Stephen F. Gleave

The defendants moved for summary judgment to dismiss claims of breach of contract, interference with contractual relations, breach of fidelity, and fiduciary duty brought by their former employer, the plaintiff.

The plaintiff cross-moved for summary judgment and leave to amend its statement of claim.

The court found no genuine issue requiring a trial, concluding that there was no restrictive covenant, no fiduciary relationship between the former employee and the plaintiff, and no misuse of confidential information (as client names and contact details stored on a personal phone were not deemed confidential).

Furthermore, the court determined that the former employee's communication with clients did not constitute solicitation.

The plaintiff's attempt to amend its claim to include a failure to give reasonable notice was rejected as statute-barred.

The defendants' motion for summary judgment was granted, and the plaintiff's claims were dismissed.

The appellant appealed a summary judgment dismissing its action for breach of non-solicitation and non-interference covenants contained in an Asset Purchase Agreement and Non-Disclosure and Non-Solicitation Agreement.

The motion judge found the non-solicitation clauses unreasonable and unenforceable.

On appeal, the court determined that even if the motion judge erred in finding the covenants unenforceable, the action could not succeed because the motion judge made a factual finding that there was no evidence the respondent solicited clients of the appellant.

The appeal was dismissed and costs were awarded to the respondents.

The applicant brought a motion for an interim payment out of court of funds held to the credit of the action following a shareholder dispute and oppression application.

The court previously ordered funds paid into court as security pending trial.

Relying on a recent Divisional Court decision upholding a similar prior interim payment, the court found the applicant was entitled to the funds under the formula established by the previous order.

The motion was granted and a payment of $392,712.50 was ordered.

The defendant Daniel Sherk sought leave to appeal an order denying various requests for document production.

The court dismissed the motion for leave, finding that the procedural motion did not involve matters of general or public importance beyond the immediate parties, thus failing the second part of the strict two-part test for leave to appeal under Rule 62.02(4)(b).

This is a costs endorsement following Daniel Sherk's successful motion to compel production of backup tapes.

The court found that the plaintiffs failed to comply with disclosure obligations under the Rules of Practice and the Sedona Principles, necessitating Daniel Sherk to incur significant costs for an audit.

The court awarded Daniel Sherk substantial indemnity costs, including indemnification for the $200,000 paid to Deloitte for the audit, totaling $46,854.92 for the motion itself.

This endorsement addresses the plaintiff's request for partial indemnity costs following a successful motion for answers to undertakings and waiver of privilege.

The court found the plaintiff was justified in bringing the motion, and the defendants' resistance unnecessarily complicated the proceedings.

Applying Rule 57.01(1), the court awarded the plaintiff partial indemnity costs and assessed disbursements.

The plaintiff former employee brought a motion to compel the defendant employer to answer questions refused on discovery and produce documents over which the defendants claimed solicitor-client privilege.

The defendants had produced certain emails between their lawyer and a senior employee in their affidavit of documents and answered questions about them on discovery, later claiming the disclosure was inadvertent.

The court found the disclosure was not inadvertent and that the defendants could not selectively waive privilege to support their defence of acting in good faith while withholding other communications on the same issue.

The motion was granted, and the defendants were ordered to produce all related communications.

The defendant Daniel Sherk brought a motion to compel the plaintiffs (Verge Insurance Brokers Limited et al.) to produce remaining backup tapes and a revised affidavit of documents, and to indemnify him for costs incurred in reviewing previously produced tapes.

The court found that the plaintiffs had a positive duty to review and produce relevant documents from their backup tapes, as per a prior order by Quinn J. and the Sedona Principles.

The plaintiffs had failed to do so, despite earlier sworn statements by Mark Sherk.

The court ordered the plaintiffs to indemnify Daniel Sherk for the costs of Deloitte's prior work and to forthwith restore and review the remaining 66 backup tapes, producing an amended affidavit of documents.

The court also rejected the plaintiffs' arguments regarding leave to bring the motion and proportionality of costs, noting the high stakes of the litigation.

This endorsement addresses the costs of a motion where the applicants sought an advance payment for shares in a family business.

The applicants were largely successful in obtaining a substantial advance payment, significantly more than the respondents' offers to settle.

Despite some divided success on ancillary requests, the court found the applicants to have achieved substantial success on the primary issue.

The court fixed costs on a partial indemnity basis, awarding the applicants $60,000 for fees and $5,948.49 for disbursements, payable within 30 days, declining to defer the costs decision to the trial judge.

The plaintiffs brought a motion to stay the defendant's counterclaim pending the payment of approximately $138,000 in costs from previous unsuccessful motions, or alternatively, for an order requiring payment by a specific date.

The defendant sought an extension of 45 days to pay the costs, citing financial difficulties and an upcoming commercial closing that would provide funds.

The court balanced the need to enforce its orders with the context of the complex litigation and granted the defendant's request for an extension.

The court ordered that if the costs were not paid by the extended deadline, the counterclaim would be stayed.

The defendant brought a motion for leave to appeal to the Divisional Court from a prior decision dismissing his motion to vary the terms of an interim injunction issued on consent.

The court considered rule 62.02(4) of the Rules of Civil Procedure governing leave to appeal.

It concluded that the moving party failed to meet the required onus under either branch of the rule.

The issues raised, while important to the parties, were not of sufficient importance to justify appellate review.

Leave to appeal was therefore refused.

The plaintiffs, former insurance advisors affiliated with a large financial services company, sought payment of monthly “CORe” commissions following termination of their advisory agreements.

The agreements provided that post‑termination commissions would cease if the advisor advised, counselled, or induced clients to replace or cancel policies serviced through the company.

The defendant argued the plaintiffs breached those conditions by soliciting and transitioning hundreds of clients and significant assets to a competing business after termination.

The court held that CORe payments were conditional incentives rather than vested compensation and found that the plaintiffs had engaged in systematic replacement activities contrary to the agreements.

Relief from forfeiture and equitable claims such as quantum meruit were rejected, and the action was dismissed.

The defendant, Daniel Sherk, brought a motion to vary a consent interlocutory injunction that prohibited him from soliciting or servicing clients of his former employer, Verge Insurance Brokers Limited.

He sought to suspend and amend the injunction under Rules 59.06(2)(b) and (d) of the Rules of Civil Procedure, arguing that the restrictive covenants had expired and the court had inherent jurisdiction to vary the order.

The court dismissed the motion, holding that a consent order can only be varied on the same grounds as a contract can be rectified, and that the court's inherent jurisdiction cannot be used to circumvent the express provisions of the Rules or to upset a fairly negotiated bargain.

The plaintiffs brought motions for an interlocutory injunction and for production of documents against the defendants, who were former employees and a competing insurance brokerage.

The injunction motion was settled and the production motion was stayed.

The plaintiffs sought substantial indemnity costs of over $390,000, arguing the defendants unnecessarily lengthened the proceedings and engaged in wrongdoing.

The court found the injunction component of the action was effectively spent, justifying fixing costs payable forthwith rather than in the cause.

The court awarded partial indemnity costs of $255,237, apportioned equally among the three responding defendants, after making deductions for services not directly related to the motions.

The employer sought an interlocutory injunction restricting picketing during a lawful strike at one of its warehouse facilities.

The union’s picketing activities caused substantial delays for vehicles entering and exiting several warehouse locations, effectively disrupting operations despite remaining largely peaceful.

The court applied the interlocutory injunction framework from RJR‑MacDonald and considered the special context of labour disputes and the balance between property access rights and constitutionally protected expressive activity in picketing.

The court held that while employers are entitled to access their property, labour picketing may justify some degree of inconvenience and delay as part of the economic dynamics of a strike.

An injunction was granted permitting continued picketing but limiting the extent of delays in accessing the employer’s facilities.

Following an application proceeding, the court considered written submissions regarding costs.

The applicant argued that because the respondents had not objected to proceeding by way of application, the issue of costs should be determined by the trial judge.

The court agreed that the trial judge would be better positioned to assess any costs thrown away as a result of the application and noted that the record lacked sufficient evidence regarding the parties’ positions on the procedural choice.

The court therefore declined to determine costs at this stage.

Following an unsuccessful motion by the defendant to dismiss a contempt motion, the court addressed costs.

Although the defendant did not succeed on the motion, the court found merit in the defendant’s complaints regarding the organization and drafting of the plaintiffs’ materials, which were described as poorly organized and “reader hostile.” Applying Rule 57.01 of the Rules of Civil Procedure, the court considered the parties’ conduct and its impact on the duration and efficiency of the proceeding.

The court concluded that the plaintiffs’ conduct justified a costs award against them despite their success on the motion.

Costs of $7,000 were awarded to the moving party.

The defendant brought a motion to dismiss or stay a civil contempt motion arising from an alleged breach of a prior injunction restricting dealings with former firm clients.

The defendant argued the contempt motion lacked sufficient particulars, served no purpose because the underlying order had expired, and constituted an abuse of process.

The court held that although the materials were poorly organized and lacked clarity, the defendant had not demonstrated a complete absence of fair notice of the allegations.

The court also found that the expiry of the order did not eliminate the public interest in enforcing respect for court orders and that the high threshold for abuse of process had not been met.

The motion to dismiss the contempt proceeding was refused, but the plaintiffs were ordered to serve clear and concise particulars of the alleged contempt.

A former bank employee brought an application seeking payment of allegedly outstanding bonuses under a Restricted Share Unit plan following his resignation.

The employer denied liability on the basis that the plan provided for forfeiture of unvested units upon resignation.

The applicant argued that the forfeiture provision operated as an unreasonable restraint of trade and was unconscionable.

The court held that the evidentiary record was insufficient to determine whether the provision constituted an enforceable restraint of trade and concluded that the issues raised involved material factual disputes.

The court determined that the matter was not properly brought by way of application and directed that submissions be made regarding continuation of the proceeding as a trial.