Foundation Capital Corporation v. Saxon, 2011 ABQB 102

Court of Queen ’ s Bench of Alberta Citation: Foundation Capital Corporation v. Saxon, 2011 ABQB 102 Date: 20110218 Docket: 1001 17062 Registry: Calgary Between: Foundation Capital Corporation and Harvest Capital Management Inc. Applicants (Plaintiffs) - and - Neil Saxon, Andrew Shymka, Sunrisa Consultants Inc., Corey Ripley, Ultrakor International Inc. and Atlantic Tides Incorporated Respondents (Defendants) _______________________________________________________ Reasons for Decision of the Honourable Mr. Justice P.R.

Jeffrey _______________________________________________________ [ 1 ] The Applicant Plaintiffs, Foundation and Harvest, are in the business of raising private investment capital to fund various business ventures, such as real estate development projects. They separately and at different times engaged the Respondents Saxon, Shymka and Ripley as senior sales representatives. For Shymka this engagement was through his corporation, the defendant Sunrisa Consultants Inc. For Ripley this engagement was through his corporation, the defendant Ultrakor International Inc. Saxon was an employee of the Applicants.

Each of those engagements has ended. Each of those five Defendants is alleged to be connected to, or have acted for or have benefited of, the sixth Defendant, Atlantic Tides. [ 2 ] Foundation and Harvest sued the Defendants, alleging that they committed breaches of contract, trust, fiduciary duties and

duties of confidence, plus conspired together with Atlantic Tides against the Applicants’ interests. [3] Foundation and Harvest also applied for an interim injunction pending trial of the issues, which is the subject of this decision. Specifically, they seek an order prohibiting and restraining the first five named Respondents[1] from: (

i) soliciting investment capital from any identified individuals, the initial contact with which they say originated with Foundation orHarvest (“Contacting their Confidential Clients”), and (ii) approaching any employees or agents of the Applicants about leaving the Applicants (“Attracting their Employees”). [4] The Respondents deny any such past solicitations or approaches on their part and deny all alleged breaches.[2] They resist therequested injunction. [5] The parties agree that the applicable legal test follows the framework described by the Supreme Court of Canada in RJR-MacDonald v. Canada (A.G.), (SCC), [1994] 1 S.C.R. 311. In that case the Applicants had to demonstrate that: (

i) there was a serious issue to be tried; (ii) the Applicants would suffer irreparable harm if the injunction is not granted; and (iii) the balance of convenience favoured the granting of the interim injunction. I shall address each of these in order, followed by an additional allegation by the Respondents that the Applicants have not come to courtseeking equity with “clean hands” and finally the matter of an undertaking as to damages. (

i) Serious issue to be tried [6] In some employment contexts (and also where a mandatory not prohibitory injunction is sought[3]) the first branch of the testis subject to a higher standard. In those cases the applicant must demonstrate not just that there is a serious issue to be tried but that theyhave a strong prima facie case against a respondent. Although the Respondents did not argue that a standard that is any more stringentthan the serious issue to be tried standard had to be met by the Applicants, I must first determine which standard applies in this case,given its employment context. [7] In R.J.V.

Gas Field Services Ltd. v. Baxandall, 2003 ABCA 170,330 a.R. 115, the Alberta Court of Appeal stated, at para.16: [...] Requiring a strong prima facie case rather than a serious issue to be tried, in the context of an employment situation, seems to havearisen in a [sic] restrictive covenant cases where the injunction sought is intended to and does, in fact, restrict the former employeefrom earning a livelihood: Windship Aviation Ltd. v. de Neulles, [2002] A.R. Uned. 384; 2002 ABQB 669 , [2002] A.J. No.952 (Q.B.) at para. 14; Jet Print Ink v. Cohen et al., [1999] O.T.C. Uned. 644; [1999] O.J.

No. 2864 (Sup.Ct.) at para. 11. (emphasisadded)

[8] More recently the Alberta Court of Appeal put it this way, in Globex Foreign Exchange Corp. v. Kelcher, 2005 ABCA419, 376 A.R. 133, at para. 10: On the first branch of the test, whether there is a serious issue to be tried, the chambers judge correctly held that a more stringentexamination of the merits of the case is called for in this action because the issue involves a restrictive covenant that may restrict thedefendant employees’employment in a particular field: Enerflex Systems Ltd. v. Lynn, (2005), 2005 ABCA 62 , 363 A.R. 136;363 W.A.C. 136; 2005 ABCA 62, at para. 8.

Accordingly, she considered whether [the applicant] had established a strong prima faciecase that the Agreements are enforceable against [two of the respondents]. (emphasis added) [9] The “serious issue to be tired” standard is a low threshold: R.J.R. at 337.

I must “make a preliminary assessment of themerits of the case”, to satisfy myself that “the claim is not frivolous or vexatious”: R.J.R. at 337 and 335, respectively. “Once satisfiedthat the application is neither vexatious or frivolous, [I am to] proceed to consider” the remaining tests: R.J.R. at 337. [10] Regarding the threshold to be met for “a strong prima facie case”, in Connelly v. Connelly-McKinley Ltd., 2010 ABQB 515, Clackson, J. likened it to “a very strong probability of success” (at para. 7).

Both Sulyma, J.[4] and Romaine, J.[5] adopted with approvalthe comments of Ritter, J. (as he then was) in West Point Mall Ltd. v. Kelsey’s Holdings Inc. et al. 1998 ABQB 446 at para. 12: In my view, a strong case is one where the likely outcome of the matter is fairly obvious. It may not be a case where

summary judgmentwould be granted, but it presumably would come close to being such a case. [11] In Telus Communications Inc. v. Telus Communications Workers’ Union, 2005 ABQB 719, 385 A.R. 43, Hughes, J. relied on a judgment of the Saskatchewan Court of Appeal[6] that stated: [...] Before a strong prima facie case can be said to have been made out in relation to this or that cause of action, the evidence must besuch as to demonstrate that: (

i) the plaintiff has a legal right of one nature or another and (ii) the defendant is interfering with that right inactionable manner. Each of the constituent elements of the cause or causes of action upon which the court is being asked to act(including the elements of each of the associated torts) must be made out with sufficient certainty, in light of the governing standard, towarrant the sought-after relief. [12] An injunction against Attracting their Employees would not adversely impact the Respondents’ ability to earn a livelihood, atleast not on the basis of the evidence before me.

There was no suggestion, for example, that any Applicant employees migrating toAtlantic Tides would result in increased compensation to any of the Respondents or that ir would benefit them in any way or, more to thepoint, that a prohibition against Attracting their Employees away from the Applicants might adversely affect the Respondents’ ability toearn a livelihood.

Therefore, for an injunction against Attracting their Employees to issue, the Applicants need only satisfy the Court forthis first branch of the test that there is a serious issue to be tried. [13] One might be inclined to infer in the circumstances of this case that the Respondents would be restricted, at least to somedegree, from earning a livelihood if they were prohibited from Contacting their Confidential Clients.

However the Respondents offeredno evidence to that effect. [14] When the parties first appeared before me on this matter, the Respondents requested an adjournment having just recentlyretained counsel. At that time, in the context of opposing an interim injunction over the course of an adjournment of this application, their counsel expressed the belief that, among other things, the requested injunction might adversely impact the Respondents insignificant ways. In making that representation, however, he admitted to not yet being informed on the point by his clients. Theadjournment was granted.

Since then the Respondents filed affidavit evidence and both sides cross-examined the other as they saw fit onthe other’s evidence. The Respondents’ evidence, however, does not assert that the injunction sought will restrict their ability to earn alivelihood or even that it may restrict them in that regard. Further, there is a sense from the Respondents’ evidence that the Applicants’confidential client contacts were and are of very limited value to the Respondents.

Shymka deposed, for example: I may have received 320 Harvest Group leads but as stated, the leads that I did get were very poor and essentially useless.

[ 15 ] Therefore, since there is no evidence that an injunction against Contacting their Confidential Clients might impair the Respondents’ ability to earn a livelihood, only the lower threshold standard, showing there is a serious issue to be tried, must be met by the Applicants. In the event I am incorrect in my conclusion of the applicable standard for this first branch of the test, I will state my findings under both standards. Sason [ 16 ] The Applicants have adduced evidence that Saxon approached an employee of the Applicants to entice him to leave his employment and work instead with Atlantic Tides.

This evidence purports to be first hand knowledge and was not tested under cross- examination on the affidavits in which it appeared. Further, Saxon in his affidavit does not deny either this or the further Applicant assertion that Saxon was working “behind the scenes” with Atlantic Tides. Saxon says only that he was never employed by or contracted to Atlantic Tides in violation of his duties owed to the Applicants. [ 17 ] This is enough to satisfy the test regarding Attracting their Employees. The issues raised are not frivolous or vexatious.

In my view, upon review of the evidence adduced by both parties to date, the Applicants have also satisfied the strong prima facie case test. An injunction against Saxon is not sought for Contacting their Confidential Clients. Shymka [ 18 ] The Applicants ask that Shymka be enjoined from Contacting their Confidential Clients.

They adduced evidence that Shymka sent email solicitations to individuals that they allege were clients with whom the Applicants originated contact. [ 19 ] The Respondents rely on the cross-examination of Beyer, the Applicants’ affiant on this application, that he admitted that he had no evidence that Shymka contacted any confidential clients of the Applicants about third party investment products. They also rely on the affidavit evidence of Shymka attesting that he has “not contacted any of these clients”.

They note that the Applicants did not test this statement during the cross-examination of Shymka on that affidavit. [ 20 ] The admissions under cross-examination of Beyer, however, were in respect of solicitations of confidential clients of the Applicants after October 6, 2010, not an admission that Shymka had never done so. There was evidence that he had done so July 24, 2010 and other times prior to October 6, 2010. Shymka characterized these as errors, in the nature of technical oversights. The Applicants contend otherwise.

Further, the affidavit evidence of Shymka does not state that no one on the Applicants list had been contacted about non-Applicant investment products. It qualifies such an assertion by adding “save for my own clients”. [ 21 ] There is a serious issue to be tried between the parties, if nothing else, as to whether or not the individuals the Applicants identify as their confidential clients are actually Shymka-originated clients.

There are also serious issues to be tried as to whether Shymka breached any of his duties to the Applicants in his admitted marketing of Atlantic Tides products to Applicant clients, the veracity and legal effect of Shymka’s response in the meeting with Beyer, that Beyer characterized as an apology, and of Beyer’s response thereto in July 2010. These latter matters, based on the current information before the court, also demonstrates to my satisfaction a strong prima facie case.

Ripley [ 22 ] The Applicants adduced hearsay evidence that as early as March 2010 Ripley was discussing Atlantic Tides with other Applicant agents and that on or before September 20 to Ripley actively recruited some of their agents to sell Atlantic Tides investment products. Further, on September 26, 2010, Ripley admitted directly to Beyer that he was then working with Atlantic Tides at a leadership level. By October 4, 2010, Ripley represented he was a Vice President with Atlantic Tides.

He fully resigned his arrangement with the Applicants no later than a few days after that. [ 23 ] Ripley does not deny many of the underlying events from which the Applicants infer conduct in breach of duties they say

they were owed, but has very different explanations for those events, ones that do not involve conduct in breach of his duties. Ripley acknowledges discussing Atlantic Tides with other Applicant agents. He says that when he was asked how he managed to survive financially he explained his separate and permissible sales activities for Atlantic Tides. He says he was not then in an exclusive arrangement with the Applicants. He implies that he never initiated contact with such other agents intending to attract them away from their arrangements with the Applicants.

He further alludes to changes to the regulatory regime governing the way the Applicants and Atlantic Tides would be allowed to solicit private investment capital. There was obviously much discussion at the time amongst all affected, about whether the Applicants would become an exempt market dealer, the delays it encountered in that regard, and about whether agents would align themselves with the Applicants or not.

Ripley's decision had been to not align with the Applicants, but instead “with an exempt market dealer with Atlantic Tides”. [ 24 ] Ripley says he began reducing the level of his exclusive arrangement with the Applicants in 2009, all with full notice to and acceptance by the Applicants.

Regarding connecting up with Atlantic Tides more fully, ultimately as vice President, Ripley implies that he was not in breach of any duties owed to the Applicants thereby. [ 25 ] He says that he never contacted any of the individuals of concern to the Applicants except for four people, two of which he had formerly done business with that he was asked to contact (by the Applicants I presume). The other two Were contacted he says in 2009.

It is not clear to me whether those were contacted about products other than the Applicants' products. [ 26 ] Ripley says that: “My clients are almost 100% the result of my other business activities and as such many of them have never even attended a Harvest Sales/Marketing Function.” This is one of the criteria the parties used to determine their respective rights to market to individual prospective clients.

The words he used, however, (“almost” and “many of them”) leave open the possibility that Ripley did market non-Applicant product to confidential Applicant contacts. [ 27 ] Ripley did not respond to Beyer's evidence that Ripley was actively recruiting Applicants’ agents since he says under oath that he does not understand what Beyer is referring to. [ 28 ] On October 28, 2010, Ripley sent an email to Beyer saying the Applicants had given him “the perfect opportunity to contact clients and introduce Atlantic Tides to all the ones I haven’t yet”.

His counsel in argument said that by the term “clients” Ripley meant his own clients, not those of the Applicants. The evidence, however, was more ambiguous than that and is equally open to the meaning the Applicants fear, that it threatens Contacting their Confidential Clients.

The email was sent at 3: 16 a.m., which I am prepared to accept may have influenced its overall tone and wording other than intended. [ 29 ] The Applicants say that Ripley, among other things, was not permitted to Contact their Confidential Clients to market Atlantic Tides investment products and that he was not permitted to Attract away their Employees.

They allege that he did so in breach of various contractual duties owed. [ 30 ] The October 28 email and the unanswered questions regarding the four clients Ripley admitted contacting satisfy me that the Applicants' concerns regarding Contacting their Confidential Clients are not frivolous and vexatious; there is therefore a serious issue to be tried in that respect.

I am not satisfied, however, that there is a strong prima facie case demonstrated. [ 31 ] I am further not satisfied that the Applicants have even demonstrated that there is a serious issue to be tried in respect of Ripley on Attracting their Employees. The Applicants’ assertions in that regard appear to be Beyer’s conclusions about third party observations, based upon his preconceived opinions and theory alone.

I will not consider further an injunction applicable to Ripley in that regard. (ii) Irreparable Harm [ 32 ] Regarding the second branch of the test, the Applicants argue that they need not show irreparable harm since there have been clear breaches of negative covenants. In oral argument, however, they conceded to the Respondents’ position that in such cases the standard an applicant must meet is lower but not avoided entirely. I agree.

[ 33 ] The law in this regard was summarized recently by the Alberta Court of Appeal in: 364661 Alberta Ltd. v. 735608 Alberta Ltd. , 2010 ABCA 6 , 474 A.R. 151 at para. 8 , by Costigan, J.A. who said: It is arguable whether the respondent has established a clear breach of a clear negative covenant on this record. However, assuming that it has, the chambers judge erred in law in failing to give any consideration to the issues of harm and balance of convenience.

Although those issues may have less weight in the case of a clear breach of a clear negative covenant, nonetheless they have some significance and should be considered: (citations omitted) [ 34 ] In Enersul Ltd. Partnership v. Milford , 2003 ABQB 973 , 30 Alta.L.R. (4th) 392 , Justice Kent similarly recognized that in cases of a clear breach of a negative covenant, consideration of the second and third branches of the tripartite test are not obviated but relaxed.

She stated, at para. 23: If I find a clear breach of a negative covenant, then on the authorities, the test for two other requirements for an injunction is relaxed. [ 35 ] To determine whether there has been a clear breach of a negative covenant, Justice Kent further stated, at para. 23: The first issue that I must decide is what is the appropriate test in this case where Enersul alleges a breach of a negative covenant. [...] To me the words ‘ clear breach ’ require the evidence to be overwhelming.

Clear means “ distinct, easily perceived by the senses, unambiguous, easily understood, manifest, not confused or doubtful ” . (The Oxford English Reference Dictionary, 1995). That is a very high standard to meet particularly at the interlocutory stage. Saxon [ 36 ] The Applicants’ concern with respect to Saxon is limited to his alleged Attracting their Employees. Saxon commenced employment September 6, 2007. At that time, he signed a “Confidentiality, Non-Competition and Non-Solicitation Agreement” (the “Saxon Agreement”). [ 37 ] The Saxon Agreement states in part: 4. Non-solicitation ...

(2) I agree that for a period of 24 months from the date of termination of my employment with the Employer I will not, directly or indirectly: ... (

b) attempt in any way to persuade or induce any [employee of the Employer] to enter into any alternative employment or to leave the employ of the Employer. 5. Injunctive Relief I understand and agree that the damaged which the Employer might suffer as a result of my violation of any of my obligations contained in this Agreement would be difficult or impossible to measure and that the Employer is entitled to, in addition to all other remedies it may have, injunctive relief for any such violation (including interim, interlocutory and permanent injunctive relief).

It is understood that the costs of such an application shall be borne by me and I will be fully responsible for any legal costs of the Employer.

[ 38 ] The Applicants have adduced some evidence that, first, Saxon attempted to attract an Applicant employee away from that employment and, that, second, he was “working behind the scenes” with Atlantic Tides.

Is that sufficient to show a clear breach of a negative covenant? [ 39 ] In my view the “working behind the scenes” evidence is not of sufficient specificity to satisfy the aforementioned test of a clear breach of any of the negative covenants in the Saxon Agreement or other agreement in evidence that he signed with the Applicants. [ 40 ] The evidence of Saxon enticing one of the Applicants' employees to leave and join Atlantic Tides, however, does satisfy that test. It was within 24 months of the termination of his employment. On the evidence before me it was not challenged, doubtful or confused.

I was a clear breach of a negative covenant. The test lor irreparable harm is therefore relaxed. [ 41 ] Clause 5 of the Saxon Agreement, excerpted above, represents an admission by Saxon that the Applicants would suffer irreparable harm if he breached the Saxon Agreement. By admitting to injunctive relief issuing for any such breach, Saxon concedes each of the three branches for the test; the only issue is whether a breach has been demonstrated. Further, by clause 5 Saxon has conceded that damages for any breach of the Saxon Agreement would be difficult or impossible to measure.

This satisfies the relaxed threshold test for irreparable harm in Saxon's case. See, for example: Stonewater Group of Restaurants Inc. v. Mikes Restaurants Inc. , 2005 ABQB 799 , at para. 40 .

Shymka [ 42 ] The source of the duties allegedly owed to the Applicants and clearly beached by Shymka include the following provision of an Agency Agreement between one of the Applicants and Shymka's Sunrisa Consultants Inc: 13.01 The Agent [Shymka] expressly covenants and agrees that it will not at any time during or after termination of this Agreement ... solicit, interfere with or entice away from Principal any customer or any person in the habit of dealing with principal ... [ 43 ] I am satisfied that Shymka's conduct in marketing Atlantic Tides products to Applicant confidential clients in July 20 I 0, and on other occasions in error or otherwise, constituted a clear breach of clause 13.01 above.

The test for irreparable harm is therefore relaxed in respect of Shymka. [ 44 ] The tenor of the email response from one recipient of Shymka's email marketing solicitation demonstrates just how seriously some investors disdain unsolicited marketing contacts. I accept that this harms the Applicant's reputation and sufficiently so such that the Applicants have satisfied the relaxed threshold for irreparable harm.

Ripley [ 45 ] The source of the duties allegedly owed to the Applicants and clearly breached by Ripley include the following same provision of an Agency Agreement between one of the Applicants and Ripley’s Ultrakor International Inc: 13.01 The Agent [Ripley] expressly covenants and agrees that it will not at any time during or after termination of this Agreement ... solicit, interfere with or entice away from Principal any customer or any person in the habit of dealing with principal ... [ 46 ] In Ripley's case the conduct meeting the serious issue to be tried standard does not constitute a clear breach of a negative covenant.

There is only the late night petty email, perhaps threatening to breach a negative covenant in the future, and there are the vague statements about 4 past client contacts. None of those satisfy the test of a clear breach. The test for irreparable harm, therefore, is not relaxed in Ripley's case.

[ 47 ] While the same reputational impact to the Applicants as described above in respect of Shymka Contacting their Confidential Clients could result if Ripley began doing so, I do not regard that reputational impact to constitute irreparable harm in these circumstances. Again the threshold is not relaxed. The Applicants showed that many, perhaps most, of their “own” contacts originated via radio and print promotions to attract potential clients to attend seminars and webcasts.

Were the client development demonstrated to be more dependant upon word of mouth and/or public reputation, then the Applicants may have had a stronger argument. [ 48 ] In Ripley's case I do not consider the requested injunction warranted.

The threshold for the serious issue to be tried was barely satisfied, there has not been by Ripley any clear breach of a negative covenant, unlike with Shymka where there were effectively a number of admitted breaches, Beyer’s evidence in respect of Ripley's attendance at a particular meeting was shown to be in error causing me to doubt the accuracy of other of his comments of that nature, particularly as relates to Ripley, and irreparable harm has not ben demonstrated. (iii) Balance of Convenience [ 49 ] The Supreme Court of Canada in R.J.R. said of this third branch of the tripartite test that it is a “determination of which of the two parties will suffer the greater harm from the granting or refusal of an interlocutory injunction, pending a decision on the merits” (para. 67).

It then said that the factors to consider are “numerous and will vary in each individual case” (at para. 68). [ 50 ] The Respondents opposed the requested injunction on the grounds there is no serious issue to be tried and that the Applicants will not suffer irreparable harm if I do not grant the requested injunction. They do not contest the application on this third branch of the test. At most they state in paragraph 51 of their written submissions: With respect [to] the balance of convenience, there are a number of clients on each of the lists that belong to Mr. Shymka and Mr. Ripley.

The Court should not prevent Mr. Shymka or Mr. Ripley from contacting their clients. [ 51 ] In that regard Shymka’s evidence is: Since leaving [Foundation] I have not contacted any of the individuals listed [by the Applicants] save for my own clients. Shymka does not identify which of the individuals listed he regards as his own clients or how many they are out of those listed by Harvest and Foundation.

More to the point, Shymka provides no evidence on the implications of being prohibited from contacting those he says are his own clients – the degree of inconvenience or harm he would suffer as a consequence of the Court issuing the requested injunction. [ 52 ] With respect to Ripley, it is not clear from the evidence whether there are, as their counsel says, “a number of clients on each of the lists that belong to.... Mr.

Ripley.” His evidence is that he neve contacted any of the individuals indicated on the lists identified by the Applicants as their confidential client leads provided to Ripley, except two people from each list who were contacted in 2009. [ 53 ] Ripley says his clients “are almost 100% the result” of his efforts and, he implies, therefore not Harvest or Foundation confidential clients.

Like Shymka, however, he offers no evidence of the degree of inconvenience or harm he would suffer if the injunction application were granted. [ 54 ] Saxon also offers no evidence of inconvenience, injury or harm he would suffer if the requested injunction applicable to him were granted.

[ 55 ] The Applicants on the other hand did offer evidence suggesting that unless the requested injunction is granted the alleged and impugned conduct of Saxon, Shymka and Ripley would continue to the detriment of the Applicants “significantly and irreparably” damaging their business and reputation.

They also offer evidence of the reaction of at least one of their clients to such conduct, giving those broad ascertains at least an air of reality. [ 56 ] Accordingly I am satisfied that the balance of convenience favours the Applicants. (iv) Unclean Hands [ 57 ] The Respondents argue that injunctive relief is not available, even if otherwise made out, if an applicant comes to the court with “unclean hands”. They rely on Tejani v. Jiwa, 2001 BCSC 1128 .

In that case, however, the court found reprehensible conduct involving introduction of evidence designed to mislead the court. [ 58 ] There is nothing of that sort here. Under cross-examination Beyer was shown to have erred in his affidavit statements about one of the Respondents attending a meeting in the fall of 2010. However he readily acknowledged the error when it was brought to his attention. He indicated that he had relied upon some records; he obviously did not take steps to verify that information before attesting to it under oath as fact. Greater care should have been taken by Beyer.

But that was not the sort of conduct that warrants expulsion from courts of equity, nor was any of the other impugned conduct of the Applicants. (

v) Undertaking as to Damages [ 59 ] The Applicants provided the requisite undertaking as to damages for the requested injunction to issue. Conclusion [ 60 ] For these reasons I grant the application in part. Specifically, pending trial of the action, Saxon is prohibited from Attracting their Employees; Shymka and Sunrisa are prohibited from Contacting their Confidential Clients. All other relief sought is denied. Heard on the 21 st day of December, 2010. Dated at the City of Calgary, Alberta this 18 th day of February, 2011. P.R. Jeffrey J.C.Q.B.A. Appearances:

Matthew J. Epp Jensen Shawa Solomon Duguid Hawkes LLP for the Applicants Jeff W. Moroz McLeod & Company for the Respondents [1] No relief is sought in this Application directly against Atlantic Tides Incorporated. [2] Shymka however acknowledges that, on July 24, 2010, he marketed by email an Atlantic Tides’ investment product to a Harvestclient. This conduct was broached in a meeting two days later between a Mr. Roy Beyer, for Harvest and who had initiated the meeting,and Shymka.

The evidence suggested that the meeting resulted in Shymka’s apology, apparently accepted by Beyer, and Shymka’staking steps to purge Harvest clients from his email list. He also acknowledges some other emails “which were sent in error”, he says, toHarvest clients. [3] See, for example: United Taxi Drivers’ Fellowship of Southern Alberta v. Calgary (City) (1997), (AB KB), 204A.R. 24 (Q.B.), at paras. 4-7. [4] Wigglesworth v. Phipps, 2001 ABQB 113, 284 A.R. 322, at paras. 28-30. [5] Aram Systems Ltd. v. NovAtel Inc., 2006 ABQB 697, at para. 32. [6] R.W.D.S.U., Local 558 v.

Pepsi-Cola Canada Beverages (West) Ltd. (1998), (SK CA), 167 D.L.R. (4th) 220 at233, aff’d. 2002 SCC 8, [2002] 1 S.C.R. 156, at para. 39.