Executive Summary: Key Legal and Evidentiary Issues

• Ballance It Inc. sought an interlocutory injunction against its former general manager, Alexandre Lessard, and his new employer, PNH Enterprises Inc. and BoxWorx Inc., to restrain use of confidential information and client solicitation.
   
• Non-solicitation and confidentiality clauses in Lessard's employment agreement restricted him for twelve months from soliciting Ballance customers or using its confidential information anywhere in North America.
   
• Three Ballance clients — Ovzon AB, SDI, and The Astound Group — transferred their business to BoxWorx shortly after Lessard's departure, though each side offered conflicting explanations.
   
• Questions arose over Lessard's compliance with an earlier order (the Merritt Order) requiring imaging and preservation of his devices, since his computer was later returned to him intact and his iCloud account was never imaged.
   
• Design similarities between BoxWorx and Ballance storage containers raised concerns about possible exploitation of Ballance's proprietary drawings and marketing descriptors.
   
• Under the RJR MacDonald test, the court had to determine whether Ballance established a strong prima facie case, irreparable harm, and a favourable balance of convenience.
   

Facts of the case

Ballance It Inc. rents modified storage containers used for event marketing at festivals, markets, and urban retail plazas. Alexandre Lessard worked for Ballance as general manager of its events container business, giving him access to its customer list, rental rates, and pricing estimates, though final pricing decisions rested with Ballance's principal, Eric Ballance. Lessard signed an employment agreement containing confidentiality and non-solicitation provisions. Ballance terminated his employment on November 5, 2025, and provided a severance package; a separation agreement reaffirmed his post-employment obligations. Within three weeks, PNH Enterprises Inc. hired Lessard to lead a new competing container rental business operating as BoxWorx Inc., where he became General Manager and part owner. BoxWorx soon engaged the same engineering and fabrication firms Ballance had used and launched seven container designs, five of which closely resembled Ballance's models. Three Ballance customers subsequently moved their business to BoxWorx. On June 4, 2026, Ballance obtained the Merritt Order requiring the defendants to image their devices and preserve Ballance's confidential information with defence counsel. Although Lessard's computer was imaged, it was then returned to him intact, and his personal devices and iCloud account were never imaged, leaving him with continued access to Ballance's confidential information.

Policy and legislative provisions at issue

The employment agreement's restrictive covenant (clause 6.4) barred Lessard, for twelve months following termination and anywhere in North America, from soliciting any person or company that had been a Ballance customer or had received a Ballance proposal in the preceding twelve months, from supplying competing goods to such persons, or from directing business away from Ballance. Clause 6.5 imposed a confidentiality obligation over other matters concerning the employer, triggered upon the employer's direction. The court applied the three-part test from RJR MacDonald Inc. v. Canada (Attorney General): whether there is a serious question to be tried, whether the moving party would suffer irreparable harm absent an injunction, and whether the balance of convenience favours granting one. Because Ballance sought a mandatory injunction compelling a positive course of action, it needed to show a strong prima facie case under R. v. Canadian Broadcasting Corp. The court also applied the heightened scrutiny for restrictive covenants set out in Payette v. Guay inc., the reasonableness principles from Mandeville Holdings Inc. v. Santucci, and the rule against "reading down" unreasonable covenants from Shafron v. KRG Insurance Brokers (Western) Inc.

Reasoning and analysis

Justice Mills found the non-solicitation clause reasonable in scope, time, and geography, given evidence that contracts in this industry often take months or more than a year to finalize, and concluded Ballance had established a strong prima facie case for the clause's enforceability. The court rejected the claim that Lessard owed fiduciary duties, noting he held no ownership interest, made no binding operational decisions, and negotiated the agreement from a position of relative bargaining equality. On the solicitation allegations, the evidence regarding Ovzon, SDI, and Astound was conflicting: affidavits described independent client decisions, but cross-examination revealed Lessard had contacted one client by email before formally joining PNH, and other plausible explanations existed for the other transfers. The court held this evidence raised a serious question but fell short of the strong prima facie standard required. On confidential information, the court noted design similarities between the BoxWorx and Ballance containers but found no technical drawings existed for most Ballance designs during the relevant period, undermining claims that Lessard could have exploited them, and that container photographs were publicly available. The court found a real risk of irreparable harm given the defendants' ongoing access to Ballance's confidential information, but declined to order the broad forensic audit Ballance sought, instead directing a further imaging of Lessard's personal devices and iCloud account by a named forensic provider, with removal of Ballance-related material before the devices are returned. On balance of convenience, the court noted the non-solicitation clause was due to expire within two months and that imposing an injunction would effectively extend the covenant beyond what would have been considered reasonable, while any financial harm to Ballance remained compensable in damages.

Ruling and overall outcome

The court declined to grant the interlocutory injunction sought by Ballance, finding it had not met the strong prima facie case standard on either the solicitation or confidential-information claims, and that the balance of convenience favoured Lessard. Lessard remains bound by the non-solicitation and confidentiality terms of his employment agreement for the full twelve-month period. The court ordered a further, more limited imaging of Lessard's personal devices and iCloud account, with Ballance-related information to be identified, returned, and deleted before the devices are returned to him, with Lessard bearing the cost of that review due to his earlier non-compliance with the Merritt Order's intent. Having been mostly successful on the motion, the defendants (Lessard, PNH Enterprises Inc., and BoxWorx Inc.) were awarded costs of $35,000, inclusive of fees, disbursements, and HST, payable within sixty days.