Court File and Parties

Newmarket Court File No.: CV-15-123108-00 Date: 2017-02-24 Ontario Superior Court of Justice

Between: TURTLE CREEK LANDSCAPE INC., Plaintiff And: SUMMIT AUTO BROKERS INC. and SHANE BAGHAEE, Defendants

Counsel: Leonard Reece, for the Plaintiff (Self-Represented) Sahar Cadili, for the Defendants

Heard: February 22, 2017

Reasons for Decision

DiTOMASO J.

Introduction

[1] The plaintiff, Turtle Creek Landscape Inc. (“Turtle Creek”), seeks summary judgment “to have the defence dismissed” and for judgment in the amount of $98,587.90 plus costs. The defendants, Summit Auto Brokers Inc. (“Summit”) and Shane Baghaee (“Shane”) (collectively, the “defendants”) bring a cross-motion for summary judgment to dismiss Turtle Creek's motion and action. Turtle Creek alleges that it suffered financial losses as a result of purchasing a vehicle from the defendants. However, the defendants assert that Turtle Creek did not purchase the vehicle or enter into any agreement to purchase the vehicle from them. Rather, they assert that Roberto Imbiscuso (“Imbiscuso”) purchased the vehicle from Summit. Further, Shane states that he had no involvement in the Vehicle Purchase Agreement in his personal capacity and was at all times acting in his capacity as a representative of Summit.

[2] Turtle Creek had claimed the sum of $280,000 by way of damages in its Statement of Claim.

[3] However, on its motion for summary judgment, Turtle Creek concedes the only amount in damages sought is the sum of $98,587.90 plus costs.

[4] Turtle Creek maintains that there is no genuine issue requiring a trial and, accordingly, seeks summary judgment for the sum of $98,587.90 plus costs.

[5] Summit and Shane state that there is no genuine issue requiring a trial. They assert the motion and the entire action ought to be dismissed as Turtle Creek has no cause of action against either of them and Turtle Creek has not produced evidence to prove any alleged problems with the vehicle or any damages suffered.

Overview

[6] On April 24, 2015, Turtle Creek purchased a used 2008 Ford F350 truck (the vehicle in questions) from Summit. Shane was the salesperson.

[7] The defendants submit that on April 24, 2015, an individual by the name of Roberto Imbiscuso entered into an agreement to purchase the truck (the “Vehicle Purchase Agreement”) from Summit. The defendants take the position that Turtle Creek has no agreement with either of them and that Imbiscuso is the purchaser. Further, Shane maintains that he was not a party to the Vehicle Purchase Agreement in his personal capacity and only signed the Vehicle Purchase Agreement as a representative of Summit.

[8] The vehicle sold for a total price of $27,520.15 inclusive of taxes and other fees.

[9] Pursuant to the Vehicle Purchase Agreement, Imbiscuso purchased the vehicle and titled the vehicle in his own name, and not in the name of Turtle Creek.

[10] The vehicle was sold to Imbiscuso with a third party warranty purchased through Summit from A–Protect Warranty Corporation. The warranty did not involve Summit or Shane.

[11] When the vehicle was sold to Imbiscuso, the vehicle had been certified by a third party, Hamid Auto Service Inc. The vehicle was found to be completely safe and roadworthy resulting in the issuance of a Safety Standards Certificate and a yellow inspection sticker, confirming the vehicle passed the Ontario Safety Standards test provided to Imbiscuso at the time of purchase.

[12] Turtle Creek states that one month the after the purchase, it started to experience numerous problems with the truck and took the truck to a Ford dealership with the help of Turtle Creek's mechanic. Turtle Creek maintains the Ford dealership identified numerous issues with the vehicle and provided Turtle Creek with an estimate of between $15,000 and $20,000 for total repairs and to bring the truck to road worthiness.

[13] On June 9, 2015 one of Turtle Creek’s employees, Mr. Leonard Reece, contacted Shane requesting that he fix the truck, take the truck back and refund money or pay the cost to have the truck repaired at the Ford dealership. Shane refused which gave rise to this lawsuit.

[14] The Statement of Claim was issued on June 17, 2015. Turtle Creek alleges as a result of the negligence of Shane when he failed to disclose the “truck facts” to Turtle Creek, that negligence led to problems arising as to the condition and safe operation of the vehicle. Further, as a result of the negligence of either one or both of the defendants’ negligence, Turtle Creek suffered financial loss in fulfilling its obligations to its clients.

[15] By way of Statement of Defence dated November 5, 2015, the plaintiff’s allegations were denied and the plaintiff was put to the strict proof of any alleged wrongdoing of either defendant and strict proof in respect of damages.

Issue

[16] The issue to be determined on each of the motions is whether there is a genuine issue requiring a trial. Turtle Creek asserts that there is no genuine issue requiring a trial on its motion for summary judgment. Summit and Shane take the same position in respect of their cross-motion for summary judgment.

Position of the Parties

Position of Turtle Creek

[17] Turtle Creek submits that it entered into a contract with Summit and Shane for the purchase of the Ford F350 truck. Shortly after the purchase of the truck, numerous issues were identified requiring repairs in the range between $15,000 to $20,000. The defendants refused to pay for the repairs, or return monies to Turtle Creek.

[18] There are a further allegations of fraudulent misrepresentation regarding the tampering with the odometer reading of the vehicle to show less kilometres registered than the actual or real kilometres. Turtle Creek claims damages the amount of $98,587.90 plus costs. It is submitted that there are no genuine issues requiring a trial and on this evidentiary record, summary judgment for said amount should be granted.

Position of Summit and Shane

[19] Summit and Shane submit that Imbiscuso personally and not Turtle Creek purchased the vehicle from Summit and not Summit and Shane. On this ground, Turtle Creek has no cause of action against either Summit or Shane.

[20] It is submitted that Imbiscuso purchased a third party warranty which did not involve Summit or Shane. They submit that any claim with respect to the truck that Imbiscuso has or may have should have been pursued against the warranty company, A-Protect Warranty Corporation.

[21] Further, it is submitted that Turtle Creek has not provided proof of any of the alleged problems with the truck or mechanical issues requiring services as alleged by Turtle Creek. The vehicle was sold to Imbiscuso, the vehicle had been certified by a third party, Hamid Auto Service Inc. and was found to be completely safe and roadworthy resulting in the issuance of the Safety Standards Certificate and yellow inspection sticker, confirming the vehicle passed the Ontario Safety Standards test provided to Imbiscuso at the time of purchase.

[22] In addition, it is submitted that Turtle Creek has not provided any proof of mechanical unworthiness or problems associated with the truck. It is submitted that the truck was well-maintained substantiated by maintenance records provided to Turtle Creek which showed that the truck was taken for regular maintenance at a Ford dealership in Alberta.

[23] As for the claim for damages, Summit and Shane state that Turtle Creek has not produced evidence of the alleged problems of the truck or mechanical issues requiring services and has not produced any evidence of damages or any monies paid in connection with actual repairs undertaken on the truck. Further, Turtle Creek has not produced any evidence of any efforts to have any alleged repairs undertaken through the warranty program. Summit and Shane also challenge the amount claimed for damages by Turtle Creek. Summit and Shane submit that Turtle Creek's motion and entire action ought to be dismissed with costs.

Analysis

The Law

[24] The court shall grant summary judgment, where it is satisfied that there is no genuine issue requiring a trial with respect to a claim. Only where the judge is able to reach a fair and just determination on the merits on a motion for summary judgment is there no genuine issue requiring a trial. The summary judgment process must:

(a) allow the judge to make the necessary findings of fact;

(b) allow the judge to apply the law to the facts; and,

(c) be a proportionate, more expeditious and less expensive means to achieve a just result. (See Rule 20.04(2) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194; Hryniak v. Mauldin, 2014 SCC 7 at para. 49)

[25] The Moving Party bears the onus of proving there is no genuine issue requiring a trial. An evidentiary burden to support that a genuine issue exists only rests with the Responding Party if the Moving Party demonstrates a prima facie right to summary judgment.

[26] In determining whether there is a genuine issue, the court is required to consider the evidence submitted by the parties. (See Rule 20.04(2.1) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194)

[27] On a summary judgment motion, the evidence and procedure must be such that the judge is confident he or she can find the necessary facts and apply the relevant legal principles so as to fairly resolve the dispute. (See Hryniak, at paras. 50 and 57)

[28] If the motion judge does not have the confidence in making the necessary findings of fact, then summary judgment should not be seen as a proportionate means to resolve the dispute.

[29] The Rules of Civil Procedure provide for discretionary powers that may be exercised by a motions judge in concluding whether there is a genuine issue. The powers are discretionary, presumptively available and may be exercised unless it is in the interest of justice for those powers to be exercised only at a trial. (See Hryniak, at paras. 45 and 61)

[30] The motions judge may weigh the evidence, evaluate the credibility of a deponent and draw any reasonable inference from the evidence, unless it is in the interest of justice for such powers to be exercised only at trial. (See Rule 20.04(2.1) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194)

[31] On a motion for summary judgment, the judge should first determine if there is a genuine issue requiring a trial based only on the evidence before him or her without using the fact-finding powers. If he or she has the evidence required to fairly and justly adjudicate the dispute and the process is a timely, affordable and proportionate procedure, there will be no genuine issue requiring a trial. (See Hryniak, at para. 66)

[32] If there appears to be a genuine issue requiring a trial, the motions judge should then determine if the need for a trial can be avoided by using the discretionary powers. The judge may, at his or her discretion, use those powers provided that their use is not against the interest of justice. Their use will not be against the interest of justice if they will lead to a fair and just result and will serve the goals of timeliness, affordability and proportionality in light of the litigation as a whole. (See Hryniak, at para. 66)

[33] The inquiry into the interest of justice is comparative and may require the motions judge to assess the relative efficiencies of proceeding by way of summary judgment as opposed to trial. This may involve a comparison of the evidence that will be available at trial and on the motion as well as the opportunity to fairly evaluate it. (See Hryniak, at para. 58)

[34] The motions judge may order that oral evidence be presented by one or more parties for the purposes of exercising his or her discretionary powers. The power to order oral evidence should be employed when it allows the judge to reach a fair and just adjudication of the merits and it is proportionate to the cause of action. It should be used to promote the fair and just resolution of the dispute in light of the principles of proportionality, timeliness and affordability. (See Rule 20.04(2.1) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194; Hryniak, at paras. 63 and 65)

[35] The party seeking to lead oral evidence should demonstrate why such evidence would assist the motions judge in weighing the evidence, assessing credibility, or drawing inferences. The party should provide a “will say” statement or other description of the proposed evidence to assist the judge in setting the scope of the oral evidence. (See Hryniak, at para. 64)

[36] The process of calling oral evidence is not a full trial on the merits, but is designed to determine if there is a genuine issue requiring a trial. (See Hryniak, at para. 65)

Evidence

[37] On these motions, I have reviewed the following evidentiary record:

• Turtle Creek’s Motion for Summary Judgment:
  • Turtle Creek’s motion record
  • Affidavit of Roberto Imbiscuso sworn October 27, 2016 with exhibits
  • Responding record of the defendants
  • Affidavit of Shane Baghaee sworn November 30, 2016 with exhibits
• Cross-motion for Summary Judgment by the defendants
  • Affidavit of Shane Baghaee sworn November 30, 2016
  • Turtle Creek’s responding record
  • Affidavit of Corrinne Turmaine sworn December 30, 2016 with exhibits

[38] No cross-examinations on any of the affidavits took place.

Findings

[39] I find that this is an appropriate motion for summary judgment and I further find that there are no genuine issues requiring a trial on either motion. A summary decision is the most fair and just result, and serves the goals of timeliness, affordability and proportionality. I find in this case and on this evidentiary record I am in a position to render a decision in the interests of justice leading to a fair and just result in serving the goals of timeliness, affordability and proportionality in light of litigation as a whole with reasons to follow. I come to this conclusion both in respect of Turtle Creek’s motion for summary judgment and Summit and Shane's cross-motion for summary judgment.

Parties to the Vehicle Purchase Agreement

[40] I accept the evidence of Shane Baghaee as set out in his affidavit sworn November 30, 2016 found in the defendants' Motion Record.

[41] I find that the purchaser of the vehicle in this case was not Turtle Creek Landscape Inc. but Roberto Imbiscuso personally. I further find that on April 24, 2015 he entered into an Agreement to purchase a used 2008 the Ford F350 truck. This purchase is evidenced by a copy of the Vehicle Purchase Agreement attached and marked as Exhibit “A” to Shane’s affidavit. Also presented were two other copies of the Vehicle Purchase Agreement dated April 24, 2015. There are three in all found at Exhibit 14 of Imbiscuso’s affidavit. The first one is in the name of Imbiscuso, Roberto/Turtle Creek Landscape Inc. The second one is in the name of Imbiscuso, Roberto and the third one is in the name of Imbiscuso Roberto which matches the Vehicle Purchase Agreement produced by the defendants and found in their motion record at Exhibit “A”.

[42] I accept the evidence of Shane establishing that Imbiscuso is the purchaser of the vehicle. I find Imbiscuso purchased the vehicle personally and not through a corporation.

[43] I find initially, Imbiscuso was going to finance the vehicle and as a result, he provided Shane with his Notice of Assessment. That Notice of Assessment is found at Exhibit “B” of Shane’s affidavit.

[44] Mr. Imbiscuso then decided to purchase the vehicle outright. This explains the Vehicle Purchase Agreement in Imbiscuso’s own name.

[45] Further, I find that on the same day that the Vehicle Purchase Agreement was entered into, Imbiscuso asked Shane to issue to Imbiscuso another copy of the Vehicle Purchase Agreement in his name but also adding the name Turtle Creek Landscape Inc. I accept Shane’s evidence that Imbiscuso stated he needed such a document for tax purposes. As a courtesy, Shane issued another copy of the Vehicle Purchase Agreement naming both parties as purchasers. I accept this was not the actual agreement between the parties and was only created for tax purposes at the request of Imbiscuso. Shane did not retain a copy. This document can be found at Exhibit 14 of Turtle Creek’s motion record.

[46] Further, I find that Imbiscuso purchased the vehicle pursuant to the Vehicle Purchase Agreement and not Turtle Creek as it was Imbiscuso who took title to the vehicle. Found that the Exhibit “C” of Shane’s affidavit is a copy of the vehicle ownership in Roberto Imbiscuso’s name and not in the name of Turtle Creek Landscape Inc.

[47] As for the vendor of the vehicle, it was sold to Imbiscuso by Summit as evidenced by the Vehicle Purchase Agreement identifying Summit Auto Brokers Inc. at the top and identifying the sales manager as Shane Baghaee. I accept that he is a registered salesperson with Summit and as such Shane is improperly named in these proceedings. He was not involved in the Vehicle Purchase Agreement in his personal capacity. He only signed the Vehicle Purchase Agreement as a representative of Summit.

[48] I find that Imbiscuso purchased the vehicle and not Turtle Creek and as such Turtle Creek has no cause of action against either of the defendants.

The Warranty and Claim for Vehicle Repairs

[49] I find that the vehicle was sold to Imbiscuso with a third party warranty that Imbiscuso purchased through Summit from A–Protect Warranty Corporation which involved neither Shane personally nor Summit. The defendants submit that any claim with respect to the vehicle that Imbiscuso has or may have should have been pursued against the warranty company. I find there is no evidence that he ever did so.

[50] In June 2015, Shane acknowledges receiving a call from Mr. Reece. Mr. Reece was calling on behalf of Turtle Creek Landscape Inc. and said that if the the defendants did not pay him $15,000, Summit and Shane would be sued. Shane told Mr. Reece he did not know who Mr. Reece was and that Shane never sold a car to him. Mr. Reece replied that he was calling on behalf of Roberto Imbiscuso. Shane could not speak to Mr. Reece without Imbiscuso’s consent. Mr. Reece told Shane that there were problems with the vehicle. When asked what the problems were, Mr. Reece refused to provide Shane with any information and hung up the phone.

[51] I accept the evidence of Shane that he never heard or received any call or correspondence from Imbiscuso claiming that there was an issue or problem with the vehicle.

[52] I accept the defendants’ evidence that when the vehicle was sold to Imbiscuso, the truck had been certified by a third party, Hamid Auto Service Inc., and was found to be completely safe and roadworthy resulting in the issuance of a Safety Standards Certificate and yellow inspection sticker, confirming the vehicle passed the Ontario Safety Standards test. This was provided to Roberto Imbiscuso at the time of purchase. Marked as Exhibit “D” to Shane's affidavit is a copy of the Safety Standards Certificate No. 22183527.

[53] Turtle Creek has claimed issues with the vehicle. However, I find that Turtle Creek has not provided proof as to the alleged problems with the vehicle or mechanical issues requiring servicing. Further, I accept the evidence of Shane that neither he nor Summit have been provided with any proof of mechanical unworthiness or problems associated with the vehicle.

[54] The vehicle was purchased at a cost of $27,520.50 all in. Turtle Creek is claiming repair cost of $36,615.91 based on alleged repair invoices from Barry's Mobile. Mr. Reece submits that figure is substantiated by all of the documents that can be found at Exhibit 5 to the affidavit of Corrinne Turmaine. I have reviewed to the affidavit of Corrinne Turmaine and the documents found at Exhibit 5 and conclude that the claim for repairs is not substantiated in terms of what repairs needed to be undertaken and the cost of those repairs. There is one questionable document found dated November 2, 2015 from Barry's Moble Repairs issued to Turtle Creek Landscape Inc. in the amount of $1,361.65. It involved 22 hours of labour involving the installation of the plow harness/salter harness and wiring. While the cheque to Barry's Mobile Repairs bears a note by Turtle Creek Landscape Inc. that this was referable to the “Ford F350 – repairs”, it is doubtful that this bill and cheque have anything to do with the vehicle issues, whatever they might be, specifically relating to the vehicle’s condition and safety.

[55] While there are mechanical repair orders, one undated in the amount of $4,615 and another dated June 29, 2015 in the amount of $8,129.22 from Concept Ford Inc. Georgetown, Ontario, there is no evidence that $12,704.22 of repairs were ever undertaken in respect of the vehicle and there is no evidence of any payment for those repairs, if they were ever done.

[56] There is an invoice from the Barry's Mobile dated June 29, 2015 totaling the sum of $12,704.27 but there is no evidence that this work was ever done or ever paid for by Turtle Creek. There is another invoice dated November 29, 2015 in the amount of $23,911.64. Again, there is no evidence that the work was ever done or the work was ever paid for by Turtle Creek.

[57] I find that Turtle Creek has failed to establish payment of repairs to the vehicle in the amount of $36,615.91 as claimed. This amount is at variance with the amounts set out for alleged required repairs in the affidavit of Imbiscuso sworn October 27, 2016, where at paragraph 4 he deposes that the Ford dealership identified numerous issues with the vehicle and provided an estimate for $15,000 - $20,000 for total repairs and “to bring it to road worthiness”. I do not accept Imbiscuso’s bald and unsupported allegations. Rather, he claims the repairs are more than that amount but, again, those claims are unproven.

The Vehicle Was Well-Maintained

[58] I accept the evidence of Shane that the vehicle was well-maintained. Shane obtained and provided to Turtle Creek copies of the repair records of the vehicle when it was in Alberta. Those records show that the vehicle was taken for regular maintenance at a Ford dealership service department (Ducharme Motors Ltd.). Attached to his affidavit and marked as Exhibit “E” is a copy of those service records.

[59] There is reference to Mr. Reece alleging that the vehicle sustained water damage because of the some flooding in Alberta while the vehicle was located there. Any such flood damage was denied and there was no evidence that the vehicle sustained flood damage in Alberta or anywhere else. Further, there was no evidence that, if there was flood damage, the defendants failed to disclose that event to Imbiscuso.

Allegations of Odometer Tampering

[60] In his sworn affidavit, Imbiscuso at paragraph 19 alleges the discovery of many discrepancies in documents provided by the defendants. He alleges that those discrepancies are described as fraudulent Vehicle Contract of Sale, fraudulent Vehicle Service Reports, fraudulent Ministry of Transportation Safety Standards Certificate, and the illegal reporting of kilometres and a host of other fraudulent activity.

[61] It is important to note that nowhere in Turtle Creek's Statement of Claim are there any allegations of fraud against Summit or Shane or both.

[62] I accept the evidence of Shane that he has never tampered with the odometer of this vehicle.

[63] It appears from Imbiscuso’s affidavit that there is an allegation that Shane tampered with the odometer because the Vehicle Purchase Agreement reads 174,790 kilometres on the odometer while the auction document from Adesa Montréal shows an odometer reading of 174,798 kilometres when purchased by Summit from Celienne Auto – a difference of 8 kilometres. I accept Shane's explanation that this discrepancy is clearly a typographical error.

[64] Further, Imbiscuso was aware that the vehicle was driven from the auction in Montréal to Toronto which shows the certification paperwork has a higher mileage (see Exhibit “D” to the affidavit of Shane Baghaee, the Safety Standards Certificate dated April 25, 2015 – the day after the date of the Vehicle Purchase Agreement). The odometer reading on that date was 175,401 kilometres. The certificate was certified by a third party, Hamid Auto Service Inc. at Richmond Hill, Ontario.

[65] While Imbiscuso alleges fraud against the defendants, such fraud is neither substantiated nor pleaded. Rather, I find that the discrepancy in the kilometres is clearly attributed to a typographical error and amounts to nothing. In conclusion, I would dismiss any allegations raised by Turtle Creek in respect of odometer tampering by the defendants.

Damages

[66] Found at Exhibit 4 to the affidavit of Corrinne Turmaine is a summary of the damages claimed on this motion for summary judgment as follows:

Warranty history $124.00 Repair Invoices Barry’s Mobile $36,615.91 Enterprises Rental $6,724.32 Five Landscaping Jobs: $ 25,000.00 TOTAL $ 98,587.90

[67] Mr. Reece submitted that all of the claims amounting to $98,587.90 can be found in the supporting documents located at Exhibit 5 to the affidavit of Corrinne Turmaine. Having reviewed those documents, I disagree. I have already commented upon and made findings in respect of the repair claim. As for the warranty history claim, while such document exists there is no proof that $124 was paid by Turtle Creek.

[68] There is a claim in the amount of $6,724.32 for alleged monies paid to Enterprises Rental. The document at Exhibit 5, being only page one of four, is illegible and is of absolutely no evidentiary value. This claim is unproven.

[69] There is a claim for presumably the loss of profit in respect of five landscaping jobs in the amount of $25,000. All that relates to this claim is a handwritten sheet of paper relating to the construction of a retaining wall for a total amount of $8,275. There is absolutely no evidence as to what this sheet of paper means or relates to. There is no evidence supporting the loss claimed in the amount of $25,000. If this document purports to establish such a claim, it to fails to do so. It lacks any detail and there are no supporting documents whatsoever.

[70] Lastly, Turtle Creek claims $2,500 in defence of a traffic ticket that it received for “failed to have insurance card” presumably while someone drove an Enterprise rental vehicle. The ticket was submitted to Enterprise Rental. The notation at the bottom of the page reads: “ticket to be resolved as “not guilty” upon proof of insurance coverage”.

[71] This has nothing whatsoever to do with any legitimate damage claim against the defendants. It is without merit and I reject this claim.

[72] I find that Turtle Creek's claim for damages in the amount of $98,587.90 is totally unfounded and without merit. Contrary to the submissions of Mr. Reece, Exhibit 5 to the affidavit of Corrinne Turmaine does not establish or prove any of the items of damage claimed.

[73] In respect of Turtle Creek’s motion for judgment, I find that there is no genuine issue requiring a trial. On Turtle Creek's motion for summary judgment, and on the evidentiary record produced by Turtle Creek, for the reasons given, I find that Turtle Creek's motion for summary judgment must fail.

[74] Turtle Creek has not produced evidence of the alleged vehicle problems or mechanical issues requiring servicing. It has not produced evidence of damages or any monies paid in connection with any actual repairs undertaken on the vehicle. Further, it has not produced any evidence of any efforts to have any alleged repairs undertaken by the warranty program. Meanwhile, the defendants have produced substantial evidence to support that the vehicle in question was well-maintained as well as evidence that the vehicle passed the Ontario Safety Standards test.

[75] As for damages, Turtle Creek has failed to provide any or sufficient evidence to establish and prove its claim in the amount of $98,587.90.

[76] Further, I have found that Turtle Creek is not the true purchaser of the vehicle. It was purchased by Roberto Imbiscuso. Also, I have found that Shane Baghaee was not involved in the Vehicle Purchase Agreement in his personal capacity and that he has been improperly named in this proceeding. I find that Turtle Creek, on the totality of the evidence before me, has failed to put its “best foot forward”. There is no genuine issue requiring a trial with respect to the claim of Turtle Creek. Accordingly, Turtle Creek's motion for summary judgment is dismissed and the cross-motion for summary judgment is granted dismissing Turtle Creek’s motion and action.

Conclusion

[77] For the reasons given, the plaintiff’s motion for summary judgment is dismissed. Further, for the reasons given, the defendants’ cross-motion for summary judgment is granted, dismissing the plaintiff's motion and entire action.

Costs

[78] The parties have agreed that costs ought to be determined by way of written submissions. Within the next 30 days, the parties shall exchange and file with my judicial assistant at Barrie, a concise statement as to costs no longer than two pages in length, a costs outline, draft bills of costs together with any applicable authorities. Within the that same time, the exchange of written submissions would also include delivery of reply submissions, if any.

Justice G.P. DiTomaso Released: February 24, 2017