2018 ONSC 5233
Court File and Parties
Court File No.: CV-15-66839 Date: 2018/09/07 Ontario Superior Court of Justice
Between: Ottawa Convention Centre Corporation Plaintiff (Defendant by Counterclaim) – and – treefort Hip Productions Inc. Defendant (Plaintiff by Counterclaim)
Counsel: Andrew J.F. Lenz and Brett Hodgins, for the Plaintiff K. Scott McLean, James M. Wishart, and Fraser Mackinnon Blair, for the Defendant
Heard: November 14, 15, 16, 17, 20, 21, 22, 2017 and February 2, 2018
Reasons for Judgment
RYAN BELL j.
Overview
[1] In 2015, the Ottawa Wine and Food Festival was held at the Ottawa Convention Centre – by that time known as the Shaw Centre – in downtown Ottawa. This was not the first year the Ottawa Convention Centre hosted the Festival. It was, however, the last. The owner of the Festival, treefort Hip Productions Inc., did not pay Ottawa Convention Centre Corporation (“OCCC”), the manager and licensor of the Ottawa Convention Centre space, the full amount associated with hosting the 2015 Festival. OCCC refused to offer treefort dates for 2016. This litigation is the result.
[2] Joan Culliton, the principal of treefort, was a senior employee at OCCC until 2007, during which time OCCC was running the Ottawa Congress Centre, the predecessor to the Ottawa Convention Centre. She knew the mandate, policies, and procedures of OCCC. When she was an OCCC employee, Ms. Culliton worked directly with the Ottawa Wine and Food Show. The Show had been held annually at the Ottawa Congress Centre for many years.
[3] In 2008, as part of an asset purchase, treefort acquired the Show. In 2011, Ms. Culliton changed the Show’s name to the Ottawa Wine and Food Festival.
[4] OCCC maintains that its contractual relationship with treefort was defined by and limited to a series of annual license agreements for the provision of space and services for which OCCC would be paid. OCCC says that it was under no obligation to offer treefort dates for the hosting of the Festival in 2016 and thereafter.
[5] treefort asserts that OCCC’s “purposeful course of conduct” in relation to the Festival over the course of nearly three decades, together with commitments made in a memorandum of understanding (“MOU”) entered into by the parties in 2013, evidence an intention by OCCC to be bound by three key covenants: (i) to host the Festival each year; (ii) to protect the Festival’s preferred and established dates in the first two weeks of November on a three to five year rolling basis (the scheduling covenant); and (iii) to provide booking protection from competing food and drink events for 60 days before and after the Festival.
[6] treefort alleges that OCCC, intentionally and in bad faith, breached these obligations when: (i) OCCC “dealt away” the dates specified in the MOU for 2015 and 2016, and refused to hold future dates for 2017 and beyond; (ii) scheduled competing food and beverage events in close proximity to the Festival in 2013, 2014, and 2015; and (iii) “orchestrated the eviction” of the Festival in November 2015, without justification and without notice. treefort seeks a declaration that up to five years’ notice of termination ought to have been given by OCCC.
[7] Although treefort maintains its claim in contract, treefort also asks me to find that OCCC intentionally interfered with treefort’s business and commercial opportunities.
[8] OCCC seeks recovery of the outstanding balance in relation to hosting the 2015 Festival.
[9] Bifurcation of the trial as to liability and damages was ordered by Beaudoin J. The liability issues proceeded before me, with treefort assuming the role of plaintiff.
[10] The central issue I must determine is whether there was a course of dealings between the parties that gave rise to contractual rights and obligations beyond those set out in the annual license agreements.
[11] The relationship between treefort and OCCC spanned several years. The relationship between Ms. Culliton and OCCC was of even longer duration. However, for the following reasons, I am not persuaded that the parties’ course of dealings gave rise to contractual rights and obligations of the nature asserted by treefort. I find that the contractual rights and obligations between the parties were, at all times, defined by and limited to those set out in the annual license agreements. I therefore dismiss treefort’s counterclaim. OCCC is entitled to judgment in the amount of its claim.
Preliminary Issues
[12] Before considering the parties’ course of dealings, I address three preliminary issues: (i) the apparent lack of OCCC internal communications or memoranda; (ii) the potential witnesses not called at trial by OCCC; and (iii) treefort’s objections in relation to read-ins from the examination for discovery of Ms. Culliton.
(i) Lack of OCCC Internal Communications
[13] treefort asks me to draw an adverse inference from the fact that few internal communications from OCCC surrounding key events or decisions were produced by OCCC. Specifically, treefort asserts that I am entitled to conclude that the evidence from OCCC’s witnesses as to concerns and problems regarding treefort and the Festival lacks credibility in the absence of internal records documenting such concerns.
[14] I make no such finding for the following reasons. First, there is no evidence in the record to support treefort’s assertion that the absence of such documentation is “highly unusual for a bureaucratic organization in the age of email”. Second, Dan Young – the vice-president and chief operating officer of OCCC – testified that OCCC did its best to comply with its documentary discovery obligations. Mr. Young’s evidence on this point was unchallenged. Third, any concerns regarding the production of documents could and should have been dealt with prior to trial. I note that OCCC’s production of certain documents shortly before trial and in compliance with OCCC’s continuous disclosure obligation gave rise to motions at the outset of the trial.
(ii) Potential Witnesses Not Called By OCCC
[15] treefort also invites me to draw adverse inferences against OCCC from its failure to call various individuals as witnesses. In its submissions, treefort refers specifically to Jim Durrell (the former chair of the Ottawa Congress Centre), Andrew Beattie (OCCC’s vice-president, sales and marketing), Pat Kelly (OCCC’s former president), and Leigh Bush (OCCC’s chief of security), none of whom were called as witnesses at trial.
[16] I am not prepared to draw the adverse inferences requested by treefort. An adverse inference should not be drawn unless it is warranted in all the circumstances. The circumstances include: whether there was a legitimate explanation for the failure to call the witness, whether the witness was within the exclusive control of the party against whom the adverse inference is sought to be drawn or, conversely, was equally available to both parties, and whether the witness has key evidence or is the best person to provide the evidence in issue (Parris v. Laidley, 2012 ONCA 755, at para. 2; Robb Estate v. Canadian Red Cross Society (2001), 9 C.C.L.T. (3d) 131 (Ont. C.A.), at para. 161).
[17] The circumstances of this case do not warrant an adverse inference being drawn. Former representatives of OCCC were equally available to both parties. As for current representatives of OCCC, Rule 53.07 of the Rules of Civil Procedure sets out the rules associated with a party calling adverse party representatives as witnesses. treefort has not persuaded me that the issues to be canvassed in the evidence of these potential witnesses were not adequately addressed by other evidence.
(iii) Read-ins From Ms. Culliton’s Examination for Discovery
[18] As part of its case, OCCC relies on read-ins from the examination for discovery of Ms. Culliton. The read-ins were filed as an exhibit at trial, subject to submissions by treefort. In its submissions, treefort objects to certain read-ins being admitted into evidence. treefort’s objections fall into four categories: (i) the subject matter was investigated in cross-examination and therefore, the evidence cannot be read in if the intention is to contradict evidence given by Ms. Culliton at trial; (ii) the read-in is not clear; (iii) the question on discovery called for a legal conclusion; and (iv) notes referred to in the read-in were not made an exhibit at trial.
[19] I turn first to objections premised on the argument that the subject matter was investigated in cross-examination, and therefore cannot be read in at trial if the intention is to contradict evidence given by Ms. Culliton at trial. Rule 31.11(1) provides that a party may read into evidence, as part of that party’s own case, any evidence given on the examination for discovery of an adverse party, if the evidence is otherwise admissible, and “whether the party or person has already given evidence or not”. In Chandra v. Canadian Broadcasting Corporation, Mew J. permitted the defendant to read in excerpts from the plaintiff’s examination for discovery despite the read-ins not being put to the plaintiff during cross-examination (2015 ONSC 8140, at paras. 7-9). treefort has not provided me with any support for the proposition that once a party is asked about a topic in cross-examination the adverse party is not entitled to rely on read-ins from discovery. The proposition asserted by treefort is contrary to Rule 31.11(1) which expressly contemplates that the party may have given evidence at trial. These read-ins are admitted into evidence.
[20] With respect to the read-ins objected to by treefort on the basis that they are ambiguous or unclear, Rule 31.11(3) provides the procedure to be followed in this circumstance. OCCC has provided explanations in the case of those read-ins which treefort submits are ambiguous or unclear. I am satisfied with the explanations provided. Accordingly, these read-ins are admitted into evidence.
[21] treefort objects to a number of the read-ins on the basis that the question on discovery called for a legal conclusion. I note that counsel for treefort did not raise this objection to these questions at Ms. Culliton’s examination for discovery. In any event, the questions called for treefort’s position on certain questions of law, or Ms. Culliton’s understanding. They were proper questions (Ontario v. Rothmans Inc., 2011 ONSC 2504, 5 C.P.C. (7th) 112, at para. 129; Dumais v. Hobbs, 2015 ONSC 5643, at paras. 36-37). These read-ins are admitted into evidence.
[22] Finally, with respect to objections based on the fact that the read-ins refer to notes which were not made an exhibit at trial, I find that the evidence is clear. These read-ins are admitted into evidence.
Relationship Between the Parties
(i) OCCC’s Scheduling Policies
[23] OCCC’s historic and current scheduling policies divide OCCC’s clients into two categories: first priority events and second priority events. As described in the facility’s operational guide, first priority for scheduling and dates is available to regional, national and international conventions, tradeshows, corporate meetings, and similar activities which are not normally open to the general public and/or generate significant attendance from outside Ottawa and the province. Second priority events are consumer or public exhibitions, local corporate meetings, special events, banquets, entertainment events, business meetings, and other activities which draw from the general public and/or local attendees and participants.
[24] Reservations for first priority events may be made as far in advance as is necessary, and importantly, may supersede requests for other events and activities unless a license agreement for another event has been executed. Facility and date scheduling commitments for second priority events are generally made not more than one year in advance. They are subject to change to accommodate first priority events unless a license agreement has been previously executed. Within the second priority event category, preference may be given to longstanding annual public and commercial shows with a record of success and having a significant impact.
[25] Pursuant to OCCC’s scheduling policies, OCCC’s president (or in the president’s absence, certain senior staff members of OCCC) has the discretion to authorize a second priority event to be booked more than twelve months in advance. I find that this discretion to allow an early booking for a second priority event was exercised infrequently, sometimes to fill extra space when a convention was using most of the facility’s space, and sometimes for a large event seeking to book at a slow time in the scheduling year.
[26] Aramark is the operational service provider to OCCC. Aramark is involved only in booking second priority events. Jennifer McCrary, Aramark’s former director of strategic development, testified that while Aramark staff are authorized to vary the price on license agreements, they have no authority to offer early booking to second priority events.
[27] The Festival was a second priority event (although as I note below, Ms. Culliton later requested that it be treated as a first priority event), as was the Show before it. Ms. Culliton’s evidence is that OCCC followed a practice of placing future dates “on hold” three to five years in advance. Ms. Culliton admits that she was aware of OCCC’s scheduling policies. She testified that during her twelve-year tenure as an OCCC executive, OCCC proactively managed its client accounts to ensure that the Show (referred to in treefort’s submissions as the “Festival”) received its preferred dates. According to Ms. Culliton, the discretion afforded under the scheduling policies was used as a “workaround” to the preference afforded to first priority events.
[28] treefort’s assertion blurs two important distinctions: (i) between the Show and the Festival (Ms. Culliton having been employed by OCCC when the Show, under different owners, leased space at the Ottawa Congress Centre); and (ii) between treefort and the event itself. I therefore turn to the evidence regarding the Show, and treefort’s acquisition of the Show in 2008.
(ii) The Show, and treefort’s Acquisition of the Show in 2008
[29] The Show was originally owned and operated by Gourmex Expositions International Inc., followed by Players Exposition International Inc. Ms. Culliton testified that from 1994, she had a direct relationship with the Show and came to understand the important relationship between OCCC and the Show, what the Show required from OCCC, and how OCCC administered the account in relation to the Show. Ms. Culliton described the Show as “lucrative” for OCCC. She spoke of the Show’s previous owners requiring the same November scheduling window for their exhibitor base, and her understanding that the Ottawa Congress Centre, in downtown Ottawa, was the best venue for the Show.
[30] Robert Player, one of the principals of Players Exposition, also testified at trial. I found Mr. Player to be a credible witness who answered the questions asked of him in a direct and straightforward manner. His evidence was clear: although he wanted the Show to remain at the Ottawa Congress Centre, he did not believe that OCCC was obligated to host the Show every year and he did not believe that they were legally entitled to booking protection from other similar events. Each year, his company entered into a contract with the Ottawa Congress Centre for the rental of space, always within a year before the next event. He testified that the Show did not have any special contractual entitlement to specific dates. Had they not received their preferred dates, they would have accepted other dates or held the event at Lansdowne Park.
[31] Mr. Player’s testimony is consistent with that of Mr. Young. Mr. Young joined OCCC in 2002 as its assistant controller. He testified that Players Exposition, a second priority event, was required to sign a license agreement each year, within a year of the next event.
[32] Mr. Player also gave evidence that at one point, Players Exposition was required to engage in a form of competition for dates by submitting material in support of the Show’s value. I agree with OCCC that the necessity of having the competition militates against treefort’s position that Players Exposition accrued contractual rights in relation to the Show.
[33] I find that the totality of Mr. Player’s evidence refutes the existence of the contractual rights alleged by treefort in this litigation.
[34] I also find that Mr. Player’s testimony is consistent with various provisions in the asset purchase agreement entered into between treefort and Players Exposition in 2008. Article 4(1)(l) of the asset purchase agreement states in part: “[e]xcept for the [contracts and leases listed in the Schedules], the Vendor is not a party to or bound by any material contract or commitment relating to the Business whether oral or written”.
[35] Article 5(11) provides:
The Purchaser shall be responsible for obtaining any consent to assignment, which may be required for the assignment of any Contract or Lease, which is included in the Assets…If the Purchaser is unable to obtain such consent, such Contract or Lease shall not be assigned…
[36] Schedule B to the agreement, which lists the contracts, agreements, and entitlements of the vendor relating to the Show, specifies the dates being held by the Ottawa Congress Centre for the hosting of the Show in the years 2011 to 2015. The word “holding” is marked with an asterisk. The dates “contracted for” (2008), or “being held” (2009 to 2011) for the hosting of the Show at Lansdowne Park follow. The word “holding” is again marked with an asterisk. Then, the following is flagged:
Holding means dates are tentatively being held for the show and best efforts by both Lansdowne and the [Ottawa Congress Centre] will be made to actually provide these dates. Contracts by both Lansdowne Park and [Ottawa Congress Centre] can only be signed one year before the scheduled events as has been the case in the past. With both Lansdowne Park and the [Ottawa Congress Centre] we have been holding shows for 14 and 22 years respectively and we have always received our preferred dates.
[37] Schedule E to the asset purchase agreement lists the license agreement with Lansdowne Park signed on December 2, 2007, for the 2008 Show and specifically states: “there are no other leases”.
[38] In support of its position, treefort highlights certain correspondence exchanged by Mr. Player and OCCC in advance of the asset sale in 2008, and after Mr. Player had learned that the Ottawa Congress Centre was to be replaced by the Ottawa Convention Centre. treefort submits that these letters corroborate Ms. Culliton’s evidence as to the relationship between OCCC and the Show. It is not necessary for me to review this correspondence in detail. treefort was not a party to the correspondence, and therefore could not be entitled under it. Any rights acquired by treefort in relation to the Show could only be as a result of the contract between Players Exposition and treefort, that is, the asset purchase agreement.
[39] The wording of the asset purchase agreement is clear and unambiguous. It compels the following finding: in 2008, treefort acquired the contractual rights and obligations set out in the December 2, 2007 license agreement, and nothing more. I accept Mr. Player’s evidence that there were no other contractual entitlements to which Players Exposition was entitled in relation to the Show. No other contractual entitlements were listed in the agreement. Contrary to treefort’s position, the agreement expressly warned treefort that the dates listed were tentatively being held and that license agreements could only be signed one year in advance. Ms. Culliton may have hoped for something more, but she was aware of OCCC’s scheduling policies which the asset purchase agreement confirmed. treefort could not acquire what Players Exposition did not have.
[40] Even if I am incorrect in my finding and Players Exposition had contractual entitlements in relation to the Show beyond the December 2, 2007 license agreement, treefort cannot benefit from a contractual course of dealings between the prior owners of the Show and OCCC in the absence of an assignment or novation. The evidence is clear that Ms. Culliton did not ask Players Exposition to assign the hosting, scheduling, and booking protection covenants to treefort. The evidence is also clear that Ms. Culliton did not advise OCCC that she wished to have such rights assigned to treefort. I find that there was no assignment of rights as none was requested, and no notice was provided (McClain Industries of Canada Inc. v. R., 1978 FC 3948, [1978] C.T.C. 511 (F.C.T.D.), at para. 131).
[41] Novation does not assist treefort. A four-part test must be satisfied before a court will find novation has occurred: (i) the new debtor must assume the complete liability; (ii) the creditor must accept the new debtor as principal debtor and not merely as an agent or a guarantor; (iii) the creditor must accept the new contract in full satisfaction and substitution for the old contract; and (iv) the new contract must be made with the consent of the old debtor (National Trust Co. v. Mead, 1990 SCC 73, [1990] 2 S.C.R. 410, at para. 12). Novation is not to be inferred from the conduct of the parties unless there has been a distinct and unambiguous request (The Toronto Star Limited v. Aiken, [1955] O.W.N. 613 (C.A.), at para. 5). In this case, there was no request whatsoever by treefort and certainly, there was no express agreement by OCCC.
[42] In summary, I find that pursuant to the asset purchase agreement, treefort acquired the December 2, 2007 license agreement. treefort did not acquire any other contractual entitlements in relation to the Show because, quite simply, none existed. Therefore, if there was a course of dealings between treefort and OCCC that gave rise to contractual rights and obligations beyond those set out in the annual license agreements, the starting point for that analysis must be 2008, when treefort acquired the Show from Players Exposition.
(iii) The Events of 2011 and 2012
[43] The Ottawa Congress Centre was closed for renovations from 2008 to 2010. During these years, the Show, under treefort’s ownership, was held at Lansdowne Park.
[44] Ms. Culliton testified that in anticipation of returning to the new Ottawa Convention Centre, she had discussions with Andrew Beattie, OCCC’s vice-president, sales and marketing, concerning dates for the Show in the first and second weeks of November. In his July 27, 2009 letter, Mr. Beattie provided Ms. Culliton with an update of the redevelopment process for the new facility. Mr. Beattie cautioned that OCCC’s booking policies had not changed, and that dates for consumer and tradeshows (including the Show) could not be confirmed for more than one year out. He provided Ms. Culliton with dates for 2011 to 2014 that “we are currently holding in the new facility on your behalf”. As set out in Mr. Beattie’s letter, the dates being held were in October and November of each year (two sets of dates for each year). Mr. Beattie provided Ms. Culliton with “our assurance that we will do everything we can to work with conventions that may be interested in Ottawa to work around the dates you have on hold”.
[45] treefort relies on this letter in support of its position that there was a scheduling covenant to protect the Festival’s preferred and established dates in the first two weeks of November on a three to five year rolling basis. treefort asserts that Mr. Beattie’s promise to “do everything we can” to deliver treefort’s preferred dates meant, in practice, that “you will get your dates”, not “you will get your dates if nothing better comes along”. I do not agree with treefort’s assertion in two respects. First, I note that in no year were the dates being held over both the first and second weekends of November. The dates provided by Mr. Beattie align closely with those set out in Schedule B to the asset purchase agreement.
[46] Second, I find that Mr. Beattie was doing his best to accommodate a client; however, he continued to make it clear that he could not guarantee dates. This is entirely consistent with OCCC’s scheduling policies. It is also consistent with the “tentatively being held” and “best efforts” language in Schedule B of the asset purchase agreement.
[47] Mr. Beattie followed up with Ms. Culliton regarding the 2011 dates in his letter of October 14, 2010. Mr. Beattie advised Ms. Culliton that the dates of November 2 to 6, 2011 were no longer available for the Show due to a medical convention being hosted at the Ottawa Convention Centre. However, Mr. Beattie – on behalf of OCCC – was able to offer, with concessions, the dates of November 8 to 13, 2011, including a “one time rate reduction” of 50 per cent. Mr. Beattie concluded his letter by inviting Ms. Culliton to contact him should she wish to confirm the space, at which point a license agreement could be signed “on November 8th, 2010, in accordance with our policy”. Ms. Culliton testified that these concessions were intended to compensate treefort for the trouble and expense of having to change dates only a year in advance of the event. treefort points to this letter from Mr. Beattie as further evidence of the “accommodation” and “work around” practised by OCCC in favour of treefort. I find that in his letter, Mr. Beattie and OCCC were doing their best to provide treefort with acceptable dates. The fact that they were able to secure November dates for treefort in 2011 does not, however, mean that there was a contractual obligation that they do so. Mr. Beattie, consistently and repeatedly, made it clear to treefort that OCCC could not guarantee dates to the Show, as a second priority event, more than one year out.
[48] In 2011, treefort rebranded the Show as the Ottawa Wine and Food Festival. Beginning in 2011, treefort licensed space and amenities from OCCC at the Ottawa Convention Centre for the Festival.
[49] The 2011 license agreement contains two entire agreement clauses. Section 1(d) states: “[t]his license and all schedules thereto form the only agreement between the parties and supercede [sic] all prior correspondence and/or agreements”. Schedule B – terms and conditions – provides at section 15: “[n]o waiver of any provision of this License Agreement shall be effective unless in writing signed by the Licensor. This License Agreement contains the entire agreement between the parties unless modified by an agreement in writing executed by the Licensor and Licensee”.
[50] Ms. Culliton described the 2011 Festival as a success. OCCC’s evidence is that there were a number of problems associated with the 2011 event. The issue went to the Board of Directors of OCCC. OCCC determined that it did not want to deal further with the Festival and treefort “due to the nature of the W&F show itself and the associated high level of risks to the OCCC”.
[51] At a meeting on December 15, 2011, Ms. Culliton was advised that the Festival and treefort would not be welcomed back after November 2012, and OCCC imposed a number of conditions on treefort in relation to the 2012 event. OCCC confirmed its position in writing in its letter of December 21, 2011. In his testimony, Mr. Young confirmed that the new space rental rates for 2012 were at least double what treefort had been charged up to that point in time.
[52] Ms. Culliton testified as to her shock and distress at the turn of events. She considered the actions taken by OCCC to be a violation of her right to hold the Festival at OCCC.
[53] treefort submits that at the December 2011 meeting, and in the December 21, 2011 letter, OCCC recognized an obligation to provide notice to treefort. I do not agree. The fact that OCCC elected to give notice so that treefort could find another venue to host the Festival, and at the same time imposed conditions in relation to the 2012 event, does not mean that OCCC had an obligation to provide notice.
[54] In February 2012, Ms. Culliton signed the 2012 license agreement on behalf of treefort. As was the case with the 2011 license agreement, the 2012 license agreement includes two entire agreement clauses. The entire agreement clause in section 1(d) of the 2012 license agreement expands on the wording of the 2011 license agreement and provides:
This license and all schedules thereto form the only agreement between the parties and supercede [sic] all prior correspondence and/or agreements. Any additions or changes to your function space and/or event timing and dates are subject to the Terms and Conditions set forth in this signed License Agreement and all terms, conditions, and obligations of the Event Order subsequently signed, including any additions and/or changes, are deemed to be part of this License Agreement.
[55] The entire agreement clause in Schedule B, section 15 is the same as that in the 2011 license agreement.
[56] Ms. Culliton testified that she signed the license agreement because it preserved treefort’s preferred dates in November and because she thought she had no other option – “consumers knew the venue, and it was the home of the Festival”. In her evidence, Ms. Culliton asserted that she had a “right to be there”, that is, at the Ottawa Convention Centre. I find that treefort’s “right” to be at the Ottawa Convention Centre in 2012, on the November dates specified, was pursuant to the 2012 license agreement.
[57] In the end, OCCC decided to work with treefort. Mr. Keogh (at the time, OCCC’s senior vice-president, redevelopment and client services) provided treefort with dates for 2013 to 2017. In doing so, however, OCCC continued to remind Ms. Culliton that the dates placed “on hold” did not constitute a guarantee of availability. For example, in his email to Ms. Culliton of April 18, 2012, Mr. Keogh wrote:
…A reminder, that although we have placed space on hold temporarily, this is not a promise of availability and does not form a promise or a contract. There are no binding obligations on the Ottawa Convention Centre Corporation arising from this “hold” until a final contract has been provided, signed and deposits delivered.
Additionally, it is understood the [Ottawa Convention Centre] will only contemplate providing confirmed dates for the 2013 Wine and Food Festival after a proper risk and liability assessment of the 2012 Wine and Food Festival has been completed by [Ottawa Convention Centre] management, which in turn has provided the [Ottawa Convention Centre] with the assurance that you have successfully implemented operating guidelines resulting in, amongst other things, satisfactory occupancy security measures, responsible beverage service and attendee behaviour & conduct.
[58] The latter point foreshadowed the “success indicators” which were introduced in October 2012. Ms. Culliton understood that the success indicators would determine whether the Festival would be welcomed back at the Ottawa Convention Centre after 2012; at the same time, as Ms. McCrary stated in her email transmitting the success indicators to Ms. Culliton, “[y]ou don’t need perfection in order for the success indicators to be met”. The OCCC did not document its evaluation of the success indicators in 2013 or 2014. It did do so in relation to the 2015 Festival.
(iv) The MOU
[59] In March 2013, treefort and OCCC entered into a MOU for the years 2014 and beyond. The MOU states that it “is intended to establish guidelines around the negotiation of rental rates for future [Festival] events, in recognition of the longstanding tradition of holding the [Festival] at the Ottawa Convention Centre during the first two weeks of November”.
[60] Ms. McCrary was involved in the preparation and negotiation of the MOU. I accept her evidence that the MOU came about because Ms. Culliton wanted to be in the best position possible for dates as far out as possible and wanted price stability. For its part, OCCC did not want to be renegotiating rates with Ms. Culliton and treefort every year.
[61] Ms. McCrary’s understanding of the MOU – that if the success indicators were met, then a license agreement would be provided to Ms. Culliton for the following year if the dates were available – accords with the express wording of the MOU:
It is understood that while fixed dates cannot be guaranteed under this MOU, the dates will be contracted in accordance with the Ottawa Convention Centre’s published booking policy and based upon the continued success and safety of the OWFF and respecting the longstanding tenancy held by the OWFF.
…The OWFF will be contacted should any future dates on hold no longer be available. [Emphasis in original]
[62] This language in the MOU is consistent with OCCC’s scheduling policies. As an Aramark employee, Ms. McCrary did not have the authority to go beyond or deviate from the scheduling policies.
[63] Mr. Young described the MOU as an “exceptional document”; Ms. McCrary referred to it as a “win-win” for both parties. I find that both parties benefitted from the MOU in the manner described by Ms. McCrary. However, while the MOU with treefort may have been unique within OCCC, I do not find that the MOU transformed the parties’ contractual relationship, as set out in the annual license agreements, into something more.
[64] treefort submits that the MOU “sits above” the annual license agreements and asserts that the evidence supports a finding that OCCC breached its obligations in the MOU. treefort relies, in particular, on the following clause in the MOU:
The OCC has provided dates for the Festival for the next 3 years [2014, 2015 and 2016] and will hold space in accordance with the booking policy for subsequent years. Each year, provided the OWFF meets or exceeds the success indicators established from the 2012 Festival for a successful Festival – [t]he OCC will provide a license agreement for the following year – within 2 weeks of the conclusion of the show and will continue to hold dates for subsequent years. The OWFF will be contacted should any future dates on hold no longer be available. [Emphasis added]
[65] treefort submits that this wording confirmed the parties’ intention that the dates provided for 2014, 2015, and 2016 would not be dealt away to other events. I do not agree. While the MOU “respects” the “longstanding tenancy” of the Festival, read as a whole, the MOU makes plain that the dates provided for future years – including for 2014, 2015, and 2015 – are on hold only, and cannot be guaranteed. The MOU refers to OCCC’s scheduling policies. The “provided” language used in the MOU is consistent with the January 2013 email from Elizabeth McMenemy (at the time, an event services manager at the Ottawa Convention Centre) to Ms. Culliton listing future dates for 2014 to 2017 which “we are currently holding for your show”. In summary, I find that the MOU did not give treefort a contractual entitlement to dates in 2014, 2015, and 2016.
(v) The 2013 and 2014 Festivals
[66] The MOU and the license agreement for 2013 were signed at the same time in March 2013. The 2013 license agreement contains the same entire agreement clauses as the 2011 and 2012 license agreements. In 2013, treefort was required to lease the entire floor space at the Ottawa Convention Centre. According to Mr. Young, this was because no other clients wished to be disturbed by the activities of the Festival. Ms. Culliton testified that this requirement was unanticipated, and added considerable expense.
[67] In communicating the requirement to lease the entire floor space, Ms. McCrary wrote: “[w]e want to be partners and host your event here and see much upside as you continue to develop your show”. treefort asserts that OCCC’s use of the word “partners” in this and in other communications is not the language of a “one-off” contract. According to treefort, no OCCC representative ever suggested that the relationship between the parties was limited to the annual license agreements. I find to the contrary. As stated by Mr. Keogh to Ms. Culliton in April 2012: “[t]here are no binding obligations on the Ottawa Convention Centre Corporation arising from this “hold” until a final contract has been provided, signed and deposits delivered”. This language is clear and unambiguous.
[68] There is no suggestion that the success indicators were not met by treefort in relation to the 2013 Festival. The parties signed the 2014 license agreement in December 2013. The dates for the 2014 Festival were from November 6 to November 10, 2014. The 2014 license agreement refers to and incorporates the MOU: “[a] memo of understanding regarding pricing and future dates has been entered into for future years should dates be available”. The 2014 license agreement contains the same two entire agreement clauses as the license agreements for the previous years.
[69] While the 2014 Festival was not perfect, there is no suggestion that the success indicators were not met by treefort in 2014.
[70] treefort complains that in November 2013, OCCC hosted a food and wine showcase event in competition with the Festival, and that in 2014, OCCC hosted several competing events in close proximity to the Festival. treefort also points to a food and drink event booked at the Ottawa Convention Centre on the first Saturday of November 2015. Ms. Culliton protested at least one event to OCCC on the basis that it directly competed with the Festival:
Our Festival has established an established contractual and course of dealing with the OCCC which has entitled it to priority of event timing and place with the objective that we are not subjected to competition and confusion.
[71] Ms. Culliton testified as to the understanding in the industry that when a consumer event comes to a facility, the event often seeks some sort of protection to ensure that another entity does not hold a similar event in the days before or after the event. Ms. Culliton testified that 60 days was an industry standard. The scheduling policies for the Ottawa Congress Centre describe the president’s discretion to maintain a “clearance period” of 60 days prior to and following an existing event and any similar event, but at the same time, expressly state that “no agreement with any user will be executed requiring such clearance period”. By 2015, the protection discretion policy wording was no longer included in OCCC’s scheduling policies.
[72] Delia Lapensee (at the time, OCCC’s new event services manager associated with the Festival), testified that during her tenure as an event services manager between 2011 and 2015, it was common for OCCC to grant protection from competition to events such as the Festival and that she did this “as much as [she] could”. OCCC’s efforts at customer service are not to be confused with contractual entitlements. Ms. Culliton’s assertions as to an “understanding in the industry” do not give rise to a contractual right. I find that treefort had no contractual entitlement to booking protection in relation to similar events.
[73] Given my finding that there was no booking protection covenant, I need not address OCCC’s arguments that treefort’s cause of action in relation to events in 2013 and earlier, is statute-barred.
(vi) The 2015 Festival and Subsequent Events
[74] The license agreement for 2015 was signed in February 2015. The dates were problematic for treefort as they were over the Hallowe’en weekend. The Festival’s “big night” – Saturday – was October 31.
[75] The 2015 dates were not treefort’s preferred dates, and they were not the 2015 dates referred to in the MOU. Ms. Lapensee was tasked with advising Ms. Culliton that her preferred dates were unavailable. I find that at the time Ms. Lapensee first wrote to Ms. Culliton, November 5 to 8, 2015 (the only dates that had been available) were no longer available due to a convention. In accordance with OCCC’s scheduling policies, the convention, which was a first priority event, “bumped” the Festival, a second priority event. After learning that November 12 to 14, 2015 were not available dates – and I find that to have been true at the time – Ms. Culliton agreed to the Hallowe’en weekend dates.
[76] It is not accurate to suggest, as treefort does, that OCCC “unilaterally substituted” the Hallowe’en dates for the dates that “had been provided” under the MOU for the 2015 Festival. treefort did not have a contractual entitlement to the dates set out in the MOU for 2015, or for any other year. The dates set out in the MOU were being held, but were not guaranteed. The dates were at all times subject to OCCC’s scheduling policies in relation to first and second priority events.
[77] While unhappy with the dates, Ms. Culliton, on behalf of treefort, signed the 2015 license agreement. As in previous years, the 2015 license agreement contains two entire agreement clauses. Schedule A to the license agreement refers to the MOU: “[a] memo of understanding regarding pricing and future dates has been entered up until 2016 provided dates be available”. I agree with OCCC that this language is inconsistent with treefort’s assertions regarding the existence of the scheduling covenant.
[78] In the lead-up to the 2015 Festival, Ms. Culliton advised OCCC that ticket sales were significantly behind their typical pace. In email correspondence to OCCC, Ms. Culliton described the strain that the Hallowe’en dates imposed on exhibitors, and how the decline in ticket sales was negatively impacting the Festival’s reputation. She requested that the Festival be treated as a first priority event.
[79] There was a patronage problem at the 2015 Festival. Loretta Briard (the Ottawa Convention Centre’s general manager), and Nina Kressler (who replaced Mr. Kelly as OCCC’s president in June 2015), testified as to other problems they observed at the 2015 event including: over-pouring of alcohol by exhibitors, intoxication, an attendee urinating on the show floor, and an attendee vomiting. OCCC received a note from the Ottawa Police Service detailing concerns about egress issues at the end of the evening. The note was not shared with Ms. Culliton.
[80] After the 2015 Festival, Ms. Kressler and Ms. Briard prepared a document that purported to evaluate the 2015 Festival as against the success indicators. A copy of the evaluation was never provided to Ms. Culliton, and the document itself does not state that the success indicators were not met. treefort asks me to infer that the report was prepared to fabricate a justification for OCCC’s “termination” of the Festival without notice. treefort points to the fact that even before the 2015 Festival was held, Ms. Kressler wanted the Festival out of the Ottawa Convention Centre.
[81] I am not prepared to make this inference. OCCC’s representatives testified that they did not consider the success indicators to have been met in 2015. I find that they were entitled to come to that conclusion given the problems they observed and the incident reports prepared in connection with the 2015 event. In addition, treefort’s position is predicated upon there being a long-term contractual relationship between the parties – beyond that set out in the annual license agreements – to be terminated. I do not find that any such contractual relationship between the parties existed. It follows that there was no “justification” required.
[82] On November 6, 2015, Ms. Briard emailed Ms. Culliton to warn her about certain of her preferred dates being unavailable in 2016. Ms. Briard’s evidence was that at the time she did so, she was unaware of whether OCCC was willing to have the Festival return in 2016. treefort characterizes Ms. Briard’s email as OCCC “upping the ante”. I do not agree. I accept Ms. Briard’s evidence that she sent her email out of a sincere concern for Ms. Culliton and the Festival. In response, Ms. Culliton stated, “I reiterate that the first two weekends in November are the dates that historically have been assigned for the Ottawa Wine and Food Festival”.
[83] On November 10, 2015, a final invoice was issued to treefort in the amount of $156,476.25 for the 2015 Festival. That invoice remains unpaid.
[84] On November 12, 2015, Ms. Culliton and her accountant were invited to a meeting on November 24 with OCCC. Ms. Culliton advised that she was prepared to meet with OCCC “with figures” so that she could be satisfied that OCCC was aware of the damages to her business and to her brand and to find a “good faith resolution”.
[85] OCCC met with Ms. Culliton on November 24, 2015. Mr. Young and Ms. Kressler both testified that they attended the meeting, prepared to listen to Ms. Culliton’s explanation of her losses, however, no actual numbers or evidence of loss were provided to OCCC. They did not ask Ms. Culliton’s accountant any questions. Ms. Culliton was provided with a letter at the meeting which contained an offer from OCCC in an attempt to resolve the account receivable in relation to the 2015 Festival; the offer included a reduction of the amount outstanding and holding dates in November 2016 until November 30, 2015.
[86] Ms. Culliton became distraught when she was given the letter. The meeting ended with no resolution. treefort did not pay the account receivable. OCCC did not offer dates for the 2016 Festival. Ms. Culliton acknowledged on cross-examination that when she was employed by OCCC, having the Show return only made sense for OCCC if the Show’s owners paid their bill.
Course of Dealings Did Not Give Rise to a Contractual Relationship
[87] I have already determined that in examining whether the course of dealings between treefort and OCCC gave rise to a contractual relationship, the relevant time period begins in 2008, when treefort acquired the Show from Players Exposition.
[88] A party’s course of conduct may constitute acceptance of certain terms of business and give rise to binding obligations. The answer to the question of whether a binding course of dealings arises depends upon a reasonable and objective construction of the conduct of the parties (Saint John Tug Boat Co. v. Irving Refinery Ltd., 1964 SCC 88, [1964] S.C.R. 614, at paras. 18-19). Put another way, the test is whether the evidence of the relationship between the parties and all that passed between them, viewed objectively in the relevant commercial context, indicates an intention to be bound by particular terms (Benny Haulage Ltd. v. Carosi Construction Ltd. (1996), 33 C.L.R. (2d) 47 (Ont. Ct. J. (Gen. Div.)), appeal heard and quantum of award varied, 39 C.L.R. (2d) 175 (Ont. Div. Ct.), leave to appeal to ONCA refused, July 21, 1998, 40 C.L.R. (2d) 247 (C.A.), at para. 17).
[89] In Baird Textile Holdings Ltd. v. Marks & Spencer Plc, [2001] EWCA Civ. 274, the plaintiff supplied garments to, and worked closely with, the defendant for over 30 years pursuant to a series of seasonal contracts. When the defendant decided not to continue this arrangement, the plaintiff claimed that an implied contract had arisen between the parties due to the symbiotic relationship between them and the plaintiff’s reliance on the lengthy relationship as a promise of future dealings. As does treefort, the plaintiff in Baird Textile claimed damages based on the concept of reasonable notice of termination. In his decision, the Vice-Chancellor stated, at para. 30, that the lack of certainty served to confirm the absence of an intention to create legal relations:
...the alleged obligation on M&S to acquire garments from Baird is insufficiently certain to found any contractual obligation because there are no objective criteria by which the court could assess what could be reasonable either as to quantity or price.
[90] In my view, the following words from the concurring opinion of Lord Justice Judge, at para. 69, are apposite to the case before me:
Objectively, the only sensible analysis of the present situation is in my judgment that the parties had an extremely good long-term relationship, but not one which they ever sought to express, or which the court would ever seek to express, in terms of long-term contractual obligations.
[91] As in Baird Textile, at no time did treefort and OCCC agree to set out the essential principles which might govern any legally binding long-term relationship. Objectively, neither party can be taken to have intended to make any legally binding commitment of a long-term nature. OCCC repeatedly warned treefort that dates being held remained subject to OCCC’s scheduling policies. Each year, including in 2015, the parties entered into a license agreement for the hosting of the Festival at the Ottawa Convention Centre, on specified terms and conditions.
[92] OCCC’s promises to “do everything we can” and to do “as much as I could” reflect the parties’ good relationship – but not a contractual relationship – over a number of years.
[93] The MOU provided treefort with price stability, but it did not guarantee dates. It too refers to the scheduling policies.
[94] The entire agreement clauses in the annual license agreements are also inconsistent with a purported long-term collateral contract between the parties. I do not agree with treefort’s submission that given the limited scope and purpose of the license agreements, the entire agreement clauses should be construed as applying only to the matters dealt with in the license agreements. The annual license agreements address the provision of space and services at the Ottawa Convention Centre for which OCCC would be paid by treefort. To give effect to treefort’s submission would defeat the purpose and express wording of the entire agreement clauses: “[t]his License Agreement contains the entire agreement between the parties unless modified by an agreement in writing executed by the Licensor and Licensee”.
[95] In Gutierrez v. Tropic International Ltd. (2002), 2002 ONCA 45017, 63 O.R. (3d) 63 (C.A.), at para. 5, the Court of Appeal considered an entire agreement clause which read: “[t]his Agreement, the Note, the Guarantee…and the share pledge agreement of even date herewith made by Tropic in favour of Luis constitutes the entire and only agreement between the parties hereto with respect to the subject matter hereof, superseding any and all prior negotiations, understandings and agreements, written or oral”. The Court of Appeal, at para. 24, cited the decision of McLachlin C.J.S.C., as she then was, in Power Consolidated (China) Pulp Inc. v. British Columbia Resources Investment Corp., [1989] B.C.J. No. 114 (S.C.), as to when a collateral contract is excluded by the words of the main contract:
[T]he question is whether the intention of the parties in the case at bar was that the written contract…would constitute the whole of the contract. That intention, as in all matters relating to contractual construction, must be determined objectively. Here the parties expressly agreed that the contract documents constituted the whole of their agreement. While in most cases such an agreement is only a presumption based on the parol evidence rule, in this case it has been made an express term of the contract. A presumption can be rebutted; an express term of the contract, barring mistake or fraud, cannot.
[96] As in Gutierrez, I find that the language of the entire agreement clauses in the license agreements is clear and unambiguous. treefort does not argue mistake or fraud. The clauses preclude the existence of any collateral contract of the nature described by treefort.
[97] In Tercon Contractors Ltd. v. British Columbia (Transportation and Highways), 2010 SCC 4, [2010] S.C.R. 69, at paras. 121-123, the Supreme Court of Canada set out the following analysis to be applied when a plaintiff seeks to escape the effect of an exclusion clause:
(i) Does the exclusion clause apply to the circumstances established? (ii) If so, is the exclusion clause unconscionable and therefore, invalid at the time the contract was made? (iii) If the exclusion clause is valid, should the court refuse to enforce the clause because of an overriding public policy?
[98] An entire agreement clause is somewhat analogous to an exclusion clause. It is therefore appropriate to apply the Tercon analysis to the entire agreement clauses in this case.
[99] Turning to the first part of the Tercon test, a plain reading of the entire agreement clauses makes it obvious that the contractual entitlements claimed by treefort are excluded by operation of the clauses.
[100] Second, I find the clauses were not unconscionable at the time the license agreements were signed. Indeed, treefort does not argue duress. treefort and OCCC are sophisticated parties. Ms. Culliton was familiar with event management from her tenure at OCCC.
[101] Third, there is no public policy reason to refuse enforcement of the entire agreement clauses. To the contrary, the principle of certainty in contract law militates against refusing to enforce clear and unambiguous entire agreement clauses.
[102] In relation to entire agreement clauses, treefort has referred me to the Court of Appeal’s decision in CivicLife.com Inc. v. Canada (Attorney General) (2006), 2006 ONCA 20837, 215 O.A.C. 43 (C.A.). On appeal, the Crown submitted that the entire agreement clauses precluded the trial judge from holding that Industry Canada breached its contract with CivicLife.com because nowhere did the agreements say that there was a duty of good faith or a duty to exercise a discretion reasonably and fairly. I would distinguish CivicLife.com on a number of grounds. First, the Court of Appeal observed that an entire agreement clause will not preclude the implication of a term such as a duty of good faith performance or the duty not to abuse a discretion, because such a term is already part of the existing agreement (CivicLife.com, at para. 52). The terms of the collateral contract which treefort advances in this case are not akin to the duty of good faith performance and the duty not to abuse a discretion. They are not already part of the existing contract.
[103] Second, as the Court of Appeal observed, at para. 52, the parties in CivicLife.com had orally agreed to vary their written arrangement. There was nothing in the entire agreement clauses that precluded variation by a subsequent oral agreement. In the case before me, the entire agreement clauses expressly require that a modification be in writing. In addition, there was no agreement between the parties to vary their written agreement in the manner suggested by treefort.
[104] Finally, in CivicLife.com, the Court of Appeal referred to the court’s discretion to refuse to enforce the entire agreement clause where to do so would be unconscionable, unfair, unreasonable or contrary to public policy, even if the entire agreement clause did cover the conduct at issue (CivicLife.com, at para. 52). I have already determined that the clauses were not unconscionable at the time the license agreements were signed and there is no public policy reason to refuse enforcement.
[105] In summary, viewed objectively, the totality of the evidence compels me to conclude that the course of dealings between treefort and OCCC from 2008 to 2015 did not give rise to a contractual relationship between the parties of the nature asserted by treefort. Specifically, I find that there was no hosting covenant, no scheduling covenant, and no booking protection covenant. The extent of the parties’ contractual relationship was set out in and defined by the annual license agreements.
[106] As there was no contract, there was no breach of contract when OCCC refused to offer dates to the Festival for 2016 and for subsequent years.
[107] treefort relies on Thermo King Corp. v. Provincial Bank of Canada (1981), 1981 ONCA 1731, 34 O.R. (2d) 369 (C.A.), and Barrington Plastics Ltd. v. Toronto Dominion Bank (1998), 72 O.T.C. 241 (Ont. Ct. J. (Gen. Div.)) in support of its position that even absent a long-term contract, reasonable notice was required in this case based on the parties’ course of dealings. In Barrington Plastics Ltd., Heeney J. observed, at para. 76, that the Court of Appeal’s decision in Thermo King is really a restatement of the principle that where demand is required on the primary debt, a reasonable period must be given before enforcement. Heeney J. concluded that the outstanding indebtedness in Barrington Plastics were debts with respect to which notice or demand was required to be given to the customer. In my view, these cases do not assist treefort.
No Bad Faith
[108] In Bhasin v. Hrynew, 2014 SCC 71, [2014] 3 S.C.R. 494, at para. 63, the Supreme Court of Canada recognized an “organizing principle” of good faith in contractual performance: “parties generally must perform their contractual duties honestly and reasonably and not capriciously or arbitrarily”. In carrying out her or his own performance of the contract, a contracting party should have appropriate regard to the legitimate contractual interests of the other contracting party. “Appropriate regard” will vary depending on the context of the contractual relationship; however, it does not require acting to serve those interests in all cases (Bhasin, at para. 65). The general duty of honesty in contractual performance means simply that parties must not lie or knowingly mislead each other about matters directly linked to the performance of the contract (Bhasin, at para. 73).
[109] treefort submits that OCCC breached its good faith obligations to treefort beginning as early as December 2011. The flaw in treefort’s argument is twofold: (i) the good faith obligations recognized by the Supreme Court in Bhasin arise in the performance of a contract; and (ii) the duty is a requirement not to lie or mislead the other party about one’s contractual performance. I have found that there was no contract between the parties beyond the annual license agreements. The only breach of the annual license agreements is treefort’s failure to pay the account receivable for 2015.
[110] The parties’ course of dealings did not give rise to contractual rights and obligations. That said, I also find that OCCC acted in good faith throughout its dealings with treefort. The 2011 Festival was very problematic. OCCC gave notice to treefort that 2012 would be the Festival’s last year. Nevertheless, OCCC eventually determined that treefort and the Festival could return. In 2012 and 2013, OCCC had discussions with treefort about the possibility of other events at the Ottawa Convention Centre. The MOU signed in 2013 was perceived as a “win-win”, providing treefort with price stability and holding dates as far out as possible. Throughout their dealings, OCCC always cautioned Ms. Culliton that the dates being held could not be guaranteed until the annual license agreement was signed.
[111] I find that at no point did OCCC mislead treefort. Ms. Kressler’s evidence that she wanted treefort “out”, Mr. Young’s evidence that the offer letter was to be presented to Ms. Culliton at the December 2015 meeting regardless of what transpired, and the fact that the 2015 decision – unlike the 2011 decision – did not go to the Board, do not support a finding that OCCC was engaged in an “end game” to “evict” treefort. I specifically find that there was no such “end game” afoot.
Conclusion
[112] In 2015, OCCC had had enough of dealing with treefort. OCCC was entitled to be paid, in full, for the 2015 Festival; equally, OCCC was entitled to say “no, not again” to treefort for 2016 and beyond.
[113] treefort’s position is belied by the documentary record: the asset purchase agreement, the entire agreement clauses in the annual license agreements, the language of the MOU, and the correspondence between the parties. Repeatedly, OCCC highlighted to treefort that it could not guarantee dates. Repeatedly, treefort was referred back to the scheduling policies.
[114] Ms. Culliton hoped for something more. She wanted the Festival to be treated as a first priority event. Until 2015, OCCC did what it could to satisfy a repeat and valued client. But treefort was not contractually entitled to have the Festival hosted at the Ottawa Convention Centre year after year, during one of the first two weekends of November, and it was not contractually entitled to be “protected” from similar events.
[115] For these reasons, I dismiss treefort’s counterclaim. OCCC is entitled to judgment on its claim in the amount of $156,476.25. The 2015 license agreement provides that interest accrues on all amounts due and owing 30 days from the delivery of the invoice at the rate of 1.5 per cent per month. I find that the invoice was delivered on November 10, 2015. In accordance with the terms of the license agreement, OCCC is entitled to interest on the amount of $156,476.25 at the rate of 18 per cent per annum from December 10, 2015 to the date of judgment, and postjudgment interest also at the rate of 18 per cent per annum.
[116] If the parties are unable to agree on costs, OCCC shall serve and file written submissions by September 28, 2018. treefort will then have until October 19, 2018 to serve and file a written response. The written submissions are not to exceed three pages, not including any offer to settle or bill of costs.
[117] I wish to thank counsel for their thorough submissions which were of great assistance to the court.
Madam Justice Robyn M. Ryan Bell