Court File and Parties

COURT FILE NO.: CV-10-100438-00 DATE: 20170720 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

614128 Ontario Ltd. o/a Trisan Construction Plaintiff – and – Bernie Bianchi, Goretti Bianchi and Mark A. Epstein Defendants

Counsel: Krista J. McKenzie for the Plaintiff Jeffrey J. Simpson for Mark Epstein No one appearing for the Bianchis

HEARD: June 23, 2017

Ruling on Summary Judgment motion

Boswell J.

I. Introduction

[1] Trisan Construction is a contracting company that specializes in infrastructure works – excavations, sewers, roadways and the like. Twelve years ago they were sub-contracted by Bianchi Contracting (2004) Inc. (“BCI”) to install sidewalks at a building project in Bowmanville, Ontario. They didn’t get paid; at least not in full. They claim that the sum of $102,931.22 remains outstanding.

[2] Trisan retained a lawyer, Mark A. Epstein, to assist them in pursuing BCI for payment. He issued a claim against BCI, on Trisan’s behalf, on May 15, 2007. But BCI’s financial problems went well beyond their litigation with Trisan. Their bank, Royal Bank of Canada, obtained a receivership order against them in 2008. Trisan’s action was stayed and, to cut to the chase, any hope of recovery against BCI evaporated.

[3] Trisan was not happy. They turned their focus to Mr. Epstein. They sued him in negligence, asserting that he failed, amongst other things, to commence a claim against the Bianchis in their personal capacities, for breach of the trust provisions of the Construction Lien Act, R.S.O. 1990 c. C.30 (the “CLA”).

[4] Trisan moved for summary judgment against Mr. Epstein. On April 11, 2016, Charney J. granted their motion, in part. He found that Mr. Epstein was negligent in failing to advise Trisan of their ability to bring an action against the officers and directors of BCI for breach of trust. Charney J. was unable to fix damages in the absence of expert evidence regarding the likelihood of success of a breach of trust action. He invited Trisan to obtain such evidence and return on a further motion for summary judgment. They did.

[5] Two issues remain to be determined on this motion. They were framed by Charney J. in his ruling.

The Directions of Charney J.

[6] Justice Charney found that two issues required a trial:

(i) whether the solicitor’s negligence caused damage to Trisan; and, (ii) the quantification of any such damage.

[7] He gave the following directions, at para. 124 of his ruling:

If the plaintiff wants to proceed with the balance of this case it must file an expert affidavit in relation to the availability and likelihood of success of a Construction Lien Act s. 13 claim on the facts of this case within sixty days of this decision. The defendant must file a responding affidavit within 30 days thereafter. The affidavits will assume the facts as found in the chronology set out in this decision and the financial facts set out in the affidavit of David Flewelling dated October 15, 2008.

Based on these affidavits, either party may bring a motion for summary judgment. If a motion for summary judgment is brought by either party, the parties may cross-examine the opposing deponent before the motion for summary judgment is heard, and the affidavit and transcript of the cross-examination will be part of the record on the motion for summary judgment.

[8] Trisan retained an expert in accordance with the directions of Charney J. An affidavit was prepared and delivered to counsel for Mr. Epstein. No responding materials were filed. No cross-examinations were conducted. This second motion for summary judgment proceeds, for the most part, on the strength of the expert’s affidavit.

II. Summary Judgment

The Governing Principles

[9] Trisan’s motion is brought pursuant to Rule 20.01(1) of the Rules of Civil Procedure. That rule provides that once a defendant has delivered a statement of defence the plaintiff may move for summary judgment on all or part of the claim in the statement of claim.

[10] The Rules provide the court with the ability to resolve actions summarily, where it is in the interests of justice to do so. Pursuant to Rule 20.04(2)(a), the court is directed to grant summary judgment if it is satisfied that there is no genuine issue with respect to a claim that requires a trial to resolve.

[11] The rule has evolved over time. Its current iteration grants the court enhanced fact-finding powers. Specifically, Rule 20.04(2.1) provides the court with the discretionary power to weigh evidence, evaluate credibility and/or draw reasonable inferences from the evidence when assessing whether a genuine issue requiring a trial exists.

[12] The summary judgment process was recently examined by the Supreme Court in Hryniak v. Mauldin, 2014 SCC 7. The court recognized that the ability to grant summary judgment is an important tool; one that significantly enhances the court’s ability to provide timely and cost-effective justice in a litigation world often unable to provide those very features.

[13] Hryniak instructs that Rule 20.04(2) should be applied in a two-stage process. At the first stage, the motions judge must determine if there is a genuine issue requiring a trial based only on the evidence filed on the motion, without resort to the enhanced fact-finding powers described in Rule 20.04(2.1). No genuine issue requiring a trial will exist if the evidence permits the motions judge to fairly and justly adjudicate the dispute in a timely, affordable and proportionate manner. If no genuine issue requiring a trial exists, judgment should be rendered accordingly.

[14] On the other hand, should the motions judge conclude at the first stage that a genuine issue for trial exists, then stage two is triggered. At stage two, the motions judge is directed to consider whether the need for a trial may be avoided by resort to the enhanced fact-finding powers set out in Rule 20.04(2.1). The motions judge may utilize those powers, in his or her discretion, unless doing so would be contrary to the interests of justice.

[15] A significant body of case law developed under older iterations of Rule 20. Much of it remains good law. For instance, as Diamond J. recently noted in Penretail Management Ltd. v. 2380462 Ontario Inc. (o/a Bolton Health Centre), 2016 ONSC 600, at para 10:

…The motions judge must still take a "hard look" at the evidence to determine whether it raises a genuine issue requiring a trial, and as a result each party must still put its "best foot forward" and submit cogent and compelling evidence to support or oppose the relief sought. A moving party has both a legal and evidentiary onus to satisfy the Court that there is no genuine issue requiring a trial. It is the moving party's obligation to present a record that can enable the Court to avail itself of the enhanced powers under Rule 20.04 if the record warrants the exercise of such discretion.

The Evidentiary Record

[16] Trisan’s motion came before the court on a very limited record. A substantial amount of material was filed in relation to the first summary judgment motion, before Charney J. Trisan’s counsel confirmed, in answer to a question from the bench, that with one minor exception, she was not relying on any of the materials filed in connection with the earlier motion.

[17] In the result, this motion proceeded on an evidentiary record that consisted only of the following:

(a) The affidavit of Angelo Santorelli, sworn September 4, 2016; (b) The affidavit of Chad Cox, sworn September 19, 2016; (c) The affidavit of Geza R. Benfai, sworn September 21, 2016; (d) The transcript of the examination for discovery of Bernie Bianchi taken August 24, 2016; and, (e) A copy of a credit facilities agreement between RBC and BCI found in Volume II of Trisan’s motion record filed on its first summary judgment motion.

[18] I will briefly comment on the evidence filed, other than the credit facilities letter which is not relevant, for reasons I will set out below.

The Santorelli Affidavit

[19] Mr. Santorelli is the president of Trisan. His affidavit addresses the only explanation provided by Mr. Bianchi during his discovery as to why he did not pay Trisan in full. Mr. Bianchi said it was because Trisan had ordered concrete on BCI’s account with Lafarge Concrete for jobs other than Aspen Heights II, giving rise to a right of set-off.

[20] Mr. Santorelli denied that BCI was entitled to such a set-off because Trisan did not do what Mr. Bianchi alleged they did. He said Mr. Bianchi never spoke to him about any adjustments to the account by way of set-off.

The Cox Affidavit

[21] Mr. Cox is a law clerk in the offices of Trisan’s counsel. He provided some modest chronological information.

The Benfai Affidavit

[22] Mr. Benfai is a certified specialist in construction law. He was retained by Trisan to provide a report on the availability and likelihood of success of a trust claim against the officers and directors of BCI. Mr. Epstein does not take issue with Mr. Banfai’s qualification to give such evidence.

[23] Mr. Banfai opined, amongst other things, that:

(a) A claim for breach of trust was available to Trisan when Mr. Epstein was retained by them on February 1, 2007; (b) Bernie Bianchi was a director of BCI with effective control of the company. He assented to or acquiesced in conduct he knew or reasonably ought to have known amounted to breach of trust by BCI; (c) Had a breach of trust claim been brought against Mr. Bianchi personally at the material time, there was a substantial likelihood that he would have been able to satisfy a judgment for the full amount; and, (d) There was also a reasonable chance of recovery against RBC in a tracing action for the return of payments taken by RBC from BCI’s general account for interest on its operating line of credit, had Mr. Epstein advised Trisan of the option to issue a lawsuit against RBC.

The Bianchi Transcript

[24] Mr. Bianchi was examined for discovery on August 24, 2016. He was not examined in relation to the specific issues raised in this summary judgment motion. That said, some of his answers have probative value in relation to this motion. For instance, he said the following:

(a) BCI was operating about twelve projects simultaneously with the Aspen II project; (b) BCI had one bank account, an operating account, through which all of its income and expenses flowed; (c) BCI had a revolving operating line of credit with RBC. RBC would withdraw monthly interest payments from the account; (d) He didn’t know if he had sufficient personal assets as of May 15, 2007 to pay a judgment of $102,932.22. Recall that May 15, 2007 was when Mr. Epstein issued Trisan’s claim against BCI; (e) He owned a house in May 2007 worth, in his best guess, $400,000, subject to a mortgage of between $250,000 and $280,000. The house was owned jointly with his wife; (f) He had other debts in addition to his mortgage of about $80,000. He also had about $30,000 in investments; and, (g) He would have defended any breach of trust claim brought against him personally.

III. The Parties’ Positions

[25] Trisan takes the position that there is ample evidence in the record to support the conclusion that it would have recovered the full amount outstanding had a breach of trust claim been advanced against the directors and officers of BCI.

[26] Trisan’s counsel points to the following assets evident in the record:

(a) $120,000 to $150,000 in equity in Mr. Bianchi’s matrimonial home (which Mr. Bianchi had a joint interest in with his wife); (b) $30,000 in other investments identified by Mr. Bianchi; and, (c) A viable claim against RBC for a tracing of trust funds removed by RBC from the BCI operating account.

[27] Trisan’s counsel further argues that any difficulty in establishing the amount likely to be recovered should not be held against it, because it was Mr. Epstein’s negligence that put Trisan in this difficult position. She asserts that the court should award the full amount in damages against Mr. Epstein.

[28] For his part, Mr. Epstein concedes that a breach of trust claim had a substantial likelihood of success. He argues, however, that there is insufficient evidence in the record to establish – on a balance of probabilities – that Trisan would have recovered anything. His counsel points to the following concerns:

(a) There is a speculative nature to the evidence on the whole; (b) Mr. Bianchi was not examined in aid of execution as to his assets in 2007. He was examined for discovery in 2016, nine years after the fact, and asked to give a general indication of his financial affairs; (c) Trisan’s calculations fail to take into account any costs of recovery. Trust claims are notoriously difficult and expensive. Trisan would have incurred unrecoverable costs in pursuing the trust claim. Mr. Bianchi would have reduced his net worth in fighting it. Moreover, there would be costs associated with any attempt to realize on any judgment; (d) Trisan’s expert is in no better position than the court to assess the likelihood of recovery and as such any opinions he offered on that issue should be ignored because they don’t meet the requirement of necessity; and, (e) The court cannot take into account any possible recovery from RBC because RBC was never sued and there has been no finding that Mr. Epstein was negligent in not advising Trisan about a possible claim against RBC.

IV. Discussion

[29] Justice Charney’s ruling left two issues outstanding. I will consider them in turn.

(i) Has Trisan established that Mr. Epstein’s negligence caused it to suffer damages?

[30] Justice Charney concluded that Mr. Epstein was negligent. He had an obligation to advise Trisan of the option of pursuing a breach of trust claim under s. 13 of the Construction Lien Act. He failed to give that advice. Justice Charney did not make any finding about whether the solicitor’s negligence caused Trisan to suffer damage.

[31] Neither counsel directly addressed the causation issue in argument. Perhaps it is not a matter of significant contention. In any event, it is a straightforward matter that does not require a trial to resolve.

[32] The applicable test for causation is the “but for” test. It was recently discussed by the Supreme Court in Clements v. Clements, 2012 SCC 32, at para. 8, where Chief Justice McLachlin said:

The test for showing causation is the “but for” test. The plaintiff must show on a balance of probabilities that “but for” the defendant’s negligent act, the injury would not have occurred. Inherent in the phrase “but for” is the requirement that the defendant’s negligence was necessary to bring about the injury ― in other words that the injury would not have occurred without the defendant’s negligence. This is a factual inquiry. If the plaintiff does not establish this on a balance of probabilities, having regard to all the evidence, her action against the defendant fails.

[33] In this instance, Trisan’s loss is the inability to recover the outstanding balance owing in relation to the Aspen Heights II project from Mr. Bianchi personally. In the context of this case, Trisan must establish that but for Mr. Epstein’s negligence, it would have recovered some or all of its losses from Mr. Bianchi personally. This obligation requires proof, to the balance of probabilities standard, of two things: (1) that a breach of trust claim against Mr. Bianchi would have been successful; and (2) that at least some recovery would have resulted.

[34] Mr. Epstein concedes that a claim against Mr. Bianchi under s. 13 of the CLA would have been successful. That’s as far as his concession goes. As I noted, he takes the position that Trisan has not established that they would have recovered anything against Mr. Bianchi.

[35] I disagree.

[36] Although the evidence is modest, there are sufficient indicia present to satisfy me that at least some recovery would have been realized. I point to the following:

(a) Mr. Bianchi admitted, at discovery, that he had a half-interest in a home which he valued at $400,000. He estimated at least $120,000 in equity in the home in 2007; (b) Mr. Bianchi also admitted to another $30,000 in investments; and, (c) Mr. Bianchi also indicated that he had had the means to settle his personal guarantee with RBC. There is no indication in the evidence as to how much he paid RBC, but it is evident that he had the wherewithal to make it happen.

[37] At this stage I am not concerned with quantifying the loss; only with whether there was a loss that would not have occurred but for the solicitor’s negligence.

[38] I am satisfied that it is more likely than not that Trisan would have realized some recovery on a judgment for breach of trust against Mr. Bianchi. In the result, causation is established.

[39] I move on to the more difficult question of quantifying Trisan’s loss.

(ii) What, if any, damages has Trisan established?

[40] The evidence of Trisan’s expert satisfies me that Trisan would have been entitled to full recovery against Mr. Bianchi. I am not satisfied, on the record before me, that there should be any reduction in the award on the basis of a set-off for concrete purportedly obtained by Trisan on BCI’s credit account with Lafarge.

[41] I accordingly proceed on the basis that Trisan would have been entitled to recover the sum of $102,931.22, plus interest and costs, from Mr. Bianchi. The live question is how much of that theoretical judgment would Trisan likely have recovered?

[42] I note that Justice Charney found Mr. Epstein negligent for failing to advise Trisan of the option of suing the officers and directors of BCI for breach of trust. There is some indication in the file that Mrs. Bianchi was an officer of the company. The affidavit of Mr. Benfai does not, however, address a possible claim against Mrs. Bianchi. It is restricted to a claim against Mr. Bianchi. For that reason, I am proceeding on an examination of the likelihood of recovery against Mr. Bianchi alone.

[43] In reviewing the evidentiary record, I must be satisfied, of course, that there is no genuine issue in terms of the assessment of damages that requires a trial: Rule 20.04(2)(a). As instructed by Hryniak, as above, the damages issue will not require a trial if the evidence permits me to fairly and justly assess damages in a timely, affordable and proportionate manner. [1]

[44] Each side has an obligation to put its best foot forward. In the result, I am entitled to proceed on the basis that the evidence adduced in terms of damages, for the purposes of this motion, is fundamentally the same evidence that would be produced at a trial on that issue.

[45] In my view, there is sufficient evidence in the record for me to justly determine the damages issue. A trial of that issue is not required.

[46] The evidence submitted by Trisan, in terms of the ability of Mr. Bianchi to satisfy a judgment for $102,931.22 fell into three categories: (1) wage garnishment; (2) realization on assets; and (3) tracing trust funds into the hands of RBC.

[47] I intend to examine these three categories in turn. In doing so, I will remain mindful of the fact that in its assessment of damages, the court may take into account various future contingencies: Jarbeau v. McLean, 2017 ONCA 115.

[48] In Jarbeau, Pardu J.A. gave the following example, at para. 36:

…[I]f a plaintiff successfully recovered judgment against an at-fault party but there was no possibility of collection of that judgment, the plaintiff may recover nominal damages against a negligent solicitor who caused the loss of the opportunity to sue the at-fault party: see Melanson v. Cochrane, Sargeant, Nicholson & Paterson (1985), 63 N.B.R. (2d) 91 (Q.B.), aff’d (1986), , 68 N.B.R. (2d) 370 (C.A.); Islington Investments Ltd. v. Day, Ault & White, [1978] O.J. No. 1322 (H.C.). As noted by Sean Campbell, Stephen Grant and Linda Rothstein in Lawyers’ Professional Liability, 3d ed. (Toronto: LexisNexis, 2013), at p. 222:

In Page v. Solicitor, [1971] N.B.J. No. 65, 3 N.B.R. (2d) 773, 20 D.L.R. (3d) 532 (N.B.C.A.), aff’d [1972] S.C.J. 2017 ONCA 115 Page: 14 No. 24, [1972] S.C.R. vi, (sub nom. Pelletier v. Page), 29 D.L.R. (3d) 386n (S.C.C.), the Court held that in the absence of any evidence as to any other funds available to satisfy the hypothetical judgment against the original tortfeasor, the maximum loss proven was the sum for which the original tortfeasor had been insured.

[49] Mr. Epstein’s position is that there is an absence of evidence, or at least an absence of sufficient evidence, to support a conclusion that any recovery would have been achieved. At best, only nominal damages should be awarded in his submission.

[50] I agree that the evidence on damages is thin. But it is not entirely absent. I will examine the evidence on offer.

Wage Garnishment

[51] Mr. Bianchi’s evidence is that he had been receiving a salary of $90,000 per year from BCI. But BCI went into receivership in 2008. Even if Trisan had commenced a breach of trust claim in the spring of 2007, it strikes me as unlikely that Trisan would have been able to obtain a judgment on its claim within eighteen months. I accept Mr. Bianchi’s evidence that he would have defended the action. Even if judgment were obtained within that eighteen months, it is unlikelier still that any significant sums could have been recovered through a garnishment of Mr. Bianchi’s wages from BCI prior to the receivership. This is particularly so when one takes into account that Mr. Bianchi had effective control of the company and could easily manipulate what he took out as wages.

Realization on Assets

[52] Trisan has established, on Mr. Bianchi’s own evidence, that he had roughly $90,000 to $105,000 in assets in May 2007.

[53] I recognize that all sorts of arguments can be made about whether Mr. Bianchi under-reported his assets when asked about them on discovery. After all, he had owned and operated a substantial construction company for years. The Aspen Heights II project was a million dollar job and it was only one of twelve projects BCI had ongoing at the same time. When BCI failed, Mr. Bianchi was somehow able to settle his indebtedness under a personal guarantee to RBC.

[54] There are reasons to be suspicious about the true extent of Mr. Bianchi’s assets. That said, Mr. Epstein’s counsel correctly asserts that the court must not speculate about what assets Mr. Bianchi may have had. The damage assessment must be based on established facts about Mr. Bianchi’s ability to pay.

[55] The evidence regarding his assets reflected two in particular: home equity and investments. Mr. Bianchi’s evidence on discovery was that the equity in the home was $120,000 to $150,000. He was a joint owner, so notionally only one-half of that equity would be his, or $60,000 to $75,000. Since there is no way to know whether the figure was closer to the lower or higher end of that range, I will split the difference at $67,500.

[56] Mr. Bianchi also said he had investments of $30,000. Taken at face value and added to his home equity, his assets totalled $97,500 in value. I am not prepared to simply award that sum to Trisan, however. Doing so would ignore the realities of debt collection.

[57] There are many contingencies to take into consideration. A plaintiff should be compensated for the full amount of its loss, but no more. The goal of compensatory damages is, after all, to put the plaintiff in the position, so far as money can do it, that it would have been in had the negligence not occurred: see, for instance, Ratych v. Bloomer, [1990] 1 S.C.R. 94, at paras. 44-45.

[58] The court cannot proceed as though Trisan would have enjoyed a free ride to a full realization on Mr. Bianchi’s assets. Had Mr. Epstein advised Trisan of the ability to pursue Mr. Bianchi personally, and assuming Trisan launched a breach of trust action, they would have experienced the following:

(a) The costs of obtaining judgment against Mr. Bianchi personally. Mr. Bianchi indicated at discovery that he would have defended such an action. It is impossible to do anything but guess at how vigorous that defence would have been and how much it would have cost Trisan to obtain judgment. At the same time, one can only speculate about the depletion of Mr. Bianchi’s assets to fund the fight against Trisan; (b) Assuming judgment was obtained, there would inevitably be costs of enforcement that Trisan would have incurred; (c) It is not clear what form Mr. Bianchi’s “investments” were in. If they were in a registered retirement fund, for instance, they would have been very difficult to get at by an unsecured creditor like Trisan; and, (d) Mr. Bianchi had a joint interest in a house with his wife. Trisan, as an unsecured creditor, would have to initiate a sheriff’s sale in order to realize upon Mr. Bianchi’s interest in the property. That process takes time and money. Moreover, the pool of parties interested in purchasing a half interest in a property with Mrs. Bianchi would be limited.

[59] The court has no evidence, of course, about what precise costs would be incurred.

[60] Trisan’s counsel essentially argued that the court should apply the maxim omnia praesumuntur contra spoliatorem (all is presumed against a despoiler or wrongdoer) and award damages in the sum of $100,000.

[61] But as Professor Waddams points out in The Law of Damages (Toronto, Ont.: Canada Law Book, 2009) at ¶13.250, this maxim is “too wide as a general rule…for it would amount to reversing the onus of proof of damage in all cases”.

[62] Professor Waddams highlighted certain cases where the maxim may be invoked to a plaintiff’s benefit. Trisan’s counsel did not fully develop this argument, nor persuade me that the case at bar is one where the maxim ought fairly to be invoked.

[63] It is not uncommon for the amount of a plaintiff’s loss to depend on uncertainties. It has often been said that the difficulty of determining damages does not excuse a tortfeasor from paying damages: see, for instance, Wilson v. Rowswell, [1970] S.C.R. 865.

[64] The court must do its best to determine the plaintiff’s damages on imperfect information, accepting that precision is not always possible in the assessment of damages.

[65] In my view, the best that can be done in this case is to apply a discounting factor reflective of the impact of the contingencies I have identified.

[66] The contingencies are significant. The costs of obtaining and enforcing a judgment against Mr. Bianchi would quite likely have been substantial. Trisan would have done well to realize fifty cents on the dollar against Mr. Bianchi’s stated assets. Recognizing the imprecise nature of the exercise, I would round the discounted sum off and fix the likely recovery at $50,000, or just a little more than one-half of Mr. Bianchi’s identified assets.

Tracing Trust Funds to RBC

[67] Mr. Banfai opined that “there is sufficient evidence to establish a reasonable likelihood of success in a tracing action against RBC”.

[68] I put no weight on this part of the opinion. I say this not because I think Mr. Banfai is fundamentally wrong. I say it because this opinion is not relevant to the issues before the court.

[69] Justice Charney held that Mr. Epstein was negligent in failing to advise Trisan that it could bring a breach of trust action against the officers and directors of BCI. He did not hold that Mr. Epstein was negligent in failing to advise Trisan to bring a tracing action against RBC.

[70] I have not been asked to make a finding that Mr. Epstein’s negligence extended to a failure to advise about a possible claim against RBC.

[71] One cannot conflate the claim against Mr. Bianchi with a claim against RBC. They are different claims involving different parties. A judgment against Mr. Bianchi would certainly not entitle Trisan to enforcement against RBC.

[72] Even if Justice Charney’s ruling had included a finding of negligence against Mr. Epstein for failing to advise about a possible claim against RBC, and even if I accepted Mr. Banfai’s opinion that a tracing action would likely be successful, I have virtually no evidence that would enable me to determine what likely recovery would be achieved against RBC, nor what the costs of such an action would be.

[73] Mr. Bianchi said on discovery that BCI had some twelve projects on the go at any given point in time. All of the income and expenses relating to those projects were funnelled through the same operating account. The tracing exercise would undoubtedly be complex and expensive.

[74] I am not, in the circumstances, prepared to add anything to the damage award on account of a possible tracing claim against RBC.

Conclusion

[75] In the result, for the reasons stated, I find that Mr. Epstein’s negligence caused damage to Trisan and I fix the damages at $50,000.

[76] There remains an issue of costs. Justice Charney reserved the costs of the first summary judgment motion to the judge hearing this second summary judgment motion. Counsel are accordingly invited to make written costs submissions for both summary judgment motions on a 21 day turnaround. Trisan’s submissions are to be served and filed by August 10, 2017; Mr. Epstein’s by August 31, 2017. Submissions are not to exceed 4 pages, not including any Costs Outline. I will permit Trisan a brief right of reply, not to exceed 2 pages, to be served and filed by September 8, 2017. All submissions are to be delivered electronically to my assistant, Diane Massey at diane.massey@ontario.ca.

Boswell J.

Released: July 20, 2017

[1] I note that Rule 20.04(3) permits the court to order a reference when the only issue in dispute is the amount to which the moving party is entitled. Neither party asked that a reference be ordered in this case. In my view, no advantage would be achieved by ordering a reference.