Canadian National Railway Company v. Ramara (Township), 2016 ONSC 7985

CITATION: Canadian National Railway Company v. Ramara (Township), 2016 ONSC 7985

COURT FILE NO.: 26354/13

DATE: 2016-12-21

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

Canadian National Railway Company

Plaintiff

– and –

The Corporation of the Township of Ramara

Defendant

Orlando Rosa, for the Plaintiff

Kenneth R. Peel, for the Defendant

HEARD: December 15, 2016

Decision on Motion

GAUTHIER, J.

The Motion

1The defendant, The Corporation of the Township of Ramara (“Ramara”), seeks:

a. an order for summary judgment dismissing with costs all of the claims in the plaintiff’s statement of claim, pursuant to rule 20.01(3), in particular having regard to issue estoppel and/or doctrine of res judicata arising with the Arbitration Award dated October 29, 2013, as affirmed by this court March 4, 2015 (in CV-14-10778-00CL) dismissing the plaintiff’s application for leave to appeal the said Arbitration Award dated October 29, 2013.

2If the Canadian National Railway Company’s (“CN”) action against Ramara is not dismissed, Ramara seeks:

a. an order for dismissal with costs of this action for delay pursuant to rule 24.01(1)(c);

b. an order pursuant to rule 13.1.02 for removal by the plaintiff (forthwith and at its own cost) of this proceeding from Sault Ste-Marie, ON, to Orillia (in the County of Simcoe);

c. an order for delivery of the plaintiff’s affidavit of documents pursuant to rule 30.08(2);

d. an order from the court “otherwise” under rule 34.03, directing the representative of the plaintiff CN to attend in Toronto for examination for discovery;

e. an order affirming and reserving to the applicant Ramara, (and notwithstanding its delivery of its defence pleading and this motion, and pending the court’s final decision with respect to either of the action’s dismissal relief sought, the right to deliver a Notice to arbitrate pursuant to the terms of the Standard Funded Crossing Warning System Agreements”; and

f. an order for the moving party Ramara’s costs throughout, on an indemnity basis or otherwise as this Court may consider just.

3At the hearing of the motion, Ramara advised that it was deferring its motion for dismissal for delay pursuant to rule 24.01(1)(c) and would not proceed with the motion for delivery of CN’s affidavit of documents as the affidavit of documents had been delivered since the date of the drafting of the motion materials.

4With regard to the motion pursuant to rule 13.1.02 to transfer the proceeding from Sault Ste. Marie to Orillia, in the County of Simcoe. I pointed out to counsel that the Superior Court does not sit in Orillia. The closest Superior Court site to Ramara is Barrie.

5CN advised that it did not oppose a transfer order to Barrie, provided the order would take effect after the motions currently before the court had been heard and ruled upon.

6With regard to the location at which CN’s representative would be examined, there was consent that this be Toronto.

7And finally, with regard to the request to reserve the right to deliver a notice to arbitrate, I advised counsel that, depending on the outcome of the dismissal motion, I would adjourn the request to a date to be set and that I would request that both parties file further material dealing with this issue.

Facts (I have borrowed liberally from both facta)

8Ramara is a small municipality in Simcoe County and is the local road authority responsible for certain public roads within its jurisdiction including Concession Roads 3, 7, and 12, and Ramara Road 46.

9CN is a Federal railway that maintains and operates a railway transporting commodities and freight throughout Canada and the U.S. It operates railway rights-of-way, trackage and appurtenances crossing the above mentioned concession roads.

10The parties entered into three Standard Funded New Crossing Warning Agreements (the “Agreements”) for work to be performed at each of the three crossings at Concession Roads 7 and 12, as well as Ramara Road 46.

11These Agreements are dated April 1, 2009, February 16, 2010, and March 1, 2010.

12The three Agreements are identical in wording. The relevant paragraphs are as follows:

1. [CN], as party proposing to undertake the work, will file an application pursuant to the Railway Safety Act (“the Act”), for a grant in respect of the cost of this proposed railway work as defined in the Act.

2. 62.5% of the total cost of the crossing warning system installation (as determined pursuant to clause 6), remaining after Transport Canada funding has been applied, shall be paid by [Ramara].

3. 37.5% of the total cost of the crossing warning system installation (as determined pursuant to Clause 6), remaining after Transport Canada funding has been applied, shall be paid by [CN].

4. [CN] shall prepare all accounts for work performed by [CN] for both installation and maintenance using rates as stipulated in the latest Guide to Railway Charges for Crossing Maintenance and Construction as issued by the Canadian Transportation Agency. In the event that the Canadian Transportation Agency should discontinue publishing same, the accounts shall be based on [CN’s] costs including overheads.

5. Any dispute relating to the wording and interpretation of the clauses in this Agreement will be resolved in accordance with the arbitration act of the province in which the crossing warning system is located.

13Work was performed and materials installed pursuant to the three Agreements. CN invoiced Ramara. Ramara has not paid the three invoices in their entirety and CN issued a statement of claim against Ramara on December 11, 2013. The amount claimed is $85,532.77. Ramara delivered a statement of defence on May 18, 2014. It delivered an affidavit of documents on August 16, 2016.

14Ramara disputes the invoiced charges by CN on invoices rendered on December 16, 2011, March 23, 2012, and April 5, 2012, in which CN has asserted materials handling overhead charges calculated at 50%, for pre-assembled and wired crossing warning systems etc.

15The dispute concerns the difference between the amount of the overhead charge for the work involving pre-wired packages (Safetrans) that would be accepted and funded by the Transport Canada grant, and the actual amount of those overhead charges billed to Ramara.

16CN has taken no further formal step in the proceeding.

17The parties had entered into an earlier agreement, the Standard Funded Crossing Warning System Modification Agreement (“Agreement”), on January 30, 2009, for work to be performed at the Concession Road 3 crossing. The estimate for that project was $579,400. The Agreement mirrors the later Agreements, save and except for the paragraph dealing with an application pursuant to the Railway Safety Act, and provides for the following:

a. The Railway as party proposing to undertake the work will file an application… for an 80% grant in respect of the cost of this proposed railway work as defined in the Act.

18Work was performed and materials were installed pursuant to the January 30, 2009, Agreement. CN invoiced Ramara. A dispute arose between the parties about the amount due to CN. The dispute was submitted to the Canadian Transportation Agency which stayed CN’s application in favour of the arbitration clause contained in the Agreement. CN delivered a notice of arbitration. The matter proceeded to arbitration and on October 29, 2013, the Honourable Douglas Cunningham dismissed CN’s claim against Ramara. He did so having found that CN had failed to disclose to Ramara that Transport Canada would not approve the overhead charges. This constituted a material misrepresentation on the part of CN, entitling Ramara to set aside the portion of the Agreement requiring it to pay more than it already had paid to CN. In the alternative, the arbitrator found CN tortiously liable for negligent misrepresentation.

19CN sought and was denied leave to appeal the October 29, 2013, Arbitration Award.

The Arbitrator’s Findings

20In his Arbitration decision, dated October 29, 2013, Cunningham made the following findings of fact:

1. The estimate for the costs of the project includes Safetrans Overhead Costs (“SOC”). Ramara is responsible for 62% of the total cost of the project, after Transport Canada’s funding has been applied.

2. The SOC accords with Schedule C of the Guide to Railway Charges, 2010, which applies to Actual Material Costs Under General Billing Guidelines related to “Construction Projects” or 50%.

3. Schedule C of the Canadian Transportation Agency (“CTA”) guide, which applies to Cost Components of the Material Overhead Rate to be applied to Actual Material Costs Under the General Billing Guidelines related to “Construction Project” or 50%, covers overhead charges for what is referred to in the invoices as “Safetrans Pkge”.

4. Eligible Costs for pre-wired packages, notwithstanding the CTA Guide, shall be the allowance applicable for contract overheads.

5. CN was aware that any donation (grant or funding) by Transport Canada, available to assist in defraying the cost of the project, was not only discretionary, but would be based only on the part of the estimate for the project that did not include the Safetrans overhead costs.

6. CN “had known for a very long time of Transport Canada’s position regarding overhead charges on crossing packages. There is no doubt in my mind that CN never brought this to Ramara’s attention.”

7. “At no time, however, did Ramara have the slightest inkling of Transport Canada’s position regarding overhead charges.”

8. Regarding Ms. Black (Ramara’s then Chief Financial Officer), “Clearly she was aware of the possibility that the full 80% might not be approved as this grant was discretionary, however, she had no reason to suspect that Transport Canada and CN had differing views regarding material overhead charges.”

9. “CN failed to disclose to Ramara that it knew Transport Canada would not approve the overhead charge. In my view, that was a misrepresentation by silence.”

10. Ramara reasonably relied on the misrepresentation.

11. Ramara is entitled (on the basis of material misrepresentation) to set aside that portion of the contract requiring it to pay more than it has already paid.

12. In the alternative, he would find CN tortiously liable for negligent misrepresentation.

13. Damage “must have” ensued as a result of Ramara’s reliance on the negligent misrepresentation: it would have had to pay a significantly larger sum than would have been the case had it known of Transport Canada’s policy.

14. There was no contributory negligence on the part of Ramara.

Ramara’s Position

21Ramara was not aware that Transport Canada’s funding would not include the material overhead connected to the Safetrans Package until after June 11, 2011, (the date of the invoice which was the subject matter of the arbitration) and well after the Agreements, which form part of CN’s action, were entered into. Ramara did not know and “had no reason to suspect” that the disputed overhead costs would not be included in the grant provided by Transport Canada. It was Ramara’s experience, based on other crossing upgrades, that the Transport Canada funding was always at 80% of the estimate for the total cost of the work. Ramara did not know that any part of the CN cost estimate for the project would be ineligible for a grant.

22The figure of 80% is provided for in the Railway Safety Act provisions re federal government funding: RSC 1985, c. 32 (4th Suppl.) as amended:

12(6) The amount of a grant that may be authorized by the Minister under this section in respect of a proposed railway work shall not exceed eighty per cent of the construction or alteration cost of the work, as determined by the Minister…

23Although CN always applied for the most it could get from Transport Canada, i.e. 80%, at no time would the amount applied for cover the disputed overhead costs. No matter what amount of funding was granted by Transport Canada, Ramara would always be called upon to pay more than had been applied for given that the overhead costs were not included.

24Ramara was not aware, nor was it ever disclosed to Ramara that there was an Agreement between CN and the Transport Canada, dated August 1, 2009, that provided as follows:

Eligible Costs for pre-wired packages, notwithstanding the CTA Guide, shall be the allowance applicable for contract overheads.

25As the arbitrator pointed out, at p. 14 of the Arbitration Award, “that means 3% up to $50,000, 2% between $50,000 and $100,000, and 1% on amounts over $100,000. In other words, not the 50% set out in Schedule C of the CTA Guide, but rather Schedule D under ‘allowance for contract overheads.’”

26CN’s action is about collecting this differential amount for overhead charges that CN knew would not be considered by Transport Canada, and would not be included in any funding provided by Transport Canada, a material fact that CN did not disclose to Ramara.

27Put another way, Transport Canada’s funding, then available up to 80% under statute for such projects, allowed overhead to be invoiced by CN and funded by Transport Canada to CN at only a tiered 3-2-1% rate calculated on the purchase costs of the design and supply of the materials, CN invoiced Ramara for a share of the net project costs which CN has calculated at a 50% overhead rate. The difference is significant to Ramara.

28CN is not entitled to any overhead charge in excess of the amount allowed by Transport Canada for such charge, and which has been included in the payments already made by Ramara to CN.

29Ramara relies upon the findings and conclusions of the arbitrator, and submits that the issue of CN’s entitlement for those disputed amounts is res judicata or is subject to issue estoppel. To permit CN to pursue its claim against Ramara would be an abuse of process and would result in multiplicity of proceedings, with the potential for inconsistent findings of fact and law. CN’s action should be dismissed summarily.

30CN’s action against Ramara raises the same question that was decided by October 29, 2013, Arbitration Award. The Arbitration Award is a final decision. The parties in the action are the same parties as were before the arbitrator. The relative time frame is the same.

31The Arbitration Award denied CN’s right to succeed in its claims for the materials handling overhead. The findings of CN’s material misrepresentation and non-disclosure entitled Ramara to rescission in respect that part of the Agreement dealing with Ramara’s obligation to pay the charges as claimed; alternatively, the Arbitration Award entitled Ramara to dismissal of CN’s claims based on tortious misrepresentation, misrepresentation by silence and knowing material non-disclosure.

32“The same issues, the same factual matrix and substantially same form of the Agreements, and the same defences in law pleaded by Ramara to CN’s comparable claims, with conclusive and final determination made already; the basis is present here for application of the doctrine and principles of res judicata and issue estoppel and it would not be unfair to the plaintiff CN to apply them in this action.” (para. 42 of Ramara’s factum).

33There is no genuine issue requiring a trial, and accordingly summary judgment should be granted dismissing CN’s action.

34CN has failed to “put its best foot forward” with respect to the existence or non-existence of material issues to be tried. There is no evidence to put in doubt the finding of fact of the arbitrator that CN was silent on a material fact, the non-disclosure of the funding restriction with regard to the overhead charges.

35CN has not adduced any fact to support the need for a trial.

CN’s Position

36The three Agreements which form the basis of CN’s action against Ramara are subsequent in time to the Agreement which was considered by the arbitrator, and, the wording is different.

37The three Agreements which form the subject matter of CN’s action were not before the arbitrator. The arbitrator found that CN had made a contractual misrepresentation to Ramara by holding out that it would apply for an “80% grant”; this finding was made in the context of the earlier Agreement only, and based on its specific wording. CN knew that it could not obtain 80% of the cost based on Trans Canada’s position regarding the overhead charge.

38The three subject Agreements were separate and distinct transactions between the parties, occurring after the Agreement which formed the basis for the arbitration. The Agreements arose in a different factual context than the Agreement which was before the arbitrator.

39By June 21, 2011, Ramara was aware that Transport Canada would not fund the entire amount of the project costs. It knew this fact before the work was undertaken under the three subject Agreements.

40Arbitrator Cunningham’s fact-specific findings regarding misrepresentation in the earlier Agreement do not bind subsequent proceedings. CN relies on paragraph 4 of the Arbitration Agreement, which states:

The parties and the arbitrator undertake and agree that, unless there is a written agreement, court order, or other legal requirement to the contrary, all documents, transcripts and other materials and information disclosed during the course of the arbitration will be held in confidence and used only for the purposes of the arbitration…

41What Ramara is asking the court to do is to find that the contractual misrepresentation found by the arbitrator applies to the subsequent Agreements. The issue of whether there was a misrepresentation in respect of the subject Agreements is an issue, says CN, that needs to be determined in the context of evidence surrounding the negotiation and execution of those agreements.

42There is no evidence to tie the contractual misrepresentation found by the arbitrator, in the earlier Agreement, to the subsequent three agreements.

43The court is to exercise caution in the application of the doctrine of issue estoppel. Robb Estate v. St. Joseph’s Health Care Centre, [1999] O.J. No. 177, 1999CarswellOnt 162.

44CN points out that although the arbitration decision may have precedential weight and might be helpful in deciding the merits of CN’s action against Ramara, that decision relates to one Agreement only. Therefore the test for the application of the doctrine of issue estoppel is not met.

45Despite the position taken by Ramara, the arbitrator agreed with CN that the 50% overhead charge was in line with the CTA Guide. This misses the point that Trans Canada would not base its overhead funding on the guide; it would not consider those charges as part of the grant. CN knew this, and did not disclose.

46Nowhere in the three subject Agreements is the amount or percentage of the grant being applied for specified. CN’s representation, and its obligation pursuant to the Agreements, was to make application for “a grant”.

47Ramara could have, but did not, request that the wording be any different than what appears in the three Agreements.

48Ramara has lead no evidence that there were any representations made by CN in the context of the three subject Agreements. Therefore, CN is not, in this motion, called upon to respond anything other than Ramara’s reliance on the arbitrator’s findings based on an earlier and differently-worded agreement.

Issue Estoppel and Res Judicata

49The Alberta Court of Appeal in Enmax Energy Corp. v. TransAlta Generation Partnership 2015 ABCA 383, 2015 ABCA383, 2015 CarswellAlta 2243, set out the test for the application of the doctrine of issue estoppel: (1) the same question, decided (2) in an earlier final decision, between (3) the same parties. The court went on to say in para. 58 that whether the doctrine applies, is determined by comparing:

(a) The pleading or other initiating document leading up to the first decision, the reasons for that decision, and the final order or award,

With

(b) The pleading or other initiating document that has initiated the second proceeding.

50Enmax also held that “Res judicata prevents either party from relitigating an issue that has been decided previously in litigation between those parties.” para. 39

51The doctrines of res judicata and issue estoppel apply to arbitration proceedings. Scotia Realty Ltd. v. Olympia & York SP Corp (1992), 1992 CanLII 7553 (ON SC), 9 O. R. 414 (Gen. Div.).

52The Supreme Court of Canada, in Danyluck v. Ainsworth Technologies Inc. 2001 SCC 44, [2001] 2 S.C.R. 460, explained the rationale for the doctrines:

The law rightly seeks a finality to litigation. To advance that objective, it requires litigants to put their best foot forward to establish the truth of their allegations when first called upon to do so. A litigant, to use the vernacular, is only entitled to one bite at the cherry…An issue, once decided, should not generally be re-litigated to the benefit of the losing party and the harassment of the winner. A person should only be vexed once in the same cause. Duplicative litigation, potential inconsistent results, undue costs, and inconclusive proceedings are to be avoided. (para. 18).

Analysis and Conclusion

53For reasons that follow, I agree with Ramara’s position that the issues that arise with regard to CN’s current action against Ramara are the same issues that arose between the parties with regard to the earlier Agreement. The parties are the same. The discussions between the parties regarding the three Agreements occurred at about the same time as CN’s proposal for the project at Concession Road 3. The nature of CN’s claim in the current action is the same as it was when it initiated proceedings with the Canadian Transportation Agency and which resulted in the Arbitration Award: to collect the differential amount for overhead charges not included in any eligible funding from Transport Canada.

54The statement of claim claims:

(a) Judgment as against the Defendant for the sum of $85,532.77;

(b) Prejudgment and post-judgment interest at the rate of 12% per annum on the outstanding amounts from the dates that payment became due;

(c) In the alternative, prejudgment and post-judgment interest in accordance with the provisions of the Courts of Justice Act and Ontario Rules of Civil Procedure;

(d) Costs of this action on a substantial indemnity basis.

55The relief sought by CN against Ramara in its Notice of Arbitration dated October 3, 2012, was the following:

(a) An award in the amount of $55,707.87 plus HST;

(b) Prejudgment and post judgment interest from the 25th day of May, 2011, in accordance with the terms of the invoice which was forwarded to Ramara on the 25th day of May, 2011;

(c) In the alternative, prejudgment interest from the 25th day of May, 2011 and post judgment interest pursuant to the provisions of the Courts of Justice Act, R.S.O. 1990, c.C.43 and the Ontario Rules of Civil Procedure;

(d) An award directing Ramara to abide by the terms of the Agreement; and

(e) Costs of the Arbitration on a substantial indemnity basis.

56The facts pleaded in the statement of claim very closely resemble the facts pleaded in the notice of arbitration. Of particular interest is a comparison of paragraph 11 of the statement of claim with paragraphs 16 to 20 inclusive of the notice of arbitration. Those latter paragraph contain a recitation of the fact that, after having deducted the funds received from Transport Canada, CN invoiced Ramara for the outstanding balance, in accordance with paragraph 3 of the Agreement, and that Ramara has refused to pay. The statement of claim makes no reference to the funding received from Transport Canada, but contains the recitation of the fact that Ramara has refused to pay the invoices in full.

57I also note that the preamble to the notice of arbitration refers to “a dispute as to an amount due and owing to Canadian National Railway Company from The Corporation of the Township of Ramara pursuant to the Agreement and Order” and to “the Corporation of the Township of Ramara refusing to pay the entirety of an invoice rendered by Canadian National Railway Company to the Corporation of the Township of Ramara pursuant to the Agreement and Order.”

58Both proceedings involve the dispute about the obligation to pay the difference between what CN billed Transport Canada, that is, the total project cost less the Safetrans overhead charge, and the amount CN billed Ramara, after having applied the funding, but including the Safetrans overhead charge.

59At page 11 of his decision, the arbitrator said this:

We know as well that the amount finally invoiced to Ramara on December 13, 2012 was $492,383.10, which included the subject 50% materials overhead charge… The final invoice to Ramara deducted the “Federal Donation” (Transport Canada) of 80% or $314,425.26 leaving a balance of $177,957.84 of which 62.5% or $111,223.65 was to be paid to Ramara plus HST for a total of $125,682.57. The problem of course is that the 80% Federal donation was not based on the total project cost but rather upon the separate invoice sent by CN to Transport Canada on March 30, 2011, which totaled $393,031.65. The 80% donation on this amount is $314,425.26. What in effect was done, I find, is that CN invoiced Transport Canada for the total project cost less the Safetrans overhead charge. This amount of $314,425.26 was donated by Transport Canada. Therein lies the dispute.

60Both the arbitration proceeding and the current action by CN involve a refusal to pay an amount based on the misrepresentation that the entire amount of the estimate of cost for the projects was eligible for a grant, from Transport Canada, of up to 80%.

61In the earlier Agreement, the figure of 80% was set out. That figure was not included in the later Agreements however that does not change the question between the parties in both proceedings. In the parties’ dealings with all of the agreements, Ramara’s assumption was that all of the estimated cost for the projects were eligible for a grant from Transport Canada. In the course of the examination of Margaret Black, the former Works Superintendent for Ramara, on August 28, 2013, she indicated that the assumption was:

That whatever costs were submitted to us would be the same costs submitted to Transport Canada. (at page 444 of the transcript).

62She also went on to say, at page 452:

Our experience with any other crossing upgrades it was always funded at 80%... That’s the risk we were willing to take, but we were never assuming risk that Transport Canada’s calculations of the costs would be different.

63CN’s representative, Mr. Watt, acknowledged, in the course of his examination on August 28, 2013, that CN applies “for the maximum in each and every case”. (p. 461). Again, however, whatever the “maximum” might be, it would never include the disputed overhead charges.

64In no circumstances, regardless of whether the expectation of 80% funding was expressed in the Agreements or whether that was the expectation of the parties, or even if Transport Canada met those expectations, could ANY portion of the grant include the disputed differential amount for the Safetrans overhead.

65The actual shortfall would always be attributable to the difference between the overhead calculated under the tiered rate (eligible) and the 50% rate (ineligible). (para. 61 of CN’s factum).

66In his reasons for refusing to grant leave to appeal the arbitrator’s decision, Justice Wilton-Siegel said this at para. 4:

4Notwithstanding this covenant, at the time that it executed the Agreement, the Appellant knew that Transport Canada was not prepared to fund overhead charges relating to pre-wired packages such as were involved in the work in the amounts contemplated by the Canadian Transportation Agency Guide referred to in section 6 of the Agreement (the “Guide”).

67At para. 5, Justice Wilton-Siegel reiterated the arbitrator’s finding of fact that:

The Appellant submitted an application to Transport Canada for the work in an amount that included the overhead charge at issue but, after receiving final approval, invoiced Transport Canada an amount that excluded the overhead charge at issue.

68And finally, at para. 19 of his Endorsement, Justice Wilton-Siegel said the following:

…in this case, the withholding of the facts that Transport Canada would not fund the overhead charge, and that the Appellant would not prepare its invoice for Transport Canada using the rate stipulated in the Guide for the overhead charge at issue and therefore would not invoice for the full 80% of the cost of the work, rendered the statement in section 6 of the Agreement untrue.

69Regardless of whether the amount of the grant to be applied for was specified, there was a material fact, not known to Ramara and not disclosed by CN, that the entire estimated project cost, or a specific portion thereof, was not eligible for funding by Transport Canada, and, CN’s representation that it would “prepare all accounts for work performed by [CN] for both installation and maintenance using rates as stipulated in the latest Guide to Railway Charges for Crossing Maintenance and Construction as issued by the Canadian Transportation Agency” was untrue.

70The contractual misrepresentation and tortious, negligent misrepresentation by CN as found by the arbitrator, with regard to the earlier Agreement, occurred as well with the three later Agreements.

71CN’s submission that Ramara was aware of the above fact before the work was undertaken under the subject Agreements, does not, in any way, qualify the fact that a material misrepresentation was made, which Ramara relied upon, and which caused Ramara to have to pay an amount that it could not have anticipated would not be eligible for Federal funding. The submission misses the point that Transport Canada would not base the overhead funding on the guide, and would not consider those changes as part of any grant.

72There is accordingly no genuine issue requiring a trial between CN and Ramara. Ramara is entitled to and shall be granted an order dismissing CN’s claim, pursuant to rule 20.04. I need not address the balance of the motion.

73If the parties are unable to agree on costs, Ramara may make written submissions as to costs within 30 days of the release of these reasons. CN has 10 days after receipt of Ramara’s submissions to respond. All such written submissions shall be filed with the Local Registrar’s Office with proof of service to be submitted directly to my Chambers thereafter. If no submissions are received within this time frame, the parties will be deemed to have settled the issue of costs as between themselves.

The Honourable Madam Justice Louise L. Gauthier