1870553 Ontario Inc. v. Kiwi Kraze Franchise Co. Ltd., 2015 ONSC 1632

COURT FILE NO.: 6777/13 (Milton)

DATE: 2015 03 12

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: 1870553 ONTARIO INC., ROHAN WANIGASEKERA AND ALISA WANIGASEKERA v. KIWI KRAZE FRANCHISE CO. LTD., KIWI KRAZE HOLDINGS LTD., 22645838 ONTARIO INC., MARK WIEBE AND ARI PSIHOPEDAS

BEFORE: EMERY J.

COUNSEL: Ben V. Hanuka, for the Plaintiffs

R. El-Tawil, for the Defendants

HEARD: December 10, 2014

ENDORSEMENT

[1] The plaintiffs, as franchisees, commenced this action against the Kiwi Kraze Franchise defendants for breaching the Arthur Wishart Act (Franchise Disclosure), 2000, S.O. 2000, c.3, as amended (the “Arthur Wishart Act”), and for misrepresentations made to induce them to purchase a Kiwi Kraze franchise. Within that action, the plaintiffs have brought a motion for summary judgment. And within that motion for summary judgment the plaintiffs and the defendants have brought competing motions that again raise a fundamental question: are responding parties to a motion for summary judgment entitled to call for the affidavit of documents of the moving party before taking various steps in the summary judgment process?

[2] There are two motions before the court. The plaintiffs, who are also defendants by counterclaim, seek an order setting a timetable for the defendants to deliver the responding materials to the motion for summary judgment within a specified time. The plaintiffs also seek an order as part of that timetable for the completion of cross-examinations and answers to undertakings in relation to the motion for summary judgment.

[3] The defendants seek an order that the plaintiffs produce an affidavit of documents prior to any requirement that they file responding materials to the plaintiff’s motion for summary judgment. Implicit in this position is the defendants’ request for the court to dismiss the plaintiffs’ motion.

A Brief History

[4] The plaintiffs are the franchisees who owned and operated a “Kiwi Kraze” restaurant in Vaughan, Ontario. The Kiwi Kraze defendants operate a start-up frozen yogurt restaurant franchise operation in Ontario, which includes selling franchises to franchisees. The plaintiffs purchased the Kiwi Kraze franchise from the Kiwi Kraze defendants in June of 2012.

[5] The Kiwi Kraze restaurant in Vaughan failed in 2013. On December 10, 2013, the plaintiffs commenced an action against the defendants. In the statement of claim, the plaintiffs allege that the defendants breached the obligations of a franchisor under the provisions of the Arthur Wishart Act, and made certain representations to the plaintiffs that were not true. The plaintiffs seek damages based on the defendants’ breaches of the Arthur Wishart Act for failure to disclose and for breach of the statutory duty of fair dealing, as well as misrepresentations made to them when they purchased the franchise.

[6] On March 18, 2014, the defendants delivered their defence and counterclaim. On April 28, 2014 the plaintiffs delivered the reply and defence to counterclaim.

[7] Nothing of significance transpired in the action until the plaintiffs served the motion record containing their motion for summary judgment in July 2014.

[8] On August 28, 2014, counsel for the parties agreed to the timetable for the plaintiff’s motion for summary judgment. Mr. Hanuka confirmed this timetable in a letter to Mr. Polvere dated August 28, 2014. Mr. Polvere is counsel for the Kiwi Kraze defendants. The timetable took into account Mr. Polvere’s commitment to a two month trial on another file in the fall of 2014:

a) The Kiwi Kraze defendants would serve their responding record by September 24, 2014;

b) the plaintiffs would serve reply materials by October 9, 2014;

c) the cross-examinations of all parties would be completed by November 28, 2014, or if Mr. Polvere’s other trial did not collapse, by December 17, 2014; and

d) the parties would then attend to the scheduling of the motion on a long motion return date after the above steps had been completed.

[9] The Kiwi Kraze defendants did not deliver their responding material to the plaintiffs’ motion for summary judgment by September 24, 2014. Instead, Mr. Polvere sent an email to Mr. Hanuka on September 24, 2014 to advise that he expected to meet with his clients the following week, and to have the responding materials to him by October 1, 2014. I am of the view that Mr. Polvere implicitly accepted the terms of the timetable by this email when he spoke of finalizing his clients’ responding materials, even though he extended the date to have those responding materials to Mr. Hanuka and the date to receive reply materials, if necessary. I consider that the timetable for the service of responding and reply materials and the conduct of examinations on the plaintiffs’ motion for summary judgment was sufficiently established by written agreement of the parties to satisfy the meaning of the word “timetable” as a defined term under Rule 1.03.

[10] When the responding materials did not arrive, Mr. Hanuka sent Mr. Polvere an email on October 8, 2014 to request that the materials be delivered no later than October 10, 2014.

[11] On October 10, 2014, Mr. Polvere advised Mr. Hanuka for the first time that Kiwi Kraze would not be delivering responding materials without first receiving the plaintiffs’ affidavit of documents. Kiwi Kraze claimed that it would be unable to “finalize” its responding materials without receiving the plaintiffs’ affidavit of documents because there “may be” a number of documents in the plaintiffs possession that “may be” necessary to make that response.

[12] October 10, 2014 was the first time that the defendants placed any conditions on delivering their responding materials to the plaintiffs’ motion for summary judgment. It was also the first time that counsel for the defendants had raised the requirement of an affidavit of documents from the plaintiffs as an issue on the motion for summary judgment.

[13] On October 20, 2014, counsel for the defendants emailed an affidavit of documents listing 42 documents to counsel for the plaintiffs.

[14] On October 21, 2014, Mr. Hanuka wrote an email to Mr. Polvere in response to the email attaching the defendants’ affidavit of documents. In that email, Mr. Hanuka stated:

We will not be able to proceed this way. I am preparing a response letter to you. We have agreed upon timetable[sic-after you have had our materials for a considerable amount of time. We are in the process of looking for chamber appointment dates to have judicial oversight of this process.

[15] On October 24, 2014, Mr. Hanuka followed up with a letter to Mr. Polvere setting out the chronology of events with respect to the timetable and allegations of Kiwi Kraze’s breach of that timetable. This letter also addressed the issue of Mr. Polvere’s subsequent request on behalf of Kiwi Kraze for an affidavit of documents. The letter ended with a request that Kiwi Kraze serve responding materials by October 31, 2014.

[16] Mr. Polvere responded to Mr. Hanuka in a letter dated October 31, 2014. Mr. Polvere took issue with the tone of Mr. Hanuka’s letter of October 24, 2014. There were no responding materials served on behalf of the defendants in that letter or by that date.

[17] There is no evidence that counsel for the parties have discussed any proposed terms of a discovery plan, let alone agreed upon a discovery plan in this action.

Analysis

[18] As a preliminary matter, the defendants state that the plaintiffs have not filed the motion for summary judgment in order to bring this motion for a timetable. I take it from this argument that they mean the motion for summary judgment is not properly before the court.

[19] Rule 37 of the Rules of Civil Procedure governs the jurisdiction and procedure for the bringing of motions. The service of a notice of motion and the filing of that notice of motion are governed by separate and distinct subrules. Rule 37.07 provides that where a motion is made on notice, the notice of motion shall be served at least seven days before the date on which the motion is to be heard. Rule 37.08 provides that where motion is made on notice, the notice of motion shall be filed with proof of service at least seven days before the hearing date in the court office where the motion is to be heard. These subrules are directed to different aspects of how a motion is brought.

[20] It is my view that the Rules of Civil Procedure do not specifically require that a motion record containing a notice of motion for summary judgment be filed with the court with proof of service at the same time or immediately after service of that motion. What a party must comply with are the filing requirements for the motion. Any motion that has been served on an adverse party but not filed with the court can be the basis for a step seeking the compliance with an obligation owed by an opposite party with respect to that motion under the Rules of Civil Procedure. Like a request to admit, or a demand for particulars that need not be filed beforehand to be effective or enforceable, a notice of motion with supporting evidence may be served to initiate a process under the Rules of Civil Procedure. This includes the enforcement of any scheduling or agreement regarding a timetable by counsel for either party.

[21] Even if the main motion had already been filed with the court, it is unlikely that either party would have been brought that motion before the court with the timetable motion because of the possible triggering of a number of other procedural considerations, such as the requirement to file a factum on the Rule 20 motion. If it is not necessary to have the main motion before the court, it is difficult to see why the Kiwi Kraze defendants would make it an issue that it has not been filed.

[22] Generally, where a motion has been served but not yet filed, it is helpful if counsel includes the notice of motion for summary judgment with related materials relevant to any motion to enforce a schedule or timetable. This not only makes sense to provide a substantive context for the scheduling motion, but also serves the purpose behind Rule 37.10(2) to put the proper contents of the motion before the court.

[23] I note that the plaintiffs have included in the motion record a copy of the table of contents for its motion for summary judgment, the notice of motion and the affidavit of Alisa Wanigasekera sworn on July 7, 2014, without exhibits.

[24] The plaintiffs’ motion seeks an order requiring the defendants to serve responding materials to their motion for summary judgment by a specified date. They seek this order to enforce the timetable for the service of responding and reply materials and dates by which examinations will be conducted pursuant to the agreement between the parties on August 28, 2014. In their factum, the plaintiffs rely upon Rule 3.04(4) for the court to make this order.

[25] The defendants seek an order on the cross-motion to require the plaintiffs to serve an affidavit of documents before they are required to serve responding materials to the plaintiffs’ motion for summary judgment. The defendants rely upon Rule 30.03 as the basis for this motion.

[26] The competing interests on the motions before the court are focused on what the Kiwi Kraze defendants as responding parties require to put their best foot forward to show that there is a genuine issue requiring a trial. The first question to ask is whether the defendant’s ability to do so is compromised if they are entitled to disclosure of the plaintiffs’ documents through an affidavit of documents, and that entitlement has been denied. In order to determine this question, the defendants must establish that they have rights under the Rules of Civil Procedure to require that the plaintiffs serve an affidavit of documents at this stage. The second question is whether the defendants are entitled to documentary disclosure in the absence of a discovery plan or any other basis of entitlement to disclosure.

[27] The plaintiffs served their motion for summary judgment after the defendants had delivered a statement of defense as permitted under Rule 20.01. The procedure for bringing a motion for summary judgment under Rules 20.01, 20.02 and 20.03 does not contemplate the service or exchange of an affidavit of documents by each of the parties.

[28] It is important to note that Rule 30.03 formerly contained an obligation on the part of each party to an action to serve an affidavit of documents on the other within 10 days after the close of pleadings. This requirement was removed from Rule 30.03 with the amendments to the Rules of Civil Procedure that came into effect on January 1, 2010. The discovery process is now governed by the discovery plan regime set out in Rule 29.1. Rule 29.1.03 provides that where a party to an action intends to obtain evidence under specified rules that include discovery of documents under Rule 30, the parties to an action shall agree to a discovery plan in accordance with this rule.

[29] Further, Rule 29.1.03(2) speaks to the timing for an agreed upon discovery plan. The discovery plan shall be agreed upon before the earlier of 60 days after the close pleadings or such longer period as the parties may agree to, and attempting to obtain the evidence a party expects to obtain through the discovery plan process.

[30] Each of the parties considers its rights to be at stake if the motion of the adverse party is granted. The plaintiffs seek an order to expedite the delivery of responding materials without first serving an affidavit of documents. They consider this step to be expensive and unnecessary for the proper determination of the action on the merits. They also say that the law does not recognize that an affidavit of documents must be served within a specified time after the close of pleadings as was formerly the case under Rule 30.03, or as part of the process to bring a motion for summary judgment.

[31] The defendants consider the discovery of documents to be necessary to provide the proper context for a fair consideration of the merits of the plaintiffs’ motion for summary judgment. The defendants argue that the plaintiff is seeking $560,000 in damages for rescission of the franchise agreement based on allegations of misrepresentation and breach of the defendants’ disclosure obligations and duty of fair dealing under the Arthur Wishart Act. They argue that they are entitled to know the case they have to meet. They want to know what documents the plaintiffs have in their possession in order to make full answer and defense on the motion for summary judgment.

[32] The Supreme Court of Canada in the case of Hryniak v. Mauldin, 2014 2014 SCC 7, changed the approach to summary judgments in Ontario. The court in Hryniak clearly recognized that under the change to the Rules in 2010, motions for summary judgment are just as viable a route for the court to adjudicate civil actions as the conventional trial process. The court recognized that summary judgment provides a fair process that is better suited for a civil dispute if it is proportionate to the subject matter, and provides the parties with a process that is more timely and affordable than the traditional process of having a trial. The court called for a “culture shift” in the mindset of all participants in the civil justice system to embrace summary judgment motions as a realistic alternative, to improve access to justice for litigants in Canada.

[33] On a motion for summary judgment, the court shall grant summary judgment under Rule 20.04(2)(a) if the court is satisfied there is no genuine issue requiring a trial with respect to a claim or defence. The moving party bears the onus of showing that there is no genuine issue requiring a trial. If the moving party makes its prima facie case, the evidentiary burden then shifts to the defendants as the responding parties to show that there is a genuine issue by setting out specific facts in an affidavit or through other evidence.

[34] In order to determine whether the defendants’ ability to put their best foot forward is compromised if the plaintiff does not first serve an affidavit of documents, it is necessary to examine the nature of the claims the plaintiffs are making in the action. Although the action seeks damages in the amount of $560,000, the plaintiffs argue that the claim is really a nondisclosure claim under the Arthur Wishart Act that would allow rescission of the franchise agreement. If that breach is found to have occurred and rescission is ordered, the defendants would theoretically be ordered to repay the franchise fee paid by the plaintiffs. The component of the plaintiffs’ claim framed as misrepresentation seeks damages of $50,000. It is open for the court on a motion for summary judgment to grant all or part of a claim, and to impose terms on that part of the claim for which summary judgment is refused in whole or in part under Rule 20.05.

[35] The plaintiffs rely on Fehr v. Sun Life Assurance Co. of Canada, 2014 ONSC 2183 as authority for their position that there is no legal basis for the court to order that they serve an affidavit of documents before the motion for summary judgment is heard.

[36] The decision in Fehr was really a motion for directions in the context of a class-action proceeding. Justice Perell recognized in Fehr that the requirement for the automatic delivery of an affidavit of documents within ten days after the close of pleadings is no longer the case under the amendments to the Rules of Civil Procedure that took effect on January 1, 2010. Now, the parties and the court decide when an affidavit of documents is to be served by one or both parties. Cases such as Bank of Montréal v. Negin (1996), 1996 CanLII 1548 (ON CA), 95 O.A.C. 230, 31 O.R. (3d) 321 (Ont. C.A.) decided under the former rule must also be read as distinguishable because of the rule change.

[37] The defendants rely upon the decision in McLelland v. Farquhar Plymouth Chrysler Ltd., 2013 ONSC 1216, 2013 CarswellOnt 1988, to support their motion to compel the plaintiffs to deliver an affidavit of documents before the motion for summary judgment is heard. The McLelland case relied upon Natural Resource Gas Ltd. v. IGPC Ethanol Inc., 2011 ONSC 3529 (Ont. S.C.J.), 2011 CarswellOnt 4523. The court in McLelland also reviewed the law under Bank of Montréal v. Negin and also Cole v. Hamilton (City), (1999), 1999 CanLII 14820 (ON SC), 1999 CarswellOnt 1443, 45 O.R. (3D) 235 (Ont. Gen. Div.). Those decisions were rendered prior to the changes to 30.03 that came into effect on January 1, 2010 with many other amendments to the Rules of Civil Procedure.

[38] It is important to note that the court in McLelland was deciding a motion by the plaintiffs to compel further disclosure from the defendants and to prevent those defendants from bringing their motion for summary judgment until the plaintiffs had completed all forms of discovery. It is clear from the facts set out in McLelland that prior to the service of the motion for summary judgment, counsel for the plaintiffs had sought an affidavit of documents together with all documents relevant to the discoverability issue, as well as copies of all insurance policies. Counsel for the plaintiffs had requested a further affidavit of documents because of evidence revealing perceived shortcomings in the initial affidavit of documents. There were examinations for discovery agreed upon by counsel. It was after all these requests were made that counsel for the defendant informed plaintiff’s counsel that she had instructions to move for summary judgment.

[39] I do not know if the parties in McLelland had actually agreed to a discovery plan. However, many of the constituent ingredients that would go into a discovery plan were agreed upon in one form or another between the parties. If counsel in McLelland had not agreed to a discovery plan in form, it would appear they had agreed to a discovery plan in substance. When the court found that the plaintiff had a right to disclosure under the Rules of Civil Procedure and that those rights were not suspended in the face of a pending or contemplated motion for summary judgment, the court found it was appropriate to require the defendants to make the disclosure the plaintiffs required to properly respond to the motion.

[40] I find that the facts in McLelland readily distinguish it from the circumstances between plaintiff franchisees and the Kiwi Kraze defendants here.

[41] Justice Perell noted in the Fehr decision that the provisions of Rule 20.05(2) give broad powers to the court where a motion for summary judgment is refused, or granted only in part and the action is ordered to proceed to trial. In those circumstances, Rule 20.05(2)(a) specifically provides the court with the discretion to order a party to deliver an affidavit of documents within a specified time. Justice Perell states that “this rule, in effect, acknowledges that an affidavit of documents is not a prerequisite for a summary judgment motion but may follow an unsuccessful or partially unsuccessful summary judgment motion”.

[42] I read Fehr as saying that there is no entitlement under the Rules of Civil Procedure for one party to seek an affidavit of documents from another in the face of a pending motion for summary judgment and in the absence of a discovery plan.

[43] There is no evidence before me that there was any discussion between counsel for the defendants and counsel for the plaintiffs to serve an affidavit of documents at any time, let alone after discussing the timetable for the plaintiffs motion for summary judgment. The time making efforts and expressing intentions to obtain evidence through a discovery plan under Rule 29.1.03 had not yet run because the parties had never agreed upon a discovery plan. In my view, the defendants are not entitled to ask this court for an order imposing a discovery plan on the plaintiffs or an order requiring the plaintiffs to serve an affidavit of documents prior to delivering the responding materials to the motion for summary judgment.

[44] In answer to the first question, the ability of the defendants to put their best foot forward is not compromised for having to respond to the motion with first receiving the plaintiffs’ affidavit of documents because they have no right to demand it without a discovery plan in place.

[45] Justice Perell noted in Fehr that a responding party has a right to cross-examine affiants and to summons witnesses who could be in a position to produce relevant documents. I would add that responding parties to a motion have full recourse to all means available under the Rules of Civil Procedure to seek relevant documents that would enable them to put their best foot forward on the motion for summary judgment. Such means would include not only rights to conduct examinations under Rule 39, but also the right to require those persons to bring with them documents that were listed in a Notice of Examination under Rule 34.10 and the various applications of a request to inspect documents under Rule 30.04. In my view, the benefit of timely and affordable justice relies upon the exercise of information gathering rights that are proportionate to the issues on the motion and the case itself. To default back to the traditional means of disclosure that are de riguer for the conventional trial process seems contrary to the policy direction mandated by the Supreme Court in Hryniak.

[46] The issues in Stantec Consulting Ltd. v. Altus Group Ltd., 2014 ONSC 6111 closely resemble the issues on the motions before me. In Stantec, the defendants had brought a motion for summary judgment and the plaintiff was seeking an order for discovery dates. The defendants had refused to produce an affidavit of documents or to subscribe to the plaintiffs proposed discovery plan. In the motion for directions, the plaintiff was seeking an order requiring that an affidavits of documents be exchanged at examinations for discovery completed prior to the court hearing the defendants’ motion for summary judgment.

[47] In Stantec, the motion for summary judgment was focused on a specific contract governing the relations between them. The action was focused on allegations that the defendants were liable for engaging in tortious conduct, and had breached the governing contract to cause damages to the plaintiffs.

[48] The court in Stantec found the matters raised by the defendants in their motion for judgment to be fundamentally uncomplicated. There was no evidence put forward by the plaintiffs as to why discoveries were necessary at that juncture. Justice Chapnik found that the discovery process would be supplemental to the disclosure and cross-examination process that would no doubt be conducted pursuant to the process that summary judgment motions follow. She found there to be no reason to conclude the plaintiff would be deprived of relevant documents it needed to put its best foot forward to resist the defendants’ motions. Justice Chapnik also found, as did Justice Perell in Fehr, that Rule 20.05(2) provides the court with tools to fashion a focused and streamlined discovery and trial process for any part of the of the motion for summary judgment that is refused in whole or in part, including the delivery of an affidavit of documents.

[49] I agree with the reasons given by Justice Chapnik in Stantec, and find them applicable to the circumstances on these motions. The largest part of the action, and on the plaintiffs’ motion for summary judgment concerns what documents and other information the Kiwi Kraze defendants did not disclose to the plaintiffs in breach of the Arthur Wishart Act. The basis of the claim in that regard is what documents the Kiwi Kraze defendants held back, not what those defendants gave over to the plaintiffs in the transaction. The defendants have the means to seek documents and to examine witnesses available on a motion under the Rules. Seeking an affidavit of documents, even if otherwise permitted, would be supplemental to those other means for obtaining evidence and, in my view, inconsistent with the modern approach to summary judgment motions.

[50] In answer to the second question, the defendants are not deprived of a fair opportunity to obtain evidence to oppose the plaintiffs’ motion for summary judgement without the plaintiffs’ affidavit of documents. The defendants have all fact finding procedures germane to motions generally and to motions for summary judgment in particular under the Rules for collecting facts and requiring the production of documents.

[51] What the court has here is a failure between counsel for the parties to communicate. Instead of a discovery plan, the parties negotiated a timetable for the orderly progress of the plaintiffs’ motion for summary judgement. At the fork in the road marked by service of the plaintiffs motion for summary judgment, the parties embarked on the process relative to a motion for summary judgment by agreeing to a timetable. In keeping with the Hryniak decision, this timetable is proportionate to the task of bringing and opposing the motion. It is distinct from the process for collecting facts and documents that leads to a conventional trial. To ask for an affidavit of documents from the plaintiffs after agreeing to a timetable for the delivery of responding materials to the motion is to regret the road not taken.

[52] It is a principle of general application for the Rules of Civil Procedure, set out in Rule 1.04(1), that the rules shall be liberally construed to secure the just, most expeditious and least expensive determination of every civil proceeding on its merits. This consideration is paramount to the interpretation and application of the rules to any motion brought by the plaintiffs or the defendants in this action.

[53] The plaintiffs ask the court to exercise the power given by Rule 3.04(4) to make such an order as is just to enforce the timetable against the Kiwi Kraze defendants. A timetable is defined under Rule 1.03 of the Rules of Civil Procedure to mean a schedule for the completion of one or more steps required to advance the proceeding. A schedule can include dates for the delivery of affidavits of documents, examinations under oath, or motions that are established by an order of the court or by written agreement of the parties.

[54] Rule 3.04(4) allows a party to bring a motion where another party has failed to comply with a timetable. Rule 3.04(4) emphasizes the importance the courts are placing on the enforcement of scheduling events and timetables for motions reached by agreement or ordered by the court. It empowers a judge to make an order on motion in the event of noncompliance, including orders that mirror the relief for noncompliance with an interlocutory order under Rule 60.12.

[55] If Rule 3.04(4) is currently under-utilized, it is only a matter of time until litigants and their counsel recognize its potential and seize the day by proposing schedules for agreement between parties to move litigation along, or finding opportunities to ask the court to impose a timetable that suits the intended purpose. In view of the powers given to the court to enforce a timetable, parties who fail to comply with any step or deadline set by a timetable do so at their own peril.

[56] The plaintiffs seek an order to advance the action by requiring the defendants to serve responding materials according to a timetable so that the court is able to hear the motion for summary judgement on the merits.

[57] For the above reasons, the motion of the plaintiffs is granted. There shall be an order to enforce the steps agreed upon by counsel for the parties on August 28, 2014, except with new milestone dates. The defendants shall serve their responding materials to the plaintiffs’ motion for summary judgment by March 27, 2015. The plaintiffs shall then have until April 10, 2015 to serve reply materials. The examination of any witnesses with knowledge on the pending motion shall be examined under Rule 39.03 by April 24, 2015 and all cross-examinations shall be completed by May 8, 2015, including answers to undertakings in relation to the motion for summary judgment.

[58] The motion of the defendants for an order that the plaintiffs serve an affidavit of documents before the hearing of the motion for summary judgment is dismissed.

[59] The plaintiffs may file written submissions if they seek costs consisting of no more than three typewritten pages, not including a costs outline or bill of costs by March 27, 2015. The defendant shall then have until April 10, 2015 to file responding written submissions on costs, subject to the same limits. All cost submissions may be filed by fax to my judicial assistant, Sherry McHady, at 905-456-4834.

Emery J

DATE: March 12, 2015

COURT FILE NO.: 6777/13 (Milton)

DATE: 2015 03 12

SUPERIOR COURT OF JUSTICE

ONTARIO

RE: 1870553 ONTARIO INC., ROHAN WANIGASEKERA AND ALISA WANIGASEKERA

V.

KIWI KRAZE FRANCHISE CO. LTD., KIWI KRAZE HOLDINGS LTD., 22645838 ONTARIO INC., MARK WIEBE AND ARI PSIHOPEDAS

COUNSEL: Ben V. Hanuka, for the Plaintiffs

R. El-Tawil, for the Defendants

ENDORSEMENT

EMERY J

DATE: March 12, 2015