Court File and Parties
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: JJJJ'S Inc., Plaintiff
AND:
Jacob Avolio; Adrian Avolio; Robert Levitt, AKA Robbie Levitt; 1001296316 Ontario Inc., Other c.o.b. as National Jewellers; Vahe Baghoomian, Defendants
BEFORE: Schabas J.
COUNSEL: John Philpott and James Zibarras, for the Plaintiff
Jeffrey Goodman, for the Defendant by Counterclaim, JJJJ’s Inc.
Sarah Walker and Emma Pandy-Szekeres, for the Defendants Jacob and Adrian Avolio
Wendy Greenspoon Soer and Yupei (Summer) Xia, for the Defendants National Jewellers, Robbie Levitt, and Vahe Baghoomian
HEARD: June 3, 2026
ENDORSEMENT
1Further to my Endorsement of May 13, 2026, a case conference was convened today, June 3, 2026.
2Two issues were addressed: (1) whether the documents seized pursuant to the Anton Piller Order can, or should, be reviewed by the Independent Supervising Solicitor (“ISS”) and relevant documents be produced; and (2) alleged insufficiencies in the productions of the plaintiff.
3I issued an Anton Piller Order (the “Order”) in this matter on December 12, 2025. It was executed on December 18, 2025, and records seized were retained by the ISS. The following day, counsel objected to the release of any of the evidence seized to the plaintiff’s counsel, asserting a claim of privilege over all material seized. Other than physical documents inspected and seized during the search, the ISS did not take steps to inspect the other material seized, which is largely if not entirely in electronic form.
4A case conference was held on February 10, 2026. My Endorsement following that case conference sets out the positions taken at that time.
5Almost six months have passed since the Order was issued. The defendants no longer assert privilege, and have not expressed any intention to move forward with their motion to challenge the Order. The parties have exchanged affidavits of documents. The defendants have provided a supplementary affidavit of documents.
6Both sides claim that the productions are insufficient. The defendants’ first round of productions clearly was inadequate. They “took another crack at it”, as counsel stated, after the plaintiff pointed out that, among other things, the defendants had not produced clearly relevant documents which had been physically inspected and seized by the ISS and identified at that time to the parties.
7The plaintiff submits that the time has come to have the ISS review the seized documents for relevance and produce them to the parties. The defendants object, arguing that the Order does not contain a provision granting access to the seized evidence. The defendants also note that I previously denied such a request in my Endorsement of February 10, 2026, and they argue that such a review is premature.
8I agree with the plaintiff.
9As I have noted, almost six months have passed since the Order was issued and records seized. The defendants failed to make full and proper disclosure in their first affidavit of documents, which was identified by the plaintiff based on its limited knowledge of what was seized. The defendants then provided a supplementary affidavit of documents. This has delayed the production process in a case where time matters, as it is alleged that the defendants have effectively stolen business opportunities from the plaintiff, and may be continuing to do so.
10I do not agree that the Order does not permit access to the records by the ISS and the plaintiff.
11The Order, by its terms, contemplates the ISS “identifying” and “inspecting… documents, items, devices and equipment…” The ISS needs access in order to identify and inspect the records.
12The plaintiff’s solicitor is required by the Order to “ensure that a list is made of all evidence” seized. Access is required to make a list.
13The Order also requires that “the Evidence seized shall be used by the Plaintiff only for the purposes of this action, unless the Court orders otherwise.” The plaintiff cannot use the evidence unless it has access to it.
14In my Endorsement of February 10, 2026, I discussed the fact that the plaintiff had omitted paragraph 20 of the Model Order in the Order. This paragraph prevents a plaintiff from having access to the seized material “prior to the delivery of the Defendant’s affidavit of documents, unless the … Court orders otherwise.” The footnote to that paragraph in the Model Order makes the point that “the plaintiff will usually not have access to the Evidence seized until discovery.” The delay in access is designed to provide the defendant with the opportunity to challenge the order or assert privilege. However, the defendants’ only position today was simply that the terms of the Order do not permit access to the seized materials by the plaintiff.
15In my view, the provisions of the Order contemplate access to the documents for inspection by the ISS and disclosure to the plaintiff of those records deemed relevant by the ISS for the plaintiff’s use in the action. While the removal of paragraph 20 of the Model Order troubled me, as its removal was not specifically drawn to my attention when the Order was issued, the effect of it has been implemented in my Endorsement of February 10, which has prevented the plaintiff from accessing the documents for several months.
16The time has come to vary my earlier direction preventing review, and give effect to the other aspect of the omitted paragraph 20. The matter is at the discovery stage, and the conduct to date supports the view that access to the records will move discovery forward efficiently. Counsel for the defendants had no compelling response to the point that judicial efficiency supported access to the materials at this time.
17The role of the ISS provides a strong level of protection to the defendants in ensuring that irrelevant or privileged material, if any, is not provided to the plaintiff. It is open to the defendants, down the road, to dispute the relevance of records identified by the ISS as relevant, should they wish to do so. The defendants may also have civil remedies if it turns out that the Order ought not to have been issued, or records were improperly disclosed which have caused them damage. But that is all for another day.
18As Donaldson M.R. stated in WEA Records Ltd. v. Visions Channel 4 Ltd. et al, [1983] 2 All E.R. 589 (C.A.) at 594, quoted with approval by Wilton-Siegel J. in Bell Express Vu Limited Partnership v. Echostar Satellite LLC at para. 9:
The courts are concerned with the administration of justice, not with playing a game of snakes and ladders. If it were now clear that the defendants had suffered any injustice by the making of the order, taking account of all relevant evidence including the affidavits of the personal defendants and the fruits of the search, the defendants would have their remedy in the counter-undertaking as to damages. But this is a matter to be investigated by the High Court judge who is seized of the matter, and only when he has reached a decision can this court be concerned.
19Accordingly, the ISS shall be permitted to inspect the seized material and to produce to the parties the records, documents or electronic data it finds to be relevant to the matters in issue. I have considered whether the ISS should first only provide a list of relevant documents in order that the defendant can have an opportunity to object to the relevance of anything before it is disclosed; however, that adds an unnecessary hurdle and may lead to further delay. The plaintiff may only use the material disclosed for purposes of this action. Further, any dispute about relevance will involve at least some disclosure to the plaintiff, and the defendant, as I have noted, ultimately has other remedies if it can show harm for which it ought to be compensated.
20As to the plaintiff’s productions, I have made clear that it is not my role to address the adequacy of productions, or to hear production motions, which are to be brought to an Associate Justice. Based on the material and submissions presented at this case conference, the defendants’ requests may be overreaching in some areas, but in other areas the defendants’ requests may have validity. Given the nature of the action and the sensitive contents of some material, protocols may need to be developed to ensure that information disclosed is not misused.
21Counsel, acting reasonably, efficiently, and in their clients’ interests, should be able to work out these issues without engaging in games of “snakes and ladders” with one another, or involving the court.
Paul B. Schabas J.