COURT OF APPEAL FOR ONTARIO

Page: 44
breached the restrictive covenants in the acquisition agreement by working for Strategic
Property and CRSC, since those companies were in the “same or similar” business or
competed with Combined Air.
[88] On the hearing of the motion, Combined Air acknowledged that it had no case
against Searle for the claim of breach of the restrictive covenants and that he had been
joined as a defendant because of an indemnification clause in the acquisition agreement.
Combined Air conceded that if Flesch‟s motion were granted, the action against Searle
should also be dismissed.
[89] The motion judge granted summary judgment dismissing the action. He found that
there was no evidence raising a genuine issue requiring a trial on any of the claims
advanced by Combined Air. On appeal, Combined Air only challenges the motion
judge‟s holding that the restrictive covenant claim failed to raise a genuine issue
requiring a trial.
[90] The motion judge found it was abundantly clear that neither Strategic Property nor
CRSC “competes” with Combined Air. Strategic Property is a property management
company. It is not a licensed HVAC contractor and does not perform HVAC contracting
services for its clients. As for CRSC, it does not sell the same products as Combined Air;
nor does it sell to the same customers. CRSC designs, builds and maintains controlled
environments to support IT infrastructure. It is a general contractor that oversees
components of the computer room project. It does not and cannot do any HVAC work.