In this case, Mr. Foresta had been employed by Optilinx as the
project manager of its fiber optic division. He was not an owner,
officer or director of the company and he was not bound by any
non-competition or non-solicitation agreement. He was not involved
in management at a senior level. However, he was regarded by the
company as a key employee and, in fact, he was its highest paid
staff employee when he resigned in August 2014 after 12 years of
The company's customers were major Canadian
telecommunications companies such as Bell Canada and Rogers. It did
not have exclusive contracts with its customers and it competed for
their business against other fiber optic cable companies. Mr.
Foresta was the company's main but not its exclusive
salesperson with its customers, reporting directly to the
In the months before his departure, he indicated to other
employees in confidence that he was planning to leave and start his
own business that would compete with the company. He suggested to
them that they would be welcome to join him in the new business and
that they should seriously consider doing so because his departure
would imperil the company's business success.
In the summer of 2014, he incorporated his own company and
obtained $300,000 in financing. He then resigned. Shortly
afterwards, four other company employees resigned to join him.
After his departure, he re-entered the fiber optic cable
business through his new company.
Optilinx's case against Mr. Foresta was that he was no
ordinary employee, but rather a key employee owing fiduciary duties
to his employer. The company sought an injunction to stop Mr.
Foresta from doing business with several of the company's
To the court, however, while Mr. Foresta may have been a very
important and productive employee, and even the lynchpin to the
company's success, he was not an owner, director, shareholder
or a member of management. His importance as an employee did not
mean that he was a fiduciary. In this case, the company was unable
to establish a sufficiently strong case that Mr. Foresta occupied
the position of a fiduciary.
As the court noted, there is nothing to prevent an ordinary
employee from terminating his employment, at which point that
employee is free to compete with his former employer unless there
exists a contract preventing him to do so. On the other hand, a
fiduciary occupies a position of loyalty and trust and is not
permitted to allow his own self-interest to conflict with those
duties. However, even a fiduciary who terminates his employment is
entitled to accept business from former clients, although a
fiduciary may not directly solicit business from former clients. In
this case, even if Mr. Foresta did have fiduciary responsibilities,
there was no evidence that he had actively solicited business from
the company's customers.
The situation would have been different had there been evidence
that Mr. Foresta had taken confidential information such as
customer lists, or stolen trade secrets, from his employer. That
type of conduct is unlawful and the court will step in, in those
circumstances. However, as this case reminds us, where the
departing employee is not a fiduciary, the rules are very
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Unfortunately, reasonable accommodation for employees in the workplace continues to be the source of significant litigation and even today we continue to see outrageous examples of employers behaving badly.
We are now beginning to see reported cases involving charges and subsequent fines laid against employers for failing to provide information, instruction and supervision to protect a worker from workplace violence.
On October 13, 2016, the Supreme Court of Canada denied leave to appeal an Ontario Court of Appeal decision which ordered an employer to pay a former employee 37 months of salary and benefits following termination.
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