OIBC v. KO, 2018 ONSC 4612 (CanLII)

This is a Summary Judgment brought by the Defendant employee, dismissing the Plaintiffs’ claim that she solicited her former employers’ clients.  

Date Heard: June 25, 2018 | Full Decision [PDF]

Material Facts

The Defendant, Ms. Ko worked for the Plaintiff, OIBC, an insurance broker. On May 1, 2015, she resigned after 23 years of work with OIBC. The next day she contacted a competitor brokerage and attained employment within a week. Over time, a large number of OIBC’s clients transferred to Ms. Ko and left OIBC in a very poor state of affairs. OIBC sued Ms. Ko for inducement of breach of contract, interference with contractual relations, breach of fidelity and fiduciary duty and using OIBC’s confidential information to her benefit.

Issues

  1. Whether a restrictive covenant existed?
  2. Whether there existed a fiduciary relationship?
  3. Whether Ms. Ko took and used OIBC’s confidential information to her benefit?
  4. Whether Ms. Ko solicited OIBC’s clients?

Brief Answer

Summary Judgment granted as against Plaintiff employer. Plaintiffs’ Action dismissed. Costs awarded as against Plaintiff employer in the amount of $25,000.00.

Analysis

The first issue the Court dealt with, concerned the lack of any restrictive covenant contained within the employment agreement affecting Ms. Ko’s ability to compete. While the issue was contested, The Defendant Ms. Ko however produced affidavit evidence and was tested on cross-examination about the presence of the employment agreements showing that no restrictive covenant was present therein. Ms. Ko produced two contractual agreements to that effect and there was no probative evidence to the contrary.

The second issue concerned the fiduciary nature, if any, between OIBC and Ms. Ko. OIBC was owned and operated by the Plaintiff’s. No other managerial structure was present and Ms. Ko could not make unilateral decisions affecting OIBC like the Plaintiffs could. While Ms. Ko was called an ‘assistant manager’ she in fact did not actually perform any managerial duties.

Ms. Ko was not a primary contact point for customers, with others doing the same task as she did, and there was no direct reliance on her abilities to obtain new business. Lastly, there was no evidence that Ms. Ko was indispensable or held a unique position of value to OIBC with special knowledge of OIBC’s company. Ms. Ko could be replaced and a new employee could be trained in the same fashion. OIBC was not at the mercy or dependent upon Ms. Ko’s discretion; therefore there was no vulnerability on part of OIBC.

The third issue concerned any confidential information taken and used for personal benefit by the defendant. Relying on Alberts v. Mountjoy, (1977), 16 O.R. (2d) 682 Nakatsuru J., noted that while an employee cannot take their employer’s customer list with them on departure and use it to solicit business, they are permitted to do so from memory. In addition, transferring contact details onto an employee’s computer is not considered a breach of confidentiality given that this information would have been readily available to the former employee without the computer list and easily re-created, citing Nordheimer J., as he then was in Edac Inc., v. Tullo, [1990] O.J. No. 4837 (S.C.J.)

Ms. Ko indicated that she did not take any client lists, but had kept the personal contact information within her cell phone in an effort to stay in touch with customers. OIBC could not provide any probative evidence to the contrary or that Ms. Ko took a client list. This does not amount to confidential information. The fundamental point, according to Nakatsuru J., at [28] is whether the information has a quality of confidence about it and whether it was communicated in circumstances where the obligation of confidence arises, citing Lac Minerals Ltd., v. International Corona Resources Ltd., [1989] S.C.R. 574. The nature of the information is essential. Mere names and contact information reveals little beyond the bare information and not details about the client that might be important to the employer. Unlike for example, knowing the types of policies held, or customer profiles. Overall, Ms. Ko only dealt with the customers with which she had dealings.

The last issue deals with the nature of the solicitation. Ms. Ko set letters to clients advising them of her resignation and that the Plaintiff’s would be taking over their files. This went out to 242 clients, stored on her cell phone. It was done on the competitor’s letterhead and included Ms. Ko’s contact number to deal with any questions or concerns. Ms. Ko denied phoning the clients, but rather she was contacted by them to initiate any transfers.

Citing Investors Group Financial Services Inc., v. Smith, [1994] N.S.J. No 466, and Dr. P. Andreou Inc., v. McCaig, [2007] B.C.J. No. 537, Nakatsuru J., determined that the contents of Ms. Ko’s letter did not constitute solicitation. It was informative, assuring, and professional and does not ask for anything. In coming to this conclusion Nakatsuru J., stated at [37]:

In coming to this decision, I am very sensitive to the fact that a large number of OIBC’s clients have transferred their policies to Broker Team since Ms. Ko started to work for them. This fact alone raises an understandable suspicion on OIBC’s part that Ms. Ko must have solicited them. In other words, that she asked them to change their policies to Broker Team. But numbers alone do not establish solicitation: Aquafor Beech Ltd. et al v. Whyte et al (2010), 102 O.R. (3d) 139 (S.C.J.) at para. 52. I find that a plausible and reasonable explanation for this transference of business other than solicitation by Ms. Ko could well be, as Ms. Ko states, her longstanding business and professional relationship with these clients built on mutual trust. In my view, Ms. Ko, having worked hard at building her reputation, is entitled in these circumstances, to benefit from it.               

Conclusion   

Nakatsuru J., citing Barton Insurance Brokers at [39] concluded that:

[t]he general interest of the public in free competition and the consideration that in general, citizens should be free to pursue new opportunities, in my opinion, requires courts to exercise caution in imposing restrictive duties on former employees in less than clear circumstances. Generally speaking, as I noted from the earlier authorities referred to, the law favours the granting of freedom to individuals to pursue economic advantage through mobility in employment.

There was no solicitation by Ms. Ko on the evidence lead by the Plaintiff, as similarly decided in Calvise v. Tripemco Burlington Insurance Group Ltd., 2017 ONCA 989.

At the time of writing this summary, no notice of appeal had been filed.

 

Read the full decision [PDF]
Antonio Meringolo
Written by

Antonio is a litigator with Lemieux Law. His practice focuses on motor vehicle accidents, accident benefits, occupiers’ liability, personal injury, long-term disability, wrongful & constructive dismissal, CPP disability, human rights, general litigation and WSIA Appeals. When Antonio is not practicing law, he enjoys playing hockey, working on cars, and visiting family in southern Italy.