COURT OF APPEAL FOR ONTARIO

Page: 45
Both Strategic Property and CRSC hired Combined Air to do HVAC work for them in
the past. The motion judge concluded, at para. 34: “A company that cannot do HVAC
work and has to hire a subcontractor to do this work is not in the same or similar business
as the HVAC subcontractor.”
4. The Motion Judge’s Order for Oral Evidence Under Rule 20.04(2.2)
[91] In attempting to raise a genuine issue requiring a trial on the question whether
Flesch was in breach of the restrictive covenants due to his work for CRSC, Combined
Air relied on a document containing the “unofficial bid results” for a project for the City
of Pickering. That document listed CRSC and four other bidders – three of which were
known HVAC contractors who competed with Combined Air. Combined Air submitted
that the presence of these three competitors implied that CRSC was also competing with
Combined Air.
[92] To understand this document and assess the weight that it should be given, the
motion judge directed the presentation of oral evidence under rule 20.04(2.2). He invited
the defendants to call a witness, ideally from CRSC, who was familiar with the Pickering
bid, and made it clear to counsel that the focus of the hearing was on the Pickering bid
alone and that examination-in-chief and cross-examination were strictly limited to this
specific and narrow point. He directed Combined Air‟s counsel in the following terms:
“[Y]ou must limit yourself to the focus of the Pickering document. It‟s not a freewheeling
cross-examination of [CRSC‟s] business.”