ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: CV-10-100605-00
DATE: 20130708

BETWEEN:

1516089 Ontario Inc. carrying on business as Yeung and Associates and Philip Kai Kwong Yeung

Plaintiffs/Defendants to the Counterclaim/Moving Parties

– and –

Dr. Howard Jacobs, Canadian Pain Management Inc., Gail Erickson a.k.a. Gail Kalaba a.k.a Gulhane Kalaba and Lisa Eng

Defendants/Plaintiffs by Counterclaim

Ranjan Das and Adam J. Wygodny, for the Plaintiffs/Defendants to the Counterclaim and Moving Parties

David Sookram and Sang Joon Bae, for the Defendants/Plaintiffs by Counterclaim, Dr. Howard Jacobs and Canadian Pain Management Inc.

HEARD: June 24, 2013

RULING ON MOTION FOR SUMMARY JUDGMENT

gilmore J.:

Background

[1] The plaintiff, Philip Yeung (“Mr. Yeung”), is a paralegal and the proprietor of Yeung and Associates, which carries on a paralegal business, specializing in automobile benefits claims. In January 2010, Yeung and Associates engaged the services of the defendant, Gail Kalaba (“Ms.Kalaba”), who is also a licensed paralegal, to assist with automobile benefits and mediations. She worked with Yeung and Associates from January 19, 2010 to July 23, 2010.

[2] Mr. Yeung alleges that he received reports from clients that Ms. Kalaba was approaching them to take over their automobile benefits files and was directing clients to take their assessment business to the clinic operated by the defendants, Dr. Howard Jacobs (“Dr. Jacobs”) and Canadian Pain Management Inc. (“CPM”). As a result, the relationship between Ms. Kalaba and Mr. Yeung ended on July 23, 2010 on poor terms. Ms. Kalaba commenced a separate action against Yeung and Associates in Toronto on August 20, 2010.

[3] Dr. Jacobs has special medical qualifications and experience in the field in pain management and is a physician licensed to practice in the Province of Ontario. He has been involved in the evaluation and treatment of chronic spinal, head, neck and facial pain for over twenty years. Dr. Jacobs was approached by Israel Schachter (“Mr. Schachter”) with respect to opening a chronic pain clinic in Markham. Ultimately, through this connection, Dr. Jacobs became the medical director of CPM. Dr. Jacobs dealt almost exclusively with pain management, but agreed to see any patients sent to him by CPM, provided the patient was approved for assessment and/or treatment by the patient’s insurance company.

[4] Dr. Jacobs met the defendant, Ms. Kalaba, through her then boyfriend, Darryl Singer, and attended a meeting with Ms. Kalaba, Mr. Singer and two employees of Yeung and Associates to discuss a possible working relationship, whereby they could refer chronic pain patients to CPM for assessment or treatment and Dr. Jacobs would then do the chronic pain medical assessments if approved by the insurance company.

[5] The plaintiffs now bring a motion for summary judgment to dismiss the counterclaim of the defendants Dr. Jacobs and CPM. The plaintiffs contend that there is no genuine issue requiring a trial.

[6] The claim in this action was commenced on August 26, 2010 by way of statement of claim, in which damages were claimed from Dr. Jacobs for intentional interference with economic relations and loss of good will and reputation; and damages claimed from Ms. Kalaba, Dr. Jacobs and Lisa Eng, and injunctive and other ancillary relief.

[7] On September 9, 2010, the defendants, Dr. Jacobs and CPM, served a statement of defence and counterclaim in the action, denying the plaintiffs’ claim and counterclaiming against the plaintiffs for malicious prosecution, unlawful and unwarranted interference with Dr. Jacobs’ medical practice and other ancillary relief. It should be noted that the claim against Lisa Eng by the plaintiffs has been dismissed on consent and without costs.

[8] A motion for injunctive relief was brought by the plaintiffs and granted on August 26, 2010. The injunction was subsequently dismissed by Lauwers J. on April 1, 2011 and substantial indemnity costs were awarded against the plaintiffs. Those costs have been paid.

The Counterclaim

[9] In the main action, the parties have delivered affidavits of documents and the plaintiffs have been examined for discovery. As indicated above, the injunction matter has been dealt with other than the plaintiffs’ undertaking with respect to damages which is discussed further below.

[10] Dr. Jacobs, by way of counterclaim, seeks:

(a) general damages in sum of $250,000 for malicious prosecution;

(b) special damages for unlawful and unwarranted interference with his medical practice in an amount to be provided to the plaintiffs before trial;

(c) aggravated/exemplary damages in the sum of $250,000;

(d) prejudgment and post judgment interest in accordance with the Courts of Justice Act;

(e) costs of this proceeding on a substantial indemnity basis; and,

(f) such further and other relief as this Court deems just.

[11] With respect to the counterclaim of CPM, they seek the following against the plaintiffs jointly and severally:

(a) General damages in the sum of $250,000 for malicious prosecution;

(b) Special damages for unwarranted and unlawful interference with its medical practice in the sum of $203,016.37;

(c) Punitive/aggravated/exemplary damages in the sum of $250,000;

(d) Prejudgment and post judgment interest in accordance with the Courts of Justice Act;

(e) Costs of this proceeding on a substantial indemnity basis; and,

(f) Such further and other relief as this Honourable Court deems just.

The Position of the Plaintiffs (Defendants by Counterclaim)

[12] The plaintiffs make three main arguments:

(a) Even if this court deems it appropriate to dismiss the counterclaim, Dr. Jacobs and CPM may seek the enforcement of the damages undertaking from the injunction by way of application to the trial judge;

(b) There is no legal basis for the claims of malicious prosecution and unlawful and unwarranted interference as claimed, nor is there any evidence by way of affidavit or on examination that would support such claims; and,

(c) There is no evidence to support the damages claimed, given that the defendants (plaintiffs by counterclaim) must put their best foot forward. They have provided neither experts’ reports nor financial documentation to support damages in the amounts claimed.

[13] The defendants claim that Dr. Jacobs may have received clients from time to time from the plaintiffs for assessment and for treatment. The plaintiffs argue that this is insufficient by way of a factual underpinning for the claim as it is too speculative. Further, the plaintiffs point out that in the counterclaim, the defendant, Dr. Jacobs, sets out that he never did an assessment for any clients of the plaintiff. This is confirmed in his cross-examination. The plaintiffs argue that if Dr. Jacobs never did any work for the plaintiffs, it is impossible to determine how he can sustain a claim for damages in excess of $500,000.

[14] The counterclaim goes on to indicate that Dr. Jacobs suffered financial loss, particulars of which would be provided before trial. Again, the plaintiffs argue that this is unacceptable with respect to responding to a motion for summary judgment. Dr. Jacobs must put his best foot forward regarding financial loss. It is clear from his cross examination that he did not suffer any damages, as he continues to be successful and build his business.

[15] Paragraph 29 of the counterclaim indicates that the plaintiffs have improperly implicated Dr. Jacobs in these proceedings, knowing full well that he has done nothing to interfere with the relationship between themselves, their employees or their clients. It appears, according to the plaintiffs, that the defendants are relying on this action, including the injunction, as their basis for malicious prosecution. Again, that is improper according to the caselaw, as the undertaking for damages is meant to address this issue.

[16] Dr. Jacobs swore an affidavit in these proceedings on October 11, 2012. He notes at paragraphs 5 and 6 of the affidavit that he agreed to see patients sent to him by CPM, so long as they were approved for treatment by the insurance company. He would look to CPM for payment, but not to the plaintiffs. He never treated nor assessed any patients referred to CPM by the plaintiffs. Specifically, in paragraph 6 of his affidavit, Dr. Jacobs said, “once the approved assessment was conducted and a report of my findings completed, I would send the reports to CPM and would sent CPM an invoice for my services.” And in paragraph 10, “Payments I received from CPM were for assessment and/or treatments approved by the relevant insurance companies through CPM and none of these payments were related to any of the plaintiffs’ clients.”

[17] The plaintiff submits that their summary judgment motion has been outstanding for over a year. If the defendants truly felt that Dr. Jacobs was improperly included in this action, they had their remedies by way of a rule 20 or rule 21 motion. However, the defendants have not taken such steps.

[18] Dr. Jacobs indicates in paragraph 25 of his affidavit that, “as a result of the plaintiffs’ motion for an interlocutory injunction, I lost the prospect of assessing some of the plaintiffs’ clients who were expected to be approved for assessments”. Again, this period of time is covered by the undertaking for damages which may be dealt with by the trial judge.

[19] Dr. Jacobs also sets out in his affidavit that, as a result of the plaintiffs’ actions and sending various letters to insurance companies, his professional calling and trade has been affected. The plaintiffs respond that there is no defamation claim and no evidence of any damages in this regard. In fact, Dr. Jacobs’ cross examination indicates the opposite, as he confirms that he continues to practice medicine and currently has nine doctors at the Jacobs’ Pain Centre, a business which has grown since 2010. He agreed on questioning that it would be fair to say that he was a successful physician[^1].

[20] Dr. Jacobs claimed that he has been put to considerable financial expense, emotional distress and mental distress in dealing with the loss of his business. This is the factual underpinning for his claim for aggravated and exemplary damages with respect to unlawful and unwarranted interference with his medical practice. The plaintiffs argue that there is no evidence of such mental distress. Dr. Jacobs has provided no psychological report to support this by way of expert evidence. Further, his cross examination transcript indicates that he is continuing to grow his business and practice as a successful pain management physician.

[21] Finally, the plaintiffs argue that it is unclear from the pleadings, but it is likely that part of the foundation of the damages claimed by Dr. Jacobs is the letters sent to various patients by Yeung and Associates indicating that they no longer wish to be treated at CPM. There are three such letters at exhibit C to Dr. Jacobs’ affidavit. The first letter is to AXA insurance company, dated August 13, 2010 and copied to Dr. Jacobs. This letter indicated that the patient, J. Tsang, will no longer attend CPM for treatments and assessments. The second letter is also to AXA insurance company, dated August 24, 2010, and is copied to CPM. This letter contains a direction signed by the patient, J. Tsang, indicating he would no longer attend CPM for his treatments or assessment. A further letter, dated August 24, 2010, is sent to State Farm with respect to patient, D. Luo, and also contained a direction. Her direction to State Farm indicates that she also would no longer have assessments or treatments done by CPM.

[22] The plaintiff points out that there is nothing castigating in these letters with respect to Dr. Jacobs. It is simply a letter with a direction from the patient indicating what the patient has decided to do. It is impossible to determine, according to the plaintiffs, what damages may have been caused to Dr. Jacobs as a result of these letters. Further, such letters simply cannot support his assertions regarding mental distress.

[23] Dr. Jacobs also seeks special damages. It is, of course, imperative that particularization of special damages be given in order to support such a claim. There is no evidence of any such particulars. At its best and highest, the spreadsheet at exhibit G to Dr. Jacobs’ affidavit, is a form of financial information. However, the plaintiffs submitted that this cannot be relied upon for several reasons. First, the information was prepared by administrative staff at CPM’s office, according to the affidavit of Israel Schachter, dated October 15, 2012. Although Dr. Jacobs attaches this spreadsheet to his affidavit, he did not prepare it and it does not relate to him, but to CPM. Further, the documents on which the spreadsheet was based have not been provided, nor does it set out any net losses, only revenue without expenses.

[24] The plaintiffs also point to the affidavit of Israel Schachter, sworn October 15, 2012. Mr. Schachter is the chief executive officer of CPM and received the correspondence from the plaintiffs telling him to cease and desist from providing service to their clients. What his affidavit does not say is what arrangement he had with the plaintiffs. His affidavit indicates that he proposes to call expert witnesses at trial who will testify as to the usual practice in motor vehicle cases with respect to referral or treatment by injured parties and what happens if an insurer rejects a treatment plan. The plaintiffs argue that it is inappropriate for the defendants to indicate that they intend to provide expert evidence at a later date. Their opportunity to do so is at the motion for summary judgment, as they are required to put their best foot forward.

[25] At paragraph 14 of Mr. Schachter’s affidavit, he purports to set out CPM’s losses, although he does not particularize them. He indicates that their losses relate to loss of revenue for work already done and for continuing treatment of the plaintiffs’ clients, whose treatment was approved and would have continued but for the action of the plaintiffs. Further, as a result of the plaintiff’s action, CPM had to reduce staff, eventually go out of business and was left with a lease for which it had no further use. The plaintiffs argue that it is unreasonable for Mr. Schachter to take the position that he was receiving referrals exclusively from the plaintiffs and that that caused him to go out of business. Dr. Jacobs’ testimony was clear that physicians in his business receive referrals from many different sources on an ongoing basis. Mr. Schachter could have hired a litigation accountant to provide a damages assessment and cannot rely on a claim for damages based on revenue alone.

[26] Mr. Schachter was cross examined on his affidavit on October 11, 2012. The transcript is clear that Mr. Schachter was aware of the number of employees in his office[^2], and which law firms he received referrals from[^3]. He knew how much his staff were paid and what the approval rate was for assessments and treatment plans by insurance companies. He was well aware of the chances of being paid in that business. Further, Mr. Schachter has an MBA[^4] and indicated that he was able to make money in the business[^5]. Interestingly, Mr. Schachter indicates that he had to move out of his office premises when this “fiasco” happened because he didn’t have enough work to warrant keeping such a large space. However, he does not indicate in his evidence how much the lease was, nor has he particularized that as an out of pocket expense for his claim for special damages[^6].

[27] The plaintiffs submit that Mr. Schachter has had plenty of time to gather financial information which the plaintiffs ask the court to infer Mr. Schachter was familiar with and able to interpret due to his MBA education. He has had since 2010 to gather that information and make it available to particularize any claim for damages by CPM, but no such information was available to the court on the date of the motion.

[28] With respect to Dr. Jacobs’ cross examination; while he was relatively certain he had seen other patients referred by CPM, he did not see patients that emanated from Yeung and Associates[^7]. Dr. Jacobs also said that CPM was one of five or ten clinics that referred patients to him and agreed that not all of his eggs were in the “CPM basket”[^8].

[29] With respect to Dr. Jacobs’ arrangement with CPM, he did not describe it as a business relationship, but one in which he would do pain referrals from CPM. There was no written agreement and he never met Mr. Yeung[^9].

[30] Dr. Jacobs’ gave evidence on his cross examination that since 2010 he still receives referrals from patients from various clinics, family doctors, lawyers and insurance companies[^10]. He continues on with his medical practice and employs nine doctors at the Jacobs’ Pain Centre[^11].

Position of the Defendants (Plaintiffs by Counterclaim)

[31] The defendants submit that this matter began with the letter from the plaintiffs, dated August 11, 2010, telling CPM to cease and desist treating their clients. The plaintiffs’ employees met with Dr. Jacobs regarding client referrals and then suddenly asked them to stop. They then stopped paying. It is clear that the actions of the plaintiffs were intentional and malicious. They have received payment which they should not have as a result of terminating the referral arrangement. It is clear that Ms. Kalaba and others went to CPM and agreed to send them clients, which CPM later denied and said there was never any such agreement.

[32] The malicious prosecution relates to the application for injunction at the prior proceeding. It was terminated in favour of the defendants and therefore carries substantial weight. The malice also goes to the action for injunction commenced against CPM and Dr. Jacobs because the plaintiff never met Dr. Jacobs and they cannot possibly have any cause of action against either Dr. Jacobs or CPM. The basis for their damages claim is that an unmerited accusation has been made, which has caused severe emotional distress to Dr. Jacobs and expense to the defendants.

[33] The defendants claim that the issue began when Ms. Kalaba sued the plaintiffs in relation to her dismissal from their employment. The plaintiffs responded by overreacting and suing everyone. Malicious prosecution may not be restricted to criminal or administrative matters, but can also extend to civil matters. The plaintiffs are aware that there is no case against Dr. Jacobs and no reason to continue the case against him. They were improperly motivated to keep him in the action. He had a legitimate expectation of work and was deprived of that work. He will provide particulars before trial and has every right to do so. The amount of damages is something that can be proved at trial.

Legal Issues and Analysis

First Issue: Counterclaim for Malicious Prosecution

[34] The test for malicious prosecution is set out in Nelles v. Ontario[^12]:

There are four necessary elements which must be proved for a plaintiff to succeed in an action for malicious prosecution:

(a) The proceedings must have been initiated by the defendant;

(b) The proceedings must have terminated in favour of the plaintiff;

(c) The absence of reasonable and probable cause; and,

(d) Malice or a primary purpose other than that of carrying the law into effect.

[35] The only litigation that exists or has existed between the plaintiffs and the defendants is the within proceeding. The defendants argue that the termination of the injunction in their favour meets the first two parts of the test for malicious prosecution, in that the proceeding was initiated by the plaintiffs and terminated in favour of the defendants. The plaintiffs argued that, in fact, the motion for injunction was not a proceeding as defined by the Rules of Civil Procedure, which defines proceeding as being either an action or an application. A motion for injunction is neither.

[36] While there appears to be an absence of evidence with respect to the issue of reasonable and probable cause, it is this court’s view that the claim for malicious prosecution cannot proceed because it does not meet the test in relation to malice. The mere fact of including Dr. Jacobs and CPM as parties to this proceeding is insufficient to meet the test, in my view. Whether or not the claims against those parties are frivolous or untenable is not something to be dealt with by way of a claim for malicious prosecution in a counterclaim. If a trial court deems that those claims should be dismissed, the defendants can quite rightly seek costs on a higher scale as their more appropriate remedy.

[37] Further, the defendants have failed to satisfy me that there is intentional malice on the part of the plaintiffs sufficient to maintain a claim for malicious prosecution. The fact that a party disagrees that they should be the subject of a claim in a lawsuit is a matter that could be dealt with by way of motion on the part of Dr. Jacobs or CPM, if they felt that there was no evidence to support any claim against them. No such motion has been brought or contemplated, apparently, by the defendants. My view is that the claim for malicious prosecution must fail and that part of the counterclaim is therefore dismissed.

Second Issue: The Undertaking for Damages

[38] The defendants do not deny that the counterclaim relates to the undertaking for damages given in relation to the previous motion for an injunction. There is a legal issue as to whether or not an undertaking for damages is the proper subject of a counterclaim. The plaintiffs rely on John F. Renshaw (Canada) Inc. and Captiva Investments Limited[^13]. In that case, the defendants claimed damages by reason of the interim injunction and the undertaking for damages. The plaintiff moved for an order striking out the counterclaim on the ground that it disclosed no reasonable cause of action. The court held as follows:

In my opinion, the appropriate method for enforcing an undertaking is for the defendant to apply to the trial judge to permit him or her to prove the damages suffered by reason of the interim injunction: see Norstrant v. Drumheller (1920), 1920 483 (AB CA), 51 D.L.R. 373, [1920] 1WWR 818, 15 Alta.L.R. 558(S.C.App.Div.). It is then within the trial judge’s discretion whether or not to enforce the undertaking: AG Ontario v. Harry (1982), 1982 2127 (ON SC), 35 OR 2d 248 H.C.J.

[39] The plaintiffs also relied on Sherk et al v Horwoitz[^14] for the same proposition.

[40] I agree with the plaintiffs that the appropriate course of action as reiterated in the case law would be for the defendants to apply to the trial judge for an assessment of damages in relation to the injunction. The undertaking remains in existence and there is no reason for a trial judge not to consider that claim, if properly made by the defendants at trial and with notice to the plaintiffs.

Third Issue: Special Damages for Unlawful and Intentional Interference with Economical Relations

[41] There is some issue as to whether this counterclaim is properly framed. The law recognizes a claim for unlawful interference with economic relations and intentional interference with economic relations, rather than unlawful and intentional interference with economic relations. Be that as it may, the Court of Appeal has clearly set out what must be proven with respect to the evidence necessary to support those causes of action. In Alleslev-Krofschak v. Valcom Ltd.[^15], citing OBG v. Allan[^16]:

…intentional interference with economic relations requires that the defendant intends to cause loss to the plaintiff, either as an end in itself or the means of, for example, enriching himself. If the loss suffered by the plaintiff is merely a foreseeable consequence of the defendant’s actions, that is not enough.

[42] Therefore, in order to succeed with the counterclaim, Dr. Jacobs and/or CPM must establish that the plaintiffs intended to injure Dr. Jacobs and/or CPM. Applying the law to the evidence means that the defendants must be able to show, not only that their writing letters to the insurer would result in harm to Dr. Jacobs and/or CPM, but that the purpose of writing those letters was to create such harm. It is difficult to establish from the evidence that such an intention existed. For example, Dr. Jacobs implies that the plaintiffs’ intentions related more to Ms. Kalaba than to him, and that he was surprised to be included in the action when he felt that the real dispute was between the plaintiffs and Ms. Kalaba.

[43] As well, the plaintiffs complain that the defendants’ claim for special damages cannot be supported as it has not been particularized. The plaintiffs argue that there should be specific reference to items purchased or out of pocket expenses, with back up documentation before such a claim can be supported. The defendants take the position that they will provide such particulars prior to trial.

[44] I do not find that the evidence supports the test set out by the Court of Appeal with respect to this tort. There must be some evidence supporting an intention on the part of the plaintiffs that they intended to cause harm. The only possible harm would be amounts owed CPM for billed but unpaid assessments or possibly work in progress. Again, there is little reliable evidence in this regard. In any event, if such damages were suffered, they can be claimed by way of the undertaking for damages and particulars provided in that context.

Fourth Issue: Punitive and Aggravated Damages

[45] With respect to punitive and aggravated damages, the plaintiffs argue that there is no evidence to support that the plaintiffs should be punished and that if an assessment of damages pursuant to the undertaking results in the plaintiffs having to compensate the defendants, that would be sufficient. Going beyond that and requiring them to pay additional damages, does not fit within the factual underpinnings of this case.

[46] With respect to aggravated damages, those are usually awarded to compensate for the conduct related to the punitive damages. The plaintiffs argue that their conduct in this matter was far from attracting any form of aggravated damages. At its worst, the plaintiffs can be said to have sent a letter to CPM, which was copied to Dr. Jacobs, simply advising that their patients had provided a direction to them indicating they no longer wished to use the services of CPM.

[47] I agree with the plaintiffs with respect to the punitive and aggravated damages. The most bitterly contested dispute appears to be between the plaintiffs and Ms. Kalaba. While Dr. Jacobs and CPM take the position that they have suffered losses with respect to loss of opportunity and in CPM’s case, a failure to reimburse them for work in progress. Those matters can reasonably be fleshed out in the context of a damages assessment on the undertaking.

Fifth Issue: Test for Motion for Summary Judgment

[48] Rule 20.04(2)(a) permits the court to grant some summary judgment if it is satisfied there is no genuine issue requiring a trial with respect to a claim or a defence. Such a conclusion may be reached where the court is able to achieve a full appreciation of the evidence and issues in a way that permits the fair adjudication of the dispute[^17]. The case law is clear that the parties are required to put their best foot forward and not entitled to sit back and rely on the possibility that more favourable facts will develop at trial.

[49] In this case, the parties filed extensive motion records. The transcripts for the discovery of Mr. Yeung were also available to the court. In addition, the cross examination of Stephanie Turnham, Mr. Schachter and Dr. Jacobs were available and referred to extensively during the course of the motion. While very little financial material was filed by the defendants, it was clearly their choice not to do so.

[50] There is no doubt that the defendants have a claim for damages. In the context of the motion for summary judgment, the court is able to achieve a sufficiently full appreciation of the evidence to assist in the proper reformation of that claim.

Orders

[51] Given all of the evidence, the case law and the arguments submitted by the parties, the court is in a position to grant partial summary judgment in order to allow the issues to be narrowed and the case to move forward in an efficient manner.

[52] Given all of the above, I make the following orders:

(a) The defendants’ counterclaim for malicious prosecution by Dr. Jacobs and CPM is dismissed;

(b) The defendants’ counterclaim for punitive/aggravated/exemplary damages by CPM and aggravated/exemplary damages by Dr. Jacobs is dismissed;

(c) Dr. Jacobs’ counterclaim for special damages for unwarranted and unlawful interference with his medical practice is dismissed;

(d) CPM’s counterclaim for special damages for unwarranted and unlawful interference with its business is dismissed;

(e) The defendants are hereby given leave to amend their counterclaim with respect general and special damages related to the period of the injunction. They must serve and file the amended counterclaim within 30 days;

(f) The plaintiffs may serve an amended defence to the counterclaim within the usual time prescribed by the rules;

(g) Further discoveries to be held and amended affidavits of documents to be served in relation to the amended counterclaim and defence to counterclaim if required; and,

(h) If the defendants choose to amend their counterclaim as per (e) above, they must provide proper financial particulars (including documentation) of their counterclaim within 60 days of serving it.

[53] If the parties cannot agree on costs, I will receive written submissions commencing with the plaintiff on a seven day turnaround, commencing July 22, 2013. Cost submissions shall be no more than two pages in length, exclusive of any costs outline or offers to settle. All costs submissions shall be delivered via email through my assistant at jennifer.beattie@ontario.ca.

Justice C.A. Gilmore

Released: July 8, 2013

[^1]: Cross examination of Dr. Howard Jacobs on October 11, 2012, questions 168 to 170.
[^2]: Cross examination of Israel Schachter on March 28, 2013, page 6, question 26.
[^3]: Cross examination of Israel Schachter on March 28, 2013, page 8, questions 33 to 37.
[^4]: Cross examination of Israel Schachter on March 28, 2013, page 29, question 104.
[^5]: Cross examination of Israel Schachter on March 28, 2013, page 31, question 112.
[^6]: Cross examination of Israel Schachter on March 28, 2013, page 33, question 121.
[^7]: Cross examination of Dr. Howard Jacobs on October 11, 2012, page 16, question 76.
[^8]: Cross examination of Dr. Howard Jacobs on October 11, 2012, page 17, questions 78 and 79.
[^9]: Cross examination of Dr. Howard Jacobs on October 11, 2012, pages 19 and 20, questions 92 to 99.
[^10]: Cross examination of Dr. Howard Jacobs on October 11, 2012, page 23, questions 120 to 123.
[^11]: Cross examination of Dr. Howard Jacobs on October 11, 2012, page 31, questions 168 and 169.
[^12]: 1989 77 (SCC), [1989] 2 S.C.R. 170 (S.C.C.), at pages 192 – 193.
[^13]: 1989 4054 (ON SC), 70 O.R. 2d 458, H.C.J.
[^14]: [O.J. No. 2120] H.C.J.
[^15]: 2010 ONCA 557, [2010] O.J. No. 3548 O.C.A. at 50.
[^16]: [2008] 1AC1.
[^17]: Combined Air Mechanical Services Inc. v. Flesch, 2011 ONCA 764.