Author: Dean Crawford, KC

Supreme Court of Canada Eliminates “Waiver of Tort” as a Cause of Action, Restrains Use of Disgorgement Remedy in Breach of Contract Cases

October 2, 2020 Topics: Blog, Disgorgement of Profits
Atlantic Lottery Corp. Inc. v. Babstock, 2020 SCC 19 The Supreme Court of Canada has reined in novel uses of the disgorgement remedy in ways that will narrow its availability in employee competition cases. The Court held that disgorgement is not available as a remedy for “waiver of tort”, as the…
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Courts Differ on Standard to Establish Fiduciary Status in Applications to Restrain Solicitation of Clients

Capital Direct Lending Corp. v. Blanchette, 2019 BCSC 1068; Brian L. Leipert Financial Services Ltd. v. Reiter, 2019 SKQB 310 Courts in BC and Saskatchewan come to opposite conclusions on whether the strong prima facie case threshold is applicable to establishing breach of fiduciary duty in claims for injunctive relief to prevent solicitation…
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Employer’s Aggressive Fight for Clients Backfires, Court Awards Damages for Defamation of Departed Employee

January 22, 2020 Topics: Blog, Defamation
Alberta v. Thibert, 2019 ABQB 964 The Alberta Court of Queen’s Bench awards $60,000 in damages against an employer that defamed its former employee while attempting to dissuade the local business community from doing business with him. One of the first byproducts of a key employee’s departure often is…
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Is Consideration Still Necessary to Enforce Restrictive Covenants? A Consideration of the British Columbia Court of Appeal’s Decision in Rosas v. Toca

The British Columbia Court of Appeal radically altered the law of consideration last year in Rosas v. Toca. The Court held that, absent duress, unconscionability or other public policy concerns, a mid-contract variation will be enforceable as long as the parties agree to the variation. Against Rosas stand judicial presumptions of an inequality…
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Court Rejects Plea for Disgorgement of Profits, Despite Finding Departing Physicians Breached Fiduciary Duty and Duty of Confidence

Genesis Fertility Centre Inc. v. Yuzpe, 2019 BCSC 233 A decision of the British Columbia Supreme Court rejects a claim for disgorgement of profits, even though the Defendants committed breaches of fiduciary duty and confidence. The decision is a reminder that, in employee competition cases, the courts will be mindful…
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Former Telus Executive Escapes Non-Compete due to “Overzealous Drafting”, but Rebuked for Pursuing Termination Payment while Negotiating New Employment with Competitor

Telus Communications Inc. v. Golberg, 2018 BCSC 1825 A battle between corporate titans Telus Communications and Rogers Media highlights the danger of “overzealous drafting” of restrictive covenants, which enabled a former Telus executive to compete against his former employer. At the same time, the Supreme Court of British Columbia rebukes…
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Employee’s Non-Competition Covenant Attached to Share Purchase Attracts Rigorous Interpretation.

961945 Alberta Ltd (Servicemaster of Edmonton Disaster Restoration) v Meyer, 2018 ABQB 564, 2018 ABQB 564 The Alberta Court of Queen’s Bench holds that even where the evidence did not support an imbalance of bargaining power, the more rigorous approach to interpreting restrictive covenants was warranted in respect of a…
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Valuable Employee? Yes. Fiduciary Employee? Not So Much.

June 19, 2018 Topics: Blog, Breach of Fiduciary Duty
Jetco Heavy Duty Lighting v. Fonteyne, 2018 ABQB 345 The Alberta Court of Queen’s Bench cautions against conflating a valuable employee with a fiduciary employee, given the onerous obligations placed on fiduciaries. The decision underscores the importance of securing a reasonable restrictive covenant if an employer wishes to protect its…
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The Perils in Drafting Restrictive Covenants and the Importance of Context

Ceridian Dayforce Corporation v. Daniel Wright (2017 ONSC 6763),853947 B.C. Ltd. v. Source Office Furniture & Systems Ltd. (2016 BCSC 2233) A recent decision of the Ontario Superior Court of Justice refusing to enforce a non-competition clause highlights the many ways in which the drafter of a restrictive covenant can go too…
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Less is More – “Loyalty Incentives” Upheld

Canada’s big five banks and the financial planning industry will benefit by paying close attention to the difference between a “loyalty incentive” and a restraint of trade, as canvassed thoroughly by the Ontario Superior Court in Levinsky v. The Toronto-Dominion Bank, 2013 ONSC 5657. Levinsky, a managing director with TD Securities Inc.,…
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