Court File and Parties
COURT FILE NO.: CV-23-00694442-000
DATE: 20230725
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: NATIVELANDS SPECIFIC CLAIMS GROUP LTD. and ABORIGINAL INSURANCE SERVICES INC., Plaintiffs
– and –
JUSTICE RISK SOLUTIONS INC., CAPITAL STREET CONSULTING, 13777863 CANADA LTD. o/a WILLOW INDIGENOUS COMMUNITY SERVICES LTD., SCOTT SMITH, NICOLE CHUBATY, SPARROWSET INC., 24SLASH7 INC., CYNTHIA MARSDEN-MCDONALD, DYLAN DESJARLAIS, DAVID OAKE, DARREL OLSON and ANDREA FAVELL, Defendants
BEFORE: E.M. Morgan J.
COUNSEL: Stephen Gleave and Heather Treacy, for the Plaintiffs
Matti Lemmens and Christine Muir, for the Defendants, Justice Risk Solutions Inc., Capital Street Consulting Sparrowset Inc., 24slash7 Inc., Dylan DesJarlais, Cynthia Marsden-McDonald, Nicole Chubaty and Scott Smith
Robert Stellick, for the Defendants, 13777863 Canada Ltd. O/A Willow Indigenous Community Services Ltd. and Darrel Olson
Sarah O’Connor, for the Defendant, David Oake
Samantha Lucifora, for the Defendant, Andrea Favell
HEARD: May 9, 2023 and June 27, 2023
INJUNCTION MOTION – AMENDED REASONS FOR DECISION
[1] The Plaintiffs bring a motion seeking an interlocutory and permanent injunction prohibiting the Defendants from competing against the Plaintiffs’ business, soliciting or servicing the Plaintiffs’ clients and prospective clients, or hiring away the Plaintiffs’ employees. They also seek to bar the Defendants from using, reproducing, or otherwise disseminating or disclosing confidential documents and information belonging to the Plaintiffs.
[2] I will note at the outset that the Plaintiffs’ injunction was initially brought against all of the Defendants. However, by the time the matter was argued on its merits during the second of the two appearances, the Plaintiffs stopped pursuing the injunction as against the Defendants, Andrea Favell and David Oake; in addition, the action has been discontinued as against the Defendants, 13777863 Canada Ltd. O/A Willow Indigenous Community Services Ltd. and Darrel Olson. Accordingly, the “Defendants” referenced in the balance of these reasons are all of the Defendants with the exception of those four.
[3] The Plaintiffs own and operate a specialized First Nations Specific Claims insurance business. That firm is focused on working in a consultant capacity with First Nations clients with claims against the federal Crown to be adjudicated by the Specific Claims tribunal established especially for this task. The Specific Claims, as they are called, arise out of the federal government’s outstanding obligations under historic treaties with First Nations or under the Indian Act, R.S.C. 1985, c.I-5.
[4] The Defendants, who are former employees or contractors for the Plaintiffs, likewise own and operate an insurance brokerage focused on First Nations Specific Claims matters. They are registered in provinces across the country, and their evidence is that they place insurance for First Nations communities looking to fund claims within the jurisdiction of the Specific Claims tribunal. They have considerable experience with, and thus knowledge of, the Specific Claims process, and are thus helpful to their First Nations clients in placing that kind of insurance; that said, they claim to provide no professional services to their clients beyond that of insurance brokers.
[5] The Plaintiffs are also registered insurance brokers. Their deponent, Randy Sherwin, has stated under cross-examination that they are registered as brokers across the country, although there is some controversy with respect to their registration. The Defendants state that a search of insurance brokerage registries reveals that the Plaintiffs do not appear to be registered as brokers in Ontario or Manitoba – the two most important jurisdictions in terms of the First Nations clients mentioned in the motion materials.
[6] In any case, there is considerable difference in the way each of the sides describes the services provided by their respective insurance brokerage business. Defendants’ counsel uses the phrase “two ships passing in the night” to characterize the competing descriptions. While the Defendants insist that their business goes no further than the typical insurance brokerage, albeit in a unique insurance and claims context, the Plaintiffs describe their business as going far beyond selling insurance. As the Plaintiffs and their counsel describe it, their clients are First Nations groups for whom the Plaintiffs not only place insurance, but with whom they are deeply involved in working up the claims.
[7] The Specific Claims covered by this insurance funding include treaty-based land claims, flooding damage, and agriculture-related claims. Plaintiffs submit that their business is founded on, and comprised of, a long history of knowledge of the Specific Claims process and the collection of the kind of evidence required for such claims. They state that they have invested substantial time and financial resources in building alliances with Band Councils and First Nations. They also indicate that they have invested great energy in nurturing relationships with service providers such as lawyers, researchers, banks, insurance companies, appraisers and valuators, and underwriters, all of whom play an integral role in the Specific Claims process.
[8] It is evident from the context that the Specific Claims brought by First Nations, and the insurance needs that accompany these claims, are rather unique. The Plaintiffs state that this, in turn, makes their business rather unique. Plaintiffs’ counsel submits that this business demands a depth of understanding and familiarity with the particular challenges faced by the First Nations groups they serve.
[9] The Plaintiffs also submit that they have developed specific documentary materials necessary to the making of Specific Claims. These materials are described by Plaintiffs’ counsel in as follows:
…the Plaintiffs have developed numerous documents and programs to support the business, including the loan and insurance and trust process (to set up a trust fund for its clients), joint directions to Canada and Justice, security and trust agreements, historical retrieval agreements for Canada, Band Council Resolution (“BCR”) templates, proprietary research memos, insurance application templates, presentations, budgets, work plans, Specific Claims assessments, Specific Claims materials, and other templates, including those products to address applicable compliance and regulatory issues (the “Nativelands Materials”).
[10] In short, the Plaintiffs’ business seems to have very little in common with what one thinks of as the typical insurance brokerage. It likewise has very little in common with the description of the business provided by the Defendants and their counsel. The Defendants portray themselves as carrying on a brokerage business rather than a consulting business. In making her submissions at the hearing, Defendants’ counsel presented the business in narrow terms. Her description of the Defendants’ business was such that it differs little from the type of brokerage one might engage when looking for automobile, household, or commercial insurance, albeit in a specialized insurance context. She also pointed out that the regulatory and licensing environment in which the Defendants work is the same as that which applies to all insurance brokers and their firms.
[11] Given the nature of the Specific Claims context, it is difficult to comprehend the Defendants’ description of their business as being merely that of an ordinary insurance brokerage. As Plaintiffs’ counsel explains it, the insurer for all Specific Claims is the Allied World Specialty Insurance Co. (“AWAC”). The Plaintiffs (and, presumably, the Defendants, since the insurance policies are the same for both sides), render their invoices directly to a trust set up by AWAC with the insurance funds.
[12] Accordingly, an insurance broker in this field does not shop the clients’ business to competing insurance companies looking for the smallest deductible, least expensive premiums, broadest coverage, etc. The evidence is that there is no competitive market among Specific Claims insurers that the brokers must navigate for the clients. Rather, the service provided by the insurance broker is more consultative in nature, and is far more engaged with the actual claims than with finding the insurer and placing the insurance.
[13] As indicated at the outset, the individual Defendants still being pursued by the Plaintiffs are former employees or independent contractors who worked for the Plaintiffs. The corporate Defendants are their companies. The parties now compete in the very specialized field of Specific Claims insurance. There is evidence that the Defendants now serve First Nations clients that used to be clients of the Plaintiffs, and that they serve their clients in roughly the same way as the Plaintiffs do. And yet with all of that, the Plaintiffs’ claim that the Defendants are acting wrongfully is not a strong one.
[14] In the first place, none of the Defendants have a non-competition or non-solicitation agreement with the Plaintiffs. In the absence of such agreements, employees are not bound by non-competition or non-solicitation obligations: King v Merrill Lynch Canada Inc, 2005 CanLII 43679 (SCJ); South Side Manufacturing Ltd v SS Decking Ltd., 2022 ABCA 103. It is well established that without any agreements covering these issues, the law does not prohibit former employees, to say nothing of independent contractors, from competing with their former employer: TM Minard Trucking Ltd v Richard, 2005 SKQB 113, at para. 28.
[15] An illustration of the problems encountered by the Plaintiffs’ motion is provided by the Saskatchewan Court of King’s Bench ruling in Elite Property Management Ltd v. Cain, 2020 SKQB 26. There, the court found that the balance of convenience favoured the defendants because there was no non-competition agreement in place to restrict the defendants from setting up their firm and actively competing with the plaintiff. The court also held that while it was reasonable to expect that the defendants would not use confidential information, the plaintiff had provided no cogent evidence that confidential information was in fact being used.
[16] The case at bar is similar in that none of the Defendants were subject to a non-competition or non-solicitation agreement. In fact, with the exception of the Defendant, Nicole Chubaty, none of the Defendants were employees of the Plaintiffs or the Plaintiffs’ related companies. They were independent contractors, although in the case of Mr. Smith, he was, at least at one stage, a key person in the Plaintiffs’ operations.
[17] As an independent contractor with the Plaintiffs, Mr. Smith played a senior management role for a number of years, and so was in a fiduciary position although not an employee. It is noteworthy that Mr. Smith and the Defendant, Cynthia Marsden-McDonald, were insurance brokers working with First Nations clients before they were ever retained as a consultants by the Plaintiffs. Indeed, that is why they were retained by the Plaintiffs in the first place. It does not appear to be the case that they acquired their skills in this area from the Plaintiffs; rather, the Plaintiffs retained them for the skills that they brought with them.
[18] In any case, it is clear from the evidence that the Plaintiffs could not have had any expectation of non-competition from Mr. Smith. An agreement signed between Mr. Smith and the Plaintiff, Aboriginal Insurance Services Inc. on October 20, 2021, contains a clause expressly permitting him to carry on with his own First Nations-related insurance business: “The portfolio of business written by the Company [Plaintiffs] through the Broker [Mr. Smith], whether directly billed to the Company or not, shall at all times remain the sole property of the Broker.” The fact that Mr. Smith continues to carry on business and to build a portfolio of First Nations clients now that he no longer is retained by the Plaintiffs does not give rise to any viable claim.
[19] Furthermore, the evidence does not point to any overall plan by the Defendants to form a startup business to the Plaintiffs’ detriment. They each stopped doing any work for the Plaintiffs at different times. Ms. McDonald and Mr. Desjarlais stopped working with the Plaintiffs in October 2021, being a year and a half before this motion was filed. Mr. Smith ceased representing the Plaintiffs in the summer of 2022, and Ms. Chubaty was terminated in August 2022. The Plaintiffs only issued their claim in February 2023.
[20] The staggered departure dates of the Defendants makes one skeptical that there was any collusion or coherent plan to appropriate business from the Plaintiffs. And he Plaintiffs’ delay in bringing a claim runs contrary to their contention that an urgent injunction is required. In any case, a non-competition clause, even if there had been one with any of the individual Defendants, would have by now expired.
[21] Counsel for the Defendants points out that the Plaintiffs’ claim was filed very shortly after Ms. Chubaty and several other Defendants commenced litigation for wrongful dismissal as against the Plaintiffs. Defendants’ counsel submit that this timing raises the suspicion that the entire claim, with the surprisingly late request for an injunction, is an exercised in retaliation rather than a genuine attempt to remedy any wrongdoing.
[22] Ms. Chubaty, the one actual employee among the Defendants, had no written contract with the Plaintiffs. She is therefore under no obligation not to compete with the Plaintiffs once leaving their employ. Furthermore, the record establishes that at no time prior to the litigation – which, as indicated, has come rather late in the day for enforcing any alleged duties of non-competition – did any representative of the Plaintiffs raise a non-competition or non-solicitation objection with her any of the Defendants.
[23] Counsel for the Plaintiffs points to certain producer agreements sent to Ms. McDonald and Mr. Desjarlais on October 15, 2021 which contained a non-time limited non-competition clause. The enforceability of that clause is in serious doubt. For one thing, the relationship between the Plaintiffs and Ms. McDonald and Mr. Desjarlais had come to an end already. Given the nature of the Specific Claims insurance context in which the parties worked, the non-competition clause was likely ambiguous and overly broad: M & P Drug Mart Inc. v. Norton, 2022 ONCA 398. Moreover, there was no consideration for these purported agreements, and the unlimited duration of the agreements would itself be sufficient to render them null and unenforceable: Martin v. ConCreate USL Limited Partnership, 2013 ONCA 72, at para. 59.
[24] Other than Mr. Smith, who, as indicated, had an agreement with the Plaintiffs permitting him to carry on his independent and competing business, none of the Defendants were ever fiduciary employees or otherwise owed fiduciary duties to the Plaintiffs. They exercised no discretion or authority over the Plaintiffs or their business, and had no signing authority on behalf of the Plaintiffs. While the Defendants concede that as a matter of law independent contractors can be considered fiduciaries in the right circumstances, this would have to be on a fact specific basis and cannot be presumed as a matter of course. There are no circumstances in the record which would justify imposing fiduciary duties on any of the other Defendants.
[25] In fact, even if a person can qualify as a “fiduciary” for certain purposes, the obligations attendant to that label are neither uniform nor indefinite in duration: HUB Financial Inc. v. Molinaro, 2002 CanLII 49621, at para 47 (SCJ). The evidentiary record in this motion simply does not support the Plaintiffs’ theory that the Defendants were fiduciaries of the Plaintiffs, or that any trust-like duties would extend until now, at least a year and some cases several years after their contractual relationship with the Plaintiffs came to an end.
[26] In addition, and perhaps most importantly, the record does not establish that the Defendants have taken steps to interfere with or otherwise end any client accounts held by the Plaintiffs. That includes the four First Nation clients specifically mentioned by the Plaintiffs in their supporting affidavit: Cross Lake, Shamattawa, OPCN, and Thessalon First Nations. There is nothing to suggest that these First Nations communities did not decide independently to engage the Defendants or to terminate their relationship with the Plaintiffs.
[27] The Plaintiffs concede, as they must, that First Nations have autonomy and can retain whatever consultants, insurance brokers, and other professionals they choose, and that they are free to transact with whom they choose. The Plaintiffs can claim no ownership over a client. Furthermore, all four of the First Nations identified by the Plaintiffs as former clients are located in Ontario and Manitoba; the Defendants provide insurance brokerage services in those two provinces, but it is a matter of some dispute as to whether the Plaintiffs are able to do so in those provinces.
[28] Mr. Smith has deposed that one of these clients, Shamattawa First Nation, has turned to him to help them out with problems in an insurance policy that Plaintiff had placed. That is certainly their right as the insured and as a client of either party. In cross-examination, Mr. Smith indicated that he is now in a role that, in effect, is a supporting structure for the insurance claim: “We’re there to help support the insurance policy, the insurer for the next five years or four years.” I see nothing in any documentation or in the parties’ relationship – past or present – that would prevent Mr. Smith or any of the Defendants from taking on this support role following his departure from the Plaintiffs. If Shamattawa First Nation, or any other client, is happy with Mr. Smith’s services they are free to continue to retain him, and if they are unhappy with his services they are free to fire him.
[29] In sum, there is simply no legal or factual basis to support the Plaintiffs’ request for an injunction to prohibit the Defendants from competing and/or soliciting clients. Moreover, the record contains no evidence that the Defendants in fact solicited any customers or business. While some of the Plaintiffs’ former clients may have switched to the Defendants, those clients were free to do so and their move to a new insurance brokerage does not in itself establish any legally cognizable wrongdoing by the Defendants to the Plaintiffs.
[30] The one claim that the Plaintiffs make that does not require a contractual foundation is that of misuse or misappropriation of confidential information. As Plaintiffs’ counsel points out, a former employee or contractor is prohibited from taking confidential information as a matter of equity, whether or not there is a specific contractual provision in force to that effect.
[31] That said, there is very little evidence that the Defendants have actually used any confidential information taken from the Plaintiffs. There is evidence that the Defendants may have in their personal computers some confidential information from the time that they worked with the Plaintiff, but an important aspect of a claim of misuse of confidential information is that it actually has been used.
[32] First, much of the information that the Plaintiffs contend that the Defendants are using is not truly confidential information belonging to the Plaintiffs. Some of the supposed misappropriated information was, for example, a form of retainer agreement that is, of course, a legal document that the Plaintiffs, who are not lawyers, did not create. In any case, the legal documents appears sufficiently generic that they would not be proprietary to the Plaintiffs. Other documentation and information claimed by the Plaintiffs are copies of public statutes and regulations, again mischaracterized by the Plaintiffs as being confidential and proprietary.
[33] Plaintiffs’ counsel points to the Defendants’ possession and presumed use of a “Prospect List” identifying First Nations with potential Specific Claims and detailing the nature of those claims and related insurance needs. This is obviously useful information for anyone in this business to possess, and the Plaintiffs allege that it has been wrongfully appropriated and used by the Defendants.
[34] The list, as it appears in the materials, is entitled the “AWAC” prospect list. It strongly suggests that it was either developed by or based entirely on information provided by AWAC, the insurance company with whom everyone in the Specific Claims field must deal. I am not convinced that it was proprietary to the Plaintiffs; it is more akin to a list of members and their needs that an industry group might compile and that would be of great use to service providers to that industry. While any one service provider might, for business reasons, want it kept away from a competitor, the industry list would not be the property of any one of them.
[35] The Plaintiffs also indicate that the Defendants, and, in particular, Ms. Chubaty, are in possession of their email server and in control of their website domain name, and have demanded that all of this be returned. Ms. Chubaty acknowledges that she had a record keeping function when she was employed by the Plaintiffs, and in that capacity had certain things belonging to the Plaintiffs on her own computer. She deposes that she has no use for, and has not used, the Defendants’ server, website, or domain name. She deposes that she has sent a number of messages to the Plaintiffs indicating that she would like to transfer the domain name back to the Plaintiffs, but that they have failed to respond to her.
[36] The Plaintiffs deny that they have been uncooperative, and insist that they want back what is theirs and that they are entitled to an order prohibiting the Defendants, and/or Ms. Chabaty, from using what belongs to them. On the basis of the evidentiary record, it is difficult to sort out exactly why the server, website, or domain name has remained in Ms. Chubaty’s control. What is apparent, however, is that the Plaintiffs have not shown that the Defendants are using any of this.
[37] The Plaintiffs have a name of their own and have no need, and would gain no discernable advantage, if they were to use the Plaintiffs’ email server, domain name, or website. Control of these things must be returned to the Plaintiffs, but this can and should be done cooperatively and without the need for injunctive relief.
[38] In general, although the Plaintiffs are correct that confidential information may not be appropriated by its former contractors and employees, there is no reliable evidence that the Defendants are actually using the Plaintiffs’ confidential or proprietary information. This is a critical component that is missing from the quest for an injunction. In a similar way, the Plaintiffs demand that the Defendants cease accessing their email server, without producing any evidence that they have actually done so.
[39] What Plaintiff’s counsel sites in putting forward these types of claims is Justice Myers’ short, unpublished decision in Matthews Equipment Ltd. v. Caines, Court File No. CV-22-685409. In that case, the defendant was said to have offended against the “illicit springboard” doctrine. The key to that doctrine is that the former employee commenced the competing business while still working for the plaintiff company, using his ongoing employment as a springboard for the new venture. As Justice Myers put it, “He spent time taking steps to compete while being paid by the plaintiff…”
[40] There is no equivalent evidence here. The Plaintiffs simply assumes that the Defendants took steps to compete with them while still on the Plaintiff’s payroll based on the fact that they were up and running shortly after leaving their work with the Plaintiff. In my view, however, that timing in itself establishes very little. Most lawyers, for example, will be up and running in their new firm shortly after leaving their old one; that fact alone would not automatically indicate that the “springboard” principle is applicable to their departure.
[41] If the Defendants “took” anything from the Plaintiffs, it is not any particular documents or equipment. What the Defendants most strenuously argue is that their former employees and contractors “took” from them the knowledge of how to research and advance the Specific Claims of First Nations clients. As discussed above, it is not clear from the evidence whether this knowledge was developed by the Plaintiffs and taken away by the Defendants, or developed by the Defendants themselves while working for the Plaintiffs. But it is the Defendants’ current use of the very processes and approaches to the work which the Plaintiffs use that is at the heart of he dispute.
[42] I do not consider the appropriation of this type of knowledge to be an instance of wrongdoing. It is akin to a law firm demanding that its former associates not use the knowledge they acquired while working at the firm of how to draft a contract or litigate a claim. For the most part, what is claimed as confidential information by the Plaintiffs is no more proprietary for a consulting firm or insurance brokerage than it would be for a law firm.
[43] The Defendants concede that certain of the Plaintiff’s copyrighted materials are on their personal computers from when they worked for the Plaintiff. They have undertaken not to use this material and will return it to the Plaintiff. The Plaintiffs are not satisfied with this, however, and demand that an independent evaluator be appointed to search the Defendants’ personal and business computers in an effort and to vet all data found there.
[44] In support of this rather aggressive approach, the Plaintiffs have sought to introduce a series of emails and other communications by serving a Request to Admit after the exchange of all evidence in this motion was completed. That is, this material was served on Defendant’s counsel not just after cross-examinations had concluded, but after the initial hearing in this motion was adjourned and while the follow-up hearing was being scheduled.
[45] The documents referenced in the Request to Admit are supposedly indicators of the Defendants conceding that they have possession of the Plaintiffs’ confidential materials. According to Defendants’ counsel, these documents are, in fact, explainable, but the timing of the Plaintiffs’ production of them has prevented the Defendants from responding appropriately.
[46] As indicated, although the motion is presented as urgent, the Plaintiffs waited many months before bringing it and had ample time to compile their motion record. Presenting newly produced documentation in the form of a Request to Admit rather than in a motion record (or, at this stage, a supplementary motion record) does not counter the fact that these are late productions which are delivered after all cross-examinations are completed. I am not inclined to admit this late-served evidence. Further, I do not take any negative inference from the Defendants’ refusal to produce documents at such a late stage in the motion: see Re Red Stone Corp., 2016 ONSC 513.
[47] In any case, there is no smoking gun hidden by the Defendants here. They have admitted, on the record, that some material belonging to the Plaintiffs remains in their possession and that it should and will be returned to the Plaintiffs and deleted from the Defendants’ computers. As discussed further below, they have defused the controversy in this regard by offering to cooperate with the Plaintiffs in accomplishing this task. Having done this, there are no inferences to be drawn about confidential information; what remains is for the parties to implement the Defendants’ proposals as set out below.
[48] In all, the Plaintiffs have failed to establish the first prong of the injunction test – i.e. that there is a strong prima facie case on the merits of the non-competition and non-solicitation claims against the Defendants: MacDonald Inc v. Canada (Attorney General), 1994 CanLII 117 (SCC), [1994] 1 SCR 311, at 314. The courts have previously determined that this is a high bar to meet; indeed, the burden of proof is on the moving party to demonstrate that it is “almost certain to succeed”: Viana Canada Inc v. Sartotex Inc., 2021 ONSC 1288, at para 27. The record in this motion does not rise to that level of proof.
[49] Furthermore, the balance of convenience favours not granting the requested injunction. Defendants’ counsel submits, accurately, that restrictive covenants such as non-compete and non-solicitation clauses are hardships on parties that need to earn a living following termination of an employment or contractual relationship. In the present case, where there are no non-competition or non-solicitation agreements between the parties, the Defendants should not be prohibited from carrying on with their lawful, albeit perhaps competitive business.
[50] The Plaintiffs’ real issue with the Defendants is, as Plaintiffs’ counsel put it at the hearing, that their former “niche place” in the market has been undermined by the entrance of a new competitor. While that may well be the case, the existence of new competition does not itself constitute a violation of the Plaintiff’s legal rights. Both sides have developed specialized skills and knowledge related to First Nations Specific Claims and the insurance needs associated with those claims, and both sides may continue to use that knowledge and skill set in their respective businesses.
[51] As already indicated, the Defendants do acknowledge that any confidential or proprietary information belonging to the Plaintiffs that remains in the Defendants’ computers is to be returned. To this end, Defendants’ counsel has proposed, on the record, a consent Order containing the following operative paragraphs:
THIS COURT ORDERS that the Responding Parties shall, within thirty (30) days of the date of this Order, search their computer, cellular phone, server, account, storage device or other electronic device (the “Electronic Devices”) and physical storage for the documents listed in paragraph 9 of Randy Sherwin’s Further Supplementary Affidavit dated April 14, 2023 (collectively, the “Nativelands Information”), to the extent that the documents are known and have the file name identified in the Affidavit, and the Responding Parties have saved and/or stored in the Nativelands Information in physical copy or on any of the Electronic Devices, including those which are or have been used by any of their employees or agents. This Order is without prejudice to the Responding Parties’ right to contest that the Nativelands Information is proprietary and/or confidential.
THIS COURT ORDERS that the Responding Parties shall, after they have complied with the terms of paragraph 1 of this Order, provide any Nativelands Information in their possession to their counsel, who shall deliver over to DLA Piper (Canada) LLP all Nativelands Information identified.
THIS COURT ORDERS that the Responding Parties shall, after they have complied with the terms of paragraphs 1-2 of this Order, permanently destroy or delete all copies of Nativelands Information which have been saved and/or stored by the Defendants in physical copy or on any of the Electronic Devices.
THIS COURT ORDERS that the Responding Parties are restrained from, whether directly or indirectly, by any means whatsoever, using the Nativelands Information for the purposes of soliciting or servicing the specific claims litigation insurance business of the clients identified in the Motion Records of the Moving Parties, being Thessalon, Cross Lake, OPCN and Shamattawa, pending further Order of this Court.
[52] The Plaintiffs have rejected these terms and, as indicated, have sought an injunction effectively requiring the Defendants to cease and desist from conducting business. In my view, however, the Defendants’ proposed Order is eminently reasonable under the circumstances. It provides the Defendants with all of the confidentiality protection that they would deserve, while not being excessively invasive of the Defendants’ rights and privacy.
Disposition
[53] The Defendants shall have an Order containing the terms quoted in paragraph 51 above, and otherwise dismissing the Plaintiffs’ motion.
[54] The parties may make written submissions on costs. I would ask Defendant’s counsel to email my assistant short submissions within two weeks of today, and for Plaintiffs’ counsel to email my assistant equally short submissions within two weeks thereafter.
Date: July 25, 2023 Morgan J.