Executive Summary: Key Legal and Evidentiary Issues

• The necessity of inspecting the defendant’s laptop under Rule 32.01 for resolving allegations of misuse of confidential information.

• Whether the plaintiff’s CEO, Ms. Salman, possesses evidence relevant to the pending Rule 32.01 motion.

• The appropriateness of compelling a witness examination under Rule 39.03 in the context of an interlocutory motion.

• The distinction between issues relevant to the interlocutory motion versus those reserved for trial.

• The potential for abuse of process when using interlocutory motions to challenge underlying claims or foreign criminal convictions.

• The court’s discretion in determining the relevance and necessity of proposed witness evidence for the specific motion at hand.

Facts of the case

The dispute arises from the employment relationship between Openware Information Systems Consulting Company (the plaintiff) and Eyad Mohammad Arab (the defendant), who resigned in 2020. Openware alleges that Mr. Arab misused its confidential or proprietary information, technology, or property, and breached his duty to maintain the confidentiality of the company’s information. In response, Openware seeks declarations confirming these breaches and misuse.

As part of the ongoing litigation, Openware brought a motion under Rule 32.01 of the Ontario Rules of Civil Procedure, seeking an order for the inspection of a 15-inch MacBook Pro laptop in Mr. Arab’s possession. The company argues that inspecting this device is necessary for the proper determination of the issues in the proceeding. The motion is supported by several affidavits, including those from law clerks, a legal practitioner in Kuwait, and Openware’s Chief Financial Officer. Mr. Arab responded with two affidavits of his own.

Defendants’ motion to examine the plaintiff’s CEO

The defendants, in turn, brought a motion under Rule 39.03, seeking an order to compel Openware to produce its CEO, Ms. Sanaa Salman, for examination as a necessary witness. They contended that Ms. Salman had direct involvement in decisions regarding Mr. Arab’s access to Openware’s systems during the relevant period and was instrumental in actions that led to a criminal indictment against Mr. Arab in Kuwait. The defendants argued that only Ms. Salman could provide essential evidence about the access, the files Mr. Arab worked on, and the criminal proceedings initiated in Kuwait.

Discussion of legal principles and policy terms

The court reviewed the requirements for examinations under Rule 39.03, emphasizing that such examinations must be relevant to the specific issues raised in the pending motion and not serve as a means for premature discovery or collateral attacks on the underlying claim. The court also reiterated the principles for granting inspection orders under Rule 32.01, focusing on necessity, potential prejudice, and balancing interests.

The defendants relied on previous decisions where courts allowed the examination of witnesses who had provided relevant evidence for the underlying motion. However, the court distinguished those cases, noting that in this instance, the information sought from Ms. Salman pertained to broader issues in the main action and the criminal proceedings in Kuwait, rather than the narrow question of whether inspection of the laptop was necessary.

Outcome and ruling

Associate Justice Rappos concluded that the defendants failed to demonstrate that Ms. Salman’s evidence was relevant to the Rule 32.01 motion. The court found that the defendants’ arguments were directed at defending the main claim and challenging the foreign criminal judgment, rather than addressing the specific requirements of the interlocutory motion for inspection. Allowing the examination would amount to an improper use of Rule 39.03, effectively substituting discovery for the focused purpose of the motion.

Accordingly, the court dismissed the defendants’ motion to compel the examination of Ms. Salman. The issue of costs was reserved, with directions for the parties to submit written submissions on costs by specified deadlines. The successful party in this motion was the plaintiff, Openware Information Systems Consulting Company. The exact amount to be awarded for costs has not yet been determined and will be addressed following the parties’ submissions.