In this matter before the Court of Appeal of Alberta, Spence
Corrosion Services Ltd. and Norman Spence brought two appeals from
an interlocutory injunction and from a finding of contempt. The
individual appellant had been employed by the respondents for 22
months. In September 2010, the appellant left to set up his own
company, competing directly with the respondents and obtaining
contracts from the respondent's customers, as well as employing
former co-employees. There was also evidence that the appellant
made use of confidential proprietary information.
With regard to the interlocutory injunction, the appellant's
contract with the second respondent, Fuller Industrial Corporation,
contained non-competition and non-solicitation covenants. These had
been modified by the parties, and the appellants argued that the
uncertainty of the effective time period made the covenant
unenforceable. While the statement of claim was issued in March
2011, and served along with the application for the interlocutory
injunction, this application was not heard until February 2012,
with the injunction granted in March 2012. The Court of Appeal
found the basis for issuing the injunction unclear, including
uncertainty over the time period, the evidence of the former
co-employees, and the use and return of the confidential
The Court of Appeal referenced the established three-part test
for granting an injunction in their decision to allow the appeal.
They found no satisfactory evidence of irreparable harm, and the
effective 6 month shutdown of the appellant's business
outweighed the balance of convenience. It was held that the parties
be left to remedies in damages to be calculated at the conclusion
of the claim and counterclaim.
The second appeal was against a finding of contempt against the
individual appellant. When leaving the employment of the
respondents, the appellant had taken with him a manual in
electronic form. This had been used to create a physical manual,
and it is this that the respondents had requested be returned. The
appellant sent a modified copy to a third party, before deleting
the original. The third party then sent this modified copy to a
representative of the respondents, and this was later attached to a
request for an order preventing the destruction of documents. There
is also evidence that the appellant contacted the Third Party and
encouraged him to destroy the copy of the manual.
Previously, the chambers judge ordered that the appellant pay
the cost of the application on a full indemnity basis, and also
ordered a full computer forensic investigation. The Court of Appeal
found that there was no error in the finding of contempt, however
allowed the appeal in part, ruling that the remedy of the full
forensic investigation be deleted. There was no evidence of the
destruction of any other document, and the cost of such an
investigation was unwarranted at this stage.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
To print this article, all you need is to be registered on Mondaq.com.
Click to Login as an existing user or Register so you can print this article.
The prospect of an internal investigation raises many thorny issues. This presentation will canvass some of the potential triggering events, and discuss how to structure an investigation, retain forensic assistance and manage the inevitable ethical issues that will arise.
From the boardroom to the shop floor, effective organizations recognize the value of having a diverse workplace. This presentation will explore effective strategies to promote diversity, defeat bias and encourage a broader community outlook.
Staying local but going global presents its challenges. Gowling WLG lawyers offer an international roundtable on doing business in the U.K., France, Germany, China and Russia. This three-hour session will videoconference in lawyers from around the world to discuss business and intellectual property hurdles.
It's not often that our little blog intersects with such titanic struggles as the U.S. presidential race – and by using the term "titanic" I certainly don't mean to suggest that anything disastrous is in the future.
J.J. v. C.C., is an interesting case in which the court held that an automotive garage owes a duty to minor children to secure the vehicles on the premises by locking the cars and safely storing the car keys...
In Irwin v. Alberta Veterinary Medical Association, 2015 ABCA 396, the Alberta Court of Appeal found that the "ABVMA" failed to afford procedural fairness to a veterinarian undergoing an incapacity assessment.
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).