Executive Summary: Key Legal and Evidentiary Issues

• Prior 2022 production order against Westbrook was set aside due to a procedural error, so the current motion proceeded de novo without deference to the earlier endorsement.
• Relevance of the requested non-party production was assessed strictly by reference to the pleadings, which alleged conversion only in relation to submissions made to the City of Hamilton, not to Westbrook.
• The plaintiff’s unjust enrichment claim was effectively withdrawn and its breach of contract claim did not allege misuse of work product, narrowing the potentially relevant issue to conversion only.
• Westbrook’s project file was found unnecessary because the City of Hamilton’s complete approvals file—containing all submissions, including any from Westbrook—had already been produced.
• The court applied Rule 30.10 and the Stavro factors, emphasizing that non-party discovery requires both relevance to a material issue and unfairness in proceeding to trial without the documents.
• Confidentiality and trade-secret concerns raised by Westbrook did not need to be decided because the motion failed on relevance and necessity grounds.

Facts of the case

The dispute arises from a greenhouse expansion project in Carlisle, Ontario, undertaken by eNature Greenhouses Inc., a producer of hydroponically grown produce. In November 2018, eNature engaged 1546866 Ontario Inc., carrying on business as Enertec Engineering, to provide engineering services for the project. Under this engagement, Enertec was to prepare drawings, specifications, and related engineering work for a greenhouse heating system to support eNature’s growing operations. As the project evolved, changes to the 2018 contract were made, including the addition of more greenhouses. These changes prompted negotiations for a revised agreement between Enertec and eNature. The court did not determine whether a new contract was conclusively formed or whether the terms of the original contract were superseded, leaving the precise contractual framework unresolved at this procedural stage. Enertec alleges that it continued to provide engineering services, including the development of drawings and specifications, from November 2018 through approximately December 2020 for the Carlisle greenhouse project. According to Enertec, this work product formed the technical backbone of the heating and greenhouse systems contemplated for eNature’s expansion. In December 2020, eNature terminated its relationship with Enertec and retained Westbrook Greenhouse Systems Ltd. to provide design and construction services for the greenhouses and the associated heating system. Westbrook, a competitor of Enertec in the greenhouse and greenhouse-heating systems space, then took over the project. Enertec commenced an action against eNature in July 2021. In its statement of claim, Enertec advanced causes of action for breach of contract, unjust enrichment, and conversion. The breach of contract claim asserted that eNature failed to comply with the terms of the engineering engagement, but did not specifically allege that misuse of Enertec’s drawings and specifications constituted the contractual breach. An unjust enrichment claim was initially pleaded but was later effectively withdrawn, as Enertec’s counsel advised in responses to undertakings that Enertec would not be pursuing unjust enrichment. The conversion claim focused on Enertec’s allegations that eNature improperly used Enertec’s work product when dealing with municipal authorities. In the pleadings, Enertec alleged that its lawyer wrote to eNature asserting that eNature had improperly made use of Enertec’s work and contract specifications for submissions to the municipality. The statement of claim further referred to Enertec’s request that eNature sign an authorization so Enertec could obtain copies of the plans submitted to the municipality, to determine the extent of the alleged use of Enertec’s work. The conversion pleading crystallized in the allegation that by using Enertec’s work to apply for approval from municipal authorities, eNature converted Enertec’s work product to its own use and was thereby liable for the value of the work and specifications allegedly misappropriated. The municipality in question is the City of Hamilton, which held the approvals file for the Carlisle greenhouse project. After the action was commenced, eNature obtained from the City of Hamilton its complete file related to the project and produced that file in the litigation. This file captured all submissions made to the City for the project approvals, including materials prepared or submitted by Westbrook. Against this background, Enertec brought a motion for an order under Rule 30.10 of the Ontario Rules of Civil Procedure, seeking non-party production from Westbrook. Specifically, Enertec asked the court to order Westbrook to produce its complete file relating to services provided to eNature for the Carlisle greenhouse project, including documents concerning the design and construction of the greenhouses and the heating system. Enertec’s theory was that eNature had provided Westbrook with Enertec’s drawings and specifications, and that Westbrook had used Enertec’s work product in developing Westbrook’s own designs and work for eNature. Westbrook opposed the motion, arguing that its file was not relevant to the issues as framed by the pleadings and that, in any event, any relevant documents had already been produced from other sources, particularly the City of Hamilton file. Westbrook also raised concerns about confidentiality and competitive sensitivity, contending that its files contained proprietary information and trade secrets which should not be disclosed to a competitor. eNature appeared on the motion but did not take a position, leaving the dispute to be resolved between Enertec and Westbrook.

Procedural history and prior production order

This motion was not the first attempt by Enertec to obtain Westbrook’s documents. In 2022, Enertec successfully obtained a production order against Westbrook on a similar Rule 30.10 motion. On that earlier motion, Westbrook did not appear, and an order for production was granted by another judge. However, that order was later set aside by Latimer J. when it emerged that a mistake on Westbrook’s part had prevented it from presenting its position to the court. Because the order had been vacated on procedural grounds, Justice Henderson rejected Enertec’s suggestion that the court should be bound by, or deferential to, the reasoning of the prior order. The court held that once the earlier order was set aside due to procedural error, there was no basis to presume that the prior analysis had not been affected by the absence of full adversarial argument. As a result, the December 2025 motion was treated as a motion de novo, requiring a fresh examination of the Rule 30.10 criteria and the evidence before the court.

Legal framework for non-party production

Rule 30.10(1) of the Rules of Civil Procedure allows the court to order production from a non-party where two main conditions are met: first, the documents sought must be relevant to a material issue in the action; and second, it must be unfair to require the moving party to proceed to trial without discovery of those documents. This is a discretionary jurisdiction that must be exercised with caution, particularly because it imposes discovery obligations on persons who are not parties to the litigation. The court adopted the guidance from the Ontario Court of Appeal’s decision in Ontario (Attorney General) v. Stavro, which sets out key factors for non-party production. Those factors include the importance of the documents to the litigation, whether production is required at the discovery or trial stage, the adequacy of discovery from the parties themselves, whether the documents or their informational equivalent are available from another source, and the relationship of the non-party to the issues and parties in the case. The first and central step in the Rule 30.10 analysis is whether the requested documents are relevant to a material issue as defined by the pleadings. Relevance is not assessed in the abstract or by reference to broader theories not pleaded; rather, the pleadings set the parameters. A document is relevant only if it has a logical connection to, and tends to prove or disprove, an issue that has actually been raised on the face of the statement of claim and statement of defence.

Pleadings-based relevance analysis

Applying that framework, the court examined the three causes of action pleaded by Enertec: breach of contract, unjust enrichment, and conversion. In relation to breach of contract, the statement of claim did not allege that the contract was breached by improper use or dissemination of Enertec’s drawings and specifications. Instead, the breach of contract claim was couched in general terms, asserting non-compliance with the contractual terms and non-payment. Because misuse of the work product was not explicitly pleaded as the contractual breach, Westbrook’s file concerning its later work for eNature was not relevant to the breach of contract claim as articulated. On unjust enrichment, the court noted that Enertec had expressly indicated during discovery that it was no longer pursuing that cause of action. As Enertec’s counsel advised that the unjust enrichment claim was withdrawn and undertakings were refused on that basis, there was no remaining unjust enrichment issue to which Westbrook’s documentation could relate. That left conversion as the only potentially relevant cause of action for purposes of the Rule 30.10 motion. The court accepted that conversion concerns improper use of property, and thus could, in principle, extend to wrongful use of intellectual or technical work product such as engineering drawings and specifications. The court therefore scrutinized the statement of claim’s conversion allegations in detail. In the key paragraphs of the pleading, Enertec alleged that its lawyer wrote to eNature to state that eNature had improperly used Enertec’s work and contract specifications for submissions to the municipality. Enertec further pleaded that it sought authorization from eNature to obtain the plans submitted to the municipality, to determine the extent of that use. The central conversion allegation asserted that by using Enertec’s work to apply for municipal approval, eNature converted that work to its own use and thereby became liable to Enertec for the value of the work and specifications allegedly misused. The municipality identified by the evidence was the City of Hamilton. On a careful reading, the court held that the focus of the conversion pleading was the provision and use of Enertec’s work in submissions to the City of Hamilton for project approvals. The alleged wrongful act was eNature’s use of Enertec’s drawings and specifications in its municipal application process, not any sharing of Enertec’s work product with Westbrook or any use by Westbrook itself. There was no explicit allegation that eNature provided Enertec’s work product to Westbrook, nor that Westbrook wrongfully used Enertec’s work in its own designs. On a strict reading of the pleadings, therefore, the relevance of Westbrook’s internal files did not clearly arise.

Availability of the same information from other sources

Even considering a more generous reading of the pleadings, the court concluded that the Rule 30.10 test was not met. The court was prepared to accept, for the sake of argument, that the pleadings might be interpreted broadly to suggest that eNature provided Enertec’s work to Westbrook, and that Westbrook used that material in preparing its own project documents which then formed part of the submissions to the City of Hamilton. Yet, even on this broader interpretation, the non-party production order sought was still not justified. The decisive point was that eNature had already obtained, and produced in the litigation, the City of Hamilton’s complete file for the project. That file includes all submissions made to the City, whether by eNature directly or by Westbrook on eNature’s behalf. The court found that all documents submitted by Westbrook to the City would be contained within the municipal file already in the parties’ possession. Consequently, to the extent that Westbrook’s materials were relevant to the conversion claim—i.e., insofar as they were used in or formed part of submissions to the City for approval—the informational equivalent was already available through the City’s file. Because Rule 30.10 requires not only relevance to a material issue but also that it would be unfair to proceed to trial without the non-party documents, the existence of a complete alternative source of the same information defeated Enertec’s claim of necessity. There was no unfairness in requiring Enertec to proceed based on the existing productions, including the City’s records.

Confidentiality and competitive concerns

Westbrook also argued that, even if relevance and necessity were established, its project file should not be ordered produced wholesale because it contained confidential proprietary information and trade secrets, and because Westbrook and Enertec are direct competitors in the greenhouse and heating-system engineering market. Westbrook warned that compelled disclosure of its full project file would risk giving a competitor access to sensitive design methodologies, commercial information, and other competitively significant material beyond what was strictly necessary to resolve the dispute. While the court acknowledged that these confidentiality and competitive issues had been raised, it ultimately found it unnecessary to address or resolve them. Having determined that Enertec failed to meet the foundational requirements of Rule 30.10—relevance to a material issue, tied to the pleadings, combined with the absence of unfairness in proceeding without the non-party production—the court dismissed the motion on those primary grounds. As a result, the court did not reach the question of whether, and on what terms, protective measures or tailored production might be appropriate to safeguard Westbrook’s confidential information.

Outcome and treatment of costs

In the result, Justice Henderson dismissed Enertec’s Rule 30.10 motion for non-party production from Westbrook. The court held that the statement of claim did not allege a wrongful provision of Enertec’s work product to Westbrook, and that the conversion claim was anchored in the alleged misuse of Enertec’s work for submissions to the City of Hamilton. Because the City’s complete file had already been obtained and produced, any relevant material from Westbrook used in those municipal submissions was already available from that alternative source. The dual requirements of relevance and necessity under Rule 30.10 were therefore not satisfied. Westbrook, as the non-party respondent opposing the production order, emerged as the successful party on the motion. Enertec’s attempt to compel the wholesale production of Westbrook’s project file was rejected, and the case proceeds without that additional non-party discovery. As to costs, the court did not fix or award a specific monetary amount in this decision. Instead, Justice Henderson directed that any party seeking costs must serve and file brief written submissions by a prescribed date, with responding submissions to follow within a set period, failing which the parties would be deemed to have resolved costs between themselves. Because the decision leaves the quantum of costs to a later process, no total amount ordered in favour of Westbrook or any other party can be determined from this endorsement.