IN THE SUPREME COURT OF NOVA SCOTIA
Citation: Franzen Trucking v. Adams, 2005 NSSC 263
Date: 20051012
Docket: SY250177 & SY250175
Registry: Yarmouth
Between:
Ray Franzen Trucking (2003) Ltd.
Applicant
v.
Douglas Adams and John Hall
Respondents
Judge: The Honourable Justice Allan P. Boudreau
Heard: July 14, 2005, in Yarmouth, Nova Scotia
Written Decision: October 12, 2005
Counsel: Michael K. Power, for the Applicant - Ray Franzen Trucking (2003 Ltd.
Andrew S. Nickerson, Q. C., for the Respondents - Douglas Adams and John Hall
By the Court:
[1] This is an application by Ray Franzen Trucking (2003) Ltd., I should say two applications. One against Douglas Adams, and one against John Hall for injunctions preventing them, the way the orders are drafted, from contacting or soliciting the customers of the Applicant for trucking business or contracts.
[2] Ray Franzen Trucking runs a business which primarily caters to the fishing industry. Mr. Hall and Mr. Adams are basically truck drivers. Mr. Hall testified that he had been, I believe driving - transporting - working in the woods, or transporting wood or something, before he contacted Ray Franzen Trucking and worked for Ray Franzen Trucking from about 2001 to this year.
[3] Sometime in 2004 Mr. Hall was requested to sign an agreement, a Non-Competition and Secrecy Agreement, in a contract with Ray Franzen Trucking, which he did. Those contracts are in evidence indicating that Mr. Hall would not be able to solicit the customers of Ray Franzen Trucking.
[4] There certainly is a serious dispute of fact with regard to Mr. Hall as to who breached the contracts. Mr. Hall alleges that he was asked to do things which were not proper and, moreover, Mr. Hall testified that he is only an employee of Shoreline. He presently trucks wherever he is told to go. He has no direct contact with soliciting the business.
[5] Mr. Hall is not an owner of Shoreline Trucking, and there’s no evidence that he is in breach of the agreements that he signed, even if they were enforceable.
[6] With regard to both Mr. Hall and Mr. Adams, a troubling aspect of this application is the nature of the business; particularly, who are customers? As correctly pointed out by counsel for the Respondents, the fish brokers and fish plants are well known in this area. There are no exclusive contracts, there are no exclusive customers. The business is tendered, bid for, or requested, and it’s a very free willing and fluid business, and truckers bid to get the business. They offer their services at the best rates they can.
[7] So there certainly doesn’t seem to be any confidentiality or secrecy or anything of the sort with regard to the customers of this business. They are going and coming on a regular basis.
[8] The confidential information, as I understand it, alleged to be possessed by a person like Mr. Hall or Mr. Adams is that because there was a percentage payment from the business that they did for Franzen, then they would have some insight into Franzen Trucking’s prices? Not pricing strategies but prices.
[9] It seems to me that the applicant has failed to prove that there is really any confidential information that is of any serious use to truckers. They bid the best prices they can and provide the best service they can. The affidavits make allegations back and forth about improper dealings or improper contact with some of the local customers. There certainly is a large dispute of fact about that; as to who breached the agreements first and whether the defendants were properly terminated.
[10] So the facts certainly are not clear. I have to look at that in assessing the three criteria for an injunction. What is the prima facie case?
[11] There certainly are some serious issues to be tried. Firstly, whether in fact there is such a thing as a list of customers. I gather that there is not, based on the evidence of all the witnesses. There appears to be no such thing as a list of customers. There are customers out there and truckers vie for the business, but there are no on going contracts. The business is tendered very regularly and bid regularly.
[12] So the prima facie case on both of those issues: who are the customers and who breached these agreements, is going to be the subject of a lot of conflicting and adversarial evidence, as already indicated by the affidavits on the file.
[13] With regard to irreparable harm to the Applicant; there hasn’t been a lot of evidence on that issue. I assume the Applicant is asking the Court to take judicial notice of the fact that it may be difficult if he was succeeded in an action which it has yet to commence; that it may be difficult to ascertain what the losses or damages might be and to prove causation.
[14] However, I’m not satisfied at this stage, based on the evidence that I have heard, that if Mr. Franzen’s business was up or down, and presumably down as he alleges, that it was due to any actions of Mr. Hall or Mr. Adams. And that again goes not only to go irreparable harm but to the prima facie case, proving causation.
[15] The overriding factor in this case, in my view, in spite of the agreements as contented by counsel for Mr. Franzen and Ray Franzen Trucking, is the balance of convenience. When I look at that fact that there are really no exclusive customers here and no customer list per say, there is just business out there to be sought; and that’s what happens regularly. These two defendants are basically truck drivers, who want to continue to drive a truck and offer the best rates that they can.
[16] As pointed out by counsel for the Respondents it appears to make logical sense that this business is arranged over the phone quite often and negotiated and truckers give the best rates that they can to get the business.
[17] If one were to grant an injunction as requested, it would probably be difficult to ascertain who are customers and who are not customers, the effect would be to put two truckers out of employment. With regard to the balance of convenience I can’t see it favouring the Applicant as stressed by counsel for Ray Franzen Trucking. It seems to me that the balance of the convenience at this stage would lie with the Respondents and not with the Applicant.
[18] Looking at all those tests, I’m not satisfied that an injunction is the proper remedy or that the Court should interfere at this stage of these proceedings. The matter should be left to a court action, if one is commence.
[19] Therefore, the request for injunctions in both the Hall and the Adams matters is denied. The applications are dismissed.
Boudreau J.