COURT FILE NO.: 5685/13 (Chatham)
DATE: 20201105
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Alfredo Naclerio, 1815513 Ontario Inc. and 1466166 Ontario Inc.
Plaintiffs/Defendants by Counterclaim
– and –
Ian McLarty
Defendant/Plaintiff by Counterclaim
M. Paul Morrissey, for the Plaintiffs/Defendants by Counterclaim
Carolynne J. Wahlman, for the Defendant/Plaintiff by Counterclaim
HEARD: August 17, 2020
RULING ON MOTION
CARROCCIA J.
[1] Before me is a notice of motion filed by the defendant/plaintiff by counterclaim, Ian McLarty, for an order setting aside the administrative dismissal of the counterclaim in this action and, if granted, an order establishing a timetable for the conduct of the counterclaim.
[2] The defendant further seeks an order for costs of the defence of the action, and for bringing this motion, and, by virtue of an amended notice of motion filed, the defendant also seeks a charging order pursuant to s. 34 of the Solicitor’s Act, R.S.O. 1990, c. L.8, for all damages and costs in relation to this claim.
BACKGROUND
[3] An outline of the history of this action is necessary in order to understand where we are today.
[4] In early 2013, one of the plaintiff corporations, 1815513 Ontario Inc., acquired the rights to a property known locally in Chatham-Kent as the Annex. (I will refer to the individual plaintiff and corporate plaintiffs/defendants by counterclaim as the “plaintiffs” hereinafter.) This property was to be developed for future use.
[5] In July of 2013, the defendant/plaintiff by counterclaim (the “defendant”) issued a press release to various media outlets regarding this land transaction involving the plaintiff corporations and Alfred Nacliero, who is an officer and director of both corporations.
[6] M. McLarty said that this land transaction in Chatham-Kent involving Mr. Nacliero and the corporate plaintiffs warranted a police investigation, implying, at least as far as the plaintiffs were concerned, that they were involved in some form of wrong-doing.
[7] The plaintiffs valued their good reputation in the community and indeed they were required to maintain that reputation given the nature of their business dealings. As a result, they engaged Siskinds LLP to send a letter to the defendant, which the firm did on July 11, 2013, requesting that he cease and desist from “making any further allegations which state or imply that the plaintiffs were engaged or participated in activities which are contrary to law”.[^1]
[8] The defendant did not stop talking to the media about the plaintiffs and the land deal and, as a result, the plaintiffs issued a statement of claim against the defendant on July 22, 2013, seeking damages, and a permanent injunction restraining the defendant from repeating his allegedly defamatory statements.
[9] On July 31, 2013, the defendant delivered a statement of defence and counterclaim. It was subsequently amended on August 28, 2013. In the amended statement of defence and counterclaim, the defendant claimed damages against the plaintiffs for defamation.
[10] At the time that he filed his defence and counterclaim in this matter, the defendant was unrepresented. On March 31, 2014, the defendant appointed Myron Shulgan of Windsor, Ontario as his lawyer of record.
[11] On June 9, 2014, the defendant filed a notice to change his lawyer of record to David McNiven, also of Windsor.
[12] Eventually, examinations for discovery were conducted on September 25and 26, 2014, at the initiative of the plaintiff. At that time, the defendant was represented by Mr. McNevin.
[13] Between the date of the examinations for discovery in 2014 and late 2017, apparently, no further action was taken by either party in relation to these matters.
[14] On November 28, 2017, Peter Anderson, of Yachetti Lanza LLP, wrote to Mr. McNevin to advise that he was now counsel to Mr. McLarty. Attached to the letter was a direction executed by the defendant instructing Mr. McNevin to release the file to Mr. Anderson.[^2]
[15] By letter dated December 12, 2017, Mr. McNevin sent the complete file to the new counsel for the defendant, Mr. Anderson.[^3]
[16] On September 20, 2018, Mr. Anderson served a notice of appointment of lawyer on counsel for the plaintiffs.[^4]
[17] In his affidavit, on behalf of the plaintiffs, Mr. Jonathon Quaglia indicates: “In his accompanying letter, Mr. Anderson stated at that point, no order had yet been issued dismissing the proceeding, but the action had been exposed to the likelihood of such an order for two months and Mr. Anderson was or should have been aware of this fact and would or should have advised his client accordingly.”[^5]
[18] It does not appear on the record before me that any other steps were taken by Mr. Anderson.
[19] On February 20, 2019, a notice of dismissal in Form 48D was sent by the Registrar of the Superior Court at Chatham-Kent to counsel of record. The notice was sent by the court to the following parties: Peter Anderson, Yachetti, Lanza LLP, 154 Main St. East, Suite 100, Hamilton, Ontario L8N 1G9, for the defendant and Paul Morrissey, Siskind Cromarty, Ivey & Sowler, 680 Waterloo St. P.O. Box 2520, London, ON N6A 3V8 for the plaintiffs.
[20] In other words, on February 20, 2019, the plaintiffs’ action was dismissed for delay.
[21] No action was taken thereafter (until the filing of this motion) and according to the operation of rules 48.14(9) and 24.03 of the Rules of Civil Procedure R.R.O. 1990, Reg. 194, the counterclaim would have been discontinued 30 days later, on or about March 22, 2019.
[22] On September 9, 2019, Regency Law Group attempted to file a notice of change of lawyer on behalf of the defendant, but the court would not accept the notice. It was ultimately learned by Regency Law Group that the action had been administratively dismissed.[^6]
THE APPLICABLE LAW
[23] Rule 48.14(1) of the Rules of Civil Procedure states as follows:
DISMISSAL OF ACTION FOR DELAY
48.14 (1) Unless the court orders otherwise, the registrar shall dismiss an action for delay in either of the following circumstances, subject to subrules (4) to (8):
The action has not been set down for trial or terminated by any means by the fifth anniversary of the commencement of the action.
The action was struck off a trial list and has not been restored to a trial list or otherwise terminated by any means by the second anniversary of being struck off.
[24] Since the action was commenced on July 22, 2013, it should have been set down for trial on or before July 21, 2018.
[25] This matter was not set for trial within five years of commencing the action and, as a result, on February 20, 2019 an order dismissing the action for delay was issued.
[26] Rule 48.14(3) imposes a duty on counsel and provides as follows:
(3) A lawyer who is served with an order made under subrule (1) shall promptly give a copy of the order to his or her client.
[27] Where there is a counterclaim, rule 48.14(9) provides as follows:
(9) Rules 24.03 to 24.05 (effect of dismissal for delay), other than subrule 24.04(1.1), apply to an action dismissed under subrule (1).
[28] Rule 24.03 provides that a defendant who has counterclaimed must take action within 30 days after the dismissal of the action or the counterclaim will thereafter be discontinued without costs.
EFFECT OF DISMISSAL ON COUNTERCLAIM
24.03 Where an action against a defendant who has counterclaimed is dismissed for delay, the defendant may within thirty days after the dismissal deliver a notice of election to proceed with the counterclaim (Form 23B), and if the defendant fails to do so, the counterclaim shall be deemed to be discontinued without costs.
[29] The defendant took no action within 30 days of the date of dismissal of the action and accordingly his counterclaim was deemed to be discontinued.
[30] He filed this motion seeking to set aside the dismissal pursuant to rules 48.14(10) and 37.14 on November 14, 2019.
[31] Rule 37.14 provides as follows:
SETTING ASIDE, VARYING OR AMENDING ORDERS
37.14(1) A party or other person who,
(a) is affected by an order obtained on motion without notice;
(b) fails to appear on a motion through accident, mistake or insufficient notice; or
(c) is affected by an order of a registrar,
may move to set aside or vary the order, by a notice of motion that is served forthwith after the order comes to the person’s attention and names the first available hearing date that is at least three days after service of the notice of motion.
(2) On a motion under subrule (1), the court may set aside or vary the order on such terms as are just.
[32] It is common ground that the legal principles governing this issue are set out in Habib v. Mucaj, 2012 ONCA 880, which confirmed the test to be applied in determining whether to set aside an order for dismissal of an action. The court says, at para. 5:
There are four well established factors to consider when deciding to set aside an order to dismiss an action (i) explanation of the litigation delay – a deliberate decision not to advance the litigation will usually be fatal; (ii) inadvertence in missing the deadline – the intention always was to set the action down within the time limit; (iii) the motion is brought promptly – as soon as possible after the order came to the party’s attention; and (iv) no prejudice to the defendant – the prejudice must be significant and arise out of the delay: see Reid v. Dow Corning Corp (2001), 11 C.P.C. (5th) 80 (Ont. Master).
[33] The onus is on the moving party, the defendant in this case, to satisfy the court based on the Reid factors (as they are known), that the order dismissing the counterclaim ought to be set aside in accordance with rule 37.14.
[34] In Scaini v. Prochnicki, 2007 ONCA 63, the Ontario Court of Appeal stated that a court must take a contextual approach in deciding whether an order of dismissal ought to be set aside. Rather than requiring the moving party to satisfy each of the criteria outlined in Reid, the court should look at the totality of the circumstances to determine what is just. The moving party need not satisfy each of the four criteria.
[35] In Hamilton (City) v. Svedas Koyanagi Architects Inc., Justice Laskin speaking for the Court reiterates that a judge’s decision whether to set aside a registrar’s order dismissing an action for delay is discretionary, and in arriving at that decision, a judge must balance the two principles of our civil justice system: that civil actions should be decided on their merits and that they should be resolved within a reasonable time frame.[^7]
[36] The Court goes on to state at para. 22 that in determining whether to set aside an order dismissing an action for delay, the following factors ought to be considered:
• the length of the delay;
• whether the moving party has adequately explained the delay;
• whether the delay has prejudiced the other party;
• whether the dismissal order resulted from a lawyer’s inadvertence; and
• whether after becoming aware of the dismissal order, the moving party moved reasonably promptly to set aside the order.
[37] No one factor is decisive of the issue, and the moving party is not required to satisfy each of the factors, but rather the court should adopt a contextual approach and weigh all of the relevant factors to determine the order that is just in the circumstances. I propose to do that.
ANALYSIS
[38] The defendant relies on the affidavit of Gregory Mallia, a partner in Regency Law Group, the law firm currently representing the defendant, in support of this motion.[^8] There is no evidence before the court from the defendant himself, or from any of the lawyers who represented him prior to the dismissal of this action.
[39] Mr. Mallia’s Affidavit indicates that unless stated otherwise the information in the affidavit is based on his review of the file. This is problematic for a number of reasons which I will deal with in greater detail below.
[40] As a preliminary issue, it is unclear whether Mr. Mallia has ever spoken to the defendant directly. That question was asked of Mr. Mallia when he was subjected to cross-examination on his affidavit, but he was prevented from answering the question based on the objection of Mr. Nanayak:[^9]
- MR. MORRISEY: Q. Okay. Fair enough. I won’t ask you about frequency, number or length of meetings with Mr. McLarty. Have you, yourself, had any conversations with Mr. McLarty?
MR. NANAYAK: Again what’s the relevance of whether there’s been a verbal conversation?
- MR. MORRISEY: Well, I want to know where, where his information comes from.
[41] Mr. Morrisey tried to ask the question again, to determine the source of the information contained in the affidavit.
- MR. MORRISEY: Okay. So is, is Mr. Mallia refusing to advise as to whether he’s had personal communication with Mr. McLarty?
MR. NANAYAK: No. I think the answer is that there has been communication with Mr. McLarty.
- MR. MORRISEY: I understand that. I’m trying to find out is the affiant, Mr. Mallia, has had communication with Mr. McLarty. Are you going to answer that or not?
MR. NANAYAK: And I’m confirming yes, that there has been communication. Yes.
- MR. MORRISEY: And I, I, I understand the waffling. I’m just, I, I’m, I’m going to drill down to the specifics. Has the affiant had personal communication with Mr. McLarty? Yes, no or refuse to answer?
UA MR. NANAYAK: Under advisement.
[42] The question was objected to on the basis of solicitor-client privilege. The difficulty is that the failure to answer the question leaves the court with questions as to the source of the information contained in that affidavit.
[43] Rule 39.01(4) of the Rules of Civil Procedure states: “An affidavit for use on a motion may contain statements of the deponent’s information and belief, if the source of the information and the fact of the belief are specified in the affidavit.”
[44] However, where the facts are significantly contested, an affidavit from someone other than an individual with direct knowledge of the circumstances of the matter may be of little assistance.
[45] In Jacobson v. Atlas Copco, 2015 ONSC 4, the court dealt with the issue of the use of hearsay affidavit evidence on a motion and had this to say:
[27] In my opinion, this hearsay evidence is insufficient to establish the purpose for which Skakie sent his message, a central and contentious issue in this motion.
[28] Of course, hearsay evidence is permissible on a motion by virtue of rule 39.01(4) of the Rules of Civil Procedure which provides: An affidavit for use on a motion may contain statements of the deponent’s information and belief, if the source of the information and the fact of the belief are specified in the affidavit.
[29] There are good reasons for this rule. The issues in many motions are collateral to those of the proceedings in which they arise. Allowing hearsay evidence on such collateral issues is in keeping with the proportionality principle expressed in Hryniak v. Mauldin, 2014 SCC 7, [2014] 1 S.C.R. 87, at para. 28, and recognized in rules such as rule 29.2 (proportionality in disclosure) of the Rules of Civil Procedure. However, this derogation from the usual rules of evidence comes at a cost. One of the prices paid relates to the truth-finding process.
[30] Hearsay evidence is not usually admissible in court because “its evidential value rests on the credibility of an out-of-court assertor who is not subject to the oath, cross-examination or a charge of perjury”: see Sopinka, Lederman & Bryant, The Law of Evidence in Canada, 4th ed. (Markham, Ont.: LexisNexis, 2014) at § 6.9, at p. 239.
[31] Although rule 39.02(1) of the Rules of Civil Procedure permits cross-examination of an affiant, that right is largely illusory when it comes to hearsay evidence. About the best the cross-examiner can hope to do is to cross-examine on whether the affiant truthfully recounted what was said, not whether what was said was true. For this reason, courts have held that less weight and more scrutiny should be given the closer the hearsay evidence comes to the dispositive issue in the motion. [Emphasis added.]
[46] The defendant has not provided affidavits from anyone with direct knowledge of the circumstances of this matter. As a result, there is a lack of evidence in a number of areas that are relevant to a proper consideration of this matter.
[47] For instance, there is no evidence before the court as to whether Mr. Anderson received the Form 48D order dismissing the action for delay. There is no evidence before the Court as to whether Mr. Anderson provided a copy of the notice to his client, (as he is required to do), nor is there any evidence as to when Mr. McLarty became aware of the fact that the action had been dismissed along with his counterclaim.
[48] In Abou-Naoum v. Leon’s Furniture Ltd., 2016 ONSC 7341, at paras. 45-46, Goodman J. addressed the issue of the sufficiency of evidence on a motion to set aside an administrative dismissal in the following terms:
Indeed, a plaintiff cannot meet the burden to explain delay by offering bald assertions without supporting documents: 1051841 Ontario Ltd. v. Toronto (City) 2014 ONSC 4327 (Ont. S.C.J.). Excusing delay on account of personal incapacity may require independent medical evidence or at a very minimum robust particulars to address a decision to set an administrative dismissal.
In my opinion, there is no meaningful evidence from the plaintiff in support of his own motion which adds virtually nothing to the evidentiary record. It contains only unsubstantiated and hearsay evidence as to what might have happened to Mr. Marini…..Notably the plaintiff does not provide any evidence as to when - or even if - he was made aware of the dismissal order nor what steps he took as a result to contact his counsel and to ensure that the matter was advanced in a timely manner.
[49] The onus is on the defendant to provide the evidence in support of this motion.
Length of the delay
[50] As indicated above, this action was filed in July of 2013 and dismissed administratively in February 2019. This motion was filed in November of 2019.
[51] This matter was before the court for close to six years.
Explanation for the delay
[52] The only explanation for the delay is provided in the affidavit of Mr. Mallia, as there is no direct evidence from the defendant regarding the reason for the delay in pursuing his counterclaim.
[53] Mr. Mallia, in his affidavit, says that Mr. McLarty was experiencing financial difficulties in 2015 and “was not able to move the action ahead, or [Mr. McLarty’s] own action due to affordability of legal fees.”[^10] He states further that although Mr. McLarty obtained new employment in 2015, he worked “substantial hours” and his employment required travel, which is part of the reason for the delay.
[54] Despite the fact that the defendant claims that financial difficulties were at least partly to blame for the delay, the defendant was represented by counsel throughout. In fact, while he was represented by Mr. McNevin, he retained new counsel, Mr. Anderson.
[55] There is no evidence before the court that Mr. McLarty was not represented by counsel at any time except when he initially filed his defence in 2013. There is no evidence that his “financial difficulties” affected his ability to move the matter forward.
[56] Mr. Mallia sets out the legal fees paid by Mr. McLarty at paragraph 25 of his affidavit: $18,677.58 to Mr. McNevin, $1,251.02 for the transcript from the examinations for discovery, $1000 to Yachetti, Lanza Restivo and $5,388.53 to his current lawyers.
[57] There is no evidence of Mr. McLarty’s income, his employment history or lack thereof to put this into context.
[58] Counsel for the defendant points to the affidavit of Mr. Quaglia, filed on behalf of the plaintiffs in support of her position. Mr. Quaglia details in his affidavit that he undertook certain collection actions on behalf of a third-party judgment creditor of Mr. McLarty in the spring of 2015.[^11]
[59] This information however, does not assist in explaining why Mr. McLarty took no other steps to advance his counterclaim, if it was his intention to do so, between 2015 and 2019.
[60] The only mention of the counterclaim can be found at the defendant’s examination for discovery in September 2014. At that time, while Mr. Morrissey was questioning Mr. McLarty and he began to ask about the counterclaim, Mr. McNevin who was representing Mr. McLarty at the time, asked to go off the record. When they went back on the record, Mr. McNevin indicated that he anticipated obtaining instructions firmly to be confirmed in writing, “[I]t’s our position that we do not intend to pursue the counterclaim and will abandon it.” [^12]
[61] In his examination on his affidavit, Mr. Mallia was asked about this:
- Q. All right. And according to your Affidavit Mr. McNevin remained Mr. McLarty’s lawyer for another four years until 2018, correct?
A. Yes
- Q. Do you have any information, knowledge or belief that during that four year period Mr. McNevin ever indicated it was Mr. McLarty’s intention to proceed with his Counter Claim?
A. Can you ask that question again, please counsel?
- Q. Do you have any information, knowledge or belief that during that four year period, Mr. McNevin ever indicated it was Mr. McLarty’s intention to proceed with his Counter Claim?
A. No.
[62] Ms. Wahlman maintains that there was no status notice in the file when it was received from former counsel. Rule 48.14 was amended as of January 1, 2015. The transitional provisions in effect from January 1, 2015 to March 31, 2015 provided that the rule, as it read before January 1, 2015, continued to apply if a status hearing was scheduled but not heard before January 1, 2015. If no notice of status hearing was received before January 1, 2015, then he would not be entitled to receive one by virtue of the change in the rules.
[63] Ms. Wahlman says in her submissions, “Obviously our instructions were to pursue the matter.” It is not obvious to me at all what her firm’s instructions were. It would have been a fairly simple matter to file an affidavit from the defendant to explain the delay and indicate what his instructions to counsel were.
[64] The onus is on the moving party to establish that it was always his intention to pursue the matter.
[65] I will now address the issue raised in Mr. Mallia’s affidavit that Mr. McLarty was not able to provide his new counsel with all of his documents directly because his car was broken into in November 2017 and his laptop and documents were stolen.[^13] The police report filed in support shows that the laptop was recovered and returned to Mr. McLarty.
[66] Again there is no explanation as to how this theft impacted upon his ability to pursue his counterclaim. Mr. McNevin apparently sent his file directly to Mr. Anderson once he was advised that Mr. McLarty had retained Mr. Anderson to represent him.
[67] Mr. Mallia in his affidavit indicates that when he reviewed the file, it did not contain a copy of the dismissal order. I accept that. This does not answer the question, however, as to whether Mr. McLarty was aware that the action had been administratively dismissed.
[68] I find that the evidence provided does not adequately explain the reason for the delay in pursuing this matter, nor does it establish that it was always Mr. McLarty’s intention to pursue this matter.
[69] At various points during the oral argument, counsel for the defendant relied on solicitor-client privilege to explain why there was no affidavit filed by the defendant, however the onus is on the defendant in this motion to satisfy the test set out in Habib.
Inadvertence in missing a deadline
[70] There is no evidence before the court on this motion from any of the defendant’s former counsel. The Form 48D shows that the notice of dismissal was sent to both counsel of record. Counsel has an obligation by virtue of rule 48.14(3) to provide the notice to his or her client.
[71] There is no evidence as to when, and if, Mr. McLarty was advised that the action had been administratively dismissed and that the counterclaim would be discontinued unless action was taken within 30 days thereafter.
[72] There is no evidence before the court as to inadvertence in missing a deadline.
Prejudice to the other party
[73] The moving party must establish at least on a prima facie basis that the other party has suffered no prejudice as a result of the delay. This factor was not addressed in any great detail in oral argument.
[74] Mr. Morrissey as counsel for the plaintiffs, could not point to any direct evidence of prejudice.
[75] In my view, this factor is essentially neutral.
Did the moving party move reasonably promptly to set aside the order?
[76] The defendant was represented by Mr. Anderson at that time of the administrative dismissal. But, by virtue of the Rules, this action was subject to administrative dismissal in July 2018.
[77] This motion was not filed until November 26, 2019. If there was evidence before the court as to when the defendant became aware that the counterclaim was dismissed, then the court could assess whether this motion was brought promptly.
[78] It was filed six months after the counterclaim was dismissed, but 16 months after the matter was liable to administrative dismissal.
[79] In the absence of evidence from the defendant, I cannot find that he moved reasonably promptly to set aside the administrative dismissal.
CONCLUSION
[80] I have considered the Reid factors as outlined above and find that the defendant has not satisfied his onus in establishing that the dismissal of his counterclaim ought to be set aside. The explanation for the delay is completely lacking in any meaningful detail. Without evidence from the defendant, I am left with the affidavit of a lawyer who has not participated in the proceedings and relies on the contents of another lawyer’s file as his source of information.
[81] The court does not know when the defendant learned that the action and his counterclaim was dismissed. This is fundamental to an assessment of whether the defendant acted reasonably in the circumstances.
[82] There is no evidence before the court that the dismissal order resulted from the inadvertence of the defendant’s former counsel.
[83] Prejudice is a neutral factor.
[84] As for the issue of whether the moving party moved reasonably promptly to set aside the dismissal order, this motion was brought within six months of the dismissal of the counterclaim, I cannot say that that is not reasonably prompt.
[85] However, when I balance all of these factors, particularly in light of the failure to provide a reasonable explanation for the delay, I am not persuaded by the defendant’s material that I should interfere with the deemed discontinuance of the counterclaim. Accordingly, the motion is dismissed.
Costs
[86] The defendant is seeking an order for the costs of this motion. For the reasons outlined above, it is my view that the defendant has failed to satisfy rule 24.03 which provides that a defendant who has counterclaimed must deliver a notice of election to proceed within 30 days after the dismissal. If he fails to do so then “the counterclaim shall be deemed to be discontinued without costs”. For the same reasons, and as a result of the delay in pursuing the counterclaim, there will be no order for costs of the action.
[87] I see no reason why I should order costs in favour of the defendant in this matter.
[88] As to the charging order requested pursuant to s. 34 of the Solicitor’s Act, R.S.O. 1990, c. S.15 , as a result of the dismissal of the motion, no order will be made.
“original signed and released by Carroccia J.”
Maria V. Carroccia
Justice
Released: November 5, 2020
COURT FILE NO.: 5685/13 (Chatham)
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Alfredo Naclerio, 1815513 Ontario Inc. and 1466166 Ontario Inc.
Plaintiffs/Defendants by Counterclaim
– and –
Ian McLarty
Defendant/Plaintiff by Counterclaim
Ruling on Motion
Carroccia J.
Released: November 5, 2020
[^1]: Responding Motion Record of the Plaintiffs, Tab 1, Affidavit of Jonathon Quaglia, para. 9. [^2]: Responding Motion Record of the Plaintiffs, Tab 1, Affidavit of Jonathon Quaglia, Exhibit D. [^3]: Responding Motion Record of the Plaintiffs, Tab 1, Affidavit of Jonathon Quaglia, Exhibit D. [^4]: Responding Motion Record of the Plaintiffs, Tab 1, Affidavit of Jonathon Quaglia, Exhibit E. [^5]: Responding Motion Record of the Plaintiffs, Tab 1, Affidavit of Jonathon Quaglia, para. 9. [^6]: Motion Record to Pursue Counterclaim, Affidavit of Gregory Paul Mallia, Tab 2, paras. 16-18. [^7]: Hamilton (City) v. Svedas Koyanagi Architects Inc., 2010 ONCA 887, at paras. 19-21. [^8]: Motion Record to Pursue Counterclaim, at Tab 2. [^9]: Second Supplementary Responding Motion Record of the Plaintiffs, at Tab 1, Cross-examination of Gregory Mallia, at page 9. [^10]: Motion Record to Pursue Counterclaim, at Tab 2, Affidavit of Gregory Mallia, para. 10. [^11]: Responding Motion Record of the Plaintiffs, Tab 1, Affidavit of Jonathon Quaglia, paras. 23-28. [^12]: Responding Motion Record of the Plaintiffs, Tab 1, Exhibit C. [^13]: Motion Record to Pursue Counterclaim, at Tab 2, Affidavit of Gregory Mallia, para. 13.