived off as a separate process.

[37] The Cana International case, cited above in the context of the test for an interlocutory injunction, went to trial. The trial judge found there was no meeting of the minds on the basis that issues continued to be negotiated after the initial agreement was acted upon. The Court of Appeal reversed the trial judge’s decision. In Cana International Distributing Inc. v. Standard Innovation Corporation, 2018 ONCA 145, the Court of Appeal held that continuing negotiations between contracting parties do not necessarily negate or alter the agreement they reached, particularly if they continue to conduct themselves on the basis of their agreement, citing Angela Swan & Jakub Adamski, Canadian Contract Law, 3rd ed. (Markham: LexisNexis Canada, 2012) at p. 254.

[38] The ongoing discussions post-June 2020 considered forward looking potential changes to reflect the parties’ mutual concern that the terms of their agreement should work appropriately for both parties. I cannot conclude those discussions were inconsistent with an agreement having been reached in June 2020, nor were they explicitly characterized in this way at the time.

Were the NNS commission payments from 2020 to 2022 gratuitous?

[39] The last argument advanced by Nespresso on the merits test is that the 2020 Agreement is unenforceable because EVS gave no consideration; EVS was only required to do what it would have had to do anyway.

[40] This argument ignores the fact that the whole point of the NNS model was to change the incentives of the EVS sales force. Adoption of the NNS model was not a gift; it was thought to be of mutual benefit to both parties. This change in incentives meant a change to the way the sales representatives carried on their day to day activities. That change in behaviour constituted consideration for the change to the commission structure.

[41] I conclude that the offer of NNS-based compensation was not gratuitous. EVS gave consideration for the change.

[42] It is for all these reasons that I am satisfied, on this record, that EVS is likely to prevail at trial on the contract formation claim.

Irreparable Harm

[43] It is the nature of the harm, and not its magnitude, that contributes to the harm being irreparable. Irreparable harm is that which cannot be quantified in monetary terms or that which is of such a nature that it cannot adequately be compensated for by damages, even if quantifiable. Examples of irreparable harm include being put out of business and suffering permanent market loss.

[44] EVS asserts that it will suffer irreparable harm if no injunction is granted for two reasons: (a) EVS will go out of business by the end of Q1 2023; and/or (b) EVS’ employees will be terminated and otherwise profoundly affected.

[45] Nespresso pays EVS its estimated commissions in advance for the upcoming quarter based on an estimate of sales. Nespresso admits that this pre-payment is meant to benefit EVS’ cash flow so EVS can plan its business appropriately. The cash flow from the advance commissions is necessary for EVS to keep its business afloat; the higher commissions from the NNS model has helped EVS weather the pandemic which is ongoing.

[46] Effective October 1, 2022, Nespresso reverted to paying EVS the lower commission rates based on the volume-based model. Therefore, by the end of this quarter, it will almost certainly have to reimburse Nespresso for the difference between the NNS-based advance commissions and the volume-based actual commissions.

[47] Based on the 2020 Agreement using the NNS commission model, EVS and Nespresso projected positive cashflow through 2023. Nespresso ‘s payment of advance commission on the volume-based model of $1,694,497 is in contrast to the $2,740,914 payable under the NNS model. Taking the April 2021 P&L prepared by Nespresso and EVS and replacing the expected payment of $2.7 million with the actual payment of $1.6 million has a profound impact on EVS’s cash flow, without even considering the additional negative impact of the lower volume-based advance commission payment expected on January 1, 2023. If volume-based commission payments remain the status quo, EVS will not have sufficient cash flow to keep its business afloat past Q1 2023.

[48] This leaves EVS with the unenviable choice between running out of money or terminating or breaching its contract with employees. Since March 2020, EVS’ business strategy has been oriented to the NNS model. EVS updated its internal commission policies -- all of EVS’ sales employees are currently being paid based on the NNS model.

[49] A return to the volume-based model will have a profoundly negative effect on EVS’ employees (and therefore on EVS itself). The snowball effect will include: (i) having to terminate EVS employees; (ii) for those employees remaining, having to pay them in accordance with the volume-based model, which would involve a breach of contract of employment; (iii) being at risk of significant employee departures (who, in the current labour market, will be difficult if not impossible to replace); (iv) creating a distressed and fearful work environment; and (v) losing employees to other companies. Also, with fewer salespeople on the ground, EVS risks losing valuable clients to other distributors of coffee products. The loss of the business and profound adverse effects on employees are the type of irreparable harm that injunctions are meant to prevent.

[50] Nespresso essentially takes the position that EVS’ financial projections are dated and may not represent the “best” evidence and that the concerns about EVS’ employees are speculative. I do not agree. While the burden is on EVS to show each element of the test, EVS is not required to prove that the risks it identifies will, in fact, come true. The Federal Court has taken a strict view of this requirement as meaning that the irreparable harm will result. Other courts, however, have taken a more flexible approach. It is not necessary to show that the irreparable harm is certain or even highly likely to occur. “Instead, the plaintiff should be required to establish a “meaningful risk of irreparable harm” or a “meaningful doubt as to the adequacy of damages if the injunction is not granted”: Sharpe, Injunctions and Specific Performance and Potash Corp., supra, at paras. 57 to 61.

[51] Here, I am satisfied that the evidence supports a meaningful risk of irreparable harm and raises a meaningful doubt about the adequacy of damages if the injunction is not granted.

Balance of Convenience

[52] The defendant concedes (subject to the final point relating to the undertaking) that, if the plaintiff has met the first two elements of the test, it cannot reasonably take the position that it will suffer greater harm than the plaintiff. The plaintiff risks going out of business or losing its workforce. Any loss to the defendant is clearly compensable by money damages. The balance of convenience favours the plaintiff.

Undertaking as to Damages

[53] Nespresso points out that EVS has not given an undertaking as to damages. EVS says this was an oversight. Its counsel has given the undertaking on EVS’ behalf.

[54] In my view, the undertaken should be given under solemn oath by a duly authorized representative of the plaintiff. My grant of an interlocutory injunction until trial is conditional upon the undertaking being provided in that form within seven days.

Conclusion

[55] In conclusion, subject to fulfilling the proviso in the preceding paragraph, I find that the three-part test for the grant of an interlocutory injunction has been met. The motion is granted.

Costs

[56] The parties agreed that costs of $100,000 (all inclusive) would be awarded to the successful party. It is so ordered.

Penny J.

Date: December 19, 2022

[^1]: Sales to new clients, referred to as “get” sales, were calculated under the 2019 Agreement on the basis of sales that occurred in a 12 month calendar year (“Get 12 Months”). The proposal was to change from a calendar 12 month period to a “rolling 12 months”.

[^2]: Mr. Facon and Mr. Petro were the lead negotiators.

[^3]: Evidence obtained by way of undertaking on cross examination indicated that “we” in “we are good to go” meant Mr. Facon, his supervisor, Ms. Melanie Daunais, and in house counsel, Mr. Sean Brandreth.

[^4]: Mr. Valleix’s evidence was that, when he left, Melanie Daunais was put in charge.