CITATION: Tyoga Investments Ltd. v. Service Alimentaire Desco Inc., 2015 ONSC 3810

BARRIE COURT FILE NO.: CV-14-0499

DATE: 20150611

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

TYOGA INVESTMENTS LTD.

Plaintiff

– and –

SERVICE ALIMENTAIRE DESCO INC.

Defendant

Colleen E. Butler, for the Plaintiff

Pamela Sidey, for the Defendant

HEARD: April 7, 2015

REASONS FOR DECISION

DiTOMASO J.

THE MOTIONS

[1] A contractual dispute exists between an Ontario company and a Quebec company regarding the importation of chicken into Canada.

[2] The Defendant Service Alimentaire Desco Inc. (“Desco”) brings a motion to determine the correct jurisdiction regarding this dispute and for an order pursuant to s.106 of the Courts of Justice Act (“CJA”) and rules 17.06(1)(a) – (b) and 17.06(2)(a) of the Rules of Civil Procedure (the “Rules”) to set aside service of the claim outside of Ontario and to stay the proceeding on the basis that service outside of Ontario was not authorized. The Plaintiff, Tyoga Investments Inc. (“Tyoga”), brings a motion for an order validating service of the Statement of Claim on the defendant, pursuant to rule 17.02 and 17.06(3).

[3] Tyoga has a permit to import chicken and Desco is a chicken processing facility that bought chicken imported by Tyoga. Tyoga maintains that it prepared the contract and sent it by email from its office located in Alliston, Ontario. Further it submits that Desco accepted the contract, the acceptance of which was received by Tyoga in Ontario.

[4] Tyoga imported the chicken into Canada from the United States of America through the border crossings in Ontario and then the chicken was transported to Desco’s poultry processing facility in Quebec. Tyoga alleges that Desco breached the contract in 2013 when it failed to order the agreed upon amount of chicken. As a result, Tyoga alleges that it suffered $530,000 in damages due to Desco’s breach of contract.

FACTUAL BACKGROUND

[5] Tyoga is an Ontario registered company operating in New Tecumseth, Ontario. It is engaged in the chicken import business and as such is approved by the Canadian Government to import 785,375 kilograms of chicken each year.

[6] Desco is a registered company located in Boisbriand, Quebec. It operates a poultry processing business. The poultry products are distributed to the wholesale and retail market throughout Canada, including Quebec and Ontario.

[7] Desco is also approved to import chicken and holds in excess of 1,000,000 kilograms of chicken quota. Desco does not have sufficient import quota to meet its production demands and, in every year since at least 2005, Desco has needed to import more chicken than permitted by its quota. To do so, Desco enters into contracts with other chicken quota holders, such as Tyoga, to import the chicken required to meet its production demands.

[8] Tyoga sells its imported chicken to federally registered poultry processing companies such as Desco. Tyoga does not process the chicken. Tyoga normally does business based on the importation of chicken and then selling chicken to a poultry processing company such as Desco.

[9] In the case at hand, and at Tyoga’s requirement, the parties contracted based on Tyoga importing the chicken into Canada and then selling it to Desco. At no time did Tyoga transfer its quota to Desco.

The Parties

[10] Guy Chevalier is the President of Desco. Mary Riccardi is an employee of Desco and was Tyoga’s primary contact at Desco. Throughout their commercial relationship, Ms. Riccardi was responsible for communicating Desco’s offers to buy chicken from Tyoga, calling out orders of chicken on Tyoga’s permits and making the necessary arrangements for the importation and transportation of Tyoga’s chicken.

[11] Mark Gratton a friend of Mr. Chevalier and a representative of Desco, approached Wayne Hutchinson, the President of Tyoga about importing chicken for Desco. This meeting took place in August 2009 at the Crowne Plaza Hotel located in Toronto, Ontario where representatives of Tyoga and Desco met while attending a meeting of the Canadian Association of Regulated Importers (“CARI”).

[12] The contract first negotiated at the meeting in Toronto in August 2009 was finalized by emails and phone calls in December 2009 when the parties agreed on pricing.

[13] Desco ordered chicken from Tyoga in 2010 as per the terms agreed to in 2009 and utilized all of Tyoga’s quota.

[14] The parties disagree on whether the 2009 contract was renewed in 2010, 2011 and 2012 or whether a new contract was formed each year. It is Tyoga’s position that the contract was renewed each year on the same terms subject to a change in Tyoga’s fees which fluctuated based on market conditions. It is Desco’s position that there was not a renewal of the 2009 contract but rather a new contract was created each year based on a new price.

[15] Tyoga’s fees were negotiated for the 2013 year. The parties agreed on a price of $1.80 per kilogram for Tyoga’s fees with all other terms set out in the 2009 contract remaining the same.

[16] Tyoga submits that Desco failed to order any chicken from Tyoga in January, February and March of 2013. Mr. Hutchinson was concerned and contacted Ms. Riccardi by email to inquire about the situation. The market had softened considerably since Tyoga’s fees had been negotiated in December 2012. The parties agreed to a reduced price of $1.65 per kilogram for 200,000 kilograms. The parties dispute whether this was a new contract for only 200,000 kilograms or a revised contract price for 200,000 kilograms with the price returning to $1.80 per kilogram after the 200,000 kilograms had been imported. Notwithstanding this issue, it is agreed that Desco only ordered 55,000 kilograms of chicken which resulted in the breach of contract.

[17] As a result of Desco’s failure to utilize Tyoga’s import quota, Tyoga had to find new buyers on short notice. While Tyoga was able to mitigate its damages to a degree, by the end of 2013, Tyoga alleges that it suffered damages in the amount of $530,000.

[18] Tyoga commenced the action by way of Statement of Claim against Desco on April 28, 2014 and personally served it on Desco on May 7, 2014. Desco brings this motion to dismiss or stay the action either on the basis that the Ontario Court has no jurisdiction or on the grounds of forum non conveniens. Tyoga submits that Ontario is the proper jurisdiction to hear this dispute and that Desco cannot establish that Quebec is clearly a more appropriate or convenient forum.

ISSUES

[19] The following issues are to be determined:

(a) Does the Ontario Superior Court of Justice have jurisdiction simpliciter over this case?

(b) If jurisdiction simpliciter is met, is Ontario the convenient forum to hear the dispute?

(c) Is the service of the Statement of Claim valid under rule 17.02 and, if not, is service validated under rule 17.06(3).

POSITION OF THE PARTIES

Position of Tyoga

[20] Tyoga submits that Ontario courts have jurisdiction over this action as Tyoga can establish a real and substantial connection between this forum, the subject matter of the litigation and Desco. Tyoga submits that the presumptive connecting factors that entitle a court to jurisdiction over this action includes Desco carrying on business in the Province of Ontario and the contract connected with the dispute was made in the Province of Ontario. If any of the above presumptive connecting factors exist, the court has jurisdiction to hear the matter. The burden then shifts to Desco to rebut the presumption by showing that the connecting factor does not point to any real relationship between the dispute and Ontario. It is submitted that Desco has failed to rebut the presumption and thereafter the court may consider whether Ontario is the proper or convenient forum to hear the dispute. Tyoga submits that Ontario is the proper and convenient forum to hear the dispute and accordingly, Desco’s motion ought to be dismissed.

Position of Desco

[21] Desco submits that the Ontario Superior Court of Justice does not have jurisdiction simpliciter over this case. There is no real and substantial connection between this forum, the subject matter of the litigation and Desco. Desco denies that it carried on business in the Province of Ontario and further denies that a contract connected with the dispute was made in the Province of Ontario.

[22] Further, Desco submits that the proper or convenient forum to hear the dispute is Quebec.

ANALYSIS

Jurisdiction Simpliciter

[23] In Edward Jones v. Raymond Jones Ltd.,[^1] Swinton J. concisely summarizes the legal principles which apply to the jurisdictional issue:

[2] Courts in Canadian provinces have jurisdiction over an action when there is a real and substantial connection between the forum, the subject matter of the litigation and the defendants. In making the determination of a real and substantial connection, the courts must consider whether there is any presumptive connecting factor linking the subject matter of the litigation to the forum. If so, the party challenging the assumption of jurisdiction has the onus to rebut the presumption by showing that the connecting factor does not point to any real relationship between the subject matter of the litigation and the forum, or points to only a weak relationship (Van Breda v. Village Resorts Ltd., 2012 SCC 17 at paras. 90, 92, and 95).

[24] The governing test establishing a real and substantial connection is set out by the Supreme Court of Canada in Club Resorts Ltd. v. Van Breda where the court held that the Plaintiff must meet one or more of the presumptive connecting factors that links the subject matter of the litigation to the forum. The presumptive connecting factors that entitle a court to jurisdiction over an action includes: (a) the Defendant is domiciled or a resident in the province; (b) the Defendant carries on business in the province; (c) the tort was committed in the province; and (d) a contract connected with the dispute was made in the province.[^2]

[25] If one of the above noted presumptive connecting factors exist, the court has jurisdiction to hear the matter. The burden then shifts to the Defendant to rebut the presumption by showing that the connecting factor does not point to any real relationship between the dispute and Ontario. If the Defendant fails to rebut the presumption, the court may consider whether Ontario is the proper or convenient forum to hear the dispute.[^3]

[26] Desco disagrees it carries on business in the Province of Ontario and further disagrees that a contract connected with the dispute was made in Ontario. The motions were argued first, in respect of contract formation and second, in respect of Desco carrying on business in the Province of Ontario.

Contract Formation

[27] I find that in the case at hand, the contract connected with the dispute was made in Ontario. Tyoga made an offer to Desco by email which offer was accepted by Desco. Tyoga received Desco’s acceptance of the offer in Ontario.

[28] The contract was first negotiated at the meeting in Toronto in August 2009 and then finalized by emails and phone calls in December 2009 when the parties agreed on pricing.

[29] The terms of the contract are set out in Mr. Hutchinson’s emails to Mr. Chevalier dated December 8 and 10, 2009. Tyoga offered the following terms to Desco:

(a) Tyoga to import fresh and frozen chicken products for Desco using all of Tyoga’s chicken quota of 1,731,456 pounds (785,375 kilograms);

(b) Desco to pay Tyoga a fee of 95.25 cents per pound of chicken imported;

(c) Desco to reimburse Tyoga’s expenses for the cost of the chicken, freight, duty and meat inspection charges; and

(d) Desco to order from Tyoga a minimum of 25 percent of Tyoga’s chicken quota per calendar quarter.[^4]

[30] On December 10, 2009 Mr. Chevalier responded to Mr. Hutchinson’s emails and asked him to call Mr. Gratton. Mr. Hutchinson spoke to Mr. Gratton about Tyoga’s fee and the parties agreed to reduce the fee from 95.25 cents per pound 93 cents per pound. They did not discuss any other items of the contract. Mr. Hutchinson sent an email to Mr. Chevalier on December 10, 2009 setting out the contract with the revised fee of 93 cents per pound.[^5]

[31] The December 10, 2009 email did not include the term about ordering a minimum of 25 percent of Tyoga’s chicken quota per calendar quarter. However, it was present in the December 8, 2009 email. Both parties confirmed on cross-examination that the 25 percent minimum order was not discussed or rejected by Desco. Mr. Hutchinson also confirmed that it was a given in the industry that approximately 25 percent of the quota would be used each quarter to ensure the quota was being utilized throughout the year and that chicken was not being dumped into the market at the end of the year. Ms. Riccardi admitted in cross-examination that Mr. Chevalier was only concerned about Tyoga’s fees and did not dispute the other terms offered by Mr. Hutchinson.[^6]

[32] The only change in the proposed contract sent December 8, 2009 and December 10, 2009 was the change in Tyoga’s fee; all other terms remained the same and were accepted by Desco.[^7]

[33] The parties have been unable to locate an email from Desco accepting the terms of the contract. Mr. Chevalier no longer has his emails to Mr. Hutchinson from 2009. However, it is agreed that Desco accepted the terms of the contract set out in the December 8 and 10, 2009 emails and commenced utilizing Tyoga’s quota to import chicken commencing in January 2010.[^8]

[34] Desco continued ordering chicken from Tyoga in 2010 as per the terms agreed to in 2009 and utilized all of the Tyoga’s quota.[^9]

[35] The parties disagree whether the 2009 contract was renewed in 2010, 2011 and 2012 or whether a new contract was formed each year. It is Tyoga’s position that the contract was renewed each year until Desco breached the contract in 2013. I find that each year, the contract was renewed on the same terms subject to a change in Tyoga’s fees which fluctuated based on market conditions. I accept Tyoga’s submission that it was not unusual to agree to a price for anything longer than a year as prices could vary considerably over time. In late Fall of each year, Tyoga did business with Desco. Mr. Hutchinson emailed Desco and offered to continue to do business for the following year. In each year, Tyoga’s fee was negotiated and agreed upon between the parties. All other terms that had been agreed to in 2009 remained the same.

[36] In negotiating Tyoga’s fees for 2012 and 2013, Desco asked for pricing on a three month basis. Tyoga rejected the request each year and required that Tyoga’s fees be agreed upon for the year. Desco agreed to continue the pricing on a one year basis. There was no expectation between the parties that each time a new price was agreed to the parties were entering a new contract on new terms. Each year, the parties continued to operate based on the terms as set out in 2009. Those terms required that Tyoga own and import the chicken and that Tyoga’s quota be fully utilized. Meanwhile, Desco would pay all of the import fees and Tyoga’s price.

[37] In 2013 Desco allegedly breached the contract and only ordered $55,000 kilograms of chicken instead of utilizing Tyoga’s import quota.

[38] I am satisfied that the 2009 contract was subject to a renewal and no new contract was formed each year. While the price was subject to negotiations based on market conditions, the remaining terms which were agreed to in 2009 remained in place. This position was supported by Mr. Hutchinson in his cross-examination.[^10]

[39] While Desco proposed an adjustment of pricing every three months to allow for a change in market conditions, Mr. Hutchinson did not agree to this proposal as his normal business practice was to price on an annual basis.

[40] Further, Mr. Hutchinson’s evidence on cross-examination was that Tyoga would only do business with Desco if Tyoga owned and imported the chicken. A change in this term would have fundamentally changed the contract between the parties.[^11]

[41] Another key term in the contract was that Tyoga would fully utilize its quota and sell the chicken to Desco. In each year, the parties operated on the same terms set out in Mr. Hutchinson’s email of December 10, 2009.[^12]

[42] The price for the 2013 year was also subject to negotiation. The evidence does not support that Desco required three month pricing. Three month pricing was not agreed to by Mr. Hutchinson. The price was agreed to for the 2013 year in the amount $1.80 per kilogram. I find the negotiation of pricing was similar to previous years. The market conditions resulted in a lower price being negotiated but the terms of the 2009 contract remained the same. I agree with the position of Tyoga that the contract of 2009 was renewed on an annual basis with price being renegotiated annually. In the context of this case, I am not satisfied that Desco has satisfied its burden in establishing that a new contract was formed each year because the price was renegotiated annually. I do not agree that the principle of novation applies where in essence a new contract is formed when the “new agreement is inconsistent with the original contract to an extent which goes to the very root of it”.[^13]

[43] The Ontario Superior Court of Justice held in Kingston 2000 Developments v. The City of Kitchener that novation is generally referred to in the context of a debt, where a new debtor is substituted for the original debtor. The court, quoting the Supreme Court of Canada’s decision in National Trust Co. v. Mead, held that the onus of proof rests on the party seeking to establish novation and the burden of establishing novation is not easily met. The Supreme Court of Canada held that “because assent is the crux of novation it is obvious that novation may not be forced upon an unwilling creditor and, in the absence of express agreement, the court should be loath to find novation unless the circumstances are really compelling”.[^14]

[44] I find the parties were aware that the price would be renegotiated each year based on market conditions. The overall nature of the contract between the parties remained the same each year. Tyoga owned the chicken, imported the chicken using its quota and sold it to Desco. Desco paid for the chicken, the transportation costs, border costs, inspection fees and Tyoga’s fee. These terms did not change year to year. A fundamental change to the contract would have occurred if Desco required Tyoga to transfer its quota or if Desco contracted for significantly less chicken than Tyoga was permitted to import. Neither situation occurred.

[45] The only relevant documents would be the emails of 2012 and 2013 that set the price for 2013. However, the emails do not deal with any of the other fundamental terms of the agreement.

[46] I find there is only one contract which was agreed to in 2009 and then renewed each year subject to change in price. I agree that the 2009 contract was formed in Ontario. Tyoga emailed Desco the offer, which set out all of the terms of the contract. The parties further discussed the price. Tyoga then emailed the terms of the contract with a revised price to Desco. Desco accepted the terms of this contract which was received by Tyoga in Ontario. The contract was thus formed in Ontario.[^15]

[47] In the case at hand, there is no formal contract with the parties’ signature. The last email setting out the terms of the 2009 contract was emailed by Tyoga. Tyoga made the offer to contract which was accepted by Desco. Tyoga received acceptance of its terms of contract in Ontario and the parties operated under the terms of that contract.[^16]

[48] The onus is on Desco to rebut the presumption of a real and substantial connection of the subject matter of the litigation to Ontario based on the ground that there did not exist a contract connected with the dispute made in Ontario. I find that the 2009 contract was made in respect of the dispute in Ontario. Desco has not satisfied its onus in rebutting the presumption of a real and substantial connection between the subject matter of the litigation and Ontario. On this ground, I find that the Ontario court has jurisdiction over this action.

Business in the Province of Ontario

[49] Another presumptive factor identified in Van Breda is whether Desco carries on business in the Province of Ontario where the claim was initiated.

[50] The courts have held that the totality of the evidence is to be considered when assessing where the company does business. A defendant need not be headquartered in a certain jurisdiction to carry on business within the jurisdiction. In one case, the court found that intermittent visits to the province by a company representative and marketing strategy promoting its products in Ontario was sufficient to establish the presumptive factor of carrying on business.[^17]

[51] Tyoga operates out of Ontario and all of its clients are in Ontario. Other than the business deal with Desco, Tyoga does not do any business in Quebec. The initial meeting between Desco and Tyoga occurred in Ontario in 2009. At this meeting, Desco and Tyoga discussed the basic terms of the contract. The contract was finalized by email communication in December 2009. Tyoga made the offer setting out the terms of the contract. The offer was accepted by Desco.

[52] Desco arranged for the supply of chicken and the freight. Tyoga arranged for the custom broker. The chicken supplier is based out of the United States, the freight is based out of Quebec (the company is owned by Mr. Chevalier’s son) and the custom broker is based out of Ontario. Tyoga was invoiced for the cost of the chicken from the U.S. supplier, the freight, the custom duties and the inspection costs. Tyoga paid the invoices directly to these companies and then invoiced Desco for the cost. Tyoga then charged its fee to Desco. Tyoga transacted all of its business in Ontario. This method of doing business was supported by the affidavit evidence of Mr. Hutchinson and Ms. Riccardi.

[53] Further, Tyoga imported all of the chicken into Canada through the border crossings at Fort Erie, Niagara Falls, Sarnia and Windsor, Ontario. The chicken was then transported by truck from Ontario to Quebec. The chicken was never imported directly into Quebec.

[54] Desco’s product is distributed to the Ontario wholesale and retail markets through Ontario distributors. Desco’s products have also been subject to recall notices issued by the Canadian Food Inspection Agency for chicken products sold in the Ontario retail markets.[^18]

[55] Further, I find that Desco has a business presence in Ontario and representatives come to Ontario to conduct business related to the utilization of chicken import quota. In particular, Mr. Gratton and Mr. Chevalier attend CARI meetings which meetings take place in Toronto, Ontario.

[56] On all the evidence, it is clear that Desco is a large poultry processing company and its products are distributed to wholesale and retail markets in Ontario.

[57] On the totality of the evidence, I am satisfied that Desco carries on business in the Province of Ontario and that Tyoga has established this presumptive connecting factor that links the subject matter of the litigation to Ontario.

[58] I further find that in this case, Desco has not rebutted the presumption that there is a real and substantial connection between the subject matter of the litigation and Ontario. Based on this ground, I also find the Ontario court has jurisdiction over this action.

Forum Non Conveniens

[59] Desco submits that in the alternative, if this court determines that a real and substantial connection exists between Ontario and the claim being brought against Desco, this court should decline to exercise its jurisdiction on the basis that Quebec is clearly the more appropriate forum for the adjudication of this dispute. In Van Breda, the court reaffirmed that a two part test applies: (1) jurisdiction simpliciter and (2) forum non conveniens. While jurisdiction is a legal issue, Forum Non Conveniens is discretionary.[^19]

[60] The defendant Desco must make the case that the jurisdiction it views as appropriate is clearly the more appropriate location. In Breeden v. Black, the Supreme Court of Canada held:

Under the forum non conveniens analysis the burden is on the party raising the issue to demonstrate that the court of the alternative jurisdiction is a clearly more appropriate forum.[^20]

[61] In Van Breda, the Supreme Court of Canada further explains what it means to discharge its burden and be a clearly more appropriate forum:

The use of the words “clearly” and “exceptionally” should be interpreted as acknowledgement that the normal state of affairs is that jurisdiction should be exercised once it is properly assumed. The burden is on a party who seeks to depart from the normal state of affairs to show that, in light of the characteristics of the alternative forum, it would be fairer and more efficient to do so and that the plaintiff should be denied the benefits of his or her decision to select a forum that is appropriate under the conflicts rules. The court should not exercise its discretion in favour of a stay solely because it finds, once all relevant concerns and factors are weighed, that comparable forums exist in other provinces or states.[^21]

[62] It is not enough that another forum exists that can make a fair and effective judgment. Rather, the Defendant must demonstrate that the alternative jurisdiction should be preferred and is clearly more appropriate.[^22]

[63] In deciding whether another forum is more appropriate, a court considers factors such as the number of witnesses and their location, the location of the parties, any prejudice from the use of one forum or another, the law to be applied and the possibility of conflicting decisions.[^23]

Comparative convenience and expense for the parties and their witnesses

[64] I find the number of witnesses called by either by Desco or by Tyoga is largely equivalent. The location of the witnesses is a neutral factor but, in any event, it is not a factor that more clearly favours Quebec.

The law to be applied to issues in the proceedings

[65] While the parties operate in a federally regulated industry, the issue in dispute is a breach of contract and the damages that flow from the breach. There is no choice of law or choice of forum clause in any contract between the parties. The court will interpret the contract and breach within the context of the common law or the Civil Code, depending on the results of this motion.

Avoiding multiple proceedings in conflicting decisions in different courts

[66] There are no other proceedings that are currently taking place between these parties.

The fair and efficient working of the legal system as a whole

[67] When applying the forum non conveniens analysis it is just as important to consider fairness and access to justice as much as convenience:

In addition to seeking to assure the efficacy of the litigation process, the doctrine of forum non conveniens also seeks to assure fairness as well.[^24]

[68] I find that Desco operates a sophisticated business with a number of employees and it would not be a financial hardship for Desco’s witnesses to travel to Ontario for a trial. There is no overarching unfairness to Desco if the Ontario courts were to hear this case.

[69] I find that Desco has not met the onus of proving that Quebec is clearly the more convenient forum. I am not satisfied that Quebec law applies to this contractual dispute and that there is a stronger connection to Quebec than Ontario. To the contrary, the contract was formed in Ontario and Ontario law governs this dispute. The Ontario courts are equipped to adjudicate the contract in dispute and assess damages.

[70] In conclusion, an analysis of the forum non conveniens factors establish that Desco is not overwhelmingly inconvenienced or unfairly treated by having this case heard by the Ontario courts. As a result, Quebec is not a clearly more appropriate jurisdiction. Consequently, Ontario has jurisdiction to adjudicate the breach of contract in this case.

[71] Accordingly, Desco’s motion is dismissed.

Tyoga’s Motion

[72] Tyoga brings a motion for an order validating service of the Statement of Claim on Desco pursuant to rules 17.02 and 17.06(3) of the Rules of Civil Procedure. This court has found that the contract was formed in Ontario. Further, Desco carries on business in Ontario.

[73] On the basis of the Statement of Claim and the totality of the evidence on this motion, I find that service of the Statement of Claim was valid and should not be set aside.[^25]

[74] Moreover, there is a real and substantial connection between the litigation and Ontario such that service should be permitted. Ontario is the convenient forum for trying the action. Accordingly, service of the Statement of Claim is validated pursuant to rule 17.02 of the Rules of Civil Procedure.

CONCLUSION

[75] Desco’s motion is dismissed. Tyoga’s motion is granted. If costs cannot be agreed, the parties shall make brief written submissions including a two page concise summary, proper Costs Outline and Bill of Costs. Desco’s submissions are to be delivered and filed with my judicial assistant in Barrie within 10 days. Then Tyoga will have 10 days to make its submissions. Any reply submissions will be delivered and filed with my judicial assistant within five days thereafter.

DiTOMASO J.

Released: June 11, 2015

[^1]: Edward Jones v. Raymond Jones Ltd.[1], 2013 ONSC 4640

[^2]: Club Resorts Limited v. Van Breda, 2012 1 S.C.C. 17, [2012] S.C.R. 572 at paras. 90 and 100

[^3]: Edwards Jones v. Raymond Jones Ltd., supra, at para. 2; Christmas v. Fort McKay First Nation, (2014) 119 O.R. (3d) at paras. 5 and 6

[^4]: Affidavit of W. Hutchinson sworn December 23, 2014 at para. 13, Tab 4 of the Motion Record

[^5]: Affidavit of W. Hutchinson sworn December 23, 2014 at para. 14, Tab 4 of the Motion; Transcript of W. Hutchinson dated February 6, 2015 at pages 69-70, Tab 8 of the Motion Record

[^6]: Transcript of M. Riccardi dated February 6, 2015 at page 60, Tab 7 of the Motion Record; Transcript of W. Hutchinson dated February 6, 2015 at pp. 76, 77, 84-85, Tab 8 of the Motion Record

[^7]: Affidavit of W. Hutchinson sworn December 23, 2015 at para 15, Tab 4 of the Motion Record; Supplementary Affidavit of W. Hutchinson sworn January 23, 2015 at para 10, Tab 6 of the Motion Record; Transcript of M. Riccardi dated February 6, 2015 at page 46, Tab 7 of the Motion Record; Transcript of W. Hutchinson dated February 6, 2015 at page 93, Tab 8 of the Motion Record

[^8]: Affidavit of W. Hutchinson sworn December 23, 2014 at para. 14, Tab 4 of the Motion Record; Transcript of W. Hutchinson dated February 6, 2015 at pp. 87-88, Tab 8 of the Motion Record; Transcript of M. Riccardi dated February 6, 2015 at p. 40, Tab 7 of the Motion Record

[^9]: Affidavit of W. Hutchinson sworn December 23, 2014 at para. 15, Tab 4 of the Motion Record; Transcript of M. Riccardi dated February 6, 2015 at p. 57-58, Tab 7 of the Motion Record

[^10]: Cross-examination of W. Hutchinson at pp. 87, 88, Q.358-363, Joint Motion Record at Tab 8, p.293.

[^11]: Cross-examination of W. Hutchinson at pp. 13, 58, Q. 48, 258, Joint Motion Record at Tab 8, p. 274, 286

[^12]: Cross-examination of W. Hutchinson at pp 87-90, Q. 354-369, Joint Motion Record at Tab 8, p. 293-294

[^13]: Kelly v. Pollock Leasing Inc., 2005 CarswellOnt 4869 at para. 21, (Sup. Ct.)

[^14]: Kingston 2000 Developments Ltd. v. The City of Kingston 2007 CanLii 15801 (ONSC) at para. 17,

[^15]: Affidavit of W. Hutchinson sworn December 23, 2014 at para. 13, Tab 4 of the Motion Record; Transcript of W. Hutchinson dated February 6, 2015 at pp. 69-70, 87-88, Tab 8 of the Motion Record. Christmas v. Fort McKay First Nation, supra, at paras. 16-18

[^16]: Eastern Power Limited v. Azienda Communale Energia and Ambiente, (1999) 1999 CanLII 3785 (ON CA), 178 D.L.R. (4th) 409; Inukshuk Wireless Partnership v. Nextwave Holdco LLC et al, 2013 ONSC 5631

[^17]: Applied Processes Inc. v. Crane Co. (1993) 1993 CanLII 5439 (ON SC), 15 O.R. (3d) 166 at p. 6

[^18]: Affidavit of W. Hutchinson sworn December 23, 2014 Exhibit B Tab 4 of the Motion Record; Affidavit of W. Hutchinson dated February 6, 2015 at pp. 137 and 148

[^19]: Van Breda, supra, at paras. 90, 91, 103, 105 and 108

[^20]: Breedon v. Black, 2012 SCC 19, [2012] S.C.R. 666 at para. 23

[^21]: Club Resorts Ltd. v. Van Breda, supra, at para. 109

[^22]: Club Resorts Ltd. v. Van Breda, supra, at para. 109

[^23]: Club Resorts Ltd. v. Van Breda, supra, at para. 105; Edward Jones v. Raymond Jones Ltd., supra, at para. 13

[^24]: Breedon v. Black, supra, at para. 36; Young v. Tyco International of Canada Ltd., 2008 ONCA 709 at para. 61, 92 O.R. (3d) 161.

[^25]: Davidson Partners Ltd. v. Kirsh (1990) 1990 CanLII 6882 (ON SC), 72 O.R. (2d) 450