CITATION: Lloyd Benedict v. Continental Casualty Company, 2016 ONSC 7205

COURT FILE NO.: CV-15-538634

DATE: 20161123

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: LLOYD BENEDICT, Plaintiff/Moving Party

AND:

CONTINENTAL CASUALTY COMPANY (CNA) and XL REINSURANCE AMERICAN INC. and TEMPLE INSURANCE COMPANY and AVIVA INSURANCE COMPANY OF CANADA and CERTAIN UNDERWRITERS AT LLOYD’S UNDER AGREEMENT NO. ENC 107-08, Defendants

BEFORE: Madam Justice Kristjanson

COUNSEL: Graeme A. Hamilton and Donald R. Fiske, for the Plaintiff/Moving Party

Murray Stieber, for the Defendants

HEARD: August 26, 2016

ENDORSEMENT

[1] This is a motion for summary judgment on a question of law pursuant to Rule 20.04 (4) of the Rules of Civil Procedure. The plaintiff, Lloyd Benedict, obtained judgment based on the tort of conversion against a lending corporation, Ohwistha Capital Corporation, which had illegally seized equipment owned by Mr. Benedict. Ohwistha then declared bankruptcy, so the plaintiff brought an action against the defendants, Continental Casualty Company (CAN), XL Reinsurance American Inc., Temple Insurance Company, Aviva Insurance Company of Canada, and Certain Underwriters at Lloyds under Agreement No. ENC 107-08. The defendants are subscribing insurers with respect to a Non-Profit Entity Management Liability Insurance Policy held by Ohwistha at the time of loss. The action was brought pursuant to s. 132(1) of the Insurance Act, R.S.O. 1990, c. I.8, which provides that where a person incurs a liability for injury or damage to the person or property of another and is insured against such liability, but does not satisfy the judgment, the person entitled to damages may recover the amount of the judgment in an action against the insurer.

[2] There are three issues in this case:

(1) Does Mr. Benedict, who has established the tort of conversion against Ohwistha, the insured bankrupt lending corporation, have a cause of action under s. 132(1) of the Insurance Act against Ohwistha’s insurer?

(2) Is the claim excluded under the Policy, which excludes “damage or destruction to tangible property, including loss of use”?

(3) Is the claim excluded under the “illegally obtained advantage” exclusion in the Policy?

Since I find that Mr. Benedict does not have a cause of action under s. 132(1) of the Insurance Act against Ohwistha’s insurers under issue #1, it is not necessary to answer the questions about whether the exclusion clauses apply.

FACTUAL BACKGROUND

Judgment Against Ohwistha for Damages Arising From Conversion

[3] This case has a lengthy procedural history. Following a trial, Hackland, R.S.J. found that Ohwistha had seized equipment from the Mr. Benedict unlawfully, contravening section 89(1) of the Indian Act, R.S.C. 1985, c. I-5, by seizing Mr. Benedict’s equipment on Akwesasne Reserve No. 59, where he lived. Ohwistha was found liable for damages for conversion of the equipment: Benedict v. Ohwistha Capital Corporation, 2011 ONSC 18. The decision was affirmed by the Court of Appeal: Benedict v. Ohwistha Capital Corporation, 2014 ONCA 80.

[4] Mr. Benedict is an “Indian” within the meaning of the Indian Act. Ohwistha was an aboriginal-owned, on-reserve lending company. Ohwistha made a loan of $125,000 to Mr. Benedict in 2002, and registered a security interest in his equipment.

[5] Section 89 (1) of the Indian Act protects against seizure by a non-Indian of an Indian’s chattels or real property situated on a reserve. There is an exception in section 89(2) of the Indian Act, which provides that a person who sells a chattel to a member of band “under an agreement whereby the right of property or right of possession” remains wholly or in part in the seller, the seller may exercise his rights under the agreement notwithstanding that the chattel is situated on a reserve. In an attempt to avoid s. 89(1) of the Indian Act, Ohwistha and Mr. Benedict entered into a notional purchase and sell back agreement where Ohwistha notionally bought the plaintiff’s equipment in exchange for $125,000 (i.e. the amount of the loan) and at the end of the term, Mr. Benedict would purchase the equipment back for a higher amount (to represent payment of the principal plus interest). The parties executed a conditional sales contract.

[6] In 2006, Mr. Benedict declared bankruptcy while still owing $100,000. He was discharged from his bankruptcy the same year. Ohwistha decided to take steps to enforce its purported security on the equipment. Following the bankruptcy, and with the permission of the plaintiff’s trustee in bankruptcy, Ohwistha seized the plaintiff’s equipment in an attempt to satisfy the debt.

[7] Ohwistha had involved an employee, Wally Oakes, as the signatory to the notional purchase and sale agreement rather than Ohwistha itself. Mr. Oakes assigned the notional purchase and sale agreement rights to Ohwistha. Justice Hackland found that this was irrelevant, holding at paragraph 23:

In the court’s opinion, it does not assist Ohwistha that it, through its agent Oakes, purported to purchase the equipment and hold it then sell it back but retain title as security for their loan. This aspect of the transaction was a pure fiction. The equipment never left Benedict’s possession on the reserve. A transaction structured in this fashion does not constitute Ohwistha as a seller of chattels within the intent of s. 89 (2) and for that reason the general bar to seizing an Indian’s property on Indian lands in s. 89 (1) of the Indian Act applies.

[8] Since the notional purchase and sell back agreement was deemed to be a fiction, the effect was that Ohwistha was not permitted to seize the property, as this contravened s. 89(1) of the Indian Act, and Ohwistha was held to be liable for damages in conversion, to be determined in a separate hearing. The Court of Appeal affirmed this decision.

Damages Assessment

[9] A trial with respect to the assessment of damages was held before Hackland R.S.J. in 2014: Benedict v. Ohwistha Capital Corporation, 2014 ONSC 7159. Justice Hackland found that Mr. Benedict had title to the equipment when it was wrongfully seized, notwithstanding Mr. Benedict’s bankruptcy. He also found that Mr. Benedict was entitled to be compensated for the value of the equipment wrongfully seized, set at $12,000.00. He found Mr. Benedict was also entitled to an amount for his loss of income from the equipment resulting from the wrongful seizure, which he set at $63,182.00. Punitive damages in the amount of $10,000.00 were awarded for the conduct of Ohwistha’s agent, Mr. Oakes, including what the trial judge found to be Mr. Oakes’ campaign to label Mr. Benedict as having “stolen“ the equipment and wrongfully involving the police in the collection of a civil debt. Mr. Benedict recovered damages in the amount of $85,182.00. In a costs endorsement, Regional Senior Justice Hackland awarded Mr. Benedict costs in the amount of $100,000.00 plus HST, and disbursements in the sum of $56,847.00: Benedict v. Ohwistha Capital Corporation, 2015 ONSC 1766.

Bankruptcy of Ohwistha

[10] Mr. Benedict was unable to collect on the judgment, as Ohwistha was deemed to have filed an assignment in bankruptcy on February 19, 2015. Mr. Benedict filed a proof of claim in that bankruptcy. Mr. Benedict has received $19,500 from the Trustee. The execution of Mr. Benedict’s judgment has been stayed pursuant to section 69(1) of the Bankruptcy and Insolvency Act, R.S.C. 1985, c. B-3.

[11] On this summary judgment motion, Mr. Benedict seeks from the defendants $242,020.00, plus interest and costs of this action.

The Ohwistha Management Liability Policy

[12] Mr. Benedict’s insurance policy with the defendants covers management wrongful acts, outside directorship wrongful acts, employment practices wrongful acts, and fiduciary liability claims. In resisting Mr. Benedict’s claim, the defendants deny coverage. The Policy defines a “D&O Wrongful Act” to mean:

any actual or alleged defamation, breach of duty, neglect, error, misstatement, misrepresentation, omission or other act done or attempted by any INSURED in the discharge of their duties solely in their capacity with the ENTITY or any matter claimed against them solely by reason of their status as an INSURED PERSON.

[13] “INSURED PERSON” is defined in the Policy to mean: “any individual who was, now is or shall be a director, officer, trustee, employee, volunteer or member of any duly constituted committee of the ENTITY….” (emphasis added.)

[14] The “Entity” is defined in section II.H. as follows: “ENTITY” means the non-profit organization or association named in the Declarations and any non-profit subsidiary.” “Entity” is named in the Declarations to the Policy as Ohwistha Capital Corporation. The Declarations to the Policy state that: “These Declarations, together with the statements made in the application for this insurance, form an integral party of the attached policy.”

[15] Finally, “INSURED” is defined to mean “any INSURED PERSON and the ENTITY.”

[16] There are two exclusion clauses which were the subject of argument. The policy excludes coverage for claims for “damage or destruction to tangible property including loss of use.” The policy also excludes coverage for claims where individual insured persons attempt to obtain an advantage to which they were not entitled.

Issue #1: Section 132 of the Insurance Act

[17] The first question is whether Mr. Benedict may proceed against the insurers. To succeed, Mr. Benedict must establish that Ohwistha’s liability for the tort of conversion is liability for damage or injury to property in the meaning of s. 132(1) of the Insurance Act. Mr. Benedict must also establish that Ohwistha was insured against such liability. This requires Mr. Benedict to distinguish the decision in Perry v. General Security Insurance Co. of Canada, 1984 CanLII 2146 (ON CA), 47 O.R. (2d) 472 (C.A.) (“Perry”), which is binding on me. Perry held that economic losses unrelated to physical damage to property cannot be brought against an insurer pursuant to s. 132(1) of the Insurance Act. The Court of Appeal has held that pure economic losses are not “damage to property” under the Act.

Does Liability for Conversion Constitute Injury or Damage to Property?

[18] Section 132(1) of the Insurance Act provides, under the heading “Right of claimant against insurer where execution against insured returned unsatisfied”:

132. (1) Where a person incurs a liability for injury or damage to the person or property of another, and is insured against such liability, and fails to satisfy a judgment awarding damages against the person in respect of the person’s liability, and an execution against the person in respect thereof is returned unsatisfied, the person entitled to the damages may recover by action against the insurer the amount of the judgment up to the face value of the policy, but subject to the same equities as the insurer would have if the judgment had been satisfied. [Emphasis added.]

[19] Mr. Benedict must establish that Ohwistha was insured against a liability for injury or damage to the person or property of another. He relies on the finding that his losses are as a consequence of Ohwistha’s conversion of his chattels (equipment), and as a result, his claim is not a pure economic loss claim, but one for injury to property, namely, his intangible possessory rights in the equipment.

What is the nature of conversion?

[20] The elements of conversion are summarized by GHL Fridman in The Law of Torts in Canada as: “(i) a wrongful act; (ii) involving a chattel; (iii) consisting of handling, disposing, or destruction of the chattel; (iv) with the intention or effect of denying or negating the title of another person to such chattel”: Fridman, The Law of Torts in Canada, 3^rd ed (Carswell: Toronto, 2010) at p. 118.

[21] Mr. Benedict argues that conversion is “interference with a person’s legal possession or right to the immediate possession of goods”, relying on the decision of Justice Himel in 889267 Ontario Ltd. v. The Norfinch Group Inc., 1998 CanLII 14908 (ON SC), [1998] O.J. No. 3850 (OCJ (Gen Div)) at para. 22:

The tort of conversion involves a positive and intentional act of interference with a person's legal possession or right to the immediate possession of goods. See: Lewis N. Klar, Tort Law, Second Edition, (Toronto: Carswell, 1996) p. 76 which quotes Rouleau J. in Shibamoto & Co. v. Western Fish Producers Inc., 1991 CanLII 13562 (FC), [1991] 3 F.C.214 at 229 (T.D.) affirmed (1992), 145 N.R. 91 (Fed. C.A.) as follows:

The tort of conversion involves a wrongful taking, using or destroying of goods or the exercise of control over them in a manner that is inconsistent with the title of the owner. It arises when there exists an intentional exercise of control over a chattel which seriously impedes the right of the true owner to control it.

Do possessory rights constitute “property” within the meaning of s. 132(1)?

[22] Mr. Benedict argues that the claim in conversion is a claim relating to injury to Mr. Benedict’s intangible property – possessory rights – that are related to tangible property (the chattels seized).

[23] The defendants rely on the Court of Appeal decision in Perry. In Perry, Mr. Benedicts’ claim arose from a solicitor’s error in registering a fourth mortgage rather than a second mortgage on behalf of Mr. Benedict mortgagees, with the result that they were unable to recover the value of their mortgage loan when the first mortgagee initiated power of sale proceedings. The plaintiffs sought to make a claim under the Law Society of Upper Canada lawyers’ professional liability policy, relying on the definition of “property” in the Insurance Act, which includes “other pecuniary interests.” The Court held (Houlden J.A. dissenting) that on a proper interpretation of the Act, the section cannot be interpreted to mean “economic loss unrelated to physical damage to property.” The majority made pleas for legislative action to correct what they perceived to be injustice in relation to errors and omissions claims against lawyers.

[24] The Perry decision was recently considered and reaffirmed by the Court of Appeal in in Ernst & Young Inc. v. Chartis Insurance Co. of Canada, 2014 ONCA 78, [2014] OJ No. 416, 118 O.R. (3d) 740 (CA). The plaintiffs obtained partial summary judgment against a corporate trustee for misusing trust funds, and sought recovery under the trustee’s errors and omissions insurance policy pursuant to s. 132(1) of the Insurance Act. In obiter, Strathy J.A. noted at para. 30 that Perry remains good law, and has “stood and been relied upon by the insurance industry for over 25 years,” commenting that “I would be disinclined to overrule it, even if it were open to us to do so in these proceedings.”

[25] The Perry case has been followed, often with regret, in subsequent decisions in Ontario and other provinces: see for example, Adler, Re (2008), 2008 CanLII 47017 (ON SC), 47 C.B.R. (5^th) 77 at para. 8; Starr Schein Ent. Inc. v. Gestas Corp. Ltd., 1987 CanLII 2763 (BCCA) at para. 3; Ernst & Young, supra, at paras. 29-31; Langman v. Luhowy, (2003), 2003 CanLII 42594 (ON SC), 67 O.R. (3d) 428; and Westpark Developments Inc. v. Lawyers’ Professional Indemnity Co. (2007), 2007 CanLII 37476 (ON SC), 87 O.R. (3d) 24.

[26] Mr. Benedict in the current case argues his losses are all a result of the wrongful conversion of his physical property, and are therefore connected to an “injury” to property. Conversion, moreover, he submits, is about the loss of a set of rights. Specifically, it is the “interference with a person’s legal possession or right to the immediate possession of goods”. Therefore, Mr. Benedict’s claim, which is rooted in the loss or interference of his rights in physical property, is a different kind of claim than the professional liability economic loss cases.

[27] At first blush, the approach urged by Mr. Benedict is consistent with the definition of “property” adopted by the Court of Appeal in Tucows.Com Co. v. Lojas Renner S.A., 2011 ONCA 548. The issue in that case was whether an internet domain name was personal property in Ontario for the purposes of service of a statement of claim under Rule 17.02(a) of the Rules of Procedure. The Court held that domain names are a form of intangible property. In a lengthy discussion, the Court reviewed and approved the following attributes of “property”, at paras. 57-60:

[57] There is no agreed list of required attributes of "property" at common law. One academic author, Professor Ziff, in Principles of Property Law, 5th ed. (Toronto: Carswell, 2010), describes property in this way, at p. 2:

From an intuitive perspective the idea of property is perfectly straightforward: the term refers to those things one can own. Although it is both sensible and common to use such language, the law offers a different slant, one that tends to dwell more on the owning element. Property is sometimes referred to as a bundle of rights. That characterization means that property is not in fact a thing, but rather a right, or better, a collection of rights (over things) enforceable against others. Likewise, it has been said that "[t]he concept of ownership is no more than a convenient global description of different collections of rights held by persons over physical and other things". Explained another way, the term property signifies a set of relationships among people that concern claims to tangible and intangible items. (emphasis added)

[58] The version of this passage that appeared in the third edition of Professor Ziff's book was cited with approval by Sharlow J.A. in Manrell v. Canada, 2003 FCA 128, [2003] F.C.J. No. 408, [2003] 3 F.C. 727 (C.A.), at para. 24. From this passage, Sharlow J.A. concluded, at para. 25, that "[i]t is implicit in this notion of 'property' that 'property' must have or entail some exclusive right to make a claim against someone else. A general right to do something that anyone can do, or a right that belongs to everyone, is not the 'property' of anyone." (emphasis added)

[59] Another well-respected academic author, J.W. Harris, in Property and Justice (Oxford: Clarendon Press, 1996), states, at p. 139:

"Property" designates those items which are points of reference within . . . the rules of a property institution, viz., trespassory, property-limitation, expropriation and appropriation rules. Such items are either the subject of direct trespassory protection or else separately assignable as parts of private wealth.

Therefore, "property" comprises (1) ownership and quasi- ownership interests in things (tangible or ideational); (2) other rights over such things which are enforceable against all-comers (non-ownership proprietary interests); (3) money; and (4) cashable rights. That is what "property" is.

[60] Ziff summarizes his description of property as signifying "a set of relationships among people that concern claims to tangible and intangible items". Harris refers to property as comprising an ownership interest in something that is "ideational", which I understand to mean something intangible that has been [page 582] conceived by the mind. Of note, Harris and Ziff both emphasize that property is a collection of rights over things that can be enforced against others….(emphasis added)

[28] The Court in Tucows.Com also approved of the holding of Lord Wilberforce in National Provincial Bank Ltd. v. Ainsworth, [1965] A.C. 1175, [1965] 2 All E.R. 472 (H.L.), at pp. 1247-48 A.C.: “Before a right or an interest can be admitted into the category of property, or of a right affecting property, it must be definable, identifiable by third parties, capable in its nature of assumption by third parties, and have some degree of permanence or stability" (para. 64). At para. 62, the Court held: “The bundle of rights associated with the domain name that Tucows has (as purchaser and registrant) satisfies the attributes of property as described by Harris and Ziff in that at present Tucows can enforce those rights against all others.” The Court concluded that the domain name constitutes “personal property” within the meaning of Rule 17.02(a), and it was “intangible” personal property located in Ontario (paras. 68 and 72).

[29] In this case, the property is the equipment – the chattels. The possessory rights are “attributes” of property, not the property itself. That a domain name is considered personal property is a function of the bundle of rights – the attributes attaching to it – which can be enforced against others. Mr. Benedict has been deprived of his exclusive possessory rights, given that the chattels were taken in a manner inconsistent with his title as owner. However, the right to possession, which constitutes part of the “bundle of rights” attaching to or defining property, does not constitute “property” within the meaning of section 132(1) of the Insurance Act. The chattels are property within the meaning of the act, but the right to possession itself is not property.

[30] I conclude that the possessory rights to the chattels do not constitute “property” within the meaning of s. 132(1) of the Insurance Act. The conversion claim relates to interference with possessory rights, which does not constitute a claim with respect to “property” under the Insurance Act.

Injury to Property vs. Damage to Property

[31] Mr. Benedict specifically frames his losses as an injury to property as a result of wrongful conversion, in order to invoke the application of s. 132(1) of the Insurance Act. Can Mr. Benedict in the current case avoid the Perry interpretation of damage to property by pleading his losses are an injury, as opposed to damage, notwithstanding my finding that possessory rights do not constitute property within the meaning of the Insurance Act?

[32] The defendants argue that “injury to property” does not have a plain meaning that is different than “damage to property”, citing Black’s Law Dictionary as follows:

damage, n. Loss or injury to person or property

injury, n…..3. any harm or damage…

[33] However, I note that in some circumstances, injury has a clearly different meaning than damage. Specifically, Black’s Law Dictionary has a more extensive definition of injury, which provides in part as follows:

Injury, n. 1. The violation of another’s legal right, for which the law provides a remedy; a wrong or injustice…3. Any harm or damage…Some authorities distinguish harm from injury, holding that while harm denotes any personal loss or detriment, injury involves an actionable invasion of a legally protected interest.

[34] Mr. Benedict cites injury as “any word or damage done to another either in his person, rights, reputation or property”, and submits that he was deprived as to his rights to the equipment seized as the basis for inclusion in section 132(1).

[35] Conversion is an interference with attributes of property – in this case, Mr. Benedict’s possessory rights. Conversion constitutes an injury to his possessory rights, but not an “injury” to the chattels themselves. In this case, then, the difference between “injury” and “damage” does not assist Mr. Benedict. The injury or damage must be to the physical chattels, and not to the right to own, use or possess chattels: the injury must be to property, and not to the attributes of property.

Was the Damages Assessment for Property Damage?

[36] The defendants argue that Mr. Benedict was awarded damages for property damage and resulting economic loss, and not for an interference with or “injury” to a right of possession. The damages judgment of Hackland R.S.J. assessed damages arising from Ohwistha’s actions in seizing the equipment, and concerned the “valuation of the seized equipment, the income loss suffered by the plaintiff as a result of the seizure and the plaintiff’s claim for punitive damages arising from the circumstances of the seizure” (para. 1). Justice Hackland at various points stated:

• “It was common ground that the plaintiff is entitled to be compensated for the value of his equipment wrongfully seized” (para. 5);

• “The plaintiff is also entitled to an amount for his loss of income from this equipment resulting from the wrongful seizure” (para. 10);

• In determining what period of income loss could be considered as reasonably arising from the seizure: “The plaintiff’s expert conceded that in an insurance claim the maximum period of income loss from property damage would normally be 12 months”

[37] The defendants argue that the underlying judgment is determinative of whether the judgment satisfies section 132(1), and in this case, the judgment was given on the basis of the replacement value of the disposed property and resulting loss of use which they say the judge “explicitly assessed based on what a property damage policy would pay.” The defendants submit that “the court saw the claim as a physical property damage claim,” and the Policy excludes coverage for “damage to or destruction of tangible property, including loss of use.”

[38] The defendants also rely on M.J. Jones Inc. v. Royal & SunAlliance, [2005] O.J. No. 2015 (CA), for the proposition that conversion claims are physical property damage claims. That is not what the case stands for. In the M.J. Jones case, a marina sold the insured’s boat, which had been stored at the marina, without the insured's authority, knowledge, or consent. The purchaser was an innocent third party. When the insured claimed on its "all risks" insurance policy for the "direct physical loss" of the boat, the insurer denied coverage. The insurer argued that the proximate cause of the loss was the transfer of valid title to the third party, and the insured did not suffer a "direct physical loss" of the boat, but only lost the proceeds for which it was sold. The Court of Appeal held that the cause of the loss was the conversion of the boat by the marina, and resulted in the insured incurring the "direct physical loss" of the boat.

[39] The fact that Hackland J. awarded damages based on the value of the equipment does not mean that the damages were awarded for physical damage. The tortious interference with possessory rights leads to a calculation of damages based on the value of the chattels; it does not mean that damages are awarded for physical damages to the chattel, since physical damage to the chattels is not an element of the tort. In many cases there is no damage to the actual physical chattels, which are simply seized; the damage is to the possessory interest.

[40] In determining damages for the tort of conversion, the law as a fiction treats the assets as if they had been sold, and holds the tortfeasor liable for consequential losses: “The general rule is that a conversion will result in a “forced sale” requiring the defending to pay the market value of the goods at the time of the conversion, with the possibility of both consequential and exemplary damages also being awarded”: Lewis N. Klar, Q.C., Tort Law (5^th ed) (Carswell, Toronto, 2012) at p. 107. Thus, while the value of the award may be modelled on a property damage claim, this is a fiction which is meant to replicate the value for loss or interference with possessory rights, which is the essence of the tort.

COVERAGE ISSUES UNDER POLICY

[41] In light of my finding that Mr. Benedict did not meet the requirements of s. 132(1) of the Insurance Act in respect of injury or damage to property, it is not necessary for me to decide the remaining coverage issues and I decline to do so.

SUMMARY JUDGMENT

[42] All parties agreed that a motion for summary judgment on a question of law under R. 20.04(4) was an appropriate method of determining the issues, and the matter could be decided on the basis of the evidence filed by Mr. Benedict. The underlying facts were all the subject of a trial conducted by Justice Hackland. There are no contested issues of fact, and no party argued that additional facts were required to finally dispose of this matter. The only issues are questions of law relating to the interpretation of s. 132(1) of the Insurance Act, and the interpretation of the Policy. As a result, I find that this is an appropriate case to determine through a motion for summary judgment on a question of law.

DISPOSITION

[43] I dismiss Mr. Benedict’s motion for summary judgment.

[44] If the parties are not able to reach an agreement on costs, they may make costs submissions to me. The defendants may make their costs submissions to me in writing by November 30th, and Mr. Benedict by December 14^th. Each party is restricted to three pages (not including the bills of costs).

[45] I would remind Mr. Benedict’s counsel to consider including a bill of costs with the responding submissions. The reasonable expectations of the unsuccessful party are an important factor in determining an amount of costs that is fair and reasonable. However, in order for this factor to be assessed, the court requires the bills of costs of all counsel: United States v. Yemec (2007), 2007 CanLII 65619 (ON SCDC), 85 O.R. (3d) 751 (Ont. Div. Ct.) at para. 54. I note that all too often, unsuccessful parties fail to include their bill of costs with submissions, thereby depriving the court of information potentially relevant to the issue.

Kristjanson J.

Date: November 23, 2016