COURT FILE NO.: CV-17-0393 DATE: 2019 07 15

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

FFO FIBERGLASS INC., carrying on business as COMPOSITES CANADA Plaintiff

Bernie Romano, for the Plaintiff

• and -

DISTRIBUTION COMPOSITES INC. Defendant

James A. Manson, for the Defendant

HEARD: May 1, 2019

REASONS FOR DECISION

DOI J.

OVERVIEW

[1] The Plaintiff seeks summary judgment for $322,343.30 representing its claim against the Defendant for unpaid invoices. According to the Plaintiff, its action involves a simple collections dispute. It argues that its claim is ready for summary judgment and requires no more than a simple reconciliation of its invoices against previous amounts paid to arrive at the outstanding balance that the Defendant now owes.

[2] The Defendant argues that this motion for summary judgment is premature because it raises contentious accounting and factual issues that cannot be resolved on the record before the court, which is said to be incomplete and deficient. According to the Defendant, the parties require additional time to acquire necessary accounting evidence, ideally through examinations for discovery, to compile a sufficient evidentiary record to permit a proper review of the parties’ transaction history and invoicing practices. Depending upon the nature and quality of the transaction history information, the Defendant submits that further oral discovery evidence and/or expert accounting evidence may also be needed to understand the transaction history. The Defendant also states that this case raises a number of factual and credibility issues that cannot be decided by summary judgment and should be determined at trial.

[3] For the reasons that follow, I find that this case is not appropriate for summary judgment because a proper determination of the disputed issues cannot be made from the limited evidentiary record before the court. I also find that this case raises a number of key factual and credibility issues that should be decided at trial. Accordingly, this motion for summary judgment is dismissed.

BACKGROUND

[4] The Plaintiff is an Ontario corporation with its head office in Mississauga. The Defendant is a Quebec corporation with its head office in Montreal. Starting in 2010, the Plaintiff began to regularly sell composites and related products (i.e., resin, gelcoat, fiberglass and abrasives) to the Defendant for resale in the Quebec market. The Plaintiff later came to purchase resin products from the Defendant. Over the years, the parties transacted significant business together.

[5] The Plaintiff regularly shipped quantities of product to the Defendant and issued an invoice for each shipment. In return, the Defendant typically would remit payment by issuing a cheque payable to the Plaintiff. On occasion, the Defendant “paid” an invoice from the Plaintiff by offsetting amounts that the Plaintiff owed (i.e., for products that it had purchased from the Defendant). The Defendant also paid at least one FFO invoice by credit card.

[6] The parties disagree as to how the Plaintiff issued certain invoices, and what payments the Defendant made. They also disagree fundamentally on how certain products were to be priced and how related rebates were to be applied, as further explained below.

[7] On January 27 2017, the Plaintiff commenced this action to recover $319,382.75 being the amount it claims the Defendant owes against unpaid invoices for products purchased under a series of agreements from October 8, 2014 to November 10, 2016. On May 1, 2017, the Plaintiff served its Statement of Claim which appends a six (6) page schedule setting out the various invoice numbers and balances that are said to detail the claim. At or around the time that the action was commenced, the Plaintiff acknowledges that the Defendant made three (3) additional payments which reduced its total indebtedness to $313,083.12. On August 21, 2017, the Defendant delivered its Statement of Defence and Counterclaim. On September 12, 2017, the Plaintiff delivered its Reply and Defence to Counterclaim.

[8] On January 19, 2018, the Plaintiff served its Affidavit of Documents and Schedule “A” productions. Despite repeated requests from the Plaintiff, the Defendant did not deliver its Affidavit of Documents or any productions and did not agree to a Discovery Plan. Instead, the Defendant took the position that examinations for discovery would be unnecessary, and proposed that the parties review all of the accounting behind the outstanding invoices in an effort to collectively reconcile the claim for the parties. In response, the Plaintiff delivered a complete accounting history between the parties over the course of their entire business relationship. To date, the parties have not conducted examinations for discovery.

[9] In August 2018, the Plaintiff brought its motion for summary judgment. The Defendant did not agree to a timetable for delivering its motion materials or scheduling cross-examinations on affidavits. Instead, it took steps to obtain the AOC invoices in order to reconcile the invoices that the Plaintiff had issued to them, as explained above.

ANALYSIS

Summary Judgment

[10] After a statement of defence is delivered, a plaintiff may move under Rule 20.01(1) for summary judgment on all or part of the claim with supporting material or other evidence. Pursuant to Rule 20.04(2), the court shall grant summary judgment if satisfied that there is no genuine issue requiring a trial with respect to all or part of the claim.

[11] Summary judgment is a significant alternative model of adjudication; Hryniak v. Mauldin, 2014 SCC 7 at para 45. The test for summary judgment is well-established. Determining a motion for summary judgment involves a two-step approach, by which the motion judge must:

1. Determine whether there is a genuine issue requiring trial based only on the evidence before him or her, without using the fact-finding powers under Rule 20.04(2.1). There will be no genuine issue requiring a trial if the summary judgment process affords a judge the evidence required to fairly and justly adjudicate the dispute in a timely, affordable and proportionate procedure under Rule 20.04(2)(a). If there is no genuine issue requiring a trial, summary judgment must be granted.

2. If there appears to be a genuine issue requiring a trial, the motion judge should then determine whether the need for a trial can be avoided by using the fact-finding powers under Rules 20.04 to weigh evidence, evaluate credibility, and draw inferences. Doing so will not be contrary to the interest of justice if it will lead to a fair and just result and serve the goals of timeliness, affordability and proportionality in light of the litigation as a whole.

Hryniak at para. 66.

[12] On a summary judgment motion, the focus should not be on what further or other evidence could be adduced at trial but rather on whether a trial is required. A trial is not required when the summary judgment process: (1) allows the judge to make the necessary findings of fact, (2) allows the judge to apply the law to the facts, and (3) is a more proportionate, more expeditious and less expensive means to achieve a just result: Hryniak at para. 49.

[13] A party to a summary judgment motion may not rest solely on the allegations or denials in the pleadings. Under Rule 20.02(1), the court may “draw an adverse inference from a party’s failure to adduce evidence from a person having personal knowledge of contested facts.” Absent detailed and supporting evidence, a self-serving affidavit does not create a triable issue: Guarantee Co. of North America v. Gordon Capital Corp., , [1999] 3 S.C.R. 423 at para. 31. Each side must “put its best foot forward” with respect to the existence or non-existence of material issues to be tried; 2212886 Ontario Inc. v. Obsidian Group Inc., 2018 ONCA 670 at para. 49. A court is entitled to assume that the record contains all evidence that the parties would adduce at trial; Broadgrain Commodities Inc. v. Continental Casualty Company, 2018 ONCA 438 at para. 7.

[14] There is an important caveat to the “best foot forward” principle, which applies when a motion for summary judgment is brought early in the litigation. As the Court of Appeal stated in Combined Air Mechanical Services Inc. v. Flesch, it is not in the interests of justice to use summary judgment where the record is insufficiently developed and prevents a party from responding appropriately:

It will not be in the interest of justice to exercise rule 20.04 (2.1) powers in cases where the nature and complexity of the issues demand that the normal process of production of documents and oral discovery be completed before a party is required to respond to a summary judgment motion. In such a case, forcing a responding party to build a record through affidavits and cross- examinations will only anticipate and replicate what should happen in a more orderly and efficient way through the usual discovery process.

Moreover, the record built through affidavits and cross- examinations at an early stage may offer a less complete picture of the case than the responding party could present at trial. As we point out below, at para. 68, counsel have an obligation to ensure that they are adopting an appropriate litigation strategy. A party faced with a premature or inappropriate summary judgment motion should have the option of moving to stay or dismiss the motion where the most efficient means of developing a record capable of satisfying the full appreciation test is to proceed through the normal route of discovery. This option is available by way of a motion for directions pursuant to Rules 1.04(1), (1.1) (2) and 1.05. [Emphasis added]

Combined Air Mechanical Services Inc. v. Flesch, 2011 ONCA 764 at paras. 57-58; see also Fitzgerald v. Fitzgerald, 2017 ONSC 6209 at para. 26 (e).

[15] On a summary judgment motion featuring an inadequate record, the court “should be reluctant to attempt to resolve the case. Substantial costs are thereby incurred and further delay caused, with little being achieved;” Lesenko v. Guerette, 2017 ONCA 522 at para. 30. Summary judgment is not intended to take the place of regular trials and is only appropriate where it leads to “a fair process and just adjudication:” Hryniak at para. 33. Summary judgment remains the exception, not the rule: Mason v. Perras Mongenais, 2018 ONCA 978 at para. 44.

The Evidentiary Record is Inadequate to Determine this Motion

[16] The Defendant argues that the evidentiary record on this summary judgment motion is incomplete, under-developed, and insufficient for the court to make the necessary factual findings to determine this motion. For the reasons that follow, I agree with this submission.

[17] A motion for summary judgment should not be brought until such time as the issues in the action may appropriately be heard in summary manner. Otherwise, a motion for summary judgment may be premature where it does not serve the principles of proportionality, timeliness and affordability; Den Elzen v. Kelly, 2017 ONSC 98 at para. 53. This is particularly true when a motion for summary judgment is bought before the parties have completed documentary productions. A summary judgment motion that relies on an incomplete record lacking necessary documents may well be premature; Sweda Farms Ltd. v. L.H. Gray & Son Ltd., [2013] OJ No 6363 (SCJ) at paras 25-26 and 39-40, leave to appeal refused [2014] OJ No. 3972 (Div Ct).

[18] I find this summary judgment motion to be premature as the evidentiary record is not yet sufficiently developed to permit an appropriate determination of the factual elements in dispute. At this stage of the litigation, documentary production has not been completed and examinations for discovery have not commenced. As a result, there are a number of evidentiary gaps in the record which, in my view, make it difficult to properly understand the parties’ transaction history and the precise nature of the Plaintiff’s claim in its proper context. In the circumstances, I have serious reservations with the adequacy of the record at this relatively early stage in the litigation, and find that the summary judgment motion should not have been brought until the positions of the parties and the issues were better defined; Lesenko at para 30; Sweda Farms Ltd. at paras 39-40. Even in cases where a summary judgment motion may later be available, it should not be brought until the issues in the action are ready to be heard in a summary manner and the motion serves the principles of proportionality, timeliness and affordability; Den Elzen at para. 53.

[19] In this case, the actual amount of the Plaintiff’s claim is unclear from the record. This seems to be the result of the somewhat evolving nature of the Plaintiff’s position as to what the Defendant owes as further evidence came forward to crystallize better its claim. There are also a number of apparent discrepancies on the face of the evidentiary record that do not yet have answers, including one featuring four (4) rather different amounts that each purport to show what the Defendant allegedly owed the Plaintiff as of October 31, 2014. There are also a series of live questions as to how and why various purchases and payments in the parties’ transaction history were administered and processed. All of these evidentiary issues factor into the difficulty that the Plaintiff is now having in quantifying its claim accurately, which has caused the Defendant to struggle with its attempt to understand and defend the claim.

[20] From its review of Schedule “A” to the Statement of Claim, the Defendant states that many of the invoices that the Plaintiff claims are unpaid have in fact been paid. According to the Defendant, it paid $209,389.37 against a number of its invoices which the Plaintiff claims are still outstanding. The Defendant also claims to have applied certain credit amounts (i.e., which the Plaintiff acknowledges it owed) to offset its payment obligation against other invoices issued by the Plaintiff. In turn, the Defendant states that the parties had agreed that the Plaintiff could reciprocate by offsetting its credits (i.e., against amounts that it had invoiced the Defendant) against amounts that the Defendant had invoiced (i.e., from product purchases made by the Plaintiff). The Defendant further states that the Plaintiff made several purchases in US dollars which remain unpaid and are owing. In addition, the Defendant claims to have made a credit card payment to the Plaintiff on January 24, 2017, which the Plaintiff acknowledged on this motion, as well as further payments to FFO by cheques dated January 15, 2017, February 15, 2017 and March 20, 2017, respectively, which are not reflected in Schedule “A” to the Claim or otherwise acknowledged by the Plaintiff. The full nature and extent of these various offsets and payments remains unclear and will require further evidence, including possible expert accounting evidence, before this aspect of the dispute may be understood and fairly determined.

[21] Schedule “A” to the Statement of Claim lists all of the Plaintiff’s unpaid invoices which serve to frame the claim in this action. In its supporting record on this motion, the Plaintiff produced a purportedly complete accounting of its transaction history with the Defendant in the form of approximately 2,600 electronic records for every invoice, credit and payment which collectively are said to have revealed an outstanding balance of $319,382.75 (i.e., which correlates with the outstanding balance in the last entry to Schedule “A” of the Statement of Claim). However, the Plaintiff later sought to adjust this amount to reflect a lower outstanding balance of $313,083.12 to account for several payments that the Defendant made around the time that FFO commenced this action, as explained above. After reviewing the Defendant’s supporting affidavit on this motion, the Plaintiff further conceded that an additional payment made by the Defendant around the time that the Statement of Claim was issued needed to be accounted for, which purportedly then brought its actual claim against the Defendant to only $311,580.30.

[22] Despite the foregoing, the Plaintiff’s notice of motion claims summary judgment in the amount of $322,343.30, which exceeds the original $319,382.75 pleaded in the Statement of Claim. While the Plaintiff submits that its original claim was incorrect due to inadvertence, it is not entirely clear how or why the error occurred given that Schedule “A” to the Claim purports to show a detailed running balance owed by the Defendant of $319,382.75. If Schedule “A” is somehow incorrect, it is not clear why that is so. In its Supplementary Factum and during oral submissions, the Plaintiff was unable to explain this discrepancy. Instead, the Plaintiff now takes the position that it has put its best foot forward by producing a complete transaction history for the parties which now purportedly shows an outstanding balance of $311,580.30 that the Defendant owes. Although the Plaintiff now seeks to limit its claim on this summary judgment motion to this amount, its basis for asserting this particular figure is unclear from the record and submissions on this motion.

[23] Unfortunately, the affidavits filed by the parties on this motion are unable to address these evidentiary matters adequately. Indeed, they seem to raise more questions than answers. In my view, most of these matter would best be addressed by the parties proceeding with examinations for discovery that will afford a more efficient and effective method to address these questions. Proceeding this way would enable the parties to determine if additional evidence, including expert accounting evidence, is required. It also would afford a reasonable opportunity to prepare any such evidence, should it be needed.

[24] The unexplained transactions and discrepancies appear to be complex and undecipherable to the parties at this time. I find that allowing discoveries to proceed is preferable to the alternative of having the parties assemble a fragmented evidentiary record on this motion through multiple affidavits and potential cross-examinations that will not necessarily produce a sufficiently coherent record to determine the claim. Given the conflicts and gaps that appear on the face of the record before me, I am drawn to conclude that the current record is inadequate to permit a fair and just determination of the Plaintiff’s claim at this stage of the litigation, before discoveries of the parties have been completed; Den Elzen at para. 65 Lesenko at para. 30;

There are Genuine Issues for Trial

[25] I also find that there are genuine issues that require a trial. From the evidence led on this motion, it is apparent that there are significant credibility issues regarding: a) the nature of the parties invoicing payment practices over the course of their transaction history, and b) the parties’ agreement regarding invoicing rebates and offsets. For the reasons set out below, I find that these issues should be resolved at trial.

a) Disagreement as to how invoices were paid

[26] On this motion, the Defendant objects to the Plaintiff’s reliance on the parties’ full transaction history dating back to June 17, 2010 (i.e., which the parties apparently considered in attempting to reconcile their accounting dispute) because certain dated transactions are claim-barred by the general 2 year limitation period which the Defendant would have pleaded in its Statement of Defence had it known earlier of the Plaintiff’s intention to rely on them. The Plaintiff disagrees with the Defendant’s position because it claims that the parties had treated the Defendant’s account balance as a “running account” that was updated regularly as current account information came forward. As such, the Plaintiff argues that the parties’ invoicing arrangement does not implicate any limitation arguments because the running balance is always current. The Defendant denies that its account was a “running account,” and claims that it always paid the Plaintiff by identifying specific invoices and amounts in the payment advice that it gave for each of its payments. This disagreement over how invoices were paid remains a material issue in dispute between the parties.

b) Disagreement over rebates on the purchase of AOC products

[27] The parties also disagree fundamentally about their pricing arrangement and applicable rebates, if any, for the Defendant’s purchase of certain products. In addition, they disagree about the quantity and cost of these purchases, which is a material dispute in this action.

[28] From 2012 until 2015, the Defendant purchased large quantities of resin products manufactured by Alpha/Owens-Corning (Canada) Inc. (“AOC”) from the Plaintiff, which is an approved AOC product distributor. According to the Defendant, the principals for each party verbally agreed in early 2013 upon a pricing arrangement by which the Plaintiff would sell the AOC products to the Defendant at net cost (i.e., with no added profit margin) that also incorporated any rebates that the Plaintiff received from AOC. The Plaintiff disagrees and claims that no such pricing arrangement was ever agreed upon. However, a September 11, 2015 email exchange by the parties seems to confirm, at least arguably, the pricing arrangement asserted by the Defendant.

[29] The parties also disagree as to the nature and extent of the Defendant’s purchase of AOC products from the Plaintiff, which is another key dispute in this action. In an effort to clarify this aspect of the Plaintiff’s claim, the Defendant obtained the original AOC invoices for the Plaintiff’s purchase of AOC products that it later sold to the Defendant (“AOC invoices”). The AOC invoices indicate that AOC billed the Plaintiff for the aggregate sum of $2,758,995.26, net of taxes, for the AOC products that were sold to the Defendant. However, from its review of the Plaintiff’s corresponding invoices for these AOC products, the Defendant claims that it was billed $2,899,528.28, net of taxes, by the Plaintiff for the very same AOC products. The Defendant claims to be unable to explain the $140,533.02 discrepancy between both series of invoices. Its difficulty with reconciling the invoices is due in part to the Plaintiff’s practice of shipping smaller quantities of AOC products (i.e., drawn from larger shipments that AOC had delivered) to the Defendant together with other non-AOC products, which the Plaintiff later invoiced without identifying a corresponding AOC invoice number for the AOC products.

[30] In the courses of reconciling its invoices, the Defendant claims to have uncovered certain billing irregularities. For example, it claims that the Plaintiff billed the Defendant three (3) times for one shipment using three (3) different invoices that it sent on the same day. The Defendant also points to other inconsistent billing practices that complicated its reconciliation process, which remains a work in progress.

[31] More importantly, the Defendant claims that the Plaintiff failed to pass on fully its AOC rebates on certain products that it sold to the Defendant. From May 2013 to August 2014, the AOC rebate credits given by the Plaintiff to the Defendant are said to have amounted to $111,745.15 less than what the Plaintiff itself had claimed from AOC. According to the Defendant, the Plaintiff has not explained this apparent discrepancy.

c) These Questions Should be Determined at Trial

[32] The above-mentioned account and rebate questions are significant areas of disagreement that feature complex factual and credibility issues. As explained below, I find that these are material disputes that raise genuine issues which require a trial.

[33] While the parties were required to put their best cases forward on this summary judgment motion, there was no cross-examination on their respective supporting affidavits. The parties’ evidence on these questions is clearly in conflict. The record is also incomplete, and does not purport to address or validate each issues raised by the parties. In my view, these questions cannot be fairly or reasonably determined on the record before me.

[34] As set out above, and without reviewing the evidence in further detail, it is apparent that factual accounts and the credibility of witnesses are key issues and will be central to a proper determination of the issues in dispute in this case. In addition to a number of factual matters requiring additional evidence, including accounting and possible expert evidence, the credibility of key witnesses such as Mr. Lukasik (i.e., the Plaintiff’s principal) and Mr. Conroy (i.e., the Defendant’s principal) will be critical in making a determination of the facts needed to resolve the outstanding issues. In addition, there may well be other critical witnesses, including those involved in reviewing and reconciling the payments for the respective parties. As such, I am unable to determine these issues in a just and fair manner on a summary judgment motion. These are all genuine issues that will require a trial.

[35] Having found that there are genuine issues requiring a trial, I turn to address whether a trial can be avoided by using the powers under Rules 20.04(2.1) and (2.2). In its discretion, the court may use these powers on a summary judgment motion provided that doing so is not contrary to the interests of justice. Doing so is not contrary to the interests of justice if using the powers will lead to a fair and just result and serve the goals of timeliness, affordability, and proportionality for the litigation as a whole.

[36] In the particular circumstances of this case, I find that it is not in the interests of justice to do exercise these powers because: a) I cannot make the required findings of fact to do justice in this case because of the evidentiary gaps (i.e., regarding the invoicing and rebate questions) in the record, as explained above, b) the parties should proceed to examinations for discovery and thereby create an appropriate and complete evidentiary record, including possible expert accounting evidence, for the court to consider in determining a fair and just result to the questions in dispute, and c) having regard to timeliness, affordability, and proportionality, I find no advantage in proceeding to decide credibility and other evidentiary issues based on the limited record before the court which cannot resolve this complex accounting case without the benefit of a trial.

[37] During submissions, the Plaintiff suggested that the only real issue in dispute was the amount to which it is entitled which could be resolved by a reference ordered under Rule 20.04(3). In my view, this submission grossly oversimplifies and understates the nature of the outstanding issues between the parties. As explained above, the accounting and rebate questions raise serious evidentiary and credibility issues that cannot be fairly or justly determined on a reference given the current state of the record. Accordingly, I find that a reference is not appropriate in this case.

Plaintiff’s Motion to Amend the Claim

[38] As corollary relief on its motion for summary judgment, the Plaintiff seeks leave to amend its Statement of Claim to accommodate its apparent new claim based on the parties’ full transaction history. In support of this proposed relief, the Plaintiff claims that it was the Defendant that had asked for the parties’ full transaction history in order to define the claim and thereby prompted the Plaintiff to adopt this course of action in pursuing its claim. In the circumstances, the Plaintiff states that it should come as no surprise that it is relying on the full transaction history to support its claims on this motion. The Plaintiff further states that the Defendant has had over 8 months to review the full transaction history and deliver its response. However, the Plaintiff did not deliver a proposed amended claim or an appropriate supporting record upon which the court could properly consider its proposed motion to amend its pleading. In the circumstances, the Defendant not unreasonably maintained its position that the Plaintiff’s claim continues to be defined by the parameters of the original Statement of Claim, which on its face expressly defines the relevant transaction period as falling within October 8, 2014 and November 10, 2016. Based on all of this, and in the absence of a proper supporting record, I am unprepared to grant leave for FFO to amend its claim at this time.

[39] Rule 20.01(1) clearly states that a plaintiff may move for summary judgment on all or part of the claim in the statement of claim. It follows that relief sought by a plaintiff on a motion for summary judgment cannot exceed the relief that it sought in its claim; Glover v. Perron, 2013 ONSC 1093 at para. 12; Tritt v. Reid, 1986 CarswellOnt 3832 at para. 8. While I recognize that the parties’ prior discussions may have dealt with issues going beyond the scope of the Plaintiff’s initial claim, it is important to ensure that litigation proceeds within the scope of its pleadings which define the issues, give the parties fair notice of the case to meet, and sets boundaries for disclosure and case management; Lax Kw’alaams Indian Band v. Canada (Attorney General), 2011 SCC 56 at paras. 41-43. A statement of claim is intended to define with clarity and precision the claim in dispute in order to give fair notice to the defendant of the case it has to meet and the facts relied upon by the plaintiff to establish the cause of action; Berube v. Ontario, 2009 ONSC 6600 at para. 4. This allows the court to understand the matters in issue and promotes effective case management so that litigation proceeds in an organized and efficient fashion that avoids wasted time and needless ambiguity. To permit the Plaintiff’s claim to proceed without being appropriately grounded to its Statement of Claim would invite a disorganized, inefficient and unmanageable approach to this litigation which inevitably would lead to the sort of problems that led Binnie J. to remark aptly in Lax (at para. 41): “[t]he trial of an action should not resemble a voyage on the Flying Dutchman with a crew condemned to roam the seas interminably with no set destination and no end in sight.”

[40] I recognize as a general principle that the court may exercise its discretion in limited fashion to decide a case on a basis other than as set out in the pleadings, or on a basis which does not perfectly accord with the pleadings, if no party to the proceeding is surprised or prejudiced; Canada (Commissioner of Competition) v. CCS Corp., 2013 FCA 28 at paras. 72-73, rev’d on other grounds 2015 SCC 3; Colautti Construction Ltd. v. Ashcroft Development Inc., 2011 ONCA 359 at paras. 42-47. However, given the serious issues in dispute that arise on the particular facts of this case, I am persuaded that the Defendant may well suffer prejudice if the court were to entertain the Plaintiff’s motion for summary judgment on a broader and undefined basis that exceeds the parameters of the Statement of Claim as pleaded. The scope of the claim needs to be properly defined, and should not become a moving target.

CONCLUSION

[41] For all of these reasons, this motion for summary judgment is dismissed.

[42] If the parties are unable to agree upon costs, the Defendant may deliver written submissions of up to 3 pages (not including its costs outline, any offer(s) to settle, or caselaw) within 15 days, after which the Plaintiff may deliver its cost submissions on the same terms. No reply submissions shall be delivered without leave.

Doi J.

Released: July 15, 2019