Seal It Up Inc. v Irwin, 2023 ONSC 4107

Court File and Parties

COURT FILE NO.: CV-23-92172 DATE: 2023/05/24 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: SEAL IT UP INC. and 11110098 CANADA INC., Plaintiffs AND: COREY ROBERT IRWIN and ABE CONSTRUCTION GROUP O/B 12784572 CANADA INC., Defendants

BEFORE: Regional Senior Justice Calum MacLeod

COUNSEL: Sean Bawden and Drew McArthur, for the Plaintiffs (Moving Parties) Mathew Kim, for the Defendants (Responding Parties)

HEARD: May 24, 2023

Case Conference Order and Direction

Case Conference Order and Direction

1The plaintiffs wrote to Justice Gomery (LAJ Civil) seeking an urgent motion date as they claim the defendant Irwin who is the former owner of Seal it Up and is subject to a non solicitation agreement is in the process of luring customers from Seal it Up to Mr. Irwin’s new and competing business. Justice Gomery found that the proposed motion met the test for urgency but ordered a case conference to discuss the method of proceeding, establish a timetable and fix a motion date.

2The plaintiff had contemplated bringing the motion without notice but the defendants are now aware of this proceeding, have counsel and have accepted service of the statement of claim. In addition, the defendant has agreed to a portion of the relief sought in the notice of motion relating to the preservation of records.

3The defendant also acknowledges he is subject to a non solicitation agreement. Mr. Bawden anticipates that his client’s affidavit will attest that the defendant has been attending at the premises of clients of Seal it Up, misrepresenting the status of Seal it Up as an ongoing business and advising the clients to move their business (which is the business of installing and repairing industrial doors) to his new business. Mr. Kim readily concedes that such activity would be solicitation and anticipates his client will deny that it has occurred as described. He anticipates his client’s evidence will be that he has not solicited any former clients although some clients may have sought Mr. Irwin out themselves.

4There is no benefit in these circumstances to proceeding ex parte or to proceeding without the full exchange of affidavit material and cross examination. To proceed on anything less than a full record, runs the risk of running up costs on repeated court attendances and a series of temporary or interim interim orders.

5I have encouraged the parties to seek agreement on an appropriate temporary order, to avoid arguing the motion and to expedite the litigation but I have fixed a date for the motion and set a timetable as follows.

6Counsel for the defendants raised the issue of venue and may seek to move the litigation to Toronto. This need not be addressed prior to the motion as the motion will proceed virtually.

Order

7The court therefore orders as follows:

a. The motion for an interim injunction will be returnable on June 15th, 2023 at 10:00 a.m. for 4 hours and unless counsel are otherwise advised will be on my list.

b. The moving parties shall serve the motion record no later than the close of business on May 25th, 2023.

c. The responding parties shall serve responding affidavits no later than the close of business on May 31, 2023.

d. Cross examinations shall take place in the week of June 5th, 2023 and transcripts shall be expedited.

e. All material for use on the motion shall be filed and uploaded to CaseLines no later than 4:30 p.m. on June 12th, 2023.

f. Counsel may adjust the timetable in writing pursuant to Rule 3 but require approval from the court to change the filing deadline or the motion date.

g. All times under the rules or practice directions are amended, abridged or extended as may be necessary to accommodate this timetable.

h. This order is effective as a case management order pursuant to Rule 50.13, Rule 77 and Rule 3 and is effective without further formality.