Court File and Parties

COURT FILE NO.: CV-20-00642854

DATE: 20201215

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: POINTONE GRAPHICS INC., Plaintiff

AND:

MATT ROSZKOWSKI also known as MATTHEW ROSZKOWSKI, MELANIE HEATHERS and PUMPKINSEED PUBLISHING LTD., Defendants

BEFORE: Paul B. Schabas J.

COUNSEL: Ian Klaiman, for the Plaintiff

Dennis Touesnard, for the Defendants

HEARD: December 14, 2020

ENDORSEMENT

[1] The plaintiff, PointOne Graphics Inc. (“PointOne”), brings this motion seeking to have the defendants found in contempt of an interim Order made by Leiper J. on July 6, 2020 (the “Order”). In my view, while the defendants have failed to comply with the terms of the Order, I am not satisfied that they have intentionally breached the Order and therefore decline to find them in contempt.

[2] The plaintiff is a supplier of a wide range of print and finishing services. The defendant, Matt Roszkowski (“Roszkowski”), was employed by the plaintiff for many years as a sales person, “servicing customers.” Roszkowski was laid off by the plaintiff in March 2020 as a result of the COVID-19 pandemic. The defendant, Pumpkinseed Publishing Ltd. (“Pumpkinseed”), was incorporated by Roszkowski’s wife, the defendant, Melanie Heathers, in 2013. It also operates in the printing business.

[3] Following his lay-off, Roszkowski has apparently been active working for Pumpkinseed. PointOne became concerned that customers dealing with Roszkowski were not sending new work to it, and have alleged that Roszkowski has been disparaging PointOne and has been attempting to divert customers to Pumpkinseed. Hence, this action was commenced on June 22, 2020 seeking, among other things, damages for breach of contract, breach of fiduciary duty, concerted action liability, conspiracy, unjust enrichment, knowing assistance in breach of fiduciary duty and inducing breach of contract.

[4] PointOne also sought an urgent interim injunction restraining the defendants from soliciting business from existing customers of PointOne, or in any manner interfering with PointOne’s relationships with its customers, and prohibited the defendants from using PointOne’s confidential information obtained by Roszkowski during the course of his employment. On July 6, 2020, the motion for interlocutory relief was adjourned by Leiper J. to January 20, 2021, but the Order was issued on consent, as a term of the adjournment, restraining the defendants as sought and described above. The Order, however, did not restrain the defendants from competing with PointOne.

[5] In addition, the Order required the following in paragraph 2.c:

The Defendants shall deliver up to the Plaintiff all of its property, and including, without limitation, its computer, phone, documents or other materials, and all copies thereof, made or obtained by reason of or in the course of Roszkowski’s employment with the Plaintiff, including, without limitation, any such documents or materials which contain any Confidential Information, including any information with respect to the Plaintiff’s business, the Plaintiff’s existing or prospective customers and contact information and the relationship or prospective relationship or business with the Plaintiff, or regarding the Plaintiff’s marketing strategies.

[6] It appears that notwithstanding this paragraph of the Order, Roszkowski disclosed in his Affidavit of Documents delivered on October 14, 2020 and at his cross-examination on October 28, 2020, that his personal computer, which he also used for his work for PointOne, still retained copies of a range of PointOne information that would fall under the definition of confidential information in the Order. In an affidavit sworn on December 7, 2020, just a week before this contempt motion, Roszkowski states that he deleted those documents from his computer within two days of his cross-examination on October 28, 2020.

[7] I recognize that the plaintiff has not had an opportunity to challenge this recent affidavit, and objected to its late delivery, but I indicated I would consider it as it was evidence of compliance, or purging of contempt if it existed, and so that was the evidence before me.

[8] Further, although Roszkowski returned his cellphone to PointOne in July, in December 2019 he had imported all his professional contacts onto a new phone which included many PointOne customers and professional contacts, and those remain on his phone.

[9] A finding of contempt is a serious step which requires proof beyond a reasonable doubt that a court order has been intentionally breached. The contempt power should not be used simply as a means to force compliance with orders, but is a power of last resort: Carey v Laiken, 2015 SCC 17, [2015] 2 SCR 79 at para 36, citing with approval Ruffolo v David, para 18,

[10] In this case, the use of the contempt power is not appropriate or necessary. While it seems clear that Roszkowski has not fully complied with the Order, the Order contains no date by which compliance shall be made. The cellphone was provided within 17 days. The computer used by Roszkowski was his own personal computer, and the notification and deletion of data on it has been addressed above. While this might have been done much sooner, I am not prepared to find that the defendants intentionally breached Justice Leiper’s Order. In reaching this conclusion, I observe that Roszkowski made no effort to hide what he had done, or retained, and this came to light through his disclosure, which is inconsistent with behaviour that would support a deliberate breach of a court order.

[11] As for the cellphone, this raises an issue about the scope of the Order and the scope of what constitutes confidential information. Roszkowski’s list of professional contacts may include information that was not obtained as a result of his employment with PointOne. Cellphone data arises from many sources. Nevertheless, counsel for the defendants indicated he would consent to an order that Roszkowski delete any contacts that were transferred to his current phone from the cellphone he returned to PointOne. How this will be validated is another matter which neither party addressed.

[12] In my view, the difficulty of determining precisely what is encompassed by the Order raises a concern about the breadth of the Order generally, its enforceability, and the appropriateness of making a finding of contempt. As the Supreme Court has noted, one of the three prerequisites to such a finding is that the Order be clear and unequivocal as to what should or should not be done: Carey v. Laiken at paras 33 – 35.

[13] Furthermore, I note that there is no evidence that the defendants have solicited any customers of PointOne since the Order was issued. Rather, the evidence is that some PointOne customers have contacted the defendants, which they are at liberty to do, and the defendants may do business with them in such circumstances, subject to the outcome of the motion on January 20, 2021 and the action.

[14] In this case, I am satisfied that there has been some non-compliance with the Order of Leiper J. of July 6, 2020. Rather than finding the defendants in contempt, however, I make the following orders pursuant to Rule 60.11(5) of the Rules of Civil Procedure:

(a) The plaintiff shall be entitled to cross-examine Roszkowski as soon as possible and in advance of the hearing on January 20, 2021, on his recent affidavit and the issue of compliance with paragraph 2.c of Justice Leiper’s Order that requires delivering up of confidential information of the plaintiff;

(b) Roszkowski shall forthwith delete all contact or other information on his current cellphone that was copied from his PointOne cellphone, and shall confirm to PointOne that this has been done; and

(c) The 2-volume confidential compendium filed on this motion containing confidential commercial information of PointOne shall be sealed and not form part of the public record.

[15] Compliance with my order, and any further issues respecting compliance with the Order of Leiper J., may be addressed at the hearing of the injunction motion on January 20, 2021, just over one month from now.

[16] Although the plaintiff was not successful on the motion for contempt, it is not appropriate to award costs to the defendants. Roszkowski only recently provided evidence that he had deleted records from his computer and he still has information on his cellphone which is to be removed.

[17] In my view, having regard to the factors to be considered in awarding costs set out in Rule 57.01(1) and the principles discussed in Boucher v. Public Accountants Counsel for Ontario, 2004 CanLII 14579 (Ont. C.A.), the parties should bear their own costs of this motion.

Paul B. Schabas J.

Date: December 15, 2020