Ballance It Inc. asked the Ontario Superior Court to restrain former general manager Alexandre Lessard and his new competing business after customers moved to the competitor and concerns arose about confidential information. Lessard had signed 12 month non solicitation and confidentiality obligations, and several customers moved their business after he joined a competing container rental operation. The factual record, however, did not give the court a clear enough basis to conclude at the interlocutory stage that Lessard had actually breached those obligations.
The court found that the non solicitation clause itself appeared enforceable, but that was only one part of the analysis. Ballance still had to establish the heightened strong prima facie case required for the mandatory relief it sought. The evidence about solicitation and use of confidential information remained contested. With the restriction also nearing the end of its 12 month life, the court was not prepared to impose the broad restraint requested where damages remained available if Ballance ultimately proved its case.
The court did identify a narrower concern. Earlier preservation steps had not resulted in complete imaging of Lessard's personal devices and iCloud account, leaving a real issue about retained company information. Rather than granting the broader injunction, the court ordered a targeted forensic process so Ballance related material could be identified, returned and deleted. The defendants, who were largely successful on the motion, received $35,000 in costs.
The decision separates two questions that can easily be blurred in restrictive covenant disputes. A court may be satisfied that a contractual restriction is reasonable and potentially enforceable without being satisfied that the evidence proves a breach strongly enough to justify immediate injunctive relief. The narrower forensic order also shows how a court can address confidential information concerns without imposing the full commercial restraint an employer seeks.