COURT FILE NO.: CV-22-00679459-0000

DATE: 2023-12-28

ONTARIO

SUPERIOR COURT OF JUSTICE

Application under s. 248 of the Business Corporations Act, R.S.O. 1990, c. B.16 as amended.

BETWEEN:

MICHELLE GOJKOVICH

Applicant

• and -

BUHBLI ORGANICS INC., ORGANIC PRODUCTS CONSULTING INC. and JOHN RODY

Respondents

Counsel:

Stephen Schwartz and Darren Marr for the Applicant

Shayan Kamalie and Karan Khak for the Respondents

HEARD: December 8, 2023

PERELL, J.

REASONS FOR DECISION

Contents

A. Introduction. 2

B. Overview.. 3

C. Facts. 5

1. Dramatis Personae. 5

2. Love’s Labours Lost 5

3. The First Oppression Remedy Application. 7

4. The Prelude to the Second Oppression Remedy Application. 8

5. The Second Oppression Remedy Application. 10

D. The Motion to Strike Paragraphs of Ms. Gojkovich’s Affidavit 12

E. Discussion and Analysis. 13

1. Introduction and Methodology of Analysis. 13

2. The Joinder of Buhbli Brands. 13

3. The Appointment of a Monitor 14

4. The Rody Respondents’ Request for an Order Disqualifying Chaitons LLP. 15

F. CONCLUSION.. 22

A. Introduction

[1] Pursuant to Ontario’s Business Corporations Act[^1] this motion, which I shall describe as the second oppression remedy application, is the metastasis of the pathogenic first oppression remedy application.

[2] The Applicant, Michelle Gojkovich, and the Respondent, John Rody, are the co-owners of the Respondent Buhbli Organics Inc. Mr. Rody is the sole owner of the Respondent Organic Products Consulting Inc., which provides services solely for Buhbli Organics. Mr. Rody is also the sole owner of Buhbli Brands Inc., of which more will be said below.

[3] On May 9, 2023, in the first application, among other things, I declared that: (a) Ms. Gojkovich has been treated by the Rody Respondents (Mr. Rody, Buhbli Organics, and Organic Products Consulting), in a manner that is oppressive, unfairly prejudicial to and which unfairly disregards her rights as a shareholder in Buhbli Organics; and (b) it is just and equitable that Buhbli Organics should be wound up.

[4] I ordered that pending the appointment of the liquidator that Mr. Rody shall have control of the business and assets of Buhbli Organics and shall carry on business acting in the best interest of Buhbli Organics and in accordance with his obligations under the Ontario Business Corporations Act. Since Ms. Gojkovich had been frozen out of her co-owned business since January 2022, I ordered that the Rody Respondents pay Ms. Gojkovich the amount of compensation paid Mr. Rody for the period from January 2022 to date failing which Ms. Gojkovich was to be paid $170,000.[^2]

[5] In her second oppression remedy application, Ms. Gojkovich now brings a motion for: (a) the joinder of Buhbli Brands Inc. as a party to this oppression application, (b) the appointment of a monitor, and (c) ancillary relief. More particularly, she seeks the following relief:

a. an Order that the title of proceedings for this application be amended to add Buhbli Brands as a Respondent and that all requirements of service are dispensed with,

b. an Order appointing MNP LLP as monitor over the Respondents,

c. an Order amending the Orders of May 9, 2023 and July 4, 2023 such that Buhbli Brands is ordered to be wound up as part of the winding up of Buhbli Organics,

d. an Order amending the Order of July 4, 2023 such that Buhbli Brands is separately and jointly liable for the damages ordered,

e. an Order amending the costs Order of July 4, 2023 such that Buhbli Brands is separately and jointly liable for the costs ordered,

f. an Order that Mr. Rody, Organic Products Consulting, and Buhbli Brands and other entities indirectly controlled by him immediately reimburse Buhbli Organics for all funds taken or diverted from Buhbli Organics since May 9, 2023,

g. an Order compelling the Respondents to disclose all amounts paid from the assets of Buhbli Organics towards legal fees and disbursements associated with this Application and to immediately reimburse Buhbli Organics.

h. an order determining whether documents belonging to Buhbli Organics and obtained by Ms. Gojkovich, are subject to lawyer-client privilege,

[6] The Rody Respondents bring a cross-motion for the following relief:

a. an Order striking Ms. Gojkovich's motion for interim relief (and her motion for security for costs in the Divisional Court[^3]),

b. an Order removing Chaitons LLP as solicitor for Ms. Gojkovich,

c. in the alternative, an Order striking paragraphs 30, 36, 37, 38, 39, 40, 41, 43, 46, 47, 48, 49, 55, (except subparagraph (k)), 56, 57, 58, and the first sentence of 59 and Exhibits ‘L, M, N, Q, R, S, T, U, V, W, X, Y, Z, BB, CC, DD, EE, FF, GG’ of the affidavit dated October 6, 2023 of Ms. Gojkovich and paragraphs ‘w, x, and y’ of her Notice of Cross Motion on the basis that she has unilaterally obtained information and documentation by hacking into email accounts without consent and reading privileged and confidential emails between the Respondents and their counsel,

[7] For the reasons that follow: (a) the Rody Respondents’ cross-motion is dismissed; and (b) except for the relief requested in paragraphs c, d, e, f, g, and h, of the claim for relief, as set out above, I grant Ms. Gojkovich’s motion.

[8] I grant Ms. Gojkovich’s Order on terms that she scrub the copies of the Rody Respondents’ documents that she has on her computer and that Chaitons LLP destroy the copies of the documents that it has segregated as lawyer and client communications.

[9] For clarity, (a) MNP LLP is appointed Monitor of Buhbli Organics, Organic Products Consulting, and of Buhbli Brands, and (b) Buhbli Brands Inc. is being added as a respondent as of October 12, 2023.

B. Overview

[10] In the first oppression remedy application, Ms. Gojkovich sued Buhbli Organics Inc., a corporation in which she had a 50% interest. She also sued Mr. Rody, the other 50% owner. She sued Organic Products Consulting Inc., a corporation wholly owned by Mr. Rody. In the first oppression remedy application, Ms. Gojkovich did not join Buhbli Brands Inc., which is another corporation owned by Mr. Rody. Ms. Gojkovich was successful on the first oppression remedy application, but the Rody Respondents have appealed to the Divisional Court and pending the hearing of the appeal are seeking a stay of the Order made in the first oppression remedy application.

[11] While the appeal and the stay motion were pending in the Divisional Court, Ms. Gojkovich used her recently discovered ability as the administrator of the email accounts of Buhbli Organics to bypass the passwords and to access Mr. Rody’s email. She made copies of his emails. Included within the emails were lawyer and client communications between Mr. Rody and his lawyers. Ms. Gojkovich sent copies of the emails to her own lawyers. Her lawyers did not read the privileged correspondence. However, from the non-privileged materials, Ms. Gojkovich and her lawyers learned three things. First, they discovered fresh evidence of oppressive conduct by the Rody Respondents during the period before the oppression remedy Order in the first oppression remedy application. Second, they discovered fresh evidence of the wrongdoing of Buhbli Brands Inc., the corporation that Mr. Rody incorporated in 2021. Third, they discovered that oppressive conduct was continuing after May 2023 and that Mr. Rody was not complying with his obligations under the Ontario Business Corporations Act as he was ordered to do.

[12] In light of these revelations, Ms. Gojkovich brought a motion, among other things: (a) to have a monitor immediately appointed; and (b) to have Buhbli Brands Inc. added as a respondent, nunc pro tunc; i.e., added so that it was bound by the Order already made in the first oppression remedy application. Simultaneously, with this second oppression remedy application, the Rody Respondents were advised that Ms. Gojkovich had copied lawyer and client communications that had not been read by her lawyers.

[13] The Rody Respondents opposed Ms. Gojkovich’s motion and brought a cross-motion, among other things: (a) to have Ms. Gojkovich’s motion dismissed; and (b) to have Ms. Gojkovich’s lawyers removed as her lawyers because of their alleged failures in responding to the circumstance that their client had accessed her opponent’s privileged communications.

[14] As noted above, I shall dismiss the Rody Respondents’ cross-motion. Given her rights as the administrator of Buhbli Organic’s email accounts it is debatable that Ms. Gojkovich did anything wrong, but for present purposes, I shall not make a finding one way or the other. I shall assume that Ms. Gojkovich came into the possession of privileged material. The onus then shifts under to her to establish that no prejudice was suffered by the Rody Respondents. What I find is that Ms. Gojkovich’s lawyers did nothing wrong in the circumstances of the immediate case in their treatment of the privileged information. In the immediate case, if there was some breach of the protocol a lawyer should follow after receipt of an opposing party’s privileged material, it was a technical breach that caused no harm in the circumstances of the immediate case. It is neither necessary nor in the interests of the immediate case to disqualify Ms. Gojkovich’s lawyers. I can and shall consider Ms. Gojkovich’s second oppression application on its merits.

[15] On the merits of Ms. Gojkovich’s motion, ironically, the Rody Respondents’ only objection to the joinder of Buhbli Brands Inc. and for the immediate appointment of a monitor is that the Order should not be made nunc pro tunc. The Rody Respondents do not oppose a go-forward joinder Order.

[16] On its merits, there is good reason and ample authority from the Ontario Business Corporations Act to join Buhbli Brands Inc. as of October 12, 2023, when Ms. Gojkovich brought her second oppression remedy application as a motion in her first oppression remedy application. There is also good reason and ample authority from the Ontario Business Corporations Act to immediately on a go-forward basis appoint a monitor of the Rody Respondents and of Buhbli Brands. I agree with the Rody Respondents that the joinder of Buhbli Brands should not be made nunc pro tunc.

C. Facts

1. Dramatis Personae

[17] Buhbli Organics Inc. is an Ontario corporation that distributes a diverse line of body care products to be sold at major retail outlets such as Walmart.

[18] John Rody is a 50% owner of Buhbli Organics Inc. Mr. Rody is the 100% owner of Organic Products Consulting Inc. This Bahamian corporation provides services solely to Buhbli Organics Inc. Mr. Rody is the 100% owner of Buhbli Brands Inc. This is an Ontario corporation carrying on business as some sort of surrogate or substitute for Buhbli Organics Inc. The evidence will establish that it is being groomed to take over the goodwill and the business of Buhbli Organics.

[19] Michelle Gojkovich is a 50% owner of Buhbli Organics Inc. Ms. Gojkovich formerly had a 50% interest in Organic Products Consulting. She has no interest in Buhbli Brands, which is carrying on business as if it were Buhbli Organics.

[20] Aamer Butt is an independent contractor retained by Buhbli Organics Inc. and by Buhbli Brands Inc. Supervised by Mr. Rody, Mr. Butt provides financial, bookkeeping, and administrative services for Buhbli Organics and he has major sales responsibilities with respect to Walmart, which is one of Buhbli Organics’ most important customers.

[21] Jennifer Van Dine is an independent contractor retained by Buhbli Organics Inc. and Buhbli Brands Inc. Supervised by Mr. Rody, Ms. Van Dine provides administrative services for Buhbli Organics.

[22] The Rody Respondents’ lawyers of record are Kamalie Law PC. The senior lawyer on the file is Shayan Kamalie. The associate lawyer on the file is Karen Khak.

[23] Ms. Gojkovich’s lawyers of record are Chaitons LLP. The senior lawyer on the file is Stephen Schwartz. The associate lawyer on the file is Darren Marr.

2. Love’s Labours Lost

[24] In the summer of 2012, Ms. Gojkovich began a small business selling her handcrafted soaps and other organic products.

[25] In March 2013, she registered her sole proprietorship as Buhbli Artisan Soapworks.

[26] In July 2014, while Ms. Gojkovich was selling her handcrafted soaps at a farmer’s market in Collingwood, Ontario, she met Mr. Rody. They began a relationship that became romantic.

[27] On September 8, 2015, at Mr. Rody’s suggestion, Ms. Gojkovich incorporated Buhbli Organics to replace Buhbli Artisan Soapworks. At the outset of this startup new business, Ms. Gojkovich is registered as the sole owner, sole director, and the president of Buhbli Organics. However, she held 50% of the shares in trust for Mr. Rody.

[28] On August 16, 2016, Ms. Gojkovich transferred a 50% ownership interest in Buhbli Organics to Mr. Rody, and he officially became a co-director and an officer of the corporation. There is no shareholders’ agreement. The parties never discussed what should happen if either of them did not wish to continue to be a shareholder.

[29] In October 2020, Mr. Rody and Ms. Gojkovich incorporated the Respondent Organic Products Consulting. It is a Bahamian corporation. It was Mr. Rody’s idea to use this Bahamian company to charge services to Buhbli Organics as a means to pay less personal income tax. He and Ms. Gojkovich were the shareholders of Organic Products Consulting. They both were remunerated from Organic Products Consulting until June 2021 when Ms. Gojkovich divested herself of her interest in Organic Products Consulting.

[30] In April 2021, according to Ms. Gojkovich, and in May 2021, according to Mr. Rody, the intimate personal relationship between them was over. On May 24, 2021, Mr. Rody physically separated from Ms. Gojkovich, and made Bahamas his principal residence.

[31] On June 16, 2021, at a corporate meeting of Buhbli Organics on Zoom, Mr. Rody revealed that he has transferred to Organic Products Consulting some of the services he had been performing for Buhbli Organics and on June 17, 2021, Ms. Gojkovich resigned as a director of Organic Products Consulting and her shares in the corporation were transferred to Mr. Rody. She would no longer receive any income from Organic Products Consulting.

[32] In the summer of 2021, Ms. Gojkovich retained legal counsel in an effort to complete the business and personal separation from Mr. Rody. On July 16, 2021, Mr. Schwartz, Ms. Gojkovich’s lawyer, wrote Mr. Rody about Ms. Gojkovich selling her share interest in Buhbli Organics to Mr. Rody. This prospect was rebuffed by Mr. Rody. He also wrote a very dismissive “my way or the highway” rude email message to Ms. Gojkovich. After July 2021, there are no more direct communications between Ms. Gojkovich and Mr. Rody.

[33] In August 2021, Ms. Gojkovich received a $10,000 payment as remuneration from Buhbli Organics. However, beginning in September when the $10,000 payment was not made, Ms. Gojkovich unilaterally used her access to the business’s accounts to pay herself $10,000 for September, October, November, and December 2021. Her access to the accounts, however, was eventually cut off in 2022. She has now not received any income from Buhbli Organics for two years and counting.

[34] On November 17, 2021, Mr. Rody incorporates Buhbli Brands Inc. without Ms. Gojkovich’s knowledge. He is the sole director, officer, and shareholder of Buhbli Brands. He does not incorporate it as a subsidiary of Buhbli Organics. He subsequently orders business cards. He creates a new website and email accounts for himself, Mr. Butt and Ms. Van Dine. The business cards identify Mr. Rody as Buhbli Brands’ Managing Director, Mr. Butt as General Manager and Ms. Van Dine as Sales Manager. They make marketing plans and business proposals to financial institutions on behalf of Buhbli Brands.

[35] On November 25, 2021, Mr. Rody arranges banking arrangements for Buhbli Brands Inc. with the National Bank of Canada.

[36] On March 22, 2022, Mr. Rody arranges for the creation of a new website for Buhbli Brands Inc., and he arranges new Buhbli Brands email accounts for himself, Ms. Van Dine and Mr. Butt.

[37] In June 2022, Mr. Rody prepares a presentation for National Bank introducing Buhbli Brands Inc. as a new business.

[38] Mr. Rody’s evidence is that Buhbli Brands Inc. was created as a failsafe to preserve the operations of Buhbli Organics should Ms. Gojkovich shut down Buhbli Organics’ website given that she was its administrator, which would leave Mr. Rody, Mr. Butt, and Ms. Van Dine without access to Company email accounts. Mr. Rody deposed: “For the sole purpose of pre-empting such a scenario and with a view to the best interests of the Company, alternate email accounts were created …” However, I find as a fact that Buhbli Brands Inc., in which Ms. Gojkovich has no ownership interest, was more than a failsafe to act as a surrogate for Buhbli Organics. Mr. Rody, Ms. Van Dine, and Mr. Butt were positioning Buhbli Brands to replace Buhbli Organics. Buhbli Brands was passing off as Buhbli Organics. For the time being, it might appear that Buhbli Brands was essentially just a division of Buhbli Organics but that was not Mr. Rody’s ultimate goal. His ultimate plan was to use his own company to take the business opportunities and the goodwill of Buhbli Organics.

3. The First Oppression Remedy Application

[39] On April 6, 2022, Ms. Gojkovich commenced an application for an oppression remedy. She sued the Rody Respondents for an oppression remedy pursuant to s. 248 of the Ontario Business Corporations Act or, in the alternative, for the winding up of Buhbli Organics pursuant to s. 207 of the Act. However, Ms. Gojkovich did not sue Buhbli Brands Inc., whose activities she was unaware of at the time when she sued the Rody Respondents.

[40] In the oppression application, on August 16, 2022, Justice Sugunasiri directed that the application be heard on April 18, 2023.

[41] Meanwhile, once again unknown to Ms. Gojkovich, in September 2022, Mr. Butt orders business cards for Buhbli Brands Inc. for himself, Mr. Rody and Ms. Van Dine. Unknown to Ms. Gojkovich, Buhbli Brands has become and is becoming a replacement for Buhbli Organics.

[42] In the oppression remedy, on November 11, 2022, the Rody Respondents serve a motion seeking to convert the within application to an action, and they sought to have Ms. Gojkovich’s application adjourned pending the outcome of their motion to convert.

[43] On January 4, 2023, at a case management conference, Justice Koehnen decides that the matter of whether the application should be converted into an action should be a matter for the judge hearing the application.

[44] In the oppression remedy proceedings, on January 26, 2023, Mr. Rody, Mr. Butt, and Ms. Van Dine are cross-examined.

[45] On January 27, 2023, Ms. Gojkovich is cross-examined.

[46] The oppression remedy application is argued on April 18, 2023.

[47] I released my oppression remedy decision on May 9, 2023. I declined to convert the application to an action, and I granted the application.[^4] Among other things, I declared that: (a) Ms. Gojkovich has been treated by the Rody Respondents in a manner that is oppressive, unfairly prejudicial to and which unfairly disregards her rights as a shareholder in Buhbli Organics and (b) it is just and equitable that Buhbli Organics Inc. should be wound up. I ordered that pending the appointment of the liquidator that Mr. Rody shall have control of the business and assets of Buhbli Organics and shall carry on business acting in the best interest of Buhbli Organics and in accordance with his obligations under the Ontario Business Corporations Act. I ordered that the Rody Respondents pay Ms. Gojkovich the amount of compensation paid to Mr. Rody for the period from January 2022 to date failing which Ms. Gojkovich was to be paid $170,000.

4. The Prelude to the Second Oppression Remedy Application

[48] After the first oppression remedy application is argued, Mr. Rody arranges for the sale of a new line of essential oils at Walmart under the name “Buhbli Brands”. These products are sold at Walmart separately from the Buhbli Organics products and are separately promoted. On May 16, 2023, Ms. Van Dine exchanges emails with Walmart representatives about the placement of additional Buhbli Brands products in Walmart stores.

[49] Since the oppression remedy decision of May 9, 2023, Mr. Rody has received $15,000 USD per month by way of fees paid by Buhbli Organics to his corporation, Organic Products Consulting. In addition, Mr. Rody has had his personal expenses and his legal expenses paid from money received from Buhbli Organics. Since the oppression remedy decision of May 9, 2023, Mr. Rody’s corporation Organic Products Consulting has received approximately $15,000 USD per month from Buhbli Organics. More precisely, Buhbli Organics has paid Organic Products Consulting $72,051 USD between May 9, 2023 and October 6, 2023.

[50] In contrast, since January 2022, Ms. Gojkovich has received no remuneration or money from Buhbli Organics.

[51] On June 6, 2023, the Respondents appeal the first oppression remedy decision to the Divisional Court.

[52] On June 29, 2023, the Respondents bring a motion returnable in the Divisional Court for a stay of the oppression remedy Order. The motion is supported by Mr. Rody’s affidavit dated June 29, 2023.

[53] On July 4, 2023, I awarded Ms. Gojkovich costs on a substantial indemnity basis of $158,297.43[^5] and I appointed MNP Ltd. as liquidator.[^6]

[54] Meanwhile, there were events in the ongoing business of Buhbli Organics that were being managed by Mr. Rody.

[55] In June-July-August of 2023, Mr. Rody and Ms. Van Dine present promotional material to CVS and Dollarama on Buhbli Brands’ behalf for the placement of Buhbli Brands products in their stores.

[56] Mr. Rody is a superb marketer. The evidence established that the Buhbli Brands line of products were turning around the declining fortunes of Buhbli Organics. Although whose business it was had become cloudy, the business was prospering.

[57] Meanwhile Ms. Gojkovich is acting in accord with the Order made in the first oppression remedy application which charged Mr. Rody with responsibility for managing Buhbli Organics in accordance with the Ontario Business Corporations Act. In August 2023, through counsel, Ms. Gojkovich offers to transfer the Buhbli Organics’ GoDaddy and Shopify accounts to Mr. Rody. Before she was frozen out of the business, one of Ms. Gojkovich’s roles was to administer these accounts. She continued to do so without reimbursement. Mr. Rody does not accept the transfer of the accounts.

[58] As the description below will reveal, all parties will suffer because of Mr. Rody’s refusal to take over the administration of Buhbli Organics’ email accounts. On September 5, 2023, Ms. Gojkovich had an epiphany, which she describes as a discovery, that is the source of the grief to be suffered by all concerned. On September 5, 2023, Ms. Gojkovich realized that she was the administrator of Buhbli Organics Inc.’s GoDaddy Account. She realized for the first time that she had a means to access the password-protected email accounts of Buhbli Organics, including the corporate accounts belonging to Mr. Rody, Mr. Butt, and Ms. Van Dine who were the company’s independent contractors.

[59] As demonstrated by his admission under cross-examination, Mr. Rody lied when he deposed that he was unaware that Ms. Gojkovich was the administrator of the GoDaddy accounts. He lied when he said that she had accessed the email accounts of Mr. Rody, Mr. Butt, and Ms. Van Dine before September 5, 2023. I find that it was only on September 5, 2023 that Ms. Gojkovich used her ownership status and administrator status to access the email accounts of Buhbli Organics.

[60] On September 5, 2023, Ms. Gojkovich accessed Mr. Rody’s email account and she read the emails, including emails that had passed between Mr. Rody and his lawyers. She copied his mailbox and the mailboxes of Mr. Butt and of Ms. Van Dine. Ms. Gojkovich realized that she could investigate her own company and determine what had happened and what was happening in its affairs.

[61] On September 8, 2023, Ms. Gojkovich told Mr. Schwartz what she had done. Mr. Schwartz told her to organize the emails and send them to him.

[62] Between September 8, 2023 and September 14, 2023, Ms. Gojkovich methodically reviewed thousands of email messages using key word searches. She segregated the documents that she thought were helpful in making a case against Mr. Rody. She made notes on the email messages. She highlighted information that she thought important. She read lawyer and client communications between Mr. Rody and Kamalie Law PC and communications with Mr. Rody’s former lawyers. Ms. Gojkovich copied the documents onto her own personal computer.

[63] Between September 14, 2023 and September 18, 2023, Ms. Gojkovich began to send the material to her lawyers at Chaitons LLP. She used Zip folders containing PDF, Excel, Outlook, and Word files.

[64] Shortly after September 18, 2023, Mr. Marr identified some of the electronic email files as potentially containing privileged materials. Ms. Gojkovich had read this material. Her lawyers did not. The privileged emails were segregated and not read by Mr. Schwartz or Mr. Marr.

[65] In reviewing the non-privileged materials, Ms. Gojkovich and her counsel discovered three things.

[66] First, they discovered fresh evidence of oppressive conduct by the Respondents during the period before the oppression remedy Order of May 2023.

[67] Second, they discovered fresh evidence of the wrongdoing of Buhbli Brands, the corporation that Mr. Rody incorporated in 2021 and was grooming to take over the business of Buhbli Organics.

[68] Third, they discovered that oppressive conduct was continuing after May 2023 and that Mr. Rody was not complying with his obligations under the Ontario Business Corporations Act. Mr. Rody was disregarding the May 2023 oppression remedy Order. The non-privileged materials revealed that Mr. Rody: (a) had moved assets, usurped corporate opportunities, and was grooming Buhbli Brands to misappropriate the goodwill of Buhbli Organics; (b) had appropriated funds for his own personal benefit to fund his defence and appeal in the first oppression remedy application; and (c) appeared to be in breach of the May 9, 2023 oppression remedy Order.

5. The Second Oppression Remedy Application

[69] On October 6, 2023, Ms. Gojkovich’s lawyers sent the following email message to the Rody Respondents’ lawyers:

Enclosed please find our client’s cross-motion record in support of our client’s motion for security for costs and in response to your client’s motion for a stay of the order of Justice Perell dated May 9, 2023 winding up Buhbli Organics Inc. (the “Company”).

You will note from a review of the affidavit that our client has obtained email and other documents from Mr. Rody and others through her access to the Company’s GoDaddy account. The documents show that Mr. Rody has intentionally moved assets, usurped corporate opportunities and transferred revenue from Buhbli Organics Inc. to Organic Products Consulting Inc., to Buhbli Brands Inc. and to his personal bank accounts. These actions have been taken for the clear purpose of harming Ms. Gojkovich and preventing her from recovering her share of the sale proceeds from the liquidation of the Company.

During her investigation, Ms. Gojkovich discovered email between Mr. Rody and his counsel. Our firm did not review the email on the grounds that they may be subject to solicitor/client privilege. We have segregated the email in a separate folder. We will provide you and Justice Perell with copies of the emails so the court can determine if they are privileged and whether they are subject to a recognized exception to the privilege.

[70] Also on October 6, 2023, by affidavit of that date Ms. Gojkovich used her detective work – but not the privileged communications - to respond to the stay motion in the Divisional Court and in support of a cross-motion in the Divisional Court for security for costs. She also used the non-privileged information in support of the motion now before this court for the appointment of a monitor, which she would bring six days later.

[71] On October 7, 2023, Kamalie Law PC demanded Ms. Gojkovich and Chaitons LLP turn over all emails between the Rody Respondents and Kamalie Law PC and that copying of the documents cease.

[72] On October 10, 2023, Chaitons LLP sent Kamalie Law PC a copy of the files that had been segregated as containing privileged lawyer-client materials.

[73] Mr. Rody reviewed the segregated material. He deposed that included among the privileged communications were portions which Michelle had highlighted. The communications included communications between the Rody Respondents and former counsel from the time that Ms. Gojkovich and the Rody Respondents were negotiating toward a resolution before she commenced her oppression remedy application. Mr. Rody deposed that the emails contained strategy discussions and questions between the Rody Respondents and Kamalie Law PC and drafts of legal documents for the application.

[74] Kamalie Law PC then responded to Chaitons LLP and demanded that Ms. Gojkovich cease and desist from accessing Mr. Rody’s, Mr. Butt’s and Ms. Van Dine’s email accounts and that she provide a chain of custody of the privileged communications and explain the highlighting.

[75] On October 12, 2023, Ms. Gojkovich brought her motion for the joinder of Buhbli Brands Inc., the appointment of a monitor, and ancillary relief. She relied on her affidavit dated October 6, 2023, which had been delivered in the Divisional Court.

[76] Also on October 12, 2023, Mr. Rody and Mr. Butt commenced a simplified procedure action against Ms. Gojkovich in Barrie. They claimed damages of $100,000 and punitive damages of $25,000 for breach of privacy/intrusion upon seclusion. This action was based on Ms. Gojkovich’s having accessed the email accounts by bypassing passwords.

[77] On October 18, 2023, in the renewed application for an oppression remedy, there was a case management conference. However, I adjourned the conference to provide the parties with an opportunity to settle the matter of the appointment of the monitor. The parties, however, were unable to reach an agreement.

[78] On October 22, 2023, there was another case management conference, and I set a timetable for Ms. Gojkovich’s motion for the appointment of a monitor.

[79] On October 31, 2023, the Rody Respondents brought a cross-motion to have portions of Ms. Gojkovich’s affidavit struck from the evidentiary record. A similar motion was brought in the Divisional Court. The cross-motion was supported by Mr. Rody’s affidavit dated October 30, 2023 and Aamer Butt’s affidavit dated October 30, 2023.

[80] On November 7, 2023, Ms. Gojkovich delivered her response to the Respondents’ cross-motion to strike her evidence and her reply evidence for her motion for the joinder of Buhbli Brands and the appointment of a monitor. She delivered an affidavit dated November 7, 2023.

[81] On November 10, 2023, Mr. Rody delivered an affidavit explaining why he had not reimbursed Buhbli Organics for expenditures as required by the term of the costs award Order. He explained that he had borrowed $139,500 from Buhbli Organics on the security of a promissory note to pay Kamalie Law PC and was unable to comply with the order to reimburse Buhbli Organics Inc. for expenditures. He said he would eventually do so.

[82] On November 13, 2023, Ms. Gojkovich and Mr. Rody were respectively cross-examined on their affidavits.

[83] On November 24, 2023, Ms. Gojkovich delivered her factum for her motion for the appointment of a monitor.

[84] On November 30, 2023, Ms. Gojkovich answered her undertakings and questions taken under advisement.

[85] On December 1, 2023, the Rody Respondents delivered an Amended Notice of Motion. They request the relief of the disqualification of Chaitons LLP as lawyers of record for Ms. Gojkovich.

[86] On December 5, 2023, the Rody Respondents delivered their factum for the motion and the cross-motion.

[87] On December 6, 2023, the Rody Respondents answered undertakings and questions taken under advisement.

[88] On December 6, 2023, Ms. Gojkovich delivered a supplemental factum responding to the request that Chaitons LLP be disqualified.

[89] I have not been provided with the copies of the documents that were segregated because they may be privileged from production in Ms. Gojkovich’s Application. Neither party sought the court to review the privileged documents that had been segregated by Chaitons LLP and sent to Kamalie Law PC.

D. The Motion to Strike Paragraphs of Ms. Gojkovich’s Affidavit

[90] By way of a preliminary matter, I shall address the Rody Respondents’ alternative request in their cross-motion to strike paragraphs from Ms. Gojkovich’s affidavit and in her Notice of Motion.

[91] In the Rody Respondents’ cross-motion, they seek the dismissal of Ms. Gojkovich’s motion for a monitor because of the alleged hacking of the Rody Respondents’ email account. As an alternative to dismissal, the Rody Respondents seek to strike paragraphs 30, 36-41, 43, 46, 47-49, 55, (except subparagraph (k)), 56-58, and the first sentence of 59 and Exhibits L-N, Q-Z, BB-GG of Ms. Gojkovich’s affidavit dated October 6, 2023 and paragraphs w, x, and y of her Notice of Cross Motion.

[92] I dismiss this request to strike evidence.

[93] Of the impugned paragraphs, paragraphs 30, 39-41, 43, 46-48, 49, 55 and 56 are Ms. Gojkovich’s account of her actions, including her explanation as to how she used her role as the administrator of the Company’s GoDaddy account to access Mr. Rody’s email account. Then, these paragraphs contain her personal opinions including her findings of fact and legal opinions about Mr. Rody’s conduct. These paragraphs contain non-privileged materials about Buhbli Brands Inc. and do not disclose any privileged communications to the court. I will ignore Ms. Gojkovich’s personal opinions about the law and facts of her own case. There is no reason to strike these paragraphs. Moreover, it is odd that the Rody Respondents would wish these paragraphs struck since they set out the conduct that they wish to impugn as wrongful conduct.

[94] Of the impugned paragraphs, paragraphs 36-38, 57-59 are non-privileged documents about Mr. Rody’s personal expenditures such as invoices for his vacation and travel expenses to the Bahamas, Italy, France, England, Canada, and the United States. These paragraphs do not disclose any privileged communications to the court and more to the point are collateral issues or irrelevant matters in Ms. Gojkovich’s motion to join Buhbli Brands and to have a monitor appointed.

[95] Once I have determined, as I will (for the reasons that I explain below), that the cross-motion for the dismissal of Ms. Gojkovich’s motion and for the disqualification of Chaitons LLP is without merit, there is no reason to strike the impugned paragraphs from Ms. Gojkovich’s affidavit or in her Notice of Motion. The paragraphs do not contain privileged information and Ms. Gojkovich’s explanation of how she accessed the information is a necessary part of the narrative of the case for both parties.

E. Discussion and Analysis

1. Introduction and Methodology of Analysis

[96] Ms. Gojkovich makes two major requests. The first request is to join Buhbli Brands Inc. as a party respondent nunc pro tunc so that it is bound by the May 9, 2023 oppression remedy decision. The second major request is that a monitor be appointed to oversee the business affairs of Buhbli Organics, Organic Products Consulting, and Buhbli Brands.

[97] Mr. Rody’s defence to both requests is unrelated to the merits of those requests. His primary defence is that Ms. Gojkovich’s access to the Rody Respondents’ email accounts warrants dismissing Ms. Gojkovich’s motion and also disqualifying Chaitons LLP as Ms. Gojkovich’s lawyers. The Rody Respondents’ secondary defence is that Buhbli Brands should not be joined. Its tertiary defence is that if Buhbli Brands is joined the Order should not be made nunc pro tunc and, in any event, Buhbli Brands should not be subject to the monitorship Order.

[98] I agree with the Rody Respondents that Buhbli Brands should not be joined nunc pro tunc, but I otherwise disagree with the Rody Respondents’ position on the motion and their cross-motion. As foreshadowed above, the appropriate order to make in the immediate case is to join Buhbli Brands on a go-forward basis and appoint a monitor on a go-forward basis to monitor all the Respondents, including Buhbli Brands. This Order should be granted on terms that Ms. Gojkovich scrub the copies of the Rody Respondents’ documents that she has on her computer and that Chaitons LLP destroy the copies of the documents that it has segregated as lawyer and client communications.

[99] By way of a methodology to explain my decision, I will first consider the matter of the joinder of Buhbli Brands on its merits without regard to the Rody Respondents’ primary defence that centres on Ms. Gojkovich’s access to Mr. Rody’s email accounts. Second, I will consider the matter of whether a monitor should be appointed. Third, I will explain why there is no merit to the Rody Respondents’ cross-motion, which is their primary defence to Ms. Gojkovich’s motion.

2. The Joinder of Buhbli Brands

[100] Ms. Gojkovich seeks to join Buhbli Brands and make it bound by the oppression remedy Order made on the first oppression remedy application. Putting aside the matter of the outright dismissal of Ms. Gojkovich’s motion sought by the cross-motion, the Rody Respondents’ only defence to the joinder of Buhbli Brands is that the order should not be made nunc pro tunc.

[101] I can immediately say that I agree that Buhbli Brands should not be made bound to the original oppression remedy Order nunc pro tunc.

[102] Thus, the Rody Respondents’ resistance to a request that they actually do not oppose apart from the timing of the joinder is based on allegations of impropriety by Ms. Gojkovich and alleged acts of unprofessionalism by Chaitons LLP. I can immediately foreshadow to say that Chaitons LLP did nothing wrong, and there is no reason to disqualify them in the circumstances of the immediate case. Thus, the Rody Respondents do not have a defence on the merits to the request that Buhbli Brands be joined as a party respondent on a go-forward basis.

[103] As I shall explain below, since the joinder of Buhbli Brands Inc. is justified without resort to any lawyer-client communications and indeed no lawyer-client communications were used on the application, there is no merit to the Rody Respondents’ hyperbolic rhetoric that were I to refuse the relief being sought I “would be turning a blind eye to her unlawful breach of privacy and the results of this message would be catastrophic to the administration of justice.”

[104] Ignoring the brouhaha about Ms. Gojkovich accessing Mr. Rody’s email accounts, my findings of fact set out above reveal that the circumstances of the immediate case fully justify joining Buhbli Brands as a party respondent as of October 12, 2023, when Ms. Gojkovich brought her second oppression remedy application.

[105] The Court has the authority under the Ontario Business Corporations Act and the Rules of Civil Procedure[^7] to join Buhbli Brands as a respondent. Section 248 of the Ontario Business Corporations Act grants the court wide discretion to fashion such remedy as it thinks fit, on an interim or final basis, to achieve rectification of oppressive or unfairly prejudicial conduct in connection with a corporation or any of its affiliates.[^8] The oppression remedy will respond to circumstances where a director of a closely held corporation benefits himself or herself to the detriment of the other shareholders and uses a related company to transfer assets or revenues to himself or herself and to profit from this wrongdoing.[^9]

[106] Rule 5.02(2) of the Rules of Civil Procedure permits the Court to join additional parties as respondents to a proceeding where there are claims for relief arising out of the same transaction or occurrence, or series of transactions or occurrences and appears that their being joined in the same proceeding may promote the convenient administration of justice.

[107] Had Ms. Gojkovich been aware of it, she could have joined Buhbli Brands as a respondent to the first oppression remedy application. The claims against it arise from the same events, and Buhbli Brands is one of the tools of Mr. Rody’s oppressive behaviour. The evidence on the second oppression remedy application establishes that Mr. Rody is using Buhbli Brands as a means to frustrate and to contravene the Order made on the first oppression remedy application.

[108] For these reasons, I order Buhbli Brands to be joined as a respondent as of October 12, 2023.

3. The Appointment of a Monitor

[109] Under Section 101 of the Courts of Justice Act,[^10] this Court has the jurisdiction to appoint a receiver and manager where it appears to be just or convenient to do so. The court also has the power to make an interim order appointing a receiver or a receiver-manager as part of an oppression application.[^11]

[110] Mr. Rody resisted the joinder of Buhbli Brands Inc., but, once again, putting aside the cross-motion, he is not against the appointment of a monitor on its merits. In his affidavit, Mr. Rody deposed:

49. With respect to Michelle’s request to appoint a monitor over the Respondents and Buhbli Brands Inc., the Respondents have remained agreeable to appointing a monitor over them only. However, the Respondents would like an opportunity to review proposals and rates charged by monitors so that we can choose the most economically feasible option.

50. I have not agreed to appointing a monitor over Buhbli Brands Inc., given it is not a party to these proceedings.

[111] The evidence on this second oppression remedy does establish the need to appoint a monitor. It appears that the oppressive conduct has never stopped. Mr. Rody has one way or the other been the only beneficiary of the revenues of Buhbli Organics. Ms. Gojkovich has been totally frozen out in every possible way for what has been two years and counting.

[112] Moreover, the evidence establishes that Mr. Rody is grooming Buhbli Brands to appropriate the goodwill, assets, and revenue of Buhbli Organics and is having considerable success in this regard.

[113] The appointment of a monitor is an injunctive order, and all the elements of the test for an interlocutory order are satisfied in the immediate case. Ms. Gojkovich has demonstrated a serious issue to be tried. She will suffer the irreparable harm of having an arid oppression remedy. The balance of convenience overwhelmingly favours preserving the assets and goodwill of Buhbli Organics.[^12]

[114] I, therefore, appoint a monitor forthwith to monitor the affairs of the Rody Respondents, including the newly joined Buhbli Brands.

4. The Rody Respondents’ Request for an Order Disqualifying Chaitons LLP

[115] The Rody Respondents’ cross-motion for the dismissal of Ms. Gojkovich’s motion and for the disqualification of her lawyers heavily depends on:

a. the Supreme Court of Canada’s decision in Celanese Canada Inc. v. Murray Demolition Corp.,[^13] which concerned the improper execution of Anton Piller Orders that led to the receipt of privileged lawyer and client communications;

b. Justice Quigley’s decision in Autosurvey Inc. v. Prevost, which the Rody Respondents assert is indistinguishable from the case at bar and where the court disqualified the plaintiff’s lawyers and stayed the application before the court;[^14] and

c. the Ontario Court of Appeal’s recent decision in 2177546 Ontario Inc. v. 2177545 Ontario Inc.,[^15] which is about the appropriate remedies when an opposing party’s privileged documents have been disclosed.

[116] These cases, however, do not justify the relief requested in the cross-motion for three reasons.

[117] First, the Rody Respondents mischaracterize the case at bar as if: (a) through a self-remedy, Ms. Gojkovich usurped the court’s jurisdiction to grant what is sometimes described as a civil search warrant, and (b) that she did so in a way that violated the procedures and protocols that protect lawyer and client communications during the execution of an Anton Piller Order. Neither of these characterizations of the case at bar is correct.

[118] Second, properly characterizing the case at bar, the immediate case is a variant of the law of lawyer disqualification for receiving an opponent’s privileged information. This law is associated with lawyer conflicts of interest because of the receipt of an opposing party’s confidential information. This law is indeed associated with misadventures in the execution of Anton Piller Orders, but it is about the disclosure, typically inadvertent disclosure, of a litigant’s privileged communications (be they lawyer and client communications or litigation privilege documents), to the lawyer acting for the litigant’s opponent. Properly characterizing the case at bar, the above findings of fact demonstrate that Chaitons LLP did nothing that would warrant their disqualification in accordance with the law about lawyer disqualifications.

[119] I foreshadow to say that neither Ms. Gojkovich nor her lawyers did anything that warrants: (a) her lawyers being disqualified; or (b) her motion to join Buhbli Brands Inc. and to have a monitor appointed being dismissed. It is true that Ms. Gojkovich obtained access to some personal confidential information about Mr. Rody and some lawyer and client communications, but that material caused no genuine prejudice to the Rody Respondents, who had already been found liable for oppressive conduct.

[120] Third, in whatever way the case at bar is characterized, there is no merit to the Rody Respondents’ overwrought submission that were I to refuse to dismiss Ms. Gojkovich’s motion or were I to refuse to disqualify Chaitons LLP, I would be “turning a blind eye to her unlawful breach of privacy and the results of this message would be catastrophic to the administration of justice.” In whatever way the case at bar is characterized and even assuming that Chaitons LLP did something wrong, the circumstances call for no remedy, and certainly not the remedy of disqualification and the dismissal of Ms. Gojkovich’s motion for interlocutory relief, which the Rody Respondents do not oppose on its merits.

[121] I can begin the analysis and explanation for why the cross-motion should be dismissed with Autosurvey Inc. v. Prevost. The facts of the immediate case are vastly different from the facts in Autosurvey Inc. v. Prevost.

[122] The facts of Autosurvey Inc. v. Prevost were that in 2004, Joseph Prevost, who was a software developer of a program that provided consumer satisfaction surveys to car dealerships, entered into a business relationship with Autosurvey, whose principal was Mark Durst. Mr. Prevost provided his survey software to Autosurvey Inc., and Prevost’s and Durst’s business plan was to expand Autosurvey’s clientele beyond automobile dealerships. In 2005, there was a falling out between Durst and Prevost, and Mr. Prevost terminated the relationship apart from technical support for the software which he had assigned to Autosurvey. On May 3, 2005, Autosurvey sued Mr. Prevost for misappropriation of the software and breach of fiduciary duty in appropriating Autosurvey Inc.’s business opportunities. On May 5, 2005, Autosurvey served its Statement of Claim and it brought a motion for an Anton Piller Order. On May 11, 2005, before the return of the motion for an Anton Piller Order, Mr. Durst ordered his staff to gain access to Mr. Prevost’s computer server. His staff gained access by a “brute force entry” known as “hacking into a computer.” The staff made copies of everything on Mr. Prevost’s computer server. Included in the copied materials were 29 separate e-mail communications between Mr. Prevost and his lawyers retained to defend the action and to resist the Anton Piller motion. Autosurvey’s staff made changes to the server to cover up the hacking. Mr. Durst told his lawyer about the hacking, and the lawyer advised him “to preserve the evidence and note the contents.” On May 13, 2005, when the Anton Piller motion was adjourned, and at case conferences on May 25, 2005, Mr. Prevost was not told about the hacking of his computer server. Mr. Prevost did his own investigation and believed his computer had been hacked. On May 31, 2005, in an affidavit filed in the Anton Piller motion in response to an affidavit filed by Mr. Prevost, Mr. Durst admitted that while attempting to secure Autosurvey Inc.’s proprietary software, Autosurvey had hacked a computer that he knew to be owned by Mr. Prevost. Immediately upon learning what had happened, Mr. Prevost brought a motion to stay Autosurvey Inc.’s action and to have his lawyers disqualified. Justice Quigley granted the motion.

[123] The factual circumstances of Autosurvey Inc. v. Prevost are distinguishable.

[124] In the immediate case, Ms. Gojkovich was not usurping the court’s authority to issue an injunctive Order. She was not executing a civil search warrant. In the immediate case, there was no pending motion before the court for an Anton Piller Order and there never would have been a reason for an Anton Piller motion. Moreover, Ms. Gojkovich never would have qualified for an Anton Piller Order, which over and above satisfying the criteria for an interlocutory injunction has very strict criteria, including convincing evidence there is a real possibility that the material may be destroyed or secreted before the parties may put their respective rights before the court.[^16] Ms. Gojkovich had already received a remedy from the court.

[125] In the immediate case, Ms. Gojkovich did not access a computer owned by Mr. Rody. She was accessing a computer of a corporation of which she was an owner. She did not hack. She used her authority as administrator to access the account. Although Ms. Gojkovich was not aware of it, through her role as administrator she had the ability and arguably the authority to monitor, inspect, and investigate the emails of the employees of the corporation of which she was a 50% owner. An employee has no reasonable expectation of privacy absent an express policy concerning the use of email and no reasonable expectation of its privacy exists when the email is being used to facilitate misconduct.[^17]

[126] In contrast, Mr. Prevost had a reasonable expectation that his privacy and his property and the reasonable expectation that his own computers would not be accessed. Mr. Rody’s circumstances and expectations are not similar. (Ironically, Mr. Rody could have avoided Ms. Gojkovich’s copying his email by using Buhbli Brands’ email accounts or by accepting Ms. Gojkovich’s offer to transfer administration of the computer accounts to him.)

[127] In the immediate case, the possession of the privileged material was disclosed, and it was not used for the second oppression remedy application. In Autosurvey Inc. v. Prevost, there was a high prospect because of the access to the privileged material that there could not be a fair hearing of Autosurvey Inc.’s action. In the immediate case, the privileged material had nothing to do with the Order made on the first oppression remedy application and it played no role in the second oppression remedy application. The Rody Respondents had a fair hearing and on the merits they did not oppose the joinder of Buhbli Brands and the appointment of a monitor.

[128] I have no disagreement with Autosurvey Inc. v. Prevost. The case simply does not apply to the circumstances of the immediate case because its facts are very different and, more to the point, while the law relied on by Justice Quigley about the sanctity of lawyer and client communications and about a citizen’s right to privacy are pertinent, the appropriate law to apply in the immediate case is the more general law associated with the disclosure, typically inadvertent disclosure, of a litigant’s privileged communications be they lawyer and client communications or litigation privilege documents to the lawyer acting for the litigant’s opponent.

[129] As I shall explain below, the applicable law for the circumstances of the immediate case is the general law associated with disqualification because of the possible misuse of confidential information. This law developed from the Supreme Court of Canada’s decision in MacDonald Estate v. Martin.[^18] It was this general law that was applied in Celanese Canada Inc. v. Murray Demolition Corp. and in Autosurvey Inc. v. Prevost in the circumstances surrounding the execution of an Anton Piller Order.

[130] Although not in a lawyer and client relationship, a law firm can also be disqualified if it obtains the confidential information of an opposing client. For example, in Celanese Canada Inc. v. Murray Demolition Corp.,[^19] the Supreme Court disqualified two law firms because they had obtained confidential information through the improper execution of an Anton Piller order. For another example, lawyers have been exposed to disqualification if an opposing party inadvertently discloses to them privileged information or possibly privileged information.[^20] The most egregious situation where disqualification may be necessary to preserve the integrity of the administration of justice is where the lawyer’s client intentionally gains access to an opponent’s privileged communications and the opposing party is unavoidably prejudiced.[^21]

[131] Given the sanctity and protection afforded privileged communications in the administration of justice, the use or even the potential use of the privileged information may ground the disqualification of the lawyer who receives the privileged information, unless he or she responds to protect the privilege or to have the privilege tested by motion to the court. When a lawyer receives the opposing litigant’s privileged communications or communications that appear to be privileged, the appropriate response is to not read the documents and promptly to advise the opposing litigant’s counsel that privileged materials have been obtained. The documents can simply be returned or if there is doubt about whether the documents are privileged or that the privilege has been waived, then the issue will have to be resolved by motion.[^22]

[132] Turning now to the Court of Appeal’s recent decision in 2177546 Ontario Inc. v. 2177545 Ontario Inc.,[^23] this case is a much more useful case for the Rody Respondents. However, for different reasons, the case is distinguishable in its application of the facts of the immediate case.

[133] Factually, 2177546 Ontario Inc. v. 2177545 Ontario Inc. is closer to the case at bar. In this case, through their corporations, Mr. Halyk and Mr. Labiris were land developers under the umbrella of the Zitia Group. Their business relationship broke down, and Mr. Halyk asked the technician who provided services for the Zitia Group to give him full access to Mr. Labiris’ email. The technician was not aware of the dispute between the businessmen and gave Mr. Halyk access to Mr. Labiris’ Zitia Group email. Mr. Labiris did not know that Mr. Halyk had access to his email accounts. Subsequent to gaining access, Mr. Halyk brought an oppression application against Mr. Labiris. Mr. Halyk also brought an application to have one of the Zitia Group’s development properties sold under the Partition Act. During the course of the partition litigation, Mr. Halyk intentionally gained access to Mr. Labiris’ privileged emails, read some, and retained copies. The emails contained legal advice, and litigation strategy, and litigation tactics. Mr. Labiris became suspicious, investigated, and learned about the access to his email. He then brought a motion for a remedy. Justice Chalmers struck Mr. Halyk’s Notice of Appearance in the Partition Act proceedings, and he ordered that the application proceed as undefended, subject to leave being granted by the judge hearing the matter. The Court of Appeal affirmed Justice Chalmers’ decision.

[134] 2177546 Ontario Inc. v. 2177545 Ontario Inc.,[^24] is ultimately not a case about lawyer disqualification, but it is a helpful case to the Rody Respondents insofar as it sets out the general law about the law’s response to circumstances when a litigant obtains an opponent’s privileged information. It is also a factually closer case than Autosurvey Inc. v. Prevost, with the main similarity between the immediate case and 2177546 Ontario Inc. v. 2177545 Ontario Inc. being that there was no brute force entry and Mr. Halyk, like Ms. Gojkovich, was not gaining access to a server that he did not already have access to and the Zitia Group’s technician simply followed orders from his client to obtain access. 2177546 Ontario Inc. v. 2177545 Ontario Inc. focuses on the mere receipt of privileged information as grounds for a remedial order. The test adopted by the Court of Appeal is the test that the Rody Respondents ask the court to apply in the immediate case.

[135] The test to decide the appropriate remedy where privileged information is received by an opposing party has three parts.[^25] In the first stage, the party seeking a remedy must establish that the opposing party obtained access to relevant privileged material. In the second stage, it is assumed that the receipt of privileged material is prejudicial, and in this stage, the responding party has the onus of rebutting the presumption of prejudice. If the responding party fails to rebut the presumption of prejudice, then in the third stage the court fashions the appropriate remedy.

[136] The critical matter in the test is the second stage where the onus is on the responding party to demonstrate that there was no prejudice to the moving party. In 2177546 Ontario Inc. v. 2177545 Ontario Inc., Justice Thorburn who delivered the judgment for the Court of Appeal explained how the presumption of prejudice can be rebutted at paragraph 14 of her judgment, where she stated:

14. The presumption of prejudice can be rebutted by identifying "with some precision" that: (i) the appellant did not review any of the privileged documents in their possession; (ii) the appellant reviewed some documents, but they were not privileged; or (iii) the privileged documents reviewed were nevertheless "not likely [to] be capable of creating prejudice": Celanese, at para. 53. The evidence must be "clear and convincing" such that "[a] reasonably informed person would be satisfied that no use of confidential information would occur": MacDonald Estate v. Martin, 1990 32 (SCC), [1990] 3 S.C.R. 1235, at pp. 1260-63; see also, Celanese, at para. 42. "A fortiori undertakings and conclusory statements in affidavits without more" do not suffice: MacDonald Estate, at p. 1263.

[137] The key determinant and the focus is on trial fairness and the integrity of the adjudicative process.[^26] The primary purpose of an order removing counsel is to ensure that the party whose privilege was breached does not suffer prejudice as a result, not to punish the other party. Counsel should not be removed if the integrity of the justice system can be protected with a remedy short of removal.[^27]

[138] The immediate case is about the second and third stages of the test set out in 2177546 Ontario Inc. v. 2177545 Ontario Inc. In the immediate case, Ms. Gojkovich has admitted that she read documents that she knew or ought to have known were privileged, so she cannot prove that she did not access privileged documents and she cannot prove that she only read non-privileged documents. She also cannot prove that the privileged documents reviewed were not capable of creating prejudice.

[139] However, what Ms. Gojkovich can and has proven in the immediate case with clear and convincing evidence is that a reasonably informed person would be satisfied that no use of confidential information occurred. In the immediate case, the privileged information was not used. The privileged information was not used for the already existing oppression remedy Order which is entirely untainted by Ms. Gojkovich’s after-the-fact access to Mr. Rody’s email account and the privileged information was not used in support of Ms. Gojkovich’s second oppression remedy application.

[140] In the immediate case, Ms. Gojkovich made copies of non-privileged documents, and she obtained copies which for present purposes, I will assume were privileged documents over which Mr. Rody had not waived the privilege. The matter of waiver is a contestable point because Mr. Rody knew that Ms. Gojkovich was the administrator of their business’ email accounts and he knew or ought to have known that it was ill-advised to use Buhbli Organics’ email for personal communications to obtain legal advice about how to deal with Ms. Gojkovich. The Rody Respondents submit that the onus was on Ms. Gojkovich to prove that the documents she obtained were not privileged. That might be true if she was purporting to use the documents or to suggest that the privilege has been waived. For present purposes, I will assume that she did receive privileged documents and that the privilege was not waived.

[141] Assuming that it is the case that Ms. Gojkovich obtained privileged materials, Chaitons LLP dealt with the documents appropriately in the circumstances. Messrs. Schwartz and Marr had the documents segregated into non-privileged and privileged groups, and they did not read the privileged documents. The privileged documents were not used in Ms. Gojkovich’s affidavit in support of her motion for the joinder of Buhbli Brands and the appointment of a monitor. Ms. Gojkovich’s motion does not refer to or rely on any legal advice be it substantive, tactical, or strategic that the Rody Respondents may have received from their lawyers. Chaitons LLP advised the Rody Respondents’ lawyers of the possession of the privileged documents and invited the Respondents to have the documents reviewed by the court for privilege.

[142] In other words, Chaitons LLP responded appropriately to the peculiar circumstances of the immediate case, which are different than the circumstances of Autosurvey Inc. v. Prevost and also the circumstances of 2177546 Ontario Inc. v. 2177545 Ontario Inc.[^28]

[143] Moreover, even assuming that Chaitons LLP did something wrong, in all events, the disqualification of a lawyer for a conflict of interest from the receipt of an opponent’s privileged material is not automatic, and the court must consider whether lawyer’s disqualification is appropriate or whether some lesser remedial response is what the case requires. This is the third step of the test set out in 2177546 Ontario Inc. v. 2177545 Ontario Inc.

[144] In determining whether a lawyer should be disqualified because he or she received the opponent’s privileged communications, the court will consider a variety of factors in determining whether it is appropriate to disqualify the lawyer. The court will consider: (a) how the information came into the possession of the party or his or her lawyer; (b) what the party and the lawyer did upon realizing that the documents were confidential or privileged; (c) the extent to which the information was reviewed; (d) the substance of the information and the extent to which there was prejudice from the disclosure of the information; (e) the stage of the litigation; and (f) the effectiveness of measures to avoid the misuse of the information.[^29]

[145] In the immediate case, (a) while it is disputed, the privileged information arguably came into Ms. Gojkovich’s possession lawfully and may not even be privileged because of waiver; (b) Chaitons LLP responded appropriately in segregating the documents and advising the Rody Respondents about the documents; (c) Chaitons LLP did not read or use the privileged information; (d) there is no evidence of prejudice to the Rody Respondents, who ironically do not object to the joinder of Buhbli Brands or the appointment of a monitor apart from their valid objection that the Order should not be made nunc pro tunc; (e) the Rody Respondents appear to be protesting for purely tactical reasons; and (f) the measures to avoid the misuse of the privileged information have been effective. In short, there is no reason to disqualify Chaitons LLP.

[146] The Rody Respondents protest that Ms. Gojkovich should have been directed by Chaitons LLP to remove all the copies of emails that she copied and that remain to this day on her computer. There is merit to this protest certainly with respect to the copies of privileged documents. Ms. Gojkovich does not need the documents to prove her case and she is not using the privileged documents to prove her case. The relevant non-privileged documents have been provided to Chaitons LLP and there is no reason for any copies to remain on Ms. Gojkovich’s computer. In these circumstances, the appropriate order is not to disqualify Chaitons LLP but to order Ms. Gojkovich to scrub her computer of all of the Rody Respondents’ documents that she has on her computer and that Chaitons LLP scrub the copies of the documents that it has segregated as lawyer and client communications.

[147] The result of the computer scrubbing will be that neither Ms. Gojkovich nor her lawyers will have privileged materials but that the relevant non-privileged documents will be possessed by Ms. Gojkovich’s lawyers. In this last regard, it should be observed that there is no reason to destroy copies of non-privileged relevant documents. If the documents are relevant, then they could have and perhaps should have been produced pursuant to the normal rules for the disclosure of relevant arguments in an action or application.

[148] In my opinion, the appropriate order to make in the immediate case is: (a) to dismiss the cross-motion; (b) to add Buhbli Brands Inc. as a respondent as of October 12, 2023; and (c) to appoint MNP LLP as monitor of Buhbli Organics, Organic Products Consulting, and Buhbli Brands.

F. CONCLUSION

[149] For the above reasons, the Rody Respondents’ cross-motion is dismissed and Ms. Gojkovich’s motion for the joinder of Buhbli Brands Inc. and for the appointment of a monitor is granted on terms.

[150] If the parties cannot agree about the matter of costs, they may make submissions in writing beginning with Ms. Gojkovich’s submissions within twenty days from the release of these Reasons for Decision followed by the Respondents’ submissions within a further twenty days.

Perell, J.

Released: December 28, 2023

COURT FILE NO.:CV-22-00679459-0000

DATE: 20231228

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

MICHELLE GOJKOVICH

Applicant

• and -

BUHBLI ORGANICS INC., ORGANIC PRODUCTS CONSULTING INC. and

JOHN RODY

Respondents

REASONS FOR DECISION

PERELL J.

Released: December 28, 2023

[^1]: R.S.O. 1990, c. B.16. [^2]: Gojkovich v. Buhbli Organics Inc., 2023 ONSC 2738. [^3]: I obviously do not have jurisdiction to intercede in proceedings before the Divisional Court and I will say nothing more about this request for relief. [^4]: Gojkovich v. Buhbli Organics Inc., 2023 ONSC 2738. [^5]: Gojkovich v. Buhbli Organics Inc., 2023 ONSC 3962. [^6]: Gojkovich v. Buhbli Organics Inc., 2023 ONSC 3961. [^7]: R.R.O. 1990, Reg. 194. [^8]: Murray v. Pier 21 Asset Management Inc., 2021 ONCA 424 at para 34. [^9]: Schreiber Foods Inc. v. Wepackit Inc., 2013 ONSC 338; Glasscell Isofab Inc. v. Thompson, 2012 ONSC 6423; Pitney Bowes of Canada Ltd. v. Belmonte, 2011 ONSC 3755; Malata Group (HK) Limited v. Jung, 2008 ONCA 111; C.I. Salesco Limited v. Lee Paige, 2007 37463 (Ont. S.C.J.); Covington Fund Inc. v. White, 2000 22676 (ON SC), [2000] O.J. No. 4589 (S.C.J.). [^10]: R.SO. 1990, c. C.43 s. 101. [^11]: Ontario Business Corporations Act, R.S.O. 1990, c. B.16, s. 248 (3)(b). [^12]: Paulpillai v. Yusuf, 2020 ONSC 851. [^13]: 2006 SCC 36. [^14]: 2005 36255 (ON SC), [2005] O.J. No. 4251 (S.C.J.). [^15]: 2023 ONCA 693. [^16]: Celanese Canada Inc. v. Murray Demolition Corp., 2006 SCC 36; Anton Piller KG v. Manufacturing Processes Ltd., [1976] 1 Ch. 55 (C.A.). [^17]: TeBaerts v. Penta Builders Group Inc., 2015 BCSC 2008; Menagh v. Hamilton (City), 2005 36268 (ON SC), aff’d Menagh v. Hamilton (City), 2007 ONCA 244; Milsom v. Corporate Computers Inc., 2003 ABQB 296. [^18]: 1990 32 (SCC), [1990] 3 S.C.R. 1235. [^19]: 2006 SCC 36 at para. 46. [^20]: White v. 123627 Canada Inc., 2014 ONSC 2682. [^21]: Continental Currency Exchange Canada Inc. v. Sprott, 2023 ONCA 61, at para. 42, leave to appeal refused, [2023] S.C.C.A. No. 142; Autosurvey Inc. v. Prevost 2005 36255 (ON SC), [2005] O.J. No. 4251 (S.C.J.). [^22]: Whitty v. Wells, 2016 ONSC 7716, [2016] O.J. No. 6400 (S.C.J.), aff’d 2017 ONSC 3682 (Div. Ct.); White v. 123627 Canada Inc., 2014 ONSC 2682; Heasley v. Labelle, 2013 ONSC 7606; 2054476 Ontario Inc. v. 514052 Ontario Ltd., [2006] O.J. No. 4383; Chan v. Dynasty Executive Suite Ltd., [2006] O.J. No. 2877 (S.C.J.); Nova Growth Corp. v. Kepinski, [2001] O.J. No. 5993 (S.C.J.); Aviaco International Leasing v. Boeing Canada Inc., 2000 22777 (ON SC), [2000] O.J. No. 2420 (S.C.J.). [^23]: 2023 ONCA 693, aff’g 2023 ONSC 5984. [^24]: 2023 ONCA 693, aff’g 2023 ONSC 5984. [^25]: 2177546 Ontario Inc. v. 2177545 Ontario Inc., 2023 ONCA 693; Continental Currency Exchange Canada Inc. v. Sprott, 2023 ONCA 61, at para. 42, leave to appeal refused, [2023] S.C.C.A. No. 142; Celanese Canada Inc. v. Murray Demolition Corp., 2006 SCC 36. [^26]: Continental Currency Exchange Canada Inc. v. Sprott, 2023 ONCA 61, at para. 31, leave to appeal refused, [2023] S.C.C.A. No. 142. [^27]: Milicevic v. T. Smith Engineering Inc., 2016 ONSC 2166; Stewart v. Humber River Regional Hospital, 2009 ONCA 350, [2009] O.J. No. 1759 (C.A.); Celanese Canada Inc. v. Murray Demolition Corp., 2006 SCC 36, [2006] 2 S.C.R. 189 at para. 46. [^28]: 2023 ONCA 693, aff’g 2023 ONSC 5984. [^29]: 2177546 Ontario Inc. v. 2177545 Ontario Inc., 2023 ONCA 693; Drake Holdings Ltd. v. Chubb Insurance Company of Canada, 2018 ONSC 4494; Milicevic v. T. Smith Engineering Inc., 2016 ONSC 2166; White v. 123627 Canada Inc., 2014 ONSC 2682; Trafford Holdings Ltd. v. Batchelor, 2007 BCSC 58; Celanese Canada Inc. v. Murray Demolition Corp., 2006 SCC 36.