COURT OF APPEAL FOR ONTARIO
COURT OF APPEAL FOR ONTARIO
COURT OF APPEAL FOR ONTARIO
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Page: 47<br />
to Combined Air, these terms defined the partnership business expansively to include the<br />
servicing and maintaining of HVAC equipment “and all operations related thereto.”<br />
[96] “Compete” is not defined in the acquisition agreement. However, Combined Air<br />
relies on s. 8.18 which provides that an entity shall be “deemed to compete” with it if the<br />
entity sells a product or service that was sold by Combined Air during the five years<br />
before closing to anyone who was a customer of Combined Air during the same period.<br />
Combined Air argues that because CRSC dealt with Hydro One and Primus, which were<br />
both customers of Combined Air during the five-year period before closing, Flesch<br />
breached the non-competition covenant.<br />
[97] Combined Air further submits that the motion judge erred by failing to draw an<br />
adverse inference under rule 20.02(1) from the respondents‟ failure to lead evidence from<br />
CRSC representatives as to whether or not their business was the “same or similar” to, or<br />
competed with, Combined Air. This rule provides that “the court may, if appropriate,<br />
draw an adverse inference from the failure of a party to provide the evidence of any<br />
person having personal knowledge of contested facts.”<br />
[98] We do not accept the submission that the motion judge erred by finding that CRSC<br />
was not a “same or similar” business to, and that it did not “compete” with, Combined<br />
Air. The motion judge properly assessed the evidence that CRSC was a general<br />
contractor that oversaw multiple components of computer room projects. The<br />
respondents provided affidavits from Flesch, Searle and Shawn Thorne, who had worked
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