Another Injunction Declined

Last week, a decision was released in Measuremax v. Nelsons.  There isn't too much factual detail, but it's an instance of an employer having obtained an injunction without notice.  When such an injunction is obtained, it is only for a short period of time and needs to come before the Court for a full hearing as to whether or not to extend it.

Mr. Nelsons worked for Measuremax for several years as a technical information supplier to salespeople.  Nelsons resigned on six weeks' notice, and was sent packing promptly.  Measuremax then became concerned, and came to believe, that he had started conducting competing business while still working for Measuremax, including issuing a client a $15,000 invoice for work he had completed while employed by Measuremax.  There were also allegations that Nelsons was using confidential information to compete.

On the basis of these allegations, Measuremax obtained an injunction.  However, there were apparently innocent explanations for at least some of their evidence, and the motion judge here accepts that no such $15,000 invoice was issued and that Nelsons' work while employed at Measuremax was for Measuremax.  Furthermore, the alleged proprietary information related to bids for contracts with government agencies, and accordingly is public record.

With no non-competition or non-solicitation clause, and no obvious basis for finding fiduciary duties, the employer failed to convince the Court to extend the injunction, failing the test on several fronts.  No irreparable harm was established, and the balance of convenience favoured "the former employee who is entitled to earn a living".  Furthermore, bringing the initial motion without notice couldn't be justified - under such circumstances, you need to show either that you have reason to believe that giving notice will interfere with the relief you're seeking (for example, if you're bringing a motion to seize and search a party's computer, and you expect the party to delete the incriminating data if they have notice), or that the matter is so urgent that the delay associated with proper notice will cause irreparable harm, and in that case it's still expected that the moving party will give informal notice.

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