PROVINCE OF QUEBEC
January 9, 2020
UNDER THE PRESIDENCY OF
FRÉDÉRIC BACHAND, JCS
GOAL EQUIPMENT OF GOAL MICHEL LEFEBVRE INC.
- and -
SPORT MASKA INC.
TRANSCRIPTION OF THE JUDGMENT HELD ON JANUARY 9, 2020
( interim interlocutory injunction )
 The plaintiffs wish the Court to issue, at the provisional stage, an interlocutory injunction which would essentially have the effect of ordering the defendant to cease making use, which they consider unlawful, of confidential information belonging to them.
* * *
 The applicants have been working for several years in the design and manufacture of goalkeeper equipment intended for professional and amateur hockey players. Until December 31, 2019, they were bound to the defendant by a license, manufacturing, development and technical consultation agreement  .
 The expiration of this agreement ended a long-standing partnership in which the parties had joined forces in the manufacturing and marketing of various ranges of goalkeeper equipment.
 Under this P-5 agreement, the defendant had recognized that it would have access to confidential information belonging to the claimants. This notion of confidential information is defined as follows in article 2.1.4:
" Confidential EGB Information " includes, but is not limited to i) all technical knowledge, non-patented inventions, technical drawings, secrets and processes (templates, pre-molded parts, assembly boxes, etc.) relating to the manufacture of EGB products , ii) the identity of EGB employees, their functions and their remuneration, iii) financial information relating to EGB except information which i) becomes part of the public domain without the fault of Maska or its representatives, ii ) are already known to Maska at the time of their disclosure; or iii) are provided to Maska by other persons who do not breach an obligation of confidentiality towards EGB.
 The defendant had also recognized the importance - for the applicants - of this confidential information, and it undertook not to use it other than for the purposes of the agreement  .
 Other provisions imposed on applicants similar obligations with respect to confidential information belonging to the defendant  .
 There is also a provision in Article 11 of the agreement stating that "[e] ll secrets and manufacturing processes, and all discoveries, ideas or inventions and creations [...] designed, developed or emanating from one of the parties or its employees will be the exclusive property of said party ”.
 Furthermore, it was expressly provided that all the obligations relating to confidential information would survive the termination of the agreement  .
* * *
 The dispute arose when the applicants learned at the end of December 2019, in the middle of the World Junior Hockey Championship, that the defendant had started to market leggings which they consider practically identical to the leggings which they manufacture themselves on behalf of many professional goalkeepers. In their view, the leggings are so similar that they were necessarily manufactured by the defendant using confidential information belonging to them, and therefore in violation of Convention P-5.
 It should be noted that, under the terms of the agreement, the applicants had reserved the right to continue manufacturing the most upscale equipment intended for professional goalkeepers working in certain markets, including Canada and the United States.  . However, as the defendant's representative - Ms. Sonya Di Biase - acknowledges in her affidavit  , it sometimes happened, during peak periods, that the defendant agreed to help the plaintiffs by manufacturing some of these high-end equipment for professional goalkeepers. It can therefore be deduced that the defendant had access to all the information necessary for the manufacture of this equipment.
* * *
 Since this is a request for an interim interlocutory injunction, the applicants must establish  :
1) an appearance of right;
2) that the issuance of the orders sought would prevent serious or irreparable harm during the course of the proceeding;
3) that, in the event that these orders are not issued, they would suffer greater prejudice than that which the defendant would suffer if such orders were issued;
4) that there is an urgency to intervene before the hearing of the request at the interlocutory stage.
 It is important to bear in mind that, at the provisional stage, these criteria must be applied with "much more rigor" in view of the "extremely exceptional [l] and urgen [t]" nature of the Court's intervention, and that "if there is any doubt [,] the request must be rejected"  .
* * *
 With regard to the first criterion, that of legal appearance, it should be noted that the Court of Appeal noted in Groupe CRH Canada inc. that this criterion is "generally undemanding", which means that it is usually sufficient to find that, on the merits, the request is "neither frivolous nor vexatious"  .
 It is clear that Convention P-5 limits the use that the defendant can make, since January 1 st , of confidential information belonging to the plaintiffs.
 This finding is obviously not sufficient, in itself, to conclude that there appears to be a right capable of giving rise to the orders sought by the applicants. However, the latter must demonstrate, on the basis of information currently on the file, the apparent merits of their claim that the defendant actually made illicit use of their confidential information and that it is likely to continue to do so. do by then a possible hearing at the interlocutory stage.
 This is where things get tough for applicants.
 The latter did not produce any expertise in the file, which is understandable given that they have not yet had physical access to the leggings in dispute.
 The main evidence they rely on is Exhibit P-12, which contains a series of photos of the new leggings that the defendant recently introduced, photos taken during the last World Junior Hockey Championship. These photos are accompanied by photos of the leggings which the defendant previously marketed and of those which the applicants currently market.
 It appears from the photos produced under the symbol P-12 that the defendant's new leggings are, at least in appearance, both different from those which it marketed before and very similar - in several respects - to those marketed by the plaintiffs . However, it cannot reasonably be concluded that this fact alone is sufficient to establish a violation of Article 2.1.4 of the agreement. The reason is that this provision very clearly excludes from the concept of confidential information any information that is in the public domain, and it is precisely this kind of information that is found in Exhibit P-12: These are characteristics relating to the design and the type of materials used, characteristics which any member of the public is able to observe and which therefore have no confidential nature - whether in general or within the meaning of article 2.1. 4 of the agreement.
 These photos tell us nothing about the manufacturing processes used by the defendant. They also tell us nothing about the other characteristics of the leggings that are not visible to the naked eye. Contrary to what the plaintiffs seem to claim, it cannot reasonably be inferred from the mere fact that several aspects of the leggings are apparently very similar to the naked eye any use by the defendant of "technical knowledge, [...] technical drawings [or] processes […] relating to the manufacture of EGB Products ”  which are not part of the public domain.
 It is true that, as I pointed out above, it appears from the record that the defendant had access to all the information necessary for the manufacture of the high-end equipment usually produced by the plaintiffs on behalf of goalkeepers professionals. In addition, it can reasonably be assumed that this information was at least partly composed of confidential information within the meaning of article 2.1.4 of the P-5 agreement. However, the fact that the defendant is in possession of certain confidential information and that it has the possibility of using it unlawfully certainly does not tend to demonstrate, in itself, that it did in fact make illegal use of it. Let's not forget that good faith is presumed: article 2805 CCQ
 In sum, the evidence currently on the record is not sufficient to conclude that the claimants have a reasonable chance of success. It certainly cannot be excluded that, by the interlocutory stage, they will collect additional evidence which will further support their claims. However, even a reasonable possibility that they may improve their evidence in the more or less near future is not sufficient or even relevant at this stage. Given the rigor required at the provisional stage, it is important to limit the analysis of the issue of the appearance of law in the record as it stands at the hearing, and not to extend it to the record as it may be constituted at a later stage of the proceeding.
 It should however be recalled that, in the event that they do manage to improve their evidence, the claimants may resubmit their request at the interlocutory stage, which request will be examined de novo by the judge who will be seized of it  .
 It must therefore be concluded that the request for an interlocutory injunction was rejected in the current state of the file, despite the fact that the arguments that the plaintiffs put forward with regard to serious prejudice, the preponderance of disadvantages and in the emergency seemed to me very solid.
* * *
 In conclusion, allow me to remind the parties that Convention P-5 contains provisions relating to mediation and arbitration which very clearly reflect their intention to resolve any dispute arising therefrom out of court. It is obviously up to the parties to decide to invoke these clauses, but they would undoubtedly have an interest in reflecting very seriously on the advisability of availing themselves of the mechanisms they have agreed upon in order to avoid getting bogged down in complex and costly.
 It should also be recalled the obligations of good faith, transparency, cooperation and loyalty which are incumbent on the parties under articles 19 and 20 CCP Yesterday afternoon, the defendant said it was open to make available to the applicants a copy of the leggings that she recently launched. We can only encourage such an exchange of information between the parties, hoping that this will allow them to quickly resolve their dispute.
FOR THESE REASONS, THE COURT:
 REJECTS the applicants' provisional interlocutory injunction;
 JUSTICE FEES to follow.
FRÉDÉRIC BACHAND, jcs
Me Jean-Luc Couture
Me Julie Banville
Therrien Couture Joli-Cœur sencrl
Me Kristian Brabander
Me Amanda Gravel
McCarthy Tétrault sencrl, srl
Counsel for the defendant
January 8 and 9, 2019