Court File and Parties

COURT FILE NO.: 08-CV-363144 Motion heard: January 24, 2017

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: HUBERGROUP CANADA LIMITED, Plaintiff AND 2049669 ONTARIO INC., PROGRAFIX INC., NARENDRA PATEL, also known as ANDY PATEL, NAJIB JAMAL, SULEKHA PATEL and NIKITA PATEL, Defendants

BEFORE: Master Lou Ann M. Pope

COUNSEL: Agent for counsel for plaintiff: Michael Kealy Counsel for defendants, Sulekha Patel and Nikita Patel: Cameron Fiske and David Milosevic, Milosevic Fiske LLP

Reasons for Endorsement

[1] The plaintiff seeks a status hearing pursuant to rule 48.14(5) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 (“Rules”). The hearing of the motion was convened as a status hearing pursuant to rule 48.14(6).

[2] The plaintiff seeks an order establishing a timetable for the completion of the remaining steps in this action and an order extending the time to set the action down for trial.

[3] The only defendants who oppose this motion are Sulekha Patel (“Sulekha”) and Nikita Patel (“Nikita”). Of the remaining defendants, Narendra Patel also known as Andy Patel (“Andy”), has been noted in default, the action against 2049669 Ontario Inc. (“204 Inc.”), Prografix Inc. (“Prografix”), and Najib Jamal has been settled.

Background

[4] In this action it is alleged that Andy fraudulently conveyed his half interest in a condominium residence (“Palace property”) owned by he and his wife, Sulekha, to their daughter, Nikita, without valuable consideration and for the purposes of intending to avoid payment to creditors including the plaintiff.

[5] Andy and Sulekha are husband and wife and the parents of Nikita.

[6] The plaintiff is a judgment creditor of Andy which judgment was obtained on February 20, 2007 in the amount of $485,178.20 plus post-judgment interest (“HST action”). This judgment remains totally unsatisfied.

[7] The judgment arose out of a scheme allegedly perpetrated by Andy to purchase ink product stolen from the plaintiff. The plaintiff is the Canadian operations of a worldwide group of companies that is one of the largest manufacturers and distributors of ink product having its head office in Germany. Andy was a principal, director and officer of the corporate defendants in the within action and their predecessors which was and remains known as the Prodigy Graphics, a large trade printer located in the Greater Toronto Area. Prodigy Graphics was a customer of the plaintiff.

[8] During the period of the HST action, unbeknownst to the plaintiff, Andy transferred his half interest in the Palace property to Nikita for $2.00 by Transfer registered on September 2, 2004.

[9] It is alleged in the statement of defence of Sulekha and Nikita in the within action that the Palace property was transferred to Nikita to satisfy obligations of spousal and child support as a result of an alleged separation.

[10] The plaintiff’s evidence is that there is no separation agreement, no lawyers who represented Sulekha and Andy, or a court proceeding evidencing the separation between them.

[11] The plaintiff registered a certificate of pending litigation (“CPL”) against title to the Palace property. Subsequently, the plaintiff agreed to accommodate Sulekha and Nikita in the sale of the Palace property and purchase of another condominium residence by removing the CPL from title to the Palace property and registering it on the new property. The CPL remains registered on title to the new property.

This Action

[12] This action has not proceeded beyond delivery of affidavits of documents despite its commencement in September 2008. The steps in this action are set out below:

• September 24, 2008 action was commenced by statement of claim
• September 29, 2008 ex parte orders of Pitt J. for substitutional service of the statement of claim on several defendants and CPLs
• November 10, 2008 joint statement of defence delivered by Sulekha and Nikita (“Patel defendants”)
• May 27, 2009 hearing of motions brought by:
  • (a) the plaintiff for the continuation of an interim interlocutory Mareva injunction;
  • (b) the defendants, 2049669 Ontario Inc., Prografix Inc. and Najib Jamal (“Jamal defendants”), to set aside the Mareva injunction order and the CPL and to strike the statement of claim;
• July 9, 2009 Endorsement of Strathy J. striking the initial statement of claim with leave to amend and setting aside the Mareva injunction
• December 17, 2009 amended statement of claim delivered
• January to April 2010 defendants’ second motion to strike the amended statement of claim on the ground of deficient pleading; Pitt J. struck the amended statement of claim with leave to amend
• June 9, 2010 second amended statement of claim delivered
• January 6, 2011 hearing of defendants third rule 21 motion to strike the second amended statement of claim; the defendants’ motion was dismissed
• July 14, 2011 statement of defence of the Jamal defendants delivered
• November 26, 2012 plaintiff’s affidavit of documents was served
• May 30, 2013 hearing of plaintiff’s motion to strike statements of defences for failure to serve affidavits of documents; Master Brott ordered deadlines for Jamal defendants and Patel defendants to deliver affidavits of documents by August 31, 2013
• August 9, 2013 Order removing counsel for Patel defendants as counsel of record
• October 29, 2013 plaintiff’s motion, in writing, for an order striking the statement of defence of the Patel defendants
• November 18, 2013 Patel defendants filed Notice of Intention to Act in Person
• November 21, 2013 Patel defendants served their affidavit of documents;
• November 27, 2013 Patel defendants filed Notice of Appointment of Solicitor to their current counsel
• April 2016 plaintiff’s lawyer advised the plaintiff that action would be dismissed on January 1, 2017 if steps were not taken to preserve the action
• May 26, 2016 plaintiff obtained Order to Continue action in the name of Hubergroup Canada Limited
• September 14, 2016 letter to defence counsel advising of plaintiff’s intention to proceed with motion for summary judgment and provided available dates
• October 20, 2016 plaintiff’s lawyer proposed a timetable for the summary judgment motion; the Patel defendants refuse to agree to a timetable;
• October 21, 2016 attendance at civil practice court to schedule plaintiff’s summary judgment motion opposed by the Patel defendants; adjourned until after status hearing scheduled for November 18, 2016;
• November 1, 2016 plaintiff served its motion record herein on the Patel defendants;
• November 12, 2016 cross-examination of Nikita on her affidavit filed in opposition to this motion;
• November 15, 2016 plaintiff’s motion for a status hearing adjourned by Master Haberman to January 24, 2017
• January 24, 2017 hearing of this motion.

Positions of the Parties

Plaintiff’s Position

[13] The plaintiff submits that the only time period where no active steps were taken in this action is for a period of 18 months between November 21, 2013 and September 14, 2016. Notably, the plaintiff’s calculation of 18 months is incorrect as this period of delay amounts to approximately 34 months or almost three years’ delay.

[14] The plaintiff filed the affidavit of Mark Wilson, Chief Operating Officer of the plaintiff, on this motion. Mr. Wilson has been the Chief Operating Officer since June 2014. Mr. Wilson’s evidence is that several events occurred between 2010 and 2015 which caused disruption in the plaintiff’s activities. He explains that in July 2010, the president, Winfred Gleue, retired. Mr. Gleue operated the business in a hands-on manner and after his retirement, he remained an active advisor to the plaintiff until his death in January 2011. Mr. Wilson goes on to state that Mr. Gleue was the only person on behalf of the plaintiff who gave instructions and was actively involved in both the HST action and this action.

[15] A few years prior to Mr. Gleue’s retirement in 2010, the plaintiff’s head office for all North American operations and its USA related companies moved several times. In addition, the company purchased a business with operations in Chicago, Illinois. At that time, the head offices of Canada and the USA were effectively divided with Mr. Gleue remaining in control of Canada only. Mr. Wilson states that this change caused disruption in the Canadian operations. Further, not only were there corporate structural changes, there were also changes in personnel. Mr. Wilson states that this instability lasted until 2015. As such, he states that during these unstable times this action was not a high priority.

[16] After Mr. Gleue’s retirement in July 2010, the plaintiff and its Canadian operations became a subsidiary of the USA Company which is the present status. This change led to a change of name of the plaintiff from Hostmann-Steinberg Limited to Hubergroup Canada Limited, its present status. Therefore, the plaintiff obtained an Order To Continue in this action on May 26, 2016.

[17] Mr. Wilson goes on to state that as a result of the economic difficulties and the changes in status to a USA subsidiary, many other changes occurred which disrupted its operations between 2010 and 2015, including:

• (a) downsizing of its workforce from approximately 145 employees to 65 employees;
• (b) stoppage of manufacturing operations for the most part in Canada such that the plaintiff continues to be an importer and distributor;
• (c) change of location of head office which included the sale of the head office, plant and warehouse in Brampton and move to a much smaller rental space;
• (d) dismantling of and shipment of equipment production lines to other countries where the plaintiff’s related companies operate;
• (e) four changes in management personnel in the USA and Germany to whom the plaintiff’s management reported;
• (f) between July 2010 when Mr. Gleue retired and when Mr. Wilson became Chief Operating Officer in June 2014, the plaintiff operated with an interim management structure.

[18] The plaintiff submits that the Patel defendants contributed to an approximate one-year delay in this action due to delay in serving their affidavits of documents. The plaintiff served its affidavit of documents on November 26, 2012; however, the Patel defendants did not serve their affidavits of documents until November 21, 2013, which required two motions brought by the plaintiff to compel them to do so. In addition, despite an order requiring them to deliver their affidavit of documents by August 30, 2013, they did not do so until November 21, 2013.

[19] The plaintiff submits further that there will be no prejudice in permitting this action to continue. The first ground of prejudice raised by Nikita is based on the CPL being registered against title to her property, although she admitted on cross-examination that she does not reside at the subject property. She also admitted that if the property were sold, all proceeds would likely go to her mother, Sulekha. The plaintiff submits that by this admission, Nikita tacitly admitted that she does not own the property and has no beneficial interest in it other than being a registered half title holder.

[20] The second ground of prejudice raised by Nikita is that she has experienced anxiety and depression since this action was commenced in 2008. The plaintiff submits that Nikita admitted on cross-examination that she has never been treated for anxiety or depression and there are no health records to support her alleged condition. The plaintiff submits further that this claim for prejudice is devoid of merit given that Nikita is a licenced medical doctor and would have sought medical assistance if there was any basis for the allegations.

[21] The plaintiff submits the following:

• (a) the plaintiff has explained the reasons for delay;
• (b) the period of delay is shorter than any of the cases relied on by the Patel defendants;
• (c) the Patel defendants have contributed to the delay by delaying delivery of their affidavits of documents, and breaching a court order;
• (d) there is no prejudice to Sulekha and Nikita;
• (e) Sulekha and Nikita do not come to court with clean hands having breached a court order causing part of the delay;
• (f) the plaintiff is seeking an indulgence for the first time.

Position of Patel Defendants

[22] The Patel defendants filed affidavits of both Nikita and Sulekha. They submit that the plaintiff caused early delay in this action. Firstly, they submit that due to the plaintiff’s deficient pleading, the defendants brought three Rule 21 motions to strike the statement of claim. The defendants were successful on two of those three motions.

[23] Further, the Patel defendants submit the plaintiff caused further delay because its ex parte Mareva injunction was set aside which required the defendants to bring a motion.

[24] The Patel defendants submit that the plaintiff took no steps to advance this action between January 2011 and May 2013 when the plaintiff brought a motion to compel the defendants to deliver affidavits of documents. The Jamal defendants filed a statement of defence in July 2011.

[25] The Patel defendants submit further that from 2014 to September 2016 the plaintiff took no steps to advance this action. On September 25, 2016, plaintiff’s counsel advised by letter that it was intending to bring a summary judgment motion and a motion for a status hearing. Prior to that, neither discoveries nor mediation took place.

[26] Nikita’s evidence is that she has experienced “significant prejudice by the leisurely pace” of this action. She says that the accusations of fraud and conspiracy against her are serious such that she has suffered from anxiety and depression. She states further that she recently married and wants to start a family but cannot do so because of the “endless threat of this litigation” which makes it impossible for her and her husband to prepare for the future. She states further that she cannot sell or encumber the subject property due to the registration of the CPL.

[27] Sulekha’s evidence is that part of the reason for she and Nikita’s delay, as alleged by the plaintiff, is that their lawyer got off the record on August 9, 2013 and did not serve her with the Order until after it was issued on November 15, 2013. She states that she was unaware that Master Brott had ordered them to produce affidavits of documents by August 31, 2013.

[28] Sulekha states that she has been prejudiced by the fact that this action has been active for eight years and she has “suffered from eight years of uncertainty about the future”. It is notable that her affidavit filed in opposition to this motion was sworn by her on November 8, 2016 in India. She states further that the CPL continues to be in place.

Law

[29] Rule 48.14(7) provides that at a status hearing the plaintiff has the onus to show cause why the action should not be dismissed for delay. In addition, that rule sets out the court’s discretion at a status hearing, as follows:

48.14(7) At a status hearing, the plaintiff shall show cause why the action should not be dismissed for delay, and the court may,

• (a) dismiss the action for delay; or
• (b) if the court is satisfied that the action should proceed,
  • (i) set deadlines for the completion of the remaining steps necessary to have the action set down for trial or restored to a trial list, as the case may be, and order that it be set down for trial or restored to a trial list within a specified time,
  • (ii) adjourn the status hearing on such terms as are just,
  • (iii) if Rule 77 may apply to the action, assign the action for case management under that Rule, subject to the direction of the regional senior judge, or
  • (iv) make such other order as is just.

[30] The test that a plaintiff must meet at a contested status hearing was confirmed by the Ontario Court of Appeal in Khan v. Sun Life Assurance of Canada, 2011 ONCA 650, [2011] O.J. No. 4590, affirming 2011 ONSC 455, [2011] O.J. No. 510 (SCJ). The test places the onus on the plaintiff to satisfy both aspects of a two-part test; that is, to demonstrate that there is an acceptable explanation for the litigation delay and if the action was allowed to proceed, the defendant would suffer no non-compensable prejudice.

[31] There is no onus on the defendant to demonstrate prejudice; however, should the defendant show actual prejudice, the court will consider this as a relevant factor. (Riggitano v. Standard Life Assurance Co. [2009] O.J. NO. 1977 (S.C.J.) at para. 34, affirmed 2010 ONCA 70 (C.A.))

[32] The following is a list of principles that have emerged from judicial consideration at contested status hearings:

• The explanation for the delay must be such as to justify continuance of the action or, put another way, to satisfy the court that the action should be permitted to proceed. [1] This “requires, among other things, a determination regarding the plaintiff’s intention to prosecute the action throughout the period since the commencement of the action.” [2]
• Legal proceedings are not to be undertaken lightly. Plaintiffs have a responsibility to prosecute their actions diligently and in accordance with the rules of civil procedure. [3]
• The court at a status hearing must be fundamentally concerned with the progression of cases and the impact this has on the appearance of justice. There is an important value of having disputes resolved in a timely fashion. [4] There is a dominant theme in the civil justice system to discourage delay and encourage judicial involvement to ensure timely justice. [5]
• If the court permits the action to proceed there should be a clearly articulated plan by the plaintiff for moving the case forward and this is a factor for the court to consider in deciding whether to permit the action to proceed. [6]
• There is no onus on the defendant to demonstrate prejudice, but if he does adduce evidence of actual prejudice that will be a factor for the court to consider. [7] The reference to prejudice means non-compensable prejudice. [8]

[33] In Kara v. Arnold, 2014 ONCA 871, the Court of Appeal affirmed a ruling by the motions judge at a status hearing dismissing the action where there had been an eleven-year delay between the delivery of the defendant’s statement of defence and the date of the status hearing. The Court of Appeal stated that the court should not take a rigid or purely formalistic and mechanical approach to timelines in the rules. The goal is to not penalize parties for technical non-compliance and frustrate the fundamental goal of resolving disputes on their merits. However, the court went on to state that rule 48.14 was designed “to have some teeth” (para. 10) and relied on the view of Sharpe J.A. in Marché d’Alimentation Denis Thériault Ltée v. Giant Tiger Stores Ltd., 2007 ONCA 695, 87 O.R. (3d) 660, at para. 23:

Rule 48.14 is one of many rules of civil procedure designed to promote the timely resolution of disputes, to discourage delay in civil litigation and to give the courts a significant role in reducing delays. Before the promulgation of rule 48.14, parties had total control over when cases were placed on the trial list. Rule 48.14 “establishes a procedure which gives the court a degree of control over the speed at which litigation proceeds to a conclusion . . . . In essence the rule provides for a very limited form of case management.” Garry D. Watson & Craig Perkins, Holmested and Watson: Ontario Civil Procedure. vol. 4 supplement (Toronto: Carswell, 1984) [at] 48-15. The case management regime, for which rule 48.14 was a precursor, was introduced in part to reduce “unnecessary cost and delay in civil litigation”: rule 77.02.

[34] The Court of Appeal in Kara referred to another decision written by Sharpe J.A. five years after Marché in 1196158 Ontario Inc. v. 6274013 Canada Ltd., 2012 ONCA 544, 112 O.R. (3d) 67, at paras. 39, 41 and 42, where the court reinforced the importance of the rule for the purpose of promoting timely justice.

[35] Blair J., for the majority in Kara, opined at paragraph 9 that dismissals for delay involve a careful balance between two competing values, when he stated as follows:

On the one hand, the Rules of Civil Procedure need to be enforced in a way that ensures timely and efficient justice, in the interests of plaintiffs, defendants, and society in general. On the other hand, society in general, and the parties have an interest in the resolution of disputes on their merits and in the availability of flexibility to avoid potentially draconian results, by providing the opportunity for parties to offer a reasonable explanation for delay when it takes them beyond established timelines.

[36] The Patel defendants point out correctly that the Kara decision was made under former rule 48.14. Rule 48.14 has been amended with the amendments being effective January 1, 2015. The main change in rule 48.14 is that an action will no longer be dismissed for delay two years after the filing of the first defence (including notice of intent to defend). The new rule is that actions will now be dismissed for delay unless they have been set down for trial within five years of the date the action was commenced (including notice of action).

[37] Notwithstanding the amendment to rule 48.14, the parties accept that the principles governing when an action will be dismissed for delay have not changed. Notably, the provisions of rule 48.14(7) were not amended from the former rule.

Analysis and Conclusion

Has the plaintiff provided an adequate explanation for the litigation delay

[38] The plaintiff obtained a judgment against Andy Patel in 2007. Sometime thereafter, the plaintiff discovered that Andy transferred title to his property to his wife and daughter, Sulekha and Nikita. This fact precipitated the commencement of this action.

[39] This action was commenced on September 24, 2008. The action was delayed some two years and four months until January 2011 after several motions were heard including three motions brought by the defendants to strike the statement of claim and amended statement of claim.

[40] The Jamal defendants did not serve their statement of defence until July 2011 followed by service of the plaintiff’s affidavit of documents some 16 months later in November 2012.

[41] Thereafter, the action was delayed for a year between November 2012 and November 2013 when the defendants did not deliver their affidavits of documents. This required the plaintiff to bring two motions to compel them to do so. Despite the plaintiff’s requests for affidavits of documents and an order compelling them to do so, the Patel defendants delayed even further by failing to comply with the court order by approximately three months. The Patel defendants explain this delay on the fact that their counsel obtained an order removing them as their counsel of record.

[42] After the Patel defendants delivered their affidavits of documents, no steps were taken and there was no communication between counsel for some 34 months or almost three years until plaintiff’s counsel advised counsel for the Patel defendants that the plaintiff intended to bring this motion.

[43] As of the September 14, 2016 when the plaintiff put the Patel defendants on notice that they intended to bring this motion, this action had been ongoing for almost exactly eight years.

[44] For the following reasons, it is my view, that the plaintiff has provided an adequate explanation for the delay in this action.

[45] Some of the early delay in the action can be attributed to both the plaintiff and the defendants regarding the issues over the plaintiff’s pleading. The defendants were successful on two motions in which the court struck the plaintiff’s pleading with leave to amend, and the plaintiff was successful on the third of the defendants’ motions.

[46] Admittedly, the Patel defendants are responsible for approximately a one-year delay.

[47] While the courts have held that a plaintiff is primarily responsible to advance an action within a reasonable timeframe, it is clear that the plaintiff herein failed to do so with a small part of the blame being placed on the Patel defendants.

[48] Although there was no communication whatsoever between counsel for almost three years, it is notable that during this time no requests whatsoever were made by the Patel defendants to schedule examinations for discovery or mediation. This, in my view, nullifies the position of the Patel defendants that they have been prejudiced by the delay in this action. While it is primarily a plaintiff’s responsibility to advance an action, it defies reason that a defendant can “sit in the bush” and do nothing for almost three years, then claim that he or she has been prejudiced by the delay.

[49] The plaintiff’s principal explanation for the delay in this action is due to the company’s financial and organizational difficulties throughout the duration of this action. These changes required the plaintiff to obtain an Order to Continue under the plaintiff’s new name on May 26, 2016. Thereafter, in September, 2016, the plaintiff sought to take steps to actively advance this action by proposing a timetable which the Patel defendants opposed. This led to this motion for a status hearing.

[50] It is my view that the plaintiff’s evidence adequately outlines the difficulties faced by this company over the relevant period of time including details of names and dates. This evidence is uncontroverted as Mr. Wilson was not cross-examined on his evidence.

[51] For the above reasons, I find that the plaintiff has provided an adequate explanation for the litigation delay.

Have the Patel defendants suffered non-compensable prejudice

[52] I am not satisfied on the evidence that either Sulekha or Nikita have suffered non-compensable prejudice.

[53] Delay, in and of itself, does not amount to prejudice. Something more is required. Further, as stated above, the fact that the Patel defendants did nothing for the almost three years of delay that they now complain contributed to their prejudice, flies in the face of reason.

[54] Nikita stated that if a person searched the records of the court, they would find that she was alleged to have committed fraud. Again, this alone is not enough to be considered prejudice because, firstly, there is no evidence that anyone has searched the court records, and secondly, even if someone had done so, there is no evidence as to how it has prejudiced her given that it is an allegation and not a judgment.

[55] Further, Nikita’s evidence that she has suffered anxiety and depression as a result of this action fails to amount to prejudice because, firstly, she has not sought or obtained medical treatment for the alleged anxiety and depression and, secondly, if that were the case, it is reasonable to expect that she would have attempted to take steps to advance this action.

[56] Furthermore, I am not satisfied that the Patel defendants have been prejudiced because the CPL remains registered on title to their property. They have not demonstrated how this has prejudiced them. In fact, the plaintiff accommodated them when they wanted to sell the original property upon which the CPL was registered in order to purchase the new condominium by agreeing to remove the CPL and register it on title to the new property. Moreover, there is no evidence that the Patel defendants have been unable to sell the property because the CPL is registered on title.

[57] Lastly, Nikita states that she has been prejudiced by the delay in this action because she cannot plan for the future given her recent marriage and desire to have a family. In my view, Nikita has failed to demonstrate how the delay in this action is preventing her from planning for the future.

[58] For the above reasons, I am not satisfied on the evidence that the Patel defendants will suffer any non-compensable prejudice should this action be permitted to proceed, nor have the Patel defendants demonstrated any actual prejudice.

[59] Considering all of the facts in this action and the evidentiary record, and for the above reasons, I am satisfied that the plaintiff has met its onus of showing cause why this action should not be dismissed for delay.

[60] In September 2016 when plaintiff’s counsel contacted defence counsel, the plaintiff proposed to bring a motion for summary judgment and a timetable for delivery of material for the motion which was opposed by the Patel defendants.

[61] Given my decision to permit this action to proceed, counsel shall attend a telephone case conference with me for the purpose of ordering a timetable for completion of all the steps in this action. This timetable shall include tight timelines for delivery of material for the summary judgment motion if the plaintiff still intends to bring that motion, as well as tight timelines to complete discoveries, undertakings, discovery motions, mediation and a date to set the action down for trial should the plaintiff be unsuccessful on the summary judgment motion. Plaintiff’s counsel shall contact my ATC, Ms. Christine Meditskos, in writing, forthwith upon release of this decision to request a date for the case conference including counsels’ availability. It is expected that counsel will engage in discussions and make concerted efforts to agree to a timetable for the above-noted steps prior to the case conference and file same with my Assistant Trial Coordinator in advance of the case conference.

Costs

[62] Although the plaintiff was successful in obtaining the relief sought on this motion, the plaintiff is being given a significant indulgence by being permitted to continue this action. For that reason, it is my view that the plaintiff is not entitled to its costs of this motion. Similarly, in my view, it was reasonable for the Patel defendants to oppose this motion; however, given that they contributed in part to the delay and took no steps to attempt to advance this action during almost three years, they are not entitled to the costs of this motion.

[63] For those reasons, each party shall bear its own costs of this motion.

June 20, 2017 Master Lou Ann M. Pope

[1] Savundranayagam v. Savundranayagam, 2009 ONCA 777 at para. 13; Riggitano v. Standard Life Assurance Co. at para 34, Riggitano v. Standard Life Assurance Co., 2010 ONCA 70 at para. 1. [2] Oberding v. Oberding at para. 19 [3] Sepehr Industrial Mineral exports Co. v. Alternative Marketing Bridge Enterprises Inc. (2007), 86 O.R. (3d) 550 (S.C.J.) at para. 21. To the same effect see Khan v. Sun Life Assurance of Canada, 2011 ONSC 455 at para. 13 [4] Canadian Champion Auto Services Ltd. v. Petro-Canada, 2011 ONSC 6794 (SCJ), quoting Marché d’Alimentation Denis Thériault Ltée v. Giant Tiger Stores Ltd., 2007 ONCA 695 (C.A.) [5] Donskoy v. Toronto Transit Commission, [2008] O.J. No. 3634 (Div. Ct.) at para. 11 [6] Donskoy v. Toronto Transit Commission at paras. 13, 14 and 16 [7] Riggitano v. Standard Life Assurance Co. at para. 34; Khan v. Sun Life Assurance of Canada, 2011 ONSC 455 at para. 14-15; Samborski v. Samborski at para. 4, [8] Oberding v. Oberding at para. 15; Samborski v. Samborski at para. 4.