LEXPERT MAGAZINE
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SEPTEMBER 2016 33
HUSKY V. ATHENA AUTOMATION ET AL.
DECISION DATE: APRIL 22, 2016
On April 22, 2016, aer a 22-day hearing
that included testimony from 15 fact wit-
nesses and five experts, Justice Frank New-
bould of the Ontario Superior Court of Jus-
tice (Commercial List) rendered his decision
in a case involving the misuse of confidential
information brought by Husky Injection
Molding Inc. against Husky's founder, Rob-
ert Schad; his new company, Athena Auto-
mation Ltd.; Athena's business partner, SIPA
S.p.A; and Steve Mason, a former Husky and
Athena employee.
Husky alleged that Schad and Athena had
misused Husky's confidential information
and that Schad had breached non-compe-
tition and non-solicitation provisions in his
employment contract with Husky, as well
as having breached fiduciary duties that he
owed to his former company.
Husky also alleged that SIPA had misused
confidential information that it had acquired
through its business relationship with Athe-
na. Husky further alleged that Mason had
misused confidential information acquired
through his employment at Husky, as well
as through his work at Niigon, a charitable
injection-molding plant on the Moose Deer
Point First Nation reserve that has been sup-
ported for years by Schad, Husky and by the
federal and provincial governments.
Schad and Athena brought a counterclaim
against Husky for abuse of process, unjust
enrichment and injurious falsehood.
Justice Newbould dismissed Husky's
claim on several grounds, including that: (a)
the claim was barred by the passage of the
applicable two-year limitations period; (b)
Husky and Athena had previously settled
most of the claims brought; and (c) Athena
and Schad weren't liable to Husky for mis-
using confidential information.
e court similarly dismissed the claim
that SIPA had acquired, and misused,
Husky's confidential information through
Athena Automation.
e court also dismissed the claims
against Mason, as well as Athena and Schad's
counterclaim against Husky.
In his judgment, Justice Newbould noted
the professionalism of all lawyers involved,
writing, "I cannot leave this case without
expressing my thanks and admiration … in
which this case was presented. While there
are obviously difficulties between each side
in this dispute, the lawyers all acted with
reasonableness and courtesy in dealing with
each other and with the Court. is was in
the highest traditions of the bar and they are
to be congratulated."
e trial featured a number of innovative
practices that allowed the parties to bring a
highly complex commercial case to trial on
an expedited schedule.
ese practices involved conducting the
entire trial electronically, and included the
use of iPads by both counsel and the court,
the "chess clock" method of allocating each
party's time at trial, leading evidence-in-chief
by using affidavits and calling expert wit-
nesses in a panel.
Husky was represented by Patrick Flaherty,
Stuart Svonkin and Brendan Brammall of
Chernos Flaherty Svonkin LLP.
Schad and Athena were represented by
Kent omson, James Bunting, Chantelle
Spagnola and Anisah Hassan of Davies
Ward Phillips & Vineberg LLP, as well as
James Raakman of Bereskin & Parr LLP.
SIPA S.p.A. was represented by Peter
Cavanagh and Chloe Snider of Dentons
Canada LLP.
Mason was represented by Gordon
Capern and Michael Fenrick of Paliare Ro-
land Rosenberg Rothstein LLP.
A LOOK AT THE ONTARIO SUPERIOR COURT OF JUSTICE DECISION HUSKY V. ATHENA AUTOMATION ET AL., IN WHICH JUSTICE
FRANK NEWBOULD DISMISSED CLAIMS BROUGHT AGAINST HUSKY'S FOUNDER AND HIS NEW COMPANY, ATHENA AUTOMATION,
IN A CASE ALLEGING MISUSE OF CONFIDENTIAL INFORMATION AND BREACH OF EMPLOYMENT CONTRACT
BIG SUITS
| RECENT LITIGATION OF IMPORTANCE |
NOTEWORTHY DECISIONS
AS SELECTED BY LEXPERT
SIGNIFICANT BUSINESS LAW DECISIONS ORDERED
BY MOST FREQUENTLY VIEWED IN WESTLAWNEXT® CANADA
1) Greater Vancouver Sewerage and Drainage District v. Wastech Services Ltd.,
2016 CarswellBC 94
>
British Columbia Supreme Court
>
Counsel for petitioner:
Irwin Nathanson, QC, of Nathanson Schachter & ompson LLP
>
Counsel
for respondent: Howard Shapray, QC, and Stephen Fitterman of Shapray Cramer
Fitterman Lamer LLP
Contracts — Performance or breach — General principles base — Obligation
to perform — Sufficiency of performance — Duty to perform in good faith
Justice Shelley Fitzpatrick ruled on the judgment.
2) Seidel v. Telus Communications Inc., 2016 CarswellBC 163
>
British Columbia
Supreme Court
>
Counsel for plaintiff: Bruce Lemer of Lemer and Co. and Arthur
Grant of Grant Kovacs Norell
>
Counsel for defendant: Robert Anderson, QC,
and Nicholas Hooge of Farris, Vaughan, Wills & Murphy LLP
Civil practice and procedure — Class and representative proceedings — Repre-
sentative or class proceedings under class proceedings legislation — Certifica-
tion — Plaintiff's class proceeding — Pleadings disclose cause of action
— Identifiable class — Common issue or interest — Preferable procedure
Justice David Masuhara ruled on the judgment.
