COURT FILE NO.: CV-17-577635

DATE: 20190128

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

Gordon Walsh, Robin Skeates, Ruby Griffith and Andre Avigdor

Plaintiffs

– and –

Tahira Badin and Tania Sleem

Defendants

Timothy Duggan, for the Plaintiffs

Dan Rosman, for the Defendants

HEARD: August 7, 2018

NISHIKAWA j.

Overview

1The parties all reside in a condominium building at 70 Pavane Linkway (the “Condominium”). There has been ongoing conflict and acrimony among some of the residents and members of the board of directors (the “Board”) of the condominium corporation, York Condominium Corporation No. 78 (“YCC 78”). Board elections have been contentious and marred by aggressive negative campaigns, allegations of interference with proxies, and litigation.

2The Plaintiffs commenced an action for defamation against the Defendants for statements made in three anonymous letters that were distributed to Condominium residents in 2016 and 2017. The Defendants bring this motion to dismiss the action pursuant to s. 137.1(3) of the Courts of Justice Act, R.S.O. 1990, c. C.43 (the “CJA”). Sections 137.1 to 137.5 of the CJA, introduced by the Protection of Public Participation Act, 2015, S.O. 2015 c. 23, are commonly referred to as anti-SLAPP (Strategic Lawsuit Against Public Participation) provisions. The provisions “are intended to promote free expression on matters of public interest by discouraging and reducing the risk that litigation would be used to unduly limit such expression”: 704604 Ontario Ltd. v. Pointes Protection Association, 2018 ONCA 685, at para. 37.

3This motion was heard before the Court of Appeal rendered its decisions in six cases involving the anti-SLAPP provisions. See: Pointes Protection; Fortress Real Developments Inc. v. Rabidoux, 2018 ONCA 686; Platnick v. Bent, 2018 ONCA 687; Veneruzzo v. Storey, 2018 ONCA 688; Armstrong v. Corus Entertainment Inc., 2018 ONCA 689; Able Translations Ltd. v. Express international Translations Inc., 2018 ONCA 690. After the decisions of the Court of Appeal, I provided counsel for the parties with an opportunity to make further submissions in writing, which I have also considered.

4For the reasons that follow, I dismiss the Defendants’ motion to dismiss pursuant to s. 137.1(3) of the CJA but grant the Defendants’ motion to strike portions of the Statement of Claim.

Factual Background

The Parties

5The Condominium has 288 residential units and approximately 1000 residents.

6The Plaintiff, Gordon Walsh, owns a unit in the Condominium. He was president of the Board from 2005 to 2016. The Plaintiff, Robin Skeates, is a unit owner and former director. The Plaintiff, Ruby Griffith, is a unit owner and current director. The Plaintiff, Andre Avigdor, is a resident of the Condominium. Mr. Avigdor ran for election to the Board in 2017 but was not elected.

7The Defendant, Tahira Badin, lives with her family in a unit owned by her spouse, Mohammed Badin. Ms. Badin has never been a director, but campaigned for various candidates including, at one time, Mr. Walsh. Ms. Sleem is a unit owner and resident of the Condominium.

History of Litigation

8As noted at the outset, the relationship among various residents and Board members has been antagonistic and litigious. I will describe the past proceedings and events only to the extent necessary to provide relevant background to the current circumstances.

9In 2013, YCC 78, Mr. Walsh, and Ms. Griffith commenced a defamation action against a resident of the Condominium, Parveen Akther, who had unsuccessfully run for election to the Board (the “2013 Action”). The plaintiffs alleged that Ms. Akther wrote and distributed an anonymous letter stating that Mr. Walsh and Ms. Griffith were taking money from the Condominium’s funds and that Mr. Walsh was receiving kickbacks on contracts. The plaintiffs obtained default judgment for $13,000 against Ms. Akther, who failed to defend. Brown J. dismissed a motion to set aside the default judgment: York Condominium Corporation No. 78 v. Akther, 2015 ONSC 3003. The Board communicated the decision in a letter updating residents and stated that “the Court pronounced its verdict on this owner: guilty! And also assigned the owner $15,000 in damages. To date, all the court orders and findings have also been ignored with silence from the owner; so unfortunately, this matter is now in the process of moving forward to the criminal courts.” The litigation was referred to again, in a subsequent Board letter. Once the judgment was paid, the Board posted a copy of the cheque on the Condo bulletin board.

10In 2015, YCC 78 commenced an application against Ms. Badin and Mr. Badin alleging that they interfered in the Condominium’s Annual General Meeting (“AGM”) by submitting false proxies. The application was dismissed by Pollak J., due to insufficient proof that the proceeding was properly authorized pursuant to the Condominium Act.

11In March 2016, Ms. Badin laid a private information seeking a peace bond against Julian Beqiri, an employee of the property management company that was managing the Condominium. The property management company then terminated its management of YCC 78. In June 2016, the Crown withdrew the private information on the basis that Ms. Badin was using the criminal justice system to “get some kind of relief that she has thus far been denied in the civil system...”

12In August 2016, YCC 78 and the Plaintiffs in this proceeding commenced a defamation action against Mr. and Ms. Badin (the “2016 Action”). The Plaintiffs alleged that on or around June 30, 2016, Ms. Badin and another resident, Joanna Stein, distributed two defamatory anonymous letters to residents of the Condominium (the “2016 Letters”). When it notified the residents of the 2016 Action, the Board communicated to residents that it had “hard evidence” that the letters were written by Ms. Badin and Ms. Stein. Ms. Stein was not named as a defendant in the 2016 Action or in this proceeding.

13The Plaintiffs’ claim for defamation in this proceeding is also based on the 2016 Letters, which are described further below. After the election of a new board of directors, YCC 78 brought a motion to discontinue the 2016 Action, which was granted on May 24, 2018. At the hearing of this motion, I was advised that the individual Plaintiffs discontinued the 2016 Action in August 2018. As a result, there is no need to consider the Defendants’ motion to strike the Statement of Claim under r. 21.01(3)(c) as duplicative of a pending proceeding.

The Defamatory Statements

14The Plaintiffs commenced this action for defamation in relation to the 2016 Letters (attached at Appendix ‘A’ to these reasons) and an additional anonymous letter sent on or about May 11, 2017 (the “2017 Letter”, attached as Appendix ‘B’ to these reasons).

15The 2016 Letters are lengthy and make numerous, broad-ranging allegations against the Plaintiffs. In summary, the 2016 Letters allege that:

• The Plaintiffs have been taking funds from YCC 78;

• The Plaintiffs have been receiving kickbacks from contractors;

• The Board denied unit owners access to the records of YCC 78;

• The Plaintiffs interfered with Board elections;

• The Plaintiffs withheld information relating to other lawsuits and settlements; and

• The Board signed inflated contracts;

16A number of allegations pertain to Mr. Walsh specifically, including:

• Lying, cheating, and sending out improper proxy forms and instructions;

• Engaging in criminal activity;

• Keeping pictures of minor children from security cameras;

• Using condo funds to promote his own business; and

• Calling him a “pathological liar.”

17The 2017 Letter makes the following allegations:

• Robin Skeates used condominium funds to upgrade his unit;

• The Plaintiffs failed to tender contracts when the were on the Board;

• The Plaintiffs cheated owners out of $500/unit on a contract for a generator;

• The Plaintiffs ran up deficits due to lawsuits and settlements and hid this from unit owners;

• That “Andrea,” referring to Andre Avigdor, “almost punched” members of the current Board;

• That Robin Skeates and Ruby Griffith revealed confidential Board discussions to Mr. Walsh; and

• The Plaintiffs acted dishonestly and in bad faith, including colluding with the management company to conceal their conduct.

18The statements made in the 2016 Letters and the 2017 Letter (together, the “Statements”) allege corruption and dishonesty generally by the Plaintiffs, and a failure to act honestly and in good faith in accordance with their statutory obligations as directors.

19The Defendants deny any involvement in the drafting or distribution of the 2016 Letters and the 2017 Letter. The Plaintiffs rely upon still photographs taken from a surveillance video-recording that they claim shows the Defendants distributing the letters.

20Ms. Badin alleges that she too has been the target of anonymous letters and threats. The Defendants’ motion record included anonymous letters that said she was a “welfare cheater” and had engaged in mortgage fraud. On one of the letters, someone had written “Stop Campaigning Pitch Badin or you will die soon!!” Ms. Badin filed a police report because of this letter. It is not clear who wrote the letters or the handwritten notation.

Issues

21The issues raised in this motion are as follows:

(a) Have the Defendants satisfied this court that this proceeding arises from an expression made by them that relates to a matter of public interest?

(b) If so, have the Plaintiffs demonstrated that the proceeding has substantial merit and that the Defendants’ have no valid defence in the proceeding?

(c) Does the public interest in permitting the proceeding to continue outweigh the public interest in protecting freedom of expression pursuant to s. 137.1(3) of the Act?

(d) Should certain portions of the Plaintiffs’ Statement of Claim be struck pursuant to r. 25.11?

Analysis

The Purpose of s. 137.1 of the Courts of Justice Act

22The purpose of s. 137.1 of the Act is articulated in s. 137.1(1):

a. to encourage individuals to express themselves on matters of public interest;

b. to promote broad participation in debates on matters of public interest;

c. to discourage the use of litigation as a means of unduly limiting expression on matters of public interest; and

d. to reduce the risk that participation by the public in debates on matters of public interest will be hampered by fear of legal action.

23In Pointes Protection, the Court of Appeal stated that the purpose of the legislation is “to prevent the use of litigation to ‘gag’ those who would speak out or who have spoken out on matters of public interest” (at para. 35).

24To achieve its purpose, s. 137.1(1) creates a new pre-trial remedy that permits a defendant to move at any time after the proceeding is commenced for an order dismissing the proceeding. The defendant must demonstrate that the proceeding arises from an expression that relates to a matter of public interest. In order to strike a balance between preventing abusive litigation and allowing legitimate actions, the plaintiff must clear the “merits hurdle” by satisfying the motion judge that the proceeding has substantial merit and that the defendant has no valid defence. Once the merits hurdle is cleared, the plaintiff must also show that the harm suffered is sufficiently serious that the public interest in permitting the proceeding to continue outweighs the public interest in protecting the expression: Pointes Protection, at para. 42.

Does An Expression Made by the Defendants Relate to a Matter of Public Interest?

25Subsection 137.1(3) states that a judge “shall, subject to subsection (4), dismiss the proceeding against the person if the person satisfies the judge that the proceeding arises from an expression made by the person that relates to a matter of public interest.” In Pointes Protection, the Court of Appeal held that under s. 137.1(3), the defendant bears the onus of satisfying the motion judge on a balance of probabilities that: (i) the proceedings arise from an expression made by the defendant, and (ii) the expression relates to a matter of public interest: Pointes Protection, at para. 51. The Court of Appeal further stated: “[a] motion judge reviewing the claim should have little difficulty deciding whether the defendant has established that a claim arises from an expression made by the defendant. Only those claims are subject to s. 137.1.” (at para. 52)

26In this case, the Defendants deny drafting or distributing the 2016 Letters and the 2017 Letter. Both maintained on cross-examination that they did not make the Statements at issue. The Defendants dispute the accuracy of the photographs that the Plaintiffs claim show them delivering the letters, and have declined the Plaintiffs’ offer to view the video recordings.

27The Court of Appeal has determined that a defendant must demonstrate on a balance of probabilities that the proceeding arises from an expression made by the defendant. A defendant cannot both demonstrate that the proceeding arises from an expression made by them and deny making the expression. A defendant who brings a motion to dismiss under s. 137.1(3) must therefore be prepared to admit making the impugned expression. In this case, the Defendants cannot demonstrate on a balance of probabilities that the proceeding arises from an expression made by them because they deny having made the Statements.

28I do not accept the Defendants’ argument that they should be able to bring a motion to dismiss under s. 137.1(3) while maintaining in the alternative that they did not make the Statements. The language of s. 137.1(3) specifically states that the court shall dismiss the proceeding if the person satisfies the judge that the proceeding arises from an expression “made by the person…” To interpret the provision in the manner suggested by the Defendants would render the words “made by the person” superfluous. Based on the principles of statutory interpretation, such an interpretation is to be avoided.

29Moreover, to allow the Defendants to seek the protection of s. 137.1(3) while denying that they made the Statements strikes me as inconsistent with the purpose of s. 137.1. Section 137.1 encourages individuals to speak out and participate in debates on matters of public interest free from the fear of being sued. It would be contrary to the purpose of the provision to interpret it to allow individuals to make potentially defamatory statements anonymously and then avail themselves of the protection of the provision. To some extent, the fact that the provision protects a defendant from suit presupposes that they are identifiable and at risk of being sued. This is not to say that an anonymous statement can never relate to a matter of public interest. There may be legitimate reasons for making a statement anonymously that should not necessarily preclude a person from relying upon s. 137.1(3). However, a person should not be able to avail themselves of the protection of s. 137.1(3), unless they have identified themselves or acknowledge making the statement at issue.

30Since the Defendants have failed to meet the first part of the two-part inquiry under s. 137.1(3), their motion must fail. For the sake of completeness and in the event that I am mistaken in my interpretation of s. 137.1(3), I will consider the second part of the test under s. 137.1(3), which requires that the Defendants demonstrate that the expression relates to a matter of public interest.

31In Pointes Protection, the Court of Appeal considered the phrase “public interest” in s. 137.1(3) and noted that it is not defined or qualified in any way. The Court of Appeal determined that “public interest” in s. 137.1(3) should be read broadly in order to be consistent with the purposes described in s. 137.1(1): Pointes Protection, at para. 57. The public interest is determined by asking what the expression is about or what does it pertain to: Pointes Protection, at para. 54.

32The Court of Appeal, relying upon the Supreme Court of Canada’s decision in Grant v. Torstar Corp., 2009 SCC 61, articulated the following principles in relation to the public interest:

• A matter of public interest must be distinguished from a matter about which the public is merely curious or has a prurient interest;

• An expression can relate to a matter of public interest without engaging the interest of the entire community, or even a substantial part of the community. It is enough that some segment of the community would have a genuine interest in the subject matter of the expression;

• Public interest does not turn on the size of the audience;

• The characterization of the expression as a matter of public interest will usually be made by reference to the circumstances as they existed when the expression was made;

• The concept of “public interest” as it is used in s. 137.1(3) does not take into account the merits or manner of the expression, nor the motive of the author;

• The determination of whether an expression relates to a matter of public interest must be made objectively, having regard to the context in which the expression was made and the entirety of the relevant communication.

Pointes Protection at paras. 61-65.

33In Pointes Protection, the Court of Appeal held that at the first stage of the test, “public interest” is interpreted broadly, and the “quality, merits or manner” of the statement is not considered, as long as it relates to a matter of public interest. It does not matter that the statement is false, harmful, or intemperate (at para. 55). This is only considered at the next stage of the analysis, when assessing whether the public interest in permitting the proceeding to continue outweighs the public interest in protecting the expression at issue.

34In this case, the Defendants submit that the Statements pertain to the fitness of Board members, their conduct as Board members, and the functioning of the Board. They argue that these issues are important to unit owners. They characterize the letters as “campaign literature” addressing Board and Condominium business and politics. The Defendants submit that as a community of approximately 1000 residents, the Condominium is the size of some small towns.

35In a similar case, Taft Management Inc. v. Gentile, 2018 CanLII 82880, the condominium manager and president commenced a defamation action in the Small Claims Court against a director who sent email to his fellow board members expressing his concerns and alleging fraud and harassment. In Taft Management, which was decided before Pointes Protection, Deputy Judge Prattas examined the case law and found a significant difference between the cases in which the expression was found to relate to a matter of public interest and the circumstances before her. The cases related to matters such as a candidate’s fitness for public office, the governance of a conservation authority, or the use of public funds in a procurement process of a hospital (at paras. 45-46). Prattas D.J. found that the subject matter of the email messages were “ordinary and routine matters in condominiums – not matters of public interest but rather matters of a private interest which would normally be dealt with by the board of directors of a condominium corporation and its property manager.” (at para. 45)

36Similarly, in McCarthy-Oppedisano v. Muter, 2018 ONSC 2136, the plaintiff alleged that the defendant had defamed her by making false statements that she had committed real estate licence infractions. The defendant was an elected member of the board of the ratepayers association in her area, which opposed a severance application by the plaintiff. The statements were made within the context of a discussion about the plaintiff’s application. In that case, Healey J. found that the expression did not relate to a matter of public interest, but was an attack on the plaintiff’s personal and professional reputation, unrelated to the severance application: McCarthy-Oppedisano, at para. 47. Healey J. stated: “I do not accept that the law seeks to allow immunity from liability for an elected member of a voluntary organization who embeds defamatory comments within political, economic or social commentary that touches upon matters of public interest.” (at para. 48)

37Based on the case law and the Statements at issue in this case, I find that the Statements do not relate to a matter of public interest. The operations and governance of the Board bear none of the characteristics identified in Grant v. Torstar; they do not attract public attention, affect the welfare of citizens, or attract considerable controversy. The public has no interest in the functioning of the Board, who gets elected to it, or how it uses the Condominium’s funds. The fact that the concerns raised are legitimate or important to the Condominium residents does not mean that they relate to a matter of public interest. Those matters are more accurately characterized as a private interest, albeit one that might be held by a number of individuals. The internal governance and proper functioning of a condominium board may be of significant interest to the residents of the Condominium, but it is not a matter of public interest. While the Defendants point to the possibility that a condominium corporation could be put into court-appointed receivership under the Condominiums Act, this does not in itself render condominium governance a matter of public interest.

38Moreover, the fact that elections to the Board are very political, in the sense that they are hard-fought and involve vigorous campaigning, does not make them a matter of public interest. As is evident from the factual background, the disputes at issue here could be characterized as infighting among rival factions of current or former Board members and unit owners. Rather than dealing with issues through proper processes such as the AGM and Board meetings, individuals have taken matters into their own hands, drafting and sending anonymous letters and engaging in other improper behaviour. Based on the evidence on this motion, the Board has at various times participated in this battle of letters.

39If a condominium board’s governance and use of funds are a matter of public interest, then matters relating to any organization that has a board and holds elections to select its directors could relate to a matter of public interest within the meaning of s. 137.1(3). This would be true regardless of the organization’s purpose, how large or small it is, or whether it is public or private. The anti-SLAPP provisions do not grant immunity to members of an organization to make comments that would otherwise be considered defamatory simply because the organization holds elections or collects and spends members’ fees. Moreover, s. 137.1 was not intended to be an alternative means to ensure proper governance and conduct within organizations generally.

40The only statement in the 2016 Letters and the 2017 Letter that could potentially relate to a matter of public interest is the allegation that Mr. Walsh was keeping pictures of minor children from security cameras, because the statement could be seen as raising a concern about the safety of children in the Condominium. The statement is contained in one of the 2016 Letters and states:

Do you want someone who has kept pictures of minor children taken in our building by the so called ‘security cameras?’ Some pictures surfaced recently in court. Gordon Walsh has never addressed this issue. Maybe there are more pictures of you or your children that he might have in his possession. We should not even tolerate someone like that living in our building!”

41In determining whether an expression relates to a matter of public interest, the court is to consider the expression objectively “having regard to the context in which the expression was made and the entirety of the communication.” Pointes Protection, at para. 65. The 2016 Letter containing the statement refers to the AGM package that was recently distributed. The statement is contained in an anonymous letter that seeks to prevent Mr. Walsh from being elected to the Board. Nothing further is stated about the safety of children in the Condominium. Without getting into the quality, merits or manner of the expression, the context demonstrates that the statement is not about the safety of children but rather about Mr. Walsh’s character, to discourage unit owners from voting for him. For the reasons given above, Condominium politics do not relate to a matter of public interest.

42As a result, examining the Statements objectively and reasonably, I find that they do not relate to a matter of public interest. The Defendants have failed to meet the requirements for a dismissal under s. 137.1(3).

Do the Plaintiffs Meet the Requirements of Subsection 137.1(4)?

43Once a defendant has demonstrated that the communication was in respect of a matter of public interest, in order to avoid dismissal of its claim, pursuant to s. 137.1(4) of the CJA the plaintiff must satisfy the judge that there are “grounds to believe” that: (i) the proceeding has substantial merit; and (ii) the defendant has no valid defence in the proceeding.

44Since I have determined that the Defendants have not satisfied this court on a balance of probabilities that they made the communications at issue and that the Statements relate to a matter of public interest, the action will not be dismissed, and it is unnecessary to consider the second part of the test. It is also unnecessary to consider whether the harm suffered as a result of the defendant’s expression is sufficiently serious that the public interest in permitting the proceeding to continue outweighs the public interest in protecting that expression.

45Without going into the merits of this proceeding, I note only that it is unfortunate that in a community such as the Condominium, the Board and residents have permitted relationships to deteriorate to the point that anonymous letter writing campaigns, threats, self-help and litigation are seen as an appropriate means of addressing disputes. Based on my review of the evidence on this motion, the Board bears some responsibility for this deterioration. As Lederer J. found in the defamation proceeding against Ms. Akther, such statements do not serve to raise legitimate concerns and are merely destructive of goodwill.

Should Certain Paragraphs of the Statement of Claim be Struck?

46The Defendants also seek to strike paragraphs 8 to 15 of the Statement of Claim pursuant to r. 25.11 on the basis that they are an inflammatory attack on Ms. Badin, and should be struck as scandalous, frivolous or vexatious. With the exception of paragraph 8, the paragraphs relate to the 2013 Action against Ms. Akther, and Ms. Badin’s alleged involvement in the defamatory statements at issue in that proceeding.

47Rule 25.11 states:

The court may strike out or expunge all or part of a pleading or other document, with or without leave to amend, on the ground that the pleading or other document:

(a) may prejudice or delay the fair trial of the action;

(b) is scandalous, frivolous or vexatious; or

(c) is an abuse of the process of the court.

48In Carney Timber Co. v. Pabedinskas, 2008 CanLII 63163 (ON SC), [2008] O.J. No. 4818, at para. 15, Strathy J. (as he then was) contrasted Rule 21.01(3)(d), which permits the court to dismiss an action which is frivolous or vexatious or an abuse of process, with Rule 25.11, which permits the court to surgically excise all or part of the offending pleading. Strathy J. summarized the principles applicable to motions to strike pleadings under r. 25.11 as follows (at para. 16):

• a fact that is relevant to a cause of action cannot be scandalous, frivolous or vexatious;

• a pleading that has no material facts is frivolous and vexatious;

• a pleading that is superfluous or can have no effect on the outcome of the action is scandalous, frivolous and vexatious;

• portions of a pleading that are irrelevant, argumentative, inserted only for colour or are bare allegations without material facts in support, will be struck as scandalous;

• a pleading that is purely argumentative will be struck out;

• a pleading that contains unfounded and inflammatory attacks on the integrity of a party, and speculative and unsupported allegations of defamation will be struck as scandalous and vexatious;

• a pleading may be struck on the ground that it may prejudice or delay the fair trial of the action where the probative value of the evidence would be outweighed by the time and effort involved and would seriously interfere with the fair and focused trial of the issues;

• striking a pleading on the ground that it may prejudice or delay the fair trial of an action is an exercise in discretion – the court must balance the added complexity of the pleading against the potential probative value of the facts alleged;

• pleadings that are replete with conclusions, expressions of opinion and contain irrelevant matters will be struck in their entirety; and

• pleadings that are clearly designed to use the judicial process for an improper purpose are an abuse of process – these include harassment and oppression of other parties by multifarious proceedings, the re-litigation of issues previously decided and the litigation of matters that have been concluded.

49I agree with the Defendants that the allegations relating to Ms. Badin’s alleged involvement in the statements underlying the 2013 Action are included solely for the purpose of casting Ms. Badin in a negative light. Alternatively, the allegations are included to show that Ms. Badin’s affidavit evidence in the 2013 Action was not accepted by the judge hearing the motion to set aside default judgment. Ms. Badin was not named as a defendant in the 2013 Action and no findings were made against her. In any event, those allegations bear no relevance to this proceeding and can have no effect on the outcome.

50For the reasons set out above, I conclude that the pleading challenged by the defendant is irrelevant to the plaintiff’s claim and is therefore frivolous and vexatious. Paragraphs 9 to 15 of the Statement of Claim are hereby struck pursuant to Rule 25.11. Paragraph 8 will not be not struck, as it does not specifically relate to the 2013 Action. As there can be no viable amendment the paragraphs that are struck, no leave to amend is granted.

Conclusion

51The motion to dismiss the action under s. 137.1(3) of the CJA is dismissed. The motion to strike certain paragraphs of the Statement of Claim is granted in part.

52At the hearing of the motion, it was agreed that counsel would have a further opportunity to make submissions in writing both on the entitlement to costs under s. 137.1 and the amount.

53Plaintiffs’ counsel shall make cost submissions within fourteen days of the release of these Reasons. Responding submissions on costs by Defendants’ counsel shall be made within ten days of receiving the Respondent’s cost submissions. All cost submissions must include a Costs Outline and must be no longer than five pages in length. If no costs submissions are received within this time period, costs will be deemed to have been resolved by the parties.

Nishikawa J.