Docket: CACV2306 Melanie Ruth Elizabeth Wildman c.o.b. Weight Loss Forever Consulting, v. 101164027 Saskatchewan Ltd., c.o.b. Weight Loss Forever, 2013 SKCA 55

THE COURT OF APPEAL FOR SASKATCHEWAN Citation: 2013 SKCA 55 Date: 2013-05-21 Between: Docket: CACV2306 Melanie Ruth Elizabeth Wildman c.o.b. Weight Loss Forever Consulting, and 101164027 Saskatchewan Ltd., c.o.b. Weight Loss Forever (Defendants/Plaintiffs by Counterclaim) Appellants - and - Adele Kulyk and Global Healthcare Connections Inc. (Plaintiffs/Defendants by Counterclaim) Respondents Coram: Cameron, Richards and Caldwell JJ.A. Counsel: Curtis Onishenko and Robert Affleck for the appellants Benedict Nussbaum for the respondent Appeal: From: 2012 SKQB 312 Heard: December 14, 2012 Disposition: Allowed Written Reasons: May 21, 2013

By: The Honourable Mr. Justice Richards In Concurrence: The Honourable Mr. Justice Cameron The Honourable Mr. Justice Caldwell Richards J.A. I. Introduction [ 1 ] This appeal concerns an interlocutory injunction granted in favour of the Respondents, Adele Kulyk and her company Global Healthcare Connections Inc. The injunction prevents the Appellants, Melanie Wildman and her numbered company, from using the name “Global Healthcare Connections”. [ 2 ] Ms. Wildman operates a weight loss business known as “Weight Loss Forever”.

It provides services in relation to “medical tourism”, i.e. the practice of travelling outside of Canada for health care treatment. Ms. Wildman’s focus was on bariatric surgeries but, in early 2010, she also began to be involved in providing services for other types of surgeries. She used the name “Global Healthcare Connection” in relation to this non-weight loss side of her business. [ 3 ] Ms. Kulyk worked briefly with Ms. Wildman in 2010. She then parted company with Ms.

Wildman and attempted to set up her own medical tourism business under the name “Global Healthcare Connections”. (The word “Connections” was spelled with an “s” at the end.) She successfully obtained a registered trade-mark of that name. [ 4 ] Ms. Kulyk sued Ms. Wildman for passing off. Her principal goal was to prevent Ms. Wildman from using or otherwise carrying on business under the name “Global Healthcare Connection”. Ms. Wildman defended the claim and counterclaimed. She alleged, among other things, that it was Ms. Kulyk who was improperly passing off her business. [ 5 ] Ms.

Kulyk then sought and received an interim injunction from the Court of Queen’s Bench. As noted, it prevents Ms. Wildman from using the name “Global Healthcare Connections”. Ms. Wildman now appeals and says the injunction should not have been granted. [ 6 ] I agree with Ms. Wildman. As explained below, the Chambers judge made a number of errors in his analysis. The injunction must be set aside. II. Background [ 7 ] The key facts are found in the affidavits filed by Ms. Wildman and Ms. Kulyk. Their respective versions of the relevant events are not entirely consistent. [ 8 ] Ms.

Wildman is the president (and it would appear the sole shareholder) of a numbered company, the Appellant 101164027 Saskatchewan Ltd., which carries on business as “Weight Loss Forever”. (Some of the materials refer to “Weight Loss Forever Ltd.” However, any lack of clarity with respect to the relevant corporate identities is not material to the disposition of this appeal.) [ 9 ] As noted, Ms. Wildman and her company provide services for clients travelling out of the country for surgical procedures. The enterprise was launched in August of 2009 and Ms.

Wildman was able to make it her full-time employment in October of that year. [ 10 ] The business originally provided services in relation to bariatric surgeries only but Ms. Wildman says people soon began to approach her about other kinds of surgeries, particularly plastic surgeries. She states that she entertained her first plastic surgery inquiry in January of 2010 and that the first plastic surgery procedure in which she was involved was performed in March of that year. [ 11 ] Ms. Kulyk and Ms. Wildman used to be friends. Ms.

Kulyk lost her job in December of 2009 and the two women then had discussions about the possibility of Ms. Kulyk working with Weight Loss Forever. Ms. Wildman deposes that Ms. Kulyk had wanted “part-time contractual work” and that they agreed Ms. Kulyk would take on “a minimal contractual position while she applied to participate in a government sponsored entrepreneurial course which assists unemployed individuals”. Ms. Kulyk joined Weight Loss Forever in early June of 2010. [ 12 ] Ms.

Wildman says that, after consulting with her staff and other individuals, she chose the name “Global Healthcare Connection” to use in relation to services for clients who were not dealing with weight issues. Deborah Pellettieri, one of Ms. Wildman’s employees, states that Ms. Wildman was considering using the name “Global Healthcare Connection” as early as April of 2010. [ 13 ] Ms. Wildman recounts that, on June 12, 2010, she registered “Global Healthcare Connection.com” with “godaddy.com”, a domain registration company.

She then began marketing and otherwise using the “Global Healthcare Connection” name for non-bariatric services. Since June of 2010, Ms. Wildman says she has caused “Global Healthcare Connection” internet searches to be directed to the Weight Loss Forever website. [ 14 ] Ms. Wildman also deposes that she and Ms. Kulyk discussed the possibility of Ms. Kulyk becoming the manager of the “plastic surgery division” of Weight Loss Forever but that, soon after Ms. Kulyk started work, it became apparent she would not be a good fit with Weight Loss Forever.

In light of what are described as an “inability to facilitate patient requests” and “interference in the roles of other staff members”, Ms. Wildman says she dismissed Ms. Kulyk on September 10, 2010. [ 15 ] Ms. Wildman states that she was unaware Ms. Kulyk was attempting to start a business using the name “Global Healthcare Connection s ” (adding an “s” to “Global Healthcare Connection”) until early 2011. She then asked her solicitors to send Ms. Kulyk a

cease and desist letter and took steps to protect her business. These steps included contacting Facebook to advise that her use of “Global Healthcare Connection” had preceded Ms. Kulyk’s use of “Global Healthcare Connections”. [ 16 ] Ms. Kulyk’s version of the story is somewhat different. She says that, in the spring of 2010, she began developing an idea for a medical tourism business and, in May of that year, prepared an application for a federally funded entrepreneurship program which was built on this concept.

Her idea was that the new business would operate alongside Weight Loss Forever and would offer a broader scope of surgical procedures complementary to Weight Loss Forever’s work. [ 17 ] Ms. Kulyk deposes that, during the spring and summer of 2010, she and Ms. Wildman discussed a variety of matters, including Ms. Kulyk’s proposed business. She says that, in June of 2010, she developed potential logos, mastheads and webpages for the name “Global Healthcare Connection.” On June 22, 2010, Ms. Kulyk reserved the name “Global Healthcare Connection” under the provisions of The Business Corporations Act , R.S.S. 1978, c.

B-10. (The record reveals that she sought and received reimbursement from Ms. Wildman for the registration fee. It also reveals that she used the email address “adele@globalhealthcareconnection.com” while at Weight Loss Forever.) [ 18 ] According to Ms. Kulyk, Ms. Wildman abruptly broke off relations with her in September of 2010. On September 16, 2010, after parting company with Ms. Wildman, Ms. Kulyk registered the name “Global Healthcare Connection” under The Business Names Registration Act , R.S.S. 1998, c. B-11, as a partnership between her and her husband. In October of 2010, Ms. Kulyk’s lawyer sent Ms.

Wildman a letter advising her to discontinue using the “Global Healthcare Connection” domain name and asking Ms. Wildman to transfer it to Ms. Kulyk. In November of that same year, Ms. Kulyk incorporated “Global Healthcare Connections Inc.” in Saskatchewan. [ 19 ] Ms. Kulyk says that, in December of 2010, she took a number of steps to get Global Healthcare Connections Inc. moving and into business. This included arranging for insurance, opening bank accounts and applying for a business licence. [ 20 ] According to Ms. Kulyk, she heard nothing from Ms. Wildman until March 29, 2011.

On that date, she received a strongly worded letter from Ms. Wildman’s lawyer. The letter was to the effect that Ms. Wildman’s company had trade-mark interests in “Global Healthcare Connection” and that Ms. Kulyk should not be using that name. The letter was made available to a radio station where Ms. Kulyk had both scheduled an interview and arranged for advertising to be aired. Ms. Kulyk deposes that all of this disrupted her attempt to get things up and running and effectively blocked her efforts to promote and develop her business. [ 21 ] Ms.

Kulyk’s company, Global Healthcare Connections Inc., filed an application to obtain a registered trade-mark for “Global Healthcare Connections” on April 26, 2011. That trade-mark was registered on July 6, 2012. Ms. Wildman caused Weight Loss Forever Ltd. to file a trade-mark application for “Global Healthcare Connection” on June 16, 2011. III. The Queen’s Bench Proceedings [ 22 ] Ms. Kulyk and her company issued a statement of claim on May 9, 2011. It named Ms. Wildman and her company as defendants. The claim itself recounts Ms.

Kulyk’s version of the relevant events, indicates that an application for trade-mark registration has been submitted for “Global Healthcare Connections” and asks for an injunction restraining Ms. Wildman and her company from “carrying on or otherwise claiming to carry on business in association with the trade-mark GLOBAL HEALTHCARE CONNECTION (including any colourable imitation or confusingly similar name, domain name or trade-mark).” The statement of claim also seeks damages based on Ms. Wildman and her company passing their operations off as being associated with Ms. Kulyk’s business. [ 23 ] Ms.

Kulyk and her company then sought an injunction to restrain Ms. Wildman and her company from using Ms. Kulyk’s “Business Name and/or Trademarks in any manner whatsoever” pending trial. [ 24 ] In considering this application, the Chambers judge referred to the analytical framework for granting an injunction which was laid out by this Court in Potash Corp. of Saskatchewan Inc. v. Mosaic Potash Esterhazy Limited Partnership , 2011 SKCA 120 , 341 D.L.R. (4th) 407. He then worked through each of its elements.

In the end, the Chambers judge found that all three of the considerations relevant to the grant of an injunction tipped in Ms. Kulyk’s favour and he issued an injunction on the following terms: 33 The court does hereby order that the plaintiff shall have her interim injunction and it is hereby ordered: (

a) that the defendant, her agents, servants or assigns and 101164027 Saskatchewan Ltd. are restrained from using the plaintiff's business name and/or trademarks in any manner whatsoever; (

b) that the defendant and 101164027 Saskatchewan Ltd. shall cease using and remove all references to the plaintiff's business name and/or trademarks from her websites, facebook page and all other social media sources; (

c) that the plaintiff shall have costs of this application. [ 25 ] I note that, as drafted, the order of the Court relates to the name “Global Healthcare Connections Inc.” (with an “s”) and makes no reference to the use of confusing or similar names. Neither Ms. Wildman nor Ms. Kulyk attempted to make anything of this point and, as a result, I will not do so either. IV. Analysis [ 26 ] Ms. Wildman submits that the Chambers judge made a number of errors in the course of deciding to issue the injunction.

However, before dealing with the merits of the judge’s ruling, it is necessary to confirm both the relevant standard of review and the test to be used in deciding whether to grant an injunction. A. Standard of Review

[27] The standard of review applicable to matters involving interlocutory injunctive relief was described as follows by Jackson J.A. inCulligan Canada Ltd. v. Fettes, 2009 SKCA 144, [2010] 6 W.W.R. 420: 13 As a preliminary matter, it is important to underscore the standard of review to be applied. It has been often said that appellatecourts have a limited role in reviewing the granting of an interim or interlocutory injunction. In that regard, the Supreme Court of Canadahas adopted the deferential approach established by Diplock J. in Hadmor Productions Ltd. v.

Hamilton, [1982] 1 All E.R. 1042 andManitoba (Attorney General) v. Metropolitan Stores Ltd., (SCC), [1987] 1 S.C.R. 110. The reviewing court must notinterfere with a Chambers judge's exercise of discretion merely on the ground that the members of the court would have exercised theirdiscretion differently (Hadmor, at p. 1046; Metropolitan Stores, pp. 154-56).

As the Supreme Court of Canada said recently in Harper v.Canada (Attorney General), 2000 SCC 57, [2000] 2 S.C.R. 764 at p. 777: "[t]o interfere, there must be a clear mistake on the law or theevidence, or some other glaring error." From this Court see also: Canada (Attorney General) v. Saskatchewan Water Corp., (SK CA), [1992] 4 W.W.R. 712 and Govan Local School Board v.

Last Mountain School Division No. 29 (1991), (SK CA), 83 D.L.R. (4th) 685 at p. 690. 14 As Ball J. made clear, his task was not to pass conclusively on the evidence (Culligan, No. 1, para. 15); nor is it our task to do so.Rather, our task is to decide whether these interim conclusions of the Chambers judge reflect error in principle or are otherwise sounreasonable as to demand intervention. This Court might take issue with discrete aspects of his

interpretation of the EmploymentAgreement or his general findings, but the fact remains that this is an interim order, made with a view to maintaining the status quopending a trial, and is of short duration. The decision under review must be viewed in that light. 15 Counsel for the Appellants accepts this standard of review, but, nonetheless submits that this Court is in as good a position as theChambers judge to assess and weigh the evidence.

In keeping with this submission, Counsel asks the Court to look at discrete findings offact made by the Chambers judge and, if error is found with respect to one or more of these findings of fact, submits that the Court canintervene and exercise its own discretion afresh. In my view, the standard of review with respect to interlocutory injunctions does notoperate in this fashion. Leaving aside errors of law, the standard of review with respect to an interlocutory order requires the reviewingcourt to view the granting of the injunction more globally than this.

It would be a rare finding of fact that would vitiate the exercise ofdiscretion in refusing or granting an injunction. B. The Test for Granting an Injunction [28] The test for granting an injunction has recently been examined by this Court in Potash Corp. of Saskatchewan Inc. v. MosaicPotash Esterhazy Limited Partnership, supra.

The governing principles were summarized as follows: 113 In the interest of clarity, it may be useful to recapitulate the basic points which have been developed in the course of thesereasons and to summarize the approach a judge should typically take when deciding whether to grant interlocutory injunctive relief. Thiscan be done as follows: (

a) The judge should normally begin with a preliminary consideration of the strength of the plaintiff's case. The general rule in thisregard is that the plaintiff must demonstrate a serious issue to be tried, i.e.the plaintiff must have a claim which is not frivolous orvexatious. If the plaintiff raises a serious issue to be tried, it is necessary for the judge to turn to the matters of irreparable harm andbalance of convenience. (

b) Irreparable harm is best seen as an aspect of the balance of convenience. The general rule here is that the plaintiff must establishat least a meaningful doubt as to whether the loss he or she might suffer before trial if an injunction is not granted can be compensatedfor, or adequately compensated for, in damages. Put another way, the plaintiff must demonstrate a meaningful risk of irreparable harm. Ifthis is done, the analysis turns to the balance of convenience proper. (

c) The assessment of the balance of convenience is usually the core of the analysis. In this regard, the relative strength of theplaintiff's case, the relative likelihood of irreparable harm, and the likely amount and nature of such harm will typically all be relevantconsiderations. Depending on the particulars of the case, strength in relation to one of these matters might compensate for weakness inanother.

Centrally, the judge must weigh the risk of the irreparable harm the plaintiff is likely to suffer before trial if the injunction is notgranted, and he or she succeeds at trial, against the risk of the irreparable harm the defendant is likely to suffer if the injunction is grantedand he or she prevails at trial. That said, the balance of convenience analysis is compendious. It can accommodate a range of equitableand other considerations. (

d) The judge's ultimate focus in considering whether to grant interlocutory injunctive relief must be on the overall equities andjustice of the situation at hand. 114 I note as well that, although undertakings as to damages have not been examined in this decision, it is well established that, as acondition of obtaining an interlocutory injunction, generally a plaintiff must give to the defendant an undertaking to pay the defendantany damages that the defendant sustains by reason of the injunction, should the plaintiff fail to prevail at trial. C.

The Decision of the Chambers Judge [29] In advance of dealing directly with the analysis of the Chambers judge, it is also necessary to confirm the basis on which Ms.Kulyk’s application for injunctive relief is being presented. This is because it is impossible to apply the test for granting an injunctionunless the legal underpinnings of the case being advanced by the applicant are clearly understood. [30] On reviewing Ms. Kulyk’s Notice of Motion dated June 11, 2012, it is apparent that her claim for an injunction is based on thenotion that the use of the name “Global Healthcare Connection” by Ms.

Wildman and her company amounts to the common law tort of

passing off. Thus, at para. 10 of the Notice of Motion, Ms. Kulyk’s position is expressed as follows: The Plaintiffs/Applicants contend they have a strong prima facie case showing the continued passing off of the Defendant upon thePlaintiff Corporation’s name, trademarks, and goodwill is detrimental to the Plaintiffs/Applicants. [31] I note that the Trade-Marks Act, R.S.C. 1985, c. T-13, creates a statutorily-based claim for passing off and a claim for trade-markinfringement. See: The Trade-Marks Act, ss. 7, 20. However, neither Ms.

Kulyk’s Statement of Claim nor her Notice of Motion makeany reference to that Act or suggest that her claim is rooted in it. As I understand it, Ms. Kulyk and her company rely solely on thecommon law as the foundation of their request for an injunction. [32] This clarification takes the inquiry to the tort of passing off itself. It has three necessary elements: the existence of goodwill,deception of the public due to a misrepresentation, and actual or potential damage to the plaintiff. See: Ciba-Geigy Canada Ltd. v.

ApotexInc., (SCC), [1992] 3 S.C.R. 120 at p. 132. [33] These components were explained by Lord Oliver in Reckitt & Colman Products Ltd. v. Borden Inc., [1990] 1 All E.R. 873 at p.880: The law of passing off can be summarised in one short general proposition, no man may pass off his goods as those of another. Morespecifically, it may be expressed in terms of the elements which the plaintiff in such an action has to prove in order to succeed. These arethree in number.

First, he must establish a goodwill or reputation attached to the goods or services which he supplies in the mind of thepurchasing public by association with the identifying "get-up" (whether it consists simply of a brand name or a trade description, or theindividual features of labelling or packaging) under which his particular goods or services are offered to the public, such that the get-upis recognised by the public as distinctive specifically of the plaintiff's goods or services.

Second, he must demonstrate amisrepresentation by the defendant to the public (whether or not intentional) leading or likely to lead the public to believe that goods orservices offered by him are the goods or services of the plaintiff... .

Third, he must demonstrate that he suffers or, in a quia timet action,that he is likely to suffer damage by reason of the erroneous belief engendered by the defendant's misrepresentation that the source of thedefendant's goods or services is the same as the source of those offered by the plaintiff. [34] With those background points squared away, it is at last possible to deal with the decision of the Chambers judge. He quiteproperly began his analysis of the injunction request with an assessment of the strength of Ms. Kulyk’s case.

He did this under theheading “A serious issue to be tried, i.e. the plaintiff must have a claim which is not frivolous or vexatious” by writing as follows: 19 There is a very serious issue to be tried. 20 Both the plaintiff and the defendant have since mid-2010 been attempting to use the term "Global Healthcare Connections" to theexclusion of the other.

It is important to have the issue finalized as to who in fact has the priority. [35] Three paragraphs later, but under the heading “Irreparable harm”, the Chambers judge again commented on the strength of Ms.Kulyk’s case by saying: 23 The actions of the defendant have the appearance of passing-off. The three components of passing-off are the existence ofgoodwill, the deception of the public due to misrepresentation, and actual or potential damage to the plaintiff. See Ciba-Geigy CanadaLtd. v. Apotex Inc., (SCC), [1992] 3 S.C.R. 120, 143 N.R. 241.

The acts of passing-off are even stronger now with theregistration of the plaintiff's trademark. [36] With respect, I am unable to accept this analysis. As noted, the first required element of the tort of passing off is goodwill attachedto the goods or services of the plaintiff. Goodwill is a concept which, in effect, refers to the reputation of a business or product. TheSupreme Court’s comments in Parke, Davis & Co. v. Empire Laboratories Ltd., (SCC), [1964] S.C.R. 351 at p. 358 areinstructive in this regard: What is it necessary for a trader who is plaintiff in a passing off action to establish?

It seems to me that in the first place, he must,in order to succeed, establish that he has selected a peculiar -- a novel -- design as a distinguishing feature of his goods and that his goodsare known in the market, and have acquired a reputation in the market by reason of that distinguishing feature, and that unless heestablishes that, the very foundation of his case fails. [J.B. Williams Company v. H. Bronnley & Company (1909), 26 R.P.C. 765 at 771] See also: Veuve Clicquot Ponsardin v. Boutiques Clickuot Ltée, 2006 SCC 23, [2006] 1 S.C.R. 824 at para. 50. [37] In this case, Ms.

Kulyk has not put forward any evidence to establish the existence of reputation or goodwill associated with“Global Healthcare Connections”. Her affidavit refers to the various steps that she has taken to launch her business – opening bankaccounts, arranging for insurance, obtaining a business number from Canada Revenue Agency and so forth – but there is nothing in therecord which suggests or establishes that “Global Healthcare Connections” has a presence of any kind in the marketplace. Indeed, one ofthe themes of Ms.

Kulyk’s affidavit is that she has been wholly unable to launch her business or to build any sort of profile or presencefor it. For example, she says the March 29, 2011 letter from Ms.

Wildman’s lawyer derailed her planned advertising campaign at its“inception” and that she has been unable to establish “a reliable presence on social media sites or the internet in general.” Simply put,there is nothing in the record which in any way establishes the “goodwill” component of passing off or, to go even further, whichsuggests the reasonable possibility of there being any goodwill associated with the name “Global Healthcare Connections.” [38] As a result, I find it unnecessary to consider the other two components of the tort of passing off – misrepresentation and damage.

Ms. Kulyk’s failure to establish any basis for the existence of goodwill necessarily means that the strength of her case, for present purposes at any rate, is fatally weak. [ 39 ] The second matter dealt with by the Chambers judge in his consideration of the request by Ms. Kulyk and her company for an injunction was “irreparable harm”. In this regard he wrote as follows: 22 It is difficult for the plaintiff to establish the amount of damage she has suffered by failing to be able to advertise in the local media because of the actions of the defendant.

As well, it is apparent that if actions [taken] by the defendant continue to trial that there may at that point be a risk of irreparable harm to which the plaintiff's business efforts may not be able to recover. . . . 25 It is apparent that the plaintiff has suffered loss of business and goodwill as a result of the actions of the defendant in attempting to thwart her advertising campaign. [ 40 ] I have concerns about this analysis too because, in my respectful view, a distinction must be drawn between the harm caused to Ms. Kulyk’s business by Ms.

Wildman’s use of the name “Global Healthcare Connection” and the harm caused to her business by Ms. Wildman’s attempts to dissuade the media and Facebook from carrying her promotional material. It is by no means clear that, absent Ms. Wildman’s apparently successful efforts to disrupt and block Ms. Kulyk’s planned advertising, her mere presence in the market under the name “Global Healthcare Connection” would have occasioned Ms. Kulyk and her company any loss.

I suspect that, to the extent “Global Healthcare Connection” and “Global Healthcare Connections” are susceptible of being confused – and obviously they are – Ms. Kulyk’s business would benefit , at least in the short run, from any such confusion more than it would be harmed by it. This is because Ms. Wildman’s business appears to have some established profile and, as the new arrival on the scene, Ms. Kulyk’s enterprise would presumably be able to take advantage of Ms. Wildman’s goodwill, rather than vice versa . [ 41 ] This takes the analysis to the “balance of convenience”.

The Chambers judge assessed it as follows: 29 The defendant has been using the websites since June of 2010. This use is solely to transfer communications to the Weight Loss Forever website.

This action has continued in spite of requests and demands by the plaintiff to discontinue such actions and to transfer the sites to her. 30 The plaintiff, on the other hand has shown all the actions of someone starting a new business venture under the name, Global Healthcare Connections Inc. 31 The balance of convenience is very much in favour of the plaintiff. [ 42 ] In my view, this line of thinking does not reflect, at the level of principle, a proper appreciation of the factors to be considered in an assessment of the balance of convenience.

The requisite analysis is “compendious” and can “accommodate a range of equitable and other considerations”. See: Potash Corp. of Saskatchewan Inc. v. Mosaic Potash Esterhazy Limited Partnership , supra at para. 113 . However, the strength of Ms. Kulyk’s case and the relative likelihood of irreparable harm as between her and Ms. Wildman are necessarily central considerations in this regard. [ 43 ] The Chambers judge appears not to have considered the strength of Ms. Kulyk’s case when he assessed the balance of convenience.

Further, as explained, his reasons for decision suggest that he did not take account of the question of irreparable harm. All of this is significant because Ms. Wildman’s counter-claim against Ms. Kulyk for passing off, on the face of it, has as much or more merit as does Ms. Kulyk’s claim. Not only that but, again on the face of things, Ms. Wildman (because she has something of an established business) faced as much or more risk of irreparable harm if the injunction was granted than Ms.

Kulyk faced if the injunction was denied. [ 44 ] In my respectful opinion, and notwithstanding the deferential standard of review which applies here, the decision of the Chambers judge cannot stand. When all of the relevant considerations are taken into account, the balance of convenience is in Ms. Wildman’s favour. V. Conclusion [ 45 ] I conclude, for the reasons set out above, that this appeal must be allowed. Ms. Wildman and her company are entitled to one set of costs.

DATED at the City of Regina, in the Province of Saskatchewan, this 21 st day of May, A.D. 2013. ___ “Richards J.A.” ____________________ Richards J.A.

I concur ____ “Cameron J.A.” ___________________ Cameron J.A. I concur ____ “Caldwell J.A.” ___________________ Caldwell J.A.