IBM Canada Ltd. et al. v. Almond et al., (2015) 617 A.R. 321 (QB)

JudgePentelechuk, J.
CourtCourt of Queen's Bench of Alberta (Canada)
Case DateMay 04, 2015
Citations(2015), 617 A.R. 321 (QB);2015 ABQB 336

IBM Can. Ltd. v. Almond (2015), 617 A.R. 321 (QB)

MLB headnote and full text

Temp. Cite: [2015] A.R. TBEd. JN.019

IBM Canada Ltd. and ISM Information Systems Management Canada Corporation (plaintiffs/applicants) v. Audrey Gail Almond and CGI Information Systems and Management Consultants Inc. (defendants/respondents)

(1503 03761; 2015 ABQB 336)

Indexed As: IBM Canada Ltd. et al. v. Almond et al.

Alberta Court of Queen's Bench

Judicial District of Edmonton

Pentelechuk, J.

May 25, 2015.

Summary:

Almond commenced working with IBM Canada in 1998 and became involved in IBM's Electronic Health Record (EHR) contract with Alberta Health in 1999. In August 2005, she returned to IBM after working elsewhere for one year, and was promoted to project manager of the EHR contract. As a condition of her employment, she signed a confidentiality agreement and non-solicitation agreement. She resigned in October 2014 and commenced working for CGI Informations Systems and Management Consultants Inc., a competitor of IBM. IBM's five year contract for the deployment of the EHR project ended April 30, 2015. On October 28, 2014, Alberta Health issued a public request for proposal for the EHR contract to commence May 1, 2015. Almond assisted with the preparation of CGI's bid and was listed as the team lead. There were two other bidders, including ISM Information Systems Management Canada Corporation, a wholly owned subsidiary of IBM. Alberta Health awarded the contract to CGI. IBM and ISM applied for an interlocutory injunction prohibiting and restraining Almond from soliciting business in competition with IBM or from any customer of IBM that she managed or had contact with on behalf of IBM, or from soliciting or attempting to solicit any employee of IBM. Specifically, they sought to restrain and prohibit her from working on the EHR contract and from working on any new contracts with Alberta Health awarded to CGI, for one year.

The Alberta Court of Queen's Bench held that if the test for injunctive relief was met, ISM was not a proper applicant and was not entitled to the benefit of any injunctive relief granted. However, the test for injunctive relief was not met. IBM failed to establish a strong prima facie case that Almond breached the confidentiality agreement or the non-solicitation agreement, or that if she was in a fiduciary position, that she breached any fiduciary duties. Further, any injury or harm that IBM might suffer if it succeeded at trial could be quantified and could ultimately be collected as damages from CGI, and the balance of convenience favored Almond.

Equity - Topic 3607

Fiduciary or confidential relationships - General - Relationships which are not fiduciary - See paragraphs 84 to 100.

Equity - Topic 3648

Fiduciary or confidential relationships - Breach of fiduciary relationship - By employee - Solicitation of business - See paragraphs 84 to 100.

Equity - Topic 3726

Fiduciary or confidential relationships - The employer-employee relationship - Duty of employee after termination - See paragraphs 84 to 100.

Injunctions - Topic 1606

Interlocutory or interim injunctions - General principles - Balance of convenience - See paragraphs 112 to 116.

Injunctions - Topic 1607

Interlocutory or interim injunctions - General principles - Requirement of strong prima facie case or appearance of right - See paragraphs 25 to 100.

Injunctions - Topic 1610

Interlocutory or interim injunctions - General principles - Circumstances when injunction will not be granted - See paragraphs 25 to 118.

Injunctions - Topic 1641

Interlocutory or interim injunctions - Parties - General - See paragraphs 21 to 24.

Injunctions - Topic 1743

Interlocutory or interim injunctions - Sufficiency of damages in lieu of injunction - What constitutes adequacy or sufficiency of damages - See paragraphs 106 to 111.

Injunctions - Topic 1802

Interlocutory or interim injunctions - Requirement of irreparable injury - What constitutes - See paragraphs 106 to 111.

Injunctions - Topic 1805

Interlocutory or interim injunctions - Requirement of irreparable injury - Covenants not to compete (incl. non-solicitation clauses) - See paragraphs 106 to 111.

Injunctions - Topic 1807

Interlocutory or interim injunctions - Requirement of irreparable injury - Fiduciary duty - See paragraphs 106 to 111.

Injunctions - Topic 2505

Persons entitled to an injunction - Status or standing to apply - See paragraphs 21 to 24.

Injunctions - Topic 5953

Particular matters - Contracts - Negative covenants - See paragraphs 25 to 118.

Injunctions - Topic 5971

Particular matters - Restrictive covenants - Covenants not to compete (incl. non-solicitation clauses) - See paragraphs 25 to 118.

Injunctions - Topic 7129

Particular matters - Particular interests protected - Confidential information - See paragraphs 25 to 118.

Injunctions - Topic 9261

Practice - Parties - General - See paragraphs 21 to 24.

Master and Servant - Topic 4207

Duties of servant - General - Fiduciary duty - See paragraphs 84 to 100.

Master and Servant - Topic 4302

Duties of servant - On termination - Confidentiality - See paragraphs 32 to 47.

Master and Servant - Topic 4307

Duties of servant - On termination - Competition in business - Solicitation of clients of former employer - See paragraphs 48 to 83.

Counsel:

James A. D'Andrea, Q.C., and Christine C. Plante (Bennett Jones LLP), for the plaintiffs/applicants, IBM and ISM;

Maurice C. Dransfeld and Christopher J. Lane (McLennan Ross LLP), for the defendant/respondent, Audrey Gail Almond;

Sean Smyth and Shana Wolch (McCarthy Tétrault LLP), for the defendant/respondent, CGI.

This application was on April 29 and May 4, 2015, by Pentelechuk, J., of the Alberta Court of Queen's Bench, Judicial District of Edmonton, who delivered the following reasons for judgment on May 25, 2015.

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17 practice notes
  • Modry et al. v. Alberta Health Services et al., 2015 ABCA 265
    • Canada
    • Court of Appeal (Alberta)
    • August 21, 2015
    ...must demonstrate a strong and clear prima facie case. For a definition of "strong prima facie case", see IBM Canada Ltd v Almond , 2015 ABQB 336 at para 29 (a strong prima facie case is one that will "probably prevail at trial" or is "likely to succeed at trial"), citing with approval Brett......
  • Gift Lake Métis Settlement et al. v. Minister of Aboriginal Relations et al., [2015] A.R. TBEd. OC.074
    • Canada
    • Court of Queen's Bench of Alberta (Canada)
    • August 5, 2015
    ...together: Metropolitan Stores (MTS) Ltd v Manitoba Food and Commercial Workers, Local 832 , [1987] 1 SCR 110; IBM Canada ltd v Almond , 2015 ABQB 336 at para 104; see also Merck & Co v Apotex Inc , [1993] FCJ No 1095, 69 FTR 209 (FCTD) at para 29. [51] The Applicants seek three injuncti......
  • 961945 Alberta Ltd (Servicemaster of Edmonton Disaster Restoration) v Meyer, 2018 ABQB 564
    • Canada
    • Court of Queen's Bench of Alberta (Canada)
    • July 27, 2018
    ...Systems Ltd v Lynn, 2005 ABCA 62 at para 8; Windship Aviation Ltd v deMeulles, 2002 ABCA 669 at para 23; IBM Canada Ltd v Almond, 2015 ABQB 336 at para 26-8 [IBM Canada Ltd]; Embedia Technologies Corporation v Blumell, 2018 ABQB 222 at para 9 [Embedia Technologies Corporation]; Gerrard v Ce......
  • Human Logistics v. PAL Airlines, 2018 ONSC 7433
    • Canada
    • Superior Court of Justice of Ontario (Canada)
    • December 11, 2018
    ...W-K Trucking Inc. v. Bidulock Oilfield Services Ltd., 1998 ABQB 959, 234 A.R. 363 at paras. 16 and 18. [45] IBM Canada Ltd. v. Almond, 2015 ABQB 336, 617 A.R. 321 at paras. 55 and 60, appeal dismissed as moot, 2016 ABCA 379, 26 Alta. L.R. (6th) 6 [IBM [46] Maguire, supra note 41 para. 9; J.......
  • Request a trial to view additional results
17 cases
  • Modry et al. v. Alberta Health Services et al., 2015 ABCA 265
    • Canada
    • Court of Appeal (Alberta)
    • August 21, 2015
    ...must demonstrate a strong and clear prima facie case. For a definition of "strong prima facie case", see IBM Canada Ltd v Almond , 2015 ABQB 336 at para 29 (a strong prima facie case is one that will "probably prevail at trial" or is "likely to succeed at trial"), citing with approval Brett......
  • Gift Lake Métis Settlement et al. v. Minister of Aboriginal Relations et al., [2015] A.R. TBEd. OC.074
    • Canada
    • Court of Queen's Bench of Alberta (Canada)
    • August 5, 2015
    ...together: Metropolitan Stores (MTS) Ltd v Manitoba Food and Commercial Workers, Local 832 , [1987] 1 SCR 110; IBM Canada ltd v Almond , 2015 ABQB 336 at para 104; see also Merck & Co v Apotex Inc , [1993] FCJ No 1095, 69 FTR 209 (FCTD) at para 29. [51] The Applicants seek three injuncti......
  • 961945 Alberta Ltd (Servicemaster of Edmonton Disaster Restoration) v Meyer, 2018 ABQB 564
    • Canada
    • Court of Queen's Bench of Alberta (Canada)
    • July 27, 2018
    ...Systems Ltd v Lynn, 2005 ABCA 62 at para 8; Windship Aviation Ltd v deMeulles, 2002 ABCA 669 at para 23; IBM Canada Ltd v Almond, 2015 ABQB 336 at para 26-8 [IBM Canada Ltd]; Embedia Technologies Corporation v Blumell, 2018 ABQB 222 at para 9 [Embedia Technologies Corporation]; Gerrard v Ce......
  • Human Logistics v. PAL Airlines, 2018 ONSC 7433
    • Canada
    • Superior Court of Justice of Ontario (Canada)
    • December 11, 2018
    ...W-K Trucking Inc. v. Bidulock Oilfield Services Ltd., 1998 ABQB 959, 234 A.R. 363 at paras. 16 and 18. [45] IBM Canada Ltd. v. Almond, 2015 ABQB 336, 617 A.R. 321 at paras. 55 and 60, appeal dismissed as moot, 2016 ABCA 379, 26 Alta. L.R. (6th) 6 [IBM [46] Maguire, supra note 41 para. 9; J.......
  • Request a trial to view additional results

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