Court File and Parties
COURT FILE NO.: CV-23-93887 DATE: 2024/04/11 SUPERIOR COURT OF JUSTICE - ONTARIO
RE: CPOS Inc., Plaintiff AND Brandon Hwon Munn Fong, Defendant
BEFORE: The Honourable Mr. Justice Robert Smith
COUNSEL: Amanda Perumal, for the Plaintiff Katie Black and Kelli Day, for the Defendant
HEARD: February 26, 2024, in Ottawa
Reasons for Decision
R. Smith J
[1] The plaintiff, CPOS Inc. (“CPOS”) has brought a motion seeking an order requiring the defendant, Brandon Hwon Fong (“Fong”) to return any copies of the confidential information in his control by having such information professionally wiped from his iPhone, iPad, his laptop, and his Gmail account.
[2] Fong has provided an answer agreeing to “search and delete any information that came into his possession from working at CPOS.”
[3] Fong’s answers to undertakings are very similar to the order requested, except that CPOS wants to have an independent information technology consultant (the “consultant”) search Fong’s personal device and to remove all:
a. Emails and attachments sent from Fong’s CPOS email address to bjames.fong@gmail.com; and b. All documents received from CPOS for business purposes when he worked for CPOS, which are saved on any of the devices.
[4] Fong proposes to take similar steps only he objects to having a consultant search his devices and he agrees to comply with his undertaking.
[5] As a result, both parties have submitted draft orders and have made submissions on possible amendments, and on which order I should sign.
[6] I will sign the order prepared by Fong with the following amendments:
a. Paragraph 1 will be removed; b. Paragraph 2(a) will be amended to move (“Documents”) to the end of the sentence in paragraph 2(a); c. Paragraph 2(c) will be amended to add “described in 2(a) above”; and, d. Paragraph 5 will be amended to read as follows:
[5] This Court Orders that the issue of costs shall be agreed or be determined by me with submissions limited to 5 pages to be filed within 7 days of this decision.
[7] I make this order for the following reasons:
a. CPOS has not produced any evidence that Fong has misused the information provided to him by CPOS and a detailed search of his personal devices should not be ordered on the basis of suspicion, speculation, or mere conjecture as held in the decision of Direct Energy Marketing Ltd. v. Nation Energy Corp., 2013 ONSC 4048; b. The order requested requires a party or consultant to take some action namely to search and delete information from Fong’s personal devices. The plaintiff has not produced a strong prima facie the case that Fong, who worked as an independent contractor was not entitled to keep the information of the calculation of his new sales during the month and on residual commissions for all of his clients. The email information includes a list of all of Fong’s clients and calculates the amount he is owed for each month; c. In People Corporation v. Mansbridge et al., 2023 MBKB 94, the court held as follows: i. “… Only in exceptional circumstances such as where there is convincing evidence that a party is intentionally deleting relevant and material information will a court order production of the hard drive.” d. In the above quote, CPOS has a copy of the email it sent to Fong so there is no risk of evidence deletion; and, e. The contract between the parties does not prevent Fong from competing with CPOS, which he acknowledged that he is doing.
[8] A copy of the order prepared by Fong is attached as Schedule “A”.
Mr. Justice Robert Smith Date: April 11, 2024
Schedule A
ONTARIO SUPERIOR COURT OF JUSTICE
Court File No. CV-23-00093887-0000
THE HONOURABLE JUSTICE ROBERT SMITH
) ___________ , THE _____ DAY ) OF ________ , 2024
B E T W E E N:
CPOS INC.
Plaintiff (Defendant by Counterclaim) (Moving Party)
and
BRANDON HWON MUNN FONG
Defendant (Plaintiff by Counterclaim) (Respondent)
ORDER
THIS MOTION, made by the Plaintiff (Defendant by Counterclaim), CPOS Inc., with notice, was heard on February 26, 2024, at the Ottawa Superior Court of Justice, 161 Elgin Street, Ottawa, Ontario, K2P 2K1.
ON READING the Motion Record, Reply Motion Record, Supplementary Motion Record, and Further Supplementary Motion Record, and Factum of the Plaintiff (Defendant by Counterclaim), CPOS Inc., and on reading the Motion Record, Supplementary Motion Record, and Factum of the Defendant (Plaintiff by Counterclaim), Brandon Hwon Munn Fong (“Mr. Fong”), and on hearing submissions of counsel, appearing in-person:
THIS COURT ORDERS that the Motion made by the Plaintiff (Defendant by Counterclaim), CPOS Inc., is hereby dismissed.
THIS COURT ORDERS that within 30 days of the date of this Order, Mr. Fong shall: a) Serve an Affidavit that lists and describes the documents that came into his possession during the ordinary court of his duties at CPOS Inc. and that remain in his possession (“Documents”); b) Produce the Documents upon request by CPOS Inc., prior to deletion as set out in paragraph 2(c); and, c) Delete the Documents described in 2(a) above.
THIS COURT ORDERS that the deletion of the Documents pursuant to this Order shall not constitute spoilation of evidence.
THIS COURT ORDERS that nothing in this Order impacts the Parties’ obligations pursuant to the Rules of Civil Procedure as it relates to documentary disclosure.
THIS COURT ORDERS that the issue of costs shall be agreed or be determined by me with submissions limited to 5 pages to be filed within 7 days of this decision.
Justice Robert Smith
CPOS Inc. - and- BRANDON HWON MUNN FONG
Plaintiff (Defendant by Counterclaim) (Moving Party)
Defendant (Plaintiff by Counterclaim) (Respondent)
Court File No.: CV-23-00093887-0000
ONTARIO SUPERIOR COURT OF JUSTICE
Proceeding commenced at Ottawa
ORDER
BLACK & ASSOCIATES 352 Elgin Street Ottawa, ON K2P 1M8 Kelli Day, LSO No. 74261K kelli@black-law.ca Katie Black, LSO No. 59271W katie@black-law.ca Tel.: 613.617.6699 Fax: 613.777.9826 Lawyers for the Defendant (Plaintiff by Counterclaim), Brandon Hwon Munn Fong
COURT FILE NO.: CV-23-93887 DATE: 2024/04/11 ONTARIO SUPERIOR COURT OF JUSTICE RE: CPOS Inc., Plaintiff AND Brandon Fong, Defendant COUNSEL: Amanda Perumal, for the Plaintiff Katie Black and Kelli Day, for the Defendant reasons for decision Justice Robert Smith
Released: April 11, 2024