Court File and Parties

Court File No.: CV-22-00680678-00CL
Date: 2025-05-30
Court: Superior Court of Justice – Ontario (Commercial List)

Plaintiffs: Jonshal Enterprises Inc., Alexandra Zilbert, Jonathan Schwarz, and Shaun Schwarz
Defendants: J.D.H. Holdings Limited, Jonah Turk (in his capacity as Estate Trustee of the Estate of Norman Turk, in his capacity as Estate Trustee of the Estate of Sandra Turk, and in his personal capacity)

Before: Barbara Kimmel

Counsel:

• For the Plaintiffs: Brian Radnoff and Sahar Cadili
• For the Defendants: Archie Rabinowitz, Holly Cunliffe, and George Karahotzitis

Heard: 2025-04-11

Endorsement (Defendants’ Production and Disclosure Motion)

The Action

[1] This action involves allegations of oppressive conduct and breaches of fiduciary duty by the defendant, Jonah Turk ("Jonah"), and his deceased father, Norman Turk ("Norman"), in managing the affairs of the defendant, J.D.H. Holdings Inc. ("JDH"), and dealing with the plaintiffs' entitlements as beneficiaries to the estate of their mother (Norman’s daughter and Jonah’s sister, Debra Schwarz “Debra”). The estate is an indirect 1/3 shareholder of JDH through a holding company, Jonshal Enterprises Inc. ("Jonshal").

[2] The individual plaintiffs claim that they were not advised by Norman or Jonah about the existence of Jonshal, Debra's Trust or that Jonshal owned shares in JDH prior to the events that led up to the commencement of this litigation. They say they learned about Jonshal and its 1/3 interest in JDH from their uncle Howard Turk’s (“Howard”) children (their cousins) and follow-up discussions with Howard in 2019. The Plaintiffs assumed control of Jonshal in or about December 2020.

[3] Jonah is a director and officer of JDH. He has been closely involved in managing the day-to-day affairs of JDH since he assumed all decision-making responsibilities for it in or about February 2019.

[4] The plaintiffs frame this action as a claim for oppression and breach of fiduciary duty. Jonah's key obligations and conduct at issue are as a director of JDH and estate trustee of Norman’s estate, Norman’s key obligations and conduct are as a director of JDH and estate trustee of Debra’s estate before his death.

The JDH Defendants’ Motion

[5] This was one of two motions originally scheduled to be heard on April 11, 2025. There was not enough time to hear both so the second motion (by the plaintiffs) was adjourned to April 16, 2025, and will be considered and ruled upon in a separate endorsement.

[6] The moving parties, J.D.H Holdings Limited et al (the "JDH Defendants"), seek three related aspects of production and disclosure relief in this motion to compel the plaintiffs to:

a. deliver a particularized Schedule B to their Affidavit of Documents, setting out the particulars of the documents for which privilege is claimed (the "Particularized Schedule B");

b. produce the documents over which they claim privilege to the court for inspection, pursuant to Rules 30.04(6) and/or 30.06(d) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 (the "Production to the Court"); and

c. answer refusals with respect to questions pertaining to the privileged documents in question (the "Refusals").

[7] The primary issue for the court to determine at this time is whether the Production to the Court should be ordered, requiring the court to inspect the 282 documents over which privilege has been claimed to ascertain whether privilege has been properly claimed, or whether the listed documents (in whole or in part) ought to be produced to the JDH Defendants.

[8] The Particularized Schedule B originally sought by this motion was provided by the plaintiffs in advance of the motion.

[9] The court had directed prior to the motion that no refusals motion would be scheduled. The Refusals that the JDH Defendants now want the court to compel the plaintiffs to answer are tied to the plaintiffs’ privilege assertions. The court will not deal with the Refusals at this time. However, the outcome of this motion and its follow up are expected to have some bearing on which, if any, of the Refusals may need to be answered.

The Parties’ Positions and Evidence Regarding the Production to the Court

The Plaintiffs’ Position

[10] A Particularized Schedule B was delivered by the plaintiffs on March 5, 2025, and an amended version was delivered on April 7, 2025. Their detailed Schedule B lists 282 documents. It includes the date of each document, the author, recipient and the type of privilege claimed over each document.

[11] In addition to the detailed listing, the plaintiffs’ Schedule B also contains two general groups of documents over which privilege is claimed:

a. correspondence between the plaintiffs and their current litigation counsel, which are clearly privileged and which counsel agreed need not be produced; and

b. correspondence between the plaintiffs about this litigation after the commencement of this litigation.

The plaintiffs did not individually list such communications. This is consistent with how both sides have approached their Schedule B lists.

[12] In the detailed privilege log contained in the plaintiffs’ Particularized Schedule B, the plaintiffs assert litigation privilege over communications starting on December 16, 2019. This is when they say their investigations into the handling of their mother’s estate and her interests began. The plaintiffs’ representative, Jonathan Schwarz, has confirmed that the same litigation privilege is being asserted over each of the listed communications from and after December 16, 2019. Mr. Schwarz attests in his reply affidavit that: “All communications starting on December 16, 2019, and going forward that the Plaintiffs have in our possession are subject to either litigation privilege or solicitor client privilege”.

[13] Mr. Schwarz further attests in his reply affidavit that: “Starting in the middle of December, 2019, litigation against the Defendants was the primary or dominant purpose of communication that the Plaintiffs had related to this matter. The date of the first of those written communications is December 16, 2019”. Some further particulars about the subject matter of emails that were asked about on cross-examination have been provided in answers delivered after the examination.

[14] The plaintiffs maintain that they are not making a blanket assertion of litigation privilege, but rather affirming that the same privilege claim applies to each of the listed communications over which litigation privilege is asserted. They argue that the JDH Defendants cannot displace the plaintiffs’ privilege claims simply by asserting that they do not want to accept the defendants’ word for it and want the court to review and assess each and every document because the JDH Defendants do not know what might be in those communications. Rather, the plaintiffs maintain that the defendants have an obligation to put forward some evidence to substantiate their assertion and displace the plaintiffs’ evidence – an obligation they have failed to meet.

[15] The plaintiffs maintain that if contemplated litigation was the predominant purpose of a communication, then privilege may extend to facts being discussed and analyzed as part of the litigation strategy. The fact that a discussion was taking place about a particular fact or document may be privileged in this context even if the document or fact on its own is not privileged.

The JDH Defendants’ Position

[16] The JDH Defendants challenge the plaintiffs’ contention that litigation was contemplated in December 2019, and that the dominant purpose of each of the communications listed on the plaintiffs’ revised Particularized Schedule B was for the purpose of litigation. They maintain that a blanket assertion of litigation privilege over all documents from and after a specific date is not sufficient for the plaintiffs to meet their onus of proof in respect of their claim for litigation privilege.

[17] The JDH Defendants further contend that, even on the plaintiffs’ own evidence, the plaintiffs could not have been contemplating litigation until at least the end of January 2020 when they received their mother’s matrimonial file, or early February 2020 when they first consulted with litigation counsel. According to the JDH Defendants, there are approximately 100 emails over which privilege is claimed between December 16, 2019 and the end of January 2020.

[18] Beyond this, the JDH Defendants argue that litigation of the nature that the parties are currently engaged in was not contemplated until shortly before the plaintiffs’ notice letter was sent on August 26, 2021, and there is no other litigation to which the claimed litigation privilege could attach. It is therefore their contention that the earliest date that litigation privilege can reasonably be asserted by the plaintiffs is not until late August 2021.

[19] They also rely upon the authorities in this area to make the point that if there are privileged communications in that later timeframe, the privilege only protects communications whose dominant purpose was litigation, and does not extend to facts or information referred to in those communications, just litigation strategy.

[20] The JDH Defendants do not accept the representation of plaintiffs’ counsel to the court that each of the documents listed on the amended Particularized Schedule B has been reviewed and determined to be subject to a proper claim of litigation privilege, and they seek the Order for Production to the court so that the court can undertake this review and make these determinations itself.

The Court’s Concerns

[21] The Production to the Court that the JDH Defendants propose would entail the court reviewing and analyzing over two hundred communications listed on the plaintiffs’ Particularized Schedule B. The court is not prepared to engage in this exercise, and the parties were advised of such when the motion was heard. The Rules that provide for this type of inspection and review by the court are not there to provide comfort that the court has seen the documents and confirmed what the opposing party has said. There needs to be a reason for the court to engage in this type of exercise and it should be limited to a select few documents.

[22] The court asked the parties whether they would each be willing to produce the documents over which privilege has been asserted in their clients’ respective Schedule Bs in redacted form. They said they would be, although the JDH Defendants still want the court to determine whether the plaintiffs have met their onus to establish that the predominant purpose of all communications from and after December 16, 2019 was in furtherance of the work and strategy that eventually led to this action, or whether the earliest date for litigation privilege claims should be later than December 16, 2019 and, if so, when it should be.

Summary of Outcome

[23] The defendants’ request for Production to Court of the 282 documents listed in the Particularized Schedule B so that the court can review them and analyze the privilege asserted over them is denied. The plaintiffs have met their initial onus of establishing on a balance of probabilities that the communications in their Particularized Schedule “B” from and after December 16, 2019 were for the predominant purpose of litigation. That is the earliest date for the plaintiffs’ claims for litigation privilege.

[24] Each side is ordered to produce redacted versions of the documents over which they assert privilege (excluding documents with their current litigation counsel and documents created after the commencement of this litigation), and then meet and confer to discuss any non-privileged questions that they may wish to ask each other about in their respective Schedule B’s. Following this, the parties shall arrange a case conference before me so that further directions can be provided, if determined to be appropriate.

Analysis

The Plaintiffs’ Initial Onus

[25] The parties agree that the plaintiffs have an initial onus to establish that the documents over which they assert privilege in their Particularized Schedule B are privileged. The party claiming litigation privilege has the onus of establishing an evidentiary basis for its privilege claim on a balance of probabilities. They must further establish through cogent evidence that each undisclosed document was created for the dominant purpose of existing, contemplated, or anticipated litigation. This was not a contentious point and both sides acknowledged it, although no specific authority was cited.

[26] The plaintiffs point to a series of events in December 2019 that they say triggered the litigation privilege they claim over all communications thereafter. After Norman's death, in late 2019 the plaintiffs reached out to their uncle Howard Turk (“Howard”) about Norman's estate to determine if they were beneficiaries. During those "investigations", they say they became aware of an entity called Jonshal Enterprises Inc. ("Jonshal"), obtained a copy of its corporate profile and that is what they say started the whole process.

[27] The Privileged Documents consist of communications and notes which began on December 16, 2019 when the plaintiffs discovered the existence of Jonshal and began discussing commencing litigation, among themselves, and with their uncle Howard, and his children, the plaintiffs' cousins.

[28] The plaintiffs’ affidavit evidence, and evidence given on cross-examination, is that all of the documents individually listed in the plaintiffs' detailed Schedule B pertain to the following issues:

a. Communications with their uncle and/or cousins regarding commencing litigation in relation to Norman's estate and/or JDH. At the time, the plaintiffs were discussing jointly bringing an action with their cousins and/or uncle. Consistent with this, they were reaching out to and discussing this issue with prospective litigation counsel shortly afterwards, in January and February 2020.

b. Communications with counsel about jointly bringing an action in relation to Norman's estate or JDH, including a draft letter prepared by counsel.

c. Communications among the Plaintiffs regarding this action or bringing an action in relation to Norman's estate.

[29] The plaintiffs maintain that these are all subject to litigation privilege (and some also are subject to solicitor client privilege). The only purpose of these communications, according to the evidence tendered by the plaintiffs, was to discuss jointly bringing litigation themselves, and with their uncle and cousins. This is substantiated by the fact that the plaintiffs, their cousins and their uncle began jointly communicating with counsel starting in early 2020, not long after the plaintiffs say they first learned about Jonshal and its involvement in JDH. The plaintiffs shared a common interest privilege at that time with their uncle and cousins respect to the litigation that was contemplated, even if the litigation was only commenced sometime later by some and not all of the original group.

[30] For litigation privilege to apply, the document over which the privilege is asserted must have been created for the dominant purpose of facilitating either investigation or preparation of anticipated litigation. The litigation in question, or related litigation, must have been either pending or apprehended at the time the document was created: see Blank v. Canada (Minister of Justice), 2006 SCC 39, [2006] 2 SCR 319, at paras. 27-28, 34, 38, 59-61.

[31] I accept that the evidence tendered by the plaintiffs satisfies the initial onus that they must meet for litigation privilege to apply to the documents they have listed on their Particularized Schedule B from and after December 16, 2019. The litigation that they eventually commenced was apprehended at that time and they have stated that the dominant purpose of their written communications listed in their Particularized Schedule “B” was to investigate, and later facilitate and prepare for this eventual litigation.

[32] The JDH Defendants question how the dominant purpose of communications dating back to December 16, 2019 can be for anticipated litigation that was not commenced until years later. They complain that there is no evidence that litigation was contemplated in December 2019 because meetings with prospective litigation lawyers did not get arranged until January 2020 and did not take place until February 2020 and the notice letter was not sent until August of 2021. They point to some discrepancies in the plaintiffs’ evidence about the precise dates and sequencing of the events in late 2019 and early 2020.

[33] In my view, the JDH Defendants are attempting to hold the plaintiffs to too high an evidentiary burden and they are focused on minor points in the chronology where different people describe the sequencing and timing of events differently. In so doing, the JDH Defendants have lost sight of the bigger picture: Within a matter of weeks after the plaintiffs say they discovered Jonshal and became focused on anticipated litigation (over the holidays in December 2019 to January 2020) they arranged and attended meetings with litigation counsel.

[34] Nor is it fatal to the plaintiffs’ privilege claims (as the JDH Defendants contend) that the same privilege is asserted for each of the listed documents on the Particularized Schedule B. That is the point. After December 16, 2019 what the plaintiffs say they were predominantly focused on in their communications was anticipated litigation relating to Norman and Jonah’s conduct relative to their interests in JDH. The precise causes of action and relief need not be determined for litigation privilege to apply.

The Defendants’ Onus

[35] The plaintiffs have satisfied the court that there is a prima facie foundation for their privilege assertion. Thus, the onus shifts to the defendants who are challenging the privilege under Rule 30.06, which provides that:

Where the court is satisfied by any evidence that a relevant document in a party's possession, control or power may have been omitted from the party's affidavit of documents, or that a claim of privilege may have been improperly made, the court may,

(b) order service of a further and better affidavit of documents;

(c) order the disclosure or production for inspection of the document, or a part of the document, if it is not privileged; and

(d) inspect the document for the purpose of determining its relevance or the validity of a claim of privilege.

The court also can inspect a document to determine the validity of a claim for privilege under Rule 30.04(6).

[36] Rule 30.06 requires evidence (as opposed to mere speculation, intuition or guesswork) that potentially relevant undisclosed documents exist: see Titanium Logistics Inc. v. B.S.D. Linehaul Inc. et al., 2019 ONSC 4955, at para. 11; Glover v. IBM Canada Ltd., 2020 ONSC 554, at para. 5. “[C]ourts will decline to review solicitor-client documents to ensure the privilege is properly asserted unless there is evidence or argument establishing the necessity of doing so to fairly decide the issue”: see Alberta (Information and Privacy Commissioner) v. University of Calgary, 2016 SCC 53, [2016] 2 SCR 555 at para. 68.

[37] The defendants assert that the court should review the documents to satisfy itself and that it would be a reviewable error for the court not to do so, relying on Quadrangle v. AG Canada, 2023 ONSC 7125, 170 OR (3d) 700, at paras. 43-44. That was a very different situation, involving the late production of a select number of documents during a trial that were acknowledged to be relevant and that the trial judge was asked to review and rule upon (see, for example, paras 1-9). Here the suggestion is that the court review more than 280 documents and make a determination about privilege without the depth of knowledge or background that the parties and their counsel have about the events at issue.

[38] It is not necessary for the requested document review to be undertaken by the court to fairly decide the issues in the circumstances of this case. There needs to be doubt raised with respect to the issue of privilege to justify an order for inspection (see Ansell Canada Inc. v. Ions World Corp., 1998 CarswellOnt 4673, para. 20) and the JDH Defendants have not raised sufficient doubt in my mind to warrant this requested Production to (and review by) the Court.

[39] The JDH Defendants acknowledge that the backdrop to the request for the Production to the Court is a proposed summary judgment motion, which the JDH Defendants seek leave to bring on two grounds: (i) the plaintiffs knew or ought to have known that they had a potential claim by no later than December 2014/January 2015, if not as early as 2008; and (ii) there is a strict limitation period under the Trustee Act, R.S.O. 1990, c. T.23 which expired on August 5, 2021, being two years after the death of Norman Turk on August 5, 2019.

[40] When asked how documents from December 16, 2019, would be of assistance or relevant to the argument that the limitation period began to run in 2014/2015, or as early as 2008, the JDH Defendants' response was they do not know if they are helpful "because we have not seen the documents". The plaintiffs characterize this is an impermissible “fishing expedition” without an evidentiary foundation.

[41] The plaintiffs maintain that "none of the documents [sought in the Production to the Court] are helpful in establishing the limitation period commenced in 2014." They make the point that the strict limitation period under the Trustee Act (if it applies) is not based on discoverability and runs from the date of Norman Turk’s death. Further, they point out that it is not apparent, or even intuitively logical, that the documents created in December of 2019 and January of 2020 would be relevant to establishing that the defendants knew something in 2014/2015.

[42] While perhaps not relevant to the limitations-based proposed summary judgment motion (that the court has not approved), it is conceivable that the documents listed on the plaintiffs’ Particularized Schedule B are, by virtue of their inclusion, at least potentially relevant to some aspect of the plaintiffs’ claims. That is not the issue on a privilege motion. Documents over which privilege is asserted are usually relevant, but held back because they are privileged. What is of some import to this motion is that there has been no demonstrated prejudice to the JDH Defendants in not having access to the documents that they have exemplified and speculated about.

[43] Insofar as the JDH Defendants want to rely on the fact that a memo that was sent to the plaintiffs by their uncle Howard in 2015 was also attached to the privileged emails listed in the Particularized Schedule B, and therefore whatever was contained in that memo that was part of the litigation strategy discussions in 2019 was or ought to have been discoverable in 2019, they have the ability to make that argument from the documents they do have, without interfering with a privilege claim. In other words, the JDH Defendants have not demonstrated that they are being prejudiced in any way by their lack of knowledge about the contents of these documents over which a prima facie basis for privilege has been established.

[44] In this regard, the defendants say that litigation privilege may apply with respect to a party's litigation strategy, but that privilege does not extend to the base information itself (e.g. facts and documents referred to): see R. v. Assessment Direct, 2017 ONSC 5686, para. 10; LifeLabs LP v. Information and Privacy Commr. (Ontario), 2024 ONSC 2194, para. 78; Fresco v. CIRC, 2019 ONSC 3309, para. 37. The flip side of this, however, is that communications about an existing fact or document, if for the predominant purpose of litigation or contemplated litigation or for seeking and receiving legal advice can be privileged even if the existing fact or document (otherwise independently disclosed) is not privileged on its own.

[45] Nor is the independent earlier production and disclosure of documents attached to or referred to in privileged communications a waiver of privilege as the defendants also assert. It is in fact the opposite. It is an affirmation that the underlying facts, documents and the knowledge of their existence at a particular point in time is not privileged, even if subsequent communications about them in contemplation of litigation are privileged.

[46] The key question is always whether the dominant purpose of the communication was for litigation. The defendants challenge this aspect of the privilege assertion. They point to the plaintiffs’ own evidence that their communications with Howard and their cousins was for "information gathering" and they were "investigating". The plaintiffs' Particularized Schedule B reveals that the first email communication with a lawyer was on January 27, 2020 (Howard Carr at Faskens), and, even then, one of the plaintiffs' testified on discovery that their discussions with legal counsel were not "necessarily about ... commencing an action. We were trying to understand our rights and trying to make sense of the documentation."

[47] As noted earlier in this endorsement, the investigation carried forward and the fact that it took a few weeks to meet with litigation counsel does not imply or infer that the predominant purpose of the communications was not for purposes of litigation as the plaintiffs have said. Nor is the fact that different individuals express themselves differently about how far advanced they were in their decision making about commencing litigation, as opposed to investigating or facilitating anticipated litigation that had not yet crystalized into a decision to commence an action.

[48] Many of the listed documents on the Particularized Schedule B are described as emails involving communications with Howard Turk (the plaintiffs’ uncle and Jonah’s brother) and Andrew Turk (the plaintiffs’ cousin and Jonah’s nephew), neither of whom provided any evidence on this motion in support of either side’s position. Each side suggested an adverse inference could and should be drawn from the absence of evidence from Howard and Andrew Turk where it could have assisted the other side in meeting their onus: in the case of the plaintiffs, to establish the predominant purpose of the communications in December 2019 and the first half of 2020, and in the case of the JDH Defendants, to provide the evidence that they need (beyond mere speculation and intuition) to challenge the assertion of privilege. I decline to draw any inferences from either side’s failure to compel evidence from these individuals who are not parties to the litigation and could have been compelled to testify by either side.

The Court’s Determination

[49] I find that there is an evidentiary foundation to establish a basis for the asserted claim of litigation privilege by the plaintiffs starting as early as December 16, 2019 that has not been displaced by any evidence that the JDH Defendants have asserted calls into question the plaintiffs’ privilege claims.

[50] Anything that comes to light from the reciprocal review that both counsel have been directed to undertake so that redactions for privilege can be made on the face of the listed Schedule B productions may be the subject of an exchange between counsel about these redacted documents (see paragraphs 23 and 24 above). [1] If at that time, there are a select few documents that the parties wish the court to consider in order to affirm or deny the asserted litigation privilege, the court may be prepared to do so. This can be raised at the case conference that the court has directed the parties to arrange once this exercise has been completed.

[51] In the meantime, the exercise of counsel re-focusing on these particular communications and evaluating each one for litigation privilege and redacting those aspects, while producing anything that is not privileged, will at the very least, provide some additional comfort that the asserted privilege is document specific.

Costs

[52] The plaintiffs’ costs outline for this motion certified their all-inclusive partial indemnity costs to be $15,718.30, substantial indemnity costs to be $23,577.45 and full indemnity costs to be $38,091.17.

[53] The JDH Defendants costs outline for this motion certified their all-inclusive partial indemnity costs to be $90,144.51, substantial indemnity costs to be $135,216.76 and full indemnity costs to be $150,240.85.

[54] The discrepancy in the claimed costs for this motion is jarring. On a partial indemnity scale, which is the likely scale that would apply if costs were to be awarded, the difference is almost $75,000.

[55] The parties advised at the conclusion of the hearing that there were no relevant offers to settle that would need to be considered when the court comes to deal with the matter of the costs of this motion.

[56] The court was under the impression that the parties contemplated that costs would be decided when the motion was decided based on the Costs Outlines that were to be exchanged and submissions made in them. However, the plaintiffs have recently indicated a desire to make written cost submissions. That was not contemplated and I do not consider it to be necessary. The court does recall that the discrepancy between the costs claimed by each side for this motion was something that the plaintiffs highlighted at the conclusion of oral argument.

[57] The JDH defendants did eventually get the amended Particularized Schedule “B” from the plaintiffs after bringing this motion, but they waited to identify the gaps that they sought to have filled in until the cross-examinations on this motion. It is not a forgone conclusion that those additional particulars only were provided because of this motion. The plaintiffs say they would have been provided if requested. The requested Production to the Court was not ordered. Refusals should not have been included as part of the relief on this motion (because Penny J. declined to schedule requested refusals motions twice and because what was sought on this motion was tied to the privilege issues in any event, which had to be determined first). Ultimately, the directions that the court has made were reciprocal and may, or may not, lead to further limited document reviews by the court. At the very least, the costs incurred by the JDH Defendants on this motion are disproportionate. In any event, they were not entirely successful on this motion. The plaintiffs may argue that the JDH Defendants were unsuccessful.

[58] That said, the plaintiffs had an onus to establish their privilege claims which they did through their response to this motion, and that is not necessarily something that they are entitled to recover costs for, even though the overall amount of costs that they have claimed is more reasonable and proportionate to the issues.

[59] In the exercise of my discretion under s. 131 of the Courts of Justice Act, R.S.O. 1990, c. C.43, and having regard to the relevant factors under Rule 57, including that there was no clear “winner” on this motion when the issues are considered in light of the parties’ respective onuses, I am not awarding any costs of this motion to either side. They shall both bear their own costs of this motion, in any event of the cause (e.g. regardless of the outcome of this case).

[60] If there is something critical to the costs analysis that the court has overlooked, that may be raised for the court’s further consideration at the case conference that the parties have been directed to schedule and attend following the further review and redaction of their respective particularized Schedule Bs.

Kimmel J.
Date: May 30, 2025

[1] As noted earlier in this endorsement, the redactions need not be done by either side for the general categories of communications with litigation counsel of record and communications after this litigation was commenced.