Edgewood Health Network Inc. v. Anderson, 2024 ONSC 2027

Court File and Parties

Court File No.: CV-24-715353-00CL Date: 2024-04-05 Superior Court of Justice – Ontario (COMMERCIAL LIST)

Re: Edgewood Health Network Inc., Bellwood Health Services Inc. and Gateway Recovery Centre Inc., Plaintiffs And: Joanna Anderson, Homewood Health Inc. and Cara Vaccarino, Defendants

Before: W.D. Black J.

Counsel: Gavin J. Tighe, Alexander Melfi and Saisha Mahil, for the Plaintiffs Rohit R. Kumar, for the Defendant Homewood Health Inc. David Levangie, for the Defendant Joanna Anderson Zohar Levy, for the Defendant Cara Vaccarino

Heard: April 4, 2024

Endorsement

Background

1During the course of searching and reviewing electronic communications involving the defendant Ms. Anderson, and the confidential information at the heart of this claim, it was discovered that on December 9, 2023, Ms. Anderson had forwarded certain confidential and proprietary information of the plaintiffs to Cara Vaccarino. Ms. Vaccarino was Edgewood’s Chief Operating Officer until the termination of her employment on July 26, 2023.

2In light of this discovery, the plaintiffs propose to amend their claim to include Ms. Vaccarino as a defendant, and bring a motion seeking to have Ms. Vaccarino subject to the same terms as those previously ordered relative to Ms. Anderson (by way of my March 7, 2024 order).

3The plaintiffs’ materials to this end were served on April 3, 2024. Between then and the case conference before me at 8:15 a.m. on April 4, 2024, Ms. Vaccarino retained counsel, Ms. Levy, and Ms. Levy delivered – at 6:03 a.m. on April 4 – responding materials.

4In her responding affidavit, Ms. Vaccarino confirms that Ms. Anderson sent the email at issue to her on December 9, 2023, but says that she does not know why, that she cannot recall if she even opened the email, and in any event, that she did not do anything with the email or its contents.

Submissions

5Counsel for the plaintiffs submitted that Ms. Vaccarino’s phone, and her gmail address, should be “mirrored” by Kroll in order to preserve the relevant evidence and to determine what if any use was made of the email and its contents. He suggested that once that is done, it will remove the immediate time pressure, and the motion relative to Ms. Vaccarino can proceed on a timetable to be agreed.

6Ms. Levy argued that this “puts the cart before the horse” effectively granting Anton Pillar relief before a determination as to whether Ms. Vaccarino is appropriately subject to such relief.

7She also pointed out logistical concerns about Ms. Vaccarino, who is now the CEO of the Royal Ottawa Hospital, losing access to her device even temporarily.

8On the latter point, Mr. Tighe noted that the “mirroring” of Ms. Vaccarino’s device and email address should be relatively straightforward at this point, and that it can be done late at night or on the weekend to minimize the intrusion.

Analysis

9While I note Ms. Levy’s concerns about putting the cart before the horse, I expect it will be important to understand what if any use Ms. Vaccarino made of the email and its contents, and that the “mirroring” can be done without prejudice to positions that the parties may take in the motion and in the lawsuit generally. It is clear that the question of the reason for Ms. Anderson forwarding the email to Ms. Vaccarino, and Ms. Vaccarino’s use or otherwise of the email, will be front and center in the motion and will have to be addressed. The fact that the email was sent and received in my view means that those questions will have to be determined, and so I find that it is appropriate to obtain and preserve the evidence at this stage.

Disposition

10To that end, ISS will contact Kroll immediately to determine the logistics and time involved in retrieving and mirroring the device (and the email account), and will advise all counsel of Kroll’s answer.

11Mr. Tighe and Ms. Levy will then confer to conceive the least disruptive and intrusive plan for Kroll to obtain, mirror and return the device as expeditiously as possible.

12I also expect counsel to discuss and agree on a timetable for the exchange of any further materials, cross-examinations and the hearing of the motion, and they may contact me through my judicial assistant at: lorie.waltenbury@ontario.ca in order to schedule the return of the motion.

13Pending the mirroring of the device, Ms. Vaccarino – as she has voluntarily undertaken – is not to destroy the email or to do anything with the email or her device that would in any way interfere with the mirroring exercise or in any way change the status and use, if any, of the email at issue.

14On the other side of the fence, the plaintiffs, and indeed all parties, will continue to be bound by the terms of the original Order with respect to the sensitive and confidential information that may emerge in the mirroring of Ms. Vaccarino’s device.

15In terms of the timeframe to be the subject of the mirroring, in my view the beginning of the relevant period is from just in advance of Ms. Vaccarino’s departure from her employment with Edgewood until the present time. Accordingly, the mirroring of her phone should encompass the period from June 1, 2023 to the present, subject to requests for a different timeframe if and when evidence emerges to suggest that the timeframe should be modified.