Kevin Khamati Oduor

- - - SUPERIOR COURT OF JUSTICE BETWEEN Plaintiff -and- Defendants STATEMENT OF ISSUES OF THE DEFENDANTS Mediation Mediator(s) LSO#: 54473! Counsel for the Plaintiff: Counsel for the Defendant: LSO#: 69072W - - -0000 SUPERIOR COURT OF JUSTICE BETWEEN SAFE-TECH TRAINING INC. Plaintiff -and- R.I.L. SAFETY SOLUTIONS INC. AND SHANROY SHIRLEY Defendants STATEMENT OF ISSUES OF THE DEFENDANTS A. FACTUAL AND LEGAL ISSUES 1. (collectively “Defendants”) humbly submit; among other issues: 2. The Defendants state the following issues are in dispute and remain to be resolved: a) Did the Defendants misappropriate and unlawfully used Plaintiff’s confidential information, trade secrets or other proprietary information? b) Is there a fiduciary relationship between RIL and Safe-Tech? c) Did the Defendants breach the agreement with Plaintiff, including the restrictive covenants? i. Is the non-compete and non-solicitation clause in the Agreement enforceable? ii. If there was a breach, what damages are owed (if any) Court File No. CV- d) Did Plaintiff interfere in the economic interests of Defendants (counterclaim against Plaintiff)? 2. At its core, the dispute brought forth by Plaintiff has raised several allegations against Defendants including allegations related to: a) Misuse and misappropriation of confidential information, trade secrets, and other proprietary information. b) Breach and violation of non-competition and non-solicitation clauses. 3. This brief contains facts and evidence which will show that Defendants did not breach the Agreement between RIL and Safe-Tech. Secondly, the brief will show that contrary to the claim by Plaintiff, Defendants did not misuse or misappropriate Plaintiff’s confidential information, trade secrets, and other proprietary information. 4. Secondly, this brief will show that Defendants did not breach any non-compete and non-solicitation clauses in the Agreement. In any case, RIL was never engaged for any services with GE Peterborough – but rather a third party subcontracted RIL to provide work to GE Peterborough just like RIL had been subcontracted with SafeTech. To add, the brief will show that the non-compete clause in the Agreement is overly broad and unreasonable and thus unenforceable. 5. Third, Defendants seek to show that the Agreement between RIL and Safe-Tech is not one which created a fiduciary relationship contrary to the allegations of Plaintiff. In any case, the realities and working of the Agreement and relationship between RIL and Safe-Tech do not create a situation where RIL agreed to be a fiduciary. 6. Fourth, Defendants wish to prove that Defendants were not responsible for causing any irreparable harm to Plaintiff. It will be proven that GE Peterborough had already terminated its engagement with Plaintiff for 2018. Hence, Plaintiff cannot claim any economic losses for the year 2018 knowing too well that GE Peterborough was closing its plant. 7. Lastly, with evidence, the brief will show that Defendants suffered economic losses and loss of business because of the actions of Plaintiff and its agents tarnishing the Court File No. CV- name of the Defendants. Further, it will be proven that Plaintiff engaged in misrepresentation and false allegation which led to Defendants’ contracts with clients being terminated. B. PARTIES AND BACKGROUND OF DISPUTE 3. Safe-Tech Training Inc. (“Plaintiff” or “Safe-Tech”) is the Plaintiff in the case of a company incorporated in Ontario with a registered office in Bolton, Ontario. 4. R.I.L Safety Solutions Inc. (“RIL”) is a company incorporated under the laws of Canada with a registered office in Toronto Ontario. Shanroy Shirley (“Mr. Shirley”) is an employee of RIL. 5. R.I.L. entered into an Agreement with Safe-Tech on September 26, 2016, where RIL was engaged as a consultant to provide training as an independent contractor. 6. The Agreement was signed between RIL and Safe-Tech, Mr. Shirley is not privy to or a party to the Agreement between RIL and Safe-Tech. Mr. Shirley is not a proper Defendant in the case. 7. The allegations of Plaintiff against Defendants do not meet the legal threshold for piercing the corporate veil. Tab 3 – Email between Shanroy Shirley and Rizzi Alampay from Safe-Tech regarding terms of the Independent Contractor Agreement Tab 4 - Email between Shanroy Shirley and Rizzi Alampay from Safe Tech regarding the Independent Contractor Agreement Tab 5 - Independent Contractor Agreement between Safe-Tech Training Inc. and R.I.L. Safety Solutions Inc. 8. RIL was engaged to provide training services for Safe-Tech clients including GE Peterborough. 9. The Agreement between Safe-Tech and RIL contains an arbitration clause on page 5. Court File No. CV- 10. RIL provided services to Plaintiff from October 2016 to December 2017. GE Peterborough is one of the locations in which RIL provided workplace training and safety services. 11. Around mid-2017 RIL was informed by Safe-Tech that its services will no longer be required, in part, because GE Peterborough was closing. 12. The Agreement between RIL and Plaintiff was terminated on or about December 20, 2017. 13. On or about January 25, 2018, Safe-Tech requested that RIL provide services for GE Peterborough. Despite many requests by RIL, Safe-Tech failed to confirm the scope of work for the provision of services. 14. On or about February 7, 2018, RIL was finally informed of the new scope of work and, at that time, there was a negotiation of the fees as a new agreement was needed. 15. RIL and Safe-Tech did not agree on the fees as Mr. Dukoff of Safe-Tech rejected RIL’s proposed rate. Safe-Tech thereafter offered GE Peterborough a different consultant engaged by Safe-Tech. This consultant was rejected by GE Peterborough. 16. Plaintiff’s negotiation did not bear any success and Fastenal General Electric (“Fastenal”) was selected to provide training services for a short period in 2018 when the plant was in its last phase of operation. Tab 7 - Email from Janice Tarling from Safe-Tech to Shanroy Shirley requesting work for GE Peterborough Tab 9 – Email between Shanroy Shirley and Janice Tarling from Safe Tech regarding the GE Training Tab 10 - Email between Shanroy Shirley and Janice Tarling from Safe Tech regarding the GE Training 17. RIL did not discuss or engage with GE Peterborough in any negotiation for services during the term of the Agreement and after termination. 18. RIL was contacted by Fastenal whether it was interested to work as a consultant and provide safety training services around February 2018. Court File No. CV- 19. RIL agreed to Fastenal’s offer and entered into a contract with Fastenal. No contract was signed between GE Peterborough and RIL. 20. There was no deliberate effort by Defendants to solicit work from GE Peterborough or any other client of Safe-Tech. 21. GE Peterborough acknowledged that it had no formal contract with Safe-Tech and that any company with a relationship with GE Peterborough could be used to provide safety training. GE Peterborough also stated that it had no formal agreement with Safe-Tech and no such agreement has been provided by Plaintiff. Tab 18 - Email from Bill Duff to R.I.L Safety forwarding email exchanges between Heather Ryner and Janice Tarling regarding Quote Requested for Fall Protection & Elevated Work Platform Operator Training. C. THE DEFENDANT DID NOT MISAPPROPRIATE OR USE SAFE-TECH’S CONFIDENTIAL INFORMATION 22. Plaintiff alleges that Defendants used its Safety Training Materials when working with GE Peterborough after the Agreement between RIL and Safe-Tech was terminated. Safe-Tech alleges that it had confidential information, trade secrets, and other proprietary information. 23. Even if Safe-Tech has any such information and material, no such confidential information and the material was shared with Defendants during the performance of the Agreement And if any was shared with Defendants, these training materials are standard and available to the public. 24. In the safety training industry, what is of main importance is the skills and expertise of the trainers. This is because training materials have been standardized and create no competitive advantage. 25. Plaintiff has not provided any evidence or comparison to prove that the training materials or information and materials it claims are proprietary. No details of confidential information, proprietary information, and trade secrets have been provided by Plaintiff. Court File No. CV- 26. Further, most clients in the manufacturing sector have their own internal training handbooks and training material specifically suited to their employees and workplace. 27. Specifically, GE Peterborough had its internal training material and safety materials which Defendants used when providing training. These materials were developed by GE’s head office and used by GE all over the world to train their employees. 28. Plaintiff cannot allege breach of misuse and misappropriation yet the materials which were used belonged to their previous client, GE Peterborough. Look at the following sowing proof of training materials from GE Peterborough that were used by RIL in safety training: Tab 24 - Letter from Bill Duff to Board of Canadian Registered Safety Professionals regarding BCRSP Case 18-002 Tab 1 – GE Crane Safety Program: Medical Evaluation of Crane Operators Tab 2 - GE Crane Safety Manual (Version 1.1) Tab 6 - GE Crane Training Procedure Tab 14 - Email from Bill Duff to R.I.L Safety regarding Fastenal request for training together with Fastenal request for training 29. RIL also has its own Safety and Training materials it had used before entering into an Agreement with Safe-Tech and/or before working at GE Peterborough. RIL has continued to use these materials when dealing with other clients. See below evidence showing RIL training materials: Tab 20 – Letter from Vitra Mohammed regarding Shanroy Shirley Tab 22 - PowerPoint presentation entitled GE Overhead Crane Operations: Level 1 Tab 23 - PowerPoint presentation entitled Overhead Crane Operations 30. Mr. Shirley is a trained Safety Trainer with a good performance record. This is one of the reasons why Plaintiff hired RIL as a consultant. RIL can prepare its Training Materials as per industry standards. Plaintiff’s allegation of misuse and misappropriation of confidential information assumes that Defendants are Court File No. CV- inexperienced and incapable of performing any training work or preparing any training materials. This is a misconception by Plaintiff. 31. The above skill and experience are evidenced by the fact that when Plaintiff recommends another trainer to GE Peterborough to replace RIL and the new trainer is rejected. See below evidence showing the rejection of the consultant by GE Peterborough: Tab 19 - Email from Bill Duff to R.I.L. Safety forwarding email exchanges with Dan Dukoff regarding the issue resolved D. NO BREACH BY DEFENDANTS: THERE WERE NO FIDUCIARY DUTIES OWED TO SAFE-TECH BY DEFENDANTS 32. Plaintiff alleges that Defendants breached fiducial and good faith duties under the Agreement. This allegation is refuted by the Defendants. 33. The Agreement between RIL and Safe-Tech states that RIL is an independent contractor (Page 1 of the Agreement between Safe-tech and RIL). This relationship does not provide for fiduciary duties which are alleged by Plaintiff. 34. The Supreme Court of Canada, in Lac Minerals Ltd. v. International Corona Resources Ltd., 1989 CanLII 34 (SCC), [1989] 2 S.C.R. 574, at pp. 577 to 578 identified the features of a fiduciary. LaForest J. described these as follows: (1) The fiduciary has scope for the exercise of some discretion or power; (2) The fiduciary can unilaterally exercise that power or discretion to affect the beneficiary’s legal or practical interests; and (3) The beneficiary is peculiarly vulnerable to or at the mercy of the fiduciary holding the discretion or power. 35. The relationship between RIL and Safe-Tech did not leave Safe-Tech vulnerable or at the mercy of RIL. Safe-Tech could determine all aspects and activities of the Agreement including the payment rates and which client RIL will work for. For instance, when RIL requested an increase in payment, Safe-Tech brought in another Court File No. CV- Training Instructor intended to work for GE Peterborough. Further, under the Agreement, it was RIL which was at the mercy of Safe-Tech. It controlled the amount of work and could determine which client and the amount of work. 36. Further, the Courts have been reluctant to impose fiduciary duties in the relationship of an independent contractor. Atchison & Denman Court Reporting Services Inc. v. Neeson, 1999 CanLII 14917 (ON SC), [1999] O.J. No. 2652, 1 C.P.R. (4th) 210 (S.C.J.). This approach was adopted in the TSP-INTL Ltd. v. Mills, 2005 CanLII 3945 (ON SC) when it found that an independent contractor did not owe a fiduciary duty despite finding evidence of discretion and some vulnerability: The facts of this case illustrate certain aspects of a fiduciary relationship. Mills was trusted and had been delegated total responsibility for developing and servicing Scepter and other TSP clients. However, Mills did not have discretion with respect to the workings of TSP. All work performed was based upon an honour system. The degree of trust was significant. [page 471] TSP and Brown were vulnerable, particularly in 2002. Mills admitted this fact. However, notwithstanding the presence of some indicia of a fiduciary relationship, I have difficulty finding that the relationship between the parties illustrates a mutual understanding that Mills had relinquished his selfinterest and agreed to act solely on behalf of TSP. I conclude therefore that the plaintiffs have not proved all the required elements for a fiduciary relationship [57]. 37. RIL was an independent contractor of Safe-tech. RIL further worked with other businesses in the safety training industry. It is very difficult to argue that by RIL signing the Agreement with Safe-Tech it had relinquished its self-interest and agreed to work solely on behalf of Safe-Tech. The contract itself shows that the parties never intended for RIL to owe fiduciary duties by providing for an independent contractor status and further providing for a workload which was not guaranteed. Hence, in addition to working on jobs assigned by Safe-Tech, RIL was entitled to seek other jobs from other businesses including competitors of Safe-Tech. Court File No. CV- See page 1 of the Agreement “Safe - Tech cannot guarantee a consistent work schedule as the number of jobs per week will fluctuate depending on customer demand”. Further page 2 provides that – “This agreement does not prevent you from providing services to other customers during the term of this agreement and it is our understanding that you are doing so.” 38. The law governing the duty of good faith relationship, and used in determining whether there is a conflict of interest has been determined to be “muddy”. Transamerica Life Inc. v. ING Canada Inc. (2003), 2003 CanLII 9923 (ON CA), 68 O.R. (3d) 457, [2003] O.J. No. 4656 (C.A.), para. 39. Despite the lack of clarity, the Ontario Superior Court of Justice in Atchison & Denman Court Reporting Services Inc. v. Neeson. para. 81 has outlined the indicia that emerge from case law in determining whether there was a breach of good faith obligation in the context of a contract between parties, one of the key indicia being: -- If one party by their actions eviscerates or defeats the objectives of the contract they have entered into. 39. When applying the duty of good faith and the indicia above, the courts are required to consider the interest of all the parties and the nature of the contract. Atchison & Denman Court Reporting Services Inc. v. Neeson. para. 82. 40. First, the Defendants are not the cause for termination of the Agreement between RIL and Safe-Tech. The Agreement was terminated due in part because the parties refused to agree on a rate of payment leading to Safe-Tech proposing a new consultant on February 8, 2018. Secondly, GE Peterborough did not hire RIL, it was engaged by a third company Fastenal to work as a consultant and provide training services to Fastenal client, GE Peterborough. Any other consultant would have been hired in place of RIL. RIL had no obligation to reject work from other third parties. E. NO BREACH BY DEFENDANTS: THE AGREEMENT WAS IMPROVIDENT AND THEREFORE UNENFORCEABLE Court File No. CV- 41. There was an unequal bargaining power between Safe-Tech, a highly established business, and RIL which was a small business with one employee. The unequal bargaining power was present in the parties' negotiation and the pricing in 2018. The Agreement was drafted by Plaintiff who presented it to RIL on September 23, 2016. 42. The negotiations between the parties were non-existent. The term of the Agreement started on September 27, 2016, which was the day the Agreement was signed. 43. Due to this imbalance, RIL wanted to renegotiate higher fees in order to renew the agreement when the Agreement was terminated. The reason for this was that RIL was paid considerably less under the previous Agreement. 44. The Agreement between RIL and Safe-Tech is marred by an unequal bargain between the parties. Considering the contents of the agreement and the rights, obligations, and remedies available to all parties the unequal bargain is evidenced by a lack of reciprocal obligations, rights, and remedies favouring RIL. Provisions dealing with confidentiality (Page 2 of the Agreement) and ownership of material (Page 4 of the Agreement). Unequal bargaining power can be established in these scenarios even if duress and undue influence have not been demonstrated. Norberg v. Wynrib, [1992] 2 S.C.R. 226, at pp-. A bargain is improvident if it unduly advantages the stronger party or unduly disadvantages the more vulnerable. Uber Technologies Inc. v. Heller [2020] 2 SCR 118 [74]. The Agreement shows evidence of improvidence. Safe-Tech had an unduly advantage putting RIL in a position of unduly disadvantage. Safe-Tech is the stringer party, being a more established business having drafted the Agreement – and RIL is the weaker party being a starting business, without any opportunity to negotiate the fees and terms of the Agreement. F. THE AGREEMENT WAS TERMINATED IN DECEMBER 2017 46. The Agreement has specific termination provisions. On page 1 the Agreement provides that: Term Court File No. CV- R.I.L. Safety Solutions Inc. services under this agreement will start on Tuesday, September 27, 2016, and will be ongoing unless this agreement is terminated in accordance with the paragraph below entitled “Termination”. Safe-Tech cannot guarantee a consistent work schedule as the number of jobs per week will fluctuate depending on customer demand. 47. The above clause infers that it must be read alongside the provisions covering the termination of the Agreement. Termination is provided on page 5 of the Agreement: Termination If your services are unsatisfactory to us, or you breach any term of this agreement, we may terminate this agreement without notice to you. Otherwise, this agreement may be terminated by either of us upon 30 days' written notice and all outstanding invoices paid in full. 48. Sometimes in mid-2017, Safe-Tech advised RIL that its services will no longer be required in 2018 because GE Peterborough was closing. This was a notice of termination of the Agreement which was issued to RIL under the Agreement. This is not denied by Safe-Tech. Around December 20, 2017, the Agreement was terminated. Beginning in 2018, there was no contractual relationship between RIL and Safe-Tech. 49. This is evidenced by the fact that Safe-Tech approached RIL on or about January 25, 2018, requesting that RIL provides training services to GE Peterborough. This started a stream of negotiations between the parties whereby RIL requested several times to be provided with the scope of work. 50. There was no confirmation until on or about February 7, 2018, when RIL was informed of the new scope of work by Safe-Tech. The parties started negotiating fees for a new contractual engagement. 51. On or about February 8, 2018, Safe-Tech rejected RIL's proposed rate and thereafter offered GE Peterborough a different consultant engaged by Safe-Tech, which was rejected by GE Peterborough. Court File No. CV- 52. RIL asserts that the Agreement was terminated on or around December 20, 2017. In any case, if the Agreement between was not terminated at this time, the Agreement was terminated when Safe-Tech procured the services of another consultant implying non-satisfaction with the services offered by RIL. G. NON-COMPETITION AND NON-SOLICITATION CLAUSE WAS UNENFORCEABLE 53. The non-competition and non-solicitation clauses were too broad and general to be enforceable. 54. Plaintiff alleges a breach of non-competition and non-solicitation clauses of the Agreement. Defendants deny these allegations in two ways. 55. Defendants submit that the non-competition and non-solicitation clauses are overly broad and offend public policy. All restraints of trade are contrary to public policy and are prima facie void unless they can be justified as being reasonable taking into account: (a) the parties; and (b) the public: Nordenfeld v. Maxim Nordenfeld Guns & Ammunition Co. Ltd., [1894] A.C. 535 at p. 565; Elsley v. J.G. Collins Ins. Agencies Ltd., 1978 CanLII 7 (SCC), [1978] 2 S.C.R. 916; Doerner v. Bliss & Laughlin Industries, 1980 CanLII 50 (SCC), [1980] 2 S.C.R. 865. 56. The classification of what contracts are in restraint of trade is fluid and the categories are never closed: Esso Petroleum Co. Ltd. v. Harper’s Garage (Stourport), [1968] A.C. 269 (H.L.) at p. 317. p. 337. The demands of public policy also change as economic conditions change; public policy is not a constant: Vancouver Malt & Sake Brewing Co. v. Vancouver Breweries Ltd., 1934 CanLII 271 (UK JCPC), [1934] 2 D.L.R. 310 at p. 314; Stephens v. Gulf Oil Canada Ltd. (1975), 1975 CanLII 711 (ON CA), 11 O.R. (2d) 129 (C.A.) at p. 137. 57. RIL is a small business with one employee dependent on other large safety providers and manufacturing businesses many of whom may have interacted with Safe-Tech. Hence public policy should prohibit enforcement of the non-compete clause due to Court File No. CV- the niche status of the safety training sector. Enforcement of these clauses may render RIL unable and incapable of earning any income. 58. To determine whether a covenant in restraint of trade is enforceable, a four-part inquiry is employed: Tank Lining Co. v. Dunlop Industrial Ltd. (1982), 1982 CanLII 2023 (ON CA), 40 O.R. (2d) 219 (C.A.). First, does the covenant restrain trade? Second, is the restraint one of the exceptional cases (for example, covenants associated with leases of commercial tenancies may contain enforceable restrictive covenants) where restraints of trade are permitted? Third, is the restraint justifiable as reasonable between the parties? Fourth, is the restraint justifiable as reasonable with respect to the interests of the public? The party seeking to enforce the covenant bears the onus of showing that the covenant is reasonable, and the party seeking to avoid the covenant bears the onus of showing that the covenant is not reasonable in the public interest: Stephens v. Gulf Oil Canada Ltd. supra; Tank Lining Co. v. Dunlop Industrial Ltd., supra. 59. Plaintiff has not established that the non-competition clause is reasonable and without meeting this prima facie burden of proof any claim related to non-competition under the Agreement be dismissed. 60. The question of reasonableness between the parties and in reference to the public interest is determined in the context of the facts of the case: Elsley v. J.G. Collins Ins. Agencies Ltd., supra, at p. 924; Tank Lining Co. v. Dunlop Industrial Ltd., supra at p. 230. In Elsley, Justice Dickson stated: In assessing the opposing interests, the word, one finds repeated throughout the cases is the word "reasonable." The test of reasonableness can be applied, however, only in the peculiar circumstances of the particular case. 61. Reasonableness is determined in the light of circumstances existing at the time the contract is made, which includes the parties’ expectations of what possibly could happen in the future: Stephens v. Gulf Oil Canada Ltd., supra; Tank Lining Co. v. Dunlop Industrial Ltd. at para. 18. Examining the surrounding circumstances requires an examination of both the nature of the business to be protected by the covenant, including its trade secrets, confidential information, and trade connections, and also the role and Court File No. CV- circumstances of the person to be bound by the covenant, including whether he or she was an ordinary employee or whether his or her activities were or would be integral to the business and whether he or she was in a senior position or a position of influence: H.L. Staebler Co. v. Allan, supra, at paras. 47, 55-58; Reed Shaw Osler Ltd. v. Wilson, [1981] A.J. No. 693 at para. 18 (Alta. C.A.); Mason v. Provident Clothing and Supply Co., supra at p. 742. 62. The relationship between RIL and Safe-Tech was neither an employee, integral to the business of Safe-Tech, in a senior position, nor a position of influence. RIL was easily replaced by Safe-Tech when the parties disagreed on the rates of payment. Another consultant was forwarded to GE Peterborough when parties failed to agree on payments. 63. RIL was operating as an independent contractor. The actual status of employment of an independent contractor makes it impossible to enforce such an overly wide noncompete agreement. Further, the safety training industry is a niche industry and enforcing such a clause would offend public policy. Looking at the circumstances and nature of the business of RIL, it is a small business in a niche industry. 64. In both the commercial and the employment context, if a covenant is ambiguous in the sense that it does not clearly define the prohibited activities, the territory of its operation, and the time of its operation, it is unreasonable and unenforceable: Shafron v. KRG Insurance Brokers (Western) Inc., 2009 SCC 6 at paras. 27, 43; Mason v. Chem-Trend Limited Partnership, 2011 ONCA 344 at para. 14. A covenant will be ambiguous if the person bound by it can't predict what activities are precluded by the covenant: Globex Foreign Exchange Corporation v. Kelcher, 2011 ABCA 240 at paras. 13-19; Mason v. Chem-Trend Limited Partnership, 2011 ONCA 344 at para. 16. 65. The non-competition clause in the Agreement between Safe-Tech and RIL is overly broad and unreasonable. The clause does not provide or outline the territory of operation and the specific prohibited activities. As per the holding and principles in Martin v. ConCreate USL Limited Partnership, 2012 ONSC 1840 (CanLII). Court File No. CV- H. IF ANY SUCH CLAUSES ARE ENFORCEABLE, DEFENDANT DID NOT SOLICIT OR COMPETE WITH PLAINTIFF. 66. For reference, the non-competition and non-solicitation clauses can be found in 4 of the Agreement. 67. RIL entered into an Agreement with Fastenal and not GE Peterborough. When RIL negotiated and signed this Agreement. RIL was not aware that one of the clients of Fastenal was GE Peterborough. After signing the contract with Fastenal, one of the clients who was assigned to RIL is GE Peterborough. In the case of GE Peterborough, Fastenal was the competitor to Safe-Tech, not RIL. Fastenal also has a longstanding relationship with GE Peterborough even before it entered into a contract with RIL. See the evidence below which shows that Fastenal and GE Peterborough had a longstanding relationship independent of RIL. Tab 8 - Letter from Bill Duff to Mitch Goulding See the evidence below which shows that RIL was engaged in a contract with Fastenal and not GE Peterborough. Tab 11 - Provision of Safety Consulting Services and Training Agreement between Fastenal-General Electric and R.I.L. Safety Solutions Inc. 68. RIL did not solicit work from GE Peterborough. RIL is also a stranger to the contractual negotiations and discussions between GE Peterborough and Fastenal. RIL was not in negotiation or business with GE Peterborough when RIL entered into an agreement that was contracted with Fastenal. The relationship and dealing between Fastenal and GE Peterborough pre-dates the time when RIL was engaged with Safe-Tech to work at GE Peterborough. 69. Safe-Tech lost its business with GE Peterborough because of the closure of the GE plant and secondly because of the conscious decision of GE Peterborough to engage another service provider – Fastenal. 70. The Agreement between RIL and Safe-Tech did not preclude RIL from accepting work from Safe-Tech competitors. An interpretation which prevents RIL from working Court File No. CV- with Safe-Tech competitors is contrary to public policy. This is an interpretation that Plaintiff is seeking. 71. All services which RIL provided to GE Peterborough were provided on behalf of Fastenal, RIL being an independent contractor consultant. It thus goes that RIL did not solicit or compete with Safe-Tech. 72. By general definition, soliciting means that RIL was asking or requesting or persuading the clients of Safe-Tech to terminate their contractual engagement with Safe-Tech. No such evidence has been provided. In any case, GE Peterborough had already terminated or intended to terminate its engagement with Safe-Tech even before RIL was engaged as an independent contractor with Fastenal. GE Peterborough had informed Safe-Tech that its services will no longer be required as far as mid-2017. I. PLAINTIFF IS NOT ENTITLED TO ANY DAMAGES, IF THERE IS ANY BREACH, THE DAMAGES ARE MINIMAL 73. The Plaintiff is alleging damages to the tune of $250,000 as particularized in the claim. Defendants refute any breach and further refute these outrageous figures claimed by Plaintiff and submit that Defendants do not owe Plaintiff any damages. 74. Plaintiff has failed to particularize and provide confidential materials which it alleges to have been misappropriated and misused by the Defendants. Without proof, no such damages can be granted to Plaintiff. 75. Secondly, Defendant did not breach any non-solicitation or non-competition clauses. RIL was engaged by a Fastenal and not GE Peterborough who was the client of SafeTech. This fact disproves the claim of breach of non-compete and no-solicitation claims by Plaintiff negating the damages associated thereof. 76. Third, and crucially, Plaintiff did not suffer any economic losses as it had already known that the GE Peterborough plant was closing and would not operate from 2018. 77. If any damages are owed, they are minimal due to the reason: Court File No. CV- a. Plaintiff did not lose any economic benefit due to the reason that GE Peterborough had informed Plaintiff that the plant will be closing and hence Plaintiff’s services were no longer required. Safe-Tech communicated this to RIL and it is one of the reasons why Safe-Tech terminated the contract with RIL. Plaintiff was aware that the income which it previously received from GE Peterborough will not be available in 2018. b. RIL was contracted by Fastenal as an independent contractor and hence it is Fastenal which paid RIL for services which RIL provided by RIL under the independent contractor contract. c. GE Peterborough ceased operation in 2018 just like it had informed Safe-Tech in mid-2017. d. RIL did not receive significant income from the contract which it entered into with Fastenal due to the closure of GE Peterborough. J. THE DEFENDANTS’ COUNTERCLAIM AGAINST PLAINTIFF – INTERFERENCE WITH THE DEFENDANTS ECONOMIC INTEREST 78. Defendants counterclaim against Plaintiff for a total sum of $85,000 plus all applicable taxes, in damages for the loss of business of the Occupational Safety Group Inc. due to misrepresentations made by Safe-Tech, its employees or agents and any person or entity acting on its behalf or in concert with it. See the contract between RIL and OSG which was terminated because of Plaintiff’s misleading information about Defendants: Tab 21 - Supply of Subcontract Trainers/Consultants Agreement between Occupational Safety Group Inc. and R.I.L. Safety Solutions Defendants seek a declaration that any amount owed by Plaintiff by Counterclaim to Defendant shall be set off against Plaintiff by Counterclaim’s damages. 79. Defendants seek a prejudgment and post-judgment interest in accordance with sections 128 and 129 of the Courts of Justice Act, RSO 1990, c C.43, as amended; Court File No. CV- 80. Lastly, Defendants seek costs of this proceedings, plus all applicable taxes plus any further relief which the Arbitrator/Arbitrator deem fit. 81. These damages and counterclaims are based on the following grounds: a. Plaintiff interfered with the work and economic interests of Defendants. Around February or March 2018, Dukoff, the principal or former principal of Safe-Tech, accosted, bullied, and harassed hotel staff to improperly obtain information about the Defendants to obtain “evidence”. RIL and Mr. Shirley believe that this attempted gathering of “evidence” by Plaintiff was meant to intimidate him and to persuade him to sever ties with his customers. b. Through its representatives and agents, Safe-Tech falsely advised prospective and current customers in the industry generally that Mr. Shirley and RIL are bound by non-competition and non-solicitation agreements with Safe-Tech, and seeking to induce customers by intimidation, retaliation and threats designed to make the prospective and current customer to refrain from dealing with RIL. These efforts are expressly designed to damage the economic interests of R.I.L. Safety and are wrongful. c. On June 4, 2018, Safe-Tech made a false and misleading complaint to the Professional Conduct Committee of the Canadian Registered Safety Professionals. d. Further, Safe-Tech sent messages and emails to current and prospective clients of RIL improperly and made unlawful allegations which tarnished and tainted the professional reputation of the Defendants leading to dwindling economic prospects for the Defendants. Safe-Tech improperly alleged that Defendants had breached ethical and professional standards. These allegations only emerged when RIL refused to agree to a new scope and fees. See below evidence of economic sabotage committed by Plaintiff: Tab 15 – Email from Dan Dukoff to Nikki Wright forwarding email from Paul Cardoza regarding Shanroy Shirley/GE together with letter from The Miller Group Court File No. CV- Tab 16 - Email from Bill Duff to R.I.L Safety forwarding email from Heather Ryner regarding a conversation with Dan Dukoff e. Safe-Tech actions made Defendant lose the business deal it had with Occupational Safety Group Inc. because RIL lost earnings and income. Defendants’ relationship with the Occupational Safety Group Inc was tarnished because of Plaintiff's conduct of tarnishing the business reputation of Defendants specifically through conversations between Dan Dukoff of Safe-Tech and the Occupational Safety Group Inc. This led to the termination of the contract between Plaintiff and Occupational Safety Group Inc. The Defendants would have continued to earn considerable income from its engagement with Occupational Safety Group Inc. f. The Defendants state that Plaintiff’s claim for accounting is misconstrued. RIL has already disclosed all the invoices which were sent to Fastenal and not by GE Peterborough. Plaintiff has not alleged and proved any cause of action which would entitle it to the remedy of accounting. g. Safe-Tech failed to pay Defendants fully for work which RIL performed under the Agreement. If there are any damages against the Defendants, the payment due and owed to Defendants under the Agreement should set off any damages. K. LEGAL CONSIDERATIONS 82. Given the facts, evidence, and legal arguments which have been submitted and adduced in this brief, it is reasonable and legally justified to conclude that Plaintiff’s claim is frivolous and unmerited. The claim by Plaintiff lacks legal and factual backing which proves the allegations made against Defendants. 83. The damages which Plaintiff seeks from Defendants are not justified. 84. Defendants have shown good faith by disclosing all the earnings which RIL made pursuant to the training services undertaken when engaged with Fastenal. 85. On its part, Plaintiff has not shown any good faith or cooperation. They have not revealed any specific details regarding their allegation concerning confidential information, trade secrets, and other proprietary information. Court File No. CV- 86. Further, Plaintiff acted in bad faith by failing to fully pay RIL. Plaintiff did not forward the last cheque to RIL. 87. Plaintiff also engaged in unlawful conduct to tarnish and destroy the business reputation of the Defendants reducing their ability to work in an already niche safety training industry. 88. If any damages are awarded the above factors ought to be considered. 89. DOCUMENTS RELIED UPON AND ATTACHED TAB DESCRIPTION Documents and Correspondence 1. November 1, 2014 GE Crane Safety Program: Medical Evaluation of Crane Operators 2. February 15, 2016 GE Crane Safety Manual (Version 1.1) 3. September 22, Email between Shanroy Shirley and Rizzi Alampay 2016 from Safe-Tech regarding terms of the Independent Contractor Agreement 4. September 23, Email between Shanroy Shirley and Rizzi Alampay from 2016 Safe- Tech regarding the Independent Contractor Agreement 5. 6. September 27, Independent Contractor Agreement between Safe- 2016 Tech Training Inc. and R.I.L. Safety Solutions Inc. April 5, 2017 GE Crane Training Procedure Court File No. CV- 7. January 25, 2018 Email from Janice Tarling from Safe-Tech to Shanroy Shirley requesting work for GE Peterborough 8. January 29, 2018 Letter from Bill Duff to Mitch Goulding 9. January 30, 2018 Email between Shanroy Shirley and Janice Tarling from Safe- Tech regarding the GE Training 10. February 5, 2018 Email between Shanroy Shirley and Janice Tarling from Safe- Tech regarding the GE Training 11. February 13, 2018 Provision of Safety Consulting Services and Training Agreement between Fastenal-General Electric and R.I.L. Safety Solutions Inc. 12. March 1-4, 2018 Email exchange between Shanroy Shirley and SafeTech regarding Safe-Tech’s alleged breach of the contract 13. April 5, 2018 Email from Dan Dukoff to Hermie Abraham regarding Safe- Tech vs. Shanroy/RIL 14. July 25, 2018 Email from Bill Duff to R.I.L Safety regarding Fastenal request for training together with Fastenal request for training 15. October 1, 2018 Email from Dan Dukoff to Nikki Wright forwarding email from Paul Cardoza regarding Shanroy Shirley/GE together with letter from The Miller Group 16. December 20, 2019 Email from Bill Duff to R.I.L Safety forwarding email from Heather Ryner regarding conversation with Dan Dukoff Court File No. CV- 17. December 20, 2019 Email from Bill Duff to R.I.L. Safety forwarding email exchange between Bill Duff and Dan Dukoff regarding Paul Cardoza 18. December 20, 2019 Email from Bill Duff to R.I.L Safety forwarding email exchanges between Heather Ryner and Janice Tarling regarding Quote Requested for Fall Protection & Elevated Work Platform Operator Training 19. December 20, 2019 20. December 27, Email from Bill Duff to R.I.L. Safety forwarding email exchanges with Dan Dukoff regarding issue resolved Letter from Vitra Mohammed regarding Shanroy Shirley 2019 21. Undated Supply of Subcontract Trainers/Consultants Agreement between Occupational Safety Group Inc. and R.I.L. Safety Solutions 22. Undated PowerPoint presentation entitled GE Overhead Crane Operations: Level 1 23. Undated PowerPoint presentation entitled Overhead Crane Operations 24. Undated Letter from Bill Duff to Board of Canadian Registered Safety Professionals regarding BCRSP Case 18-002 Invoices 25. February 20, 2018 Invoice No. 18-0007 from R.I.L. Safety Solutions Inc to Fastenal in the amount of $3,051.00 Court File No. CV- 26. March 1, 2018 Invoice No. 18-0008 from R.I.L. Safety Solutions Inc to Fastenal in the amount of $3,051.00 27. March 8, 2018 Invoice No. 18-0010 from R.I.L. Safety Solutions Inc to Fastenal in the amount of $3,051.00 28. March 15, 2018 Invoice No. 18-0012 from R.I.L. Safety Solutions Inc to Fastenal in the amount of $3,051.00 29. March 21, 2018 Invoice No. 18-0014 from R.I.L. Safety Solutions Inc to Fastenal in the amount of $3,051.00 30. March 26, 2018 Invoice No. 18-0015 from R.I.L. Safety Solutions Inc to Fastenal in the amount of $3,051.00 31. April 5, 2018 Invoice No. 18-0016 from R.I.L. Safety Solutions Inc to Fastenal in the amount of $3,051.00 32. April 11, 2018 Invoice No. 18-0019 from R.I.L. Safety Solutions Inc to Fastenal in the amount of $3,051.00 33. April 16, 2018 Invoice No. 18-0021 from R.I.L. Safety Solutions Inc to Fastenal in the amount of $3,051.00 34. April 26, 2018 Invoice No. 18-0022 from R.I.L. Safety Solutions Inc to Fastenal in the amount of $5,977.70 35. April 30, 2018 Invoice No. 18-0023 from R.I.L. Safety Solutions Inc to Fastenal in the amount of $3,051.00 36. May 24, 2018 Invoice No. 18-0026 from R.I.L. Safety Solutions Inc to Fastenal in the amount of $3,051.00 Court File No. CV- 37. May 28, 2018 Invoice No. 18-0027 from R.I.L. Safety Solutions Inc to Fastenal in the amount of $4,576.50 38. June 8, 2018 Invoice No. 18-0029 from R.I.L. Safety Solutions Inc to Fastenal in the amount of $4,576.50 39. June 18, 2018 Invoice No. 18-0032 from R.I.L. Safety Solutions Inc to Fastenal in the amount of $3,051.00 40. June 26, 2018 Invoice No. 18-0033 from R.I.L. Safety Solutions Inc to Fastenal in the amount of $9,040.00 41. July 3, 2018 Invoice No. 18-0034 from R.I.L. Safety Solutions Inc to Fastenal in the amount of $7,232.00 42. July 13, 2018 Invoice No. 18-0035 from R.I.L. Safety Solutions Inc to Fastenal in the amount of $9,040.00 43. July 19, 2018 Invoice No. 18-0036 from R.I.L. Safety Solutions Inc to Fastenal in the amount of $7,232.00 44. July 27, 2018 Invoice No. 18-0037 from R.I.L. Safety Solutions Inc to Fastenal in the amount of $9,040.00 45. July 31, 2018 Invoice No. 18-0038 from R.I.L. Safety Solutions Inc to Fastenal in the amount of $3,616.00 Date: March 25, 2023 Court File No. CV- Lawyers for the Defendants To: Suite 2750, 145 King Street West Toronto ON M5H 1J8 LSO#: 544731 LSO#: 69072W Lawyers for the Plaintiff.