COURT OF APPEAL FOR BRITISH COLUMBIA

Citation:

Edward Jones v. Voldeng,

 

2012 BCCA 295

Date: 20120703

Docket: CA039848

Between:

Edward Jones

Respondent

(Plaintiff)

And

Randy Voldeng, Brenda Jarvis and RBC Dominion Securities Inc.

Appellants

(Defendants)

Before:

The Honourable Mr. Justice Chiasson

The Honourable Madam Justice D. Smith

The Honourable Madam Justice Neilson

On appeal from:  Supreme Court of British Columbia, April 3, 2012
(Edward Jones v. Voldeng, 2012 BCSC 497, Vancouver Docket S122150)

Counsel for the Appellants:

J. Forstrom

Counsel for the Respondent:

V. Dixon

Place and Date of Hearing:

Vancouver, British Columbia

May 22, 2012

Place and Date of Judgment:

Vancouver, British Columbia

July 3, 2012

 

Written Reasons by:

The Honourable Mr. Justice Chiasson

Concurred in by:

The Honourable Madam Justice D. Smith
The Honourable Madam Justice Neilson

 

 


 

Reasons for Judgment of the Honourable Mr. Justice Chiasson:

Introduction

[1]             This appeal considers the application of the criteria for granting an interlocutory injunction in the context of a restrictive covenant prohibiting solicitation included in the employment contract of an investment advisor.

Background

[2]             The respondent is a national brokerage firm with approximately 600 offices across Canada.  It has five or six offices in the Greater Victoria, British Columbia area. RBC Dominion Securities Inc. (“RBC”) is a competitor.

[3]             Mr. Voldeng was employed for ten years as an investment advisor in the Oak Bay, British Columbia office of the respondent.  Ms. Jarvis was his assistant.  On March 12, 2012, they both left the respondent’s employment and began to work for RBC.

[4]             When he joined the respondent in 2002, Mr. Voldeng signed an employment agreement containing the following restrictive covenant:

For a period of six months following the termination of this Agreement, you will not directly or indirectly solicit sales ... to or from any customer of Edward Jones or otherwise induce any said customer of Edward Jones to terminate his/her relationship with Edward Jones, if you contacted or deal with such customer during the course of, or by reason of, your employment with Edward Jones. ... It is understood and agreed that the identities of and information concerning the customers of Edward Jones are confidential information, constitute a trade secret, and are the sole and exclusive property of Edward Jones.

[5]             Before leaving the respondent’s employment, either or both of Mr. Voldeng and Ms. Jarvis copied certain records at the respondent’s office.  On March 13, 2012, after leaving the respondent’s employment, Mr. Voldeng called a number of his clients and sent the following e-mail to a number of them:

Good Morning,

I have some very exciting news.  After much due diligence and careful consideration, I’ve decided to leave Edward Jones.

I’ve enjoyed my association with Edward Jones however, in future, I know I can better meet the needs of clients as a member of RBC Dominion Securities (RBCDS). I intend to remain in this business for many more years and strongly believe that the products, tools and resources available through RBCDS will allow me to provide even better solutions and assistance for clients.  I’m also very delighted that my invaluable assistant, Brenda Jarvis, will be joining me at RBCDS to help move my practice to the next level of client service excellence.

A lot has changed in the financial markets over the past few years and I believe that now, more than ever, it is important to have access to all the necessary tools and resources to help clients meet the challenges ahead.

This change is effective immediately and Brenda and I are both now employees of RBCDS.  When one leaves to join a competitor, it is standard practice in our industry that the change be effected immediately.  I’m leaving on very good terms with Edward Jones.

I will call you personally in the next few days to answer any questions and address any concerns you may have.  I apologize for the lack of notice however my agreement with Edward Jones did not permit me to provide notice in advance.

No changes are required on your accounts or asset allocation at this time so please don’t worry.  I look forward to speaking with you soon.

[Emphasis in original.]

[6]             At the time of his departure, Mr. Voldeng managed accounts totalling approximately $46 million.  By March 23, 2012, accounts valued at approximately $4 million had transferred to RBC.  As of April 13, 2012, this sum had increased to approximately $20.2 million.

[7]             This action was commenced on March 23, 2012.  The respondent’s application on short leave for an interlocutory injunction was heard on March 28, 2012.  On April 3, 2012 the following order was pronounced:

1.         The Plaintiff, Edward Jones, is entitled to an interlocutory injunction on the following terms:

(a)        Subject to Paragraph 2, the Defendant Randy Voldeng (“Voldeng”) is restrained and enjoined from directly or indirectly soliciting sales of securities and/or insurance business to or from any client of the plaintiff, or otherwise inducing any client to terminate his or her relationship with the Plaintiff, which Voldeng

(i)         contacted during the course of or by reason of his employment with the Plaintiff;

(ii)        dealt with during the course of or reason of his employment with the Plaintiff; or

(iii)       learned the identity of by reason of his employment with the Plaintiff;

until September 12, 2012, or the conclusion of this action, whichever comes first.

2.         Voldeng is not entitled to initiate any contact with any client as described in paragraph 1 herein but if any such client contacts him, Voldeng is entitled to respond to factual questions and carry out instructions but he is not entitled to promote the benefits of the Defendant RBC Dominion Securities Inc. ("RBC") in any manner that can be interpreted as soliciting or enticing the client to move his or her account from the Plaintiff to RBC.

3.         All Defendants are restrained and enjoined from directly or indirectly using, copying, disclosing or conveying to others any information not made available to the public which Voldeng or the Defendant Brenda Jarvis (“Jarvis”) learned of or acquired during their employment with the Plaintiff, including but not limited to, account records, customer statements and files, manuals, forms, customer lists, customer contact information not otherwise available to the public, trade secrets, or any other private and confidential information pertaining to the Plaintiff and its clients.

4.         Voldeng and Jarvis shall forthwith return to the Plaintiff all confidential information described in paragraph 3 herein, if any, either in their possession or control.

The chambers judgment

[8]             Concerning Mr. Voldeng’s pre-departure activities, the judge stated at para. 10:

There is evidence that Ms. Jarvis printed a number of documents containing confidential information in the days and weeks before the resignations.  One print report shows that Ms. Jarvis printed 31 lists between February 16 and March 11, 2012, which contained information about more than 800 of the plaintiff’s clients who had been serviced by Mr. Voldeng, and many more prospective clients.  The documents printed on March 11 were “living in retirement” plans which had been prepared by Mr. Voldeng for individual clients of the plaintiff.

[9]             She set out the positions of Mr. Voldeng and Ms. Jarvis as follows at paras. 12-13:

Mr. Voldeng says that he is aware that he owes certain duties to Edward Jones but also believes that he owes continuing duties to the clients who he brought to the firm, some of whom are friends.  He says that he wanted to make sure these people knew he had resigned from Edward Jones and was well and working for another dealer.  He believes that these clients are entitled to receive accurate information about his departure and his future plans so they can make an informed decision about where they want to obtain investment advice.  He denies that the actions he took constituted solicitation within the meaning of his employment agreement and says he took no documents with him when he left Edward Jones.  He admits that the “living in retirement” plans were printed but were sent to clients before he left to ensure that they had up-to-date copies, which would be useful to them in their future financial planning however they chose to proceed.  He says that he prepared a list of clients after his employment ended without using any of the plaintiff’s records.

Ms. Jarvis says only that she did not take any records of client information or any other records belonging to Edward Jones and denies that she has had any such records in her possession at any time since.

[10]         The judge discussed the test for an injunction in the circumstances of this case at paras. 14–17:

It is well known that an applicant seeking an injunction must demonstrate three things: (a) there is a serious question to be tried; (b) the applicant will suffer irreparable harm if the injunction is not granted; and (c) the balance of convenience favours granting the injunction: RJR-MacDonald Inc. v Canada (Attorney General), [1994] 1 SCR 311; see also British Columbia (Attorney General) v Wale (1986), 9 BCLR (2d) 333 (CA), aff’d [1991] 1 SCR 62.

In determining the first question, whether there is a serious question to be tried, the court does not normally do an extensive review of the merits but there are exceptions to this.  One of those exceptions applies where the result of an interlocutory application will, in effect, amount to a final determination of the action.  This is the case where the right the applicant seeks to protect can only be exercised immediately, or where the applicant seeks to enforce a restrictive covenant that inhibits a person’s ability to earn a living.  In the latter case, an injunction enforcing a restrictive covenant would effectively be a final determination on the enforceability of such a provision.

In such circumstances, the court must do a more extensive review of the merits and the applicant must show a strong prima facie case: see RJR-MacDonald at 339; Phoenix Restorations Ltd. v Brownlee, 2010 BCSC 1749; 6180 Fraser Holdings Inc. v Ali, 2012 BCSC 247.

The position of the plaintiff, with which I agree, is that it must show a strong prima facie case against Mr. Voldeng in respect of the non-solicitation provision, but with respect to the remaining relief sought regarding the use and retention of confidential information, the standard test applies and a prolonged examination of the merits is not necessary.

[11]         As the judge noted, counsel for Mr. Voldeng conceded, “for the purpose of this application only, that the [respondent] has made out an arguable case that the non-solicitation provision is enforceable” (para. 20).  The judge agreed with the respondent’s submission that there was a strong prima facie case that the non-solicitation provision was reasonable and enforceable.  She also was satisfied that the respondent had “established a strong prima facie case that Mr. Voldeng’s conduct constituted solicitation within the meaning” of the non-solicitation provision.

[12]         After reviewing the evidence and applicable law, the judge concluded at para. 41 that:

... there is a serious question to be tried, both with respect to the non-solicitation provision and the use and possible retention of confidential information within the possession or control of Mr. Voldeng and Ms. Jarvis.

[13]         The judge then turned to irreparable harm.  After noting three Ontario cases to which she had been referred by the appellants, where courts did not consider that similar circumstances would lead to irreparable harm, the judge stated at paras. 46–49:

A different approach has been taken in British Columbia.  In both [6180 Fraser Holdings Inc. v. Ali, 2012 BCSC 247] and MD Management Limited v Dhut, 2004 BCSC 513, the Court was persuaded that damages may not be an adequate remedy for a breach of a non-solicitation covenant on the basis that it would be extremely difficult for the plaintiffs to separate damages for loss of business caused by the breach from those resulting from normal, fair competition.

I agree with the defendants that the number of lost clients and lost asset value will not be difficult to quantify but that does not address the difficulty of determining the amount lost due to Mr. Voldeng’s solicitations.  In my view, this is the essence of why “permanent market loss” is an example of harm that may be irrevocable.  I agree with the comments of Groberman J. (as he then was) in Dhut at para. 42, that if the plaintiff succeeds at trial, “it will be virtually impossible to unscramble the egg and determine how much the plaintiff lost as a result of violations of the agreement.”

On this basis, I am satisfied that damages may not be an adequate remedy for the alleged breach of the non-solicitation provision and the plaintiff has established irreparable harm.

There may also be irreparable harm to the plaintiff’s reputation as well as to the integrity of its process for maintaining confidential information. These issues are not well defined and there is no evidence that any clients have complained about being contacted by a person outside of its operations (as was the case in Dhut), but assuming the defendants have copied and used such information, I am satisfied that the plaintiff will suffer irreparable harm, as such damages are not readily quantifiable.

[14]         The judge then turned to the balance of convenience, stating at paras. 53–55:

I accept that an injunction will interfere with Mr. Voldeng’s ability to contact his former clients and that this may result in irreparable harm to him. However, the refusal of an injunction will deprive the plaintiff of the only effective remedy for Mr. Voldeng’s alleged breach of the non-solicitation provision in his employment agreement.  Clearly, in this industry, the issue of client solicitation following termination of employment is a significant one.  Mr. Voldeng is free to carry on his business and compete within the existing market but a refusal to grant an injunction may result in a permanent loss of business by the plaintiff.  In my view, the balance of convenience favours the plaintiff.

That said, an injunction cannot extend to prevent Mr. Voldeng from having any contact with his former clients.  Those individuals, who have been given his contact information, are free to contact him.  If they do, Mr. Voldeng is entitled to respond to factual questions and carry out instructions should they choose to move their accounts.  He is not entitled to promote the benefits of RBC in any manner that can be interpreted as soliciting or enticing a client to move his or her account from the plaintiff to RBC. He is not entitled to initiate any contact with a former client.

With respect to the injunction regarding the use and return of confidential information, the balance of convenience also favours the plaintiff.  If neither Mr. Voldeng nor Ms. Jarvis are in possession or control of any documents containing confidential information about the plaintiff’s clients, then nothing will need to be done.  If they find any documents, they are not entitled to use any confidential information and the plaintiff is entitled to their return.

Positions of the parties

[15]         The appellants allege five errors by the chambers judge:

(a)        The Chambers Judge erred in principle in finding that the apprehended injury to the Plaintiffs constitutes irreparable harm;

(b)        The Chambers Judge erred in principle in concluding that the balance of convenience favours the Plaintiff;

(c)        The Chambers Judge erred in law in concluding that the approach to analyzing these issues is different in British Columbia than in other Canadian jurisdictions;

(d)        Further, or in the alternative, the Chambers Judge exceeded her jurisdiction by granting an injunction which prohibits conduct which is permissible under the terms of the agreement between the parties; and

(e)        Further, or in the alternative, the Chambers Judge misapprehended the evidence respecting the circumstances and effect of her order.

[16]         The first three grounds involve issues of the law governing interlocutory injunctions.  The latter two concern the scope of the judge’s order.

[17]         The respondent asserts that the judge did not err in her application of the law governing interlocutory orders.  It contends that the appellants attach an overly broad meaning to the second paragraph of the judge’s order or, in the alternative, suggests that it could be amended to ensure that the appellants are entitled to communicate Mr. Voldeng’s new contact particulars to his former clients.  The appellants rely on fresh evidence to support their contention that the judge misapprehended the evidence and the respondent opposes its admission.  This evidence deals with the extent of communications Mr. Voldeng had with his former clients.

Discussion

General observation

[18]         It is important to put the present application into context.

[19]         In Tracy Instaloans Financial Solutions Centres (B.C.) Ltd., 2007 BCCA 481, 246 B.C.A.C. 296, Madam Justice Saunders provided a helpful discussion of the law relating to interlocutory injunctions at paras. 30-33:

I start with a brief review of the law relating to interlocutory injunctions of the usual sort.  In B.C. (A.G.) v. Wale (1986), 9 B.C.L.R. (2d) 333, [1987] 2 W.W.R. 331 (C.A.), aff’d [1991] 1 S.C.R. 62, McLachlin J.A. described the traditional test in British Columbia for the granting of an interlocutory injunction as two-part:  (i) is there a fair question to be tried, and (ii) does the balance of convenience favour the granting of an injunction?  She then said as to a three-part test at p. 345:

The decision in Amer. Cyanamid Co. v. Ethicon Limited [1975] A.C. 396, … (H.L.), may be read as suggesting a three-stage test for the granting of interlocutory injunctions rather than the two-stage test to which I have referred, the requirements being (1) a fair question to be tried, (2) irreparable harm, and (3) balance of convenience favouring the injunction. While I prefer to view the requirement of irreparable harm as integral to the assessment of the balance of convenience between the parties, the practical effect of the two approaches is the same.

Madam Justice McLachlin described the essential question at p. 346:

Having set out the usual procedure to be followed in determining whether to grant an interlocutory injunction, it is important to emphasize that the judge must not allow himself to become the prisoner of a formula. The fundamental question in each case is whether the granting of an injunction is just and equitable in all the circumstances of the case. Professor Sharp warns against the danger of insisting on slavish adherence to precise formulae in Injunctions and Specific Performance (1983), at paras. 186-89:

The terms “irreparable harm”, “status quo”, “balance of convenience” do not have a precise meaning. They are more properly seen as guides which take colour and definition in the circumstances of each case. More importantly, they ought not to be seen as separate, watertight categories. These factors relate to each other, and strength on one part of the test ought to be permitted to compensate for weakness on another. It is not clear that the Cyanamid approach allows for this, and the decision suggests a misleading mechanical approach. The Manitoba Court of Appeal [in Lambair Ltd. v. Aero Trades (Western) Ltd. (1978), 87 D.L.R. (3d) 500, leave to appeal to the S.C.C. refused October 4, 1978] has quite properly held that “it is not necessary ... to follow the consecutive steps set out in the American Cyanamid judgment in an inflexible way; nor is it necessary to treat the relative strength of each party's case only as a last step in the process.”

The traditional “checklist” approach permits the individual judge to analyze all the factors coherently. It does not, however, require him to do so, and the flexibility, which permits one judge to weigh and balance the risk accurately, allows another to depart from the central question and allows for uncertainty and unevenness in approach. The checklist does not specifically relate the factors to one another, and while it provides a valuable guide in coming to the proper result, it has failed to articulate clearly an appropriate overall approach.

Treating the checklist as a “multi-requisite test” will often produce results which do not reflect the balance of risks and do not minimize the risk of non-compensable harm....

The checklist of factors which the courts have developed - relative strength of the case, irreparable harm, and balance of convenience - should not be employed as a series of independent hurdles.  They should be seen in the nature of evidence relative to the central issue of assessing the relative risks of harm to the parties from granting or withholding interlocutory relief.

[Emphasis added by Saunders J.A.]

Some months after this Court's decision in B.C. (A.G.) v. Wale, the Supreme Court of Canada in Manitoba (Attorney General) v. Metropolitan Stores Ltd., [1987] 1 S.C.R. 110, 38 D.L.R. (4th) 321 used the three-part test: (i) is there a serious question to be tried, (ii) is there irreparable harm, (iii) does the balance of convenience favour the injunction?  This approach was affirmed in RJR-MacDonald Inc. v. Canada (Attorney General), [1994] 1 S.C.R. 311, 111 D.L.R. (4th) 385.

The articulation of the criteria set out in B.C. (A.G.) v. Wale is often followed in British Columbia; for example, Canadian Broadcasting Corp. v. CKPG Television Ltd., [1992] 3 W.W.R. 219, 64 B.C.L.R. (2d) 96 (C.A.), and was not disapproved by the Supreme Court of Canada when B.C. (A.G.) v. Wale was before it in 1991.  However, the three-part test of Metropolitan Stores also has application.  In all of this, the caution expressed by Professor Sharp and noted by McLachlin J.A., that there is danger in slavish adherence to precise formulation, must be remembered.  This is because the criteria are only a judicial expression or explanation of the statutory authority for injunctions in s. 39(1) of the Law and Equity Act, R.S.B.C. 1996, c. 253:

39(1)    An injunction or an order in the nature of mandamus may be granted or a receiver or receiver manager appointed by an interlocutory order of the court in all cases in which it appears to the court to be just or convenient that the order should be made.

[Emphasis added by Saunders J.A.]

[20]         To like effect on the issue of the application of the three-prong or two-prong tests are the comments of Mr. Justice K. Smith in Onkea Interactive Ltd. v. Smith, 2006 BCCA 521, 232 B.C.A.C. 226 at paras. 9 and 10. 

[21]         I observe that pursuant to the agreement between Mr. Voldeng and the respondent, the governing law is the law of Ontario and that the agreement contains an arbitration clause.  Neither of these provisions was discussed by the parties and I make no comment on them other than to observe that a choice of law provision might have relevance to the enforceability of a covenant and an arbitration provision might have relevance to the balance of convenience.

[22]         The analysis at the chambers hearing and the arguments in this Court followed the approach of assessing each of the three components of the test articulated in RJR-MacDonald.  The appellants accepted the judge’s conclusion that there is a serious question to be tried, but reserved the right to assert otherwise at trial.  As noted, their principal quarrel is with the judge’s conclusion that there would be irreparable harm.  They rely on public policy considerations that are engaged in the relationship between an investment advisor and his or her clients.  The respondent places emphasis on the existence of a negative covenant.  In my view, none of these factors are determinative.  All are part of the context that must be considered in the exercise of discretion whether to issue an interlocutory injunction.  The so-called unique features of this case, that is, that it involves an investment advisor and the presence of a negative covenant, must be assessed applying the analytical approach mandated by this Court and the Supreme Court of Canada. 

[23]         In rejecting a rigid approach to a negative covenant, Mr. Justice Low stated in Belron Canada Inc. v. TCG International Inc., 2009 BCCA 577, 279 B.C.A.C. 142 at para. 22:

... [T]his area of law would not be well served by formulating a rule, as suggested by Belron, that the injunction should always be granted absent exceptional circumstances.  The questions of irreparable harm and balance of convenience should be addressed.  Each motion for an interim injunction should be determined on a discretionary basis under the three-part test.  On the present state of the law, there is no basis for holding that the test is not of general application.

[24]          Accepting the caution to avoid rigid compartmentalization, but recognizing that the components of the analysis require consideration, I shall address irreparable harm because, in my view, seldom will an interlocutory injunction be issued when there is no irreparable harm.  The existence and extent of potential irreparable harm must be weighed in the balance of convenience analysis.  At the end of the day, the relative positions of the parties overall will carry the day.

Irreparable harm

[25]         It is appropriate to begin with the definition of irreparable harm.  Justice K. Smith addressed this issue in Onkea, stating at para. 18:

Irreparable harm is of two types. First, there is harm that cannot be quantified in monetary terms, such as permanent market loss or irrevocable damage to business reputation. Second, there is harm that cannot be compensated: for example, because an award of damages will not be collectible: see RJR-MacDonald Inc. v. Canada (Attorney-General), supra, at 341.

          In the context of this case, “irreparable harm” is harm for which damages will be an inadequate remedy. 

[26]         Mr. Voldeng submits that the judge erred in stating that the law in British Columbia differs from that in Ontario.  The respondent does not take issue with this contention, but asserts that the error is not significant.  In my view, the error was significant and was integral to the judge’s conclusion that the respondent would suffer irreparable harm, as is apparent from her comments at paras. 47 and 48.

[27]         In fairness to the chambers judge, counsel for the appellant candidly advised this Court that the judge was not provided with the relevant authorities that support his contention that the respondent had not established irreparable harm.

[28]         At para. 46 the judge attributed to 6180 Fraser and Dhut the proposition that “damages may not be an adequate remedy for a breach of a non-solicitation covenant on the basis that it would be extremely difficult for the plaintiffs to separate damages for loss of business caused by the breach from those resulting in normal, fair competition”.  I do not read these cases as supporting that proposition.

[29]         In Dhut, Mr. Justice Groberman, as he then was, concluded there would be irreparable harm, stating that if the plaintiff were to succeed at trial, “it will be virtually impossible to unscramble the egg and determine how much the plaintiff lost as a result of violations of the agreement” (para. 42).  There are a number of features distinguishing Dhut from the present case.

[30]         Mr. Dhut was an investment advisor whose client list was provided to him by the employer.  The employer was a specialized venture that dealt only with members of the medical profession.  In this context, Groberman J. held that the company had a proprietary interest in the list.  In the present case, by contrast, a significant number of Mr. Voldeng’s clients were people he knew personally.  The business was, broadly speaking, investments.  At para. 43, Groberman J. agreed with the plaintiff that “there may well be issues of lost reputation at stake here”.  Again by contrast, there is no such finding in the present case and no apparent basis for such a finding.

[31]         The only evidence concerning reputation in this case is found at para. 27 of the affidavit of David Gunn, a senior officer of the respondent:

In my experience, customers resent, and often consider it a breach of Edward Jones’ duty, when their confidential information is disseminated to third parties. In such instances, Edward Jones may not only suffer monetary damages but also irreparable harm to its business reputation. This results in both financial loss and loss of its goodwill, an invaluable asset in the securities industry.

As is apparent, the evidence concerns the dissemination of confidential information and does not relate to the solicitation of Mr. Voldeng’s former clients.

[32]         In my view, the circumstances in Dhut were somewhat unique.  I do not think it stands for the broad proposition attributed to it by the chambers judge.  Similarly, I do not think 6180 Fraser supports the proposition. 

[33]         The plaintiffs in 6180 Fraser were companies operating six pharmacies that delivered prescriptions directly to customers, many of whom lived in extended care homes or other residential facilities.  The defendants were key employees in this operation.  Although there was a non-solicitation clause in 6180 Fraser, the judge held that the plaintiff had not established the required prima facie case that the covenant was enforceable.  The irreparable harm derived from the judge’s conclusion at para. 36:

... It will be extremely difficult for the plaintiffs at trial to separate damages, such as a loss of business, caused by misuse of confidential information or customer confusion about who the defendants work for from losses resulting from normal, fair competition.

The judge also held that recruitment of other employees could affect the plaintiff’s ability to serve customers, the result of which would be difficult to quantify. 

[34]         Mr. Voldeng contends that the effect of violating a covenant restricting solicitation differs from the effect of violating one prohibiting competition.  He relies on a number of trial court decisions in British Columbia, Alberta, Ontario and Nova Scotia, which he lists in his factum:

British Columbia:

RT Investment Counsel Inc v. Werry (1999), 46 BLR (2d) 66 (BCSC) (No IH – para. 48; BOC favours defendant – para. 47)

RBC Dominion Securities Inc. v. Merrill Lynch Canada Inc. et al, 2000 BCSC 1750 (No IH – para. 13; BOC favours defendant – para. 15)

BMO Nesbitt Burns Inc. v. Young, 2003 BCSC 2076 (No IH – paras. 35 & 36; BOC favours defendant – paras. 37-44)

Prodigy Wealth Management Corp. v. Raymond James Ltd. et al, 2005 BCSC 1863 (No IH and BOC favours defendant – para. 39)

Coast Capital Savings Credit Union v. Pasion, Howarth and TD Waterhouse, SCBC (unreported; Vancouver Reg. No. S066094, October 12th, 2006) (No IH – para. 11; BOC favours defendant – para. 10)

CIBC v. Chis, Curdie, Bell, Rook and TD Waterhouse, SCBC (unreported; Vancouver Reg. No. S070999, March 7th, 2007) (No IH and BOC favours defendant – paras. 39-54)

Aurum Ceramic Dental Laboratories Ltd. v. Hwang, [1998] BCJ No. 190 (SC) (Not a brokerage case, but substantially the same issue; No IH – para. 19; BOC favours defendant – para. 20)

Alberta:

ATB Securities Inc. v. RBC Dominion Securities Inc., (2008) ABQB 392 (No IH – paras. 39-46; BOC favours defendant – paras. 47-48)

Research Capital Corp. v. Yorkton Securities Inc., 2002 ABQB 957 (No IH – paras. 27-31; unnecessary to consider BOC)

Ontario:

BMO Nesbit Burns Inc. v. Ord, [2007] OJ No. 2620 (Ont. Sup. Ct.) (No IH – para. 41; BOC favours defendant – paras. 43-45)

MD Management v. Campbell, 2010 O.N.S.C. (Ont. Sup. Ct.)  nevertheless, No IH – paras. 33-35; BOC favours defendant – para. 36); affirmed on appeal, 2010 O.N.S.C. 6373 (Div. Ct.) (see, paras. 11-14)

Nesbitt Burns Inc. v. Lange (2000) [2000] O.J. No. 892 (Ont Sup Ct J) (No IH – paras. 13-19; BOC favours defendant – para. 20)

Nova Scotia:

Investors Group Financial Services Inc. v. Smith [1994] N.S.J. No. 466 (SC) (No IH  and BOC favours defendant – paras. 26-27)

[35]         Not surprisingly, the respondent seeks to distinguish these cases, most of which differ, more or less, from the specific facts of the present case.  There are common threads that do permeate the cases: loss of investment clients through solicitation generally results in damages that are calculable and, in the context of a non-solicitation covenant, the interests of an individual investment advisor and his or her clients often tips the balance of convenience in favour of the investment advisor. 

[36]         The cases illustrate the general rule that the harm flowing from the violation of non-solicitation clauses usually differs from that which flows from the violation of non-competition clauses.  The damages that flow from a violation of a non-solicitation covenant in the employment contract of an investment advisor generally are calculable because the industry is regulated heavily.  The value of the portfolio of a departing client is known, as is the return to the brokerage firm of managing that portfolio.  The evidence in this case illustrates the point.  The respondent is able to state exactly the value of the accounts of Mr. Voldeng’s former clients that have been transferred to RBC.  As the chambers judge noted, the evidence before her showed that accounts totalling an approximate value of $4 million had been transferred to RBC.  In a statement of facts filed on this appeal, the parties agreed that as of April 13, 2012, the respondent had received instructions to transfer client accounts with the approximate total value of $20.2 million.  In my view, in this case the potential damages arising out of solicitation, being calculable, do not constitute irreparable harm.

[37]         Non-competition covenants restrict a departing employee from seeking business generally.  It usually will not be possible to tell whether business is lost to the employee’s new employer as a result of prohibited competition as opposed to legitimate competition.  Such damages, not being calculable, generally do constitute irreparable harm.  To similar effect are actions which may damage the reputation of a former employer, or the general use of confidential information.

[38]         It is important to recognize that, while these propositions may be true generally, the circumstances of each case must be considered.  That is, while most improper solicitations may result in calculable damages, it must not be assumed that all will.

[39]         The respondent argues that irreparable harm may derive from the difficulty of calculating damages, the relative harm suffered by the parties and the presence of a negative covenant. 

[40]         For the difficulty of calculating damages the respondent relies on 6180 Fraser.  I have already commented on that case.  The respondent asserts that it may not be possible to link a defendant’s breach to damages sustained by a plaintiff.  In my view, in this case, at best, that argument raises an issue of causation; of liability, rather than the difficulty of calculating damages.  The authorities repeatedly have held that difficulty in calculation is not a bar to awarding damages.  Even where irreparable harm is in issue, a plaintiff must establish a link between the conduct of the defendant and potential damages.

[41]         In my view, the contention that the magnitude of the loss may result in irreparable harm is answered in two ways. One, the Supreme Court of Canada in RJR-MacDonald at para. 59 stated that “‘[i]rreparable’ refers to the nature of the harm suffered rather than its magnitude”.  Two, if an applicant were able to show that its business potentially would be destroyed by the conduct of a defendant it might be open to argue that such “magnitude” of damage would be irreparable.  On the facts of this case, the respondent does not have that risk.  It operates across Canada and at many locations proximate to the Oak Bay location presently in issue.

[42]         The respondent asserts that irreparable harm is less significant in cases involving a restrictive covenant.  The comments of Low J.A., to which I referred previously, are apt in this context.  In my view, the existence of a restrictive covenant is more significant to the first prong of the analysis than to irreparable harm.  It also comes into play when considering the balance of convenience.  The court clearly may take into account the fact that a defendant has covenanted not to undertake conduct a plaintiff seeks to enjoin when considering the relative positions of the parties.

[43]         Mr. Voldeng contends that the law pertaining to investment advisors requires a closer scrutiny of the risk of irreparable harm.  He relies on the comments of Madam Justice Southin in RBC Dominion Securities Inc. v. Merill Lynch Canada Inc., 2007 BCCA 22, 275 D.L.R. (4th) 385 at paras. 81-83:

[81]      In my opinion, a client is entitled to know immediately upon his advisor leaving one firm for another where that advisor has gone so that he or she can decide whether to change to the new firm or remain with the old.

[82]      Because of that important interest of the client, an advisor should be able, without fear of litigation, to prepare a list of his own book of business from the records of the brokerage house.  To hold in the 21st century that an advisor, who usually, by considerable personal diligence, has built up a book of business, must rely on his memory for the full names, addresses, telephone numbers and e-mail addresses of his clients, is not, in my opinion, in the interests of the clients and, therefore, is not in the public interest.  I emphasise “his own book of business”.  He is not entitled to take a list of other advisors' clients.  To put it another way, the interests of the brokerage house should not be put ahead of the interests of the clients.

[83]      I do not say that an advisor is entitled to take copies of account statements and other papers concerning the client, such as the Know Your Client form.  If the client wants to change to the new firm, he or she can give instructions to the old firm to hand over copies of all relevant documents, or give the advisor a copy of his or her own statements, and so forth.  For the advisor to take other documents would be quite wrong because the client may consider that parts of those documents are confidential and he or she would not wish them to be in the possession of the new firm. 

To similar effect are the words of Mr. Justice Holmes in RT Investment Counsel Inc. v. Werry (1999), 46 B.L.R. (2d) 66, 87 A.C.W.S. (3d) 1021 (B.C.S.C.) at para. 48:

... The harm to the individual defendant's ability to maintain employment income within their profession without an ability to contact some of their former clients would be immediate and serious. There is a public interest factor to consider. The plaintiff does not “own” the clients; those clients should be free to receive information from all competitive sources and to have the ability to decide if they wish to follow a person with whom they have developed an individual trust and confidence regarding investment advice.

(RBC Dominion was referred to in Imperial Sheet Metal Inc. v. Landry, 2007 NBCA 51, 315 N.B.R. (2d) 328, at para. 34.)

[44]         The respondent urges this Court not to establish “investment advisor” as a special category of relationship to which the general principles governing the grant of an interlocutory injunction would not apply.  In my view, there is merit in that caution.  The interests of the clients of investment advisors are a legitimate factor to take into account, but should not be considered as unique to that relationship.  There are many other relationships in which similar interests may be relevant.  The interests of the clients are but one factor in the overall context of the injunction analysis.

[45]         In my view, the statement of policy in RBC Dominion Securities speaks not so much to irreparable harm as it does to the strength of a plaintiff’s prima facie case—that is, that the conduct of the defendant constitutes improper solicitation—and to the balance of convenience.  Arguably, any contact with former clients is solicitation, but this Court has made it clear that in certain relationships some such conduct is not only proper, but is desirable.

[46]         In addition, the interests of third parties are properly taken into account when considering the balance of convenience; in a case such as this, the interests of the clients of an investment advisor should be considered.  Their interests are relevant to the question of whether an injunction should issue and to the scope of any injunction that is ordered.

Balance of convenience

[47]         I do not agree with the judge’s conclusion, expressed at para. 53, that “refusal of an injunction will deprive the [respondent] of the only effective remedy for Mr. Voldeng’s alleged breach of the non-solicitation provision in his employment agreement”.  It follows from the judge’s conclusion that the respondent would suffer irreparable harm from improper solicitation by Mr. Voldeng, a conclusion with which I disagree.  In my view, the respondent has a clear right to calculable damages if a breach is established.

[48]         I do agree with the judge’s finding that an interlocutory injunction may cause irreparable harm to Mr. Voldeng because, if his conduct were found to be proper, it would not be possible to determine which of his clients would have shifted to RBC if he had been able to inform them of his new contact particulars.

[49]         In the context of the solicitation of former clients, in my view, the balance of convenience favours Mr. Voldeng and not the respondent.

[50]         As to the possession and use of confidential information, I see no basis for interfering either with the judge’s finding of fact that there is a serious question to be tried or with her exercise of discretion in enjoining the appellants from using or disclosing such information.

Scope of the order

[51]         The appellants contend that para. 1 of the judge’s order is not necessary because it merely recites Mr. Voldeng’s contractual obligation.  They take issue with the scope of para. 2 because it prohibits Mr. Voldeng from any contact with his former clients.  The respondent states that the second paragraph does not go that far.  In my view, on a plain reading it does so, which is not consistent with the judge’s statement at para. 54 that “an injunction cannot extend to prevent Mr. Voldeng from having any contact with his former clients”.

[52]         The appellants contend that in making the order at para. 2, the judge must have believed that Mr. Voldeng already had advised all of his clients of his departure and future whereabouts because the paragraph is contrary to this Court’s decision in RBC Dominion and its admonition that an investment advisor is entitled to provide new contact particulars to his or her clients.  The tendered fresh evidence seeks to show that Mr. Voldeng did not contact all of his clients.  Paragraphs 1 and 2 are concerned with solicitation and, in my view, neither provision is sustainable.  In this circumstance, in my view, the fresh evidence is not required and I would not admit it.  I also would be inclined to the view that, on its face, para. 2 is too broad.

Conclusion

[53]         It is clear that considerable flexibility is required when considering an interlocutory injunction.  A rigid categorical analysis is eschewed.  The factors I have discussed are significant to an assessment of the relative risks of harm to the parties.  In my view, the judge erred in determining that the respondent would suffer irreparable harm by Mr. Voldeng improperly soliciting his former clients and erred in prohibiting him from any contact with his former clients.

[54]         Paragraphs 3 and 4 of the judge’s order rest on evidentiary support and reflect her findings of fact.

[55]         In closing, I stress that an interlocutory injunction is an extraordinary remedy, the refusal of which in no way condones the conduct of a defendant that ignores contractual obligations.  The judge has found that there is a strong prima facie case that Mr. Voldeng improperly solicited his clients; a word to the wise.

[56]         I would vary the judge’s order by deleting paras. 1 and 2, leaving the remainder undisturbed.

“The Honourable Mr. Justice Chiasson”

I agree:

“The Honourable Madam Justice D. Smith”

I agree:

“The Honourable Madam Justice Neilson”