Madisen v. Nindon Investments Ltd. et al.

[Indexed as: Madisen v. Nindon Investments Ltd.]

Ontario Reports

Ontario Superior Court of Justice,

Ellies J.

June 19, 2015

126 O.R. (3d) 611 | 2015 ONSC 3786

Case Summary

Civil procedure — Dismissal for delay — Setting aside — Action dismissed for delay by administrative order — Plaintiff establishing that she had always intended action to proceed — Plaintiff failing to provide satisfactory explanation for delay but that failure not determinative — Plaintiff's lawyer missing deadline through inadvertence — Lawyer not receiving status notice — Plaintiff rebutting presumption of prejudice to defendants and establishing that defendants had suffered no significant prejudice as result of delay — Order dismissing action set aside.

The plaintiff commenced an action for damages arising out of a workplace accident in November 2007. Matters proceeded slowly, and several status hearings were held. In May 2012, a consent order was issued requiring that the examinations for discovery of the defendants be held within six months. The examinations for discovery never took place. In August 2014, the plaintiff's lawyer learned that the action had been dismissed by the registrar in March 2013. The plaintiff brought a motion to set aside the order dismissing the action.

Held, the motion should be granted.

The plaintiff had established that she always intended the action to proceed. She had failed to establish that she reasonably assumed that the action was proceeding without undue delay or that she made any appropriate inquiries of her lawyer about the delay. She failed to provide a satisfactory explanation for the delay. However, that failure was not determinative. The plaintiff had adduced uncontradicted evidence from her lawyer that he missed the deadline due to inadvertence. Moreover, her lawyer never received the status notice. The plaintiff had rebutted the presumption of prejudice to the defendants and had demonstrated that the defendants had suffered no significant actual prejudice as a result of the delay. The defendants had immediate notice of the accident and ample opportunity to investigate it. On balance, the dismissal order should be set aside.

Reid v. Dow Corning Corp., [2002] O.J. No. 3414, 48 C.P.C. (5th) 93, 134 A.C.W.S. (3d) 751 (Div. Ct.), revg [2001] O.J. No. 2365, [2001] O.T.C. 459, 11 C.P.C. (5th) 80, 105 A.C.W.S. (3d) 649 (S.C.J.); Scaini v. Prochnicki (2007), 85 O.R. (3d) 179, [2007] O.J. No. 299, 2007 ONCA 63, 219 O.A.C. 317, 39 C.P.C. (6th) 1, 154 A.C.W.S. (3d) 1075, apld

Other cases referred to

Askaryar v. Toronto (City) Police Services Board, [2014] O.J. No. 2307, 2014 ONSC 2900 (Master); Clairmonte v. Canadian Imperial Bank of Commerce, 1970 CanLII 470 (ON CA), [1970] 3 O.R. 97, [1970] O.J. No. 1506, 12 D.L.R. (3d) 425 (C.A.); Fraitekh v. Demoe, [2011] O.J. No. 816, 2011 ONSC 965, 17 C.P.C. (7th) 148, 197 A.C.W.S. (3d) 1006 (Master); Hamilton (City) v. Svedas Koyanagi Architects Inc. (2010), 104 O.R. (3d) 689, [2010] O.J. No. 5572, 2010 ONCA 887, 271 O.A.C. 205, 328 D.L.R. (4th) 540, 97 C.L.R. (3d) 1, 2 C.P.C. (7th) 114, 199 A.C.W.S. (3d) 1122; [page612] Marché D'Alimentation Denis Thériault Ltée v. Giant Tiger Stores Ltd. (2007), 87 O.R. (3d) 660, [2007] O.J. No. 3872, 2007 ONCA 695, 47 C.P.C. (6th) 233, 286 D.L.R. (4th) 487, 247 O.A.C. 22; R. v. McCallen (1999), 1999 CanLII 3685 (ON CA), 43 O.R. (3d) 56, [1999] O.J. No. 202, 116 O.A.C. 308, 131 C.C.C. (3d) 518, 22 C.R. (5th) 103, 59 C.R.R. (2d) 189, 41 W.C.B. (2d) 19 (C.A.); Wellwood v. Ontario (Provincial Police) (2010), 102 O.R. (3d) 555, [2010] O.J. No. 2225, 2010 ONCA 386, 262 O.A.C. 349, 90 C.P.C. (6th) 101, 191 A.C.W.S. (3d) 774

Rules and regulations referred to

Rules of Civil Procedure, R.R.O. 1990, Reg. 194, rules 37.14(1), 48.14, 48.15(5)

MOTION to set aside an order dismissing an action.

Michael C. Birnie, for plaintiff.

Gary J. Marcuccio, for defendants.

[1] ELLIES J.: — The plaintiff moves under rules 48.15(5) and 37.14(1) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 to set aside the registrar's order dismissing her action. The central issues raised in this motion are whether the plaintiff has satisfactorily explained the delay in the action and whether the defendants have suffered prejudice as a result of that delay. In my view, the motion should be allowed. Although the plaintiff has not satisfactorily explained the delay, the defendants have suffered no prejudice as a result of it.

Background

[2] The plaintiff fell on a set of stairs at her place of employment on November 30, 2001. The premises were owned by the defendant Nindon Investments Ltd. and were leased to the plaintiff's employer, London Life. The defendants Donald Dubytz and Ning Low were directors of Nindon at the time.

[3] Although the plaintiff retained a lawyer in late 2001 or early 2002, that lawyer did not commence an action on the plaintiff's behalf until November 27, 2007, just a few days before the six-year limitation period expired. The notice of action and statement of claim were served on the defendants on May 14, 2008, just inside of the six-month period provided for doing so in the Rules of Civil Procedure.

[4] Very little happened in the lawsuit until a status notice dated January 17, 2011 was served on the parties by the registrar under rule 48.14. A status hearing was requested and one was scheduled for April 29, 2011. On that date, the presiding judge ordered that examinations for discovery were to take place on August 18 and 19, 2011, and adjourned the status hearing to November 4, 2011.

[5] The judge's endorsement of April 29 also indicated that the plaintiff's original lawyer was anticipating a motion to be removed as solicitor of record. That motion was eventually [page613] brought, and on June 16, 2011, the day before the motion was to be heard, the plaintiff's present counsel (not counsel on this motion) became lawyer of record.

[6] Between June 16, 2011, and August 18, 2011, the lawyers for the parties exchanged draft affidavits of documents, with counsel for the plaintiff providing copies of the documents listed in Schedule "A" to his client's affidavit.

[7] The plaintiff's examination for discovery proceeded on August 18 or 19,[^1] 2011, as ordered. However, the plaintiff's lawyer wished to obtain further documents before he examined the defendants. Therefore, that discovery did not take place as planned.

[8] Prior to November 4, 2011, the status hearing that was set for that date was adjourned by the registrar to November 25, 2011. However, for some reason that has not been explained in the evidence, the status hearing did not take place on November 25. Instead, it was held on February 3, 2012, at which time it was adjourned, once again, to May 18, 2012.

[9] On May 18, 2012, an order was issued, on consent, adjusting the timeline of the approaching dismissal to November 30, 2012, and requiring that the examinations for discovery be held within six months.

[10] The examinations for discovery never took place. The only further step that plaintiff's counsel took between May 18, 2012 and November 30, 2012 was to send the defendants' lawyer a copy of certain medical records relating to the plaintiff.

[11] On August 12, 2014, the plaintiff's lawyer learned that his client's action had been dismissed by the registrar on March 8, 2013.

[12] This motion was commenced by way of a notice of motion dated September 26, 2014, returnable for the first time on December 5, 2014.

Issues

[13] The parties agree that the appropriate analytical framework with respect to the plaintiff's request is that set out by Master Dash in Reid v. Dow Corning Corp., [2001] O.J. No. 2365, 11 C.P.C. (5th) 80 (S.C.J.), revd [2002] O.J. No. 3414, 48 C.P.C. (5th) 93 (Div. Ct.), and modified by the Ontario Court of Appeal [page614] in Scaini v. Prochnicki (2007), 85 O.R. (3d) 179, [2007] O.J. No. 299, 2007 ONCA 63.

[14] In Reid, at para. 41, Master Dash listed four "criteria" which had to be satisfied by a plaintiff seeking to set aside an administrative dismissal, namely:

(1) a satisfactory explanation for the litigation delay;

(2) inadvertence in missing the deadline;

(3) promptness in bringing the motion to set aside; and

(4) no significant prejudice to the defendant as a result of the delay.

[15] As I will explain, in Scaini, the Court of Appeal held that the plaintiff need not succeed on all four criteria. For that reason, it is preferable to think of them as factors to be considered, rather than as criteria to be satisfied. This list is not exhaustive, but these factors are likely to be of central importance in most cases: see Scaini, at para. 34; and Hamilton (City) v. Svedas Koyanagi Architects Inc. (2010), 104 O.R. (3d) 689, [2010] O.J. No. 5572, 2010 ONCA 887.

[16] The parties also agree that this motion to set aside the dismissal order was brought promptly after the plaintiff's lawyer discovered his client's claim had been dismissed. Therefore, the remaining issues are comprised of the three other Reid factors.

Analysis

Explanation for the delay

[17] In Reid, Master Dash wrote as follows with respect to this factor, at para. 41:

Explanation of the Litigation Delay: The plaintiff must adequately explain the delay in the progress of the litigation from the institution of the action until the deadline for setting the action down for trial as set out in the status notice. She must satisfy the court that steps were being taken to advance the litigation toward trial, or if such steps were not taken to explain why . . . The plaintiff could explain that the action was stalled due to the inattention or negligence of her solicitors which was contrary to her own instructions or expectations . . . If either the solicitor or the client made a deliberate decision not to advance the litigation toward trial then the motion to set aside the dismissal will fail.

[18] While the decision in Scaini casts some doubt as to whether a deliberate decision not to advance the litigation will always be fatal to the motion, it is hard to imagine a scenario [page615] where such a decision would not substantially impair a plaintiff's efforts to revive a lawsuit dismissed for delay.

[19] I agree with the submission made by counsel for the plaintiff that this factor actually involves two separate considerations. First, it must be determined whether the solicitor or the client made a deliberate decision not to advance the litigation. If so, this factor will weigh against the plaintiff. If a deliberate decision was not made, the court must go on to consider the conduct of both the plaintiff and her lawyer in moving, or failing to move, the action forward.

[20] In my view, the plaintiff has satisfactorily established that no deliberate decision was made not to advance her claim. Both the plaintiff and her lawyer have filed affidavits. In his affidavit, the plaintiff's lawyer deposes, at para. 36, that "[a]t no time did the plaintiff ever provide me with any indication that she did not want, or did not intend, to pursue her claim for damages arising out of this slip and fall accident."

[21] He further deposes, at para. 52(a), that "[t]he Plaintiff's instructions to me have always been, and continue to be, to pursue her claim for damages for personal injuries . . .".

[22] In her affidavit, the plaintiff deposes, at para. 10, that "[i]t has always been my intention to proceed with my claim . . .".

[23] Neither affiant was cross-examined on this evidence, nor has it been challenged by the defendants.

[24] This part of the two-step process having been resolved in favour of the plaintiff, I now proceed to the second part of the enquiry, namely, the conduct of the plaintiff and her lawyer.

[25] Counsel for the defendants contends that it is the plaintiff's job to move her matter forward, and not that of her lawyer. He submits that the evidence of the plaintiff in this case fails to demonstrate that she ever did anything to move the case towards trial.

[26] I am not able to agree with the submission that it is the plaintiff's job to move the case along, rather than that of her lawyer. This submission ignores the reality of litigation and distorts this part of the ratio in Reid. Litigants retain lawyers because the latter are trained in the law and licensed to practice it. Litigants rely, quite reasonably, on the knowledge, skill and experience of their lawyers to conduct the litigation. Although written in the context of a discussion about the importance of an accused's right to counsel of choice, I believe these words, taken from the Court of Appeal's decision in R. v. McCallen (1999), 1999 CanLII 3685 (ON CA), 43 O.R. (3d) 56, [1999] O.J. No. 202 (C.A.), at p. 67 O.R., are equally applicable in the civil context: [page616]

[T]he relationship of counsel and client requires clients, typically untrained in the law and lacking the skills of advocates, to entrust the management and conduct of their cases to the counsel who act on their behalf.

It would be unreasonable and unrealistic, in my view, to require the plaintiff to demonstrate that she made consistent efforts to oversee the work of her lawyer.

[27] Nor is this what Reid requires. In addition to what I have set out above, Master Dash wrote the following with respect to this factor, at para. 41:

It is absolutely essential that the plaintiff lead satisfactory evidence that she personally always intended the action to proceed to trial without delay, that she did not ascent to the delay, and that she always reasonably assumed it was so proceeding or made appropriate inquiries of her solicitors.

(Emphasis added)

[28] It is sufficient, therefore, if the plaintiff establishes

(a) that she always intended the action to proceed;

(b) that she did not ascent to undue delay; and either

(c) (i) that she assumed that her action was proceeding without undue delay; and

(ii) that her assumption was reasonable in the circumstances; or

(d) (i) that she made inquiries of her lawyer; and

(ii) that they were appropriate.

[29] While I believe the plaintiff has established that she always intended the action to proceed, I am not satisfied that she has established any of the other essential facts set out above. There is no direct evidence that the plaintiff did not ascent to the delay. Nor is there any direct evidence that she assumed that the matter was proceeding without undue delay or made any appropriate inquiries of her lawyer with respect to any delay. Indeed, there is evidence from which an inference can be made that she did neither.

[30] It would not have been entirely unreasonable for the plaintiff to believe that her action was proceeding at a normal pace, despite the passage of time. After all, the law at the time did not require her even to commence an action for six years after her accident. However, if this was case, it would have been an easy matter for the plaintiff simply to say so in her affidavit. She did not. [page617]

[31] Instead, the plaintiff deposes that she has been suffering from chronic neck pain for a period of approximately ten years. She attaches a letter from her doctor supporting her evidence. She deposes that her pain has interfered with her work and attributes the delay in proceeding with her action "to difficulties which [she] was experiencing with pain management and efforts to rebuild [her] strength". At the very least, this is a tacit admission that the plaintiff knew that her action was not proceeding without delay. I am not persuaded, however, that it is a sufficient explanation for that delay.

[32] Despite her pain, the plaintiff has been employed. Her lawyer deposes, at paras. 32 to 34, that the plaintiff was employed at a seniors' residence until 2014. He also deposes that he met with the plaintiff in October 2013 in connection with an unrelated matter. In my view, if the plaintiff was able to meet with her lawyer about another matter, and if she was able to maintain employment until at least 2014, it is hard to accept that her chronic pain prevented her from taking a more active interest in her lawsuit.

[33] For these reasons, I do not believe that the plaintiff has satisfactorily explained the delay.

[34] As I mentioned earlier, this first factor also requires the court to examine the conduct of plaintiff's counsel. However, rather than set out the evidence in that regard while dealing with this factor, I will refer to is as I deal with the next.

Reason for missing the deadline

[35] In Reid, Master Dash set out the second factor as follows, at para. 41:

Inadvertence in Missing the Deadline: The plaintiff or her solicitor must lead satisfactory evidence to explain that they always intended to set the action down within the time limit set out in the status notice, or request a status hearing, but failed to do so through inadvertence. In other words the penultimate dismissal order was made as a result of inadvertence.

[36] I believe that the plaintiff has satisfied her obligation under this factor, for two reasons.

[37] First, the plaintiff has adduced uncontradicted evidence from her lawyer that he missed the deadline due to inadvertence. In addition to deposing exactly that, the plaintiff's lawyer has set out in detail what occurred at his office in connection with this matter from the time he assumed carriage of it until the time this motion was brought. As he deposes, his office experienced "an inordinately high turnover of staff" during that time period. In September 2013, a new staff member, who has also [page618] sworn an affidavit, began work at the plaintiff's lawyer's office. The staff member began working on this file in October of that year, fulfilling the undertakings given during the plaintiff's examination for discovery in August 2011. It was not until August 2014, in connection with a visit by the plaintiff to her lawyer's office, that the staff member in question learned through the registrar's office that the action had been administratively dismissed. This brings me to the second reason why I have concluded that this factor has been made out by the plaintiff.

[38] Both the plaintiff's lawyer and his staff member depose that his office never received either the status notice dated November 30, 2012, warning of the approaching dismissal, or the dismissal order itself.

[39] Counsel for the defendants does not challenge this evidence, but he submits that the fact that the notice was not received does not mean it was not sent. That is certainly true. I do note that the copy of the notice that the staff member attaches to her affidavit, which was obtained from the court, indicates in handwriting that a copy was sent to the plaintiff's lawyer. However, there is no evidence concerning the source of this note and no other reason to doubt the veracity of the evidence that the plaintiff's lawyer did not receive the notice. I also note that no similar notation appears on the court copy of the dismissal order.

[40] Counsel for the defendants also points out that the plaintiff's lawyer should have known that an administrative dismissal would issue if the action was not listed for trial in accordance with the order of May 18, 2012. This is also a relevant consideration: see Marché D'Alimentation Denis Thériault Ltée. v. Giant Tiger Stores Ltd. (2007), 87 O.R. (3d) 660, [2007] O.J. No. 3872, 2007 ONCA 695, at para. 26.

[41] I agree that the plaintiff's lawyer should have been much more proactive. He ought not to have relied on the status notice as a substitute for a proper diarization system. Nonetheless, given the fact that he had been prompted into action by receipt of the notice previously, it is reasonable to conclude that the plaintiff's lawyer would have acted upon receipt of the notice of November 30, 2012, and that the plaintiff's action would not thereafter have been dismissed.

[42] Where the status notice is not received by the plaintiff's lawyer, courts are very reluctant to uphold an administrative dismissal: see Fraitekh v. Demoe, [2011] O.J. No. 816, 2011 ONSC 965, 17 C.P.C. (7th) 148 (Master), at para. 65; and [page619] Askaryar v. Toronto (City) Police Services Board, [2014] O.J. No. 2307, 2014 ONSC 2900 (Master), at para. 59.

[43] In my view, there is no reason to depart from that principle in this case.

Prejudice to the defendant

[44] The jurisprudence makes it clear and the parties agree that prejudice is a key, if not the key, factor: see Hamilton (City), at para. 33.

[45] This factor was described as follows by Master Dash in Reid, at para. 41:

No Prejudice to the Defendant: The plaintiff must convince the court that the defendants have not demonstrated any significant prejudice in presenting their case at trial as a result of the plaintiff's delay or as a result of steps taken following the dismissal of the action. The court takes note that witnesses' memories generally tend to fade over time and that sometime it is difficult to locate witnesses or documents. However to bar the plaintiff from proceeding with her action on the ground of prejudice, the defendant must lead evidence of actual prejudice. This might include evidence of specified documents lost over time, or destroyed following a dismissal, or of specific witnesses who have died, or have disappeared and the defendant has been unable to locate them with due diligence. While litigation is outstanding the defendants must take care to obtain and preserve evidence.

[46] Once again, I agree with the submission of counsel for the plaintiff with respect to the manner in which this factor should be considered. The jurisprudence since Reid makes it clear that the prejudice inquiry, like the delay inquiry, is a two-step process. There is a presumption of prejudice that arises from the delay, especially where a limitation period has expired before the administrative dismissal: see Wellwood v. Ontario (Provincial Police) (2010), 102 O.R. (3d) 555, [2010] O.J. No. 2225, 2010 ONCA 386, at paras. 60 and 65 to 70. The plaintiff may rebut this presumption. Thereafter, it is open to the defendant to demonstrate actual prejudice.

[47] The presumption of prejudice in this case is a strong one, given the fact that the limitation period expired over seven years ago. As Jessup J.A. pointed out in Clairmonte v. Canadian Imperial Bank of Commerce, 1970 CanLII 470 (ON CA), [1970] 3 O.R. 97, [1970] O.J. No. 1506 (C.A.), quoted by Cronk J.A. in Wellwood, at para. 67, the strength of the presumption of prejudice may increase with the length of time since the expiry of the limitation period. Jessup J.A. wrote, at para. 43:

While the presumption will speak as a barely audible caution immediately after a limitation period has expired, it may command with increasing imperativeness on the passage of a substantial time, depending on the cause of action. [page620]

[48] This increasing prejudice, and the potentially harmful effect of it on a plaintiff who, for one reason or the other, may one day find herself having to rebut it, is but one of the many good reasons why plaintiffs and their lawyers ought not to wait to issue claims until the very last minute.

[49] Nonetheless, in this particular case, I am satisfied not only that the plaintiff has rebutted the presumption, but that she also demonstrated that the defendants have suffered no significant actual prejudice, as a result of the delay. I say this for several reasons.

[50] First, and foremost, is the fact that the defendants had immediate notice of the accident, and ample opportunity to investigate it. In a statement dated May 20, 2008, the defendant Dubytz indicates that he learned of the slip and fall on the very day that it occurred. He then attended at the premises to check the stairs. By the date of the statement, he had no recollection of the condition of those stairs. Nonetheless, he reported the incident to his insurance broker that day or the following Monday. Therefore, the defendants and their insurers had an opportunity to investigate the scene of the accident and to preserve the evidence about liability by taking photographs and obtaining witness statements almost immediately after the accident occurred. Yet, Dubytz also indicates in his statement that, after notifying the defendants' insurer, he heard nothing further about the incident until after the defendants were served with the statement of claim in May of 2008.

[51] In his affidavit sworn on May 7, 2015, Dubytz deposed that he was unable to locate various liability witnesses, including a high school student named McCausland, who was employed at the time of the accident to perform winter maintenance at the premises, as well as employees of London Life who worked there and a photographer who took photographs on behalf of the plaintiff in 2002.

[52] However, in response, plaintiff's counsel on the motion filed the affidavit of an employee at his law firm who deposes

(1) that she found the new premises at which London Life is located merely by performing a "Google" search over the Internet;

(2) that, by contacting London Life, she learned of the identity of the regional manager who was working at the location of the slip and fall on the date of the accident and was provided with contact information for that individual, which she sets out in her affidavit; [page621]

(3) that she also located McCausland via the Internet, using information contained in a statement from McCausland taken in 2008 (attached to Dubytz's affidavit), that she spoke to McCausland by telephone, and that she obtained his home address and cell number, which she also sets out in her affidavit; and

(4) that she also located the photographer, once again via the Internet.

[53] In my view, the defendants have suffered no prejudice related to the issue of liability for which they are not themselves responsible.

[54] With respect to the issue of damages, counsel for the defendants submits that the defendants have been prejudiced because certain documents relating to the plaintiff are no longer available.

[55] During argument, counsel referred specifically to the plaintiff's Ontario Health Insurance Plan ("OHIP") summary, which only goes back to 2005. However, there is no evidence as to the date from which such information would have been available if the plaintiff's action had proceeded without delay after the statement of claim was served on them in May 2008. Nor have the defendants adduced any evidence as to the importance of obtaining an OHIP summary for any earlier period of time. Moreover, I note that the plaintiff's hospital records go back to 2000, and that her family doctor's records go back to 1998.

[56] As well, counsel for the defendants submitted that records were no longer available from "PT Works". I believe that counsel was making reference to a list of undertakings forming part of the plaintiff's affidavit in which it is indicated that records from PT Works are "not available". However, there is no evidence as to why those records are not available. Without more, it would be pure speculation to conclude that the records are unavailable due to delay in the litigation.

[57] The affidavit of the defendant, Don Dubytz, makes reference to other documents, such as the chiropractic records of Dr. Stewart, photographs of the footwear the plaintiff was wearing at the time of the accident and records for an as yet unidentified psychologist. However, the list of undertakings makes it clear that these are simply undertakings that were unfulfilled as of the date the affidavit was sworn. There is no evidence that they cannot be satisfied as a result of delay in the litigation. [page622]

[58] For these reasons, I am not persuaded that the defendants have suffered any actual prejudice with respect to the issue of damages as a result of the delay.

Balancing the interests

[59] As I mentioned earlier, in Reid, Master Dash held that the plaintiff must satisfy all four criteria, or fail. In Scaini, however, the Ontario Court of Appeal rejected this approach in favour of a more contextual approach in which the court must make an order "that is just in the circumstances", balancing the interests of the parties (paras. 21 to 23). The court held that the plaintiff's failure in Scaini to satisfactorily explain the delay was not determinative, given the inadvertence of the plaintiff's solicitor, the promptness of the motion to set the dismissal order aside and the complete absence of prejudice.

[60] For similar reasons, I believe the same result should obtain in this case. However, given the substantial delay that has occurred to date, this action must be moved forward without any further such delay.

Conclusion

[61] The plaintiff's motion is allowed. The registrar's order of March 8, 2013 shall be set aside.

[62] The parties shall appear at the next assignment court, presently scheduled for July 3, 2015, to set a timetable for the continuation of this action, peremptory on the plaintiff.

[63] Although the plaintiff was successful, I am not inclined to award her costs in these circumstances. If the parties are unable to agree on the matter of costs, written submissions, limited to five typewritten pages, excluding attachments, shall be delivered as follows:

(1) by the defendants, within ten days of the date of these reasons;

(2) by the plaintiff, within ten days of the receipt of the defendants' submissions; and

(3) the defendants' reply, if any, within ten days thereafter.

Motion granted.

[^1]: There is a discrepancy in the evidence as to whether it proceeded on the 18th or the 19th. At para. 23 of his affidavit, the plaintiff's lawyer deposes that it took place on the 18th. At para. 12 of her affidavit, Shannon E. Goffin deposes that it took place on the 19th. Nothing turns on this.