CITATION: Gary Anthony Bennett Professional Co. v. Triella Co., 2017 ONSC 5474

COURT FILE NO.: CV-17-2877-00

DATE: 20170919

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Gary Anthony Bennett Professional Corporation

Applicant

AND:

Triella Corp.

Respondent

BEFORE: Ricchetti, J.

COUNSEL: G. Bennett for the Applicant (GAB)

E. Upenieks for the Respondent (Triella)

HEARD: September 6, 2017

ENDORSEMENT

Contents

BACKGROUND.. 2

The IT information/data on BLC/MLC servers: Amicus Attorney. 3

GAB’s Cloud Infrastructure Services. 5

The Litigation. 5

July 5, 2017 Court Appearance. 6

July 12, 2017 Court Appearance. 6

July 13, 2017 Court Appearance. 7

Triella’s Position on the Motion. 9

Gary Bennett’s Position on the Motion. 10

ANALYSIS. 11

Did the Consent Order require Gary Bennett to pay Triella?. 11

Should the Application be dismissed?. 12

COSTS. 14

[1] This was a motion by Triella to dismiss the Application for failure to comply with this court’s order of July 13, 2017 ("Order").

BACKGROUND

[2] The background to this highly contested litigation is necessary.

[3] Gary Bennett and Dawn Bennett are lawyers (together referred to as the “Bennetts). The Bennetts practiced law together as "partners" but through a corporation, Bennett Law Chambers Professional Corporation ("BLC") in which each owned 50% of the corporation.

[4] The Bennetts also established law chambers for use by other lawyers. Again, this was done through a corporation equally owned by the Bennetts, called Mississauga Law Chambers (“MLC”).

[5] The applicant is Gary Bennett’s new legal corporation (“GAB”)

[6] Triella was the IT supplier to BLC and MLC. Triella is owned, at least in part, by the Bennetts' cousin.

[7] The Bennetts had a falling out in 2016.

[8] When it became clear the Bennetts had to separate their practices and business, GAB entered into an agreement with Triella for IT services for "Cloud Infrastructure".

[9] At approximately the end of February 2017, the Bennetts decided to physically separate their law offices necessitating the completion of the separation of their IT information/data located on servers in BLC/MLC.

[10] Dawn Bennett was to acquire Gary Bennett’s shares in MLC. Gary Bennett was to move to new chambers.

[11] Arrangements were made to separate the remaining IT information/data in BLC/MLC.

[12] A portion of the IT information/data, the PC Law files, were separated by the Bennetts. No issue appears to arise regarding this IT information/data.

[13] The Amicus Attorney information/data, which remained on the BLC/MLC servers, was not separated or downloaded by Gary Bennett prior to his leaving the BLC/MLC premises. This becomes one issue in this proceeding.

[14] Gary Bennett also seeks access to the “cloud infrastructure” created by Triella.

The IT information/data on BLC/MLC servers: Amicus Attorney

[15] On March 27, 2017 Gary Bennett moved his physical client files and personal effects to other premises. This essentially cut him off from any access to BLC/MLC servers or the IT information/data stored on these servers.

[16] Why Gary Bennett hadn’t separated/downloaded the IT information/data on the BLC/MLC servers (the "Amicus Attorney information/data") prior to his departure remains unknown. Up until his departure, the Amicus Attorney information/data was accessible to Gary Bennett. Triella had explained how Gary Bennett could retrieve the Amicus Attorney information/data.

[17] Gary Bennett, having left the BLC/MLC premises without having downloaded or retrieved his IT information/database, no longer had access to the BLC/MLC servers and could not download or retrieve the IT information/data he needed.

[18] Dawn Bennett was to have acquired Gary Bennett’s share in MLC on April 30, 2017. Whether this was completed or not is unclear, but what is clear is that Gary Bennett no longer has access to BLC/MLC’s premises or servers after he left the BLC/MLC premises. Gary Bennett’s ownership in BLC or MLC is not an issue in this Application.

[19] Dawn Bennett transitioned her IT service provider to a third party provider other than Triella.

[20] Gary Bennett sought Triella’s assistance to provide him with access to the Amicus Attorney information/data. Triella, caught in the dispute between the Bennetts, was not prepared to access the Amicus Attorney information/data without the authorization of Dawn Bennett – who Triella believed was the new owner of BLC/MLC. That consent was not forthcoming.

[21] Triella was now caught between the disputing Bennetts.

[22] Triella advised Gary Bennett how to proceed to separate the Amicus Attorney information/data but, because Triella was no longer the BLC/MLC IT provider, this was something that needed to be accomplished with the consent and cooperation of both Bennetts.

[23] There was an impasse on the Amicus Attorney information/data.

GAB’s Cloud Infrastructure Services

[24] As stated above, Triella agreed to and provided cloud infrastructure services to Gary Bennett (actually to GAB). There was a 2016 written contract to this effect. In order to provide this service, Triella pays third party suppliers.

[25] After a number of months, Gary Bennett failed or refused to pay Triella’s accounts for GAB’s Cloud Service. Accommodations for payment were made for some time but non-payment remained an issue.

[26] Despite not having paid Triella, in April or May 2017, GAB sought the passwords, encryption passwords, and a copy of the IT information/data on the GAB Cloud Infrastructure Service.

[27] Triella insisted on payment. There was an impasse on the Cloud Infrastructure Service.

The Litigation

[28] By early summer, Gary Bennett claimed that he needed the Amicus Attorney and the GAB Cloud Service to carry on his law practice.

[29] On July 2, 2017, Gary Bennett’s counsel demanded from Triella:

a) a copy of all relevant data, information, usernames and passwords with respect to Amicus Attorney software (“Amicus Attorney information/data”); and

b) to be provided with all servers and data (including passwords, documentation and configuration information) relating to the GAB Cloud Infrastructure Service (“GAB Cloud Infrastructure information/data”).

[30] The Applicant brought this Application. In essence, GAB sought:

a) A mandatory Order directing Triella to provide GAB the Amicus Attorney information/data; and

b) A mandatory Order directing Triella to provide GAB with the GAB Cloud Infrastructure information/data.

July 5, 2017 Court Appearance

[31] The Application came before this court on July 5, 2017. The Application was adjourned to July 12, 2017 so that, Dawn Bennett, who was not a party to this Application but who was the apparent owner of BLC/MLC where the Amicus Attorney information/data resided, be served.

July 12, 2017 Court Appearance

[32] On July 12, 2017, Dawn Bennett was granted standing on the Application. A timetable was set for the hearing of the Application.

[33] The immediate concern of Gary Bennett was access to Amicus Attorney information/data and GAB Cloud Infrastructure information/data to carry on his practice. Gary Bennett sought an interim order compelling Triella to provide the Amicus Attorney information/data and the GAB Cloud Infrastructure information/data.

[34] The parties were directed to return on July 13, 2017 because, given the complexity of what needed to be done for access to the Amicus Attorney information/data and GAB Cloud Infrastructure information/data, the parties needed to speak with their IT advisers to work out the wording of an interim order that would permit Gary Bennett immediate access to this IT information/data.

July 13, 2017 Court Appearance

[35] The parties returned on July 13, 2017.

[36] The parties, on consent, agreed on wording that would permit Gary Bennett to immediately obtain the Amicus Attorney information/data and GAB Cloud Infrastructure information/data.

The Amicus Attorney information/data

[37] The parties agreed Triella was to have no role in the transfer/retrieval of the Amicus Attorney information/data. That was to be a matter to be accomplished between the Bennetts and their respective new IT suppliers.

[38] The Bennetts, through counsel, agreed on wording for a consent order regarding transfer/retrieval of the Amicus Attorney information/data.

[39] Despite the consent order on July 13, 2017, the Bennetts were unable to complete the transfer/retrieval of the Amicus Attorney information/data. Dawn Bennett opposed Gary Bennett's access to the Amicus Data on the basis it also contained her IT information/data for which she claimed confidentiality/privilege.

[40] On July 28, 2017, this court issued an order that Gary Bennett was entitled to a copy of the Amicus Attorney information/data to April 30, 2017, the last date the parties had agreed the information would be shared. Dawn Bennett had access to the Amicus Attorney information/data to April 30, 2017. There was no reason that Gary Bennett not have equal access to the same IT information/data. Written reasons were issued.

[41] There appears to be no remaining issue regarding the Amicus Attorney information/data.

The GAB Cloud Infrastructure information/data

[42] On July 12, and 13, 2017 discussions also took place between Triella’s counsel and Gary Bennett’s counsel and their respective client and IT supplier on the question of exactly how to provide GAB with access to the GAB Cloud Infrastructure information/data.

[43] On July 13, 2017, it was agreed that, upon Gary Bennett paying Triella the outstanding amounts on a without prejudice basis, Triella would provide with respect to the GAB Cloud Infrastructure information/data: “all passwords, documentation, and configuration related specifically the GAB Law firm”.

[44] This GAB Cloud Infrastructure information/data was to be provided to GAB “on a 2 TB hard disk …within 72 hours of proof of payment…”

[45] The last paragraph of the consent order provided that:

“Payment in the amount of $34,108.74 be made to Lawrence Lawrence Stevenson LLP in Trust, without admission of liability and will be deposited by Lawrence, Lawrence Stevenson LLP in trust into an interest-bearing account to remain until further order of this court.”

[46] The parties further agreed that, on July 31, 2017, Triella would delete all GAB assets from the GAB Cloud Infrastructure information/data.

[47] The above became a consent order of this court dated July 13, 2017 (the "Consent Order"). Compliance with this order is at issue in this motion.

Gary Bennett Fails to Make Payment

[48] Up until July 30, 2017, Gary Bennett's new IT provider sought to obtain from Triella information, transfers and access for the GAB Cloud Infrastructure information/data. However, Gary Bennett had not yet paid Triella the amount set out in the Consent Order.

[49] On July 31, 2017, Gary Bennett's lawyer wrote to Triella's counsel advising that Gary Bennett did not have the funds to pay the amount set out in the Consent Order.

[50] Gary Bennett took the position that certain of the IT assets (domain name, various subscriptions etc.) relating to the GAB Cloud Infrastructure information/data belonged to him and he wanted Triella to transition such "assets" to his new IT supplier.

[51] Triella advised in writing that, if Gary Bennett paid Triella’s August fees, it would not terminate the GAB Cloud Infrastructure information/data (and continue to provide the accompanying service) for the month of August.

[52] Gary Bennett's lawyer responded on August 2, 2017 repeating that Gary Bennett did not have the funds to pay Triella's outstanding invoices as per the Consent Order or the August fees for the GAB Cloud Infrastructure information/data.

[53] As a result, Gary Bennett did not pay the amount set out in the Consent Order, wasn't prepared or able to pay the August fee to Triella, and but nevertheless continued to seek Triella's assistance to access the GAB Cloud Infrastructure information/data.

Triella’s Position on the Motion

[54] Triella states that the essence of the relief claimed in the Application was that Gary Bennett wanted the Amicus Attorney information/data and the GAB Cloud Infrastructure information/data. Triella submits:

a) Gary Bennett now has the Amicus Attorney information/data which didn’t involve Triella; and

b) Gary Bennett had the opportunity to obtain the GAB Cloud Infrastructure information/data, chose not to and has now stated in court that he no longer seeks the GAB Cloud Infrastructure information/data - it can be deleted.

[55] Triella submits there is nothing left in the Application for further relief against Triella. No mandatory order is needed against Triella. The issue of the Triella's claim for outstanding payment can be dealt with in an action for monies. In any event, it is not an issue in this Application.

Gary Bennett’s Position on the Motion

[56] Gary Bennett disputes owing money to Triella. This defence to the motion has no merit. The Consent Order specifically provided that the amount payable to Triella was to be paid on a without prejudice basis. All parties understood and agreed that the validity of Triella's claim to payment would be adjudicated at a later date.

[57] The timetable for hearing the Application fell apart. Some of the delay was unavoidable, and some arose because of the non-payment of the amount set out in the Consent Order. I am not persuaded that the failure to comply with the timetable ordered is relevant or useful to a disposition of this motion.

[58] The primary position of Gary Bennett is that the Consent Order didn’t require him to pay Triella - it was an “option”. As stated above, Gary Bennett now agrees that Triella can cease providing the GAB Cloud Infrastructure information/data and services and delete everything from the GAB Cloud Infrastructure information/data.

ANALYSIS

Did the Consent Order require Gary Bennett to pay Triella?

[59] There is no doubt that the basis, understood by all, including Gary Bennett who was present along with his counsel, was that Gary Bennett was to make the payment set out in the Consent Order. The suggestion that this was an "option" has no merit. The entire basis of the Application was for Gary Bennett to have access to the Amicus Attorney information/data and the GAB Cloud Infrastructure information/data. Gary Bennett had suggested in his supporting affidavit it was critical for him to have this IT information/data because without it, he could not service his client’s property.

[60] It is telling that, when Gary Bennett sought immediate access to his IT information/data, at no time did he advise the court that he wanted an “option” to obtain this information. Had he done so, no immediate relief would have been considered.

[61] The entire purpose of the court attendance on July 12 and 13, 2017 was to get Gary Bennett immediate access to the two IT information/data sought in the Application so that he could carry on with his practice. To now suggest all Gary Bennett wanted was an “option” to get GAB Cloud Infrastructure information/data from Triella makes no sense and is simply wrong.

[62] The fact that Gary Bennett does not have the funds to pay Triella is not Triella’s fault nor Triella's problem. Triella pays third parties to provide the cloud services. Triella agreed to provide all the information, passwords, configuration on payment of the outstanding invoices on a without prejudice basis. This would have given Gary Bennett everything he sought in the Application by way of mandatory order.

[63] Triella cannot continue to incur costs to provide this service. In any event, Gary Bennett now states that the GAB Cloud Infrastructure information/data can be deleted making the mandatory order sought not available.

[64] The fact that Gary Bennett now takes the position that “intellectual property, data, passwords and other data” relating to the Cloud Data is his property is too late. He would have obtained all of this by making the without prejudice payment of the $34,108.74 to Triella. More importantly, Gary Bennett did not seek in his Application any relief for the return of his property. Had he done so, the interim order would likely have been similar, if not the same, as the Consent Order under Rule 44 of the Civil Rules of Procedure.

[65] Gary Bennett knew that his failure or refusal to pay the $34,108.74 would result in the GAB Cloud Infrastructure information/data terminated and all data deleted on July 31, 2017. Triella is free to delete this information/data in light of Gary Bennett’s failure to comply with the July 13, 2017 Order. This makes the mandatory order sought against Triella in the Application for the Cloud Data moot.

Should the Application be dismissed?

[66] The Application is now moot:

a) The Amicus Attorney information/data has now been provided to Gary Bennett. In any event, it appears conceded that this must be accomplished between the Bennetts. No relief was sought against Dawn Bennett in the Application. No relief was sought against BLC or MLC. No such relief could be ordered in this proceeding. In any event, a mandatory order relating to the Amicus Attorney information/data is no longer necessary;

b) The GAB Cloud Infrastructure information/data has or will be deleted with the consent of Gary Bennett (as per the Consent Order) and his statement in court. A mandatory order for delivery of the GAB Cloud Infrastructure information/data is no longer necessary.

[67] The Application is dismissed. Any claim between the parties for damages or outstanding payments can be accomplished through another legal proceeding.

COSTS

[68] Any party seeking costs of this motion shall serve and file written submission on entitlement and quantum within two weeks of the release of these reasons. Written submissions shall be limited to 7 pages, with attached Costs Outline and any authorities.

[69] Any responding party shall have one week thereafter to serve and file responding submissions. Written submissions shall be limited to 7 pages with any authorities relied on attached.

[70] There shall be no reply submissions without leave.

Ricchetti, J.

Date: September 19, 2017

CITATION: Gary Anthony Bennett Professional Co. v. Triella Co., 2017 ONSC 5474

COURT FILE NO.: CV-17-2877-00

DATE: 20170919

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

Gary Anthony Bennett Professional Corporation

Applicant

AND:

Triella Corp.

Respondent

ENDORSEMENT

Ricchetti J.

Released: September 19, 2017