COURT FILE NO.: 17-73760
DATE: 2018/05/09
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Fuego Digital Media Inc. (Applicant)
AND
DAC Group (Holdings) Limited (Respondent)
BEFORE: Justice Julianne Parfett
COUNSEL: Applicant Self-represented
Lawrence G. Theall, Jeffrey Brown, & Melissa Wright Counsel for the Respondent
HEARD: April 10 & 24, 2018
endorsement
Parfett j.
[1] The Applicant, Fuego Digital Media Inc. (Fuego), requests an order setting aside the Arbitration Award issued July 31, 2017 or in the alternative an order setting aside all reference in the Award to non-parties.
Background
[2] The Respondent, DAC Group (Holdings) Limited, (DAC), is a corporation that provides ‘directional marketing’ services to clients. Their clients are generally large, national or multinational firms. In essence, DAC uses software to direct persons searching for services provided by these large companies to websites that are customized by that software to better respond to the specific search.[^1]
[3] ProtocolIS was a software development firm. It developed a set of software tools for web applications and also a website content management system (CMS). ProtocolIS ceased carrying on business in November 2007 and the bulk of its assets were sold to the Applicant.[^2]
[4] In July 2005, the Respondent entered into a software licensing arrangement with ProtocolIS. ProtocolIS was to provide software to be used by DAC to deploy its applications.[^3] In 2007, Fuego assumed ProtocolIS’ obligations under the contract with DAC and in addition, developed further software support for DAC.[^4]
[5] In early 2010 a dispute arose between the parties. The dispute involved the ownership of certain software that had been developed by Fuego for DAC.
[6] In October 2010 DAC commenced arbitration against Fuego. The arbitration was governed by the rules of the ADR Institute of Canada (ADRIC) and an arbitrator, Mr. Michael Erdle was appointed as the sole arbitrator.
[7] The arbitration was divided into two phases: a contract phase and a technology phase. At the time, it was hoped that a decision with respect to the contract would substantially resolve the issues surrounding the technology.[^5]
[8] In the contract decision, the arbitrator provided some general guidance to the parties concerning how ownership of specific aspects of the software might be determined.^6 The parties were unable to resolve the issue of ownership and the arbitration went on to the second ‘technology’ phase. The central issue of this second phase was a determination of which software merely ‘tweaked’ the original Fuego software and would therefore belong to Fuego, and which software was developed exclusively for the support of DAC web applications and therefore belonged to DAC.
Issues
[9] The issues are:
Did the arbitrator act unfairly when he denied the Applicant’s request for an adjournment, admitted new evidence in relation to the key issue, applied a different definition of ‘DAC Software’ than he had in the first decision, and used a draft award provided by the Respondent as the template for his decision; or
Did the arbitrator exceed his jurisdiction in ordering the injunctive relief to include three non-parties?
Positions of the parties
[10] The Applicant alleges that the arbitrator made several significant errors in the second hearing that resulted in a denial of natural justice or which exceeded his jurisdiction. Specifically, the Applicant contended that the arbitrator refused to grant their request for an adjournment and then went on to dismiss the Applicant’s counterclaim when it failed to provide the arbitrator’s fee.
[11] Secondly, the Applicant stated that the arbitrator admitted new expert evidence concerning the software. This evidence was admitted during the hearing and supplemented after the end of the oral hearing with further evidence. The Applicant argued they were not provided with sufficient time to respond to this new evidence. Furthermore, the new evidence was in relation to the key issue in the technology hearing.
[12] Thirdly, the Applicant contends that more than five years after he provided a definition of ‘DAC Software’ in the contract issues award, the arbitrator used a different definition in the technology issues award. The Applicant argues that this change profoundly prejudiced it, in that their approach to the technology hearing had been based on the definition provided in the earlier decision.
[13] Fourthly, the Applicant suggested that the arbitrator used a draft award provided by the Respondent in the preparation of his decision. The consequence of this approach was that the reasons contain findings that contradict findings in his earlier decisions and which exceed the arbitrator’s jurisdiction.
[14] Finally, the Applicant alleged that the arbitrator granted injunctive relief against three non-parties. He contends the arbitrator had no authority to grant relief against non-parties.
[15] The Respondent argued that the arbitrator did not breach the rules of natural justice or exceed his jurisdiction with respect to any of the five issues raised by the Applicant. The Respondent argued that there are several reasons why the award should not be set aside on the basis of the denial of the adjournment. First, s. 46 of the Arbitration Act does not apply to interlocutory decisions. Secondly, if s. 46 does apply, then s. 47 of the Act would indicate that the Applicant is out of time to bring an application on the adjournment. Third, an adjournment is fully within the arbitrator’s jurisdiction under the ADRIC Rules 1, 23(a) and 26. With respect to the dismissal of the counterclaim, the Respondent relies on Rule 40 of the ADRIC rules as well as case law.[^7]
[16] On the second issue, the Respondent contends that communications between the parties and the arbitrator made it clear that the Respondent’s expert was going to investigate the ‘JIRA logs’ and, therefore, the expert’s testimony based on those logs should not have come as a surprise to the Applicant. In any event, the Respondent notes that the Applicant was granted time to organize a response to that evidence.
[17] Furthermore, the Respondent states that the definition of ‘DAC Software’ provided by the arbitrator in the contract award was never intended to be determinative of the issue of what constituted software owned by DAC. Indeed, he states that if that had been the case, there would never have been a need for the second technology award.
[18] The Respondent stated there was no authority indicating that the arbitrator could not ask for a draft award. Moreover, the Respondent pointed out that the portions of the draft award that the arbitrator adopted were more akin to an order than a decision. Finally, the Respondent indicated the additions made by the arbitrator are more akin to findings and reasons.
[19] With respect to the injunctive relief granted to non-parties, the Respondent relies on the legal principle, which states that while an arbitrator does not have jurisdiction over a stranger to the arbitration agreement, other persons can be placed on notice of the existence of the injunction and if they breach the injunction they could be found liable to contempt of court.[^8] In any event, the Respondent argues officers of a corporation are part of the dispute and, therefore, they can be restrained in their capacity as officers of the company.
Legal Principles
[20] Section 6 of the Arbitration Act, 1991[^9] provides as follows:
No court shall intervene in matters governed by this Act, except for the following purposes, in accordance with this Act:
To assist the conducting of arbitrations;
To ensure that arbitrations are conducted in accordance with arbitration agreements;
To prevent unequal or unfair treatment of parties to arbitration agreements;
To enforce awards.
[21] In addition, the relevant portions of s. 46(1) of the Arbitration Act, 1991 state:
On a party’s application, the court may set aside an award on any of the following grounds:
The applicant was not treated equally and fairly, was not given an opportunity to present a case or to respond to another party’s case…
The procedures followed in the arbitration did not comply with this Act.
[22] The Applicant concedes that the applicable rules in this matter were those found in the ADR Institute of Canada. Specifically, the following rules are relevant to the present matter:
The purpose of the Rules is to enable the parties to a dispute to achieve a just, speedy and cost effective determination of matters in dispute, taking into account the values that distinguish arbitration from litigation.
(a) Subject to the Rules, the Tribunal may conduct the arbitration in the
manner it considers appropriate;
(b) Each party shall be treated fairly and shall be given a fair opportunity to
present its case;
(c) The Tribunal shall strive to achieve a just, speedy and cost effective determination of every proceeding on its merits, taking into account Rule 1.
- The Tribunal may rule on its own jurisdiction, including ruling on any
objections with respect to the existence or validity of the arbitration agreement …
- The Tribunal may:
(a) order an adjournment of the proceedings from time to time;
(d) make an award or interim award granting equitable relief, injunctions or specific performance on such terms as may be just;
(i) request further statements clarifying issues in dispute.
- The Tribunal shall determine the admissibility, relevance, materiality and
weight of the evidence offered and may exclude evidence that the Tribunal deems to be repetitive.
- Where a party, without sufficient cause, fails to … pay the fees of the
Institute…the Tribunal may continue the arbitration on such terms as the Tribunal deems appropriate after satisfying itself that a reasonable attempt has been made to communicate with the defaulting party.
- If the required deposits are not made within 15 days after receipt of the
request, the Tribunal or the Institute shall inform the parties so that another party may make the required payment.
If the required deposits are not made within 30 days after receipt of the request, the Tribunal may continue the arbitration under Rule 37 or order the suspension or termination of the proceeding.
[23] When the allegation is one of denial of natural justice, the applicant must demonstrate that the arbitrator’s conduct was sufficiently egregious to offend basic notions of morality and justice[^10]
[24] With respect to the issue of jurisdiction, the standard of review is one of correctness. However, the basis for intervening is narrow and confined to ‘rare circumstances where there is a true question of jurisdiction’.[^11] As the court in the Cargill case noted:
The role of the reviewing court is to identify and narrowly define any true question of jurisdiction. The onus is on the party that challenges the award. Where the court is satisfied that there is an identified true question of jurisdiction, the tribunal had to be correct in its assumption of jurisdiction to decide the particular question it accepted and it is up to the court to determine whether it was. In assessing whether the tribunal exceeded the scope of the terms of jurisdiction, the court is to avoid a review of the merits.[^12]
Analysis
[25] In considering this matter, the court is mindful of the fact that arbitration is an alternative to traditional litigation and, therefore, when parties seek to resolve their disputes by way of arbitration, the court ought not to lightly intervene. However, there will always be circumstances where the court must intervene.
[26] The Applicant’s primary contention is that it was not treated fairly by the arbitrator in the technology hearing. As noted earlier, the issues under this heading are the denial of the adjournment, the admission of new evidence, the use of a different definition of ‘DAC Software’, and the use of draft reasons provided by the Respondent.
1. Adjournment
[27] In May 2017, approximately a month before the second phase of the arbitration was to begin, the Applicant requested an adjournment. The basis for the adjournment was primarily financial. They did not have the resources to continue to retain counsel or pay the arbitrator’s fee. They were in the process of trying to obtain third party funding, but needed more time. This adjournment request was denied.
[28] The Respondent argues that an adjournment decision is not an ‘award’ and, therefore, pursuant to s. 46 of the Arbitration Act, is not reviewable by this court. However, it did not provide me with any authority for this position. Furthermore, the Respondent pointed out that the Applicant had failed to bring an appeal of the adjournment decision within the time limits specified in s. 47 of the Act. Once again, however, it failed to provide me with any authority stating that an interlocutory decision should be appealed separately from the main application. Consequently, the court will consider the merits of the Applicant’s argument.
[29] The arbitrator provided detailed reasons for the denial of the adjournment.[^13] As noted by the Respondent, Rule 26(a) gives the arbitrator the authority to grant an adjournment. The issue in the present case is whether in so doing, the arbitrator failed to act fairly. In my view, deference should be accorded the arbitrator’s decision not to adjourn the matter. His decision is well-reasoned and indicates that the matter had been ongoing for a considerable time and the adjournment request was made on ‘the mere possibility that Fuego may obtain third party funding and obtain legal counsel’. In addition, the arbitrator noted that Fuego had not objected to the proposed hearing dates and had not advised the tribunal at that time that they were in the process of seeking third party funding. In my view, there is no evidence that the Applicant was not treated fairly and equitably with respect to the denial of the adjournment.
[30] The Applicant also objects to the subsequent dismissal of its counterclaim. It relies on the case of Mericle v. Basement Systems (Calgary) Inc. Unfortunately that case stands for the proposition that it is not a breach of procedural fairness to dismiss the claim of a party who has failed to pay the required deposits. As noted in that case:
There is another side of the coin and that is the Applicants’ claim against the Respondent. That is a different matter, as noted above, the Arbitrator held in his Interim Award that ‘by failing to comply with the [Contract] and the engagement letter, [the Applicants] have abandoned their right to present their case’. Does s. 45 of the Act [Rule 40 ADRIC in the present case] require this Court to interfere with that finding as well? In my opinion, it does not.[^14]
[31] Rule 40 provides clearly that failure to pay the required deposits could result in ‘termination of the proceeding’. The Applicant was placed on notice that it was required to pay its fees and it chose not to do so. It was permitted to defend itself against the Respondent’s claim, but it was within the arbitrator’s discretion not to permit the counterclaim to proceed in the circumstances. I cannot find there was any breach of natural justice as a consequence of the dismissal of the counterclaim.
2. Admission of New Expert Evidence
[32] The Applicant argues that he was taken by surprise when DAC presented evidence based on what are called ‘JIRA logs’. It states that the arbitrator ought not to have permitted the introduction of this evidence.
[33] The Respondent concedes that it made a last minute decision to present evidence through one of its witnesses concerning the contents of the JIRA logs and that furthermore, its expert witness then used that evidence to provide the tribunal with a PowerPoint presentation that summarized the earlier testimony. However, the Respondent denies there was any surprise involved.
[34] I find that the arbitrator did not act unfairly in admitting this evidence and I do so for several reasons.
[35] First, the Applicant was aware of the Respondent’s interest in the JIRA logs. Several years before the technical hearing took place, both parties applied to the arbitrator for directions on how to perform the review of the software and one of the directions provided by the arbitrator was the following:
Fuego shall forthwith provide Deloitte [DAC’s expert] with the information it has requested with respect to the acronyms used in the software file names and JIRA logs and with any other information reasonably required in order to complete its review.
Fuego has agreed to extract a list of JIRA references contained in the VCS [Version Control Software] repositories provided, to create a set of scripts to query its databases to extract information relevant to those JIRA references and to provide a JIRA log report based on the results. Fuego has also agreed [to] provide a list of the JIRA references, along with an annotation as to whether they relate to the software provided to or used by DAC, to assist Deloitte in reviewing the software.[^15]
[36] Secondly, the Respondent advised the Applicant in advance of its intention to call one of the employees of DAC to give evidence. Included with that notice was a ‘will say’ statement. The relevant portions of this statement are as follows:
[Mr. Tenby] will give evidence regarding the JIRA logs, which were a method used by Fuego to track software development. With reference to the JIRA logs and other correspondence, Mr. Tenby will show how the software was being developed for DAC by Fuego.
[37] It is to be noted that Mr. Tenby was not an expert witness. He was merely an employee of DAC and his evidence consisted of factual evidence. He used Fuego’s JIRA logs to demonstrate how, when and for what purpose, Fuego was developing software. The PowerPoint presentation later provided by DAC’s expert was nothing more than a summary of the information previously provided by Mr. Tenby.
[38] In my view, the most important factor in my determination that there was no unfairness in the way this issue was handled by the arbitrator is the fact that when the Applicant objected to the introduction of this evidence, it was accorded an adjournment by the arbitrator in order to bring their expert up to speed on this new evidence.
[39] The Applicant’s expert did in fact deal with this new evidence and the Applicant has not, in the present case, demonstrated what it would have or could have done differently if it had been given a longer adjournment. The fact the evidence presented by Mr. Tenby and the expert ultimately proved to be devastating to the Applicant’s position on the hearing is not a reason to find the arbitrator acted inappropriately.
3. New definition of ‘DAC Software’
[40] The crux of the litigation as a whole was whether Fuego had created software for DAC that DAC now owned. Fuego claimed that none of the software they created for DAC belonged to DAC. In the present case, Fuego said it never created any software for DAC that was not generic in nature or just a tweaking of Fuego’s operating system. DAC disputed this position and alleged that in fact there was software that was proprietary to DAC.
[41] After the contract phase was completed and before the technology phase began, the parties engaged experts to comb through the software and indicate their views concerning who owned what. The issue here is whether the Applicant was unfairly ‘sandbagged’ by the approach taken by the Respondents on the issue of determining what, if any, software was owned by it.
[42] In the contract award, the arbitrator made a number of findings in relation to the issue of what constituted ‘DAC software’. They are as follows:
I find that the definition of “DAC Software’ includes all software created by Protocol or Fuego at the request and expense of DAC to integrate the DAC Data, third party software, the Fuego CMS and hosting services. To the extent that any such software was created as part of the PAGEtorrent project, or any other work performed for DAC by Protocol or Fuego, I find that it is DAC Software.
I find that the information provided by DAC and the information conceived, developed or produced by Fuego in the course of doing work on the PAGEtorrent project and other work on the DAC Digital System was confidential information of DAC and is subject to the confidentiality provisions of the Supply Agreement.
Accordingly, in this hearing the parties did not present full evidence on the technical aspects of the PAGEtorrent projects.
Based on the evidence presented and my interpretation of the contractual relationship between the parties, I have found that the PAGEtorrent system includes both DAC Software, owned by DAC and Fuego CMS, owned by Fuego and licensed to DAC. I have also found that some or all of the PAGEtorrent system is the confidential information of DAC.
Based on the evidence presented, I cannot make a final determination of which portions of the PAGEtorrent system are confidential information of DAC. Nor can I determine which portions are part of the Fuego CMA and which are DAC Software.
However, I can make some general findings about how ownership and confidentiality should be determined, based on the terms of the contract between the parties, as I have interpreted it in this award.[^16]
[43] After the award was issued, efforts were made by the parties to determine for themselves what software, if any, belonged to DAC. They returned to the arbitrator for assistance in this endeavour and the arbitrator made certain rulings.
[44] In a ruling dated April 20, 2012, he stated:
I directed that the parties determine which portions of the PAGEtorrent system are part of the Fuego CMS and which portions are DAC software, based on the criteria set out in the award.
The parties have requested further direction with respect to the initial steps to be taken to review the software and make those determinations.[^17]
[45] In a further ruling dated November 2, 2012, the arbitrator noted:
The outstanding issues include:
A. the determination of what is DAC Software and DAC confidential information; and
B. the counterclaims made by Fuego…[^18]
[46] As noted earlier, the Applicant contends that the definition of ‘DAC Software’ provided in the contract award was determinative of the entire issue of what constituted software owned by DAC. I cannot agree. It is apparent from the decision that the arbitrator intended to provide guidelines or criteria that the parties could use to determine for themselves what software was owned by DAC. However, the parties were not able to agree. Furthermore, the arbitrator indicated that he had insufficient information to be able to make any final determination of this issue. Consequently, the issue of the definition of ‘DAC Software’ was not finalized and in my view, both parties were free to advocate for a different definition of ‘DAC Software’ at the time of the second hearing.
[47] Therefore, I find that the arbitrator did not act in a manner that breached the rules of natural justice in the technical award when he determined ownership of the software.
[48] An additional aspect of the definition of DAC software involves the issue of what information provided by DAC was confidential and could not be used by Fuego. The Applicant contends that in the original definition of DAC software, there was no reference to confidential information forming part of the definition. I cannot agree. In the portions of the contract award and subsequent rulings cited in paragraphs 42 and 45, it is clear that confidential information always formed part of the overall definition of ownership.
4. The draft award
[49] There are two aspects to the Applicant’s position in relation to the draft award. The first is that the arbitrator received written submissions from the parties after the end of the oral hearing and the second is that the arbitrator accepted and used as a template a draft award sent to him by the Respondent.
[50] The Respondent submits that material was sent to the arbitrator after the end of the hearing in response to questions raised by the arbitrator at the hearing. This position is confirmed by an email exchange between the arbitrator and the parties.[^19] As part of this exchange, the arbitrator invited Fuego to make a further written response if they wished to do so. Fuego did in fact file further written submissions.[^20]
[51] In addition, the Respondent argues that it is within the arbitrator’s discretion to determine when the evidence is closed. Rule 42 of the ADRIC rules confirms that:
Where the parties have, on inquiry, advised they have no further evidence to give or submissions to make, or the Tribunal considers further hearings to be unnecessary or inappropriate, the Tribunal may close the hearings.[^21]
[52] In the present case, the arbitrator closed the hearing on July 11, 2017 after having received both DAC and Fuego’s written submissions.[^22]
[53] In the circumstances, there is nothing improper in the arbitrator receiving additional information after the end of the oral hearing, but before the hearing was formally closed. Moreover, Fuego was offered the opportunity to respond and did so.
[54] The second – and more serious – allegation made by the Applicant is that the arbitrator improperly used a draft award sent to it by the Respondent and in so doing, he abdicated his function. The Respondent contends firstly that there is no authority preventing a party from sending a draft award to an arbitrator. Furthermore, it alleges that it is not unusual for counsel to provide the tribunal with draft orders and in essence the draft award that was sent to the arbitrator was akin to a draft order. Finally, the Respondent states that where the draft order contains very specific and technical information, such an order is a useful tool for the arbitrator.
[55] In my view, it would have been improper for the Respondent to provide the arbitrator with draft reasons. However, that is not what occurred in this case. It is apparent from a comparison of the document sent by the Respondent and the document produced by the arbitrator that he made very significant changes. In addition, what the arbitrator used was indeed in the nature of an order, whereas what he added were his reasons.[^23]
[56] Consequently, I find the arbitrator did not abdicate his function.
[57] After the end of its submissions and following the resumption of the hearing of this matter, the Applicant asked to raise one further point. The Applicant stated that the Respondent had alleged that the Applicant had acted fraudulently when it moved software from DAC’s repository to its own repository. According to the Applicant, the Respondent’s allegation ‘provided cover’ for the arbitrator’s decision. The Applicant contends that the arbitrator wanted to conclude the arbitration expeditiously and if Fuego committed fraudulent acts, then it was appropriate for the arbitrator to ‘cut corners’ in the writing of the decision.
[58] The Applicant does not deny that software was moved from the DAC repository to the Fuego repository, but it states it was done for business reasons and not for any illicit purpose.
[59] The arbitrator did take note of the fact that software was moved and that the timing of the move was important in that it occurred shortly after the meeting in which the dispute over the ownership of software arose. However, he did not describe the Applicant’s actions in moving the software as fraudulent. In the circumstances, I do not find that the arbitrator ‘cut corners’ in the drafting of his reasons.
5. Order against Non-parties
[60] The Applicant contends that the arbitrator improperly ordered relief against three non-parties to the litigation – Mr. Kevin Higgins, Mr. Karl Gretton and Fuego Qatar. The Applicant states that the arbitrator exceeded his jurisdiction in ordering relief that included these three persons.
[61] In Part IV of the technical award, the arbitrator granted injunctive relief as follows:
- This Tribunal orders that the Respondents [Applicant in the present matter], and all of their current, former and future directors, officers, agents employees, contractors, subcontractors, servants, affiliates, joint venturers, successors, assigns, subsidiaries or Related Parties (including Higgins, Gretton and Fuego Qatar), and all those over whom they or any of them exercise control, directly or indirectly, are hereby permanently restrained from any or all of the following activities…
[62] It is a basic legal principle that an arbitrator does not have jurisdiction over entities that are not part of the arbitration agreement. The issue is whether the named persons – Mr. Higgins, Mr. Gretton and Fuego Qatar – are in fact part of the arbitration agreement or, in the alternative, whether the tribunal had some indirect authority over these persons.
[63] In my view, all three named persons were related parties as defined in the arbitration decision.[^24] In the case of Mr. Higgins and Mr. Gretton, they were either current or former officers of Fuego Canada. It is not disputed by the Applicant that both Mr. Higgins and Mr. Gretton were the directors, shareholders and primary managers of Fuego Canada at the relevant time. Fuego Qatar was specifically found by the arbitrator to be a related party.[^25] Consequently, although it was possibly not necessary to name them in the injunction, the arbitrator did not exceed his jurisdiction in doing so.
[64] Even if that were not the case, there is jurisprudence supporting the proposition that non-parties can be named in an injunction. In MacMillan Bloedel Ltd. V. Simpson[^26] the Supreme Court of Canada noted:
- The argument that the jurisdiction of the courts is confined to parties named and served in the action rests on the notion that the courts can act only in personam; that is, against named individuals.
The traditional English rule thus appears to be that only named parties can be bound by a court order. While general terminology referring to others may be included in the order, this is done only to capture the idea that the named party – often a corporation – is enjoined from committing the specified act both directly and through the actions of others, such as servants and agents, whom it may direct. The general terminology also serves to provide a warning to third parties who might otherwise implicate themselves in a breach of the order.
- Only parties are “bound” by the injunction. But anyone who disobeys the order or interferes with its purpose may be found to have obstructed the course of justice and hence be found guilty of contempt of court.[^27]
[65] The naming of Mr. Higgins, Mr. Gretton and Fuego Qatar falls squarely within the concept that if they are third parties, they are being notified of the existence of the injunction and, therefore, also being warned not to implicate themselves in a breach of the order.
[66] As a result, the arbitrator did not exceed his jurisdiction in naming these three persons in the injunction.
Conclusion
[67] For all the reasons set out above, I find that the arbitrator did not act unfairly towards the Applicant and there was no denial of natural justice. In addition, the arbitrator did not exceed his jurisdiction.
[68] Consequently, the Arbitral Award of Mr. Michael Erdle issued on July 31, 2017 will not be set aside.
[69] At the Respondent’s request the following additional orders will be made:
• DAC Group (Holdings) Limited is entitled to the recognition and enforcement of the Final Award and the Costs Award;
• This Court recognizes and grants enforcement of the arbitral award made on July 31, 2017 by Arbitrator Michael Erdle and of the arbitral award made on September 29, 2017, by Arbitrator Michael Erdle, awarding DAC Group (Holdings) costs in the amount of $1,532,978.54; and
• The Final Award – Technology and Remedies Issues and the Costs Award shall have the full force and effect of law, as a judgment of this court.
Costs of this Application
[70] The parties should attempt to resolve the issue of costs themselves, however, if the parties cannot resolve the issue of costs, brief written submissions of no more than three pages, with attachments including Offers to Settle and a detailed Bill of Costs, are to be provided with 15 days with a right of reply within a further five days.
Justice J. Parfett
Date: 2018/05/09
COURT FILE NO.: 17-73760
DATE: 2018/05/09
ONTARIO
SUPERIOR COURT OF JUSTICE
RE: Fuego Digital Media Inc. (Applicant)
AND
DAC Group (Holdings) Limited (Respondent)
BEFORE: Justice Julianne Parfett
COUNSEL: Applicant Self-represented
Lawrence G. Theall, Jeffrey Brown, Melissa Wright, Counsel for the Respondent
HEARD: April 10 & 24, 2018
ENDORSEMENT
Justice J. Parfett
Released: 2018/05/09
[^1]: Joint Application Record, vol. 1, tab 2A, p.39.
[^2]: Joint Application Record, vol. 1, tab 2A, p. 40.
[^3]: Joint Application Record, vol. 1, tab 2A, p. 41.
[^4]: Joint Application Record, vol. 1, tab 2A, p. 42.
[^5]: Joint Application Record, vol. 1, tab 2A, p. 51.
[^7]: Mericle v. Basement Systems (Calgary) Inc., 2010 ABQB l37 at paras. 22-24.
[^8]: MacMillan Bloedel Ltd. V. Simpson, 1996 165 (SCC), [1996] 2 SCR 1048 at paras. 25, 26, 27, 29 & 31.
[^9]: S.O. 1991, c. 17.
[^10]: Consolidated Contractors Group S.A.L. (Offshore) v. Ambatovy Minerals S.A., 2017 ONCA 939 at para. 63.
[^11]: United Mexican States v. Cargill Inc., 2011 ONCA 622 at para. 44.
[^12]: Cargill at para. 53.
[^13]: Joint Application Record, vol. 4, tab 9.2, p. 1288.
[^14]: Mericle at para. 23.
[^15]: Joint Application Record, vol. 1, tab 2C, p. 66.
[^16]: Joint Application Record, vol. 1, tab 2A, pp.49-51 [emphasis added].
[^17]: Joint Application Record, vol. 1, tab 2B, p. 59 [emphasis added].
[^18]: Joint Application Record, vol. 1, tab 2C, p. 65 [emphasis added].
[^19]: Joint Application Record, vol. 3, tab 3W, p. 717.
[^20]: Joint Application Record, vol. 3, tab 3X, p. 736
[^21]: Joint Application Record, vol. 2, tab 3H, p. 605.
[^22]: Joint Application Record, vo. 3, tab 3Y, p. 741.
[^23]: Supplementary Compendium of the Respondent, tab 3Z.
[^24]: Joint Application Record, vol. 3, tab 3Y, p. 746.
[^25]: Joint Application Record, vol. 3, tab 3Y, para. 32, p. 755.
[^26]: 1996 165 (SCC), [1996] 2 SCR 1048.
[^27]: At paras. 25 & 27.