2017 ONSC 934, 2017 ONSC 934

CITATION: Mannion Heating & Plumbing, Strang and Strang Management, v, Bam Industries and Bruce Minty Ltd. 2017 ONSC 934 COURT FILE NO.: 16-70474 DATE: 2017/02/07 SUPERIOR COURT OF JUSTICE - ONTARIO RE: Mannion Heating& Plumbing, Christopher Strang and Strang Management Ltd., Applicants AND BAM Industries Ltd and Bruce Minty, Respondents BEFORE: Justice Marc R. Labrosse COUNSEL: David Capra and Aaron Heard, Counsel for the Applicants Ryan D.

Garrett, Counsel for the Respondents HEARD: February 3, 2017 ENDORSEMENT [1] At this motion’s hearing, I provided the parties with oral reasons and advised I would be issuing written reasons, but Ireserved the right to supplement the reasons provided at the conclusion of the motion. [2] This is the return date of the Order of Kane J. dated November 4, 2016 and extended on November 21, 2016 which enjoinsthe Respondents BAM Industries and Bruce Minty from various matters relating to the termination of Mr Minty’s involvement inMannion Heating & Plumbing Ltd. (“Mannion”). [3] I adopt and repeat the findings made by Kane J. in granting the injunctive relief that the criteria set out in RJR MacDonaldInc. v.

Canada, (Attorney General) (SCC), [1994] 1 SCR 311 has been met. [4] Specifically, I am of the view that Mannion continues to be at risk of suffering irreparable harm not only from the loss ofbusiness but also the loss of goodwill resulting of the special role played by Mr. Minty on the front lines along with his relationship withclients of Mannion, . This warrants that the injunction be maintained subject to the terms set out herein. [5] I specifically disagree with the Respondents whereby a reasonable time has passed (approx. 3 months) and that Mr.

Mintyshould be allowed to solicit and/or induce clients of Mannion to follow him over to BAM Industries. This is again attributable to Mr.Minty’s high level of trust and confidence while he was with Mannion: see Anderson, Smyth & Kelly Customs Brokers Ltd v.

World WideCustoms Brokers Ltd. et al. at para 32. [6] The evidence clearly demonstrates a serious issue to be tried and given the short period of 3 months since the originalinjunction, the balance of convenience continues to favour the Applicants: see RJR MacDonald. [7] Having considered the submissions of Counsel, I am of the view that paras. 1 to 4, 6 and 8 of the November 4, 2016 Order ofKane J. shall continue to trial. [8] With respect to para 5 and 7 of the Order of Kane J., these shall remain in effect until November 4, 2017 but shall beamended to apply as follows: (

a) the Respondents should refrain from initiating any communications and/or soliciting work from and/or inducing clients ofMannion to leave the services of Mannion. This will apply to any clients who were clients of Mannion from January 1, 2016 toNovember 4, 2016; (

b) the Respondents will be entitled to accept unsolicited work from any present or past client of Mannion. [9] I have attributed a one-year period prohibiting solicitation of work by Mr. Minty from Mannion’s clients. This period is notdetermined on a final basis and it shall remain open to the Plaintiffs to seek a further extension to this Order.

Mannion will provide a listof its clients for whom it did work from January 1, 2016 to November 4, 2016, within 15 days of the date of this Order [10] In coming to the conclusion that the Respondents should be entitled to accept unsolicited work, I rely and adopt the findingsof Parell J. at para 30 of Optilinx Systems Inc. v. Fiberco Solutions Inc., 2014 ONSC 6944. [11] I am of the view that sufficient time has passed since the original date of the injunction for Mannion to contact clients andconfirm their continued availability in the provision of services.

The Respondents shall be entitled to accept unsolicited work but shallnot however engage in direct solicitation of those clients. [12] However, all work performed by the Respondents for any clients of Mannion shall be subject to Mannion’s claims as outlinedin the Statement of Claim. Mannion’s right to be paid the profits obtained from a breach of fiduciary duty shall be determined at trial. [13] Costs of this appearance are in the cause.

Justice Marc R. Labrosse Date: February 07, 2017 CITATION : Mannion Heating & Plumbing, Strang and Strang Management, v, Bam Industries and Bruce Minty Ltd . 2017 ONSC 934 COURT FILE NO.: 16-70474 DATE: 2017/02/07 ONTARIO SUPERIOR COURT OF JUSTICE RE: Mannion Heating& Plumbing, Christopher Strang and Strang Management Ltd., Applicants AND BAM Industries Ltd and Bruce Minty, Respondents BEFORE: Justice Marc R. Labrosse COUNSEL: David Capra and Aaron Heard, Counsel for the Applicants Ryan D. Garrett, Counsel for the Respondents HEARD: February 3, 2017 ENDORSEMENT Justice Marc R. Labrosse Released: February 07, 2017