The parties have a longstanding relationship and worked together to develop the functioning of the App with Kilter’s climbing boards. The exact nature of their respective involvement is disputed. For a number of years, Aurora supplied Kilter with LED Kits without any difficulty; however, when Aurora decided to update its terms and conditions relating to the purchase of the LED Kits, the relationship between the parties soured and Kilter eventually sued Aurora in Colorado.

This dispute eventually led to this litigation in the BC Supreme Court, in which “Aurora seeks an injunction restraining Kilter from breaching the terms of the April 2024 agreement [that partially settled some of the parties’ claims]. Aurora seeks that Kilter be restrained from manufacturing, sourcing, supplying and/or selling LED kits not made by Aurora. Aurora also seeks to restrain Kilter from developing a mobile application using similar ideas, features or functions as the App”.

The court began by setting out the legal principles that govern applications for pre-trial injunctions: “the applicant seeking a pre-trial injunction must demonstrate each of the following: (a)  there exists a serious issue to be tried; (b)  they will suffer irreparable harm if the injunctive relief is not granted; and (c)  the “balance of convenience” favours granting the injunction sought. RJR—MacDonald Inc. v. Canada (Attorney General), 1994 CanLII 117 (SCC), [1994] 1 SCR 311”.

In addition, the court made the following general points:

[77]      Rigid compartmentalization of the factors should be avoided. The factors serve as evidentiary considerations relative to the central question of whether the relative risks of harm to the parties favour the granting or withholding of interlocutory relief: Edward Jones v. Voldeng, 2012 BCCA 295 at paras. 19 and 24.

[78]      The objective of the court at this stage is not to determine the merits of the action, but rather whether the granting of an injunction is just and equitable in all of the circumstances of the case: Google Inc. v. Equustek Solutions Inc., 2017 SCC 34 at para. 1; Vancouver Aquarium Marine Science Centre v. Charbonneau, 2017 BCCA 395 at para. 37.

The court found that “Aurora’s breach of contract claim surpasses the requisite threshold. The claim is neither frivolous nor vexatious”.

But Aurora was unable to clear the second and third elements of the test.

On the second element, the court concluded that the parties’ dispute was commercial in nature, which meant that damages would be an adequate remedy for Aurora’s claims:

[102]   In my view, Aurora’s evidence falls short of establishing that if an injunction is not granted, Aurora will suffer irreparable harm that cannot be quantified in monetary terms. Aurora’s claims against Kilter are mainly rooted in their contention that Kilter has breached the Agreement. Monetary damages would be an adequate remedy should that claim succeed.

[103]   I am not satisfied that Aurora’s reputation will be harmed by Kilter’s alleged actions. It is speculative to suggest that Kilter has held out that non-Aurora LED kits will function properly with the App. Although Aurora, as the App developer, has received complaints about functionality, it is the Kilter product sold to the end user that is the cause of the connectivity issues. It is more likely that Kilter will suffer repercussions from using non-Aurora LED Kits than Aurora will. Aurora has refused and presumably will continue to refuse to connect features of the Kilter board to the App.

Further, the balance of convenience favoured Kilter: “Even if I had found that Aurora would suffer irreparable harm if an injunction was not granted, in assessing which party would suffer greater harm if the injunction is granted or refused, I find that Kilter would suffer greater harm if the injunction was granted”.

In summary, the court decided that “while Aurora has established that there is a serious issue to be tried, I am not persuaded that if the injunction is not granted, Aurora will suffer irreparable harm. Damages will be adequate should Aurora succeed in its claims. The primary evidence Kilter relies on in support of their irreparable harm argument does not rest on a solid evidentiary foundation. Moreover, if the injunction is granted, Kilter will suffer more harm than Aurora”.

The post BC Supreme Court denies application for injunction in commercial dispute, finding plaintiff wouldn’t suffer irreparable harm and balance of convenience favoured defendant first appeared on British Columbia Law Institute.

People Corporation v White Raven Consulting Ltd., 2025 BCSC 2525, concerned an application for “an interlocutory injunction temporarily restraining the defendants, White Raven Consulting Ltd. . . . and its principal, Nickolas Calla, from competing with it, soliciting its clients, or accepting work from its clients pending trial”:

[2]         The application arises from a 2022 transaction in which Mr. Calla sold Eagle Bay Financial Services Ltd. . . .—his Indigenous-focused benefits and retirement advisory practice—and Calla Financial Services Ltd. . . .—his independent financial services agency—to People Corporation for $10.5 million. Before the sale, Mr. Calla owned and operated both Eagle Bay and CFS . . . and had built longstanding, trusted relationships with its clients. Both parties recognized that his reputation in the Indigenous benefits and retirement sector was central to Eagle Bay’s success and that this goodwill made up a significant part of the business’s value. Accordingly, most of the purchase price was allocated to Eagle Bay’s goodwill, trade names, and client relationships.

[3]         As part of the commercial sale of the Companies, Mr. Calla agreed not to compete with his former businesses, solicit their clients, or accept work from their clients for a defined period. To give effect to those promises, he entered into a series of restrictive covenants prohibiting him from engaging in those activities. People Corporation submits that these covenants were essential to protecting the value of what it purchased and that interlocutory relief is now necessary because the defendants are engaging in activities that breach them.

The court assessed these claims using the three-stage test set out in RJR-MacDonald Inc. v Canada (Attorney General), [1994] 1 S.C.R. 311,1994 CanLII 117 (SCC), which “held that the applicant must establish that”:

a)   there is a serious issue to be tried or, in some circumstances, a strong prima facie case;

b)   the applicant will suffer irreparable harm if the injunction is not granted; and

c)   the balance of convenience favours the granting of the injunction.

As a prelude to applying this test, the court noted a specific feature of the dispute at issue, which had an impact on its analysis:

[43]      Courts are expected to be cautious about interfering with contracts negotiated between informed parties of equal bargaining power. Judges are not meant to second guess what those parties considered reasonable in their commercial relationship and public policy generally supports enforcing their agreements and giving effect to their reasonable expectations.

[44]      At the same time, parties cannot contract out of the court’s independent responsibility to assess whether injunctive relief is warranted. Even where a restrictive covenant stipulates that a breach will cause irreparable harm and entitle the purchaser to an injunction, such language cannot displace the court’s obligation to determine for itself whether the legal test for an injunction is met. While remedy stipulations may be relevant and may support an inference of irreparable harm, they are not determinative. The court must ultimately make its own assessment based on the evidence before it.

Given the nature of the parties’ dispute, the court focused much of its attention on the first element of the test. “Ordinarily,” the court observed, “the question is whether there is a serious issue to be tried, meaning that the claim is neither frivolous nor vexatious. However, in some circumstances, a higher threshold of a strong prima facie case is required.”

In this case, the court concluded that the lower standard was appropriate:

[93]      The governing principles, recently reviewed in Northam, confirm that the applicable standard depends on both the covenant’s context and the injunction’s practical impact. Generally, courts apply the serious issue standard in the commercial sale of business context where the injunction merely preserves the status quo, recognizing that parties negotiate such covenants at arm’s length and with counsel. The strong prima facie standard is reserved for exceptional cases—typically employment cases—where the injunction would effectively dispose of the underlying dispute or eliminate the respondent’s livelihood before trial.

[94]      In this case, the restrictive covenants arise from a sophisticated commercial transaction involving a $10.5 million payment that primarily covered the purchase of goodwill, client relationships, and trade names. The covenants were negotiated over many months, were expressly made conditions of closing, were initially proposed by Mr. Calla’s own counsel, and were executed with acknowledgements of reasonableness and independent legal advice. In such circumstances, the common law presumes commercial covenants to be valid and enforceable, subject to a later determination of reasonableness at trial. That presumption accords with Payette, in which the Supreme Court of Canada emphasized that covenants negotiated in a sale-of-business context operate against the backdrop of equal bargaining power and the purchaser’s expectation of non-competition in exchange for consideration.

[95]      I do not accept that the strong prima facie case standard applies to these facts. While the defendants contend that enforcement of the covenants would cause serious hardship, several features of the record mitigate the concern that interlocutory relief would constitute a final determination of the action.

After finding that the lower threshold applied, the court found in short order that the applicant had met the other two stages of the test (irreparable harm and balance of convenience favouring an injunction).

On the last point, there was one unusual feature of this case. The defendant raised public-interest factors as part of the balance of convenience. The court noted this argument, but said it would have to wait to be addressed at trial:

[157]   While our Court of Appeal recently held in Gitxaala v. British Columbia (Chief Gold Commissioner), 2025 BCCA 430 at paras. 92, 143, that DRIPA “requires that British Columbia’s laws be interpreted to conform with the binding international rights, obligations and principles recognized in UNDRIP,” thereby incorporating “UNDRIP in its entirety into British Columbia positive law,” the adjudication of the defendants’ complex public policy argument is best left for trial. At the interlocutory stage, I give limited weight to broad public policy arguments that would effectively resolve contested issues—including the application of DRIPA, the scope of Indigenous economic development rights, and the legality of TIPI-based eligibility requirements—before trial. These issues raise complex questions of fact, regulatory context, and policy that must be assessed on a full evidentiary record. The established public interest principle relevant at this stage is that commercial agreements negotiated at arm’s length, with the benefit of legal advice and significant consideration, should generally be enforced unless doing so would clearly offend the public interest.

“Applying the RJR-MacDonald framework,” the court “concluded that the ‘serious issue to be tried’ standard governs this application. The restrictive covenants arise from a sophisticated commercial sale of the Companies, not an employment relationship, and the injunction sought merely preserves the contractual status quo rather than determining the ultimate rights of the parties.”

The post BC Supreme Court grants injunction restraining Indigenous financial-services business from competing with former employer first appeared on British Columbia Law Institute.