As this scorching summer yields its throne to the cool crisp autumn days, many turn their attention back to the courts.

While lawyers always have their sights set on the judicial courts — and sometimes the court of public opinion — this fall there is some employment law drama playing out on the hard court as well.

The Toronto Raptors terminated their contract with former coach Nick Nurse and hired Darko Rajakovic in June of this year. Fair play for an NBA team and it happens regularly. The story took an interesting turn from the hard court to a legal one when, in August, the New York Knicks filed a lawsuit against the Raptors alleging that the team had engaged a mole on the Knicks staff to share “secret, proprietary information.” That employee, it is suggested, later left the Knicks and joined the Raptors’ coaching staff. The Knicks are seeking damages as well as an injunction.

It is rare to see two professional sports teams battle it out in the courts. However, these types of allegations are quite common in Ontario when an employer hires a new executive or poaches an employee. Employers often fear employees will take customer lists to their new employer, reveal pricing and market strategy, or reveal confidential trade secrets — costing them money and damaging their competitive situation.

The quick and costly solution is the emergency injunction. An injunction is where a court orders that a party, usually the departing employee, stops a particular activity. It is accompanied by a lawsuit for damages where the court also orders that the new employer disgorge itself of the profits obtained from the illicitly acquired information.

In Ontario, where a departing executive or employee joins a competitor with confidential information in hand, the former employer can move for an emergency injunction where there is reason to believe the employee is using the confidential information for their own and their new employers’ gain. If the injunction is successful, the employer would be forced to provide an accounting of all profits gained through the use of this information, and perhaps even stop the employee from working for a certain amount of time. An award for additional damages and costs is also possible. The elements required for an injunction are often quite difficult to prove but, if the facts are there, it is often the right strategy.

We have represented both employers moving for injunction and employees on the receiving end. Heavy-handed employers will sometimes move for an injunction unnecessarily, forcing the employee to defend the action. The employee will often have to bear at least some costs themselves even if successful and it is therefore sometimes used to distract the employee from their new business, causing the employee to spend money and energy when their startup needs it most.

It is obviously never a good idea to take customer lists or other confidential information from your employer. Any profits or commissions an employee or the new employer receives can be ordered repaid. This is an easy way to start on a very bad footing with a new employer as, more often than not, the new employer is also dragged into the litigation. No employer enjoys welcoming a new employee, having to then pay for their court costs.

Whether defending an employee or moving for an injunction for an employer, the costs are astronomical. Most often a lawyer (or two or even three) has to put all other work aside and focus solely on the injunction for a week’s time.

employees accessed the Knicks’ confidential files over 2,000 times, including player videos and scouting reports on other teams. Similar evidence in an Ontario employment context would be ripe for an injunction.

Any profits gained from this information and damages would be up for grabs to make the former employer whole — just short of a slam dunk.