Court File and Parties

COURT FILE NO.: 3660/2011 DATE: 2017/06/12 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Nexus Solutions Inc., Plaintiff AND: Vladimir Krougly, Limesoft Inc., Sergiy Bateyshchykov, Daria Krougly, also described as Darya Bateyshchykova and Advanced Consulting and Technology Group Inc., Defendants

BEFORE: Hockin, J.

COUNSEL: W. Scott Gallagher, counsel, for the plaintiff Michel Castillo, counsel, for the defendants

HEARD: June 12, 2017

Endorsement

[1] The plaintiff Nexus is in the business of developing and selling software in the continuous emissions monitoring industry. The defendant Vladimir Krougly was once a director, stakeholder and employee of Nexus. Limesoft is Mr. Krougly’s company, a company incorporated after his departure from the plaintiff company Nexus.

[2] The defendant Sergiy Bateyshchykov (“Bays”) worked with Krougly at Limesoft. Nexus alleges that Krougly/Bays/Limesoft wrongfully have incorporated in its software source code from Nexus.

[3] The claim is for substantial damages and a permanent injunction. There is a counterclaim for substantial damages. The litigation is by the nature of its subject matter forensically complex.

[4] By order dated January 28, 2014, I directed that there was to be a reference under Rule 54.04. The referee by agreement was Mr. BT Granger. Mr Granger’s terms of engagement, so to speak, were spelled out in the order. The parties have worked away under his supervision, at time successfully, and other times, not. At the moment, the defendants are unhappy with the state of the litigation and the management of the reference by Mr. Granger.

[5] This is their motion to end the reference and, thereby, to return the action to the regular stream of actions in this Court. Reasons for this are given in Mr. Krougly’s affidavit.

[6] In my view, nothing can be done without the completion of Mr. Granger’s delivery of an interim or final report, as he may decide, and a mediation of the matter. See paras. 7 and 9 of my order.

[7] Also Rule 54.06 of the Rules of Civil Procedure, “the referee shall make a report”; and Rule 54.08(1) of the Rules of Civil Procedure. It strikes me that it falls to the referee to decide whether the mediation should follow or precede his report, and of course whether the report is an interim or final report. Therefore, it is ordered that the relief requested is adjourned pending the delivery of a report by Mr. Granger and the mediation of the dispute.

[8] Costs of this to me on the return of the motion if the moving party should decide to proceed.

Justice P.B. Hockin Date: June 12, 2017