CITATION: 2041094 Ontario Inc. v. Aplus General Contractors, 2016 ONSC 2175 COURT FILE NO.: CV-11-3116-00 DATE: 2016-03-31
ONTARIO SUPERIOR COURT OF JUSTICE
B E T W E E N:
2041094 ONTARIO INC. Operating as TLN MASONRY Plaintiff
- and -
THE REGIONAL MUNICIPALITY OF PEEL and APLUS GENERAL CONTRACTORS CORPORATION Defendants
COUNSEL: Robert Moubarak, for the Plaintiff Leora Wise, for the Defendants
HEARD: February 8, 2016, at Brampton, Ontario
BEFORE: Price J.
Reasons For Order
NATURE OF MOTION
[1] The plaintiff, 2041094 Ontario Inc., operating as TLN Masonry (“TLN”), set this construction lien action down for trial, and it is scheduled to be tried at the May 2016 trial sittings. After the action was set down, the defendant, Aplus General Contractors Corporation (“Aplus”), moved, pursuant to Rule 56.01(1) of the Rules of Civil Procedure, for an order requiring TLN to post security for costs in the amount of $27,000. TLN opposes the motion on the grounds, among others, that Aplus unreasonably delayed bringing the motion, and failed to seek leave to bring it, as required by the Construction Lien Act[^1] (“CLA”) and by Rule 48.04 of the Rules of Civil Procedure.
BACKGROUND FACTS
[2] Aplus was the general contractor for construction of the Peel Regional Police Management Centre (the “premises”). TLN was a subcontractor, and supplied labour and blocks for the project, pursuant to an agreement which the parties entered into in May 2010.
[3] TLN claims that:
(i) The parties agreed to a price for the labour and materials pursuant to the contract.
(ii) Aplus approved extras to be supplied at an agreed-upon price plus taxes, beyond those specified in the contract.
(iii) Aplus breached the contract by failing to pay TLN’s invoices for work it performed.
[4] Aplus disputes that it breached the contract or that it owes the amount that TLN claims, either pursuant to the contract or for agreed-upon extras. It additionally disputes the quality of the labour and material that TLN supplied, and the completion date of the contract. It says that TLN’s delays and the deficiencies in the labour and material it supplied, caused Aplus to incur costs in relation to the project, for which TLN is responsible.
[5] Aplus asserts, and TLN does not dispute, that TLN no longer operates as a business and is unlikely to be able to pay Aplus’ costs of the proceeding if TLN is unsuccessful at trial.
ISSUES
[6] The court is asked to determine the following issues:
a) Should Aplus be granted leave pursuant to s. 67(2) of the Construction Lien Act and Rule 48.04 of the Rules of Civil Procedure to bring this motion, or should the motion be dismissed due to Aplus’ delay and its failure to seek leave before bringing the motion?
b) Should TLN be required to post security for costs?
PARTIES’ POSITIONS
a) Should the court grant Aplus leave to bring the motion, having regard to its delay in bringing the motion and its initial failure to request leave?
[7] TLN submits that:
(i) Aplus has known since at least May 7, 2014, that TLN was unlikely to have sufficient assets to pay Aplus’ costs if it is unsuccessful in the action.
(ii) Aplus delayed for the two intervening years before bringing the motion. It did not deliver its motion material until August 7, 2015, and did not schedule a date for the hearing of the motion until after the action was set down for trial. It characterizes the motion as a delay tactic.
(iii) Aplus does not come to court with “clean hands”, as it did not conform to the timetable that Justice Corbett set for the action in 2010.
(iv) Aplus’ delay in bringing the motion prejudiced TLN by lulling it into a false sense of security until the eve of trial, and by causing it to incur costs in the two years from the date when Aplus first became aware of TLN’s inability to pay costs to the date when Aplus brought the motion, which costs TLN would not have incurred had the motion been brought in a timely manner.
[8] Aplus submits that:
(i) Its delay in seeking leave to bring its motion is an irregularity that the court can and should cure by exercising its discretion pursuant to Rule 3.02 of the Rules of Civil Procedure.
(ii) Its delay in bringing the motion was caused by TLN’s failure to cooperate in the scheduling of the motion.
(iii) Its delay has not prejudiced TLN.
(iv) This court’s decision in 462007 Ontario Ltd. v. Daneshzadeh, in 2008, supports Aplus’ argument that security for costs can be ordered even at the commencement of a trial.[^2]
b) Should TLN be ordered to pay security for costs?
[9] TLN submits that it is impecunious, but that its case is not devoid of merit, as evidenced by Aplus’ acknowledgement that it has not paid the full amount that TLN invoiced, and that there is a genuine issue as to the amount owed. TLN submits that in these circumstances, it would be unjust to require it to post security for costs.
[10] Aplus submits that while there is evidence that TLN has insufficient assets in Ontario to pay Aplus’ costs if it is unsuccessful, TLN has failed to prove that:
(i) It is impecunious; or that
(ii) It is likely to be successful if it proceeds to trial.
[11] Aplus further submits that it has posted security for TLN’s costs, and that it would be unjust to require it to proceed to trial with a shell company like Aplus that has nothing to lose if it is unsuccessful.
ANALYSIS AND EVIDENCE
a) Should Aplus be granted leave to bring its motion for security for costs at this time?
(i) Aplus’ delay in bringing the motion
[12] For the reasons that follow, I find that Aplus learned on February 27, 2014, that TLN likely had insufficient assets in Ontario to pay Aplus’ costs if TLN was unsuccessful at trial.
[13] Aplus examined Noel Allen (“Mr. Allen”) as a representative of TLN on February 27, 2014. Mr. Allen stated that he is the only owner, officer, and director of TLN. He acknowledged that TLN is not currently carrying on business. It stopped carrying on business in May 2013, and has no active projects.
[14] Rachel Bezaire, a law clerk at Wise & Associates, Aplus’ solicitors, conducted execution searches of TLN on April 11 and 25, 2014, February 18, 2015, and August 5, 2015, in Brampton, Newmarket, Oshawa, and Toronto. Her searches disclosed the following executions:
(i) An execution filed by the Workplace Safety and Insurance Board on July 16, 2013, in the amount of $42,767.46, with interest at 12%;
(ii) An execution by BMIUC Local 1, Liuna Local 183, and the Masonry Council of Unions, filed July 19, 2013, for a judgment dated July 18, 2013, in the amount of $49,765, with interest at 3%; and
(iii) An execution filed by the Ontario Ministry of Labour, Director of Employment Standards, on December 8, 2014, for a judgment obtained December 1, 2014, in the amount of $1,127.65, with interest at 3%.
[15] The above executions, excluding accrued interest, total $93,660.11. With interest, they approximate the value of TLN’s claim against Aplus, which amounts to $108,000, inclusive of HST, without taking into account Aplus’ counterclaim, which amounts to $100,000.
[16] TLN’s corporate profile report dated April 10, 2014, discloses that TLN filed its annual tax return for 2010 on February 25, 2014, two days before Mr. Allen was examined for discovery. The corporate document histories dated February 19, 2015, and August 5, 2015, disclose that TLN did not file tax returns for any year after 2010.
[17] Aplus waited a year and a half, from February 27, 2014, when it learned that TLN likely had insufficient assets in Ontario to pay a costs order, to August 7, 2015, when it delivered its motion material to bring its motion for security for costs. It did not schedule a hearing date for the motion until September 29, 2015, when it notified TLN that the motion would be heard on February 8, 2016.
[18] Notwithstanding Aplus’ delay in bringing its motion, I conclude, for the reasons that follow, that it should be granted leave.
(ii) Consent to bring the motion pursuant to the CLA
[19] TLM brought the present action under the Construction Liens Act (“CLA”).[^3] The CLA is intended to provide a summary procedure for the trial of claims. Section 67 (1) of the CLA provides:
Summary procedure – The procedure in an action shall be as far as possible of a summary character, having regard to the amount and nature of the lien in question. [Emphasis added]
[20] Justice McDermid, in Global Design & Building Inc. v. 1289193 Ontario Inc., in 2000, correctly characterized the CLA when he stated, in reference to section 67 (2):
The Legislature has chosen to initiate a special regime for construction liens in order to provide a simplified, inexpensive, expeditious, and ‘summary’ way of resolving such disputes. The treatment of construction lien actions is intentionally different from other actions for identifiable and sound reasons.[^4] [Emphasis added]
[21] Section 67(2) of the CLA requires a party to obtain the consent of the court for any interlocutory proceedings not provided for in the CLA. It provides:
67(2) Interlocutory steps, other than those provided for in this Act, shall not be taken without the consent of the court obtained upon proof that the steps are necessary or would expedite the resolution of the issues in dispute.
[22] The CLA does not provide for a motion for security for costs. Therefore, Aplus required the consent of the court before bringing its motion. Such consent requires proof that the order requested is necessary, or would expedite the resolution of the issues in dispute. Aplus was required to post security for costs in the amount of $27,000 as part of the bond it posted to vacate TLN’s lien. In such circumstances, the court in Prasher Steel Ltd. v. D. Grant & Sons Ltd., in 2014, held that a motion for security for costs was necessary within the meaning of the CLA.[^5]
[23] Rule 67(2) sets out the facts that a moving party must prove in order to obtain an order for security for costs. Where the moving party fails to prove that it is impecunious, it must prove that it is likely to succeed at trial.
(iii) Leave to bring the motion after the action is set down for trial
[24] Rule 48 of the Rules of Civil Procedure provides that a party who has set an action down for trial, or consented to an action being placed on a trial list, must obtain leave of the court before initiating or continuing any motion:
48.04(1) Subject to sub-rule (3), any party who has set an action down for trial and any party who has consented to the action being placed on a trial list shall not initiate or continue any motion or form of discovery without leave of the court.[^6]
[25] The present action was set down for trial on consent, and is currently on the list of actions to be tried at the trial sittings in May 2016. Leave is therefore required under Rule 48.04. Aplus did not seek leave until February 3, 2016, when it delivered its amended Notice of Motion.
[26] In 1632097 Ontario Ltd. v. 1338025 Ontario Inc., in 2011, Master Muir considered the moving party’s failure to request leave as one of a number of factors that caused him to refuse a motion for security for costs.[^7] TLN submits that Aplus unreasonably delayed bringing its motion and that, for this reason, among others, its motion should be dismissed.
[27] Aplus’ delay in seeking leave is an irregularity for which the court may grant relief by exercising its discretion under Rule 3.02 of the Rules of Civil Procedure. Rule 3.02 provides, in part:
3.02(1) Subject to sub-rule (3), the court may by order extend or abridge any time prescribed by these rules or an order, on such terms as are just.
(2) A motion for an order extending time may be made before or after the expiration of the time prescribed.
[28] Unexplained delay in bringing a motion for security for costs can cause the court to refuse leave to bring a motion after the action has been set down for trial. It can also cause the court to exercise its discretion not to require a litigant to post security for costs.[^8] It is therefore necessary for the court to examine the history of the present proceeding in some detail, in order to determine to what extent Aplus is at fault for its delay in bringing the present motion.
(iv) Responsibility for the delay in bringing the motion
[29] For the reasons that follow, I find that TLN must bear primary responsibility for Aplus’ delay in bringing its motion for security for costs.
1. Efforts to avoid motion for security for costs
[30] On May 7, 2014, Aplus’ lawyer, Leora Wise (“Ms. Wise”) sent an email to TLN’s lawyer, Robert Moubarak (“Mr. Moubarak”), as follows:
Since Mr. Allen mentioned on examination that TLN has not been carrying on business since May 2013, my client is concerned that TLN may be a shell company with inadequate assets to pay cost orders. If that is the case, I have been instructed to bring a motion for security for costs. My client does not want to bring such a motion, however, if these concerns are unfounded. Can you provide me with the necessary evidence to satisfy my client’s concerns. [Emphasis added]
[31] On May 7, 2014, Ms. Wise sent a further email to Mr. Moubarak:
[A]fter sending my last email I was advised that there is a judgment against Anthony Allan [sic] and TLN for $49,765.00 registered with the sheriff in Brampton and a judgment against 2041094 Ontario Inc. registered with the sheriff in Brampton for $42,767.46 and further that there may be outstanding cost orders payable by TLN in a couple of Brampton actions – CV-05-00010509-0000 and CV-05-00010530-0000. Can you let me know if the judgments have been paid, and if there are any outstanding cost orders payable by TLN in the Brampton actions. [Emphasis added]
[32] Ms. Wise did not receive a reply to her inquiry. After she sent a follow-up email on June 6, 2014, Mr. Moubarak replied by email on June 9, 2014, as follows:
[R]egarding security for costs, I advise that there is no need for one but it’s your client’s decision. Any money owed by my client is the result of your client not paying my client. TLN is not a shell company. It is a viable company that remains active.
[33] Mr. Moubarak’s reply was not responsive to Ms. Wise’s inquiry. It did not advise her whether the judgments had been paid, or whether there were any outstanding costs orders against TLN in the Brampton actions.
2. Aplus’ requests for TLN’s counsel’s availability for a motion
[34] Based on Mr. Moubarak’s reply, Ms. Wise notified him that her client was bringing a motion for security for costs. On June 6, 2014, for the first time, she requested dates when he would be available for the hearing of such a motion. Her email of that date stated:
Also, following-up on my two emails of May 7th with respect to a security for costs motion. Let’s discuss the possibilities for arrangements that can be made. In the meantime, we should deal with this before the discoveries. Are you free during the weeks of July 1 or July 7? I’m in the office for the better part of the day. Feel free to call to discuss.
[35] Mr. Moubarak did not provide dates when he would be available for the hearing of a motion for security for costs. Instead, he advised Ms. Wise that he intended to proceed with his examination for discovery of Aplus’ representative. On June 9, 2014, he sent an email to Ms. Wise advising her that he was instructed not to adjourn the examinations of Aplus to await the outcome of a motion for security for costs. Additionally, he made a bald assertion that any money TLN owed for outstanding judgments was caused by Aplus. He stated:
Regarding security for costs, I advise that there is no need for one but it’s your client’s decision. Any money owed by my client is the result of your client not paying my client.
[36] On June 9, 2014, Ms. Wise sent a further email to Mr. Moubarak in which she notified him that she wished to schedule the motion for security for costs without regard to his examination for discovery of Aplus. For the second time, she asked him for dates when he would be available, suggesting dates in July 2014. She stated:
With respect to security for costs. I do have instructions to look into this matter further and it makes sense to proceed with it before the discovery. How are July 3, 4, 8, 10 or 11 for you? [Emphasis added]
[37] On June 10, 2014, Mr. Moubarak replied:
I am not available for July 8th or any of the dates you provided. I am on trial. My earliest dates would be in August, September and I will have to see your material and decide first if I am going to need to cross-examine. So we should perhaps be more realistic with the dates we canvass. [Emphasis added]
[38] Ms. Wise sent a further email to Mr. Moubarak on June 10, 2014. She tried to accommodate his schedule by offering dates in August and September, which were the earliest months when he said he would be available. For the third time, she asked for his available dates. She wrote, “How are Aug 19, 21, 26, or Sept 4, 5, 9, 16 and 18?
[39] Mr. Moubarak again did not reply to Ms. Wise’s inquiry, or advise her of any dates in August or September when he would be available for the hearing of her motion.
[40] By email dated July 10, 2014, Ms. Wise asked Mr. Moubarak for documentation to support TLN’s position that any money owed by it was as a result of Aplus. She received no response to her inquiry.
[41] Because Mr. Moubarak would not postpone the discovery of Aplus’ representative until after a motion for security for costs was heard, the examination proceeded in July 2014. Counsel spent the balance of the year complying with their respective clients’ undertakings.
3. Aplus’ proposal of a timetable for the motion
[42] On February 17, 2015, Ms. Wise sent an email requesting further compliance with TLN’s undertakings. She added the following:
Also, we have instructions to bring a motion for security for costs. I believe in Brampton we just choose a return date and create our own schedule. I propose the following schedule and look forward to your input:
March 6th – service of motion record
March 27th – service of responding record
April 10th – service of Reply record, if any.
Cross-exams by no later than May 8th.
Moving factum by June 5th
Responding factum by June 19th
Motion returnable on or after June 29th [Emphasis added]
[43] Mr. Moubarak replied by email on February 23, 2015. With regard to security for costs, he stated:
I also advise you to review my response in the past to your client’s threats to bring a security for costs motion from over a year ago and before examinations for discovery.
I suggest your client not expose themselves to this motion and divert their energies at settling this matter with a reasonable approach. Failing which we will have a trial. I invite you to review the case law when it comes to security for costs motions and when they ought to be brought and how a party should move for such a motion and finally in which cases would the court actually order a party to post security. I suggest that even if, as you believe, my client has financial issues, it is no basis to order them to post security in the circumstances where it would deny them their day in court or cause injustice. The court will look at what the moving party’s true intentions are behind a security for costs motion when brought.
Having said all this, if your client is adamant about diverting their resources to senseless interim motions rather than having a meaningful settlement discussion, then once I have your material we can decide Leora on a reasonable timetable. I do not know what your material will be and if I will need to examine your client (I may decide to do so) and if you will want to examine my client on his material. Further, we will need to decide how long the motion will take.
My instructions Leora are to push for Trial if your client is not interested in settlement…. [Emphasis added]
[44] In other words, Mr. Moubarak refused to provide dates when he would be available for the hearing of the motion, or to agree to a timetable, until he had received the motion material. He thereby forced Ms. Wise either to set a hearing date unilaterally, or to deliver her motion material without a return date.
[45] On March 9, 2015, Mr. Moubarak sent a further email with the subject line “Responses to Undertakings and Security for Costs”. He stated, “Hi Leora, did you discuss below with the client. I’m being hounded to proceed to trial. I would like to see if we can resolve this before.”
[46] On March 19, 2015, Ms. Wise sent a further email to Mr. Moubarak explaining that she was on vacation, and that Aplus’ representative had just returned from vacation. She continued, “I believe my instructions are to serve the motion soon. I will confirm.” [Emphasis added]
[47] On April 17, 2015, Ms. Wise sent a further email in which she stated that her client was agreeable to August 18th for the pre-trial conference. She added, “Also, the security for costs materials will be served shortly.” The pre-trial conference was eventually scheduled to take place August 26, 2015.
4. Aplus’ service of the motion on TLN
[48] Aplus served its 2-volume motion for security for costs on August 7, 2015, five months after Ms. Wise said that she would be serving the motion “soon”, and 21 days before the pre-trial conference. When she served the motion she had not yet obtained a date for the hearing. Her law clerk sent a covering letter with the motion record, which stated:
The Notice of Motion is currently without a date. As soon as a date is agreed upon I will forward a completed version. There will also be a very brief Supplementary Motion Record with the Affidavits of Garry Cupples, Carlos Dionisio and Wendy Suen. There will be no additional exhibits accompanying them. Ms. Wise and I are both on vacation from August 10-17, 2015. [Emphasis added]
5. Aplus’ proposal that the motion be heard September 30, 2015
[49] On August 17, 2015, Ms. Wise sent her fourth request for Mr. Moubarak’s availability for the hearing of a motion. On that date, she sent her client’s refusals and undertakings chart. In her letter, she proposed, for the first time, that the motion be heard on September 30th. It is unclear how much time she believed would be required for argument when she proposed September 30, 2015, as a date when the motion could be heard. She was evidently unaware that in Brampton, owing to the shortage of judicial resources, it is necessary to make an appointment three to five months in advance for a motion requiring an hour or longer to argue. In her letter dated August 17, 2015, she stated, “Also, checking in on your availability for my client’s security for costs motion. Brampton schedules long motions on Wednesdays. How is September 30, 2015?”
[50] Mr. Moubarak did not respond. On August 19, 2015, Ms. Wise tried a second time to propose that the motion be heard on September 30, 2015. She sent a further email, asking Mr. Moubarak to confirm September 30, 2015, as the date for the hearing of the motion.
[51] Mr. Moubarak did not respond to Ms. Wise’s proposed date. Instead, he invited her to postpone setting a date for the motion until the pre-trial conference. In his email dated August 19, 2015, several hours after receiving Ms. Wise’s follow-up email of the same date, he stated,
We can address this at the pretrial next week. Also, when will we get complete and executed motion material from your client by you suspect? Also how long will you require for this motion, Leora?
[52] Ms. Wise replied a few minutes later, still seeking agreement at that time on a date for the hearing of the motion. She stated:
Let’s just book the motion now, I don’t want to wait until next week. The length of the motion will depend on your client’s response. I thought 2 hours was realistic but let me know if you think it should be longer and I’ll consider it.
Re complete executed materials, the supplementary record with the short affidavits is completed and I believe may have already been mailed to you. …Rachel [Ms. Wise’s law clerk] can confirm… [Emphasis added]
[53] On August 25, 2015, Ms. Wise had not received a reply from Mr. Moubarak, and tried a third time to confirm September 30, 2015, as the date for the hearing of the motion. She sent a further email to him in which she stated, “Following-up again on the motion date. I haven’t heard from you and intend to proceed on September 30th.”
[54] Following the pre-trial conference on August 26, 2015, Ms. Wise tried, for a fourth time, to confirm September 30,2015, as the date for the hearing of the motion. She sent an email to Mr. Moubarak’s associate, Zahir Ali, in which she stated:
It was a pleasure meeting you earlier today. A reminder to please let me know of your availability to argue the security for costs motion today. I currently have September 30th booked off. If that date does not work, I am completely free the weeks of Dec 7th and 14th. [Emphasis added]
[55] Mr. Moubarak’s associate now deflected the proposal for a hearing of the motion on September 30th by arguing, for the first time, that the motion would require an hour or longer to argue and, therefore, would require a special appointment. On August 27, 2015, Mr. Ali replied, at 5:07 p.m., stating, “Just wanted to confirm the amount of time you needed for your motion? We will have lengthy materials and anticipate that this motion could take several hours.” [Emphasis added]
[56] Ms. Wise, who was called to the Ontario Bar in 2010, and whose offices were in Toronto, pressed her now-futile efforts to secure Mr. Ali’s consent to a motion a month later when, unbeknownst to her, the court would no longer accommodate a request for a hearing date for a long motion. She sent a further email on August 28, 2015, to Mr. Ali, who was called to the Bar in 2014, and whose offices were in Vaughan, north of Toronto, as follows:
Long motions are scheduled in Brampton for Wednesdays and the date we have proposed, September 30th, is a Wednesday.
Let me know how much time you think we should book for (3 hours?) and I will file with the court accordingly.
If I have misunderstood something in the Brampton procedure, please let me know asap. You had indicated during the pretrial that you would provide your firm’s availability for the motion on the 26th.
[57] On August 28, 2015, at 5 p.m., Mr. Ali, who was apparently equally unaware of the requirement to make an appointment three months or more in advance for a long motion, sent an email to Ms. Wise, as follows:
Thanks for your email, we anticipate our submissions could take about 2 hrs. You are correct with respect to Brampton Long Motions procedures.
I suspect the total time for the motion will be about 4 hrs. Please check with the courts availability on September 30th, as they may only be scheduling long motions for later in the year.
I just tried to call the Brampton Court and was directed to their voicemail, so they may be done for the day. [Emphasis added]
[58] Ms. Wise, although correctly understanding that an appointment for the hearing of a 3-hour motion required an appointment for a specific Wednesday, rather than for an unspecified date on a specific week, was apparently still unaware of the need to book such motions three months or more in advance. On August 31, 2015, she sent an email to Mr. Ali, as follows:
The courts have confirmed that anything under 3 hours can be heard on Sept 30th on the long motion list. If you want 3 hours or more, then we need to go on the trial list for the “week of” meaning we would need to find a full week where we are both free (or mostly free) and there is no guarantee that we would be heard that week. If we are not called that week, the matter gets put over to another week where we are both free. Given how busy lawyers schedules are, it may be challenging to find another clear week. Moreover, it’s unproductive to continuously prepare for a motion that is not argued.
I suspect that my moving submissions will take 45 minutes (but I will book one hour to err on the side of caution). I imagine my reply submissions would be in the 15 minute range. I don’t think we need more than 3 hours.
Let me know what you’d like to do.
[59] Mr. Ali replied by email the same day at 5:51 p.m. He wrote:
I spoke to the Brampton Civil Motions clerk at 905-456-4872. The earliest date for a motion of 3 hours or less is not until 2016. We are unsure as to whether you had scheduled September 30, 2015, with the court or had simply booked it off in your own calendar. According to the motions clerk, no motion in our matter had been scheduled on September 30, 2015. To do so would have meant booking that date more than 6 months ago.
I was also advised that available weeks for motions of 4 hrs on the trial list will not start until late November – Early December 2015.
We believe this motion will take at least 3 hrs. We will likely need 90-120 min to argue our position. We also intend to conduct cross-examinations. [Emphasis added]
[60] On September 1, 2015, Ms. Wise sent a further email to Mr. Ali, pressing the date she had apparently been given earlier, as follows:
September 30th was the date given to us by the court. We couldn’t send in the materials because your office wouldn’t agree to the date. It seems from your email below that the date is no longer available. We will call and get early 2016 dates for a 3 hour motion. I think it should be enough and will get heard more quickly than a 4 hour motion. In any event, I’m away for most of November so can’t book the motion for then. I have availability in December however at that time of year I suspect the matter will get put over into 2016.
I’ll be in touch once we have new dates.
When will you be serving your responding materials? [Emphasis added]
[61] On September 2, 2015, Mr. Ali sent an email to Ms. Wise as follows:
At the pre-trial, we were put on the trial list for May 2016. The only 2 options the Judge would provide were for January 2016 or May 2016.
If that is the motions schedule that Brampton is offering, then perhaps this motion can be dealt with at the trial? Seeing as how this trial was estimated to take 10 days, this motion only adds 3-4 hrs.
At this point we cannot postpone to a later date. [Emphasis added]
[62] The following morning, Ms. Wise sent a reply email as follows:
Her Honour scheduled the May 2016 sitting when she was of the belief that the security for costs motion was being heard in or around September 2015. She also made it clear that your office needed to cooperate in scheduling the motion.
It doesn’t make sense to hear the motion at the return of the trial because that defeats the purpose of security for costs motions as in we would then have to prepare for the trial which the motion will hopefully obviate.
Moreover, had your office agreed to the September 30th return we would not be in the position we are in now.
We would like to book for the earliest date possible, being May 25, 2016. If your client will not consent to putting the matter over to the next sitting we will need to then determine whether we need to deal with the sequencing of events at Brampton’s trial-scheduling court (I’m unfamiliar with the procedure around this) or whether we need to bring a motion to adjourn the trial to the next sitting.
I’m around and happy to discuss but otherwise please let me know as soon as possible what your client’s position is so that we can start arranging for next steps. [Emphasis added]
[63] An hour later, on September 3, 2015, Mr. Ali sent a reply to Ms. Wise, in the following terms:
We accommodated your schedule and allowed the trial to be scheduled for May 2016. Frankly, this trial should have been scheduled for January 2016. We cannot delay this trial.
In regards to the September 30, 2015, date, it is our belief that this date was created out of thin air. This is based on the following:
We called the Brampton Motions Coordinator and no September 30, 2015, date was booked in this matter.
Given how quickly motions are scheduled in Brampton, the only possible way for a September 30, 2015, date to be booked is if it was scheduled more than 6 months ago. We received no correspondence 6 months ago with suggested dates. We did not even receive your material until August. Having spoken with the motions court, the earliest possible date you could have obtained in August would have still been in 2016. We and the Pre-Trial Judge were under the impression that you had obtained September 30, 2015. Had we not spoken with the Brampton court, we would have still been under that impression.
Given the fact that you had more than a year to bring your motion for security for costs, you have delayed numerous times and now are trying to delay this even further by pushing this to another sitting. You had advised the Judge that a date of September 30, 2015, would be fine for a motion. Now, you have told us that you did not actually speak to the court and just picked a date and “booked it off”.
We have every belief that these delay tactics are not appropriate and will raise them at a motion and will be seeking costs.
Please schedule your motion before the trial on May 2016 and we can proceed. We will not delay this any longer. [Emphasis added]
6. Aplus’ scheduling of the motion to be heard February 8, 2016
[64] Negotiations regarding a date for the motion continued, interrupted by Mr. Mubarak’s resumption of carriage of the file for Aplus and his departure from the country on vacation from about September 12 to 20, 2015. The correspondence that took place upon his return can be summarized as follows.
[65] Ms. Wise was unable to obtain from the court dates before trial for a motion of the length (4 hours) that Mr. Ali now said would be required. Mr. Moubarak refused to adjourn the trial from the May 2016 sittings and Ms. Wise refused to argue the motion at the beginning of the trial, as this would defeat the purpose of avoiding the cost of preparing for a trial if Aplus succeeded in obtaining an order for security for costs and TLN failed to post the amount required. Ms. Wise proposed writing to the pre-trial judge to request a further attendance, in the hope that the judge could “fanaigle” an earlier date for the hearing of the motion. Mr. Moubarak opposed this proposal on the ground that it would, in his view, amount to “judge shopping”.
[66] Ms. Wise consulted the court and was given two dates in February, namely, February 8 and 22, 2015, for the hearing of a 3 hour motion, as any motion exceeding that length would have required a “week of” hearing, and the November list for such hearings was full. On September 29, 2015, Ms. Wise sent an email to Mr. Moubarak and his law clerk, Katrina, requesting a response within 15 minutes as to Mr. Moubarak’s preference as between those dates, as otherwise, the dates would be given to other litigants. Mr. Moubarak replied as follows:
I’m in court at the moment in Newmarket. Also in trial sitting for February downtown. Katrina look at March. I though we agreed this is a long motion however. We do not agree that it’s a short motion. We already went through this. My understanding is we need to go to assignment court. You can’t email say we have 15 minutes. [Emphasis added]
[67] Katrina replied to Ms. Wise, stating, with regard to the February dates, “I know he isn’t available those days because he has a family trial slotted for February. What are the available dates for March?” Ms. Wise replied that Mr. Moubarak should be able to adjust the trial dates around the proposed February motion dates, which she said was ordinary procedure when counsel does not have a fixed trial date. Ms. Wise asked if she could try for the February 8th date since it was earlier in the trial sitting. Notwithstanding this reply, Katrina sent a further email minutes later, stating that Mr. Moubarak was available on March 7, 8, 9, 10, and 11. Ms. Wise responded minutes later, stating, “We are not in a position where we are able to provide the court with dates that have not been offered to us. Can you please confirm those 2 February dates.”
[68] In the result, Ms. Wise scheduled the February 8th motion date, and sent an email to Mr. Moubarak the same afternoon, informing him of this, and stating that she would be forced to bring a motion to vacate the trial date and obtain a new trial date that could accommodate the motion. She offered dates in October, November, and December, when she could attend on such a motion, presumably on a regular motion date, requiring less than an hour to argue, for which motions early dates were available.
[69] Mr. Moubarak sent a lengthy email on October 2, 2015, complaining that Ms. Wise had “unilaterally” scheduled the motion on February 8th. The following passages of the email are of particular relevance to the issue of delay:
You had a motion date you booked for May. Now you serve me with a new motion date on a day my office told you I’m not available due to trials. I have TWO trials in February. Both in Toronto. A long civil trial and another Family Trial. These were booked a long time ago. Prior to when you decided to suddenly bring your client’s security for costs motion.
It’s not reasonable or even proper for you now to demand that I tell the court to juggle our trial schedules and any other matters booked in my calendar simply because your client decided to bring a motion. Now it’s two motions.
Counsel it’s also not right for you to call my office and email me saying I have 15 minutes to give you my preference to two dates the court gave you two days ago for a February motion. This is not how practice should be. I’m in court and you are emailing me and calling my office non-stop demanding we answer immediately (within 15 minutes) or you will simply book the date! You went ahead and booked the date you wanted regardless of my non-availability.
We will discuss that at the motion date. [Emphasis added]
[70] Ultimately, the motion proceeded on February 8, 2015. Aplus delivered its factum on January 14, 2016. TLN delivered its responding motion record and factum on February 2, 2016. Aplus delivered its reply motion record and factum on February 3, 2016. A motion to adjourn the trial was not brought, and Mr. Moubarak arranged for another lawyer to attend in his place at the hearing of the motion for security for costs on February 8, 2015.
1. Findings of fact regarding the timing of the motion
[71] Based on the facts reviewed above, I make the following findings of fact about counsel’s negotiation of the date for the hearing of the motion:
(i) From May 7 to July 10, 2014, Ms. Wise properly advised Mr. Moubarak of her concerns regarding TLN’s ability to pay Aplus’ costs, and invited him to provide information that might make a motion for security for costs unnecessary. Ms. Moubarak failed to provide this information, but also did not state explicitly that he would not provide it. His inscrutable responses created ambiguity calculated to engender uncertainty in Ms. Wise, and cause her to delay taking the next step to bring her client’s motion.
(ii) From June 6 to June 10, 2014, Ms. Wise made three different requests to Mr. Moubarak for dates when he would be available for the hearing of the motion. Each time, he failed to provide any dates, but also did not state explicitly that he would not provide such dates.
(iii) On June 9, 2014, Mr. Moubarak refused to consent to the motion for security for costs being brought before his examination for discovery of Aplus. On June 10, 2014, he stated that he would require the motion material before responding to Ms. Wise’s request for his available dates for a hearing of the motion.
(iv) On February 23, 2015, when Ms. Wise finished complying with her client’s undertakings, Mr. Moubarak refused to respond to the timetable Ms. Wise proposed for her motion, including a hearing “on or after June 29, 2015”. Again, he insisted on having her motion material before he would discuss a “reasonable timetable” for the hearing of the motion.
(v) When Ms. Wise delivered her motion material on August 7, 2015, without a hearing date, as Mr. Moubarak had insisted she do, Mr. Moubarak failed to respond to the four proposals she made, from August 17 to 26, 2015, that the motion be heard on September 30, 2015.
(vi) On August 19, 2015, Mr. Moubarak insisted that they wait until the pre-trial conference the following week before scheduling the motion. On August 26, 2015, after the pre-trial conference, Mr. Ali suggested for the first time that the motion would require more than an hour to argue, thereby necessitating a special appointment and rendering September 30, 2015, or any day within the next three months, unacceptable.
(vii) On September 2 and 3, 2015, Mr. Ali proposed, and then insisted, that the motion be made returnable at or before trial.
(viii) When Ms. Wise proposed adjourning the trial, or seeking a further attendance before the pre-trial judge to request an earlier date for a long motion, Mr. Ali refused.
(ix) When Ms. Wise obtained the dates of February 8 and 22, 2015, from the court office for the hearing of the motion, Mr. Moubarak advised her that he was unavailable until March. When Ms. Wise insisted on scheduling the motion on one of the two dates which the court had offered, Mr. Moubarak would not choose between them.
(x) When Ms. Wise selected February 8, 2015, Mr. Moubarak complained that she had done so unilaterally.
[72] Ms. Wise went to extreme lengths to secure Mr. Moubarak’s consent to a date for the hearing of Aplus’ motion. In doing so, she jeopardized her client’s right to have its motion heard. After she repeatedly tried to accommodate Mr. Moubarak’s calendar, he characterized her efforts as a strategy designed to delay the proceeding and frustrate TLN’s effort to have its action tried.
2. Ms. Weise’s duty with regard to the scheduling of the motion
[73] Ms. Wise was required to balance the following, somewhat conflicting, dictates of the court and of the standards governing her conduct as a lawyer:
(i) Rule 48.04 of the Rules of Civil Procedure, which restricts a litigant’s right to move for security for costs by requiring leave for such a motion after the action is set down for trial;
(ii) Rule 1.04(1) of the Rules of Civil Procedure, which provides that the Rules are to be liberally construed to secure the just, most expeditious, and least expensive, determination of every civil proceeding on its merits;
(iii) The court’s practice directions in some areas, including Toronto, which direct counsel to consult each other as to their availability before scheduling the hearing of a motion;
(iv) Clause 1.03 (1) (a) of the Rules of Professional Conduct, published by the Law Society of Upper Canada, which states that a lawyer must discharge all his/her responsibilities to other members of the profession honourably and with integrity;
(v) Subsection 6.03 (3) of the Rules of Professional Conduct, which provides that a lawyer must not engage in sharp practice;
(vi) Subsection 6.03 (1) of the Rules of Professional Conduct, which requires a lawyer to be courteous, civil, and act in good faith, with all persons with whom the lawyer has dealings in his or her own practice; and
(vii) Paragraphs 11 and 12 of The Advocates’ Society publication, “Principles of Civility for Advocates”, which recommend that counsel consult opposing counsel regarding scheduling matters, in an effort to avoid conflicts and attempt to accommodate the calendar conflicts of opposing counsel for previously scheduled hearings and other functions.
[74] The court expects counsel not to book motions unilaterally, as reflected in the statement by Master Birnbaum in Guttmann v. Halpern, in 2008, when he commented on the practice direction in Toronto governing the scheduling of motions:
…Mr. Tighe, for the defendants, raised two preliminary matters at the beginning of the motion.
Firstly, he raised the manner in which the motion was scheduled. I agree that the procedure used was unusual, but this did not mean that I would not hear the motion. Master Linton is not seized of this action. The procedure to be followed is clearly set out in practice directions from the court. Counsel are to communicate with each other to advise of their available dates and then there is to be a telephone call to the scheduling unit on the 10th floor to book the motion. The policy for this procedure is so that the booked time is used and there will not need to be an adjournment and a waste of court time with the resulting denial of another motion not being able to be heard because a list is fully booked. Counsel need to accommodate each other within reason. We do not expect motions that are not urgent to be unilaterally booked.[^9]
[75] Similarly, Justice Shaw, in Beneda v. Canada (Attorney General), 2006, criticized counsel for scheduling a hearing on a date when opposing counsel was not available, necessitating a later motion to adjourn the hearing. He said:
The motion for the adjournment, in my opinion, should not have been necessary. The hearing dates of July 31 and August 1, 2006, should not have been set the way they were. Mr. McKeachie and Mr. Anderson had made it clear that they were not available on those dates. They were not being obstructive. They were simply unavailable. They should not have been told that they had to bring a motion to adjourn. … The Advocates’ Society has published a short document, “Principles of Civility for Advocates,” which although not intended as a code of professional conduct, is intended to encourage and maintain civility in our justice system. I draw attention to paragraphs 11 and 12:
Counsel should consult opposing Counsel regarding scheduling matters in a genuine effort to avoid conflicts.
In doing so, Counsel should attempt to accommodate the calendar conflicts of opposing Counsel previously scheduled in good faith for hearings, examinations, meetings, conferences, vacations, seminars or other functions.
This publication has much to recommend it.[^10] [Emphasis added]
[76] Mr. Moubarak’s criticism of Ms. Wise for trying to accommodate his schedule and not schedule the motion unilaterally is unwarranted. When seen in the context of his own failure to respond to her efforts to his availability for the motion, his attribution of bad faith to her is unfair and discourteous. The commentary to Rule 6.03(1) of the Rules of Professional Conduct, requiring that a “lawyer shall be courteous, civil and act in good faith with all persons with whom the lawyer has dealings in the course of his or her practice,” states that the lawyer “should avoid ill-considered or uninformed criticism of the competence, conduct, advice … of other legal practitioners”. Further, the Principles of Professionalism for Advocates state at paragraph 28 that “Advocates should avoid disparaging personal remarks or acrimony toward opposing counsel.”
[77] Justice Scherr, in the Ontario Court of Justice, noted in Sambasivam v. Pulendrarajah, in 2012:
There is a difference between bad faith and unreasonable behaviour. The essence of bad faith is when a person suggests their actions are aimed for one purpose when they are aimed for another purpose. It is done knowingly and intentionally. S.(C.) v. S. (M.) (2007), 2007 ONSC 20279, 38 R.F.L. (6th) 315 (Ont. SCJ).[^11]
[78] Ms. Wise can be faulted for going to unreasonable lengths in seeking to secure Mr. Moubarak’s consent to a date for the hearing of her motion. Master Nolan, in setting aside the dismissal of an action for delay in Flieger v. Canada (Attorney General), in 2003, made the following comment on the delay that had occurred in that case:
While it is difficult to say that there has been no delay in the litigation, it is my view that there has been delay on both sides and that neither side has contributed more than the other. Neither party has availed itself of the remedies contained in the Rules of Civil Procedure to move the matter along. It is not correct that a contested motion can only be scheduled if both parties consent to the date. If that position was articulated by a Courts Administration staff, that information should have been questioned with someone higher in authority. Such a policy, if followed, would lead to absurd results. A party avoiding a motion which might put its action at risk could simply refuse to consent to a date and the motion could never be heard.[^12] [Emphasis added]
3. Mr. Moubarak’s responsibility regarding the scheduling of the motion
[79] Mr. Moubarak delayed the scheduling of the motion for security for costs in the following ways:
(i) He refused to provide dates when he would be available until he completed his examination of Aplus.
(ii) He refused to provide his available dates until he received the motion material.
(iii) He refused to provide dates before the pre-trial conference.
(iv) He stated that the motion required a special appointment, but refused to return to the pre-trial judge to request one.
(v) He refused to adjourn the trial to accommodate the dates that the court office made available for the hearing of the motion.
[80] In these circumstances, Mr. Moubarak cannot be heard to complain that Aplus’ delay in bringing the motion was unreasonable, or that it prejudiced TLN.
b) Should TLN be required to post security for costs?
[81] Motions for security for costs are governed by Rule 56.01 of the Rules of Civil Procedure. It provides:
56.01(1) The court, on motion by the defendant or respondent in a proceeding, may make such order for security for costs as is just where it appears that,
(d) the plaintiff or applicant is a corporation or a nominal plaintiff or applicant, and there is good reason to believe that the plaintiff or applicant has insufficient assets in Ontario to pay the costs of the defendant or respondent;
[82] Justice Code, in Cigar500.com Inc. v. Ashton Distributors Inc., in 2009, outlined the two stages of motions for security for costs and the shifting burden of proof they entail.
The defendant must show that it appears that the plaintiff is a corporation and that there appears to be good reason to believe that the plaintiff has insufficient assets in Ontario to pay the costs of the defendant;
If the defendant meets that burden, the plaintiff has the onus of demonstrating that it would not be just to require it to post security for costs.[^13]
(i) Has Aplus discharged its onus of establishing that there is good reason to believe that TLN has insufficient assets in Ontario to pay the costs of Aplus if TLN is unsuccessful at trial?
[83] Aplus has tendered evidence that TLN has not been carrying on business since 2013 and has judgments against it and its sole principal totaling $93,660.11 plus interest. TLN concedes that it likely does not have sufficient assets to satisfy a costs award in favour of Aplus at trial.
(ii) Has TLN discharged its onus of establishing that it would be unjust to order it to post security for costs?
[84] TLN can meet its onus at stage two by demonstrating:
(i) that it is impecunious and that its claim is not devoid of merit; or
(ii) that it would be unjust to require it to post security for other reasons, such as that its claim has a good chance of success.
[85] For the reasons stated above, I find that there is good reason to believe that TLN has insufficient assets in Ontario to satisfy a costs order. The court must next determine whether TLN is impecunious. The onus is on TLN to prove its impecuniosity if it wishes to rely on it. It must not only show that it does not have sufficient assets to post security, but also that it cannot raise the security for costs from its shareholders and associates.
[86] If a plaintiff, such as TLN, seeks to rely on its impecuniosity, it must meet a higher standard of proof in establishing that fact than a defendant, such as Aplus, must meet at stage one of the analysis, required by Rule 56.
[87] TLN has not led evidence that would support a finding that it is impecunious. In the absence of such proof, TLN is not entitled to rely on the fact that its claim is not plainly devoid of merit.
[88] Where a plaintiff establishes that it is impecunious, it need only demonstrate that its claim is not plainly devoid of merit. Where it fails, as it has here, to establish that it is impecunious, the court must consider whether its claim has a good chance of success, among the factors to be taken into account when determining whether it would be unjust to require it to post security for costs.[^14]
[89] I find that TLN’s claim does not have a good chance of success for the following reasons:
(i) TLN delayed the job, as appears from Aplus’s emails and partial payments, which TLN accepted, with a back-charge of $44,503.51 for having another mason on the job.
(ii) TLN’s principal, Mr. Allen, admitted that TLN was overpaid on one of the invoices (#198) that Mr. Allen had claimed was disputed. The balance of TLN’s claim consists of two disputed extras (#205 and #208) which are unsubstantiated by evidence, including the testimony of Mr. Allen or his employees. In any event, the work that TLN relies on in support of its claim was done by Aplus’ sub-trade.
(iii) Even if Aplus had approved this extra on a time-and-material basis, which it did not, TLN would be required, according to the practice in the construction industry, to produce documentation in support of its invoice in order to collect on it.[^15]
(iv) TLN’s remaining claim is for significantly less than the amount of Aplus’ claim against it. Pursuant to section 35 of the Construction Lien Act, it may be liable to Aplus for damages beyond the amount of Aplus’ back-charges.
[90] Neither party’s factum, pleading, or evidence, sets out sufficient detail for the court to make a determination as to their respective allegations. However, the onus is on TLN to establish that it would be unjust to require it to post security for costs, either because it has a good chance of success or for some other reason. It has not discharged this onus.
[91] TLN submits that it is impecunious and that its claim is not plainly devoid of merit. For the reasons stated above, TLN has not met the standard of proof required to show that it is impecunious. It has not produced its financial statements and bank statements, or an affidavit stating that it is unable to borrow the money necessary to pay Aplus’ costs.
[92] TLN has also not established that it has a good chance of success. It argues that the affidavit of Peter Martins, sworn August 5, 2015, contains an acknowledgment that at least $40,733.99 has not been paid to TLN pursuant to the contract. TLN submits that this is prima facie evidence that its claim has merit. I disagree. This acknowledgement is not evidence that any amount is owed to TLN.
[93] TLN submits that since its claim is not plainly devoid of merit, as even Aplus agrees there is a dispute as to the amount of money owed between the parties, and they should therefore not be required to post security for costs. As noted above, the onus on TLN is not to establish that its claim is not plainly devoid of merit, but that it has a good chance of success. The existence of a dispute as to the amount owed does not discharge this onus.
[94] TLN is unlikely to recover more through this litigation than it owes to its creditors. An order for security for costs is therefore appropriate.[^16] In D.E. & J.C., in 1996, the court concluded that, to be successful, the plaintiff would need to win a judgment worth more than what it owed its creditors. In that case, the court determined that the plaintiff was not impecunious. In the present case, TLN has failed to establish that it is impecunious. The court must therefore consider whether TLN has a good chance of success and that it would therefore be unjust, for that reason, or any other, to order it to post security for costs.
[95] TLN submits that it should not be required to post security for costs, thereby preventing its claim from reaching trial, unless its claim is plainly devoid of merit. It relies on this court’s decision in 423322 Ontario Ltd. v. Bank of Montreal, in 1988, in this regard.[^17] In 423322 Ontario Ltd. v. Bank of Montreal, the plaintiff established that it was impecunious, so the onus on it was merely to show that its claim was not plainly devoid of merit.
[96] TLN has not established that it is impecunious. It must therefore establish that it would be unjust to require it to post security, either because it has a good chance of success, or for some other reason. TLN has not established that it has a good chance of success at trial.
[97] Aplus posted a lien bond in the sum of $135,000, with $27,000 serving as security for costs, to vacate TLN’s lien under the Construction Lien Act. The court has considered this fact and concludes, pursuant to Prasher, that an order for security for costs is just because it would level the playing field. It is manifestly unfair, in the absence of some other reason why it would be unjust to require TLN to post security for costs, to require Aplus to post such security and not to require TLN to do the same.
CONCLUSION AND ORDER
[98] For the foregoing reasons, it is ordered that:
TLN shall, by April 21, 2016, post security for costs in the amount of $27,000, failing which Aplus has leave to move to dismiss TLN’s action against it.
If the parties are unable to agree on costs, they shall submit written arguments, not exceeding three pages, plus a Costs Outline, by April 30, 2016.
Price J.
Released: March 31, 2016
CITATION: 2041094 Ontario Inc. v. Aplus General Contractors, 2016 ONSC 2175 COURT FILE NO.: CV-11-3116-00 DATE: 2016-03-31
ONTARIO SUPERIOR COURT OF JUSTICE
B E T W E E N:
2041094 ONTARIO INC. Operating as TLN MASONRY Plaintiff
- and -
THE REGIONAL MUNICIPALITY OF PEEL and APLUS GENERAL CONTRACTORS CORPORATION Defendants
REASONS FOR ORDER
Price J.
Released: March 31, 2016
[^1]: Construction Lien Act, R.S.O. 1990, c. C.30 [^2]: 462007 Ontario Ltd. v. Daneshzadeh, 2008 CarswellOnt 9222 [^3]: Construction Liens Act, RSO 1990, c. C-30 [^4]: Global Design & Building Inc. v. 1289193 Ontario Inc.(2000), 2 C.L.R. (3d) 271 (S.C.J. ) [^5]: Prasher Steel Ltd. v. D. Grant & Sons Ltd., 2014 ONSC 3576, at paras. 8, 10 and 12 [^6]: Rules of Civil Procedure, O. Reg. 194 [^7]: 1632097 Ontario Ltd. v. 1338025 Ontario Inc., 2011 ONSC 5909 (Master) [^8]: Norseman Construction & Development Ltd. v. Evdemon, [2013] O.J. No. 6230 (Master), and 423322 Ontario Ltd. v. Bank of Montreal (1988), 1988 ONSC 4678, 66 O.R. (2d) 123 [^9]: Guttmann v. Halpern, 2008 ONSC 22920, paras. 1 and 2 [^10]: Beneda v. Canada (Attorney General), 2006 ONSC 34413, para. 6 [^11]: Sambasivam v. Pulendrarajah, 2012 ONCJ 711 [^12]: Flieger v. Canada (Attorney General), 2003 ONSC 25764, para. 10 [^13]: Cigar500.com Inc. v. Ashton Distributors Inc. (2009), 2009 ONSC 46451, 99 O.R. (3d) 55 [^14]: Zeitoun v. Economical Insurance Group, 2008 ONSCDC 20996, [2008] O.J. No. 1771 (Div. Ct.) at paras. 49-50; affirmed, 2009 ONCA 415 [^15]: MJB Enterprises Ltd. v. Defence Construction (1951), 1999 SCC 677, [1999] 1 S.C.R. 619 [^16]: D.E. & J.C. Hutchison Contracting Co. v. Windigo Community Development Corp. (1996), 4 C.P.C. (4th) 198 (Ont. Gen. Div.), at paras. 13 and 16-17 [^17]: 423322 Ontario Ltd. v. Bank of Montreal (1988), O.R. (2d) 123, at para. 17