Court File and Parties
COURT FILE NO.: CV-10-8839-00C DATE: 20170502
SUPERIOR COURT OF JUSTICE - ONTARIO
B E T W E E N:
Western Steel and Tube Ltd. Plaintiff
– and –
Technoflange Inc. and Canadian Tire Corporation, Limited and Jiangsu Sainty Sumex Tools Corp. Ltd. also known as Jiangsu Sainty International Group also known as JMET Corporation carrying on business in North America as Sainty International LLC Defendants
BEFORE: F.L. Myers J.
COUNSEL: David A. Seed counsel for the Plaintiff Peter J. Henein, Shane Hardy, and Stefanie A. Holland, counsel for the defendant Canadian Tire Corporation, Limited A.J. Esterbauer and Dale E. Schlosser, counsel for the defendant Jiangsu Sainty Sumex Tools Corp. Ltd.
HEARD: April 28, 2017
Endorsement
[1] The defendant Jiangsu Sainty Sumex Tools Corp. Ltd. moves to set aside the default judgment granted by Penny J. dated December 15, 2016 and its prior noting in default.
[2] The defendant Canadian Tire also moves to set aside the default judgment or, at least, to vary it so that the in rem declarations concerning the plaintiff’s intellectual property rights contained in the default judgment are either set aside or clearly stated to be non-binding on Canadian Tire.
[3] Penny J. granted the default judgment after an undefended trial that the plaintiff booked and held without notice to counsel for Jiangsu Sainty Sumex or counsel for the co-defendant Canadian Tire.
[4] For the reasons set out below, the default judgment must be set aside due to the failure of the plaintiff to make full and fair disclosure of material facts to Penny J. The noting in default of the defendant Jiangsu Sainty Sumex will be set aside on terms.
The Basic Allegations
[5] Oversimplifying the facts, Canadian Tire was the plaintiff’s biggest customer for its manufactured goods. The plaintiff alleges that Canadian Tire retained Jiangsu Sainty Sumex in China to outright copy the plaintiff’s goods, its packaging and design get up, and its copyrighted materials. The plaintiff claims that Canadian Tire and Jiangsu Sainty Sumex have been unlawfully manufacturing and selling the copied goods for the last number of years in violation of the plaintiff’s intellectual property rights causing it to suffer damages.
This Proceeding
[6] In 2009 the plaintiff sued Canadian Tire and the defendant Technoflange who was then the manufacturer of the allegedly copied goods being sold by Canadian Tire. The proceeding has gone through a number of procedural changes so that the current court file number is dated 2010. The plaintiff added the defendant Jiangsu Sainty Sumex in 2012.
[7] Jiangsu Sainty Sumex has been more than coy in its response or its non-response to the proceeding. Although it had local counsel attending court on a watching brief in 2012, it declined to participate. Its local counsel was aware of the plaintiff’s motion to validate service against Jiangsu Sainty Sumex in 2014 and it declined to participate. One of the very many entities which may or may not be an alter ego of the Jiangsu Sainty Sumex or an affiliate was served under the Hague Convention in 2014. The Master validated service on Jiangsu Sainty Sumex on November 26, 2014. It did not defend before being noted in default on February 6, 2015. Its counsel threatened to bring a motion to set aside the noting in default from March to November, 2016 without doing anything other than setting up a 9:30 appointment to adjourn a date for its motion that had never been set and without serving any motion materials or even a draft statement of defence.
[8] There were active discussions among counsel for the parties in November, 2016 as to the timing of a motion to set aside the noting in default. Without notice to either defendant, the plaintiff obtained a date and held an undefended trial against Jiangsu Sainty Sumex on December 15, 2016. Thereafter, although the plaintiff had a judgment in hand, it did not disclose the judgment to counsel for Jiangsu Sainty Sumex who continued to inquire about dates for a motion to set aside the noting in default. In fact, the defendants only learned of the judgment from the court staff when they tried to book a hearing and were told that judgment had already been obtained.
The Position of Canadian Tire
[9] The default judgment was granted only against Jiangsu Sainty Sumex. Canadian Tire has been defending throughout. It has completed examinations for discovery of the plaintiff. Canadian Tire is not in default. However the terms of the default judgment are significantly broader than just an in personam judgment for damages against Jiangsu Sainty Sumex.
[10] At the plaintiff’s request, the default judgment includes declarations that:
a. the plaintiff is the owner of a trade-mark in the unregistered distinguishing guise for its products;
b. the plaintiff has established goodwill in Canada for the appearance of its products as packaged;
c. the plaintiff’s designs, specifications and pricing were confidential information that has been improperly received and used by Jiangsu Sainty Sumex;
d. Jiangsu Sainty Sumex directed public attention to its wares in such a way as to cause or be likely to cause confusion in Canada between its wares and those of the plaintiff contrary to s. 7 (b) of the Trade-marks Act;
e. Jiangsu Sainty Sumex has engaged in unfair competition by making unauthorized use of the plaintiff’s confidential information, get-up, reputation, and unregistered trade-mark;
f. Jiangsu Sainty Sumex sold its own goods in association with images of the plaintiff’s goods contrary to s. 7 (b) of the Trade-marks Act;
g. copyright subsists as literary works in the plaintiff’s shop drawings for its goods and the unique tooling required to make them;
h. Jiangsu Sainty Sumex infringed the plaintiff’s copyright by copying the plaintiff’s shop drawings and allowing its goods to be sold in association with images of the plaintiff’s goods.
[11] The declarations that the plaintiff has trade-marks and copyright are in rem determinations. They bind the world including the defendant Canadian Tire. Yet Canadian Tire has defended expressly and put in issue the plaintiff’s allegations that support the declarations. Moreover, the transcript of the undefended trial reveals that several allegations of wrongdoing, such as directing public attention to the wares of Jiangsu Sainty Sumex in association with images of the plaintiff’s products, are actually based on evidence adduced and submissions made by the plaintiff against Canadian Tire either solely or in conjunction with the Jiangsu Sainty Sumex. Similarly, if Jiangsu Sainty Sumex “received” confidential information, implicitly Canadian Tire must have possessed the plaintiff’s confidential information and unlawfully disclosed it to Jiangsu Sainty Sumex.
[12] Canadian Tire has defended and denied all of those allegations in this proceeding to the plaintiff’s knowledge. The plaintiff’s counsel made no mention to Penny J. that he was seeking findings of fact and law that had a direct effect on the legal position of Canadian Tire and which had been put in issue in the proceeding expressly by Canadian Tire.
[13] At the hearing of this motion, the plaintiff for the first time undertook to refrain from using the in rem declarations in the default judgment against Canadian Tire. [^1] Yet, even if that is so, the judge hearing the trial will still be asked to make a decision that is directly contrary to the existing in rem declarations. If Canadian Tire succeeds at trial, there will be two inconsistent in rem judgments of this Court on whether the plaintiff holds valid intellectual property rights in Canada.
[14] Canadian Tire was plainly affected in its legal and direct economic interests by the relief sought by the plaintiff before Penny J. Yet the plaintiff failed to give Canadian Tire notice that the plaintiff was seeking relief against it at the undefended trial. The plaintiff also failed to disclose to Penny J. that Canadian Tire would be affected by the relief sought including the in rem relief. It is trite law that all persons affected by a proposed order are entitled to notice of the proceeding including, or especially, in an in rem case. Union Natural Gas Co. v. Chatham Gas Co., 1917 CarswellOnt 104 (Ont. Sup. Ct.) at p. 3. Whether a default trial is properly regarded as an ex parte proceeding vis-a-vis the defaulting defendant, the plaintiff’s request for in rem relief was certainly ex parte to Canadian Tire. The plaintiff should have notified Canadian Tire before seeking that relief from Penny J. Coulson v. Secure Holdings Ltd. (1978), 1 CPC 168 (Ont CA)
[15] It is apparent that, at minimum, the default judgment cannot bind Canadian Tire.
The Position of Jiangsu Sainty Sumex
[16] In addition to the declarations of right listed above, the default judgment also contains an award of damages, including punitive damages, costs, and interest against Jiangsu Sainty Sumex in the aggregate amount of $1,976,153.10. That is an in personam judgment binding only Jiangsu Sainty Sumex.
(a) The Plaintiff Failed to Disclose to Penny J. the Trademark Opposition Board decision against it.
[17] In obtaining its judgment, both the in rem declarations that it owns intellectual property and the in personam award of damages for injury to the goodwill associated with the distinguishing guise of its goods, the plaintiff failed to mention to Penny J. that on August 31, 2015, the Trademark Opposition Board had ruled that the elements of the plaintiff’s goods for which its alleges a trade-mark are primarily functional and did not have a distinctive or distinguishing guise. As such, the plaintiff was denied registration of its claimed trade-mark.
[18] The plaintiff argues that enforcing an unregistered trade-mark at common law in Ontario is different than registering a trade-mark under the Trade-marks Act, RSC 1985, c T-13. But the Supreme Court of Canada has held that a purely functional design is not distinctive of the owner for trade-mark purposes. It held expressly that a functional guise cannot form the basis of either a registered or an unregistered trade-mark at common law. Kirkby AG v Ritvik Holdings Inc., 2005 SCC 65 at para. 3. Similarly, an element that is functional cannot be “distinctive” for the purposes of passing off. In Kirkby, the Supreme Court of Canada noted that “[t]he doctrine of functionality goes to the essence of what is a trade-mark.”
[19] The plaintiff asked Penny J. to declare that it is the owner of a trade-mark in the unregistered, distinguishing guise of its products and to declare that the distinguishing guise has established goodwill without telling the Penny J. that the Trademark Opposition Board had held that the elements making up that guise were functional and were not distinctive. It did not tell Penny J. that in light of that holding, the Supreme Court of Canada has held that there can be no common law or unregistered trade-mark nor damages for passing off. I do not need to decide whether Penny J. was bound by those holdings or if the doctrine of issue estoppel prevented the plaintiff from contesting them. It is enough to find that the plaintiff failed to tell the court a fact (the existence of the Board’s finding) that is plainly relevant, if not fundamental, to the facts and legal issues that it put before the court without notice to the defendants.
(b) The Plaintiff Failed to Disclose to Penny J. that it has an Expired Patent
[20] In addition, the facts in the Kirkby case concerned the issue of whether trade-mark protection can exist in goods after a patent over the goods has expired. The Supreme Court of Canada held in that case that trade-mark protection was unavailable to extend the expired monopoly provided by the patent. The plaintiff did not tell Penny J. that a patent over its goods had expired as well. The plaintiff argues that the patent covered elements of its goods that were not the same as those that it says make up its distinctive guise. It argues that the patent is therefore irrelevant. But those facts are clearly in dispute. The plaintiff denied Penny J. the opportunity to rule on the relevancy of the patent. In Parke, Davis & Co. v. Empire Laboratories Ltd., [1964] SCR 351, the Supreme Court of Canada held that in a trade-mark contest where there is a factual issue as to whether a claimed guise is functional rather than distinctive, the existence of an expired patent is relevant as it provides some evidence that the elements were considered functional by the owner to support its application for the patent. It was not up to the plaintiff to decide to keep relevant evidence from the court. Neither was it acceptable for Mr. Seed to make a narrow, technical relevancy call to justify withholding relevant facts from the court ignoring that the facts that he relied upon are disputed.
(c) The Plaintiff Failed to Disclose to Penny J. that Jiangsu Sainty Sumex has counsel.
[21] In addition, the plaintiff did not tell Penny J. that Jiangsu Sainty Sumex has counsel and that they were in discussions, albeit lengthy, unproductive discussions, with that counsel concerning a motion date to set aside the noting in default of Jiangsu Sainty Sumex. Mr. Seed argues that he truly believed that Jiangsu Sainty Sumex was not going to defend and that it was just playing a stalling game while it continues to sell its goods through Canadian Tire for as long as it can until trial. I note that he did not file any evidence to support that factual submission. However, that view is consistent with the steps taken (or more particularly, not taken) by Jiangsu Sainty Sumex and its counsel for several years. However, once again, it was not for him to make that decision instead of making proper disclosure to Penny J. that Jiangsu Sainty Sumex was represented and was playing a tactical game of hide and seek.
[22] Mr. Seed made the following submissions to Penny J. at the trial:
And I don’t know why the defendants, they’ve not come forward. They carry on business in Canada. They have no presence here. So, they’ve not come forward; they’re taking their chances. [Emphasis added.]
[23] And in asking Penny J. to award punitive damages, Mr. Seed submitted “The fact that they’ve, sort of, been in the shadows; they’ve avoided service; they were served; they didn’t show up.”
[24] Both of these submissions were technically true but incomplete. While Jiangsu Sainty Sumex had not formally appeared, Penny J. might well have found it important to know that it had counsel who was claiming that he intended to move to set aside the noting in default. I expect that Penny J would have required Mr. Seed to provide notice of the undefended trial to counsel opposite. This is consistent with best practices as discussed by D.M. Brown J. (as he then was) in Elekta Ltd. v. Rodkin, 2012 ONSC 2062 at para. 10. The court frequently requires notice to be provided in default proceedings although the Rules do not technically require it.
[25] Noting a party in default without notice to opposing counsel violates The Principles of Civility for Advocates, endorsed by the Advocates’ Society and the Court of Appeal. Male v. The Business Solutions Group, 2013 ONCA 382. Para. 19 of Principles of Civility for Advocates provides:
Subject to the Rules of Practice, advocates should not cause any default or dismissal to be entered without first notifying opposing counsel, assuming the identity of opposing counsel is known.
[26] At the very least, the plaintiff should have disclosed to Penny J. that Jiangsu Sainty Sumex had counsel. Moreover, prior to moving for default judgment, it ought to have given notice to counsel for Jiangsu Sainty Sumex that it would not wait any longer for it to bring its threatened motion. It should have set a deadline and brought its own case management conference before a judge to push the defendant to get on with its motion to set aside the noting in default or to defend.
(d) The Answer to Inappropriate Tactics is not More Inappropriate Tactics
[27] While Mr. Seed believed that counsel opposite was playing games, the plaintiff was doing so as well. Counsel for Jiangsu Sainty Sumex had been asking whether the plaintiff would consent to set aside the noting in default. The plaintiff and Mr. Seed made a deliberate decision to decline provide a position Instead, Mr. Seed asked the defendant a string of questions about the reasons for its default. Rather than simply consenting or declining to consent, it strung counsel opposite along through months of correspondence with no substantive purpose but to play out the plaintiff’s own tactical game to try to smoke out evidence that it could use to defend the threatened motion to set aside the noting in default.
[28] The fact that Mr. Seed had a willing participant in unproductive letter writing and delay in counsel opposite is not an answer. Default proceedings are not to be used for tactical gains. At para. 7 of Nobosoft Corporation v. No Borders, Inc., 2007 ONCA 444, the Court of Appeal adopted the following eloquent statement of policy written by Malloy J. at para. 2 of McNeill Electronics Ltd. v. American Sensors Electronics Inc. (1996), 5 CPC (4th) 266 (Ont. Gen. Div.), reversed on other grounds (1998), 108 OAC 257 (C.A.):
Motions to extend the time for delivery of pleadings and to relieve against defaults are frequently made and are typically granted on an almost routine basis. Usually opposing counsel will consent to such relief as a matter of professional courtesy. Where there is opposition to a motion of this kind, it is usually related to additional terms which are sought as a condition to the indulgence being granted or to issues of costs…It is not in the interests of justice to strike pleadings or grant judgments based solely on technical defaults. Rather, the Court will always strive to see that issues between litigants are resolved on their merits whenever that can be done with fairness to the parties.
[29] Jiangsu Sainty Sumex is by no means innocent in this gamesmanship. Its reliance on technicalities to avoid service and its argument that it did not need to defend until the plaintiff obtained a further order extending the time for service were disingenuous and unworthy. The Master validated service and authorized the plaintiff to act on it. If Jiangsu Sainty Sumex says that legally it has the right to copy the plaintiff’s goods because the plaintiff has no intellectual property rights in them, as ethically unappealing as such an argument may be, it should step up and have its defence adjudicated. Its games with its corporate name(s) and claiming to use local “agents” rather than admitting a presence, sending counsel on a watching brief but not filing a Notice of Intent to Defend for years after being served, threatening a motion for six months without delivering materials or even a draft statement of defence, are obvious stalling tactics that undermine its professed bona fides.
[30] In Canadian Imperial Bank of Commerce v. Petten, 2010 ONSC 6726, Corbett J. discussed the importance of recognizing the harm done to the plaintiff and to the administration of justice by allowing defendants to game the system. He wrote,
[6] The analysis of relative “prejudice”, then, is seen in the context of the overall goal of orderly and efficient processing of cases, and not just the immediate impact on the parties to the dispute. An atomistic analysis of the “prejudice” to the moving party and to the responding party will almost always favour the moving party: if the motion is dismissed, the moving party will have lost the case and be liable for the claim. If the motion is allowed, the responding party will be delayed but may yet obtain and enforce its judgment, if it succeeds on the merits. Where it can be shown that a responding party’s position may deteriorate if the motion is allowed, this may be addressed by terms, for example: expediting the trial, securing a potential judgment, or preserving evidence. Thus if the over-arching principle under Rule 19.08 is “relative prejudice”, the “principles established by the authorities”, the three-part test, would be rendered largely nugatory. This concern arises in this case: the defendants will be prejudiced if the order is not granted, in that judgment will remain against them without a decision on the merits. There is no evidence that CIBC would be prejudiced by further delay provided its executions remain in place.
[7] Civil litigation is slow. The Rules of Civil Procedure are the framework within which a plaintiff may bring its action and move that action forward to eventual judgment. This process is an essential feature of an ordered society under the Rule of Law. Those fundamental principles are compromised if the process for obtaining judgment is too slow and too costly. And those fundamental principles are compromised if defendants may defy the process for months or years, thereby delaying a just resolution, on the merits.
[8] Thus it is that a default judgment resulting from a defendant “gaming the system” or taking a “calculated risk” in not defending will not be set aside:
While debtors have rights, so too do creditors. It is not open to an alleged debtor to turn his back deliberately on a claim initiated against him and then, when it suits his purposes (and his pocket book) seek to do that which he should have done a good year before. Such conduct, in my view, is simply an attempt by a debtor to game the system and no interest of justice is served by rewarding such conduct.[5]
[9] Certainly where the court can conclude that there is an oblique motive by a defendant in failing to defend a claim, then a motion to set aside a default is unlikely to succeed. But there does not have to be an oblique motive. Indeed, the court may pile insult on top of misery in making such a finding where, as is often the case, debtors fail to defend because of stress and anxiety. There is an objective standard of reasonableness to be applied to the totality of circumstances giving rise to the default, and any delay in moving to set the default aside. Where a defendant has not acted reasonably, the court should not set aside the default, even if the court cannot determine why the defendant has proceeded as he did.
[10] In the case before me, I conclude that the defendants cannot satisfy the first two branches of the three-part test. They have a very weak case on the merits. And in these circumstances, I conclude that it would permit the defendants to “game” the system to set aside the default judgment. On the record before me, I am satisfied that this is what they are doing. But even if I could not go quite so far as to impute this oblique motive to the defendants, their conduct is not reasonable, and, to “preserve the overall integrity of the administration of justice”, the default judgment should stand. [Notes omitted.]
Setting Aside the Default Judgment
[31] I do not need to deal with the five part test for setting aside a default judgment in Mountain View Farms Ltd. v. McQueen, 2014 ONCA 194 as I have concluded that the default judgment cannot stand in light of the plaintiff’s failure to give notice to the defendants and its failure to make full and frank disclosure of important facts to Penny J. In any event I am satisfied on balance on the five point test (other than the reason for the default). However, that still leaves the noting in default of Jiangsu Sainty Sumex to be considered.
[32] With respect to the concern articulated by Corbett J. in Petten, in my view, the risk that the defendant has behaved inappropriately does not allow a plaintiff to fail in its duties to give notice and make full and fair disclosure. Moreover, I can deal effectively with the efforts by Jiangsu Sainty Sumex to delay the determination of the plaintiff’s claim as part of the motion to set aside the noting in default. The judgment that required notice and was obtained without disclosure of material facts cannot be allowed to stand in this case.
Setting Aside the Noting in Default
[33] Jiangsu Sainty Sumex argues that the plaintiff will not be prejudiced by setting aside the noting in default and allowing it to participate in the proceeding. The plaintiff has to go to trial on the merits in any event. While I agree that a trial is required on notice to all who are affected by the plaintiff’s claims, Rule 19.05 (4) of the Rules of Civil Procedure allows for a motion for default judgment to be deferred to the main trial. One possible outcome then is to set aside the judgment but decline to set aside the noting in default of Jiangsu Sainty Sumex. That would avoid the risk of inconsistent verdicts and reflect the failure of Jiangsu Sainty Sumex to participate properly in the proceedings.
[34] The plaintiff has been prejudiced by the tactics employed by Jiangsu Sainty Sumex. The plaintiff has incurred costs chasing Jiangsu Sainty Sumex abroad and suffered years of delay in getting to trial to have its rights adjudicated upon while Jiangsu Sainty Sumex continues to sell into Canada from behind a wall of tactical games. I am convinced however, that Jiangsu Sainty Sumex is here now and wishes to participate. Its delay, while long, can be made excusable by appropriate terms. Because of the need for a full trial in any event, I am not prepared to find that the efforts of Jiangsu Sainty Sumex to game the system have succeeded. Moreover, the answer to its tactics is not more inappropriate procedural tactics. As discussed by Molloy J. above, the goal of civil justice is to reach a fair result on the merits, to which the law now adds the modifiers “in an efficient, affordable, and proportional process.”
[35] It is clear to me that there are triable issues as to whether the plaintiff has the rights that it asserts so as to render the copying alleged against the defendants actionable. If the plaintiff has no intellectual property in its goods, the defendants may well be lawfully entitled to copy them. While I am very dubious, I am not prepared to assess without full evidence on the merits whether the plaintiff is correct in submitting that the decision of the Court of Appeal in Orkin Exterminating Co. Inc. v. Pestco Co., creates a provincial law right for a plaintiff to claim damages upon proof of deliberate copying alone in the absence of an underlying common law or statutory IP monopoly that prohibits copying.
[36] Production of documents and a knowledgeable witness for discovery by Jiangsu Sainty Sumex will assist the court and the parties in determining the truth. Allowing Jiangsu Sainty Sumex to participate on terms to ensure that the trial proceeds with alacrity and that Jiangsu Sainty Sumex is truly present will provide fairness to all parties and lead to the earliest, just, and final resolution of the parties’ disputes on their merits.
[37] Jiangsu Sainty Sumex is a business that is participating in the Ontario economy. To that extent it is subject to our laws and enforcement processes. It has now appeared before the court and attorned to the jurisdiction. It can no longer hide abroad and it cannot be allowed to defend only to retreat to avoid the outcome of the litigation in which it has now decided to participate. Therefore, the court only sets aside the noting in default of the defendant Jiangsu Sainty Sumex when and if it complies with the following terms under Rules 1.05, 19.03(1), and 19.08(3) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194:
a. On or before May 31, 2017, Jiangsu Sainty Sumex pays to the accountant of the court the sum of $1,976,153.10 to stand charged as security for the outcome of the litigation plus $500,000 to stand charged as security for the plaintiff’s costs if it receives an award of costs at trial. These sums are to be posted in cash or by an unconditional bond or letter of credit of unlimited duration drawn on a bank listed in schedule 1 to the Bank Act, SC 1991, c 46;
b. On or before June 16, 2017, Jiangsu Sainty Sumex delivers to the plaintiff’s counsel a sworn and complete affidavit of documents together with copies of all documents listed in Schedule “A” to that affidavit;
c. On a date that is before July 31, 2017, to be chosen cooperatively by counsel for the parties, Jiangsu Sainty Sumex produces a witness for examination for discovery in Toronto who has firsthand knowledge of its actions in contracting with Canadian Tire and in manufacturing the goods that are the subject of this action.
[38] While there is significant evidence and arguments to question the amount of damages asserted by the plaintiff, the amount adjudged represents the plaintiff’s outer goalpost in November, 2016. Its damages may continue to mount. It is appropriate for there to be security posted for the full range of possible outcomes. If the plaintiff does not obtain judgment for the full amount posted, then the rest will be returned to Jiangsu Sainty Sumex.
[39] The plaintiff acknowledges that its effort to set the matter down for trial has to be set aside to accommodate further discoveries. Accordingly, if the noting in default is set aside upon Jiangsu Sainty Sumex complying with the foregoing terms, the action is then removed from the trial list.
[40] Counsel are to schedule a case conference before me in the week of August 21 or 28, or before then if Jiangsu Sainty Sumex fails to comply with any of the listed terms on a timely basis, in order to schedule the next steps to get this action to trial. Counsel should agree on a date and then contact my Assistant to book the case conference.
Costs
[41] The plaintiff may file no more than five pages of submissions on costs, including costs thrown away to date, its costs outline, and any offers to settle on which it relies by May 12, 2017. The defendants may each file no more than five pages of submissions on costs, their costs outlines, and any offers to settle on which they rely by May 26, 2017. All materials will be filed in searchable pdf format as an attachment to an email to my Assistant. No case law or statutory material is to be delivered. References to case law and statutory material, if any, shall be by hyperlink to embedded in the submissions.
F.L. Myers, J.
Date: May 1, 2017
[^1]: Para. 93 of the plaintiff’s affidavit falls far short of the clear undertaking given by Mr. Seed at the hearing.