COURT OF APPEAL FOR ONTARIO

Page: 40
action against the respondents, William Flesch, James Searle and related companies. The
action included a claim for damages for alleged breaches of restrictive covenants by the
respondent Flesch.
[78] The restrictive covenants were contained in an acquisition agreement pursuant to
which Combined Air purchased a heating, ventilating and air conditioning (“HVAC”)
business from the respondents. Following the acquisition, Flesch provided consulting
services for Strategic Property Management, a property manager, and later worked for
Computer Room Services Corporation (“CRSC”), a company engaged in designing,
building and maintaining customized computer and information technology (“IT”)
infrastructure facilities. Combined Air alleged that Strategic Property Management and
CRSC were engaged in businesses similar to, and in competition with, Combined Air,
and that Flesch violated the restrictive covenants.
[79] The motion judge found that Combined Air failed to adduce any evidence to
support its various allegations against the respondents, including the allegations that
Flesch‟s employers were engaged in businesses similar to, or in competition with,
Combined Air.
[80] Before reaching the conclusion concerning CRSC, the motion judge considered a
document advanced by Combined Air that listed CRSC as a bidder, along with some of
Combined Air‟s HVAC competitors, for a project for the City of Pickering. The motion
judge made an order under rule 20.04(2.2) directing the respondents to present oral