Badger Infrastructure Solutions Ltd (“Badger”) sought an Interim Injunction pending Trial. In September 2023, Badger terminated Mr. Parent-Walker for cause. Shortly thereafter, in November 2023, Mr. Parent-Walker commenced employment with a competitor, Ontario Excavac Inc (“OE”). Badger alleged that Mr. Parent-Walker violated the Confidentiality, Non-Solicitation and Non-Competition Agreement (the “Restrictive Covenant Agreement”) by soliciting its employees and customers, and that OE conspired with him in these breaches. Mr. Parent-Walker denied any breaches and argued that Badger waived its rights to enforce the agreement, while OE argued that Badger inappropriately sued in Alberta, since all relevant events occurred in Ontario.

Simard J. observed that, while the Defendants objected to the Action being initiated in Alberta, they failed to formally challenge the Court’s jurisdiction by filing an Application under Rule 11.31 to set aside service of the commencement documents. Justice Simard emphasized that the Defendants actively participated in the Application process by engaging in questioning, submitting evidence, and providing both written and oral submissions. Further, Simard J. found that the Restrictive Covenant Agreement, which Badger sought to enforce, contained a clause granting exclusive jurisdiction to the Courts of Alberta. As a result, Justice Simard was satisfied that there was appropriate jurisdiction to hear the Application.

Despite this, the Court found that Badger failed to satisfy the tripartite test for injunctions as set out in RJR-MacDonald v Canada (Attorney General), [1994] 1 SCR 311. Specifically, Badger failed to establish a strong prima facie case against Mr. Parent-Walker or a serious issue to be tried against OE, leading Simard J. to dismiss the Application for an Interim Injunction without addressing the remaining steps of the test.