Pirani v. Karmali et al., 2012 ONSC 1647

Pirani et al. v. Karmali et al. [Indexed as: Pirani v. Karmali]

109 O.R. (3d) 698
2012 ONSC 1647

Ontario Superior Court of Justice,
Perell J.

March 12, 2012

Limitations -- Real property -- Plaintiffs bringing action alleging that they were defrauded when defendants misappropriated their share in syndicate that owned title to real property through trust -- Two defendants bringing motion for summary judgment dismissing action against them as statute- barred -- Motion dismissed -- Genuine issue for trial existing as to whether Limitations Act, 2002 or Real Property Limitations Act applied -- Limitations Act, 2002, S.O. 2002, c. 24, Sch. B -- Real Property Limitations Act, R.S.O. 1990, c. L.15. [page699]

One or more of the plaintiffs purchased a share in a syndicate that owned real property through a trust. In 1997, the defendant S arranged to have the share transferred to the defendant AN. AN and his father, MN, paid the purchase price. The plaintiffs denied receiving the money. In December 2004, they commenced an action against S and others alleging that they misappropriated the plaintiffs' share in the syndicate. AN and MN were not joined as party defendants until June 2008. They brought a motion for summary judgment dismissing the claim against them as statute-barred.

Held, the motion should be dismissed.

A genuine issue for trial existed with respect to whether the Limitations Act, 2002 or the Real Property Limitations Act applied to the claim.

MOTION for summary judgment dismissing the action as against the moving parties.

Cases referred to
Hartman Estate v. Hartfam Holdings Ltd., 2006 ONCA 266 , [2006] O.J. No. 69, 263 D.L.R. (4th) 640, 205 O.A.C. 369, 22 E.T.R. (3d) 161, 23 R.F.L. (6th) 201, 145 A.C.W.S. (3d) 52 (C.A.), consd

Statutes referred to
Limitations Act, R.S.O. 1990, c. L.15 , Part I, ss. 4, 5, 43(2), Part II
Limitations Act, 2002, S.O. 2002, c. 24, Sch. B, ss. 1 , 2 , (1) , 4 , 5 [as am.], (1), 16(1) [as. am.], 24 [as am.], (1), (3), (4), (5), (6)
Real Property Limitations Act, R.S.O. 1990, c. L.15 [as am.], Part I [as am.], ss. 4, 5, Part II [as am.]

Authorities referred to
Ontario Law Reform Commission, Report on Limitation of Actions (Toronto: Department of the Attorney General, 1969)

Shahzad Siddiqui, for plaintiffs.
Darren J. Smith, for defendants Altaf Nathoo and Mohamed Nathoo.

PERELL J.: -- A. Introduction

A. Introduction

1This summary judgment motion raises excruciating, difficult issues about the operation of the Limitations Act, 2002, S.O. 2002, c. 24, Sch. B (the "current Act") and the Real Property Limitations Act, R.S.O. 1990, c. L.15 , which is the renamed Limitations Act (the "former Act").

2In this action, the plaintiffs, Farida Barkat Pirani ("Mrs. Pirani"), Barkatali Pirani ("Mr. Pirani") and Afchim Inc. (the Pirani's corporation), allege that they were defrauded when the defendants, Shirzas Hussein Karmali, Zulfikarali Verjee, 857380 Ontario Inc., Musa Suleman, Altaf Nathoo and Mohamed Nathoo, misappropriated the plaintiffs' share in a syndicate that through a trust owned title to a property in Grand Valley, Ontario. [page700]

3Two of the defendants, Altaf Nathoo and Mohamed Nathoo, bring a motion for summary judgment dismissing the plaintiffs' action on the grounds that (1) the action is statute-barred; and (2) there are no genuine issues requiring a trial as against them.

4I adjourned the part of the motion with respect to the merits of the plaintiffs' claim against the Nathoos, but I heard argument on the question of whether the claim against the Nathoos is statute-barred under the Limitations Act, 2002 (the current Act).

5For the reasons that follow, it is my conclusion that there is a genuine issue requiring a trial about whether the claim against the Nathoos is statute-barred. Therefore, this part of the motion for summary judgment should be dismissed. (The Nathoos may now bring on the adjourned portion of their motion for summary judgment.)

B. Factual Background

B. Factual Background

6The motion for summary judgment was supported by affidavits from Mr. Nathoo and from his son Altaf, who were cross-examined. The plaintiffs resisted the motion with affidavits from Mr. and Mrs. Pirani and from David Babb, who is a forensic document examiner. Mr. Pirani was cross-examined. There were also examinations for discovery of the Piranis, the Nathoos and Mr. Suleman.

7My discussion of the factual background will focus on the question of whether or not the plaintiffs' action against the Nathoos is statute-barred.

8In 1989, one or more of Mr. Pirani, Mrs. Pirani or their corporation, Afchim Inc., purchased a share in a syndicate that owned a property in Grand Valley, Ontario.

9The defendant, 857830 Ontario Inc., which is the owned by defendants, Messrs. Suleman, Karmali and Verjee, is the registered owner of the Grand Valley property.

10The defendant Mohamed Nathoo also purchased a share in the syndicate. There were 19 investors in the syndicate, and each had a 5.26 per cent share.

11Eight years later, in 1997, Mr. Suleman advised Mr. Nathoo that the Pirani share was available for purchase at a price of $20,000. Mr. Nathoo and his son Altaf decided to purchase the share. Mr. Nathoo and his wife each provided Mr. Suleman with a cheque payable to "cash" in the amount of $5,000. Mr. Altaf Nathoo provided him with a $10,000 cheque payable to Mr. Pirani.

12Although the Piranis deny receiving the cheques, the cheques were cashed by somebody, and a share in the syndicate [page701] was transferred to Mr. Altaf Nathoo. Beginning in 1998, Altaf began to receive the annual financial statements provided to shareholders in the syndicate.

13Approximately six years then passed until December 1, 2004, when Mrs. Pirani commenced an action against 857830 Ontario Inc., and Messrs. Suleman, Karmali and Verjee. She alleged that these defendants had failed to account for her share of the syndicate.

14It is to be noted that Mr. Nathoo and his son Altaf were not joined as party defendants to the action at the outset. The Piranis admit, however, that they knew that their share had been transferred to somebody, but they deny yet knowing that the recipient was Altaf Nathoo.

15On January 21, 2005, the defendants delivered their Statement of Defence and disputed that Mrs. Pirani was the owner of the share in the syndicate. The defendants alleged that the share was beneficially owned by Afchim Inc. The defendants pleaded that Afchim Inc.'s share had been transferred to Altaf Nathoo. They pleaded that Altaf Nathoo was the owner as of December 1997.

16After the delivery of the Statement of Defence, on May 24, 2005, the defendants' lawyer wrote to Mrs. Pirani's lawyer and referred to the fact that the Nathoos were claiming ownership of Mrs. Pirani's share in the syndicate.

17In June 2005, Mrs. Pirani obtained leave to issue an Amended Statement of Claim joining her husband and their corporation as co-plaintiffs. The Amended Statement of Claim added new claims that the defendant, 857830 Ontario Inc., restore Mrs. Pirani's interest in the syndicate, including all rights to dividends retroactive to December 1997, and that it issue a share certificate confirming her share. It is to be noted, however, that Mr. Nathoo and his son Altaf still were not joined as party defendants to the Amended Statement of Claim.

18Another year passed until July 11, 2006, when the Pirani's lawyer wrote Mr. Nathoo and Altaf to advise them that the Piranis intended to amend the claim to join the Nathoos as defendants for the purpose of recovering the share that had been transferred to them. The Nathoos' lawyer responded with their explanation that the Nathoos had properly purchased the share, and the Nathoo's lawyer provided the Pirani's lawyer with copies of the cheques for the $20,000 payment.

19This appeared to end the matter as against the Nathoos. Approximately another two years passed, but then the plaintiffs brought a motion for leave to deliver a Fresh Amended Statement of Claim. Leave was granted and the pleading was issued [page702] on June 10, 2008. This time, the Nathoos were joined as parties to the existing litigation. The plaintiffs plead that the Nathoos conspired with the other defendants to effect the transfer of the plaintiffs' interest and were unjustly enriched.

20The Fresh Amended Statement of Claim joins the Nathoos and pleads that they conspired to bring about the wrongful transfer of the share in the syndicate. The plaintiffs claim an interest in the land registered to the defendant 857830 Ontario Inc. They claim, among other things, a declaration that the Nathoos have no interest in the plaintiffs' share and that the Nathoos account for any dividends received and pay damages of $100,000 for conspiracy to injure. The plaintiffs claim a certificate of pending litigation against the Grand Valley property.

21On August 14, 2008, the Nathoos delivered their Statement of Defence and counterclaim. The plaintiffs' reply and defence to counterclaim was delivered on September 8, 2009.

22The action proceeded to examinations for discovery. On her examination for discovery, Mrs. Pirani stated that she discovered that she was no longer registered as a share owner in or about 1997 or 1998. On his examination for discovery, Mr. Pirani admitted that he knew that the share had been transferred by 2004 and that in 2005, his lawyer had advised him that the share had been transferred to Altaf Nathoo. He also admitted that he was aware of the correspondence in 2006 that had identified Altaf as the purchaser of the share.

23After the examinations for discovery, the Nathoos brought this motion for summary judgment.

C. Discussion and Analysis

C. Discussion and Analysis

24For the purposes of deciding this summary judgment motion, the relevant sections of the Limitation Act, 2002 (the current Act) are ss. 1 , 2 , 4 , 5 , 16(1) and the transitional provision in s. 24, which state as follows:

Definitions

1. In this Act, . . .

"claim" means a claim to remedy an injury, loss or damage that occurred as a result of an act or omission . . . .

Application

2(1) This Act applies to claims pursued in court proceedings other than, (a) proceedings to which the Real Property Limitations Act applies[.] . . . . . [page703]

Basic limitation period

4. Unless this Act provides otherwise, a proceeding shall not be commenced in respect of a claim after the second anniversary of the day on which the claim was discovered.

Discovery

5(1) A claim is discovered on the earlier of, (a) the day on which the person with the claim first knew, (i) that the injury, loss or damage had occurred, (ii) that the injury, loss or damage was caused by or contributed to by an act or omission, (iii) that the act or omission was that of the person against whom the claim is made, and (iv) that, having regard to the nature of the injury, loss or damage, a proceeding would be an appropriate means to seek to remedy it; and (b) the day on which a reasonable person with the abilities and in the circumstances of the person with the claim first ought to have known of the matters referred to in clause (a).

Presumption

(2) A person with a claim shall be presumed to have known of the matters referred to in clause (1)(a) on the day the act or omission on which the claim is based took place, unless the contrary is proved. . . . . .

No limitation period

16(1) There is no limitation period in respect of, (a) a proceeding for a declaration if no consequential relief is sought[.] . . . . .

Transition

Definition

24(1) In this section,

"former limitation period" means the limitation period that applied in respect of the claim before January 1, 2004.

Application

(2) This section applies to claims based on acts or omissions that took place before January 1, 2004 and in respect of which no proceeding has been commenced before that date.

Former limitation period expired

(3) If the former limitation period expired before January 1, 2004, no proceeding shall be commenced in respect of the claim. [page704]

Former limitation period unexpired

(4) If the former limitation period did not expire before January 1, 2004 and if no limitation period under this Act would apply were the claim based on an act or omission that took place on or after that date, there is no limitation period.

Same

(5) If the former limitation period did not expire before January 1, 2004 and if a limitation period under this Act would apply were the claim based on an act or omission that took place on or after that date, the following rules apply:

1. If the claim was not discovered before January 1, 2004, this Act applies as if the act or omission had taken place on that date.
2. If the claim was discovered before January 1, 2004, the former limitation period applies.

No former limitation period

(6) If there was no former limitation period and if a limitation period under this Act would apply were the claim based on an act or omission that took place on or after January 1, 2004, the following rules apply:

1. If the claim was not discovered before January 1, 2004, this Act applies as if the act or omission had taken place on that date.
2. If the claim was discovered before January 1, 2004, there is no limitation period.

25For the purposes of this motion, it should be noted that, effective January 1, 2004, the Limitations Act, 2002 largely replaced the Limitations Act, R.S.O. 1990, c. L.15 . However, parts of the former Act remain in force after January 1, 2004. Specifically, Part I (Real Property), dealing with real property limitation periods, was preserved, and Part II (Trusts and Trustees) was repealed and replaced, and collectively these two parts were renamed the Real Property Limitations Act. For the purposes of this motion, it is necessary to refer to s. 4 of the former Limitations Act, now the Real Property Limitations Act, which states:

Limitation where the subject interested

4. No person shall make an entry or distress, or bring an action to recover any land or rent, but within ten years next after the time at which the right to make such entry or distress, or to bring such action, first accrued to some person through whom the person making or bringing it claims, or if the right did not accrue to any person through whom that person claims, then within ten years next after the time at which the right to make such entry or distress, or to bring such action, first accrued to the person making or bringing it. [page705]

26I begin the discussion by making the finding that the plaintiffs discovered that they had a claim against the Nathoos on January 1, 2005 and certainly no later than May 24, 2005. Under s. 5(1) of the Limitations Act, 2002 , the discovery of a claim occurs when the plaintiff actually has sufficient facts to allege a claim against a particular person who may be liable or when the plaintiff ought to have known because a reasonable person with the abilities and circumstances of the plaintiff would have known sufficient facts. I disagree with the plaintiffs' argument that they did not discover their claim against the Nathoos until August 19, 2006.

27The issue then is whether the claim that was discovered in 2005 is statute-barred.

28The Nathoos argued this motion on the basis that the issue to be decided was whether there is a genuine issue requiring a trial about whether the claim against the Nathoos is statute-barred under the Limitations Act, 2002 . The Nathoos' argument was straightforward. They submitted that s. 4 of the Act provides a basic limitation period of two years from when the plaintiff's claim is discovered. Section 4 is available in respect of a "claim", which is defined in s. 1 as "a claim to remedy an injury, loss or damage that occurred as a result of an act or omission". In the case at bar, the injury, loss or damage suffered by the plaintiffs occurred and the acts and omissions causing that loss occurred in 1997. The Nathoos submit that the plaintiffs discovered their claim against the Nathoos on January 1, 2005 and certainly no later than May 24, 2005. Thus, the plaintiffs had until May 24, 2007 to commence an action, but no action was commenced until June 2008. Therefore, it is submitted that the plaintiffs' claim is statute-barred.

29If the Limitation Act, 2002 applies to the case at bar, I would agree with the Nathoos' argument.

30But for their reference to the Court of Appeal's judgment in Hartman Estate v. Hartfam Holdings Ltd., the plaintiffs' counterargument proceeded on the basis that the issue to be determined was how s. 24 (the transition provision) of the Limitations Act, 2002 applied to the plaintiffs' claim. In other words, but for the Nathoos' reference to Hartman Estate v. Hartfam Holdings Ltd., both parties apparently accepted that the Nathoos' claim was not subject to the Real Property Limitations Act .

31Putting aside for the moment the significance of Hartman Estate v. Hartfam Holdings Ltd., and the application, if any, of the Real Property Limitations Act , I disagree with the plaintiffs' ultimate submission that their claim is not statute-barred under the Limitations Act, 2002 .

32However, assuming that the Limitations Act, 2002 applies, I do agree with the plaintiffs that s. 24 (the transition provision) of the Act applies. This section applies to claims based on acts or omissions that took place before January 1, 2004 and in respect of which no proceeding has been commenced before that date.

33If s. 24 applies, the next question is: what subsection of s. 24 applies? For reasons that will become apparent later, I agree with the plaintiffs' argument that s. 24(3) does not apply. However, I disagree with the plaintiffs' submission that s. 24(4) applies. It is a precondition to the operation of subsection 24(4) that "no limitation period under this Act would apply were the claim based on an act or omission that took place on or after [January 1, 2004]". Assuming that the Limitations Act, 2002 applies to the case at bar, the basic limitation period would apply to the acts and omissions of the Nathoos, and thus s. 24(4) does not apply to the case at bar.

34I disagree with the plaintiffs' argument that they are advancing a claim for a declaration and this claim is not subject to a limitation. This argument relies on s. 16(1) of the Limitations Act, 2002 , which states that "there is no limitation period in respect of a proceeding for a declaration if no consequential relief is sought". The plaintiffs' argument, however, fails because in addition to a declaration, the plaintiffs are seeking consequential relief against the Nathoos.

35With s. 24(3) and (4) not applying, the analysis then turns to how either subsection (5) or (6) would apply to the circumstances of the case at bar. Subsections (5) and (6) prescribe their outcomes depending upon whether "the former limitation period" had expired or had not expired and depending upon whether there was no "former limitation period". Subsection 24(1) defines "former limitation period" to mean "the limitation period that applied in respect of the claim before January 1, 2004".

36It is convenient to begin with subsection (6), which would apply to the immediate case if there was no former limitation period. More precisely, subsection (6) applies "if there was no former limitation period and if a limitation period under this Act would apply were the claim based on an act or omission that took place on or after January 1, 2004".

37For present purposes, I can assume that there was no former limitation period and that subsection (6) applies. It provides two rules. These rules differentiate between claims discovered after or before January 1, 2004. In the case at bar, in my opinion, there is no genuine issue for trial that the plaintiffs discovered their claim against the Nathoos on January 21, 2005 and certainly no later than May 24, 2005.

38Applying subsection 24(6), the applicable paragraph is para. 2 of subsection (6); namely: "If the claim was not discovered before January 1, 2004, this Act applies as if the act or omission had taken place on that date."

39Thus, under subsection 24(6), the claim against the Nathoos is subject to a limitation period under the Limitations Act, 2002 as if the events took place took place on January 1, 2004. These events would be subject to a two-year limitation period once discovered. In the case at bar, discovery occurred in January 2005 or May 2005, and the two-year basic limitation period under the Act would have expired on January 2007 or May 2007. The action against the Nathoos was commenced on June 10, 2008 and is thus statute-barred.

40Turning to the application of subsection (5), it applies when there is an unexpired limitation period under the former Act applicable to the plaintiffs' claim against the Nathoos. For present purposes, I can assume that there was an unexpired limitation period and that subsection (5) applies. It provides two rules when there is an unexpired limitation period. The first of these rules is for claims "not discovered before January 1, 2004". The plaintiffs' claim falls within this rule because it was discovered in 2005.

41This rule from subsection 24(5) states: "If the claim was not discovered before January 1, 2004, this Act applies as if the act or omission had taken place on that date." Thus, the claim against the Nathoos is subject to a limitation period under the Limitations Act, 2002 as if the events occurred on January 1, 2004 and were discovered in 2005. This is a claim subject to the two-year basic limitation period under the current Act, which would have expired in 2007. The action against the Nathoos was commenced on June 10, 2008 and therefore is statute-barred.

42This analysis leads to the observation that although there was a debate about whether the plaintiffs' claim against the Nathoos was or was not subject to a limitation period under the former Act, it turns out that for the purposes of determining the operation of s. 24, it is not necessary to determine this particular point. In the circumstances of the case at bar, regardless of whether there was a limitation period under the former Act or no limitation period, the applicable limitation period under the current Act has expired and the plaintiffs' claim is statute-barred. [page708]

43I return now to the significance of Hartman Estate v. Hartfam Holdings Ltd., and to the significance, if any, of the Real Property Limitations Act .

44Hartman Estate was a case about the operation of what is now the Real Property Limitations Act . In Hartman Estate, the Court of Appeal dismissed an appeal from a decision of a motion judge. The main ground of appeal was the submission that the motion judge had failed to find that the proposed trust claims about an interest in land were statute-barred under ss. 4 and 5 of what is now the Real Property Limitations Act.

45Hartman Estate is a very complex case about the operation of the former Limitations Act where claims to land are advanced against trustees or constructive trustees. For present purposes, the Hartman Estate has nothing to say about the operation of the Limitation Act, 2002. However, in Hartman Estate, the Court of Appeal decided that the defendants were precluded from relying on ss. 4 or 5 of the former Limitation Act ["now renamed the Real Property Limitations Act "] because of the operation of s. 43(2) of former Limitation Act, which provided an exception to the operation of ss. 4 and 5.

46What is important for present purposes is Justice Gillese's comment, at para. 85 of her judgment for the court, where she stated:

It is apparent that there is no clear, general answer to the question of whether claims to land based on resulting or constructive trust are subject to a statutory limitation period and, if so, whether the exceptions in s. 43(2) apply to all trustees who hold property by way of resulting or constructive trust. In the case at bar, however, if the statutory limitation period does apply to such claims, for the reasons already given, I am not bound to apply Taylor v. Davies. I would give a plain reading to s. 43(2) with the result that the proposed trust claims fall within the second exception.

47The key point is Justice Gillese's statement that there is no clear, general answer to the question of whether claims to land based on resulting or constructive trust are subject to a statutory limitation period under what was the Limitation Act and is now the Real Property Limitations Act . This is key because, relying on Hartman Estate, the plaintiffs submit that equitable claims, unjust enrichment claims, constructive trust claims, knowing receipt and knowing assistance claims are not subject to limitation periods, and, thus, the applicable transition provision is s. 24(4) of the Limitations Act, 2002.

48For the reasons expressed above, I disagree that s. 24(4) of the Limitations Act, 2002 applies. I also disagree with the plaintiffs' submission that Hartman Estate is authority that unjust enrichment claims, constructive trust claims, knowing receipt and knowing assistance claims are not subject to limitation periods. Justice Gillese expressly did not decide the point, and her statement in Hartman Estate is no more than an expression of uncertainty about the scope of what is now the Real Property Limitations Act .

49How the Real Property Limitations Act applies to equitable claims to land remains uncertain. If one, however, turns to the Limitation Act, 2002, it is arguable that unjust enrichment claims, constructive trust claims, knowing receipt and knowing assistance claims come within the definition of "claim" under the Limitation Act, 2002.

50But that is the rub; does the Limitations Act, 2002 apply to the circumstances of the case at bar or has it been ousted by the Real Property Limitations Act ? Section 2(1) of the Limitations Act, 2002 provides that the Act applies to claims pursued in court proceedings "other than proceedings to which the Real Property Limitations Act applies", but Justice Gillese's comment in Hartman Estate suggests that claims to land based on resulting or constructive trust might be subject to a statutory limitation period under the Real Property Limitations Act. She says that there is no clear answer; thus, it is arguable that the plaintiffs' claim to land in the case at bar might be subject to the Real Property Limitations Act and not the Limitations Act, 2002.

51Assuming that a limitation period from the Real Property Limitations Act applies, then it would be the ten-year limitation period provided by s. 4 of the Act. Applying the ten-year period of s. 4 and the discoverability principle, the limitation period would expire in 2015. Thus, under the Real Property Limitations Act, the plaintiffs' claim would not have expired.

52(I note parenthetically that this last conclusion also explains why transitional provision s. 24(3) of the Limitations Act, 2002 does not apply in the case at bar because it only applies if the limitation period has expired.)

53But to repeat, Justice Gillese's comment in Hartman Estate suggests also that claims to land based on resulting or constructive trust might not be subject to a statutory limitation period under the Real Property Limitations Act . Thus, using the language of s. 2(1) of the Limitations Act, 2002 , it would be arguable that the claim in the case at bar is a claim other than a claim pursued in proceedings to which the Real Property Limitation Act applies. Thus, the Real Property Limitation Act would not apply to preclude the application of the Limitations Act, 2002, and, therefore, the analysis returns to whether or not the plaintiffs' claim is statute-barred under the Limitations Act, 2002. [page710]

54However, the problem remains that it is unclear whether the Real Property Limitations Act does or does not apply to the claims in the case at bar. Thus, where this protracted analysis takes me is to conclusion that there is a genuine issue requiring a trial about the characterization of the plaintiffs' claim and whether or not it is within the scope of the Real Property Limitations Act or the Limitations Act, 2002 .

55I appreciate that there are peculiar aspects to this outcome. At the trial, the Nathoos will argue that they did nothing wrong, in which case they will not need the technical defence of any limitation period. Alternatively, if they need to rely on the limitations period defence, then they must argue that they committed a wrong that is not subject to a statutory limitation period under the Real Property Limitations Act . This argument, if accepted, would trigger the operation of the transitional provisions of the Limitations Act, 2002 and the conclusion that they were entitled to a limitation period defence under that Act. If the argument failed, then the Nathoos will have committed a wrong subject to an unexpired limitation period under the Real Property Limitations Act.

56This peculiarity that a defendant must classify his or her wrongdoing arises because the legislature did not follow up on the observation of the Ontario Law Reform Commission that there were many problems about the operation of the former Act when a trustee, including a constructive trustee, commits a breach of trust and on its recommendation that there should be a "catch-all" provision of six years for all causes of action except where a statute has prescribed a different limitation period. See Ontario Law Reform Commission, Report on Limitation of Actions (Toronto: Department of the Attorney General, 1969), pp. 53-63.

57In any event, I conclude that there are genuine issues that require a trial and that cannot be decided by a summary judgment procedure.

D. Conclusion

D. Conclusion

58In the result, I dismiss this part of the motion for summary judgment.

59In my opinion, the costs of this part of the summary judgment motion should be in the cause. If either party disagrees, the parties may make written submissions within 20 days of the release of these reasons for decision.