SUPERIOR COURT OF JUSTICE – ONTARIO

COURT FILE NO.: Ottawa File 11-52641
DATE: March 19, 2012

RE: TELUS COMMUNICATIONS COMPANY and TM MOBILE INC.

and SHAUN CLAYTON, JOSEPH WANNA and DIANA MROUE

BEFORE: Honourable Mr. Justice Martin James

COUNSEL: Brian N. Radnoff, for the Plaintiffs, Respondents

Patrick Snelling and William Parker, for the Defendant, Moving Party Shaun Clayton

HEARD : February 28, 2012

ENDORSEMENT

James, J.

[ 1 ] By order dated December 8, 2011 McLean, J. granted a Mareva order pursuant to a motion made by the plaintiff without notice. This order was confirmed by Beaudoin, J. on December 16, 2011. One of the defendants, Shaun Clayton, brings this motion to set aside the Mareva order on the grounds that the evidence presented to the court was inadequate, contained misstatements of fact, inadmissible hearsay and failed to satisfy the obligation that the moving party must make full, fair and frank disclosure on motions made without notice.

[ 2 ] The essential allegations of TELUS are that its former employee, the defendant Clayton, an account manager in the Gloucester, Ontario sales office of TELUS, orchestrated the theft of hundreds of hand-held mobile devices such as Blackberrys and iPhones which he sold to the co-defendants, that he frequented various gaming facilities and lost large sums of money through gambling.

[ 3 ] TELUS argues that Clayton shouldn’t be heard on this motion due to his failure to comply promptly with the requirements of paragraph 3 of Justice McLean’s order directing that he disclose his assets in an affidavit. Without ruling on the propriety of this submission, my preference is to deal with Clayton’s request on its merits rather than rely on potential procedural impediments.

[ 4 ] One prong of Clayton’s argument on this motion is that the text messaging (“SMS data”) allegedly exchanged between Clayton and his co-conspirators ought to be ruled inadmissible. Clayton says that the SMS data was not secured from TELUS Corporate Security as deposed by Michael Roussy of the TELUS Corporate Security office but rather was created by a lawyer or lawyers at Lerners LLP in their capacity as counsel for TELUS in this proceeding. Clayton says that the SMS data “created” by Lerners LLP amounts to double hearsay. It appears that the SMS data was imported from a TELUS data storage facility into a spreadsheet format and two columns were added to the spreadsheet at Lerners LLP. The columns that were added contained the putative names of the senders and recipients of the messages. In addition, the identity of the actual sender of the message is merely an assumption made by plaintiff’s counsel and despite strong circumstantial evidence regarding the identity of the sender or recipient of the messages in many instances, Justice McLean was not advised that the only certainty regarding the sender and the recipient was the phone number from which the message originated and the phone number to which the message was sent. There is no suggestion that the time, date, sending phone number, receiving phone number or the actual messages were altered or are inaccurate.

[ 5 ] In my view it is an overstatement to say that the spreadsheet, which the parties have referred to as the “Clayton-Wanna transcript”, was created by plaintiff’s counsel. The text messages themselves have probative value in association with the phone numbers that were assigned to the named individuals. Also, the Roussy affidavit describes the evidence in support of the deponent’s belief that Joe Wanna was the person connected to the phone number attributed to him.

[ 6 ] Secondly, Clayton takes issue with the averments of Robert Fantinic where he says he was told by Susan Saab that the phones listed on the bogus order forms were “delivered” to Clayton. The cross-examination evidence was that the phones were sent to the TELUS office in Gloucester where Clayton worked pursuant to delivery information on the order form which identified Clayton as the recipient, the phones were received by Saab at the Gloucester office, placed in a locked store room and she advised Clayton that the phones had arrived and were available to be picked up. This appears to have been the practice in the office rather than a formal, written policy. Also, it was not clear how many keys for the storeroom were in circulation and who had them. The cross-examination evidence yields a more nuanced view of what was meant by the term “delivered” to Clayton but I am not inclined to treat the averment as misleading.

[ 7 ] Thirdly, Clayton correctly points out that Mr. Fantinic did not speak directly with all six of the specified customers who were shown on the phony invoices as having ordered the phones that apparently went missing. At paragraph 20 of his affidavit sworn November 16, 2011 Fantinic states that “in all these cases, none of the clients actually requested the Hardware that was ordered on their account”. At paragraph 17 of his affidavit of November 18, 2011 Fantinic reinforces this contention and states “I have also confirmed with each of the six clients listed above that: (a) they did not order the units identified in these order forms....”

[ 8 ] On cross-examination Fantinic testified that he only contacted three of the six customers directly and explained the basis for concluding that the other three customers had not requested the equipment either. The cross-examination evidence suggests to me that it was incorrect for Fantinic to say that he had personally contacted all six customers and ascertained that none of them had ordered the phones in question.

[ 9 ] Fourthly, Clayton also correctly points out that Mr. Fantinic incorrectly stated that Clayton resigned on June 14, 2011, effective immediately. In fact, Clayton’s letter of resignation gave two weeks’ notice and it was representatives of TELUS who decided that Clayton should cease work immediately. This mistake is not material to the matters in issue.

[ 10 ] Fifthly, Clayton raises an issue with the circumstances surrounding complaints to Clayton by customers about irregularities with their accounts. The evidence suggests Clayton advised some customers that he would look into the issue complained of or make adjustments to their accounts. Clayton says that the Court was not advised that TELUS had not inquired or investigated to see what actions, if any, Clayton had taken when he received complaints from customers about account irregularities. In fact, there is no evidence that Clayton took any steps to address these complaints. TELUS may simply have assumed that Clayton was merely attempting to deflect their concerns. In my view, TELUS was not under a duty to investigate whether Clayton had performed any corrective actions and report its findings to the Court in the circumstances of this case.

[ 11 ] Sixthly, Clayton takes issue with the delivery by TELUS of documentation requested by police investigators without producing this documentation in this litigation or disclosing it to the opposing parties. At this stage of the litigation the documentary disclosure provisions of the Rules of Civil Procedure are not yet engaged. The plaintiff is entitled to present the theory of its case and the evidence upon which it relies. It must be fair and even-handed in the presentation of evidence. It must be candid in disclosing the limits of its case and any relevant evidence contrary to the theory of its case but I am not aware of any requirement to list every relevant document as part of the process of applying for a Mareva order.

[ 12 ] I am satisfied that there was adequate, admissible evidence before McLean, J. to justify the issuance of the order now sought to be set aside. The subsequent evidence, including the cross-examinations, adduced on this motion does not change this view. I am not persuaded in the circumstances of this case that imperfections in the evidence or in the presentation of evidence should result in the loss of the remedy granted in the first instance. In coming to this conclusion I have considered all of the points raised in Schedule C of the factum of the moving party. An inflexible application of the duty of full and frank disclosure is to be avoided. Imperfections, including the omission of inconsequential facts, are not always fatal. (see Robert Sharpe, Injunctions and Specific Performance , Looseleaf Ed. (Toronto: Canada Law Book, 2001), para. 2.45) Even a finding of material non-disclosure does not automatically lead to the loss of the remedy; it engages the exercise of judicial discretion. If, on the totality of the evidence, it appears appropriate that the order ought to be allowed to stand, it will be permitted to remain in effect. In my view, this is such a case.

[ 13 ] Clayton has not challenged or disputed the allegations at the core of the TELUS case against him with contrary affidavit evidence. He is not under any obligation to do so but the absence of evidence to the contrary usually makes it more difficult to demonstrate that an unfair and one-sided picture has been presented.

[ 14 ] Subsequent to the issuance of the order of McLean, J. criminal charges were laid against Clayton relating to TELUS allegations. The parties are in agreement that paragraph 5 of that order can be deleted and an order will issue accordingly. Other than the agreed amendment to the earlier order, this motion is dismissed.

[ 15 ] At the request of the parties, a sealing order shall issue in relation to the Factum of the Moving Party, the transcript of the cross-examination of Robert Fantinic dated February, 9, 2012 and Appendix C, being a summary of the cross-examination evidence of Mr. Fantinic.

[ 16 ] On the issue of costs, the parties delivered costs outlines at the conclusion of argument. The TELUS outline refers to an Offer to Settle dated January, 31, 2012. As a result of the disposition of this motion, TELUS shall have 10 days to deliver such further costs submissions as counsel may advise and Clayton shall have 10 days to respond.

JAMES J.

Released: March 19, 2012

COURT FILE NO.: Ottawa File 11-52641

DATE: March 19, 2012

ONTARIO SUPERIOR COURT OF JUSTICE B E T W E E N: RE: TELUS COMMUNICATIONS COMPANY and TM MOBILE INC. and SHAUN CLAYTON, JOSEPH WANNA and DIANA MROUE BEFORE: Honourable Mr. Justice Martin James COUNSEL: Brian N. Radnoff, for the Plaintiffs, Respondents Patrick Snelling and William Parker, for the Defendant, Moving Party Shaun Clayton HEARD : February 28, 2012 ENDORSEMENT James, J.

Released: March 19, 2012