Overview
In ITCAD Tech Inc. v. Patel et. al., 2026 ONSC 368, Jordan Cantor and Abby Leung successfully represented Kishan Patel and TechSpirer Inc. before the Ontario Divisional Court, securing a decisive victory against ITCAD Tech Inc. and reinforcing important limits on restrictive covenants.
Mr. Patel, an information technology consultant operating through his personal corporation, TechSpirer Inc., retained Whitten & Lublin to challenge ITCAD’s withholding of earned fees and its attempt to enforce a non-competition clause. At the Superior Court, the Court ordered ITCAD to pay Mr. Patel his outstanding fees and to pay Mr. Patel punitive damages for its refusal to pay him his earned payments. However, the Superior Court decided that Mr. Patel’s non-competition clause was enforceable and that he was in breach of the restrictive covenant, thereby awarding ITCAD damages for Mr. Patel’s breach of the restrictive covenant.
ITCAD appealed the Superior Court’s decision to award punitive damages, while Mr. Patel appealed the Superior Court’s decision to award ITCAD damages for the alleged breach of the restrictive covenant.
Upon appeal, the Court upheld the award of unpaid fees and punitive damages, dismissed ITCAD’s damage award and appeal, and found in favour of Mr. Patel’s cross-appeal. The Court found that the restrictive covenant was unenforceable under common law and dismissed ITCAD’s counterclaim for damages. This decision demonstrates how the lawyers at Whitten & Lublin deliver results for their clients.
Background
Kishan Patel is an information technology consultant who carries on business through his personal corporation, TechSpirer Inc. ITCAD Tech Inc. is a vendor of record for the Ontario government, authorized to supply consultants to government ministries.
In 2021, Mr. Patel sought employment with the Ministry of Health (MOH) and contacted ITCAD to obtain a position. After receiving coaching from ITCAD, Mr. Patel successfully secured a role through ITCAD.
On May 21, 2021, TechSpirer entered into an independent contractor agreement with ITCAD containing a 12-month non-competition clause. A second agreement with similar terms was executed on November 24, 2022.
Under the arrangement, ITCAD billed the MOH for TechSpirer’s services, while TechSpirer billed ITCAD. In February 2023, ITCAD’s vendor of record status was suspended after it was added as a defendant in a fraud action.
Following the suspension, ITCAD directed Mr. Patel through TechSpirer to work through specific alternative vendors of record of their choosing and withheld approximately two months of earned fees to pressure Mr. Patel to do so. Instead, TechSpirer entered into an agreement with a vendor of their choice.
ITCAD refused to pay $31,238.01 owed for February and March 2023, prompting Mr. Patel to commence legal proceedings. The Court ordered ITCAD to pay Mr. Patel his withheld earnings and $15,750.00 in punitive damages, while ITCAD was awarded $17,500 for Mr. Patel’s alleged breach of the restrictive covenants. Both ITCAD and Mr. Patel appealed the decision to the Divisional Court.
Case Details
Plaintiffs’ Position on Appeal (Kishan Patel and TechSpirer Inc.)
Jordan Cantor and Abby Leung argued on behalf of the TechSpirer that:
- ITCAD wrongfully withheld $31,238.01 in earned compensation.
- The withholding of fees breached ITCAD’s implied duty of good faith and fair dealing.
- Punitive damages were justified due to ITCAD’s high-handed conduct.
- The non-compete clause was unenforceable under both the Employment Standards Act and common law.
- ITCAD was using the restrictive covenant to circumvent the MOH’s decision to suspend its vendor status.
- ITCAD had no legitimate interest in preventing Mr. Patel and TechSpirer from preserving their work with the MOH.
They maintained that Mr. Patel and TechSpirer acted reasonably in securing an alternative vendor of record to protect their income.
Defendant’s Position (ITCAD Tech Inc.)
ITCAD argued that:
- The non-competition clause was valid and enforceable. They maintained that the agreements identified TechSpirer as an independent contractor and that the restrictive covenant was reasonable in scope and duration.
- The restrictive covenant served a legitimate business purpose.
- TechSpirer Inc.breached the agreement by working through an unauthorized vendor.
- It was entitled to the initially awarded damages of $17,500 for the breach.
- Punitive damages of $15,750 were unwarranted and excessive.
- The damages should have included HST.
- TechSpirer Inc.conduct justified withholding payment.
Results
The Divisional Court, following Jordan Cantor and Abby Leung’s submissions, dismissed ITCAD’s appeal in its entirety and overturned ITCAD’s damages for breach of the restrictive covenant. In summary, the Divisional Court ruled in favour of the Kishan Patel and TechSpirer Inc.:
- Unpaid Fees Awarded:
Mr. Patel and TechSpirer were entitled to $31,238.01 for services rendered in February and March 2023. - Punitive Damages Upheld:
The Court confirmed that ITCAD’s conduct in withholding compensation was unacceptable and justified punitive damages.
The award of $15,750 for punitive damages, representing approximately 50% of the withheld earnings, was upheld in favour of Mr. Patel and TechSpirer.
- Unenforceable Restrictive Covenant:
The Court ruled on appeal that the non-compete clause was unenforceable under common law and contrary to public interest. - Initial Damages Awarded ITCAD Overturned:
In finding that the non-compete was unenforceable, the damages of $17,500 initially awarded ITCAD for breach of contract was overturned. - Counterclaim Dismissed:
ITCAD’s claim for damages based on the alleged breach of the restrictive covenant was dismissed.
Why Contact Whitten & Lublin Employment Lawyers
This case highlights how experienced lawyers at Whitten & Lublin get results. Jordan Cantor and Abby Leung successfully overturned the original decision to award ITCAD damages for breach of restrictive covenants and successfully upheld the original decision to award punitive damages in cases where a company deliberately withholds payment from workers.
Even when contracts appear restrictive, employment lawyers understand how to assess enforceability, recover withheld compensation, and protect workers’ economic security.
If you are facing withheld wages, unfair contractual restrictions, or wrongful interference with your work, contact Whitten & Lublin. Call (416) 640-2667 or contact us online to book a confidential consultation with an experienced employment lawyer.
Click here to view the full case.
