The Ontario Superior Court of Justice has denied a motion by BMO Nesbitt Burns Inc. seeking an injunction against two former investment advisors that jumped ship for rival RBC Dominion Securities.

BMO Nesbitt was seeking an injunction against two brokers, John Ord and Darren Wolpert, that resigned from the firm in May to join DS.

BMO Nesbitt wanted an order restraining Ord and Wolpert from soliciting any of Nesbitt’s clients, in the case of Ord for 12 months and in the case of Wolpert for six months, on the ground that they are in breach of their obligations to Nesbitt. It also sought an order restraining DS on the ground that it assisted them in breaching their obligations.

The court ruled that Nesbitt met the test of establishing that there is a serious issue to be tried. However, it failed to demonstrate that an injunction was warranted to prevent it suffering “irreparable harm”.

“In my view, the question of whether permanent market loss constitutes irreparable harm is not simply one of establishing permanent market loss. Rather it has to be considered having regard to all the facts of the case,” wrote Judge Pattillo in the court decision. “Here the evidence establishes that the $175 million of assets managed by Ord represented 2.6% of the total assets under administration at the branch where Ord worked and less than .2% of all of the assets Nesbitt has under administration. More importantly, however, and as I have found, the loss is capable of being calculated in monetary terms. Accordingly, while the loss of the clients’ assets is not insignificant and may represent permanent market loss, on the facts of this case it is not irreparable.”

The judge noted that in light of the conclusion that Nesbitt has failed to establish irreparable harm, it didn’t need to spend a great deal of time weighing the balance of convenience as to whether or not to grant the order.

Nevertheless, the judge wrote, “In my view, on the facts of this case, the balances of convenience tips in favour of the defendants and not granting the injunction. While the assets Nesbitt has lost and may additionally lose in the future are significant, there is no question that Nesbitt will remain in business. In addition and as I have found, the loss is capable of monetary calculation. On the other hand, if the injunction is granted, even for the limited period requested, it would severely restrict the ability of Ord and Wolpert to earn a living for the time it was in place.”

“I think it is also important to consider in this discussion the interests of the clients about who the fight is really all about and who are entitled to have access to the investment advisor of their choice,” the judge added.

Therefore, the motion was dismissed.