Injunction Application Fails – No Evidence Of Continuing Breach

In Mark Fairbanks Professional Corporation v. T.G. Michelson Professional Corporation, 2023 ABKB 53, Justice R.A. Neufeld denied an application for an injunction based on allegations of breaches of a non-solicitation agreement and the tort of passing off. This case provides critical commentary on the "balance of convenience" portion of the RJR Macdonald Test, holding that courts should be very reluctant to order an injunction unless there is evidence of a continued breach.

It is important to note that the context of this dispute centers around restrictive covenants in the commercial context rather than the employment context. While this changes some aspects of the analysis (i.e., the presumption against enforceability in employment law), the Court's comments on irreparable harm and balance of convenience are very relevant to employment law.