(2) Injunctions are only given when there is an irreparable harm that cannot be cured by monetary damages ~ there was no irreparable harm resulting to Zipper before trial if injunctive relief was denied
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(3) on the balance of convenience between plaintiff & defendant, “beggaring Korstrom serves no interest, save revenge” since Korstrom would effectively be prohibited from making a living in the courier / trucking business in Winnipeg, and would suffer markedly greater harm from the injunction – which (ironically) might prevent Korstrom from paying damages after trial.
The Man QB judge applied the test set out in Elsley v J. G Collins Insurance Agencies Limited and found that the agreement (non compete clause) was (1) reasonable and (2) that it would not be contrary to public interest. The judge allowed the injunction on these grounds. HOWEVER, the court of appeal held that the QB judge used the WRONG TEST. The Elsley test is used to ascertain whether a restrictive covenant (in this case a noncompete clause) is enforceable. THIS HAS NOTHING TO DO WITH WHETHER AN INJUNCTION SHOULD BE ALLOWED.
Accordingly, the Man CA judge set out a three part test to determine whether an Interim Injunction will be allowed: (p.953, quoting Metropolitan Stores):
