CITATION: Mary-Am Hospitality Corp. v. 2493089 Ontario Limited, 2017 ONSC 7300
COURT FILE NO.: CV-17-573127
MOTION HEARD: 20171205
REASONS RELEASED: 20171211
SUPERIOR COURT OF JUSTICE – ONTARIO
BETWEEN:
MARY-AM HOSPITALITY CORP.
Plaintiff
- and-
2493089 ONTARIO LIMITED
Defendant
BEFORE: MASTER D. E. SHORT
COUNSEL: Catherine Francis fax: 416-864-9223
for the Moving Party/Defendant
James M. Wortzman and Catherine E. Allen fax: 416-365-7702
for Responding Party/Plaintiff
REASONS RELEASED: December 11, 2017
Endorsement
I. Motion to Discharge Certificate of Pending Litigation.
[1] This was a full day motion, heard earlier last week, to discharge a CPL that I previously granted on an ex parte basis. Because there is an injunction motion in this case, scheduled to be heard in the next fortnight, this decision is less fulsome and perhaps less grammatically correct than might otherwise have been the case.
[2] This action was commenced before the scheduled closing of the arm’s-length purchase of a hotel property in Toronto owned by the Defendant 2493089 Ontario Limited (“249”), which was to be August 31, 2017. A Notice of Action, having been issued by the tenant of the property, Mary-Am Hospitality Corp (Mary-am) as plaintiff, on April 11, 2017.
[3] Thus, in April of this year, counsel for the plaintiff brought an ex parte motion seeking a certificate of pending litigation with respect to the hotel property where it was the then current tenant.
[4] My earlier Order was predicated on circumstances that are no longer existent. The Tenant’s entitlement to match an offer has instead been rendered currently inapplicable.
[5] Because the facts have shifted significantly since the original hearing, I have had to undertake a reassessment of my original decision and as a consequence, I have determined to set aside the CPL, but on terms.
II. Background
[6] Prior to 249 acquiring the hotel property, a detailed lease had been negotiated between the then owner and Mary-am. After the purchase by 249 the term of the existing lease expired and an extension agreement, modifying the terms of the original lease was negotiated.
[7] The tenant asserted during that negotiation that it had a right of first refusal with respect to its lease with the previous owner. I see no evidence that such a right actually existed.
[8] The key paragraph in that respect (with my emphasis added) read:
ARTICLE ~ 16.00
RENEWAL AND PURCHASE
16.01 Right to Renew Provided the Tenant regularly pays the Rent when due and performs and observes all the Tenant's covenants, proviso and agreements on its part therein contained, and has not been in default of the lease during the term thereof and is in occupation of one hundred percent (100%) of the Leased Premises, the Landlord at the expiration of the term hereby granted by this lease, shall upon written notice by the Tenant, grant to the Tenant a renewal lease of the Leased Premises for a further term of five (5) years referring to the last annual rent payment. New lease agreements shall be signed by both parties agreeing to the terms and conditions of the market and income of the business at the time of agreements renewal.
The renewal Lease shall contain, so far as they apply, all the covenants and provisions contained in this lease, except the rent credit described in Section 3.05, this right to renew and any right of first refusal. The notice by the Tenant shall be personally delivered to the Landlord by the Tenant, as evidenced by a written acknowledgment of the Landlord, at least three (3) months and no more than nine (9) months before the expiration of the term of this Lease. If the Tenant does not deliver the notice in time, the Tenant shall have no further right to exercise the option to renew and the Landlord shall be under no obligation to grant a renewal lease. If the Tenant exercises its right of renewal under this Section, either party to this Lease may terminate such renewal lease for any reason on six (6) months' written notice to the other.
16.02 Right of First Refusal Provided the Tenant regularly pays the Rent when due and performs and observes all the Tenant's covenants, provisos and agreements on its part therein contained, and has not been in default of the lease during the term thereof and is in occupation of one hundred percent (100%) of the Leased Premises, and the Landlord receives a bona fide offer to purchase the Leased Premises, the Tenant shall, once only, have a first right of refusal to match the terms of such offer. The Tenant shall, upon written notice by the Landlord of such offer, have seventy-two (72) hours to exercise this right, failing which the Tenant shall be deemed to have lost its right of first refusal under this Section, unless the proposed transaction fails to close in which case the right of first refusal under this Section shall be returned to the Tenant.
[9] After 249 acquired the property a brief written Lease Extension and Amending Agreement, that impacts on the present situation was negotiated.
[10] The important preamble (with my emphasis) provided:
THIS AGREEMENT made as of the 1st day of January, 2016 BETWEEN:
2493089 Ontario Limited
a corporation incorporated pursuant to the laws of the Province of Ontario (the "Landlord") OF THE FIRST PART
-AND-
Maryam Hotel & Suites Inc.
a corporation incorporated pursuant to the laws of the Province of Ontario (the "Tenant") OF THE SECOND PART
WHEREAS:
A. By a lease dated May 1, 2009 (the "Lease"), the 1505336 Ontario Inc. leased to the Tenant the property municipally known as 170 Willowdale Avenue, Toronto, Ontario (the "Premises"), for a term of five (5) years commencing on May 1, 2009, and expiring on the last day of April 2014;
B. 1505336 Ontario Inc. transferred its right, title and interest in the Premises to 2493089 Ontario Limited. The Landlord has assumed the previous owner/landlord's obligations under the lease.
C. The Tenant did not renew the Lease at its expiration as of the last day of April 2014 and became a month-to-month tenant.
D. The Landlord and Tenant have agreed to extend the Lease for a period of two (2) years commencing January 1, 2016 on the terms and conditions set out below.
[11] Thus the parties agreed to a term that expires in less than a month from the date of these reasons. The salient portions of the extension Agreement read:
NOW THEREFORE THIS AGREEMENT WITNESSETH THAT in consideration of the mutual covenants and agreements herein contained and other good and valuable consideration the receipt and sufficiency whereof is hereby acknowledged, the parties hereto covenant and agree with each other as follows:
- Interpretation:
The above recitals are true in fact and in substance. Except as otherwise expressly provided in this Lease Extension Agreement, the terms used herein shall have the same meanings attributed to them in the Lease. Terms defined herein, including recitals, shall be incorporated by reference into the Lease unless there is something in the subject matter or context inconsistent therewith.
- Extension Term
The term of the Lease shall be and is hereby extended for a period of two (2) years, commencing on the 1st day of January, 2016, and to be fully completed on the 31st day of December, 2017 (the "Extension Term").
- Rent
The Landlord and Tenant acknowledge and confirm that the Minimum Monthly Rent payable for the Extension Term of the Lease shall be $13,560.00 monthly plus HST and being the equivalent of $162,720.00 as Annual Minimum Rent plus HST. Notwithstanding the above reference to monthly payments, the parties have agreed that the Minimum Monthly Rent plus HST shall be payable weekly on Tuesday of each and every week during the Extension Term and shall be paid by Electronic Funds Transfer to the Landlord's TD Bank account, as previously provided.
- Option to Renew
The Landlord and Tenant further acknowledge and agree the rent credit described in Article 3.05 is deleted, there is no option or right of renewal so Article 16.01 of the Lease is deleted and the second paragraph of Article 16.01 specifically dealing with a 6 month right to terminate a renewal lease is deleted.
- Right of First Refusal to Purchase or Lease
The terms and conditions of Article 16.02 shall be applicable in the circumstances of the Landlord receiving a bon fide [sic] offer to purchase during the Extended Term and the Tenant shall have a right of First Refusal to lease the Premises should the Landlord receive a bona fide offer to lease the Premises at the expiring of the Extended Term of the lease. The terms and conditions applicable to the right of first refusal to purchase including the notice to be given to the Tenant and the 72 hour period to exercise the right of first refusal shall apply to right of refusal to lease.
- Ratification of Lease
[12] The Tenant, and the Landlord, hereby acknowledge and agree that all other terms of the Lease are hereby affirmed and shall remain in full force and effect throughout the Extension Term, and all other covenants contained in the Lease shall be performed as though they were contained in this Extension and Amendment of Lease Agreement. While the landlord asserts there were various defaults by way of late payments of weekly rent obligations, I would not be prepared to discharge the CPL if that fatual dispute was the only basis to discharge the CPL.
III. The Offer
[13] Earlier this year a neighbour of the property presented an offer and an amount which the defendant was willing to accept. That offer was accompanied by $150,000 deposit, and was for $4,250,000 on a cash basis. The Offer was accepted such that there then was an enforceable agreement of Purchase and Sale (the “APS”)
[14] The Agreement of Purchase and Sale provided in Schedule “A” as follows:
The Buyer agrees to pay the balance of the purchase price, subject to adjustments, to the Seller on completion of the transaction, with funds drawn on a lawyer’s trust account in the form of a bank draft, certified cheque or wire transfer using the Large Value Transfer System.
“The Buyer agrees to pay a further sum of one hundred and fifty thousand ($150,000) to sellers listing brokerage in trust by certified cheque on or before april 30/2017, as a supplementary deposit to be held in trust in the same manner as the initial deposit pending completion or other termination of this Agreement This amount is to be credited towards the purchase price on completion of this transaction.” (my emphasis throughout)
[15] In accord with the provision in the new lease between the parties , the plaintiff ‘s option was disclosed in these terms:
“The parties acknowledge there is 72 hours right of first refusal to purchase (as per the lease and extension agreements) in favour of the current tenant at the property. This agreement is conditional upon whether the tenant exercises its right of first refusal and should the tenant exercise such right of first refusal to purchase the property then this agreement shall be null and void and any deposit provided by the buyer shall be returned in full without deduction.
The parties further acknowledge that the term of lease with the current tenant at the property was extended and the term of the lease expires at the end of December 2017. Should the tenant not exercise their right of first refusal as referred to above then the buyer shall assume on the closing of this transaction, the tenant and lease (as amended and extended)” [sic]
[16] Notification was given, however, rather than simply matching the offer the tenant sought clarification. Reasonably they requested a copy of the offer to purchase. However, the name of the purchaser was originally redacted from the copy provided.
[17] Ultimately, the name of the purchaser was provided. Inasmuch as the plaintiff had suspected the name of the purchaser, as his initials appeared throughout the document that redacted his name as “the purchaser” there was no real surprise and no issue that the purchaser was “arm’s length”.
[18] It was, in my view, not likely that the identity of the buyer would be a surprise to the plaintiff. In any event, once the name was provided I am satisfied the plaintiff was provided with the contractual 72 hour notice for the hotel operator to determine whether or not to agree to buy the property on the identical terms.
[19] When the matter came before me in April, it was apparent that the plaintiff may have missed the 72 hour time period but again I was not prepared to deny the CPL on that basis as there were potential factual disputes.
[20] It seems that the plaintiff tried to negotiate better terms, such as a vendor takeback mortgage, etc. perhaps combined with a higher ultimate purchase However it seems to me that any change of that type would deprive the arm’s length purchaser from his rights under the binding agreement of purchase and sale, which was conditional solely on a right of first refusal on the same terms.
IV. Missed Deadline
[21] The APS provided that “the buyer agrees to pay a further sum of one hundred and fifty thousand ($150,000) to sellers listing brokerage in trust by certified cheque on or before April 30, 2017, as a supplementary deposit to be held in trust in the same manner as the initial deposit pending completion or other termination of this agreement”.
[22] Before that date I issued the CPL but that did not modify the purchaser’s contractual obligation. It failed to pay prior to April 30th.
[23] Paragraph 19 of the standard form agreement of purchase and sale used by the parties read as follows:
- Time limits Time shall in all respects be of the essence here, provided that the time for doing or completing of any matter provided for in here may be extended or abridged by an agreement in writing signed by the seller and buyer or by their respective lawyers who may be specifically authorized in that regard.”
[24] Thus the arm’s-length purchaser failed to make the second installment on a timely basis. An extension was requested, but in the circumstances refused by the landlord, having regard to the existing CPL, which potentially exposed it to damages from one or both possible buyers.
[25] Instead, the trip arm’s-length transaction was treated as at an end and the arm’s-length purchaser received his deposit back and ultimately signed a mutual release.
[26] That meant the property was now available to be sold on the matching basis, which the plaintiff had indicated it was willing to take by the slightly late March 30 letter which read:
Re: Notice of Exercise of Right of First Refusal (ROFR) - 170 Willowdale Avenue
Please be advised that pursuant to Article 16.02 of the Lease dated May 1st 2009 and Article 5 of the Lease Extension and Amending Agreement dated January 1st 2016, Mary-am Hospitality Corp., (formerly known as Maryam Hotel & Suites Inc.) hereby exercises its Right of First Refusal to purchase the property municipally known as 170 Willowdale Avenue.
[27] I need not determine whether the plaintiff was entitled to re-activate its offer. This is because the defendant signed back the original offer to purchase of the tenant on the identical terms of the Tenant’s offer.
[28] Rather than electing to proceed on that preciously offered basis, the Tenant instead took no steps to complete the transaction and instead moved to amend their Statement of Claim before Master Muir in July, 2017. The tenant’s motion to add new claims, sought inter alia an abatement of an amount in excess of $1.3 million and a variety of other relief.
[29] Whether or not such that plaintiff was entitled to still close the deal was in some doubt based on the evidence filed before me on the ex parte motion. I have now learned that there had been negotiations ongoing, prior to the ex parte motion being brought, and in particular, that counsel for the defendant had requested notice of any application for a CPL.
[30] While the four inch thick ex parte record did contain a copy of the written request, I fail to see what risk there was to the plaintiff’s position and hind sight feel much legal time could have been saved by a two sided argument at the outset.
[31] Again that factor is not determinative of my decision.
[32] What is clear from the pleadings is that there are is now as amended, is it there is now no desire on the part of the plaintiff to close on the terms that were in the transaction to which it held a right of first refusal. Instead, counsel determined that a pleading seeking to enforce an entirely different agreement is appropriate.
V. Caselaw
[33] The threshold question, where a right to real property is alleged in a motion respecting a CPL is whether there is a triable issue as to such an interest. (1152939 Ontario Ltd. v. 2055835 Ontario Ltd. [2007] O.J. No. 4823).
[34] The Plaintiffs originally sought an order of specific performance. Specific performance is available where:
(a) The property is unique;
(b) Damages are comparatively inadequate to do justice, either because of an imprecision of the damages or because the vendor's conduct is a flagrant and deliberate infliction of risk and loss on the purchaser; and
(c) There is a fair, real and substantial justification for the claim of specific performance.
[35] There is no clear rule one way or the other as to whether specific performance is available. Its availability will tum on the uniqueness of the property and whether there is a fair, real and substantial justification for the claim. Specific performance is an equitable remedy that is discretionary in nature and the conclusion about whether a particular property is unique is one that is primarily fact driven. (1174538 Ontario Ltd. v. Barzel Windsor (1984) Inc., [1999] O.J. No. 5091 (Ont. S.C.J.) at para 7)
[36] Section 103 of the Courts of Justice Act set out clear requirements flowing from the virtual “execution before judgment” elements of this remedy (my emphasis throughout):
Certificate of pending litigation
103 (1) The commencement of a proceeding in which an interest in land is in question is not notice of the proceeding to a person who is not a party until a certificate of pending litigation is issued by the court and the certificate is registered in the proper land registry office under subsection (2).
Order discharging certificate
(6) The court may make an order discharging a certificate,
(a) where the party at whose instance it was issued,
(i) claims a sum of money in place of or as an alternative to the interest in the land claimed,
(ii) does not have a reasonable claim to the interest in the land claimed, or
(b) where the interests of the party at whose instance it was issued can be adequately protected by another form of security; or
(c) on any other ground that is considered just,
and the court may, in making the order, impose such terms as to the giving of security or otherwise as the court considers just.
Effect
(7) Where a certificate is discharged, any person may deal with the land as fully as if the certificate had not been registered.
[37] My colleague Master Muir aptly summarized the approach to be taken in CPL cases in Roseglen Village for Seniors Inc. v. Doble, 100 C.P.C. (6th) 176; 2010 CarswellOnt 7133. There at paragraph 10 of his reasons Master Muir referred to the decision of my then colleague Master Glustein’s decision in Perruzza v. Spatone, 2010 ONSC 841:
“Master Glustein concisely sets out the factors the court is to apply when deciding a motion to grant leave to issue a CPL. At paragraph 20 of Perruzza, Master Glustein identifies those considerations as follows:
The test on a motion for leave to issue a CPL made on notice to the defendants is the same as the test on a motion to discharge a CPL (Homebuilder Inc. v. Man-Sonic Industries Inc., [1987] O.J. No. 862, 1987 CarswellOnt 499 (S.C. - Mast.) ("Homebuilder") at para. 1);
The threshold in respect of the "interest in land" issue in a motion respecting a CPL (as that factor is set out at section 103(6) of the Courts of Justice Act, R.S.O. 1990, c. C.43) is whether there is a triable issue as to such interest, not whether the plaintiff will likely succeed (1152939 Ontario Ltd. v. 2055835 Ontario Ltd., [2007] O.J. No. 488, 2007 CarswellOnt 756 (S.C.J.), as per van Rensburg J., citing Transmaris Farms Ltd. v. Sieber, [1999] O.J. No. 300 (Gen. Div. - Comm. List) at para. 62);
The onus is on the party opposing the CPL to demonstrate that there is no triable issue in respect to whether the party seeking the CPL has "a reasonable claim to the interest in the land claimed" (G.P.I. Greenfield Pioneer Inc. v. Moore, 2002 CanLII 6832 (ON CA), [2002] O.J. No. 282, 2002 CarswellOnt 219 (C.A.) at para. 20);
Factors the court can consider on a motion to discharge a CPL include (i) whether the plaintiff is a shell corporation, (ii) whether the land is unique, (iii) the intent of the parties in acquiring the land, (iv) whether there is an alternative claim for damages, (v) the ease or difficulty in calculating damages, (vi) whether damages would be a satisfactory remedy, (vii) the presence or absence of a willing purchaser, and (viii) the harm to each party if the CPL is or is not removed with or without security (572383 Ontario Inc. v. Dhunna, [1987] O.J. No. 1073, 1987 CarswellOnt 551 (S.C. - Mast.) at paras. 10-18); and
The governing test is that the court must exercise its discretion in equity and look at all relevant matters between the parties in determining whether a CPL should be granted or vacated (931473 Ontario Ltd. v. Coldwell Banker Canada Inc., [1991] O.J. No. 1150, 1991 CarswellOnt 460 (Gen. Div.); Clock Investments Ltd. v. Hardwood Estates Ltd., 1977 CanLII 1414 (ON SC), [1977] O.J. No. 2331, 1977 CarswellOnt 1026 (Div. Ct.) at para. 9).
[38] Master Muir went on to observe in Roseglen;
In determining whether there is a reasonable claim to an interest in land, the motions court must not simply rely on the pleadings or accept affidavits uncritically. The court has a duty to examine the whole of the evidence as it stands after cross examination and, without deciding disputed issues of fact and credibility, consider whether on the whole of the evidence, a reasonable claim to an interest in land has been made out. See Waxman v. Waxman, [1991] O.J. No. 89 (Ont. Gen. Div.) at paragraph 8.
As stated above, the overriding test, on a motion such as this, is for the court to exercise its discretion in equity and look at all relevant matters between the parties in deciding whether to grant leave to issue a CPL. The defendants submit that the application of the Dhunna factors (set out above in the excerpt from Perruzza) to the facts on this motion leads to the conclusion that leave should not be granted to issue the CPL. However, most of the Dhunna factors are applicable only to an action for specific performance of a contract for the purchase and sale of land and not to a tracing claim. See Bayerische Landesbank Gironzentrale v. Sieber Estate (Trustee of), [2008] O.J. No. 2372 (Ont. Master) at paragraph 70. ….
However, as Master Dash stated in Bayerische at paragraph 70, the one factor that is important to consider on all motions for an order granting leave to issue (or to discharge) a certificate of pending litigation is the harm done to the defendants if the certificate is issued or to the plaintiff if the certificate is not issued. ….”
[39] I have also considered the so called Dunna factors. (572383 Ontario Inc. v. Dhunna, 1987 CarswellOnt 551 at para 11). The factors that this court can consider on a motion to discharge a CPL include:
(1) whether the plaintiff is a shell corporation;
(2) whether the land is unique;
(3) the intent of the parties in acquiring the land;
(4) whether there is an alternative claim for damages;
(5) the ease or difficulty of calculating damages;
(6) whether damages would be a satisfactory remedy;
(7) the presence or absence of another willing purchaser; and
(8) the harm done to the plaintiff if the certificate is allowed to remain, or to the plaintiff if the certificate is removed, with or without security. (my emphasis)
[40] The onus is on the party opposing the CPL to demonstrate that there is no triable issue in respect to whether the party seeking the CPL has "a reasonable claim to the interest in the land claimed" (G.P.I. Greenfield Pioneer Inc. v. Moore, 2002 CanLII 6832 (ON CA), [2002] O.J. No. 282, 2002 CarswellOnt 219 (C.A.) at para. 20);
VI. Current Status of Action
[41] I understand that, Justice Archibald has directed that an injunction application be heard later this month with respect to the tenant seeking to maintain its occupancy of the Property after the end of the lease term.
[42] The existence of this application makes it somewhat difficult for me to understand the jurisdiction that I ought to have in the face of a judge’s motion dealing with an injunction on the same matter later this month. Nevertheless, both parties had prepared, argued the motion, and did not question my jurisdiction.
VII. Analysis
[43] Thus, taking together, the case law, the highlighted provisions of the Courts of Justice Act and the Rules, along with my interpretation of the complex factual matrix, I have come to my conclusion on this motion.
[44] It seems to me that it is inappropriate to allow new causes of action to be added in the alternative, with respect to a property where leave to issue a Certificate of Pending Litigation has been granted, in reliance on an alleged binding ROFR that has been breached, (i.e. that there was an assertion of an enforceable specific contractual entitlement). I feel that having got the Property tied up by a CPL on one set of facts, it is now inappropriate for the moving party to perhaps seek to hedge its bets by adding additional claims other than based upon the ROFR. In particular, I reiterate that there is now an added (admittedly in the alternative) assertion in the Statement of Claim that the purchase price of $4.25 million does not apply and perhaps ought to be reduced by as much as $1.3 million.
[45] Counsel argues that the courts are prepared to give abatement in real estate cases, and that the purchase price might well be entitled to be reduced in this case. I disagree.
[46] I do not regard that the present factual matrix as a situation where specific performance normally would flow. Moreover, I agree with counsel for the owner that the norm is for an abatement to take place in real estate issues where the full property which was understood to be being purchased is not available due to an easement or some other right-of-way or zoning restriction. To my mind only entitlement that the plaintiff has to this property was to match the third parties offer. If they chose not to, then they no longer had any entitlement to the property. Unless and until another purchaser came along at which time they might again have a right of first refusal.
[47] I fail to see how any claim to ownership, other than one that matches the original third party offer, was available to this plaintiff. I was prepared to make the original grant the original CPL in reliance on the fact that there was an agreement that needed to be matched and that that is what the plaintiff sought in the original notice of motion. Now many other forms of relief are sought, which do not seem to be based on any contractual obligation of the plaintiff.
[48] Both counsel provided extensive arguments with respect to whether or not the Certificate of Pending Litigation ought to remain in place. Having reflected on the matter. It seems clear to me that the only right which the tenant had to acquire the property that was enforceable, was its right to match the offer of the arm’s length purchaser.
[49] I granted the original CPL on the understanding that, as was asserted in its pleading, that the plaintiff was to acquire the property on those terms, and was seeking to have the agreement enforced.
[50] Even if it did, the only terms upon which a sale could be enforced with those of the original offer made by the arm’s length purchaser.
[51] Serendipitously, such an offer was made following the arm’s length purchaser’s default, which the tenant failed to accept.
[52] I acknowledge that technically the agreement of purchase and sale signed by the landlord was in effect a counter-offer to the tenant on the same terms as had been offered by the arm’s length purchaser. However, the tenant did not accept that counteroffer, and instead amended its claim to assert a number of alleged bases upon which a sale at another price might be constructed or seeking damages in the alternative.
[53] In my view, any proposal for an alternative structure, does not give rise to one to which the landlord would be contractually bound under the ROFR clause. That being the case, I am satisfied that the status quo should return to that which it existed prior to the arm’s length offer received.
[54] The tenant continues as a tenant on a lease that on its face as the term expiring on December 31, 2017. As I understand it pending injunction application seeks to have the court, in effect, extend the term of the lease until the completion of this litigation. That determination is for another court, on another day.
VIII. Disposition
[55] On balance, I am satisfied that the Certificate of Pending Litigation ought to be removed, 45 days from the release of these reasons.
[56] I believe, as matters stood at the date of my original order, that it was appropriate to issue the original ex parte Certificate of Pending Litigation. However, in light of the new circumstances, I am equally satisfied that the Certificate should be vacated and I am further prepared to grant costs of this motion to the moving party on a party and party basis.
[57] However, given the potential for a costs award on the pending injunction application, I feel for the time being, I ought to defer to the judge hearing that application. That Justice may wish to deal with the costs of all these applications as a bundle, given the overlap of the evidence that applies to each of these hearings.
[58] If that does not occur, and the parties cannot otherwise agree on a costs disposition, then I will receive written cost submissions from the parties on a basis to be discussed with them, by way of a telephone case conference, to be convened through my Assistant Trial Co-ordinator after January 31, 2018.
[59] I thank Counsel for their professional advocacy and helpful submissions on this somewhat novel matter.
Master D. E. Short
Released: December 11, 2017
DS/ R208