Acklands-Grainger Inc. v. Wesco Distribution Canada LP et al., 2015 NBQB 241
|Court:||Court of Queen's Bench of New Brunswick|
|Case Date:||December 10, 2015|
|Citations:||2015 NBQB 241;(2015), 444 N.B.R.(2d) 372 (TD)|
Acklands-Grainger Inc. v. Wesco Distr. (2015), 444 N.B.R.(2d) 372 (TD);
444 R.N.-B.(2e) 372; 1163 A.P.R. 372
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[French language version follows English language version]
[La version française vient à la suite de la version anglaise]
Temp. Cite:  N.B.R.(2d) TBEd. FE.001
Renvoi temp.:  N.B.R.(2d) TBEd. FE.001
Acklands-Grainger Inc. (plaintiff) v. Wesco Distribution Canada LP, Hazmasters Inc., Patrick Graves, Jason Murray, Eugene LaPointe and John Henderson (defendants)
(SJC-505-15; 2015 NBQB 241; 2015 NBBR 241)
Indexed As: Acklands-Grainger Inc. v. Wesco Distribution Canada LP et al.
Répertorié: Acklands-Grainger Inc. v. Wesco Distribution Canada LP et al.
New Brunswick Court of Queen's Bench
Judicial District of Saint John
December 15, 2015.
The plaintiff ("AGI") sued a company and its subsidary ("Hazmasters"), plus four individuals who were formerly employed by AGI in Saint John. Hazmasters was in the process of opening a branch in Saint John to be staffed by the individual defendants. The new branch was to be in premises that until 2014 had been rented by AGI. AGI brought a preliminary motion for an order that the defendants: (a) not solicit the clients of AGI for five months; (b) not use any confidential information of AGI; (c) not solicit other employees of AGI in the region for six months; (d) preserve all relevant computer data and underlying metadata; and (e) agree to an early trial.
The New Brunswick Court of Queen's Bench, Trial Division, dismissed the application and awarded costs of $5,000 payable by AGI to the defendants within 30 days.
Injunctions - Topic 1606
Interlocutory or interim injunctions - General principles - Balance of convenience - AGI sued a company, its subsidary (Hazmasters), and four of AGI's former Saint John employees - Hazmasters was in the process of opening a branch in Saint John, to be staffed by the former AGI employees/defendants - The new branch was to be in premises that until 2014 had been rented by AGI - AGI brought a preliminary motion seeking an order that the defendants: (a) not solicit the clients of AGI for five months; (b) not use any confidential information of AGI; (c) not solicit other AGI's employees in the region for six months; (d) preserve all relevant computer data and underlying metadata; and (e) agree to an early trial - The New Brunswick Court of Queen's Bench, Trial Division, dismissed the application - No binding and enforceable non-solicitation or non-competition agreement was in evidence - There was a serious question to be tried regarding the defendant's alleged improper use of AGI's confidential information and a reasonable likelihood that AGI would be at least minimally successful at trial - However, the court was not persuaded that either AGI or its Saint John branch would suffer irreparable harm if the application was refused; AGI was a large organization in a complicated and competitive market and there was no suggestion that the corporate defendants would not be capable of paying any damage award if AGI was successful at trial - Further, the balance of convenience favoured the defendants - Making the order requested would summarily elevate AGI's right to protect its corporate information to overawe and overwhelm the competing rights of its former employees to work in the industry - The court, in effect, would be imposing non-competition agreements on former employees with the chilling threat of summary imprisonment for contempt of court - Those former employees would also be exposed to the risk that AGI could repeatedly attempt to strictly enforce that order - Making the order would also have the effect of prejudging the disputed issues of whether the defendants in fact had wrongly used any confidential information and, if so, whether that caused any damages to AGI.
Injunctions - Topic 1610
Interlocutory or interim injunctions - General principles - Circumstances when injunction will not be granted - [See Injunctions - Topic 1606 ].
Injunctions - Topic 1802
Interlocutory or interim injunctions - Requirement of irreparable injury - What constitutes - [See Injunctions - Topic 1606 ].
Injunctions - Topic 6309
Particular matters - Injury to trade - Competition from former employee, shareholder, franchisee, etc. - [See Injunctions - Topic 1606 ].
Hobbs v. TDI Canada Ltd. (2004), 192 O.A.C. 141 (C.A.), refd to. [para. 4].
Imperial Sheet Metal Ltd. et al. v. Landry et al. (2007), 315 N.B.R.(2d) 328; 815 A.P.R. 328; 2007 NBCA 51, refd to. [para. 8].
American Cyanamid Co. v. Ethicon Ltd.,  A.C. 396;  1 All E.R. 504 (H.L.), refd to. [para. 11].
Metropolitan Stores (MTS) Ltd. v. Manitoba Food and Commercial Workers, Local 832 and Labour Board (Man.),  1 S.C.R. 110; 73 N.R. 341; 46 Man.R.(2d) 241; 1987 CanLII 79, refd to. [para. 11].
RJR-MacDonald Inc. et Imperial Tobacco Ltd. v. Canada (Procureur général),  1 S.C.R. 311; 164 N.R. 1; 60 Q.A.C. 241; 1994 CanLII 117, refd to. [para. 12].
Stephen F. Gleave and Clarence Bennett, for the plaintiff;
Landon P. Young, for the defendants.
This motion was heard on December 10, 2015, by McLellan, J., of the New Brunswick Court of Queen's Bench, Trial Division, Judicial District of Saint John, who delivered the following decision on December 15, 2015.
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