J. 2003 SKQB 532 Q.B.G. A.D. 2003 No. 1974 J.C.S. IN THE QUEEN’S BENCH JUDICIAL CENTRE OF SASKATOON BETWEEN: DANKA CANADA INC. PLAINTIFF (APPLICANT) and GARRY HUNTINGTON, BRENNAN EDUCATIONAL SUPPLY LTD., ROBERT BRENNAN and RANDY BRUCE, DERRICK CHAPMAN, ALLAN CURRIE, JEFF DOWNING, NESTOR DUTCHAK, CORY FETTER, RITCHIE GIFFORD, RICHARD GORELITZA, BRUCE HOWLETT, JASON IVANOCHKO, RAY KERR, KEVIN KULCSAR, TRINA KREISER, CLIFFORD KOHUCH LANCE LANG, GILBERT LAVERTU, ANTHONY LAZAROWICH, DAVID LOBB, DAVE MARTIN, DAN NELSON, BRIAN PEDDE, GEORGE PETRESCUE, APRIL QUESSY, CLETE REKVE, KEN ROBERTS, RICHARD SCHRAMM, KENNETH SPEED, BOGDAN SZOTT, JODY ULRICH, and JODY WILLIS DEFENDANTS (RESPONDENTS) B.J. Scherman, Q.C. for the applicant plaintiff D.C. Hodson for the respondent defendants JUDGMENT FOLEY J. December 12, 2003 [1] The applicant Danka Canada Inc. (Danka) seeks interlocutory injunctive relief framed in argument as follows: i) An interlocutory injunction until trial of this action restraining the Defendants, Ritchie Gifford, Clifford Kohuch, Kenneth Speed and Allan Currie from breaching the terms of their respective restrictive covenants in favour of Danka by taking employment with Brennan Educational Supply Ltd. in any position that involves the sales or service of photocopiers, printers, facsimile machines or related multi-function machines; ii) An interlocutory injunction restraining the Defendant Employees from competing, directly or indirectly, with Danka Canada Inc. until after their respective contracts of employment with Danka Canada Inc. have been terminated by the giving and expiry of reasonable period of notice to quit; iii) An interlocutory injunction until trial of this action restraining the Defendant Employees or any individual who were employees of Danka Canada Inc. and who are hired by Brennan Office Plus or Brennan Educational Supply Ltd. after the date of this Court’s order from soliciting, directly or indirectly, the customers of Danka Canada Inc. and from performing any service work to equipment that was sold or leased by Danka Canada Inc.; iv) An interlocutory injunction until trial of this action restraining the Defendants, Garry Huntington, Robert Brennan and Brennan Educational Supply Ltd., from soliciting, directly or indirectly, the employees of Danka Canada Inc., from soliciting, directly or indirectly the customers of Danka Canada Inc. in respect of the sale or lease of photocopiers, printers, facsimile machines or related multi-function machines and from performing any service work for customers of Danka Canada Inc. in respect of any machines that were sold or leased to the user by Danka Canada Inc. [2] The relief so claimed has undergone modification from that asserted in the amended statement of claim as well as from that sought in the notice of motion. This is neither surprising nor unusual given the time constraints placed on applicants seeking such relief and the factual nature of the circumstances. The injunctive relief taken as a whole seeks to enforce certain restrictive covenants, restrain employees from competitive activity pending the expiration of reasonable notice periods and generally restrain all respondents from any direct or indirect dealings with customers of Danka or pertaining to equipment sold or leased to customers by Danka. [3] By a fiat of December 5, 2003, the application by Danka for interlocutory injunctive relief was dismissed with reasons to follow. These are those reasons. The Right to Relief [4] The wrongs which Danka says it will suffer at the hands of the respondents stem from the decision of Brennan Educational Supply Ltd. (Brennan) to expand its Saskatchewan business from one primarily dealing with educational supplies, office products and furniture to one involving the supply and service of business machines, thereby bringing it into direct competition with Danka’s Saskatchewan operation. Danka has been major participant in the Saskatchewan market for supply and service of business equipment since its acquisition of General Recorders Ltd. in 1995. It also retained Garry Huntington, principal of General Recorders, as director of its Saskatchewan operation. [5] Brennan is frank in its recognition that, as its expansion in 2000 and thereafter brings it into direct competition with Danka and, as many of its customers in its more limited business activities between 1968 and 2000 were concurrently Danka’s customers with respect to its sales, leasing and service of business machine, Brennan’s quest for market share may well detrimentally affect Danka’s business. [6] In furtherance of its expansion plan Brennan purchased operations in Yorkton and Saskatoon in 2003 and retained Garry Huntington as its CEO in September 2003 once his non-competition agreement with Danka had expired. In October Brennan placed advertisements in Saskatoon and Regina newspapers to recruit personnel to fill the ranks of its expanding operation. In result, some 30 Danka employees, primarily salesman and service technicians, took up employment with Brennan. Most gave two weeks notice to Danka by resigning in the period October 21 to November 7. At that time Danka’s total Saskatchewan work force in its six offices was 79 employees of whom 40 were in service and 21 were in sales. Danka’s some 2,600 Saskatchewan customers used over 5,000 pieces of processing equipment the vast majority of which were photocopiers. Its revenues for the year ending March 31, 2003 in Saskatchewan were about 15 million dollars of which almost million dollars was generated by the service department. [7] The entry by Brennan into the document processing market coupled with its hiring of Danka’s sales and service staff undoubtedly caused disruption and consternation for Danka as set out in its supporting affidavits. As Danka says, it may well be difficult for it to replace staff in the short term thus enabling Danka’s competitors, including Brennan, to attract Danka’s clientele. Danka is concerned that the departing employees take with them proprietary and confidential information which will then be used by them and Brennan to further erode Danka’s market share and solicit Danka’s clientele. Elements to be Established [8] Interlocutory injunctions are an extraordinary remedy and thus in this case it is incumbent on Danka to demonstrate: (1) That its right to relief from the wrongs committed or threatened by the respondent is clear. (2) The existence of strong prima facie case, in support of that right and strong possibility that it will succeed at trial. (3) Injunctive relief until trial is necessary to protect Danka against irreparable damage and loss, mere inconvenience not being enough. (4) That the balance of convenience favours Danka in that the nature of the injury which the respondents on the one hand would suffer if the injunctions are granted if they should turn out to be right and that of Danka, on the other hand, might sustain if the injunctions were refused and it should ultimately turn out to be right. The burden of proof that the inconvenience which Danka will suffer by the refusal of the injunction is greater that which the defendants will suffer lies on Danka. The Evidential Standard [9] The injunctions are requested on quia timet basis and to enforce what the applicant says are restrictive covenants, obligations of confidentiality and fiduciary duty binding on the respondents. Relief quia timet requires the applicant to demonstrate strong prima facie case of imminent danger of substantial damage. [10] In Bioriginal Food Science Corp. v. Perrault, [1994] S.J. No. 592, at para. 12, MacLean J. concluded that the grant of quia timet injunction warranted the imposition of strong prima facie case standard. In like vein, MacDonald J. in Gebhard v. Big Arm (Rural Municipality No. 251), [1975] S.J. No. 174 (Q.B.), at para. 10, referenced Snell’s Principles of Equity, 26th ed. (London: Sweet Maxwell Limited, 1966), at 700, that in an application “quia timet”: Although the plaintiff must establish his right, he may be entitled to an injunction even though an infringement has not taken place but is merely feared or threatened; for “preventing justice excelleth punishing justice”. This class of action, known as quia timet, has long been established, but the plaintiff must establish strong case. He must prove that there is an imminent danger of very substantial damage, e.g., by showing that the threatened act “is attended with extreme Probability of irreparable Injury to the Property of the Plaintiffs, including also Danger to their existence”. See also Graham Construction Ltd. v. Zaba, [1968] S.J. No. 117 (Q.B.). [11] Injunctions involving restrictive covenants in employment contracts also warrant the use of the strong prima facie case standard rather than that of merely serious issue to be tried. See: Vision Security Investigations Inc. v. Lipoth (1995), 1995 CanLII 6174 (SK QB), 135 Sask. R. 226 (Q.B.). The Wrongful Acts [12] The wrongful acts from which Danka says it has right to relief, like the specifics of the injunctions requested, have undergone changes from the initial claim of November 12, 2003 through its amendment of November 20, 2003 to those raised in brief in the notice of motion and now detailed in both the written and oral submissions. The unlawful acts and wrongs alleged for which the injunctions are requested may be grouped as follows: (i) As to all former employee respondents now hired by Brennan: (a) their failure to provide reasonable notice of termination; (b) their failure to refrain from competition and customer solicitation; (c) their failure to compete by fair means. (ii) As to Huntington, Szott, Kerr and Willis, their breach of fiduciary duty by recruiting Danka’s employees and then soliciting Danka and customers through them. (iii) As to Huntington, Szott, Kerr, Willis, Brennan, Brennan Supply and Szott in their inducing Danka’s employees to be in breach of their obligations to Danka as detailed in (i) above. (iv) As to Huntington, Brennan, Brennan Supply, Szott, Kerr and Willis, conspiracy to induce breach of contract and wrongful interference with the trade and business of Danka. (i)(a) Former employee notice [13] It is trite law that it is an incident of the employment contract that each party to it is obliged to give the other reasonable notice of an intention to terminate the relationship. The parties are at liberty to agree in advance as to what would be reasonable and, in the absence of such agreement, the nature of the business as well as past conduct contribute to the determination of what is reasonable in the circumstances. [14] It is alleged in the affidavit of Ms. Luca that Danka’s practice in the event of termination was two weeks per year of service for non-management positions and three weeks per year of service for management and supervisory employees over 50 years of age. This alleged policy is not reflected in the employee handbook. The employment agreements exhibited to her affidavit simply state: The employer or employee may terminate employee’s employment with or without cause upon written notice. [15] It is incumbent upon Danka to establish the factual base of the impugned conduct it says constitutes the unlawful interference with Danka’s existing legal rights. [16] The affidavit of Mr. Natale asserts that other than the notice by Clifford Kohuch, all former employees gave Danka at least two weeks notice. The materials do not indicate that either the president or anybody else on Danka’s behalf took objection to the notice periods given by the respondents, rather, as set out in many of the respondents’ affidavits, the notice given was truncated by Danka management’s request that the resigning employee leave the premises. Significant also is the fact that in Danka’s correspondence to respondent employees, Danka set out its view of their obligations of confidentiality but no reference was made to any deficiency in the notice. Mr. Kohuch, the one person alleged not having given two weeks notice states that he in fact tendered his resignation on November and on November 12 was asked to leave Danka’s premises. [17] Danka has failed to demonstrate a prima facie case or even a serious issue to be tried that it was in law entitled to more than two weeks notice or that the respondents were in breach of any right which accrued to Danka. In any event, it is evident that Danka accepted the resignations without protest or comment. The submission by Danka that despite its ejection of the employees from its premises they remained employees is neither borne out by the facts or the law. (b) Competition and solicitation [18] Danka’s case is detailed as follows: 33. As established in paragraph and Exhibit “E” to the Affidavit of Angela Luca, some 13 of the Employees, signed written agreements that provide specific confidentiality obligations and non-compete or non-solicitation provisions. Those provisions range from the two-year non-compete obligations of the Employee Agreements of Kohuch, Gifford, Speed and Currie to the Confidentiality/Non-Compete Agreements of the others. Paragraphs and 3, of the latter provides the Employees agree that: 2) During employment with DANKA, EMPLOYEE agrees not to, either directly or indirectly, of EMPLOYEE’s own account or as an agent, employee, shareholder or director of any corporation, or member of any firm, engage in any business activity in competition with DANKA. Such activity includes, but is not limited to the selling, leasing, renting, servicing, distributing or wholesaling of photocopy equipment, facsimile or similar communications equipment, or other automated office equipment products and related parts. 3) For period of six months following termination of Employee’s employment with Danka for any reason, Employee shall not directly or indirectly or through others, solicit, or attempt to solicit any of Danka’s clients or perspective clients for the purpose of marketing, selling, leasing, renting, servicing, distributing or wholesaling photocopy equipment, facsimile equipment or similar equipment and related parts .” to clients or perspective clients located in the territories or geographic areas for which the Employee was responsible in the 12 months preceding termination. [19] In response to this position Brennan states: 49. Danka Canada is seeking to prevent four employees (Gifford, Speed, Currie and Kohuch) from breaching two year non compete clause in their written employment agreements. In order to succeed with this claim, Danka Canada must establish that the employment contracts are valid and binding and that the two year non-compete covenant is enforceable. 50. The employee agreements respecting Gifford and Speed are not executed by Danka Canada and therefore are not enforceable. Furthermore, Speed and Currie crossed out the non-competition clause contained in their employee agreements. The only agreement that was signed by both Danka Canada and the employee was Kohuch’s. However Kohuch has deposed that when he signed the agreement, Danka Canada told him that the two year non competition clause “would not hold water”. Danka Canada has not contradicted this evidence. 65. Danka Canada seeks an injunction to prevent the Employees from soliciting Danka customers or providing service on equipment sold or leased by Danka Canada. As the basis for this claim, Danka Canada appears to rely upon “express and implied” terms of employment contracts with the Employees. Nine of the thirty employees signed agreements that contained six month non-solicitation clause. The remaining Employees did not have any express or implied obligation of non-solicitation owed to Danka Canada. 6. Although Danka Canada has made vague assertion that these Employees are subject to non-solicitation and/or non-competition covenants by means of having received an Employee Handbook from Danka Canada, it is submitted that this assertion is entirely without merit. 67. Danka Canada has adduced no evidence that any of the Employees (with the possible exception of Clifford Kohuch) have solicited Danka customers after having left the employ of Danka Canada. There is no evidence of breach or threatened breach. In fact, Brennan Supply has put in place Policy Memorandum that directs each of the Employees to “refrain from the solicitation of customers with whom he or she had material contact, directly or through other employees, while employed at Danka”. [20] With regard to restrictive covenants of employment, Dickson J. in Elsley v. J.G. Collins Insurance Agencies Ltd. (1978), 1978 CanLII (SCC), 83 D.L.R. (3d) (S.C.C.), stated at p. 5: The principles to be applied in considering restrictive covenants of employment are well-established. They are found in the cases above-mentioned and in such familiar authorities as the Nordenfelt case, Nordenfelt v. Maxim Nordenfelt Guns Ammunition Co., Ltd., [1894] A.C. 535; Mason v. Provident Clothing Supply Co., Ltd., [1913] A.C. 724, and Attwood v. Lamont, [1920] K.B. 571. Of more recent vintage: Scorer v. Seymour-John, [1966] All E.R. 347, and Gledhow Autoparts Ltd. v. Delaney, [1965] W.L.R. 1366. covenant in restraint of trade is enforceable only if it is reasonable between the parties and with reference to the public interest. As in many of the cases which come before the Courts, competing demands must be weighed. There is an important public interest in discouraging restraints on trade, and maintaining free and open competition unencumbered by the fetters of restrictive covenants. On the other hand, the Courts have been disinclined to restrict the right to contract, particularly when that right has been exercised by knowledgeable persons of equal bargaining power. In assessing the opposing interests the word one finds repeated throughout the cases is the word “reasonable”. The test of reasonableness can be applied, however, only in the peculiar circumstances of the particular case. Circumstances are of infinite variety. Other cases may help in enunciating broad general principles but are otherwise of little assistance. (See Graham Construction Ltd. v. Zaba, [1968] S.J. No. 117 (Q.B.) and Vision Security Investigations Inc. v. Lipoth, supra.) [21] According to Angela Luca it has been the policy of Danka since 1997 to require all of its employees as condition of their employment to sign confidentiality agreement and non-competition agreement. Attached to her affidavit are set of documents which consist of the following types: (1) Documents entitled “Employee Agreement”, the body of which provides: 3(a) Employee expressly agrees that he/she shall not, during the period of this Contract and for period of two (2) years immediately following the termination of his/her employment with Employer, for whatever reason, either directly or indirectly, within the territory previously assigned (as of the date of termination of Employee’s employment hereunder), enter into or engage generally in competition with Employer in the business of sale, service, maintenance of office equipment or parts, either as an individual or as partner or joint venturer, or as an employee or agent or consultant for any persons, firm or entity, or as an officer, director or shareholder (except as passive shareholder of publicly-traded corporation) or otherwise. (b) Employee expressly recognizes and acknowledges that facts concerning the products, services, methods of doing business, pricing methods, marketing methods, employee policies, sources of supply and terms thereof, and service and customer lists of Employer and its affiliates or subsidiaries are valuable, special and unique assets of Employer, and are therefore confidential information and trade secrets. At the termination of Employee’s employment, Employee shall deliver to the company all tools, memoranda, notes, records, drawings, manuals, or other documents, and all copies thereof, concerning trade secret materials or confidential information that are in the possession of Employee, whether made or compiled by Employee or furnished to Employee by Employer, including but not limited to, Employer’s policy and procedure manual. Thus, Employee expressly covenants and agrees that he will not during the term of this Contract or anytime after termination hereof disclose any such information or part thereof to any person, or entity for any reason or purpose whatsoever. (2) “confidentiality/business trade secrets agreement” which imposes an obligation to not divulge or make use of confidential or proprietary information for period of one year following termination of employment and non-solicitation provision providing: 3) NONSOLICITATION OF CLIENTS: EMPLOYEE agrees that for six months following termination of employment with DANKA for any reason, EMPLOYEE shall not directly, or indirectly, contact, solicit or attempt to contact or solicit any of DANKA’s clients or prospective clients for the purpose of marketing, selling, leasing, renting, servicing, distributing or wholesaling photocopy equipment, facsimile equipment or similar equipment and related parts. This restriction applies only to DANKA’s clients or prospective clients located in the territories or geographic areas for which the EMPLOYEE was responsible during the 12 months prior to the termination of the EMPLOYEE’s employment with DANKA. This restriction also applies only to those clients and prospective clients with whom the EMPLOYEE had Material Contact on behalf of DANKA within the 12 months prior to the termination of the EMPLOYEE’s employment with DANKA. Material Contact means: (i) direct personal contact in furtherance of DANKA’s business with client or prospective client or (ii) direct or indirect responsibility for such direct personal contact by other employees or agents on behalf of DANKA. [22] Leaving to one side the activities of Danka employees Kohuch and Lazarowich with respect to bids to the Humboldt and Northern Lakes School Divisions, the affidavit materials filed by Danka provide no evidence of competition or solicitation nor any imminent danger or threat of such by one or more of the respondent employees so as to support the quia timet rationale for injunctive relief. Indeed, the evidence is to the contrary in that Danka put at least some of its former employees on notice of what its expectations were with respect to confidentiality and competition, stating in its form letter of November 12, 2003: understand that you have resigned and will be leaving your employment with Danka Canada to join direct competitor. You should be aware that you have certain continuing obligations, including an obligation of confidentiality. Even though you have resigned your employment with Danka, the law is clear that your obligation of confidentiality continues. Danka’s confidential and proprietary information remains the property of Danka and you have continuing obligation to respect this confidentiality. Your legal duty is to respect and preserve these confidences and ensure that none of this confidential information is used by you in your new position nor made available to Danka’s competitors or any other person or entity. As result of the position you held with Danka, you also have additional fiduciary obligations that continue after your resignation. As with the obligation of confidentiality, the fiduciary obligation operates to require that you not use confidential or proprietary information that you gained as result of your employment with Danka. However, your fiduciary obligation is broader. If you were in fiduciary position with Danka, you are not entitled to pursue business opportunities that were part of your responsibility while at Danka. Please be warned that Danka will monitor all developments in the market place to ensure that your fiduciary or confidentiality duties are being honored to the utmost degree. Danka will immediately institute legal proceedings to protect its property and interests, including the use of confidential information, if it believes you are in violation of these duties. [23] Brennan, whether or not it agreed with the legal foundation for those expectations, then instructed its employees by memorandum of November 21, 2003 to comply with Danka’s requests and guidelines for the duration of any of their respective notice or restraint periods, and stated: At the outset it is important to reiterate (as all of you have been informed already) that Brennan Office Plus, as your new employer, prohibits you from bringing or making any use of any confidential information of your former employer, Danka. The types of information covered by this prohibition include customer lists, lists of suppliers, information as to particular customer needs, pricing information, cost structures, information as to maturing business opportunities and trade secrets. Danka alleges that three of our new employees (Bogdan Szott, Ray Kerr and Jody Willis) are “fiduciaries”. There are 13 employees who are alleged by Danka to be subject to specific non-solicitation agreements of one form or another (Jody Ulrich, Trina Kreiser, Gilbert Lavertu, Richard Gorelitza, Lance Lang, Clete Rekve, Cory Fetter, David Lobb and Dave Martin, Kenneth Speed, Allan Currie, Ritchie Gifford and Clifford Kohuch). As to other of our ex-Danka employees, Danka attempts to rely on employee handbooks for agreed restrictions on their activities with Brennan Office Plus. All of this came to light with the filing of court materials by Danka. The contention respecting fiduciary duties does not appear to be soundly based; the existence of validly executed and enforceable agreements is highly doubtful; and those who received only handbook should clearly be free of any non-solicitation obligations. Despite this, it is in the best interests of all of us to avoid any basis on which Danka could even attempt to pursue claim. Accordingly, out of an abundance of caution, Brennan Office Plus as your employer is imposing the following restriction. The existence of this directive will not prevent Brennan Office Plus from advertising your availability to the market or otherwise making known that you have joined the Brennan Office Plus team. If, as result of such promotion, business is attracted from your former Danka customers, you will be free to accept such business. You will not, however, initiate any communication with these customers. [24] The affidavits of the respondent employees taken as whole lead to the conclusion there has been no activity which could constitute the breaches referred to by Danka in its memorandum. In the absence of the factual foundation to provide credence for Danka’s fear that wrongs will be done extraordinary relief by way of injunction will not be granted. See Aetna Financial Services Ltd. v. Feigelman, 1985 CanLII 55 (SCC), [1985] [25] Danka suggests that the Brennan memorandum is mere puffery or window dressing and that the confidentiality constraints and solicitation prohibitions which it says exist will be readily defeated by subterfuge on the part of Brennan and its employees. There is no evidence to support this proposition and decline the invitation to infer such bad faith on the part of Brennan and the employee/respondents in the face of their specific denials of solicitation. In the event that Danka’s fears are realized hereafter then, in any event, the sales and servicing so lost can readily be quantified. In short Danka will not suffer the irreparable damage which is precondition to the granting of injunctive relief. (c) Unfair means [26] The defendant Brennan appears to have been embarrassed by the conduct of the two aforementioned employees in attempting to ensure contracts for Brennan with the school divisions while they were still in the employ of Danka. It is likely this event constituted breach of duty owed Danka by the employees. Whether Brennan or its corporate officers have liability for the unacceptable conduct is matter which will be determined at trial and is one for which damages can reasonably be calculated if liability is established. It appears however at this point in time that this type of event was an anomaly and, on the materials filed, it does not appear there is threat or risk that it will be repeated or that like breaches will occur. This may well be an example of unfair means, but, if so, it was the only example and does not constitute grounds for precautionary injunctive relief. (ii) Breach of fiduciary duty by Huntington, Szott, Kerr and Willis. [27] Mr. Huntington was clearly in Danka’s senior management but was terminated from that employment and the restricted covenant binding him expired before he became involved with Brennan. Whether Mr. Huntington was or was not fiduciary during his Danka employment does not answer the question of whether he is currently fiduciary and if so what his obligations are and in what method or manner he is in breach of any such duty. [28] The vast majority of the respondents say that their response to the hiring advertisement was effected for their own personal reasons. Danka asserts that the affidavit of Jody Willis implicates Mr. Huntington. must disagree. Jody Willis merely states that she became aware of Mr. Huntington becoming associated with Brennan in October 2003 and, as she was unhappy with her employment at Danka, “I saw an opportunity for myself and initiated contact with Garry Huntington. Eventually, met with Garry Huntington and was offered position with Brennan Educational Supply Ltd.” [29] These meagre facts fall far short of establishing Mr. Huntington is in breach of any fiduciary duty even if one existed. There was no evidence at all that Messrs. Szott, Kerr, Willis induced employees or have solicited Danka’s clients through them nor that any of those respondents together with Brennan and Brennan Supply induced Danka’s employees to break any obligations they owed to Danka. [30] To grant injunctions against the respondents in the form requested by Danka, would be tantamount to granting final judgment against them all before trial and consequently for this reason as well an injunction is not an appropriate remedy. (iii) This is subsumed in (i) above. (iv) Huntington, Brennan, Brennan Supply, Szott, Kerr and Willis insofar as they are said to have conspired to induce breach of contract or wrongfully interfered with the trade and business of Danka. [31] These alleged wrongs are simply not substantiated in any way by the evidence. In conspiracy and wrongful interference there must be substrata of evidence to show that the parties committed overt acts from which the tort may be discerned. The best that could be said of the plaintiff’s case is that it is one of conjecture and inference without any foundation of facts from which inferences may be drawn. [32] For all the foregoing, the application for injunctive relief is denied with costs.
The plaintiff employer sought injunctive relief and sought to enforce certain restrictive covenants and to restrain employees from competitive activity pending the expiration of reasonable notice periods and generally restrain all respondents from any dealings with customers of the plaintiff or pertaining to equipment sold or leased to customers by the plaintiff. HELD: By fiat of December 5, 2003, the Court dismissed the application for injunctive relief with reasons to follow. These are those reasons. 1) The wrongs the plaintiff says it will suffer at the hands of the defendant employees result from the decision of the defendant to expand its business from one dealing with educational supplies, office products and furniture to one involving the supply and service of business machines. The new direction brings the defendants into direct competition with the plaintiff's business. 2) The defendants hired Garry Huntington once his non-competition agreement with the plaintiff expired. The defendants also placed ads in newspapers and hired some 30 employees of the plaintiff. The plaintiff was concerned that the departing employees would take with them confidential information and that it would have difficulty hiring replacements, which would affect its ability to service its clients. 3) The departing employees gave 2 weeks notice. The plaintiff failed to demonstrate that it was entitled to more than 2 weeks notice. 4) The affidavit materials filed by the plaintiff provided no evidence of competition or solicitation or imminent danger or threat of such by the defendants. The defendant instructed its employees by memorandum to comply with the plaintiff's requests and guidelines for the duration of their respective notice periods. 5) There was no evidence at all that the defendants induced employees or solicited the plaintiff's clients through them or induced the plaintiff's employees to break any obligations they owed the plaintiff.