Court File and Parties

COURT FILE NO.: CV-20-999 DATE: 20200804 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Total Traffic Services Inc., Plaintiff (Moving Party) AND: Tami Kone also known as Tami Hore also known as Tami Hore-Kone and Michael Kone, Defendants (Responding Parties)

BEFORE: Justice V. Christie

COUNSEL: Andrew M. Mae, Counsel, for the Plaintiff (Moving Party) Jonathan Shulman, Counsel for the Defendants (Responding Parties)

NOTICE OF MOTION RETURNABLE: July 31, 2020 Submissions were heard by teleconference call. Present on the line were: Andrew Mae, Counsel for the Plaintiff Peter Brousseau and Meghan Brousseau, the President and Vice-President of sales for the Plaintiff Jonathan Shulman, Counsel for the Defendants

Endorsement

[1] The plaintiff has brought an urgent motion, on short notice, requesting the following relief:

a. The plaintiff’s compliance with paragraph 2 of the order of the court dated July 24, 2020 (in relation to return of a laptop computer) be varied and extended to provide for further relief; b. The plaintiff be permitted to retain an independent expert to clone a copy of the hard drive of the laptop referenced in the order, who shall take two cloned copies of the said hard drive and provide one to the court and the other to the defendants’ counsel, with no copy being provided to the plaintiff or its counsel; c. That the copy of the hard drive shall be deposited with the court and shall not be inspected by any person except with leave of the court; d. If necessary, an order compelling the defendant, Tami Kone, to provide the independent expert with any password that is required to clone the hard drive, which the expert shall not reveal to the plaintiff; e. Sun Life to, forthwith, freeze and prevent any removal or transfer of monies or assets of the defendants held in any account, or on credit on behalf of the defendants with Sun Life, until further order of the Court; f. Sun Life to, forthwith, disclose and deliver up to the plaintiff any and all records held by Sun Life concerning the defendants’ assets and accounts, including the existence, nature, value and location of any monies or assets or credit, wherever situate, held on behalf of the defendants by Sun Life; g. The costs of this motion to be reserved to be determined by the court at a later date.

[2] It was hoped that this decision could be released later on the same day it was heard, being July 31, 2020. However, in the case that the court was not able to release a decision prior to the long weekend, the parties were ordered not to use, touch or interfere with the laptop computer in any way. At the time submissions were heard, it was understood that the laptop remained with the plaintiff. The court was assured by counsel that the status quo regarding the laptop computer would remain until further order of the court.

[3] This is the third time that this matter has been before me, in some manner, over the past two weeks, proceedings which will be summarized below. Before summarizing the two earlier proceedings, a brief summary of the facts will provide context to this motion.

[4] The plaintiff is a family owned pavement marking contractor company. Peter Brousseau and Meghan Brousseau, husband and wife, are the president and vice-president of sales for the company. The defendant, Tami Kone, was employed by the plaintiff from October 15, 2016 to July 13, 2020 as a bookkeeper / administrator. The other defendant, Michael Kone, is Tami Kone’s husband. He did not play any role in the company.

[5] Initially, Ms. Kone assisted the plaintiff’s former vice president, Janet Brousseau, with the company’s accounting. However, when Janet Brousseau became ill in the fall of 2018, and her hours of work were reduced, Ms. Kone began to work more independently. By January 2019, Janet Brousseau was not involved with the business at all and in fact passed away in April 2019.

[6] Based upon some investigations that the plaintiff has commenced, it is alleged that from October 2018 to June 2020, Tami Kone issued numerous cheques to herself from the plaintiff’s business account, without any authority for doing so, which were deposited in her bank accounts. When this matter was first brought before this court, it was alleged that the amount of money at issue was $312,076.02. At the second hearing on July 24, 2020, it was alleged that the amount at issue was $652,009.99. The plaintiff alleges that Ms. Kone took steps to hide her activity by inputting incorrect information into the company’s accounting records and changing or manipulating the information on cheques and cheque stubs. The plaintiff claims that Ms. Kone was able to take this money from the company in a number of ways:

a. Peter Brousseau, and perhaps Janet Brousseau, would sign blank cheques to allow Ms. Kone to pay legitimate expenses for the business, not for payment to herself; b. The plaintiff alleges that some of the signatures appear to be forgeries; and c. The plaintiff alleges that Ms. Kone concealed her activities by falsifying the plaintiff’s financial records, to which she had full access.

[7] This matter first came to the attention of the plaintiff when, on or around June 23, 2020, Meghan Brousseau noticed that two company cheques, in the amount of $79,648.01 and $14,464.00 had been written out to Ms. Kone and cashed by her. Ms. Kone was questioned about this, at which time Ms. Kone advised that she had mistakenly written cheques to herself, as the cheques looked identical to her husband’s business cheques, and offered to repay the amounts immediately. Ms. Kone continued to work for the company. Over the next two weeks, Ms. Kone made various promises to repay the money, however, there were a number of excuses given for the delay in doing so.

[8] Finally, on July 10, 2020, Ms. Kone deposited $64,112.05 into the plaintiff’s bank account, although she advised that she deposited the full amount owing. When later questioned about the shortfall on July 13, 2020, she suggested that the amount may have been written down incorrectly at the bank. Further, on the same day, Ms. Kone was confronted, by Peter Brousseau, Meghan Brousseau and the company’s accountant, Rob Neahr, with other cheques that were written to her from the company. She acknowledged that the bank deposit details on the back of the cheques were for her bank accounts. However, she suggested that the cheques may have been written by her in error or in some cases simply had no explanation. She absolutely denied that she had “embezzled” any funds and said she would need to attend at her bank to look into this matter. Also at that meeting, Ms. Kone referred to an inheritance she received from a family member which was in excess of $200,000.

[9] After attending at the bank, also on July 13, 2020, Ms. Kone advised Peter and Meghan Brousseau that she had $285,000 in an RRSP which she could use to start repaying the plaintiff, however, her husband would need to sign something at the bank to release the funds. Without any prior mention of the involvement of police, Ms. Kone asked if she could have a few days to go through the records before the police were called. On that day, July 13, 2020, Ms. Kone was terminated for cause.

[10] On July 14, 2020, when Peter Brousseau followed up with Ms. Kone by text about her plans for repayment with the use of her investment, she said that the investment was in an RRSP and it would take a couple of days. She advised that her husband was angry with her and asked her to leave the house. She stated that “this is all my fault” and that she did not know whether to go to the bank or to the police to “come clean”.

[11] While Michael Kone is not alleged to have been directly involved in removing funds from the company, the plaintiff claims that the fraudulently obtained funds were provided by Ms. Kone to her husband, Michael Kone, either directly or through gifts. As the amount of money allegedly taken by Ms. Kone continues to rise, the plaintiff alleges that it would be impossible for Mr. Kone not to have known that something was suspicious about the amounts of money coming into their lives, especially considering the recent purchases as compared with their means.

[12] The company’s accounting records are continuing to be reviewed.

[13] This matter has been reported to police and is under investigation. No criminal charges have been laid.

[14] This matter was before me, ex parte, in writing (with brief oral submissions by teleconference) on July 16 and July 17, 2020. The Plaintiff sought a Mareva Injunction and other relief. At that time, in relation to the laptop computer, the request was as follows:

An order that the plaintiff may retain possession of the defendant Tami Kone’s laptop which is located [at] the plaintiff’s premises and may take a copy of the data stored on the hard drive and inspect such data.

[15] In the affidavit of Peter Brousseau, sworn July 15, 2020, it was clear that on July 13, 2020, when Ms. Kone was confronted, she stated that she would attend at the bank to look into the matter. Before leaving she asked to take her laptop with her. The affidavit stated in part:

60. Tami also asked to take with her, her laptop which, although is her property, is a constant fixture in her office. I asked/suggested to her “why don’t we deal with that this afternoon when you come back?” Tami agreed with that.

While Ms. Kone was at the bank, Mr. and Mrs. Brousseau contacted Peel Regional Police to file a report and were advised to retain the laptop.

[16] Mr. Brousseau further stated in his affidavit:

64. With respect to Tami’s laptop, as indicated above, even though it is her property, it is generally a permanent fixture at the office and, as far as I am aware, she uses it for business purposes. Accordingly, I believe that the laptop may or will contain financial or other information belonging to the plaintiff. I also suspect that it may contain information with respect to Tami’s fraudulent activities against the company. For this reason, the plaintiff seeks relief as set out in the motion concerning retaining the laptop and taking a copy of the hard drive.

Apparently, on the second meeting with Ms. Kone on July 13, 2020, she did not ask to take her laptop.

[17] On July 17, 2020, this court granted the Mareva Injunction requested by the plaintiff, however, declined to grant some other relief. In relation to the laptop computer, as well as a request for the ability to register PMSI liens, this court stated:

[22] It is the view of this court that this further relief should not be granted on this ex parte motion. Other than the Court’s inherent jurisdiction, there would appear to be no authority, or at least none provided, to support a PMSI lien in this case. I would also note that the evidence suggests that it is quite possible that Ms. Kone obtained her vehicle by using her inheritance. With respect to the personal laptop computer, there is no evidence that there is anything on this computer related to the claims made. At this point, that would simply be speculation. Further, allowing the Plaintiff’s to retain the laptop, copy the laptop, and, perhaps to share that information with the police, could raise serious privacy concerns and Charter concerns. It is the view of this court that it would be inappropriate for the Court to use its inherent jurisdiction to make such an order on this ex parte motion.

The court further ordered that the hearing to extend the order would be heard on July 24, 2020, or such other suitable date as arranged by the parties.

[18] While this court did not explicitly state that the laptop must be returned, the court did say that “allowing the Plaintiff’s to retain the laptop, copy the laptop, and, perhaps to share that information with the police, could raise serious privacy concerns and Charter concerns”. If the plaintiff was not entitled to retain the laptop, the only other reasonable thing to happen was for the plaintiff to return the laptop to the defendant. There was no suggestion, at that time, that there was any other rightful owner of this computer. The plaintiff was very clear that even they agreed that the laptop was the personal property of the defendant, Tami Kone. Therefore, the laptop should have been returned following the Order of July 17, 2020. However, that did not occur.

[19] On July 24, 2020, this matter returned before this court. The plaintiff filed a fresh motion requesting various forms of relief, including, in relation to the laptop,

That the plaintiff may retain possession of the laptop (that purportedly may belong to the defendant Tami Kone or the plaintiff), which is currently in the possession of the plaintiff, pending further order of this court but may not access, view or copy of the data stored on the hard drive thereof or permit any third so to do without further order of the court or the consent of the defendant, Tami Kone. Nothing in this provision shall prevent the plaintiff from providing the said laptop to the police either voluntarily or pursuant to a search warrant obtained by the police.

[20] In support of the motion, Meghan Brousseau swore an affidavit on July 21, 2020, which stated in part as follows:

6. I further believe that in view of the amounts that Tami has paid to herself without authority from the plaintiffs’ funds, the laptop that we previously referred to as belonging to Tami, was or may have been purchased using the plaintiff’s money, either from the cheques Tami has issued to herself or through the plaintiff’s Visa card. The laptop, as previously noted in Peter’s affidavit is and was a permanent fixture in the office and used by Tami for business purposes. I now believe that it belongs to the plaintiff.
7. I confirm that the plaintiff, nor anyone on its behalf, has accessed or tried to access the information on the laptop and on behalf of the plaintiff and its officers and directors, I undertake that the plaintiff will not do so or instruct any third party to do so, without the consent of Tami or an order of the court. I confirm that the plaintiff will deposit the laptop with a neutral third party for safe keeping if ordered by the court. The plaintiff should, however, be able to provide the laptop to the police either voluntarily or in response to a warrant obtained by the police as part of the evidence it is submitting to the police in respect of the criminal complaint.

[21] At the time this matter came on for hearing, Mr. Shulman, counsel for the defendants had just been retained the previous evening. He requested further time to provide a defence to the claim as well as a response to the Mareva Injunction and associated relief, which was a reasonable request. In the meantime, Mr. Shulman requested the immediate return of his client’s laptop computer, arguing that the court’s order on July 17, 2020 made it clear that the plaintiff had no right to retain same, referring to paragraph 22 of the decision of July 17, 2020. After considerable argument on this issue from both parties, the plaintiff agreed to return the laptop computer, given that the defendant, Tami Kone, required it to prepare her defence. It was agreed amongst the parties that this laptop would be returned to the defendant, Tami Kone, within 5 days. The court ordered that the return was to be arranged through counsel.

[22] Since the decision on July 24, 2020, there has been a series of communications between counsel about this laptop, including the following:

a. On July 24, 2020, at 12:42 p.m., plaintiff’s counsel advised the defendants’ counsel that the laptop would be sent by courier with a signature required for delivery, and he assumed that the defendants’ counsel’s office was staffed and open during business hours; b. Later on July 24, 2020, at 2:28 p.m., the defendants’ counsel sent an email, which stated in part, “I am assuming insured service was used to send the laptop”. c. On July 27, 2020, at 2:53 p.m., the plaintiff’s counsel advised the defendants’ counsel that, as a consequence of the request for insured shipping, the plaintiff feared there may be an allegation that the laptop had been damaged in transit or before transit. Plaintiff’s counsel proposed that the plaintiff would have a computer engineer deliver the laptop to the defendants’ counsel’s office (or some other place) so that the laptop could be booted in the presence of the engineer just so that he could see that it was working which would eliminate the possible issue noted. d. Subsequently, on July 27, 2020, at 6:31 p.m. the plaintiff’s counsel sent a further email to the defendants’ counsel, setting out a concern that Ms. Kone may try to boot the computer by using an incorrect password, and the plaintiff did not want to be accused of having done something to alter the password protection of the laptop or any manipulation of the data. It was suggested that the defendant provide the engineer with her password to permit them to boot the laptop. e. On July 28, 2020, at 11:53 a.m., defendants’ counsel rejected the proposal and stated, “I require you to comply with court order and return the equipment immediately. There will be no engineers, cloning of hard drives and other proposals that you have advanced following the hearing, that are not in the last two orders of the Court…” f. On July 29, 2020, at 1:28 p.m., counsel for the plaintiff sent an email, and indicated that they would be bringing this motion, to extend the time for returning the laptop so that the hard drive could be copied by an independent party before it is returned. Counsel then exchanged several emails on this issue.

[23] The current urgent motion before the court was filed the day before the hearing, on July 30, 2020. The requested relief was as set out in paragraph 1 above.

[24] In support of the current motion, Meghan Brousseau provided an affidavit, sworn on July 29, 2020. In reference to the laptop, the affidavit stated in part as follows:

8. …The plaintiff is still of the view that it may own the laptop and if a receipt is found to show that it was purchased by the plaintiff, the plaintiff may seek a further order in respect of the return of the laptop.
9. I should add here that the defendant, Tami Kone, only used that laptop at work. No other computer was provided to her by the plaintiff and the laptop was a permanent fixture at the business premises. The defendant, Tami Kone, was also the plaintiff’s system administrator for Google Suite which is the internet-based system through which the plaintiff runs its entire business. It has already been confirmed by the plaintiff that when Ms. Kone’s employment was terminated she did provide the plaintiff with her login password [which the plaintiff did not previously have] and her privileges were removed…
10. Furthermore, as previously deposed to by the plaintiff’s representatives, the plaintiff does not know what information is stored on the laptop. The plaintiff’s computer system is all cloud based through Google Suite. The defendant Tami Kone was, as previously deposed to, the system administrator with the password for the system.
11. I believed that all of the plaintiff’s business records and documents are stored in the Google Suite as that is where they should be. However, it is possible, indeed probable, that the defendant, Tami Kone has stored on the computer, the plaintiff’s business documents which either pre-dated the plaintiff acquiring Google Suite or subsequently, which will be producible in these proceedings if relevant to the issues.
12. It is also possible that the documents may not be produced or may be destroyed by the defendant. In this regard I have not been able to locate in Google Suite some templates that the plaintiff uses for providing quotes and labelling paint samples. I now believe that those documents and further documents that belong to the business, including financial information, that were generated before it started using Google Suite (and perhaps also documents subsequent to its use- for example the templates referenced above) are stored on the laptop. I was not aware of those documents being possibly missing when the plaintiff agreed to return the laptop. Moreover, I believed that everything relating to the business was stored in Google Suite.

[25] As part of this current motion, there has also been an affidavit filed by the defendant, Tami Kone, sworn July 30, 2020. In that affidavit she stated in part as follows:

10. In fact, I have used company computer to access their systems, and not my personal laptop. This laptop was not used for corporation affairs and the allegation of the Plaintiff is false. This laptop is among my other personal property that the plaintiff did not return, and originally did not want to return it to me, until I have retained counsel.
11. In respect to Plaintiff’s current request: a. I have no intention to destroy any evidence before discoveries or thereafter. b. The laptop is my private laptop and was not used for Plaintiff’s work. This laptop has nothing to do with this litigation. c. Since I am using cloud email account, my email may be automatically downloaded to my laptop and my current privileged communication of counsel will be accessible by a third party if I provide my password. This can not be prevented and should not be permitted by the Court. d. Since all the work was done on cloud, I am not sure of what incriminating documents the Plaintiff is alleging I may have on my laptop, as all financial documents are with financial institutions. e. …In fact, the laptop was not purchased by the Plaintiff or his funds.

[26] The plaintiff argues that this is the first time the issue of preserving the data has been before the court. It is the view of this court that while perhaps the argument has never been framed quite in the way it is now, it is not accurate to say that this is the first time the current issue has been before the court. There is no real interest in the physical laptop. The only thing that matters to everyone is the data on that laptop. The issue of preserving the content of the data on the computer has now been before the court three times:

a. On July 16-17, 2020, the plaintiff asked to retain possession of the laptop, take a copy of the data stored on the hard drive and inspect such data. This was denied by the court. b. On July 24, 2020, the plaintiff asked to retain possession of the laptop, pending further order of this court, but not to access, view or copy the data stored on the hard drive or permit any third party to do so without further order of the court or the consent of Tami Kone. However, the plaintiff wished to be permitted to provide the laptop to the police either voluntarily or pursuant to a search warrant obtained by the police. In the midst of argument, the plaintiff abandoned this request and consented to return the laptop to Tami Kone. c. On July 31, 2020, the plaintiff asked to retain possession of the laptop, to permit them to retain an independent expert to clone a copy of the hard drive, who would take two cloned copies of the said hard drive and provide one to the court and the other to the defendants’ counsel, with no copy being provided to the plaintiff or its counsel. Further, the plaintiff asked to have Tami Kone provide the expert with any required password if necessary.

There is no question that this is the third time that the plaintiff is asking this court to preserve the data on this laptop for future use in this litigation.

[27] The Plaintiff argued that the time for the return of the laptop had not yet expired, as five days, excluding Saturday and Sunday, would have been the day of the hearing, July 31, 2020. While quite frankly, this was not the intention of the court or the court’s understanding of the agreement between counsel, it is perfectly understandable that counsel would read the order in line with the Rules of Civil Procedure. Rule 1.03 defines “holiday” as including any Saturday or Sunday. Rule 3.01(b) states that where a period of seven days or less is prescribed, holidays shall not be counted. Therefore, given that the order was made on July 24, 2020 to return the computer within 5 days, July 31, 2020 would have been the 5th day. As previously stated, when this matter was heard on July 31, 2020, it was ordered by this court that the status quo be maintained pending the ruling of this court.

[28] The plaintiff has not yet formally retained an independent expert to perform the cloning of the hard drive, but counsel have been in contact with Data Rescue Labs, who have indicated that, if permitted, the cloning could be complete by Tuesday, August 4, 2020. Obviously, if this court were to grant the relief sought, further time would be required.

[29] As for the determination of this motion, the plaintiff argues that they are not resiling from their earlier position as to the return of the laptop. This is not about the plaintiff accessing the data on the laptop or getting confidential information. There will be no prejudice to the defendant, simply to have this evidence preserved, which protects the integrity of the evidence and the integrity of the court process when the court ultimately must assess this matter. The plaintiff argued that the court could consider and grant this motion under a number of Rules, including Rule 30.11, 32.01, 39, 45.01(1), 59.06(2)(a).

[30] Under Rule 30.11, the court may order that a relevant document be deposited for safe keeping with the registrar and not be inspected without leave of the court. Rule 30.01 defines a document as including data and information in electronic form.

[31] Rule 30 is related to the discovery of documents. In BASF Canada Inc. v. Max Auto Supply (1986) Inc., 1999 CarswellOnt 505, [1999] O.J. No. 515, 30 C.P.C. (4th) 23, 91 O.T.C. 264, Master Beaudoin stated:

[15] The court has the inherent jurisdiction, as well as jurisdiction under s. 137(2) of the Courts of Justice Act and Rule 30.11 to grant a protective order restricting production of documents in circumstances where unlimited production would prejudice a party. Such an order may be made by a master of the court. (See Automated Tabulation Inc. v. Canadian Market Images Ltd. (1995), 24 O.R. (3d) 292 (Ont. Gen. Div.) and CPC International Inc. v. Seaforth Creamery Inc. (1996), 49 C.P.C. (3d) 382 (Ont. Gen. Div.)) [16] As described by Cumming J.in the CPC International Inc. case, the making of a protective order is designed to strike a balance between the disclosure necessary for the conduct of an action and a party's bona fide right to protection of confidential and sensitive information. The courts have held that where the information at issue is such that the disclosure would allow a competitor to improve its competitive position, it is appropriate that a protective order be issued to guard against such effect. (Zellers Inc. v. Venta Investments Ltd. (May 25, 1998), Doc. 94-CR-55831 (Ont. Gen. Div.))

[32] It is the view of this court that this rule has no applicability to the case at bar and the relief sought by the plaintiff. However, even if this rule were to apply, it has not been determined that the computer contains relevant material at this time. Disclosure must be made of every document relevant to any matter in issue in an action that is or has been in the possession, control or power of a party, whether or not privilege is claimed in respect of the document: see Rule 30.02. In this case, the plaintiff simply has no knowledge of the information contained on the laptop. The defendant, Tami Kone, claims that there is nothing on the laptop relevant to this litigation. In any event, it is the view of this court that this Rule has no application in the case at bar.

[33] Under Rule 32.01, the court may order the inspection of real or personal property where it appears to be necessary for the proper determination of an issue in a proceeding. The general purpose of the rule is to facilitate full discovery.

[34] It is the view of this court that based on the information currently available, it is not clear to this court that there is a reasonable possibility that the data on the computer would assist the trier of fact. While the section should be liberally construed, surely it should not be based on mere speculation and guess-work.

[35] Under Rule 45.01, the court may make an order for the interim preservation of property. Such an order can extend to any property which is relevant to an issue in the proceedings.

[36] In Kotar v. Scheiner, 2011 ONSC 3188, the court stated the test for a preservation order:

1. The asset sought to be preserved is the subject of the dispute;
2. There is a serious issue to be tried; and
3. The balance of convenience favours granting the relief.

In considering Rule 45.01, this court agrees with the plaintiff that this is not an Anton Piller order, in the sense that it is not ex parte, and therefore the test for such an order does not need to be met. Frequently cited as the most severe of all procedural remedies, an Anton Piller order is an exceptional ex parte remedy which essentially amounts to a civil search warrant. Granted by the court where there is a risk that evidence would be concealed or destroyed by the defendant, an Anton Piller order authorizes the plaintiff to attend at the defendant's location, without warning, and to demand access to, search for and seize evidence. A defendant may face contempt proceedings if it refuses entry or fails to assist with the search. This is not the case here. The applicable test, therefore, under Rule 45.01, would be that set out above.

[37] In the case at bar, the computer is not truly the subject of the dispute. The subject of the dispute in this case is that the plaintiff alleges that the defendant, Tami Kone, took large amounts of money from the company with no authority to do so. The plaintiff believes that the computer may afford some evidence of this alleged behaviour. However, at this time, there is nothing to support this belief, beyond mere speculation. This factor would weigh against preservation. There is certainly a serious issue to be tried in this litigation that involves a large amount of money. This factor would weigh in favour of preservation. As for the balance of convenience, given the lack of any relevance established at this time, and the prejudice that will be suffered by the defendant by having her personal property copied by a third party, this factor would weigh against a preservation order.

[38] The plaintiff suggested that the RJR-MacDonald test applies, however, this court has difficulty seeing how the RJR-MacDonald test would apply to whether this laptop should be preserved in the manner noted.

[39] Even if the RJR-MacDonald test is applied, the request for preservation of the laptop must fail. As has been acknowledged multiple times, the plaintiff does not know what is on this laptop. The plaintiff suggests that whether or not the laptop contains business data is a triable issue. The reality is, however, there is no basis, in evidence at this point, to conclude on a balance of probabilities that such evidence is contained on the laptop. Plaintiff’s counsel suggested that his clients “suspect” that financial information related to fraud might be on the laptop. In this most recent motion, the plaintiff refers to missing templates and points to the possibilities that those documents are saved on the laptop. The plaintiff commenced this litigation taking the position that the laptop is the personal property of Tami Kone, however, this position has been altered, given the current position that it might have been purchased with the plaintiff’s funds. All of this is pure speculation.

[40] The plaintiff argues that there will be irreparable harm if the laptop is not preserved, as the information on the laptop may be altered or manipulated with no ability to know that this has been done. While there is no question that the plaintiff may suffer irreparable harm if information is lost, there is no evidence that information exists to be lost. The new evidence provided that some business templates are missing from Google Suite is not evidence that same are contained on the laptop. The plaintiff presumes those are on the laptop. This is not evidence. The plaintiff further suggests that it is not clear at this point as to what else, if anything, is missing. This again exemplifies the absence of evidence.

[41] As for the defendants’ argument that the expert may see privileged information, such as communication with counsel if the computer is turned on, it is the view of this court that this is a slight risk. While it is accepted that there is no intention on the part of the third party to review any of the data, but rather simply to copy it, this court accepts that it is a slight risk. Having said that, this court would not decide this motion solely on the basis of that slight risk.

[42] As for the balance of convenience, the plaintiff claims that without preservation, they will lose evidence and it will be on them to prove the case. On the other hand, the defendant will suffer no prejudice whatsoever, as the data would be stored on a hard drive, filed with the court and defendants’ counsel. The plaintiff, nor any other party, will have access without an order. The defendant will have the return of the laptop. The integrity of the computer will be preserved. There will not be a significant delay, as the computer can be cloned fairly quickly. This court agrees that if relevant evidence exists on the laptop computer, the balance of convenience would weigh in favour of preservation. However, given the complete lack of evidence about what is or is not contained on the laptop, the balance of convenience weighs against the plaintiff’s argument.

[43] As for whether this laptop should be preserved as part of the Mareva Injunction and pursuant to that threshold, this court has already determined, in its ruling on July 17, 2020, that there was no evidence upon which to retain or copy the laptop. There is no new evidence that was not available at the time to suggest a strong prima facie case. There is evidence of possibility and assumption.

[44] Finally, the plaintiff argues that the court has the ability to amend, set aside, or vary its previous order pursuant to Rule 59.06(2)(a) on the basis of facts arising or discovered after it was made. In my view, no facts have arisen that change the nature of what is believed to be on this computer. There is nothing that would have changed the result; there is further belief, but no real further evidence. There must be a consideration by this court of finality, the cogency of the evidence, delay, fairness and prejudice. See Mehedi, v. 2057161 Ontario Inc., 2015 ONCA 670 para 20.

[45] Given the manner in which this motion is now framed, and the specific relief sought, this court no longer has the privacy or Charter concerns that it once had. In the first two motions, there was reference to the plaintiff handing the laptop to the police as part of the ongoing investigation. This may well have raised Charter concerns. However, in this current motion, the relief sought would not see the plaintiff having any access to the computer or its data. Therefore, those concerns are no longer a concern for the court. As for the expert cloning the computer and making two copies, this on its own does not raise Charter concerns. The fact that the expert has worked with the Ministry of the Attorney General and various police forces does not mean that the expert is working as an agent for the state in this case. The court can certainly make an order to bind the expert. There is no reason to believe that the expert would look at the information contained on the computer or provide that information to the plaintiff. Having said that, there is always the possibility that an email could pop up when the computer is turned on which could contain privileged information. As previously stated, this court sees this as a slight risk.

[46] It must be noted that data on computers has been recognized as private by the Supreme Court of Canada. In R. v. Cole, 2012 SCC 53, [2012] 3 S.C.R. 34, a majority of the Supreme Court of Canada recognized that computers in the workplace are often used for personal purposes and may contain private information. The Court recognized that the employee may have a reasonable expectation of privacy in the information contained and that ownership of the property, while relevant, is not determinative. While this court appreciates that this is not a criminal case, the plaintiff has involved the police in these proceedings. Surely these principles must be considered when weighing the various factors at play, especially in light of the fact that there has been no demonstration of the existence of relevant evidence.

[47] For all of the foregoing reasons, the laptop is to be returned to the defendant, Tami Kone, immediately. For clarity, counsel for the defendant is to arrange to have the laptop picked up directly from the plaintiff to ensure that the defendant is satisfied that the laptop was not damaged during transit.

[48] The plaintiff also requests this court to extend the Mareva Injunction to include assets held by TD Canada Trust and Sun Life. Ms. Kone has confirmed the existence of those assets, and appears to take no great exception to the Mareva Injunction being extended to the Sun Life asset. However, Ms. Kone does take great exception to any restriction on her TD account. She stated in her affidavit of July 30, 2020, that the account was opened on July 27, 2020 to deposit her final pay from Total Traffic Services and that it has a balance of $1878.00. She argues that, therefore, the account was opened after the Mareva Injunction was made and has nothing to do with the litigation before the court. The plaintiff has no evidence to contradict Ms. Kone at this time. Therefore, the Mareva injunction will not be extended to the TD Canada Trust account, as it would appear to be an account opened after this Mareva Injunction was made and has no connection to this litigation. This account at TD Canada Trust is specifically excluded from the Mareva Injunction. As for the Sun Life investment, it is valued at approximately $11,000. The wording of the original Mareva injunction covers “any assets of the defendants”, therefore, given the wording of the original Mareva Injunction, there is no prejudice to the defendants in adding Sun Life to the order, as, in reality, this would already be covered. It simply provides further clarity to the order.

[49] The defendants argue that the plaintiff’s conduct to date amounts to an abuse of process. While this court does feel that the laptop computer should have been given back following the ruling on July 17, 2020, there has been no abuse of process in this case and, therefore, will be no restriction on the plaintiff to bring further motions. Further, there is no motion by the defendants to decide such an issue.

[50] As for other personal property of Tami Kone that remains with the plaintiff, the court requests that the plaintiff do a cursory examination of what is believed to be Tami Kone’s personal property in order to determine that it is not in fact property of the business. Once this is determined, the plaintiff’s counsel should provide a very general list of the items of personal property to the defendants’ counsel. The defendants’ counsel should then arrange to have this property picked up, so that there is no suggestion that items went missing or became damaged in transit.

[51] With respect to costs, that issue is reserved, along with costs on the previous two motions, to be determined on October 19, 2020 during the return of the Mareva Injunction.

[52] There were issues raised about the release of funds to the defendants, however, there was no motion before this court. The court was candid that it was not available personally to hear this matter until the last week of August. The defendants’ counsel expressed a desire to wait in order to have the same judge hear the matter. This motion, assuming it gets properly served and filed, will be heard on August 25, 2020 at 9:30 a.m. through Zoom. With respect to this anticipated motion, defendants’ counsel requested and plaintiff’s counsel agreed that if and when he receives documents from CIBC relating to an RRSP or TFSA, he will disclose those documents to the defendants’ counsel.

[53] This Court orders as follows:

1. THIS COURT ORDERS that the ex parte Mareva Injunction granted by this Court on July 17, 2020 (“Order”), which was extended by this Court on July 24, 2020, is hereby further extended and shall remain in full force and effect until further order or disposition of these proceedings save as modified in this order.
2. THIS COURT ORDERS that the laptop computer in the hands of the plaintiff be returned to the defendant, Tami Kone, immediately. Counsel for the defendant shall make arrangements to have the laptop picked up from the plaintiff, so as to ensure that there is no suggestion that the laptop has been damaged in transit.
3. THIS COURT ORDERS that the plaintiff shall do a cursory examination of all other personal property belonging to Tami Kone in their possession by 5:00 p.m. on August 6, 2020 to ensure that the items do not include any property of the plaintiff. Counsel for the plaintiff will then provide a general list of the items of personal property to counsel for the defendant by 5:00 p.m. on August 7, 2020. Counsel for the defendant will then make arrangements to have the property picked up.
4. THIS COURT ORDERS that Sun Life forthwith freeze and prevent any removal or transfer of monies or assets of the defendants held in any account or on credit on behalf of the defendants, with Sun Life, until further Order of the Court.
5. THIS COURT ORDERS that Sun Life forthwith disclose and deliver up to the Plaintiff any and all records held by Sun Life concerning the defendants’ assets and accounts, including the existence, nature, value and location of any monies or assets or credit, wherever situate, held on behalf of the defendants by Sun Life.
6. THIS COURT ORDERS that this Mareva Injunction does not apply to TD Canada Trust account 00892-6678167 and, therefore, Tami Kone is entitled to use this account in any manner she sees fit.
7. THIS COURT ORDERS that the defendants, Tami Kone and Michael Kone, are entitled to seek and receive any personal banking records or financial records from any financial institution that they would have been entitled to receive prior to these Mareva proceedings.
8. THIS COURT ORDERS that counsel are to create and agree upon a timetable within the next 10 days, failing which either party can seek assistance from this court.
9. THIS COURT ORDERS that the costs of this motion be reserved to be determined by the court at a later date.

Justice V. Christie Date: August 4, 2020