Court File and Parties

Court File No.: CV-24-00726332-0000
Date: 2025-04-25
Court: Superior Court of Justice - Ontario

Between:
Athanasia ("Soula") Bougiotis and CleanMark Group Inc., Plaintiffs
and
Jamil Manji, Defendant

Before: Merritt J.

Counsel:
Tahir Khorasanee, Counsel for the Plaintiffs
Jamil Manji, on his own behalf

Heard: 2025-04-15

Endorsement

Overview

[1] The Plaintiffs Athanasia (“Soula”) Bougiotis ("Ms. Bougiotis") and CleanMark Group Inc. ("CleanMark"), seek interlocutory relief to require the Defendant Jamil Manji (“Mr. Manji”) to return CleanMark’s confidential information and proprietary trade secrets, to restrain him from harassing Ms. Bougiotis by misusing CleanMark’s confidential information and proprietary trade secrets, and an Anton Piller order.

Background Facts

[2] Mr. Manji was employed by CleanMark from October 2021 to April 2024.

[3] Mr. Manji was responsible for managing two of CleanMark and Ms. Bougiotis’ most important clients, Apple Inc. (US and Canada) (“Apple”) and Best Buy Co. Inc. (US and Canada) (“Best Buy”). Together they account for 50% to 60% of CleanMark’s annual revenue and 100% of its revenue in the United States of America ("US").

[4] While employed at CleanMark, Manji had access to confidential and sensitive information and proprietary trade secrets with respect to CleanMark’s US clients, which represent 60% of CleanMark’s annual revenue. In addition, Manji had access to the confidential information of many clients in Canada. His employment agreement included a confidentiality clause.

[5] On April 16, 2024, CleanMark terminated Manji’s employment without cause. CleanMark complied with its obligations under the Employment Standards Act, 2000. CleanMark also provided Mr. Manji with a reference letter to assist him with the transition.

[6] Mr. Manji’s termination letter contained the terms of a full and final release of all claims against CleanMark. Two days later, on April 18, 2024, Mr. Manji accepted the terms and executed the release of all employment claims, including claims under the ESA, the Occupational Health and Safety Act, 1990, and the Human Rights Code. As consideration for this release, CleanMark paid Mr. Manji an additional 6.67 weeks’ pay in lieu of notice, in addition to the two (“2”) weeks’ pay pursuant to the ESA, for a total of 8.67 weeks’ pay post termination.

[7] Ms. Bougiotis is the Vice President of Client Experience at CleanMark. During his employment, Mr. Manji reported directly to Ms. Bougiotis. Ms. Bougiotis and Mr. Manji were responsible for managing the Apple and Best Buy accounts.

[8] The Plaintiff alleges that Mr. Manji breached his duty of confidence and conducted a relentless campaign of harassment and defamation, in an effort to extort and aggravate the Plaintiffs. This campaign has continued unabated for almost a year, and has in fact, escalated despite the involvement of the Toronto Police Service.

[9] The Plaintiffs originally scheduled a motion for an ex parte injunction.

[10] On September 13, 2024, Centa J. dismissed the motion without prejudice to it being brought back on notice to Mr. Manji.

[11] The Plaintiffs served their motion materials on Mr. Manji and the motion was scheduled for March 28, 2025.

[12] On December 23, 2024, Mr. Manji was noted in default and as a result, the allegations set out in the Statement of Claim are deemed admitted and accepted as true: r. 19.02.

[13] On March 24, 2025, Mr. Manji wrote to the court requesting an adjournment. I scheduled a case conference for 4:30 p.m. that same day.

[14] On March 24, 2025, at the case conference before me, the parties consented to an order restraining Mr. Manji from directly and indirectly defaming or harassing Ms. Bougiotis and from defaming CleanMark (the "Order"). The Order also prohibits Mr. Manji from inducing others to breach the Order. The remainder of the motion was adjourned to April 15, 2025.

[15] Notwithstanding that he was noted in default, I allowed Mr. Manji the opportunity to make submissions at the motion, which he did.

Positions of the Parties

[16] It is the Plaintiffs’ position that Mr. Manji downloaded CleanMark’s confidential and highly sensitive information to use as part of his ongoing campaign of harassing and defaming the Plaintiffs. The Plaintiffs submit that the requested orders are necessary to stop him.

[17] Mr. Manji admits his laptop contains CleanMark’s confidential information and that he emailed Apple and Best Buy. However, he says that the Plaintiffs’ motion should be dismissed because the Plaintiffs delayed bringing the motion, he was acting as a “whistleblower”, and the Anton Piller order constitutes an unreasonable invasion of his privacy and breaches his rights under the Canadian Charter of Rights and Freedoms.

Analysis

[18] The general test for an interlocutory injunction is set out in RJR-MacDonald Inc. v. Canada (Attorney General), [1994] 1 S.C.R. 311, at para. 43. The plaintiffs must show:

1. There is a serious issue to be tried;
2. The plaintiff will suffer irreparable harm if the injunction is refused; and
3. The balance of convenience weighs in the favour of the plaintiff.

[19] The test for an Anton Piller order is:

1. First, the plaintiff must demonstrate a strong prima facie case.
2. Second, the damage to the plaintiff of the defendant’s alleged misconduct, potential or actual, must be very serious.
3. Third, there must be convincing evidence that the defendant has in its possession incriminating documents or things.
4. Fourth, it must be shown that there is a real possibility that the defendant may destroy such material before the discovery process can do its work.

See Celanese Canada Inc. v. Murray Demolition Corp., 2006 SCC 36, [2006] 2 S.C.R. 189, at para. 35, and cases cited therein.

[20] In this case, the Plaintiffs must meet the RJR test to obtain an injunction that requires the deletion of CleanMark's confidential information and restrains Mr. Manji from harassing Ms. Bougiotis by misusing CleanMark’s information. To obtain access to the laptop and related relief, the Plaintiffs must meet the test for an Anton Piller order.

Strong Prima Facie Case

[21] If the Plaintiffs establish that there is a strong prima facie case, they will necessarily have established a serious issue to be tried.

[22] As a member of the senior leadership team, Mr. Manji had access to CleanMark’s most significant clients, namely Apple and Best Buy.

[23] Mr. Manji’s employment agreement imposes a duty of confidentiality and prohibits disclosure of confidential information during or after his employment. His employment agreement strictly prohibits Mr. Manji from making copies of or removing CleanMark’s confidential information from its premises.

[24] After he left CleanMark, Mr. Manji harassed Ms. Bougiotis by repeatedly calling her and sending her emails and text messages.

[25] Mr. Manji’s correspondence to Ms. Bougiotis and others at CleanMark centered around Ms. Bougiotis’ positive role in Mr. Manji’s life during the time he worked as her subordinate and his desire to maintain contact with her. Ms. Bougiotis blocked his communications to her mobile telephone.

[26] On April 19, 2024, Manji emailed Ms. Bougiotis apologizing for his conduct and acknowledging that he was making Ms. Bougiotis feel unsafe and uncomfortable.

[27] On May 1, 2024, several weeks after his last day with CleanMark, and despite his earlier assurances, Mr. Manji persisted in sending emails and text messages to Ms. Bougiotis, about how he would never forget her. When Ms. Bougiotis did not respond, Manji messaged her on LinkedIn again reiterating that he would never forget her, that losing contact with her had been very hard for him, and that she is most important to him. Ms. Bougiotis continued to ignore Mr. Manji’s correspondence.

[28] Subsequently, Mr. Manji texted Ms. Bougiotis from a different telephone number than the one she had blocked earlier, stating that he would continue to communicate with her and promising that it would not be excessive. When Ms. Bougiotis did not respond, Mr. Manji followed up with a flurry of telephone calls which she did not answer. Mr. Manji contacted Ms. Bougiotis from at least 8 different telephone numbers.

[29] Ms. Bougiotis involved CleanMark, advising them of Mr. Manji’s post termination conduct. On Monday, May 6, 2024, Ms. Angela Vavitsas (“Ms. Vavitsas”), the Executive Vice President of CleanMark, emailed Mr. Manji to advise him that the non-work-related communication with Ms. Bougiotis was unwelcome and was making her uncomfortable. Ms. Vavitsas formally requested that Mr. Manji stop.

[30] Mr. Manji’s conduct continued and on May 9, 2024, CleanMark’s counsel sent Mr. Manji a cease-and-desist letter. Mr. Manji persisted. Eventually Ms. Bougiotis’ refusal to communicate with Mr. Manji turned his admiration for her and CleanMark into animosity towards both of them.

[31] The Plaintiffs have filed clear and compelling evidence that Mr. Manji downloaded CleanMark’s data and sent emails to its clients threatening further disclosure.

[32] On May 13, 2024, after the termination of Mr. Manji’s employment, someone sent anonymous disparaging emails to CleanMark’s clients Apple and BestBuy, and to colleagues of Ms. Bougiotis. These emails contain information only Mr. Manji could have known. In the emails Mr. Manji acknowledged having additional documents belonging to CleanMark and offered to disclose them to Best Buy and Apple upon their request.

[33] Mr. Manji sent similar emails to several other major clients and employees of CleanMark at email addresses which he acquired while he was an employee of CleanMark.

[34] Mr. Manji also has subjected Ms. Bougiotis to online harassment, including leaving CleanMark negative Google reviews.

[35] On May 22, 2024, Mr. Manji emailed Mr. John Vavitsas, CleanMark’s Chief Executive Officer, requesting a meeting, threatening litigation, and promising that he would cease contact with Ms. Bougiotis. In this email, Mr. Manji again reiterated his admiration for Ms. Bougiotis, in stark contrast to his emails to CleanMark’s clients. Mr. Manji followed up his first email to Mr. Vavitsas sent at 11:21AM with another email sent at 12:01 PM, advising Mr. Vavitsas that he had been offered employment in the same office building. Mr. Manji signed off his email quoting Greek religious scripture, which roughly translates to: ‘God Watches Over You’. This was very concerning to Mr. Vavitsas who was concerned for the safety of his staff, particularly Ms. Bougiotis.

[36] Mr. Vavitsas agreed to speak to Mr. Manji because he was concerned about Ms. Bougiotis’ safety and he wanted Manji’s behavior to stop. During the phone call between Mr. Vavitsas and Mr. Manji on May 23, 2024, Mr. Manji’s objective was to open lines of communication with Ms. Bougiotis. After realizing that he would not be able to achieve that aim with Mr. Vavitsas, Mr. Manji became primarily concerned with extorting money from CleanMark in exchange for ceasing disparaging communications with CleanMark’s clients.

[37] On May 20, 2024, Ms. Bougiotis involved the Toronto Police Services (“TPS”) advising them that while she wanted the TPS involved so Mr. Manji’s conduct would stop, she did not want to proceed with laying criminal charges against him. On May 22, 2024, the TPS confirmed to Ms. Bougiotis that they had contacted Mr. Manji and warned him that if his conduct did not stop, he would be charged under the Criminal Code, RSC 1985, c C-46.

[38] On May 30, 2024, after the TPS had contacted Mr. Manji, he again attempted to contact Ms. Bougiotis calling her three times. Ms. Bougiotis reported these calls to the TPS.

[39] On June 3, 2024, Manji emailed an apology to Mr. Vavitsas. In this email, in addition to apologizing for his conduct, he wrote about the positive impact Ms. Bougiotis had on his life and explained his conduct as an innocent attempt to meet with Ms. Bougiotis for the last time for a chance to say goodbye.

[40] CleanMark, its employees, and clients did not hear from Mr. Manji until July 31, 2024.

[41] On July 31, 2024, Mr. Manji using the pseudo name, Eleni Christoforou, sent emails to several employees and clients of CleanMark, one of whom expressed a desire to involve the police to protect the employees from internet harassment.

[42] Mr. Manji’s conduct has caused Ms. Bougiotis significant mental distress. Christoforou is Ms. Bougiotis’ ex-husband’s last name. Ms. Bougiotis and her ex-husband have a troubled history, and it caused her mental anguish to see Mr. Manji employ that last name in his attempts to communicate with her.

[43] On August 1, 2024, CleanMark wrote to Mr. Manji confirming that his efforts to gain Ms. Bougiotis’ attention had resulted in the involvement of TPS and requesting that he return CleanMark’s confidential and proprietary information.

[44] In response, Manji threatened a counter suit if he was sued for breaching confidence and threatened to file a claim at the Ontario Human Rights Tribunal setting aside the executed full and final release on the basis that it was unconscionable, unless he was paid more money and was provided guarantees of a positive verbal reference from CleanMark’s executive team.

[45] On August 15, 2024, CleanMark discovered that Mr. Manji had downloaded his entire computer drive that he had access to and used during his employment, including the staff directory and confidential client information including as financial details.

[46] At the case conference before me on March 24, 2025, Mr. Manji admitted to downloading CleanMark’s material on a hard drive but said that the laptop was not functional. He also admitted to sending the emails on May 12, 2024.

[47] Mr. Manji took CleanMark’s information. This is a conversion of CleanMark’s property. It is contrary to the provisions of his employment agreement and Mr. Manji’s common law obligations of confidentiality: see e.g. LAC Minerals Ltd. v. International Corona Resources Ltd..

[48] Confidential information can include customer lists and is not limited to documents but can also include information that the employee has come to know about the employer’s customers: see Clayburn Industries Ltd. v. Piper.

[49] I reject Mr. Manji’s allegation that he was acting as a “whistleblower.” He did not file any evidence on the motion and, in any event, he only contacted Apple and Best Buy after his first attempts to get Ms. Bougiotis’ attention failed. This timing is more consistent with retaliation than it is with whistleblowing.

[50] The Plaintiffs have established a strong prima facie case that Mr. Manji has CleanMark’s confidential information.

Irreparable Harm

[51] If the Plaintiffs establish irreparable harm, they will necessarily have established a risk of serious harm.

[52] Irreparable harm is harm that either cannot be quantified in monetary terms or cannot be cured usually because one party cannot collect damages from the other: RJR-MacDonald Inc. v. Canada (Attorney General), at para. 64.

[53] In cases alleging misuse of confidential information, irreparable harm is presumed: Carecor Health Services Ltd. v. Health Trans Services Inc., at para. 20.

[54] At the hearing of the motion Mr. Manji admitted that he is impecunious.

[55] Mr. Manji says that the Plaintiffs’ delay in bringing this motion is evidence that there is no irreparable harm.

[56] The Plaintiffs did not delay bringing this motion as is obvious from the following chronology:

• April 16, 2024 - Mr. Manji’s employment is terminated and he immediately starts harassing Ms. Bougiotis.
• May 6, 2024 - CleanMark’s Executive Vice President emails Mr. Manji asking him to stop.
• May 9, 2024 - Counsel for CleanMark sends Mr. Manji a cease-and-desist letter.
• May 13, 2024 - Mr. Manji escalates his campaign to contacting clients.
• May 20, 2024 - The Toronto Police tell Mr. Manji to stop.
• July 31, 2024 - Mr. Manji sends an email to all of CleanMark’s staff using an email address designed to torment Ms. Bougiotis and, in the email, he says he has sent blind carbon copies to others. In this email Mr. Manji alleges that Ms. Bougiotis has engaged in inappropriate practices.
• August 1, 2024 - Counsel for CleanMark sends Mr. Manji correspondence asking him to swear that he has destroyed all of CleanMark’s information in his possession and, if he still had any information to return it, and to promise to stop his harassing behaviour.
• August 15, 2024 - CleanMark’s information technology department discovers that Mr. Manji has downloaded CleanMark’s information onto his personal computer.
• August 24, 2024 - CleanMark issues the Statement of Claim in this action.
• September 10, 2024 - CleanMark files an ex parte motion for injunctive relief.
• September 13, 2024 – Justice Centa orders CleanMark to put Mr. Manji on notice of its motion.
• Between September 13 and October 18, 2024 – CleanMark served Mr. Manji with the Motion Record and attended the earliest available Civil Practice Court to schedule the motion where it was ordered to attend a case conference.
• October 18, 2024 – At the case conference Justice Brownstone imposed a timetable and scheduled the motion for March 28, 2025.
• As set out above the motion was adjourned at Mr. Manji’s request and scheduled for April 15, 2025.

[57] In this case the Plaintiff risks significant further damage to its reputation and the potential loss of its two major clients. There is a real risk that CleanMark’s business could fail if it loses either or both of these clients.

[58] Mr. Manji has conducted a campaign against the Plaintiffs for almost a year, in the face of intervention by the TPS and this action against him.

[59] His campaign began with calling, emailing, and messaging Ms. Bougiotis on social media. It devolved into emailing CleanMark’s employees and clients, and further still into using aliases and leaving negative reviews about CleanMark.

[60] Mr. Manji has left several hundred negative Google reviews about CleanMark in the span of a few months. As a result of Mr. Manji’s conduct, Google has shut down CleanMark’s Google Business Page which impedes its ability to compete.

[61] Mr. Manji’s conduct also required CleanMark to participate in an investigation with Apple.

[62] There is also a real ongoing risk to Ms. Bougiotis’ mental health which is already suffering due to Mr. Manji’s conduct in harassing and defaming her.

[63] Mr. Manji’s conduct has already caused very serious harm to the Plaintiffs and there is a significant risk they will suffer further irreparable harm if the injunction is not granted and the Anton Piller order is not made.

Balance of Convenience

[64] CleanMark is a well-established business. It has been developing its client base since 1997. CleanMark has used its reputation in commercial cleaning to expand across North America.

[65] Mr. Manji has no legal entitlement to CleanMark's confidential information and proprietary trade secrets and is using it as part of his campaign to harass and defame the Plaintiffs.

[66] Mr. Manji admitted at the case conference on March 24, 2025 that he downloaded CleanMark’s data onto his laptop that is no longer working. It is hard to see how Mr. Manji will suffer any inconvenience if he is required to deliver his laptop to an Independent Supervising Solicitor for 10 business days so they can delete CleanMark’s data from it.

[67] The balance of convenience favours the Plaintiffs.

Risk of Destruction

[68] Courts may infer a risk of destruction when the defendant has been acting dishonestly or knowingly violated the plaintiff’s rights: Capitanescu et al v. Universal Weld Overlays Inc., at para. 22, citing E.M. Myers"Search and Seizure in Civil Cases: The Anton Piller(sic) Order" (1984), 42 Advocate 41.

[69] In this case, Mr. Manji has repeatedly and knowingly violated the Plaintiffs’ rights.

[70] Mr. Manji has been dishonest in using various methods to hide his identity by using different phone numbers and email addresses to conceal his wrongful conduct. The Plaintiffs have identified 63 aliases Mr. Manji used to defame and harass them.

[71] Evidence of Mr. Manji’s past misconduct and suspicious behaviour justifies the inference that there is a risk of destruction of the proof of his wrongful conduct. It also establishes there is a real risk of public dissemination.

Breach of the Charter

[72] Mr. Manji submitted that an Anton Piller order would breach his rights under s. 6 and 7 of the Charter.

[73] Section 32(1) of the Charter provides:

This Charter applies
(a) to the Parliament and government of Canada in respect of all matters within the authority of Parliament including all matters relating to the Yukon Territory and Northwest Territories; and
(b) to the legislature and government of each province in respect of all matters within the authority of the legislature of each province.

[74] The Charter does not apply in the absence of state action. An Anton Piller order will authorize private parties to enter Mr. Manji’s premises to conduct a search to seize and preserve evidence to further the Plaintiffs’ claim in this private dispute: Macciacchera (Smoothstreams.tv) v. Bell Media Inc., 2024 FCA 138, at para 5.

[75] The execution of an Anton Piller order does not involve state action: Celanese Canada Inc., at para. 1.

Decision

[76] I find that the Plaintiffs have met the test for an interlocutory injunction and an Anton Piller order.

[77] The Plaintiffs are granted the following interlocutory relief:

1. The Defendant, Jamil Manji, shall return and delete any and all confidential information and proprietary trade secrets of the Plaintiff CleanMark Group Inc. obtained during his employment whether in paper or electronic format.
2. The Defendant, Jamil Manji, shall be restrained from harassing the Plaintiff Athanasia Bougiotis by misusing confidential information and proprietary trade secrets of the Plaintiff CleanMark Group Inc.
3. The Defendant, Jamil Manji, shall surrender his laptop computer containing CleanMark's information to Christophe Shammas of Loopstra Nixon LLP, who shall act as the Independent Supervising Solicitor, for a period of ten business days, as well as any information contained in paper format.
4. If it is determined that the laptop seized pursuant to paragraph 3 above is not the one where the Defendant, Jamil Manji, has downloaded CleanMark's Confidential Information and proprietary trade secrets, the Independent Supervising Solicitor shall return to the Premises and conduct a search for that laptop or any other Electronic Media and devices operated by the Defendant, including phones, tablets, desktop computers, etc.

Costs

[78] The Plaintiffs seek costs on a substantial indemnity scale in the amount of $34,570.15.

[79] The purpose of awarding costs is:

1. to indemnify successful litigants for the costs of litigation, although not necessarily completely;
2. to facilitate access to justice, including access for impecunious litigants;
3. to discourage frivolous claims and defences;
4. to discourage and sanction inappropriate behaviour by litigants in their conduct of the proceedings; and
5. to encourage settlements: Harley v. Harley, 2023 ONSC 4611, at para. 22; Bender v. Dulovic, 2023 ONSC 4753, at para 23.

[80] The factors to be considered in determining costs are set out in r. 57.01.

[81] The overarching principle is that costs must be fair, reasonable and proportionate: Harley, at paras. 34-35; Bender, at paras. 24-25.

[82] As the successful party, the Plaintiffs are entitled to costs.

[83] Elevated costs may be warranted in two circumstances. The first circumstance is where there is an offer to settle under r. 49, and the second is where the unsuccessful party has engaged in behaviour worthy of sanction.

[84] Where a party has engaged in conduct that is reprehensible, scandalous, or outrageous, a court may sanction this conduct through an award of elevated costs: Davies v. Clarington (Municipality), 2009 ONCA 722, at para. 28; Young v. Young, [1993] 4 S.C.R. 3, at p. 134.

[85] The kind of conduct that justifies elevated costs is not limited to conduct in the proceedings and can include the circumstances that gave rise to the litigation: Mars Canada Inc. v. Bemco Cash & Carry Inc., 2018 ONCA 239, at para. 43, citing Mortimer v. Cameron, 17 O.R. (3d) 1 (C.A.), at p. 23.

[86] In this case Mr. Manji has engaged in an ongoing campaign of harassment against the Plaintiffs using CleanMark’s confidential information to do so. His conduct has caused harm to CleanMark and harmed Ms. Bougiotis’ mental health.

[87] The Plaintiffs made every attempt to resolve this issue without resort to litigation. They ignored the Defendant, they emailed the Defendant, they involved the Toronto Police Service, they sent lawyers’ letters, all to no avail. Each step failed to deter the Defendant and he continued to escalate his behaviour.

[88] The Plaintiffs offered to settle the motion. The first offer was on March 28, 2025 as follows: “Costs are to be as agreed, assessed, or ordered by the Court, less a deduction of $1,000 upon return of the laptop to CleanMark.” The second offer was on April 3, 2025 as follows:

Our previous Rule 49 Offer to Settle remains active and will be open until one minute after the commencement of the hearing on April 11. This constitutes our second Rule 49 Offer to Settle.

Terms of Settlement:

1. Delete CleanMark's confidential information and provide proof of deletion.
2. Surrender the hard drive on which you downloaded CleanMark's confidential information for a period of two business days, allowing CleanMark to conduct a thorough search.
3. Payment of legal costs as agreed, assessed, or as ordered by the court.

[89] Mr. Manji rejected the Plaintiffs’ offer and responded by threatening to report their counsel to the Law Society of Ontario, which he admitted at the hearing of the motion. Mr. Manji threatened to report Plaintiffs’ counsel to the police. Mr. Manji also sent emails containing disparaging comments about counsel to various partners at his law firm.

[90] Mr. Manji’s ongoing conduct has caused the Plaintiffs to file 6 motion records and attend court on three occasions.

[91] The Plaintiffs are entitled to costs on an elevated scale.

[92] I have considered the factors under r. 57.01(1) including the time spent, rates charged, and the reasonable expectations of the parties. In my view, having regard to all of the factors, I find that the amount claimed of $34,570.15 inclusive of HST and disbursements is appropriate.

Merritt J.
Date: April 25, 2025