COURT FILE NO.: CV-17-572932
DATE: 20190531
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: CUCINA DI PAISANO’S INC., Plaintiff
- and -
PAISANO’S ITALIAN GARDEN CAFÉ CORP., Defendant
BEFORE: Master Todd Robinson
COUNSEL: J. Silver, for the defendant / moving party
E. Mehrabi, for the plaintiff / responding party
HEARD: March 14, 2019
REASONS FOR DECISION
[1] The defendant brings this motion seeking the following relief:
(a) requiring the plaintiff to deliver particulars outlined in a demand for particulars served December 27, 2018 (with scope sought on this motion reduced by amended notice of motion);
(b) compelling the plaintiff to comply with a request to inspect documents served December 27, 2018;
(c) requiring the plaintiff to deliver a further and better affidavit of documents to include documents outlined in Schedule A to the notice of motion or, alternatively, permitting the defendant to cross-examine on the plaintiff’s affidavit of documents;
(d) requiring the plaintiff to “regularize and amend” its statement of claim to properly plead damages (relief added in the amended notice of motion); and
(e) requiring the plaintiff to re-attend an examination for discovery to answer one refusal (relief added in the amended amended notice of motion).
[2] The defendant’s position is that documents referenced in the statement of claim were not produced, which are properly the subject matter of a request to inspect documents, and that the plaintiff is obliged to provide particulars outlined in the demand for particulars, which is predominantly focused on particulars of damages, in furtherance of an intended fresh as amended statement of defence. The defendant further argues that relevant documents were not included in the plaintiff’s affidavit of documents and have not been produced, which are necessary for the court to fully and properly determine the issues and damages in dispute. The defendant’s position is also that the plaintiff improperly refused to answer questions on damages during examination for discovery.
[3] The plaintiff argues that the defendant’s demand for particulars and request to inspect documents are improper, having been delivered after examinations for discoveries, and the plaintiff is accordingly not obliged to respond to them. The plaintiff also argues that the nature of its damages claim is such that expert evidence, which is said to be pending, is required both to understand the scope of relevant damages documents and to determine quantification of damages. Accordingly, the plaintiff feels that non-production of documents relevant to its damages claim and refusal to answer questions regarding damages are reasonable and justified in the circumstances.
[4] For the reasons that follow, I find that there is merit in the positions of both parties. Accordingly, I am granting portions of the motion while dismissing other portions. The potential for divided success on this motion is why I encouraged counsel for the parties to discuss a practical consent resolution prior to commencement of the hearing. Consent was not reached, so the hearing proceeded. Having now heard and considered the fulsome arguments of counsel for both parties, the just result is, in my view, one of divided success.
Background
[5] This action arises from a dispute between the parties over trademark infringement and alleged passing off by the defendant of the plaintiff’s trademark and logo. The defendant is alleged to have opened a similar competing Italian restaurant using the business name of a former restaurant assigned to the plaintiff, a similar logo, a similar telephone number, and copy of the plaintiff’s website. The defendant is alleged to have improperly profited from its conduct while causing losses and damages to the plaintiff. The defendant disputes all such allegations.
[6] A discovery plan was agreed by the parties in November 2017. It is quite general, but it includes the following agreement:
Scope of Documentary Evidence
Every document relevant to any matter in issue in this action that is or has been in the possession, control or power of a party to this action shall be disclosed as provided in Rules 30.03 to 30.10.
Every document relevant to any matter in issue in this action that is in the possession, control or power of a party to this action shall be produced for inspection if requested, as provided in Rules 30.03 to 30.10.
[7] On August 13, 2018, representatives of the parties were examined for discovery. Ravi Kanagasabai was examined on behalf of the plaintiff. In the course of that examination, the following refusal was given, which is the only refusal at issue on this motion:
- Q. […] Did you suffer any damages as a result of these problems?
MR. MEHRABI: Don’t answer that question. It’s clear that our position regarding damages is to be calculated prior to the trial. We certainly have a number of incurred damages, but the quantum we are still out on the scurry, so we have to get expert reports, etc., etc. to get those.
MR. BOYKO: As of this point, you don't have any handle on what damages this company has incurred because of this activity?
MR. MEHRABI: We don’t have quantums, no.
[8] A further exchange followed between Mr. Boyko and Mr. Mehrabi, which then transitioned into questions about the assignment of the trademark.
[9] Subsequent to the examination, by decision of the Law Society Tribunal released December 12, 2018, defendant’s counsel was suspended for 2.5 months effective December 15, 2018. The defendant retained its current counsel in December 2018, who thereafter delivered a request to inspect 20 documents purportedly referenced in the statement of claim. Defendant’s counsel also separately served a demand for particulars.
[10] On January 2, 2019, plaintiff’s counsel responded to service of the request to inspect documents and demand for particulars by email challenging their appropriateness. Nevertheless, by letter dated January 14, 2019, plaintiff’s counsel provided responses to the request to inspect documents and made certain requests for clarifications. The plaintiff maintained that the demand for particulars was improper, citing Olendzki v. W.A. Baker Trucking Ltd., 2006 CanLII 1673 (ON SCJ), which is a decision relied upon by the plaintiff in opposing this motion.
[11] The defendant thereafter brought this motion by serving its notice of motion dated February 21, 2019. Plaintiff’s counsel quickly responded to the notice of motion requesting confirmation that time had been reserved with the court for a previously raised cross-motion on the defendant’s undertakings and for a timetable. Plaintiff’s counsel also sought clarification of the relevance of financial documents for which the defendant seeks a production order on this motion. On the record before me, it does not appear that there has been any request for production of the broad range of financial documents, including the plaintiff’s corporate income tax returns, financial statements, general accounting ledgers and banking records spanning a two year period, prior to service of the notice of motion. A short response was provided by defendant’s counsel indicating that the financial records are “necessary to prove [the plaintiff’s] alleged damages”. Plaintiff’s counsel replied with a proposal that the plaintiff’s production of records relevant to its damages be deferred until experts had been retained. The defendant was not prepared to defer.
[12] Motion materials, which included the defendant’s amended notice of motion, were served on March 4, 2019. The amended amended notice of motion was subsequently late-served on March 6, 2019. Responding materials were served on March 8, 2019, including a notice of cross-motion. However, as the plaintiff’s cross-motion had not been booked, the court would not accept filing of a cross-motion. The notice of cross-motion was accordingly removed from the responding record.
[13] At the hearing, plaintiff’s counsel asked that I hear the cross-motion. I declined to do so on the basis that it had not been properly booked and, in any event, the notice of cross-motion had been short-served on the defendant leaving inadequate opportunity to prepare and deliver responding materials to the cross-motion. In my view, the outcome of the defendant’s motion does not impact the outcome of the plaintiff’s motion, and vice versa, so it was not necessary that they be heard concurrently. I accordingly directed that the plaintiff should separately bring its own motion, properly booked with the court and served in accordance with the Rules of Civil Procedure, RRO 1990, Reg 194 (the “Rules”).
Demand for Particulars
[14] The plaintiff is correct that a demand for particulars after discoveries is procedurally improper. A demand for particulars, and any motion for particulars, must precede a party delivering its pleading: Olendzki, supra at para. 20.
[15] In simple terms, subject to determinations on refusals, the defendant’s examination for discovery of the plaintiff permitted a full opportunity to examine the plaintiff on the particulars of its claim. Although new counsel now represents the defendant, and was not counsel at the time of discoveries, that makes no difference. If prior counsel did not examine on certain particulars that new counsel feels are required, it is not for the court to fix a defective examination. As the demand for particulars is procedurally improper at this stage of the proceeding, I accordingly need not further review the specific demands on which the defendant moves.
[16] Despite being made aware of Olendzki prior to the motion hearing, defendant’s counsel still argued that the demand for particulars was nevertheless procedurally proper at this stage. No case law directly contradicting Olendzki was provided. That decision is binding on me. It was also submitted that moving on the demand for particulars was rendered moot given that relief is sought regarding the refusal by plaintiff’s counsel on damages questions. However, that relief was not sought until service of the amended amended notice of motion. While the late addition of relief regarding the refusal may well provide a new avenue to the defendant obtaining the particulars sought, it does not change the defendant’s argued position that its demand for particulars was proper, which I have found is incorrect.
Request to Inspect
[17] Unlike the demand for particulars, I am not in agreement with the plaintiff’s position that it is procedurally improper to serve a request to inspect documents after discoveries where that request seeks to inspect documents referenced in the statement of claim that have not been produced. The failure of a party to produce a relevant document is distinct from the failure of examining counsel to ask questions during an examination. A party’s obligation to produce relevant documents is not conditional on being asked for them before or during examination for discovery.
[18] Whether compelling compliance with the defendant’s request to inspect, granting the defendant’s motion for a further and better affidavit of documents to include the referenced documents, or enforcing the discovery plan agreed by the plaintiff to produce for inspection a relevant document in its possession, control or power, the defendant is entitled to see and assess documents referenced in the statement of claim that are within the plaintiff’s possession, control or power and that have not been produced. There is, however, a dispute regarding whether or not specific documents are, in fact, referenced in the paragraphs cited by the defendant.
[19] Certain requests outlined the request to inspect documents have been resolved or withdrawn. The defendant moves on item nos. 3, 4, 5, 6, 7 and 8 in its request to inspect documents (located at Tab 3 of the responding motion record). In particular, those are as follows:
(a) No. 3: The unique recipes and menu referred to in paragraph 9 of the statement of claim;
(b) No. 4: The assignment referred to in paragraph 12 of the statement of claim;
(c) No. 5: The application for the trade mark referred to in paragraph 13 of the statement of claim;
(d) No. 6: The logo referred to in paragraph 13 of the statement of claim;
(e) No. 7: The trade mark application referred to in paragraph 14 of the statement of claim; and
(f) No. 8: The advertisements on the plaintiff’s website referred to in paragraph 15 of the statement of claim.
Unique Recipes and Menu Items
[20] Item no. 3 relates to paragraph 9 of the statement of claim. That paragraph reads as follows:
- 140 and its predecessor have developed a valuable and substantial goodwill in association with the name Paisano in Toronto and in the Greater Toronto Area in offering services in eat in, take out and catering of the Italian style food with their unique recipes and menu items.
[21] I do not accept the plaintiff’s submission that “unique recipes and menu items” referenced in paragraph 9 of the statement of claim are a specific document that should be ordered to be produced. Also, in my view, “unique recipes and menu items” are not relevant to any matter in dispute based on the pleadings.
[22] Defendant’s counsel urged me to find that the statement could only mean that “unique recipes and menu items” were referenced because they are proprietary to the plaintiff, although it is not specifically stated in the paragraph or elsewhere in the pleading. “140” above refers to 1407632 Ontario Inc., which is the assignee to the plaintiff of the subject trademark. The pleading does not allege that the referenced “unique recipes and menu items” are those of the plaintiff (although it may factually be the case).
[23] Counsel cited paragraphs 1(j)(i) and 25 of the statement of claim in support of the defendant’s interpretation, which respectively claim an injunction against the defendant dealing with “food products” and state that the defendant promoted recipes that did not originate from it. I was directed to no other pleading references. The defendant’s position is that the “unique recipes and menu items” are being alleged by the plaintiff to be proprietary and stolen by the defendant. The plaintiff does not dispute relevance, but rather is refusing to produce them on the basis of trade secrets. That submission appears to me to be incorrect. The plaintiff disputes relevance and also raises concerns about producing its proprietary recipes.
[24] Regardless of whether or not the referenced “unique recipes and menu items” are, in fact, proprietary to the plaintiff, I do not agree that the pleadings support relevance of any recipes. In particular, I do not agree that the pleadings address use, copying or misappropriation by the defendant of specific “unique recipes and menu items.” In my view, the reference to “unique recipes and menu items” at paragraph 9 of the statement of claim is nothing more than a general statement, rather than specifically referenced documents relevant to the matters in issue that should be produced for inspection.
[25] I am bolstered in my view by the fact that the entire transcript from the plaintiff’s examination for discovery was included in the responding motion materials, but defendant’s counsel did not point me to any evidence obtained to suggest that stolen, copied or confusingly similar recipes are a disputed issue in this litigation. I am loathe to order production of the plaintiff’s proprietary recipes to its competitor in the absence of clear relevance to a disputed issue, which I do not find in the pleadings and cannot find on the evidence filed.
Assignment Agreement & Advertisement
[26] By letter dated January 14, 2019, plaintiff’s counsel advised that the assignment agreement (item no. 4 above) would be provided “along with everything else once we have the [undertakings] list”. There is no evidence filed explaining why the assignment agreement has not already been produced or made available for inspection, or why that cannot be done.
[27] Subsequent to service of the notice of motion, plaintiff’s counsel confirmed that the advertisement referenced in item no. 8 above (correlating to item (g) in Schedule A to the notice of motion) would be produced “shortly”. Similar to the assignment agreement, there is no evidence explaining why it has not already been produced or made available for inspection, or why that cannot be done. Plaintiff’s counsel sought to provide an explanation during oral submissions by advising that he was unsure if the advertisement is a document within the possession, control or power of his client. That is not in evidence, and it is improper for evidence to be given via counsel’s submissions during a motion hearing.
[28] There is no evidence tendered that the documents in item nos. 4 and 8 do not exist or cannot be produced. They are relevant based on the pleadings. Plaintiff’s counsel previously confirmed they would be produced. It is accordingly appropriate to order that they be produced for inspection or, if they cannot now be produced, that a detailed explanation be provided outlining the particulars of when, where and how the documents ceased to be in the possession, control or power of the plaintiff.
Trademark Documents
[29] Regarding item nos. 5, 6 and 7, the only response given to the defendant was to send URL address links to trademark applications. Plaintiff’s counsel explained that information is only available online, that all the plaintiff would have received is an electronic receipt, and that the URL links provided were checked before they were sent and do work. Although that explanation may be accurate, it is not in the evidence filed. There is no evidence before me on which I can find that the plaintiff has or does not have documents relevant to its trademark applications or the logo. I accordingly find it appropriate to order that the plaintiff produce for inspection any documents in its possession, control or power relevant to item nos. 5, 6, and 7 or, if the plaintiff maintains its position that there are no such documents, that a detailed explanation be provided outlining why it has no documents, the particulars of what documents were previously in its possession, control or power, and when, where and how such documents ceased to be in the possession, control or power of the plaintiff.
Re-attendance for Examination on Refusal
[30] In addition to the defendant’s complaints that no production of documents relevant to damages has been made, the defendant also objects to the propriety of the plaintiff’s refusal to answer damages questions during the plaintiff’s examination for discovery. During oral submissions, plaintiff’s counsel suggested that he did not refuse questions posed to his client’s representative on damages, but only “clarified” that quantification of damages was not yet possible.
[31] The relevant extract from the transcript is at paragraph 7 above. The question asked was simple and straightforward: “Did you suffer any damages as a result of these problems?” The response was unequivocal: “Don't answer that question. It’s clear that our position regarding damages is to be calculated prior to the trial.”
[32] In my view, a reasonable opposing counsel would have understood the response as an outright refusal to answer any questions on damages. “Don’t answer that question” is clearly a refusal. Even taking into consideration the subsequent statements and exchange between counsel, I find it difficult to view the overall response as something other than a refusal, particularly given the generality of the question. I find it was reasonable for then-defendant’s counsel to accept the refusal and proceed with another line of questioning, as was apparently done.
[33] The plaintiff’s position, as stated during the discovery (outlined above) and on this motion, is that expert evidence is required to quantify and particularize the damages asserted in the claim. Plaintiff’s counsel submitted that an expert is required to determine what documents will actually be needed (and thereby what documents are relevant) to quantify the actual losses of the plaintiff. The position and arguments of the plaintiff regarding the need for expert evidence are not unreasonable and do have a certain logic. I accept that expert evidence will likely be required in order for the plaintiff to substantiate its damages claim. However, that does not make the refusal to answer questions on damages proper or justified.
[34] Plaintiff’s counsel does not dispute the question was fair, but rather takes the position that, pursuant to Rule 25.06(9)(b) of the Rules, the plaintiff is not required to provide particulars of its damages until known and, in any event, not later than 10 days before trial. The plaintiff relies on Olendzki, supra, at para. 20 and Meneses v. Da-Silva, 1997 CanLII 12209 (ON SC), [1997] OJ No 5042 (SCJ) at para. 13, both of which reiterate the language of Rule 25.06(9). The defendant argues that Rule 25.06(9)(b) only deals with special damages, and that the plaintiff is conflating general damages with special damages, but in any event points to the finding in Meneses that the plaintiff in that case had complied with the Rules by making ongoing disclosure of documents relevant to calculating losses.
[35] I need not engage in any assessment of the heads of damages claimed by the plaintiff and whether they are general or special damages. In either case, I do not accept the plaintiff’s position that a need for expert quantification somehow disentitles the defendant from exploring the extent to which the plaintiff is aware of particulars of its damages. Plaintiff’s counsel conceded during oral submissions that the plaintiff’s representative should be able to answer questions on the nature of damages suffered as a result of the trademark infringement and alleged passing off. It is clearly relevant based on the pleadings. There appears no valid or justified basis for having refused to allow the plaintiff’s representative to answer damages-related questions.
[36] In my view, the defendant is entitled to an order requiring that the plaintiff’s representative re-attend to answer questions with respect to damages. The timing of that re-examination, though, must be proportionate and in accordance with the principles of Rules 1.04 and 29.2.03 of the Rules. If the plaintiff does deliver expert evidence on damages, the substance of that report will better inform a discovery on damages and make a re-attendance more meaningful in the overall litigation. I am concerned that, if I order an immediate re-examination of the plaintiff, prior to delivery of the expert report, an additional re-examination will only be sought after the report is delivered. If an expert report is forthcoming, that would be neither efficient nor proportionate to the orderly progress of the overall action, as it could well lead to three examinations of the plaintiff. There is no evidence or argument of any prejudice to the defendant from deferring examination on damages. However, the plaintiff’s refusal of a proper question cannot be ignored, and the defendant’s right to examine on damages should not be deferred without some certainty as to its timing.
[37] Accordingly, taking in the account the amount of time the plaintiff has already had to quantify its damages claim, I find it just to defer re-examination of the plaintiff for 60 days from the date of these reasons, after which time the defendant shall be at liberty to compel the plaintiff to a re-examination on the issue of damages, regardless of whether or not an expert report has been delivered. To be clear, though, this re-examination shall be limited to the issue of the plaintiff’s damages and is not an opportunity for the defendant to examine on other issues that prior counsel already had the opportunity to examine upon.
Further and Better Affidavit of Documents
[38] The defendant also seeks an order compelling the plaintiff to provide a further and better affidavit of documents that includes the following documents:
(a) income tax returns for 2017 and 2018;
(b) financial statements for 2017 and 2018;
(c) general accounting ledger for 2017 and 2018;
(d) banking records for 2017 and 2018;
(e) unique recipes referenced in paragraph 9 of statement of claim;
(f) the assignment from 1407632 Ontario Inc. to the plaintiff referenced in paragraph 12 of the statement of claim;
(g) the trade mark application for Paisano’s referenced in paragraph 14 of the statement of claim;
(h) the advertisements of the plaintiff regarding moving to its new location referenced in paragraph 15 of the statement of claim; and
(i) any documents ordered produced pursuant to the request to inspect documents.
[39] In the alternative, the defendant seeks leave to cross-examine on the plaintiff’s affidavit of documents. I deal with that alternative relief first. There is no basis for such an order in the circumstances of this case, where the defendant has already completed its examination for discovery of the plaintiff. The defendant ought to have addressed potentially missing relevant documents during its examination of the plaintiff. The defendant has provided no case law speaking to the circumstances in which a cross-examination on an affidavit of documents following examinations for discovery would be appropriate. I see no reason or basis to order it here.
[40] For reasons below, though, a further and better affidavit of documents should be ordered from the plaintiff that includes some, but not all, of the documents sought.
[41] Items (e), (f), (g) and (h) in paragraph 38 above correlate, respectively, to nos. 3, 4, 7 and 8 in the request to inspect documents. I have already addressed those above. Item (e) need not be produced for inspection, as outlined above, so need not be included in any further and better affidavit of documents. Items (f), (g) and (h) are appropriately included in a further and better affidavit of documents, as well as those additional documents ordered to be produced for inspection above.
[42] Regarding items (a) and (d), defendant’s counsel conceded in oral argument that the requested production was overly broad, subject to what is produced regarding damages. I am not satisfied that the plaintiff’s income tax returns and banking records are relevant based on the pleadings. No evidence was tendered and no compelling argument was made for why they would be reasonably necessary for the defendant to assess the plaintiff’s damages. The plaintiff accordingly need not produce them. If particulars of the plaintiff’s damages that are subsequently provided or obtained by examination support relevance of income tax returns and banking statements, the defendant may move again at that time, on further evidence, if agreement cannot be reached regarding production.
[43] Regarding items (b) and (c), by letter dated February 21, 2019, plaintiff’s counsel confirmed that damages include lost sales from the alleged passing off. I agree that sales records are relevant, and those figures would reasonably be found in financial statements and general accounting ledgers. Both in correspondence dated February 27, 2019 and before me, plaintiff’s counsel rightly conceded that the financial statements and ledgers will contain relevant sales information. There is nothing in the record before me to suggest that the plaintiff’s sales records have been produced. However, it is not clear that the entirety of the plaintiff’s financial statements and general ledgers will be relevant. I am mindful that the defendant is a direct competitor of the plaintiff, and ordering production of financial information without condition may be unduly prejudicial to the plaintiff.
[44] The plaintiff shall accordingly include financial statements and general ledgers with respect to sales figures for 2017 and 2018 in a further and better affidavit of documents, but may redact those portions of the financial statements and general ledgers that the plaintiff asserts are not relevant and commercially sensitive. If the plaintiff does redact, then the plaintiff shall identify the specific basis for redaction and provide general information regarding what has been redacted to allow the defendant to consider its own position on relevance. The defendant may examine the plaintiff regarding the redactions during the above-ordered re-examination.
Regularization of the Statement of Claim
[45] It is unclear on what rule the defendant is relying in seeking an order that the plaintiff “regularize and amend” its statement of claim. While defendant’s counsel cited non-compliance with Rule 25.06 and argued a need for the plaintiff to “regularize” its claim, no provision of that rule provides jurisdiction for the court to make such an order. The defendant has not moved pursuant to Rule 25.11 to strike out or expunge a portion of the claim, and no case law authority was provided for the court granting a defendant’s motion to compel a plaintiff to amend its statement of claim. I accordingly dismiss this portion of the defendant’s motion.
Orders
[46] I accordingly order as follows:
(a) The defendant’s motion is dismissed insofar as the orders sought compelling answers to its demand for particulars dated December 27, 2018, compelling production for inspection of “unique recipes and menu items”, compelling the plaintiff’s income tax returns and banking records for 2017 and 2018, granting leave to cross-examine on the plaintiff’s affidavit of documents, and compelling the plaintiff to regularize and amend its statement of claim is dismissed.
(b) The plaintiff shall produce for inspection, to the extent that they are within the possession control or power of the plaintiff, the assignment agreement, advertisement, logo and trademark documents identified at item nos. 4, 6, 5, 7 and 8 of the defendant’s request to inspect documents within thirty (30) days of this order.
(c) Upon written request of the defendant, the plaintiff’s representative shall produce himself to be re-examined on the issue of damages for no more than two (2) hours on a date not less than sixty (60) days from the date of these reasons. The re-examination shall be on a date within thirty (30) days of the defendant’s request as agreed by counsel for the parties acting reasonably or, if the parties cannot agree, on a date selected by the defendant on no less than ten (10) days’ notice to the plaintiff served in accordance with the Rules. The plaintiff shall bear the cost of the reporter. Legal costs of the re-examination shall be reserved to determination of the trial judge.
(d) The plaintiff shall deliver a further and better affidavit of documents including the documents ordered in (b) above and financial statements and general ledgers with respect to sales figures for 2017 and 2018, within thirty (30) days. If the plaintiff redacts any portions of the financial statements and general ledgers, then the plaintiff shall identify the specific basis for redaction and provide general information regarding what has been redacted with delivery of the further and better affidavit of documents.
(e) This order is effective without further formality.
Costs
[47] In determining costs of the motion, I have considered the principles applicable to costs as outlined in Rule 57.01 of the Rules and the decision in Boucher v. Public Accountants Council for the Province of Ontario, 2004 CanLII 14579 (ON CA), [2004] OJ No 2634 (CA).
[48] The outcome is one of divided success. The defendant was successful on many of its heads of relief, but also unsuccessful on many others. I have also considered the conduct of the parties. In my view, this motion should not have been necessary at all. Had both parties focussed less on the position of the other party and more on being reasonable, practical and complying with their own obligations under the Rules, the motion may have been avoided entirely. Arguing an opposed motion dealing with matters that the parties themselves should have been able to resolve without a need for court intervention was, in my view, proceeding in the least practical, most expensive and least expeditious fashion, contrary to Rule 1.04. The record before me includes letters from both parties’ counsel requesting discussions that appear to have been ignored or rejected, promises to produce documents that were not produced, and generally putting technical legal positions ahead of practicality. My orders herein will require the parties to take the practical steps that they themselves should have agreed to take.
[49] For these reasons, I find that it is fair and just that each party bear its own costs.
MASTER TODD ROBINSON
DATE: May 31, 2019