Court File and Parties
CITATION: Gold Chance Int’l Limited v. Daigle & Hancock, 2015 ONSC 3862
COURT FILE NO.: 00-CV-188866
DATE: 20150616
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
GOLD CHANCE INT’L LIMITED, CEBY MANAGEMENT LTD. and JBG MANAGEMENT INC.
Plaintiffs
– and –
DAIGLE & HANCOCK , DOUGLAS H. HANCOCK, PETER M. DAIGLE, TRIGLOBE INTERNATIONAL FUNDING INC., FREETRADE BUREAU, S.A., FREE TRADE BUREAU, S.A., 1170870 ONTARIO LIMITED operating as G & S ENTERPRISES, G & S ENTERPRISES ONTARIO LIMITED, G & S ENTERPRISES ONTARIO LTD.,SAYSE CHATTERPAUL, PAUL ZHERNAKOV, THE BANK OF NOVA SCOTIA, and BANK OF MONTREAL, SAYSENARINE CHATTERPAUL (also known as SAYSE CHATTERPAUL), BRITISH TRADE & COMMERCE BANK, and GEORGE BETTS
Defendants
COUNSEL:
Theresa M. Hartley, for the Plaintiffs
R. Geoffrey Newbury, for the Defendants Triglobe International Funding Inc., Free Trade Bureau S.A., Free Trade Bureau, S.A., 1170870 Ontario Limited operating as G & S Enterprises, G & S Enterprises Ltd., G & S Enterprises Ontario Ltd., Sayse Chatterpaul, Paul Zhernakov and Saysenarine Chatterpaul also known as Sayse Chatterpaul
HEARD: June 3, 2015
REASONS FOR DECISION
FAIETA, J
[1] The defendants Triglobe International Funding Inc., Freetrade Bureau S.A., Free Trade Bureau, S.A., 1170870 Ontario Limited operating as G & S Enterprises, G & S Enterprises Ltd., G & S Enterprises Ontario Ltd., Sayse Chatterpaul, Paul Zhernakov and Saysenarine Chatterpaul also known as Sayse Chatterpaul (the “Free Trade defendants”) ask this Court to dismiss this action for delay. The plaintiffs have brought a cross-motion to have this action placed on the trial list. The plaintiffs state that the presumption of prejudice has been rebutted and the Free Trade defendants have not demonstrated any prejudice giving rise to a substantial risk that a fair trial is not possible.
[2] The Free Trade defendants are the only remaining defendants.
Background
[3] There is much about this action, both the circumstances that gave rise to it and subsequent events, that is unusual.
[4] The allegations, somewhat simplified, are as follows. In September 1999 the plaintiff Gold Chance entered into an agreement with the defendant Triglobe (through their agents 1170870 Ontario Limited operating as G & S Enterprises, or G & S Enterprises Limited, or G & S Enterprises Ontario Ltd., represented by Sayse Chatterpaul and Paul Zhernakov) to obtain a loan for US $12 million. The plaintiff Gold Chance posted the sum of US $3 million, obtained from funds advanced by the plaintiffs CEBY and JBG, as collateral for the loan with the defendant law firm Daigle & Hancock, being Triglobe’s lawyers. The $3 million in collateral was moved by the defendant Daigle & Hancock in December 1999, from their account with the defendant Bank of Montreal, to an account held by the defendant British Trade & Commerce Bank (“BTCB”), which is an offshore bank based in the Caribbean island of Dominica, at the First Union National Bank Florida in Jacksonville, Florida. George Betts was the President of BTCB. The $12 million loan was never made to the plaintiffs. A second borrowing agreement was made as of February 17, 2000, in which Gold Chance was the borrower and Free Trade Bureau S.A., with Paul Zhernakov as the sole signing officer, was the lender. It provided that the deposited $3 million collateral would be kept by Daigle & Hancock in an account designated by the Free Trade Bureau S.A.
[5] The $12 million loan was never advanced to Gold Chance nor was the $3 million collateral payment returned to the plaintiffs. The $3 million was dispersed all over the world. The BTCB was put into receivership by the Government of Dominica.
[6] A Notice of Action was issued on April 17, 2000. It was followed by a Statement of Claim on May 17, 2000, and an amended Statement of Claim on June 2, 2000. Amongst other things, the plaintiffs seek the return of the $3 million collateral payment. The Statement of Claim alleges breach of contract, fraudulent or, alternatively, negligent misrepresentation, fraud, fraudulent conveyance, deceit, conversion and breach of trust against the Free Trade defendants.
[7] On April 20, 2000, an order granting injunctive relief and appointing BDO Dunwoody as Receiver over the assets of the defendants Chatterpaul and Zhernakov was issued by Justice C. Campbell. This Order remains in force.[^1]
[8] A Statement of Defence, Counterclaim and Crossclaim was filed by the Free Trade defendants on December 20, 2000. A Statement of Defence to the Counterclaim was filed by the plaintiffs on January 5, 2001. A demand for particulars was delivered in July 2000. A response to the demand for particulars was provided by the plaintiffs in September 2000.
[9] Between April 2000 and June 2000, Justice C. Campbell of this court granted various orders that sought to trace and assist in the return of the funds to Gold Chance.
[10] On March 5, 2001, Justice C. Campbell granted summary judgment against BTCB and George Betts on the basis that there was no genuine issue of material fact requiring a trial as it was undisputed that the BTCB received $3 million which should be returned to Gold Chance. Costs of $737,327 were awarded to the Plaintiff on a solicitor and client basis. Justice C. Campbell refused to grant summary judgment against the defendant Daigle & Hancock, Douglas H. Hancock and Peter M. Daigle as he found that there was a genuine issue for trial. The plaintiffs settled this claim with the defendants Daigle & Hancock, Douglas H. Hancock and Peter M. Daigle in 2001.
[11] Also on March 5, 2001, Justice C. Campbell refused to grant summary judgment against the Free Trade defendants. The Free Trade defendants’ position that they did not breach any duty owed to Gold Chance and that their inability to perform under the loan agreements was caused solely by the fraudulent actions of BCTB and George Betts raised a genuine issue requiring a trial.
[12] The action against the Bank of Nova Scotia and Bank of Montreal was dismissed on consent in June 2001.[^2]
[13] There were over 26 affidavits sworn in 2000 and 2001 in respect of this action.[^3] Cross-examinations of the defendants Hancock, Chatterpaul and Zhernakov were held in 2001.[^4] In addition, the principals of the plaintiff companies, Brent Binions and Greg Binions, were cross-examined in 2001. On April 18, 2001 Justice C. Campbell ordered that “…the cross-examinations of Brent Binions and Greg Binions on behalf of the plaintiffs, and the cross-examinations of the defendants Douglas H. Hancock, Saysenarine Chatterpaul and Paul Zhernakov held in this action to date be treated as if they were examinations for discovery subject to the right of the parties to conduct further examinations of the said individuals in respect of matters not already covered in the cross-examinations to date.”
[14] Documentary discovery has been extensive. The following affidavits of documents were produced containing numerous documents: 1) Brent Binions, sworn February 14, 2001, lists 1,331 documents; 2) Douglas Hancock, unsworn, January 2001, lists 145 documents; 3) Sayse Chatterpaul, sworn January 6, 2001, lists 118 documents; 4) Paul Zhernakov, sworn January 6, 2001, lists 118 documents.[^5]
[15] By Order dated October 16, 2001, the trial of this action was adjourned from October 22, 2001, to a date to be fixed pre-emptory to the Free Trade defendants. In addition, the Court ordered the defendants Chatterpaul and Zhernakov to answer numerous undertakings given at their examinations by November 2, 2001.
[16] Until this motion to dismiss for delay was brought by the Free Trade defendants, no further step has been taken by the parties to move this action forward since 2002.
[17] The settlement of this action has been discussed sporadically since 2002. A pre-trial conference was held before Justice C. Campbell on February 22, 2002. He had urged the parties to try to settle this action. Further pre-trial conferences were held on March 19, 2002 and April 22, 2002. The parties met privately on May 16, 2002. Voicemail messages and correspondence regarding settlement were exchanged by the parties in 2003 and 2004. A letter dated May 10, 2005 was sent by the plaintiffs to Justice C. Campbell requesting a case conference to schedule a timetable for the resolution of this action. A case conference was held on June 29, 2005. An offer was provided by the Free Trade defendants in advance of the meeting.
[18] No further formal steps involving this Court were taken until 2011. During the period between 2005 and 2011 the plaintiff wrote periodically to the Free Trade defendants. Counsel for the Free Trade defendants typically failed to respond.[^6]
[19] On January 25, 2011, the Free Trade defendants wrote to Justice Campbell asking for a Commercial List attendance to set a date for the hearing of a motion to dismiss for delay. The letter states:
This matter has languished in purgatory for nine years. We last appeared on this matter on January 27, 2002. Since that time, nothing has transpired. As far as I can tell, the receivership is still in place. You are seized of this matter on the Commercial List.
I wish to obtain a date for a 9:30 attendance before you to set a date for the hearing of a Motion to Dismiss for Delay pursuant to Rule 24. A schedule for filings may also be set at that time.
[20] The parties did not return before Justice Campbell until April 19, 2011, when a case conference was held. Justice Campbell noted that a response to an offer to the Free Trade defendants was to be delivered by April 26, 2011, and that a further appointment was to be scheduled with Justice Campbell during the week of May 16, 2011. No such further appointment was made.
[21] By letter dated February 5, 2013 counsel for the plaintiffs wrote to counsel for the Free Trade defendants:
I have learned that you have been suspended from practice by the Law Society. We communicated about settlement following the case conference with Justice Campbell on April 19, 2011. I sent you an email on April 29, 2011 asking for clarification of your email of April 27, 2011 regarding settlement. I have not heard from you in response to that email, notwithstanding my emails of May 20, 2011, June 17, 2011, July 15, 2011, August 19, 2011, October 3, 2011, November 9, 2011, December 7, 2011, June 14, 2012, August 16, 2012, September 17, 2012. On September 17, 2012 I asked you if you were still acting in this matter. If you were not acting, I asked for you clients’ notices of intent to act in person and to provide me with their addresses and contact details.
From the Law Society’s website, I understand that you have been suspended since May 2012, but, at no time, did you advise me of the suspension or provide me with contact details for your clients.
Could you please arrange for your file to be transferred to a lawyer in good standing and that a notice of change of solicitors be served and filed by February 15, 2013, failing which all documents will be served directly on Mr. Chatterpaul and Mr. Zhernakov. When you spoke with my assistant on January 31, 2013, you provided email addresses for Mr. Zhernakov and Mr. Chatterpaul. Can you please provide full addresses as soon as possible?
[22] On February 25, 2013 counsel for the plaintiffs wrote the following letter to Justice Campbell:
I act for the plaintiffs in this action, which you have case managed since its commencement in April 2000. Mr. Newbury was the solicitor of record for the defendants, Sayse Chatterpaul and Paul Zhernakov. I have recently learned that Mr. Newbury has been suspended from his practice by the Law Society since May 2012. I sent Mr. Newbury a letter on February 5, 2013, but have not received a response from him. I attach a copy of this letter.
I am writing to request a case conference in this matter. The last case conference we attended before you was on April 19, 2011 wherein Mr. Newbury and I exchanged correspondence about settlement on April 27 and 29, 2011. I followed up with Mr. Newbury by email on May 20, 2011, June 17, 2011, July 15, 2011, August 19, 2011, October 3, 2011, November 9, 2011, December 7, 2011, June 14, 2012, August 16, 2012, and September 17, 2012, but did not receive a response from him.
I am respectfully requesting dates for a case conference/ settlement conference before Your Honour and Mr. Chatterpaul and Mr. Zhernakov or their new legal counsel.
[23] A case conference was held on April 18, 2013. Mr. Chatterpaul attended in person and asked that the conference be adjourned to retain new counsel. Justice Campbell endorsed the record:
Matter adjourned for purpose of arranging new counsel for Mr. Chatterpaul. A settlement conference if necessary.
[24] Several emails, commencing April 22, 2013, were exchanged between counsel for the plaintiffs and Frank Feldman, a lawyer that Mr. Chatterpaul had suggested that he would retain. However, Mr. Feldman confirmed on November 6, 2013, that he had not been retained.
[25] On December 5, 2013, Mr. Newbury re-appeared as counsel for the Free Trade defendants. He wrote the following letter:
I wish to hold a 9:30 case conference to schedule a Motion to Dismiss this action for delay under Rule 24. I have the Motion Record substantially completed, although there are some items of damages and costs which are yet to be filled in and may more properly be dealt with aside from this Motion.
I am preparing an Offer to Settle which will be provided at the latest at the time that my Motion is served.
[26] On January 14, 2014 counsel for the parties attended a case conference before Justice McEwen who made the following Order:
Order to go on consent transferring action to Commercial List as per attached Order;
With respect to a timetable the defendants who are bringing the motion to dismiss for delay shall deliver their motion record by January 22, 2014;
Plaintiffs to deliver responding materials by March 7, 2014;
Cross-examinations to be completed by April 30, 2014;
Undertakings to be answered by May 16, 2014;
Further case conference to be arranged with the Commercial List Office no later than May 31, 2014, to deal with outstanding issues involving refusals and/or further scheduling.
[27] The defendants did not comply with the above timetable.
[28] On June 2, 2014, counsel for the plaintiffs sent a letter to Mr. Newbury indicating that she had not received his Motion Record and also enclosed a Settlement Offer.
[29] On July 11, 2014 Mr. Newbury advised Ms. La Horey that his clients had rejected the Settlement Offer. He enclosed a copy of the Motion Record.
[30] On August 20, 2014 Ms. La Horey advised Mr. Newbury that if the motion to dismiss for delay was to proceed, then she wanted to cross-examine Messrs. Chatterpaul and Zhernakov. Her letter states:
…As I have previously advised you, our position is that you cannot properly bring the motion as the matter was on a trial list. Our position is that the matter should be restored to the trial list.
If we are forced to proceed with the motion, we will put in evidence the many emails and letters I wrote to you which you failed to respond to in which I not only asked for your clients’ position vis-à-vis settlement, I asked if you were still acting. I also suggested that we wanted to “get the file wrapped up”. At no time did you ever advise that your clients were not interested in settling the matter.
If the motion is to proceed, please note that I will want to examine both Mr. Chatterpaul and Mr. Zhernakov. We will also want to allow for a motion for refusals and undertaking as under the prior schedule.
[31] On March 4, 2015, a case conference was held. Justice Newbould removed this action from the Commercial List and ordered that it proceed in the civil court.
[32] The Free Trade defendants filed their Notice of Motion to dismiss this action for delay with this Court on April 9, 2015.
The Law
[33] Rule 24.01(1) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, states that a defendant who is not in default under these rules or an order of the Court may move to have an action dismissed for delay where the plaintiff has failed to:
(1) serve the statement of claim on all the defendants within the prescribed time;
(2) have noted in default any defendant who has failed to deliver a statement of defence, within thirty days after the default;
(3) set the action down for trial within six months after the close of pleadings; or
(4) move for leave to restore to the trial list an action that has been struck off the trial list, within thirty days after the action was struck off.
[34] The defendants rely upon Rule 24.01(1)(c) as they submit that the plaintiffs have not served a trial record or set this action down for trial.
[35] Even if an action cannot be dismissed under Rule 24.04(1), it may be dismissed by the Court exercising its inherent jurisdiction to prevent an abuse of its own process.[^7]
[36] An action should not be dismissed for delay unless the Court is satisfied that:
the delay has been intentional and contumelious; or
the plaintiff or the plaintiff’s lawyers have been responsible for an inexcusable delay that gives rise to a substantial risk that a fair trial of the issues in the litigation will not be possible at the earliest date at which, as a result of the delay, the action would come to trial if it were allowed to continue.[^8]
[37] The defendants do not suggest that the plaintiffs intentionally delayed in pursuing this action or showed disdain or disrespect for the court process – which usually involves serial violations of court orders.[^9] Accordingly, this motion will turn on whether the defendants have demonstrated that the second ground for dismissal applies in these circumstances. The delay must be inordinate, inexcusable and such that it gives rise to a substantial risk that a fair trial of the issues in the litigation will not be possible because of the delay.[^10]
Issue #1: Inordinate or Unreasonable Delay
[38] The length of the delay is measured from the beginning of the action to the motion to dismiss.[^11] Applying this measure, the length of the delay in this case is almost 15 years.
[39] One objective of the Rules of Civil Procedure is that an action be resolved expeditiously.[^12] Further, Rule 48.13(1) of the Rules contemplates that an action be set down for trial within two years after the first defence is filed. Finally, the Ontario Court of Appeal has recently recognized that a delay of 15 years represents an inordinate delay.[^13]
[40] In my view, the length of delay in prosecuting this action is inordinate.
Issue #2: Is the Delay Inexcusable?
[41] In Langenecker v. Sauvé, the Ontario Court of Appeal explained:
The requirement that the delay be “inexcusable” requires a determination of the reasons for the delay and an assessment of whether those reasons afford an adequate explanation for the delay. As LaForme J. explained in De Marco, at para. 26, explanations that are “reasonable and cogent” or “sensible and persuasive” will excuse the delay at least to the extent that an order dismissing the action would be inappropriate.
In assessing the explanations offered, the court will consider not only the credibility of those explanations and the explanations offered for individual parts of the delay, but also the overall delay and the effect of the explanations considered as a whole. For example, in this case, the appellants offered a “sensible and persuasive” explanation for part of the lengthy delay in completing the discovery process, but offered little by way of cogent explanation for the many other lengthy delays that occurred in the course of 15 years since this action was commenced.[^14]
[42] The plaintiffs allege that the 15-year delay was as a result of settlement discussions between the parties. Further, the plaintiffs allege that this Court approved the 15-year delay as it was aware that the parties were attempting to settle this action and attempted to assist the parties with the settlement of this action.
[43] The affidavit of Brent Binions, sworn May 14, 2015, states:
I have been actively engaged in prosecuting this claim on behalf of the plaintiffs from the outset. I understand that Justice Campbell was case managing the action, taking a hands-on approach to facilitating resolution. On many occasions, the Free Trade Defendants, whether individually or through counsel, conveyed their intent to settle the action, which in my view was in the interest of all parties. I understood the various case conferences and discussions at the direction of Justice Campbell to amount to judicial approval to continue in such a manner. [emphasis added]
[44] In my view, the evidence does not show that the delay was the result of settlement discussions. That might have been a cogent excuse for a few years until 2005, but given the pattern of inaction and unresponsiveness from the Free Trade defendants and the failure of the plaintiffs to take any fresh steps to seek the Court’s assistance to move this action along, it is my view that the delay is more reflective of an unwillingness to take this action to trial.
[45] Further, there is no basis to suggest that this Court approved the glacial pace of this litigation. The trial of this action was adjourned to a date to be fixed pre-emptory on the Free Trade defendants since October 16, 2001. However, the plaintiffs never sought to re-schedule the trial of this action. This action was commenced by the plaintiffs, not this Court, and the responsibility rests with them, not this Court, to move this action along to trial or settlement. The plaintiffs are solely responsible for their litigation strategy or lack thereof.
[46] In my view, the plaintiffs do not have a reasonable and cogent excuse for the delay.
Issue #3: Does the Delay Give Rise to a Substantial Risk that a Fair Trial of the Issues in the Litigation Would not be Possible?
[47] In Langenecker the Ontario Court of Appeal stated:
The third requirement is directed at the prejudice caused by the delay to the defence’s ability to put its case forward for adjudication on the merits. Prejudice is inherent in long delays. Memories fade and fail, witnesses become unavailable, and documents and other potential exhibits are lost. The longer the delay, the stronger the inference of prejudice to the defence case flowing from that delay. …
In addition to the prejudice inherent in lengthy delays, a long delay can cause case-specific prejudice. …[^15]
[48] In Khan v. Metroland Printing, Publishing & Distributing Ltd.[^16] the Court adopted the following statement:
Where there is a presumption of prejudice, the defendant need not lead actual evidence of prejudice and the action will be dismissed for delay unless the plaintiff rebuts the presumption. The presumption of prejudice may be rebutted by evidence that all documentary evidence has been preserved and the issues in the lawsuit do not depend on the recollection of witnesses or that all necessary witnesses are available with detailed recollection of the events. If the presumption is rebutted then the action may still be dismissed if the defendant leads convincing evidence of actual prejudice.[^17]
[49] On the hearing of this motion the Free Trade defendants did not dispute the plaintiffs’ assertion that: 1) the witnesses required for this trial are primarily the principals for the corporate plaintiffs and the Free Trade defendants and such individuals remain available to testify at trial; 2) all of these individuals, as well as others, were examined in 2000 and 2001 and the transcripts have been preserved and may be used to refresh the memories of those individuals as required; 3) all documentary evidence has been preserved. Accordingly, the plaintiffs have rebutted the presumption of prejudice. The Free Trade defendants have led no evidence of actual prejudice.
[50] The plaintiffs have indicated that they are ready to proceed to trial in the fall of 2015. It is my view that the Free Trade defendants have failed to establish that the delay has given rise to a substantial risk that a fair trial of the issues in this litigation will not be possible.
Other Matters
[51] A pre-condition to the use of Rule 24.01 is that the moving party must not be in default under these rules or an order of the Court. It appears that the Free Trade defendants may be in default of: 1) the Order of Justice C. Campbell, dated October 16, 2001, which required the defendants Chatterpaul and Zhernakov to answer undertakings given at their examinations by November 2, 2001; 2) the Order of Justice McEwen, dated January 14, 2014, that required undertakings to be answered by May 16, 2014. Had there been clear evidence that the Free Trade defendants were in default of an order of the Court, then that would have been a further reason not to dismiss this action for delay.
Trial List
[52] The parties agreed at the hearing of this motion that this action should be placed on the trial list in the event that the motion to dismiss for delay was denied.
Conclusion
[53] Accordingly, I dismiss the Free Trade defendants’ motion to dismiss this action for delay.
[54] In their own ways, the parties expressed a desire to bring this action to a conclusion.
[55] Accordingly, I order that: (1) the plaintiffs serve and file a trial record by June 25, 2015; (2) the parties attend a case conference in my chambers on June 25, 2015 at 4 p.m. at 361 University, Toronto to address the matters described in Rule 50.13(5) and for the purpose of conducting a pre-trial conference under Rule 50.13(6)(b); (3) the parties attend a further pre-trial conference on August 26, 2015, commencing at 2:15 p.m. at 361 University Avenue, Toronto; (3) eleven days for this action have been set aside, and the trial of this action shall commence on October 5, 2015.
[56] I reserve costs of this motion to the trial judge.
Mr. Justice M. Faieta
Released: June 16, 2015
CITATION: Gold Chance Int’l Limited v. Daigle & Hancock, 2015 ONSC 3862
COURT FILE NO.: 00-CV-188866
DATE: 20150616
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
GOLD CHANCE INT’L LIMITED, CEBY MANAGEMENT LTD. and JBG MANAGEMENT INC.
Plaintiffs
– and –
DAIGLE & HANCOCK , DOUGLAS H. HANCOCK, PETER M. DAIGLE, TRIGLOBE INTERNATIONAL FUNDING INC., FREETRADE BUREAU, S.A., FREE TRADE BUREAU, S.A., 1170870 ONTARIO LIMITED operating as G & S ENTERPRISES, G & S ENTERPRISES ONTARIO LIMITED, G & S ENTERPRISES ONTARIO LTD.,SAYSE CHATTERPAUL, PAUL ZHERNAKOV, THE BANK OF NOVA SCOTIA, and BANK OF MONTREAL, SAYSENARINE CHATTERPAUL (also known as SAYSE CHATTERPAUL), BRITISH TRADE & COMMERCE BANK, and GEORGE BETTS
Defendants
REASONS FOR JUDGMENT
Mr. Justice M. Faieta
Released: June 16, 2015
[^1]: Affidavit of Sayse Chatterpaul, sworn July 9, 2014. [^2]: Affidavit of Sayse Chatterpaul, sworn July 9, 2014. [^3]: Affidavit of Brent Binions, sworn May 14, 2015, para. 12. [^4]: Affidavit of Brent Binions, sworn May 14, 2015, para. 13. [^5]: Affidavit of Brent Binions, sworn May 14, 2015, para. 15. [^6]: See Affidavit of Brett Binions, paras. 42-55. [^7]: Marché D’Alimentation Denis Thériault Ltée v. Giant Tiger Stores Ltd., 2007 ONCA 695, 87 O.R. (3d) 660, at para. 24. [^8]: Langenecker v. Sauvé, 2011 ONCA 803, 286 O.A.C. 668, at para 5. [^9]: Langenecker v. Sauvé, at para. 6. [^10]: Langenecker v. Sauvé, at para. 7. [^11]: Ali v. Fruci, 2014 ONCA 596, 122 O.R. (3d) 517, at para. 11. [^12]: Rule 1.04(1). [^13]: Langenecker v. Sauvé, at para. 8. [^14]: Paras. 9-10. [^15]: Paras. 11-12. [^16]: 2013 ONSC 944, aff’d 2013 ONCA 571, leave to appeal refused [2013] S.C.C.A. No. 455. [^17]: Para. 15.