CITATION: Third World Broadcasting Inc. et al. v Vision TV, 2016 ONSC 7377

COURT FILE NO.: CV-14-497591

MOTION HEARD: 20160628

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: THIRD WORLD BROADCASTING INC. and BASHIR KHAN, Plaintiffs

AND

VISION TV: CANADA’S FAITH NETWORK/RESEAU RELIGIEUZ CANADIEN, Defendant

BEFORE: Master Lou Ann M. Pope

COUNSEL: Counsel for plaintiffs: Ronald G. Chapman Fax: 416-601-9984

Counsel for defendant: Jesse R. Harper, Fasken Martineau Dumoulin LLP Fax: 416-364-7813

Counsel for Law Pro for plaintiffs’ former counsel: Jeff Van Bakel Fax: 416-204-2814

REASONS FOR ENDORSEMENT

[1] The defendant seeks an order requiring the plaintiffs to pay security for costs of this action pursuant to rules 56.01(d) and (e) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 (“the Rules”).

[2] The parties resolved the other relief sought in the notice of motion regarding the plaintiffs’ undertakings and refusals.

Background

[3] The plaintiff, Third World Broadcasting Inc. (“TWB”), and the defendant, Vision TV: Canada’s Faith Network/Reseau Religieuz Canadien (“Vision TV”), entered into sales agreements over a period of some 20 years. The sales agreements concerned TWB’s purchase of airtime on Vision TV’s network of TWB’s program entitled “Visions of Pakistan”. In September 2008, Vision TV ceased making air time available to Third World.

[4] The plaintiff, Bashir Khan (“Khan”), was the president and director of TWB. Vision TV is a non-profit corporation that carried on business as a multi-faith and multicultural broadcaster.

[5] The plaintiffs jointly claim damages of $2,500,000 plus $250,000 for lost opportunity and $250,000 for punitive damages alleging that Vision TV breached a contract of indefinite duration by failing to broadcast TWB’s programming in September 2008.

[6] Vision TV disputes the plaintiffs’ claims and alleges that the final sales agreement dated May 30, 2008 expired in accordance with its terms on August 30, 2008 and that no new sales agreement was signed. Vision TV further disputes the claims made by Khan on the ground that it had no contractual relationship with him.

[7] Vision TV delivered a counterclaim against TWB for damages for breach of the sales agreement for failure to pay monies owing under the contract in the sum of $29,804.27.

Motion For Security For Costs

[8] The defendant relies on subrules 56.01(1)(d) and (e) of the Rules which provide as follows:

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;

(e) there is good reason to believe that the action or application is frivolous and vexatious and that the plaintiff or applicant has insufficient assets in Ontario to pay the costs of the defendant or respondent.

[9] The decision to order security for costs is discretionary and the court considering the motion is afforded broad latitude to make an order that is just in the circumstances. (Morton v. Canada (Attorney General) (2005), 2005 CanLII 6052 (ON SC), 75 O.R. (3d) 63 at para. 38 (S.C.J.))

[10] The courts have established a two-step inquiry when considering whether to order security for costs.

[11] Initially, the onus is on the defendant to demonstrate that the plaintiff falls into one of the subrules of 56.01(1). The onus is not a heavy one. For example, the defendant need only demonstrate that “it appears” that the plaintiff is a corporation and there is “good reason to believe” that the plaintiff has insufficient assets in Ontario to pay the costs of the defendant. Only if the defendant succeeds with the first stage does the inquiry move to the second stage.

[12] At the first stage, the defendant in satisfying its onus that there is a good reason to believe the corporate plaintiff has insufficient assets to satisfy a cost award must provide enough information about the corporation that goes beyond mere conjecture, hunch or speculation. There must be some evidence placed before the court from which the court can accept that the concern is genuine and that it is based on proven facts regarding the corporation’s current financial circumstances. (Cigar500.com Inc. v. Ashton Distributors Inc. et al., 2009 CanLII 46451 (ON SC), paras. 23-24)

[13] The authorities are clear that the second step onus on the plaintiff is not even reached until the defendant satisfies its initial burden. Once the defendant has done so, the onus shifts to the plaintiff.

[14] At the second stage the onus shifts to the plaintiff. Regarding subrule 56.01(1)(d), the plaintiff can either demonstrate that it has sufficient assets in Ontario to pay a costs order or that it is impecunious and then ask the court to make such order as is just in the circumstances on the basis that an injustice would result if it were not allowed to proceed with the action. Regarding subrule 56.01(1)(e), the plaintiff can either demonstrate that it has sufficient assets in Ontario to pay a costs order or that it is impecunious, and it must also demonstrate that the action is not frivolous and vexatious.

[15] At the second stage, the merits of the case remain a relevant factor. If it is found that the plaintiff has insufficient assets in Ontario, the court may exercise discretion as to whether an order for security for costs would be “just” in all of the circumstances. An inquiry into all factors must be taken including the merits of the case, balancing the interests of the parties, review of the financial circumstances of the plaintiff and the effect of an order.

Subrule 56.01(1)(d)

[16] Khan, on behalf of TWB, admitted that TWB does not have any assets and that it is insolvent.

[17] The most up-to-date financial statement for TWB is the financial statement as at November 30, 2013. This statement shows that TWB’s only assets are cash of $21 and capital assets worth some $8,000 and that it owes its shareholder $154,557, resulting in a deficit of $146,601. The statement also shows that it had revenue of $43,898 with expenses of $133,416, and a loss on disposal of $6,170, resulting in a net loss for 2013 of $95,688.

[18] The unaudited interim statement of loss and deficit for the six months ended May 31, 2012 show a deficit of $37,306.

[19] The T2 Corporation Tax Return for the tax year ending November 30, 2013 shows that TWB had a net loss for income tax purposes of $89,692 during that taxation year.

[20] TWB owns no real estate in Ontario pursuant to the results of a name search in the 54 Land Registry Offices in Ontario.

[21] Based on the above-noted evidence, I find that the defendant has satisfied its burden under subrule 56.01(1)(d) to show that it appears that TWB has insufficient assets in Ontario to pay the costs of the defendant.

[22] The onus now shifts to TWB to show either that it has sufficient assets in Ontario to satisfy a cost award or that it is impecunious and an injustice would result if it were not allowed to proceed with the action.

[23] It is TWB’s position that it does not have any assets or income and the shareholder of TWB is unable to provide security for costs. It submits that TWB’s insolvency was caused by the defendant’s breach of contract. TWB submits further that neither TWB, Khan, nor his wife have any assets from which monies can be obtained to pay security for costs. Lastly, it is TWB’s position that it has a meritorious claim such that it should not be prevented from proceeding to trial.

[24] The defendant argues that TWB has not established that it is impecunious or that an injustice would result if it were ordered to pay security for costs. The defendant submits that the evidentiary threshold for impecuniosity is high and bald statements unsupported by detail are not sufficient. Further, it submits that in order to establish impecuniosity, TWB must provide complete and accurate disclosure of the plaintiff’s income, assets, expenses, liabilities and borrowing ability, with full supporting documentation for each category where available or an explanation where not available. Lastly, it contends that where the plaintiff is a corporation, substantial evidence about the ability of its shareholders or others with an interest in the litigation to post security is required.

Whether TWB is Impecunious

[25] I concur with the defendant’s statement of the law with respect to establishing impecuniosity set out above.

[26] A closer review of the facts is required at this stage.

[27] TWB and Vision TV had contractual relationships from time to time commencing in or about 1990 the year TWB was incorporated. TWB would purchase airtime on Vision TV’s network for TWB’s program entitled “Vision of Pakistan.” Under the sales agreements, Vision TV agreed to air the program weekly over a specified number of weeks and at a specified time, which was subject to TWB’s compliance with the terms and conditions of each sales agreement.

[28] It does not appear to be in dispute that there was never any contractual relationship between Khan and Vision TV despite the fact that the plaintiffs continue to allege in the statement of claim that there was a contractual relationship between Khan and Vision TV and that Vision TV breached that contract causing Khan to sustain damages.

[29] Paragraph 12 of the statement of defence and counterclaim contains a chart that sets out the pertinent terms of five sales agreements commencing in November 2005. Each agreement contained specified airtime dates, for example, from January 28, 2006 to January 30, 2007, with specified terms of payment which changed over time.

[30] Vision TV pled that by late 2006, TWB had accrued arrears of payment.

[31] The plaintiffs pled that over time the contracts became one of indefinite duration that were extended for an additional term until September 2009. The plaintiffs further pled that based on representations and assurances by Vision TV executives, TWB gave Vision TV a fresh program which was to start the broadcast season on September 6, 2008. However, TWB alleges that the September 6, 2008 program was not aired on that date as agreed. At a meeting with Vision TV executives on September 12, 2008, TWB alleges that the executives advised Khan that the error was the result of technical difficulties and that Vision TV would still be renewing the contract with TWB. TWB pleads further that at that meeting Khan gave Vision TV executives an additional new program to be aired the next day on September 13, 2008. However, the program was not aired that day.

[32] Vision TV pleads that in May 2008, TWB and Vision TV agreed to cancel and replace the revised June 2007 Agreement with the May 2008 Agreement which concerned the broadcast timeframe of June 7, 2008 to August 30, 2008. It is further pled that Vision TV told TWB to pay all accrued arrears during the term of the May 2008 Agreement and only upon TWB doing so would Vision TV negotiate a new sales agreement beyond August 30, 2008. Vision TV pled further that based on a reconciliation that it provided to TWB in mid-August 2008, TWB owed $29,804.28. Vision TV states that it did not enter into a new sales agreement with TWB upon the expiry of the May 2008 Agreement on August 30, 2008 and it advised TWB that it would not air further broadcasts of the program without a sales agreement in place.

Khan’s Financial Disclosure

[33] Khan produced his 2013 Tax Return Summary and Notice of Assessment which shows a total income of $15,077 and previous amounts owing to CRA of $4,015.98.

[34] In addition, Khan produced his 2014 and 2015 Income Tax Returns, as well as a net worth statement, which set out the following information:

(a) For the year 2014, his total income was $12,148 which was comprised of CPP income of $2,170, gross business income of $10,000 and net business income of $9,977. On the face of his 2014 return, it shows his spouse, Perween’s, net income for 2014 as $10,000. Notably, the last line on the face of his 2014 return states that Perween was not self-employed in 2014. (Although Perween’s name is spelled “Parveen” on the tax returns and “Parween” on the Parcel Register, I will accept it is one and the same person as Khan’s spouse.)

(b) For the year 2015, Khan’s total income was $16,548 comprised primarily of Old Age Security pension and Canada Pension Plan benefits. It shows no business income. Parween’s net income for 2015 is shown as $3,400.

(c) Khan’s net worth statement which appears to have been prepared by him sets out merely that he has no assets, his income is noted as “Limited” and his net worth is zero.

Perween Khan’s Evidence and Financial Disclosure

[35] Perween’s affidavit, sworn on June 2, 2016, was filed in response to this motion. Her evidence is as follows:

(a) she is a director of TWB. It is noted, however, that she is shown as a shareholder of TWB on the corporate Income Tax Return for year ending November 30, 2013;

(b) she is unemployed and does not have any monies to post security for costs;

(c) her only asset is her residence located at 44 Hot Spring Road, Brampton, Ontario where she resides with her spouse and daughters. The property has an assessed value of $585,000 as of January 1, 2012 based on an MCAP assessment.

(d) there are two mortgages registered on title to the property. The first mortgage is between Home Trust Company and Perween which had a balance owing on December 31, 2015 of approximately $479,000 (incorrectly stated by her as $497,000). The second mortgage is a private mortgage, in the form of a demand loan, given by Perween to Vasdev Chanchlani in the amount of $75,000 on September 15, 2013. This loan was repayable on demand or no later than September 30, 2015 (24 month loan). Perween states that their daughters make the mortgage payments and taxes on the property.

(e) she owes $7,850 on credit cards. She states that she produced her “latest American Express” statement; however, despite her affidavit being sworn in June 2016, she produced a statement from May 2013, 3 years prior. Further, it was not her American Express statement; rather, it was her CIBC Visa statement. No explanation was given for these obvious discrepancies.

(f) she owes $20,000 on automobiles yet she produced no supporting evidence for this alleged debt.

(g) she stated that she produced her “bank statements”; however, what she produced was a printout of a chequing account for nine days in January 2016 from the National Bank’s website, six months prior to swearing her affidavit. The printout is inadequate because firstly, it is not a bank statement, secondly, it does not verify the account holder’s name and thirdly, it is for a period six months prior to the date she swore her affidavit; therefore, it is historical information and not current.

Alleged Sheltering of Assets

[36] Vision TV submits that based on Khan’s evidence given at his examination for discovery held on June 24, 2014, Khan has taken the following steps to shelter his assets from a potential costs award:

(a) June 12, 2012 Khan transferred ownership of his property at 44 Hot Spring Road, Brampton, Ontario from his name solely to Perween. Notably, the transfer took place after having received the statement of defence and counterclaim, but prior to delivering a defence to the counterclaim. The Parcel Register for that property shows that the consideration for the transfer was $2.00. It also shows that on the same date Perween gave a mortgage of $506,946 to Home Trust Company. Khan purchased the property in 2005 for $391,157.67. Both mortgages are still outstanding.

(b) also, in June 2012, Khan transferred 95 per cent of his shares in TWB to Perween. However, as noted above TWB’s Corporate Tax Return for the tax year ending November 30, 2013 indicates that Perween owns 100 per cent of the common shares of TWB and not just 95 per cent.

(c) On September 16, 2013, Perween gave a mortgage on the Khan property to Vasdev Chanchlani in the amount of $75,000. Notably, the mortgage was registered the day before Khan signed the affidavit of documents on behalf of the plaintiffs.

[37] Vision TV submits that based on a name search under Khan’s name and date of birth in the 54 Land Registry Offices in Ontario, there were no findings of any parcels of land registered to Khan.

[38] It is my view that the above evidence raises a strong suspicion that Khan was attempting to shelter his assets from a judgment in the defendant’s favour in this action. However, on a motion for security for costs, a plaintiff corporation must not only show evidence that the company is impecunious, it must also show evidence why its shareholders and any person who has an interest in benefitting from an award in the action are unable to provide security for costs. In this case, that includes both Khan and Perween. Therefore, the fact that Khan may have taken steps to shelter his assets from liability by transferring property to Perween is of little relevance to the issues on this motion, if only to cast doubt on the credibility of his and Perween’s evidence.

[39] Notably, Khan and Perween had every opportunity to provide an explanation for the transfer of title of their property and the transfer of shares in TWB but they chose not to do so.

[40] Regarding the sufficiency of evidence to establish impecuniosity, the court in Sterling Electrical Contractors Inc. v. 20887585 Ontario Inc. [2010] O.J. No. 4097, at paragraph 12, reiterated the well-established criteria in Morton v. Canada (2005) 2005 CanLII 6052 (ON SC), 75 O.R. (3d) 63 S.C.J., at paragraph 32:

In motions of this nature, the financial evidence of plaintiffs must be set out with robust particularity. There should not be unanswered material questions, as is the case here. It is worth remembering that the financial status of the plaintiffs is known only to them. As I mentioned earlier, they bear the burden of proving the effect upon them or an order for security for costs. They failed to discharge that burden. Full financial disclosure is required and should include the following: the amount and source of all income; a description of all assets (including values); a list of all liabilities and other significant expenses; and indication of the extent of the ability of the plaintiffs to borrow funds; and, details of any assets disposed of or encumbered since the cause of action arose.

[41] Further, Perween failed to explain why she borrowed $75,000 in 2013 and gave a second mortgage on the property to a private individual, at a time when this lawsuit was pending and at a time when her income for the following year was minimal. The second mortgage was to be paid off by September 30, 2015; however, she failed to explain why it was still outstanding. Further, the circumstances surrounding the second mortgage are suspect. Firstly, Perween presumably took over an existing mortgage when Khan transferred the property to her. There is no explanation how she could possibly have qualified for a $500,000 mortgage, particularly in light of her stated income on Khan’s 2014 income tax return of only $10,000. In my view, this evidence raises serious issues regarding the credibility of Perween’s evidence.

[42] Moreover, her financial production was inadequate because she did not produce any income tax returns, current bank statements, current credit card statements and she failed to produce proof of her car loan and that her daughters are paying their mortgages and taxes. There is no evidence regarding the ages of their children and their incomes such that they can afford to pay two mortgage payments and taxes. It is clear from the evidence that Perween has a CIBC Visa credit card and an American Express credit card. She fails to explain why she could not access funds from both of those credit cards to pay security for costs.

[43] In my view, the circumstances surrounding the transfer of title, including Perween having obtained two mortgages, casts severe doubt on the credibility of both Khan and Perween’s evidence. Frankly, it is simply not credible and inconceivable that Perween would have qualified for the mortgage with Home Trust Company on as little income as is disclosed in Khan’s income tax return. Recognizing of course that it was his 2014 income tax return, which was two years after she obtained the mortgage, it is my view given the property transfer, it was incumbent on Khan and Perween to explain the reason for the transfer and how Perween qualified for such a large mortgage. Having not done so has left a cloud of suspicion over their evidence and casts doubt on their credibility.

[44] Therefore, the evidence leads me to inescapable conclusions on two points. First, Perween had significant income in 2012 and likely several prior years to qualify for the first mortgage. If she had significant income at that time, it was incumbent on her to explain her loss of income. Second, Khan and Perween have more income and/or assets than they have disclosed and they are making the payments on the two mortgages and the taxes.

[45] In conclusion, for the above reasons, I find that the plaintiffs’ evidence is inadequate to support a finding of impecuniosity.

Subrule 56.01 (1)(e)

[46] Vision TV relies on the Court of Appeal’s decision in Schmidt v. Toronto Dominion Bank (1995), 1995 CanLII 932 (ON CA), 25 O.R. (3d) 1 (Ont. C.A.), at para. 5, as followed in Rayzak v. Perri Estate, 1999 CarswellOnt 3212, at paragraph 6, regarding the requirement of subrule 56.01(1)(e);

The words “good reason to believe” qualify the words “frivolous and vexatious” and indicate a finding short of an actual determination that the appeal is frivolous and vexatious. A judge hearing a motion for security for costs may reach the tentative conclusion that an appeal appears to be so devoid of merit as to give “good reason to believe that the appeal is frivolous and vexatious” without being satisfied that the appeal is actually totally devoid of merit.

[47] In considering the merits of this action, the court must consider both Khan’s action in his personal capacity and the corporation’s action.

[48] It is uncontroverted evidence that the contracts were entered into between Third World and Vision TV. The statement of claim fails to specify the claim or claims of each plaintiff. For example, the plaintiffs claim damages for $2,500,000 for breach of contract yet there is no evidence that the contract was between Khan and Vision TV. This is contrary to rule 25.06(9)(a) which requires that the amount claimed for each claimant in respect of each claim be stated. (emphasis) Further, the plaintiffs clearly pled in paragraph 2 of the statement of claim that Khan purchased air time from Vision TV through his corporation, TWB. This is a clear admission that Khan used his company to conduct business with Vision TV and not himself in his personal capacity. It is important to remember that one of the purposes of incorporating is to avoid personal liability. However, here, Khan elected to avoid personal liability by using his corporation to contract with Vision TV but when issues arose with respect to the contract, he sued in both his personal capacity and on behalf of the corporation, essentially seeking to have it both ways.

[49] For the above reasons, I find that there is good reason to believe that Khan’s action has little chance of success and that it is frivolous and vexatious.

[50] Regarding the merits of Third World’s action, the plaintiffs allege that the subject contract was one of indefinite duration and that Vision TV terminated the contract without notice. They pled that the contract commenced in 1989 and it was extended annually with essentially the same terms for some 19 years. It is Vision TV’s position that the contracts were separate contracts for discrete fixed-term periods, usually one year, and that there was no automatic extension of the contract as alleged in the statement of claim. Further, Vision TV denies that it represented to TWB that the contract would be extended, rather, it declined to enter into a new sales agreement with TWB.

[51] In Jones v. Jones, 2013 CarswellOnt 4987, at paragraph 32, the court opined regarding the court’s ability to determine on the motion record whether the plaintiff’s case has a good chance of success, when it stated:

A motion for security for costs should not be turned into a motion for summary judgment. If an action appears complex or turns on issues of credibility, an assessment of the merits is not appropriate. Any determination of issues involving serious allegations of fraud and misappropriate of funds should only be made on the basis of a full evidentiary record. In such cases where it is not possible for the court to determine on the motion record whether the plaintiff’s case has a good chance of success, the merits would be a neutral factor.

[52] In the within action, Vision TV pled that by late 2006, TWB had been accruing arrears in its account balance due to non-payment or insufficient payment for broadcasts of communications as far back as the first contract in 2005. Vision TV also pled that it made numerous demands for payment with promises to pay made by TWB. It is also pled that the revised June 2007 Agreement, which covered airtime for some 82 weeks from June 30, 2007 to January 17, 2009, was cancelled and replaced by the May 2008 Agreement, which covered airtime for only 13 weeks from June 7, 2008 to August 30, 2009. Vision TV pled that it advised TWB to pay the outstanding account during the term of the May 2008 Agreement and only upon it doing so would Vison TV negotiate a new sales agreement beyond August 30, 2008. Vision TV pled that on August 15, 2008, just two weeks prior to the expiry of the term of the contract, it advised TWB that the outstanding balance owing was $29,804.28.

[53] TWB denies Vision TV’s pleadings and it pled that they paid the outstanding account in full of $21,561. Although the plaintiffs do not state the date the “outstanding account receivables” was paid in paragraph 6 of the Reply and Defence to Counterclaim, that pleading is, in my view, an admission that there was an outstanding account.

[54] There is also evidence regarding an alleged $7,200 credit that TWB says it was not credited by Vision TV.

[55] Vision TV pled that it did not enter into a new sales agreement with TWB on the expiry of the contract on August 30, 2008 as TWB had not paid its long-outstanding account. Although it is Vision TV’s position that it did not terminate the contract, rather it chose not to enter into a new contract on the expiry of the final contract on August 30, 2008, it relies on a term of the contract which gives Vision TV the right to terminate the contract without notice should TWB’s account balance fall into arrears.

[56] TWB adduced evidence of communications between the parties following the expiry of the last contract; however, in my view, there are no statements in these emails that could be interpreted as promises or representations that Vision TV would enter into or had entered into a new contract with TWB. Having said that, it is Khan’s evidence that Mr. Prasuhn of Vision TV told him in a conversation on September 8, 2008 that TWB’s program would be aired on September 13, 2008 and that the contract would be ready. Thereafter, the emails relate to the balance owing by TWB and Khan disputing the amount owing.

[57] It is clear based on the record that there are facts in dispute as set out above. These factual issues can only be determined at trial based on a full evidentiary record. Therefore, I am unable to make a determination on the basis of the materials before me whether the TWB’s action has a good chance of success, such that the merits are a neutral factor in the exercise of my discretion of this motion.

Amount of Security Sought

[58] Vision TV seeks security for costs in the amount of $134,727.93, including disbursements and taxes, on a partial indemnity basis. It states further that it has incurred fees and disbursements to date of some $67,000, on a partial indemnity basis. The remaining steps to be completed are the re-attendance of Mr. Khan for examination for discovery, mediation, pre-trial conference and trial, estimated to take five to seven days.

[59] It is well accepted that the amount of security ordered to be posted by a plaintiff should be reasonable in the circumstances of the particular case in which they are sought; however, where the court finds that a defendant is entitled to security for costs, the court should not award only a token amount. (Jones, at para.55)

[60] While the full amount sought by Vision TV for security for costs may not necessarily be payable by the plaintiffs if the action is dismissed, the amount reflects a significant financial exposure if Vision TV is successful in defending the action.

[61] TWB is a corporation and there is good reason to believe that it has insufficient assets in Ontario to pay the Vision TV’s costs. Khan’s action has little chance of success in that it is frivolous and vexatious. While the merits of TWB’s action is neutral, the plaintiffs failed to discharge its onus of establishing that it was impecunious due to lack of full and frank financial disclosure.

[62] As a result, I conclude that it would be just in all of the circumstances to order that the plaintiffs provide security for Vision TV’s costs in the amount of $75,000.

[63] As this action has numerous steps to be completed, it would be just to require that the plaintiffs post security in installments as ordered below.

Conclusion

[64] Vision TV’s motion for security for costs is allowed.

[65] The plaintiffs shall post security for the Vision TV’s costs in the total amount of $75,000, by payment into court to the credit of this action, as follows:

(a) $25,000 within 60 days of the date this decision is released; and

(b) $25,000 at least 14 days before mediation is scheduled to be held; and

(c) $25,000 at least 14 days before the trial of this action.

Costs

[66] The parties filed costs outlines and made submissions regarding costs of this motion.

[67] Given the defendant’s success on this motion, it is reasonable that the plaintiffs pay costs which shall be fixed in the amount of $8,500, inclusive, payable within 30 days.

(original signed) __

Master Lou Ann M. Pope

Released: November 29, 2016