You Just Can't Compete With A Good Non-Compete

Author:Ms Marisa Victor
Profession:Fasken Martineau
 
FREE EXCERPT

Your employees have access to all kinds of sensitive company information. But what can you do if they leave and use that information to unfairly compete against your company?  An Ontario court, in Corona Packaging Inc. v Singh, has recently confirmed that you might be able to prevent that competition, by obtaining an injunction.  This decision reinforces why such clauses are a good idea and how they can prevent a company from losing key business.

Facts

Corona Packaging manufactures plastic bottles and has one major customer, Guest Supply Inc. After a chance encounter at a conference, the President of Corona Packaging, Keith Ratcliff, became concerned that two former employees, Bradley Cascioli and Kashmir Singh, were intending to compete for Guest Supply's contracts. The two former employees had signed comprehensive employment agreements including both a confidentiality clause and a non-competition clause.

Cascioli was presenting himself as the President of Sales and Manufacturing for "Aura Packaging", and had apparently purchased the same machines Corona Packaging uses in their production of bottles.

Ratcliff, concerned confidential data had been stolen, launched an internal investigation.  It revealed that the day before Singh left, he had used his work computer to transfer 8,465 files onto a portable device. These files contained important confidential information including work orders that listed every product produced by Corona Packaging with technical specifications, budget information, price lists, packaging and product quality testing information, and work place policies.

Ratcliff responded with a claim for injunctive relief against Singh, Cascioli and Aura Packaging - to prevent them from competing against Corona Packaging.

The Test for a Injunctive Relief

Injunctive relief is an emergency measure which can be granted by a court prior to the hearing of the actual case. An injunction attempts to preserve the status quo until a final decision in the case can be made. When deciding whether an injunction is necessary, the Court must be satisfied that each step of the following three-part test is met:

Is there a serious issue to be tried? Will the party requesting the injunction, here Corona Packaging, suffer irreparable harm prior to the hearing of the case if the...

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