



COURT OF APPEAL FOR ONTARIO

CITATION: Calvise v. Tripemco Burlington Insurance Group
    Limited, 2017 ONCA 989

DATE: 20171215

DOCKET: C63463

Hourigan, Brown JJ.A., and Himel J. (
ad hoc
)

BETWEEN

Carmine Calvise, CJCF Investment Corp., MacMillan
    Lawson Insurance Brokers LTD.  Douglas MacMillan

Respondents

and

Tripemco Burlington Insurance Group Limited

Appellant

Ray Di Gregorio, for the appellant

Stephen Gleave and Sean Sells, for the respondents

Heard and released orally: December 11, 2017

On appeal from the order of Justice Kim A. Carpenter-Gunn
    of the Superior Court of Justice, dated February 3, 2017.

REASONS FOR DECISION

[1]

The
appellant, Tripemco Burlington Insurance Group Limited
    (Tripemco), sued the respondents, Carmine Calvise and his personal
    corporation, CJCF Investment Corp., for damages for breach of non-solicitation
    and non-interference covenants contained in a December 20, 2013 Asset Purchase
    Agreement (APA) and related Non-Disclosure and Non-Solicitation Agreement
    (NDA). Tripemco also sought a permanent injunction enforcing the covenants,
    which ran for two years until December 16, 2015. Tripemco joined in the action
    MacMillan Lawson Insurance Brokers Ltd., the brokerage Calvise joined upon his
    resignation from Tripemco, as well as its principal, Douglas MacMillan.

[2]

All defendants moved
    for summary judgment. The motion judge granted summary judgment and dismissed
    the action. Tripemco appeals only in respect of the respondents, Calvise and
    CJCF.

[3]

On the summary judgment
    motion, the appellant admitted the non-interference clause in the NDA was likely
    unenforceable. Accordingly, the narrow issue Tripemco raises on appeal is the
    motion judges finding that the non-solicitation clauses in the APA and NDA
    were unreasonable and therefore unenforceable.

[4]

Tripemco submits the
    motion judge made several errors in interpreting the non-solicitation covenant,
    including failing to interpret the reasonableness of the covenant binding the
    respondents in light of a mutual restrictive covenant binding Tripemco.

[5]

Although we have some
    concerns about the interpretive approach of the motion judge, in our view this
    appeal can be determined on another basis. Tripemco sought damages for breach
    of the 2-year non-solicitation covenant and an injunction enforcing the
    covenant. The 2-year period covered by the covenant expired on December 16,
    2015. In her reasons, the motion judge specifically found that there is no evidence
    showing that Mr. Calvise solicited clients of the plaintiff. Tripemco does not
    contend that finding of fact is tainted by palpable and overriding error.
    Tripemco acknowledges there is no direct evidence in the record from a former
    client stating it was solicited by Calvise. Given that state of the evidence,
    it was open to the motion judge to make the finding of fact that she did. In
    light of that finding of fact, Tripemco could not succeed in its action even if
    the motion judge erred in concluding the non-solicitation covenant was not
    enforceable.

[6]

Accordingly, we see no
    reason to interfere with the judgment dismissing the action.

[7]

The respondents are
    entitled to their costs of the appeal fixed in the amount of $15,000, inclusive
    of disbursements and applicable taxes.

C.W. Hourigan J.A.
David Brown J.A.
Himel J.


