Court File and Parties

COURT FILE NO.: CV-20-00635008-0000 DATE: 20210303 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

ENZO MIZZI, LYDIA MIZZI, CHRISTINA MIZZI, PHIL MIZZI, E.J. MIZZI, JOE MIZZI, NATASHA MIZZI, MANUELE ADRIAN MIZZI, and CARMELO MIZZI Plaintiffs

• and - MICHAEL CAVANAGH, aka MICHAEL W. CAVANAGH, aka MICK CAVANAGH, aka MIC CAVANAGH, DAVID FRANKLIN, JACOB PATEL, aka JACK PATEL and ASE DELIRE Defendants

Counsel: Ronald G. Chapman and Mark Wiffen for the Plaintiffs Gavin J. Tighe and Rojin Jazayeri for the Defendant David Franklin Eric Sherkin for the Defendant Michael Cavanagh Arie Gaertner for the Defendant Jacob Patel Norman Groot for the Defendant Ase Delire

HEARD: February 1, 2021

PERELL, J.

REASONS FOR DECISION

A. Introduction and Overview

[1] In this action, Enzo Mizzi (“Mr. Mizzi”), who is a land developer, and his family Lydia Mizzi, Christina Mizzi, Phil Mizzi, E.J. Mizzi, Joe Mizzi, Natasha Mizzi, Manuele Adrian Mizzi, and Carmelo Mizzi sue for damages of $10 million for: (a) intrusion upon seclusion; (b) intentional infliction of mental and emotional suffering; and (c) extortion.

[2] The Mizzi family sues: (a) Michael Cavanagh, a former employee and a business associate of Mr. Mizzi; (b) David Franklin, Mr. Cavanagh’s lawyer; (c) Jacob Patel whose family had litigated against Mr. Mizzi in 2017 and regarded him as a fraudster; and (d) Ase Delire, a website designer.

[3] Mr. Franklin, who appeared on a Global News Toronto TV broadcast about investors who had lost millions in investing with the Paramount Group, a syndicated mortgage lender, submits that the Mizzi family’s action is not actually about intrusion upon seclusion, intentional infliction of mental and emotional suffering or extortion. Mr. Franklin submits that the Mizzi family’s action is really a defamation action arising from Mr. Franklin’s comments on the Global News broadcast. Mr. Franklin submits that the Mizzi family’s action is designed to limit his freedom of expression about a matter of public interest.

[4] Pursuant to s.137.1 (3) and (4) of the Courts of Justice Act, Mr. Franklin brings a motion to have the Mizzi family’s action dismissed as against him. Sections 137.1 (3) and (4) of the Courts of Justice Act, state:

Order to dismiss

137.1 (3) On motion by a person against whom a proceeding is brought, 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.

No dismissal

(4) A judge shall not dismiss a proceeding under subsection (3) if the responding party satisfies the judge that,

(a) there are grounds to believe that,

(i) the proceeding has substantial merit, and

(ii) the moving party has no valid defence in the proceeding; and

(b) the harm likely to be or have been suffered by the responding party as a result of the moving party’s expression is sufficiently serious that the public interest in permitting the proceeding to continue outweighs the public interest in protecting that expression.

[5] In defence of Mr. Franklin’s s. 137.1 (3) motion, the Mizzi family submits that its action against Mr. Franklin does not “arise from an expression” made by Mr. Franklin and, therefore, they ask that Mr. Franklin’s motion be dismissed. They submit that the essence of their action is about intrusion on seclusion for the purposes of extortion and to inflict emotional and financial harm on Mr. Mizzi and his family.

[6] For the reasons that follow, I dismiss Mr. Franklin’s motion.

[7] I foreshadow to say that this motion turns on its facts. Mr. Franklin did make an expression that relates to a matter of public interest when he appeared on the Global News broadcast to speak about the Paramount Group’s financial fiasco, a scandal that implicated Mr. Mizzi. However, the Franklin family’s action did not arise from that expression; it genuinely arose from allegations of intrusion on seclusion, intentional infliction of mental and emotional suffering, and extortion that occurred before and after the news broadcast. Those allegations associated with intrusion on seclusion should be tried on their merits.

B. Parties

[8] Enzo Mizzi is a businessman with a forty-year career in real estate development. Mr. Mizzi is the principal plaintiff. The co-plaintiffs are members of his family as follows:

Co-plaintiff: Relationship to Enzo Mizzi Lydia Mizzi Spouse Christina Mizzi Daughter E.J. Mizzi Son Phil Mizzi Brother Joe Mizzi Brother Carmelo Mizzi Brother Natasha Mizzi Niece Manuele Adrian Mizzi Nephew

[9] The co-Plaintiff Natasha Mizzi, who delivered affidavits for this motion and was cross-examined, is Mr. Mizzi’s niece. She is a paralegal employed by the law firm Horlick Levitt Di Lella. She appears at Landlord and Tenant Board disputes on behalf of the firm’s landlord clients. Before her recent employment with the law firm, she ran her own paralegal business specializing in residential landlord and tenant tribunal work.

[10] The Defendant David Franklin is a lawyer who specializes in real estate law. Mr. Franklin was called to the bar in 1973. He has been a wholehearted, full-throated public advocate for better regulation and protections for those investing in syndicated mortgages and other real estate investments. He shares his views on a website, davidfranklinlaw.com. He is a member of the Canadian Justice Review Board, an NGO promoting high standards in legal practice by identifying practices and practitioners whose conduct casts the administration of justice into disrepute. Mr. Franklin describes himself as a zealot when it comes to providing information to regulators about unethical, fraudulent, or corrupt practices that he discovers. He has vigorously campaigned for better regulation by the Financial Services Commission of Ontario (“FSCO”) and by the Ontario Securities Commission (“OSC”). He deposed that to protect the public and his clients from fraud in the real estate market, he provides reports and information to regulators that have a public duty to investigate the wrongdoing. He takes credit for prompting regulatory investigations that lead to the disclosure of financial fiascos. Most notably and proudly, Mr. Franklin takes credit for the exposure of the scandal that led to the demise of the Fortress Real Estate Group, which was the province’s largest company in the syndicated mortgage industry. The operation of Fortress led to enormous investor losses, regulatory proceedings, and numerous individual and class action actions. Mr. Franklin says that it was his initiative that prompted the regulators to launch civil and criminal proceedings against Fortress.

[11] The co-defendant Michael (“Mick”) Cavanagh is a former employee and business associate of Mr. Mizzi. They worked together for over thirty years. Mr. Cavanagh and Mr. Mizzi had been business associates through Mpire Credit Corporation, the Mizzi business that employed Mr. Cavanagh. Mr. Mizzi testified that he fired Mr. Cavanagh as a result of a meeting, described below, that took place on November 28, 2019 among Mr. Mizzi, Mr. Cavanagh, and Mr. Franklin at Mr. Mizzi’s office. Mr. Cavanagh was not called as a witness by either Mr. Mizzi or by Mr. Franklin.

[12] Although they appeared at the hearing of this motion, the other defendants are not directly affected because the motion only concerns the claim against Mr. Franklin. As noted above, Jacob (“Jack”) Patel had a litigation history with Mr. Mizzi. Mr. Patel’s family was involved in litigation about alleged fraudulent activities associated with a mortgage.

[13] Ase Delire is a webpage designer. It is not entirely clear from the evidentiary record on this motion, what was Mr. Delire’s involvement beyond the allegation he viewed Mr. Mizzi's e-mail account and designed the web domain: "enzomizzi.ca". The evidentiary record suggests that Mr. Delire may also have been involved in the creation of a webpage with the URL https://firespark.appspot.com.

[14] Messrs. Patel and Delire were not called as witnesses by either Mr. Mizzi or by Mr. Franklin.

C. Procedural Background

[15] Mr. Mizzi and his family commenced this action on January 23, 2020.

[16] On July 14, 2020, Mr. Franklin delivered his Statement of Defence.

[17] Mr. Cavanagh, Mr. Patel, and Mr. Delire have yet to deliver Statements of Defence.

[18] On October 2, 2020, Mr. Franklin brought the motion now before the court. The motion was supported by his affidavits dated September 30, 2020, December 30, 2020, and December 31, 2020.

[19] For the Plaintiffs, Mr. Mizzi delivered responding affidavits dated December 15, 2020 (sworn on the 18th), December 16, 2020, January 5, 2021, and January 7, 2021.

[20] For the Plaintiffs, Natasha Mizzi delivered responding affidavits dated December 15, 2020 and January 7, 2021.

[21] On January 7, 2021 Mr. Mizzi and Natasha Mizzi were cross-examined.

[22] On January 8, 2021, Mr. Franklin was cross-examined.

[23] The motion was argued on February 1, 2021.

D. The Statement of Claim

[24] The Mizzi family’s Statement of Claim is a succinct 24-paragraph pleading. The operative paragraphs are paragraphs 15 to 24, which state:

15. Cavanagh was an employee of a company known as Mpire Realty Group Ltd. and other Mpire group of companies for a period of 16 years. His last position with Mpire was a licence appraiser.
16. On or about November 28, 2019, Cavanagh resigned from his employment at Mpire.
17. Subsequently, Cavanagh retained the solicitor [Mr. Franklin] in respect of issues that Cavanagh has alleged that he has with Enzo.
18. As a result of the retainer of the solicitor, Cavanagh and [Mr. Franklin] embarked on a scheme to intentionally cause emotional pain and suffering of the Plaintiffs. The Plaintiffs did suffer emotional pain and suffering.
19. In addition, Cavanagh and [Mr. Franklin] caused there to be damages to the Plaintiffs by reason of intrusion upon seclusion of the Plaintiffs.
20. Particulars of same will be presented in the Plaintiffs' Affidavit of Documents and examinations for discovery, however, some particulars are as follows: a. The Defendants (except Patel and Delire) registered a domain name of "enzomizzi.ca" when they had no relationship to the Plaintiff Enzo Mizzi; b. The Defendants (except Delire) took over the e-mail accounts of Mpire and changed the passcodes; c. All of the Defendants gave the passcodes for the e-mail accounts to third parties; d. All of the Defendants gave out personal information about Enzo to third parties; e. All of the Defendants gave out to third parties information as to the assets of the Plaintiffs; f. All of the Defendants gave all of the information referred to previously to third parties who do business with Enzo; g. [Mr. Franklin] and Cavanagh did all of the above to extort a settlement from Enzo; h. [Mr. Franklin] and Cavanagh did all of the communications with the persons referred to in paragraphs 19(d), (e) and (f) supra so as to put pressure on Enzo to settle claims; i. [Mr. Franklin] and Cavanagh made threats that they were going to continue to go to newspapers and inform the newspapers of allegations as against Enzo; j. [Mr. Franklin] and Cavanagh did communicate with the newspapers to complain of fraud in proceedings in Chicago, Illinois as though the proceedings were still active, after the proceedings in Chicago had been dismissed; k. [Mr. Franklin] and Cavanagh indicated that they intended to take steps to freeze all personal accounts of Enzo, including the corporate and family bank accounts; and l. The Defendant Delire has been viewing the Plaintiff, Enzo Mizzi's, e-mail account and has been designing the web domain: "enzomizzi.ca".
21. The Plaintiffs state that the above conduct consisted of improper intrusion upon seclusion. It is also intentional infliction of pain and suffering by the Plaintiffs.
22. The Plaintiffs state that they suffered damages as a result.
23. The Plaintiffs state that: (a) The above conduct by the Defendants is intentional; (b) The Defendants involved themselves, without justification, in the Plaintiffs' private affairs and concerns; (c) A reasonable person would regard the intrusion upon seclusion as highly offensive, causing distress, humiliation and anguish; and (d) The Plaintiffs suffered emotion and physical pain and suffering caused by the Defendants.
24. The above conduct also was conducted by the Defendants as the Defendants intended to and did, in fact, inflict mental and emotional suffering by the Plaintiffs.

E. Evidentiary Ruling

[25] Before recounting the factual background to the Mizzi family’s action against Mr. Cavanagh, Mr. Franklin, Mr. Patel, and Mr. Delire, it is necessary to address a significant evidentiary issue.

[26] In resisting Mr. Franklin’s motion, Mr. Mizzi adduced copies of what are undoubtedly confidential and privileged solicitor and client email communications between Mr. Cavanagh and his lawyer Mr. Franklin.

[27] Mr. Mizzi was cross-examined as to how he had obtained these confidential and prima facie privileged communications. He testified that after he fired Mr. Cavanagh at the crucial meeting of November 28, 2019, he found the documents in Mr. Cavanagh’s office. At least one document was discovered by accessing Mr. Cavanagh’s Mpire Credit’s computer.

[28] Notwithstanding that there was no waiver of privilege from Mr. Cavanagh, in their responding motion material, their factum, and in their counsel’s argument at the hearing of Mr. Franklin’s s. 137.1 (3) motion, the Mizzi family relied heavily on the confidential privileged email correspondence between Mr. Cavanagh and Mr. Franklin as evidence of Mr. Franklin’s alleged intrusion on seclusion, intentional infliction of emotional harm, and extortion and as a basis to discredit Mr. Franklin’s testimony that he did no such things.

[29] It was Mr. Franklin’s position that the privilege associated with these communications meant that the email messages were not admissible evidence on this motion. During Mr. Franklin’s cross-examination, he was asked questions about the intercepted email communications, but since Mr. Cavanagh had not waived the solicitor and client communications, Mr. Franklin refused to answer the questions without a ruling from the court that he should do so. No motion was brought to compel answers from Mr. Franklin about the email messages.

[30] The significant evidentiary issue then is what is to be done with the prima facie privileged solicitor and client communications.

[31] I have decided - solely for the purposes of the motion now before the court - to admit the email correspondence. I do so for the two reasons.

[32] First, subject to certain exceptions and unless common interest privilege applies, the disclosure of a privileged communication to a third party waives the privilege. The older authorities of this principle establish that privilege is waived even if the disclosure was inadvertent or unintended. [Calcraft v. Guest, [1898] 1 Q.B. 759 (C.A.)]. However, recent case law establishes that inadvertent disclosure does not waive the privilege and that the court has the authority to remedy the disclosure. [Kennedy v. McKenzie, [2005] O.J. No. 2060 (S.C.J.); Aviaco International Leasing Inc. v. Boeing Canada Inc., [2000] O.J. No. 2420 (S.C.J.); Elliott v. Toronto (City) (2001), 54 O.R. (3d) 472 (S.C.J.); Airst v. Airst (1998), 37 O.R. (3d) 654 (Gen. Div.); Cineplex Odeon Corp. v. Canada (Attorney General), [1994] O.J. No. 628 (Gen. Div.); Tilley v. Hails (1993), 12 O.R. (3d) 306 (Gen. Div.). A.W. Bryant, S.N. Lederman, M.K. Fuerts, The Law of Evidence in Canada (5th ed), (Canada: LexisNexis, 2018), section 14.177]

[33] In exercising its discretion about the privilege associated with an inadvertently disclosed privileged document, the court will consider such factors as the manner and extent of the disclosure, the content of the privileged material and the degree to which it is prejudicial, the response to the disclosure, the extent of the review of the privileged material, the stage of the litigation, the actual or perceived unfairness to the opposing party, the potential effectiveness of an information firewall or other precautionary steps to mitigate the disclosure, and the impact on the due process and fairness of the proceedings. [Drake Holdings Ltd. v. Chubb Insurance Co. of Canada, 2018 ONSC 4494; 1784049 Ontario Ltd. (c.o.b. Alpha Care Studio 45) v. Toronto (City), [2010] O.J. No. 764 (S.C.J.); 2000768 Ontario Inc. v. 514052 Ontario Ltd., [2006] O.J. No. 4386 (S.C.J.); Celanese Canada Inc. v. Murray Demolition Corp., 2006 SCC 36 (S.C.C.)]. In the circumstances of the immediate case for the purposes of this motion that could see the dismissal of the Mizzi family’s action, I shall not exercise the court’s discretion to exclude this important evidence.

[34] Second, it is arguable that the email correspondence for which privilege has not been expressly waived in the immediate case is subject to the crime or fraud exception to privilege.

[35] No privilege is absolute, and if a client seeks guidance from a lawyer to facilitate committing a crime or a fraud, the communication will not be privileged, and it is immaterial whether the lawyer is a knowing participant or unwitting dupe of the client. [Smith v. Jones, [1999] 1 S.C.R. 455; Canada (Privacy Commissioner) v. Blood Tribe Department of Health, [2008] 2 S.C.R. 574; Descôteaux v. Mierzwinski, [1982] 1 S.C.R. 860; Canada v. Solosky, [1980] 1 S.C.R. 821; R. v. Cox and Railton (1884), 14 Q.B.D. 153].

[36] For the purposes only of this motion, I conclude that the email communications are evidence that Mr. Cavanagh sought guidance from Mr. Franklin to facilitate committing the alleged acts of intrusion on seclusion, intentional infliction of emotional harm, and extortion.

[37] For these reasons, I shall admit the email communications as evidence on this motion.

F. Facts

1. Prologue

[38] In this section of my Reasons for Decision, I set out my findings of fact. These findings are for the purpose of this motion only.

[39] I have read the entire evidentiary record and the transcripts of the cross-examinations of Mr. Mizzi, Ms. Mizzi, and Mr. Franklin. The cross-examinations were not particularly helpful as both parties seemed bent on character-assassination relying on many collateral disputes. The effectiveness of the cross-examinations was also hampered by the circumstance that the cross-examinations were conducted virtually in cyberspace. The effectiveness of the cross-examinations was also impaired because of the matter of solicitor and client privilege associated with the communications between Mr. Cavanagh and Mr. Franklin. And, the ultimate probity of the following findings of fact is impaired by the circumstance that Messrs. Cavanagh, Patel, and Delire were not called as witnesses.

[40] Lydia Mizzi, Mr. Mizzi’s wife, might also have been called as a witness. There was hearsay evidence of an encounter between her and Mr. Cavanagh after the crucial meeting of November 28, 2019 that I do not rely on and that I rule inadmissible.

[41] The following narrative focuses on the events between the late summer of 2019 to mid-January 2020.

2. The Events Giving Rise to the Mizzi Family’s Action against Mr. Franklin

[42] In the late summer or early autumn of 2019, Mr. Franklin was retained by Mr. Cavanagh for advice with respect to a possible lawsuit against Mr. Mizzi. Mr. Franklin says that he was retained because of his reputation as an advocate for informed investing practices in the real estate market and because he had been instrumental in disclosing frauds.

[43] Mr. Cavanagh instructed Mr. Franklin that he had been defrauded by Mr. Mizzi. Mr. Cavanagh instructed Mr. Franklin that Mr. Mizzi had refused to pay him a 50% interest in the Mizzi businesses and projects as promised compensation for his long-standing contribution to Mr. Mizzi’s real estate ventures. Mr. Cavanagh told Mr. Franklin that Mr. Mizzi had unlawfully removed Mr. Cavanagh as a director and officer of Mpire Credit. Mr. Cavanagh provided Mr. Franklin with documents with respect to the property and assets of Mr. Mizzi and of members of his family.

[44] Mr. Franklin investigated the matter. In his investigations, Mr. Franklin came to the conclusion that Mr. Mizzi had forged or falsified the government corporate filings of Mpire Credit to remove Mr. Cavanagh as a director and officer of Mpire Credit. He discovered that the mishandling of the corporate registrations had led to the corporation being deregistered with an escheat of its assets.

[45] As part of his investigations, Mr. Franklin’s research led him to believe that Mr. Mizzi had been involved with Paramount Equity Financial Corp., one of the Paramount Group of companies that was subject to an OSC investigation about misleading investors and for illegal trading in securities contrary to the Securities Act. The OSC proceedings had commenced in 2018 and were ongoing. The OSC’s Statement of Allegations identified Mr. Mizzi as having obtained unexplained financial benefits from the Paramount Group.

[46] Mr. Franklin’s research of media reports connected Mr. Mizzi to other investor losses with respect to investments in corporations with which Mr. Mizzi was associated. Mr. Franklin became aware of a fraud action against Mr. Mizzi and his wife in Chicago, Cook County, Illinois.

[47] As part of his investigations, Mr. Franklin met Mr. Patel, a person who believed that he and members of his family had been defrauded by Mr. Mizzi with respect to a mortgage on their property.

[48] On November 5, 2019, Mr. Cavanagh sent Mr. Franklin an email message that indicates that they were, or, at least, Mr. Cavanagh was, creating a website with damning information about Mr. Mizzi’s business activities and connections. (This email message is one of the solicitor and client communications documents about which I have made the evidentiary ruling above.) The email message stated:

Hey David, you may have this already, but here’s one of my emails that I received from Enzo in June 2016. We definitely want to include it on the website that is created for us. It certainly ties Enzo to XXX. Mick.

[49] On November 17, 2019, Mr. Cavanagh sent an email message to Mr. Franklin. (This email message is one of the solicitor and client communications documents about which I have made the evidentiary ruling above.) The email message indicated that some work by Mr. Delire, who it may be recalled is a webpage designer, was finished. The email message invited Mr. Franklin to access a database of 32,000 email messages in Mr. Mizzi’s email account. The email message stated:

Hi David … okay, Ase is finished and everything seems to be in order. […] once you actually get to a sign in page, then the user name and password should work without a problem. Looks like there’s about 32,000 emails! (Lots of them are spam but should [be] lots of good stuff there. Happy reading!) Let’s get together soon and see what we’ve found. In general, I suspect the oldest emails are the most incriminating, so I think I’ll start reviewing from that end. I don’t know if there’s a problem with both of us being signed in at the same time, but if any problems comes up, just call men and I can sign off.

[50] The following day, November 18, 2019, early in the morning, Mr. Franklin sent Mr. Cavanagh the following email message, which message, once again, is found in Mr. Mizzi’s affidavit. (This email message is one of the solicitor and client communications documents about which I have made the evidentiary ruling above.) The email message suggests that Mr. Franklin tried but that he was unsuccessful in accessing the 32,000 email messages in Mr. Mizzi’s email account. The message stated:

Subject: Administrative Account for Enzo@mpire realty.com

You have to explain how I get to open the account. I opened by own Gmail account at your suggestions and tried Enzo@mpirerealty on the google page and nothing happened. Do not give this to Jack [Mr. Patel] yet.

[51] As disclosed again in Mr. Mizzi’s affidavit, around noon on November 18, 2019, Mr. Cavanagh sent an email message to Mr. Franklin. (This email message is one of the solicitor and client communications documents about which I have made the evidentiary ruling above.) The email stated:

As we reviewed, we’ll walk you through getting signed into the Admin account when you have a moment. In the meantime, I’ve gone through the account and I believe I’ve deleted all the “spam” and “bulk mail” that clutters things up. About 100+ email threads or so. Hopefully, it makes things easier to read through.

[52] Pausing here in the narrative, on this motion there is no evidence from Mr. Cavanagh, but it can be inferred from this exchange of emails that Mr. Cavanagh was accessing Mr. Mizzi’s email account and that Mr. Franklin had made an unsuccessful attempt to access the email account.

[53] For the purposes on this motion, I draw the factual inference that Mr. Cavanagh at least was successful in getting into Mr. Mizzi’s account and that he shared the information with Mr. Franklin to instruct Mr. Franklin for negotiations with Mr. Mizzi. I find as a fact that Mr. Cavanagh was, so to speak, supplying Mr. Franklin with ammunition for the negotiations. Mr. Cavanagh was adding to the information being gathered about Mr. Mizzi’s corporations and assets. In this regard, it should be recalled that Mr. Cavanagh claimed that he had a 50% interest in those assets.

[54] In a somewhat Clintonesque response, on this motion, Mr. Franklin denies that he accessed Mr. Mizzi’s account. That may be true, but I find as a fact that Mr. Franklin was aware of what Mr. Cavanagh was doing and Mr. Franklin was receiving information from Mr. Cavanagh taken from Mr. Mizzi’s email account.

[55] On November 28, 2019, Mr. Cavanagh, along with Mr. Franklin went to Mr. Mizzi’s offices. Although Mr. Cavanagh had a lawyer at this meeting, Mr. Mizzi did not have legal representation. Rule 7.2-6 of the Law Society of Ontario’s Rules of Professional Conduct states:

Communications with a Represented Person

7.2-6 Subject to rules 7.2-6A and 7.2-7, if a person is represented by a legal practitioner in respect of a matter, a lawyer shall not, except through or with the consent of the legal practitioner,

(a) approach or communicate or deal with the person on the matter; or

(b) attempt to negotiate or compromise the matter directly with the person.

[56] The matter of Rule 7.2-6 of the Law Society of Ontario’s Rules of Professional Conduct was not raised on this motion and I make no findings about how the meeting at Mr. Mizzi’s office came about. The meeting is ground zero for the litigation between the Mizzi family and Messrs. Cavanagh, Franklin, Patel, and Delire.

[57] At this juncture of the litigation, Mr. Cavanagh’s version of what occurred at the November 28, 2019 meeting is unknown. Mr. Mizzi’s and Mr. Franklin’s accounts of what occurred at this meeting are diametrically opposed.

a. Mr. Mizzi’s evidence is that Mr. Cavanagh demanded that he receive a 50% interest in the assets of Mr. Mizzi’s businesses. Mr. Mizzi alleges that Mr. Cavanagh and Mr. Franklin threatened to expose Mr. Mizzi’s fraudulent activities to the media, to the regulators, and to criminal law enforcement officials. Mr. Mizzi testified that Mr. Franklin mentioned what his research had revealed about Mr. Mizzi’s misdeeds, and Mr. Franklin mentioned the Paramount Group scandal. Mr. Mizzi testified that Mr. Franklin said that he was going to expose to the public that Mr. Mizzi was stealing money from investors in the Paramount Group. Mr. Mizzi said that Mr. Franklin threated to disclose confidential information about family property to the public. Mr. Mizzi said that Mr. Franklin provided him with documents containing confidential information about Mr. Mizzi’s holdings. Mr. Mizzi says that Mr. Franklin bragged about his connections with the media and that he threatened to have Mr. Mizzi’s assets frozen, (which I take to mean a Mareva injunction.). Mr. Mizzi’s evidence is that he dismissed Mr. Cavanagh from employment and ordered Mr. Cavanagh and Mr. Franklin out of the office. b. Mr. Franklin’s evidence confirms that the meeting was about settling accounts between Mr. Mizzi and Mr. Cavanagh. He confirms that the Paramount Group scandal may have been mentioned. He denies, however, that there were any threats of consequences if Mr. Mizzi did not settle with Mr. Cavanagh. Mr. Franklin denies that Mr. Mizzi was shown or given any documents from his research about Mr. Mizzi’s alleged to be fraudulent activities. Mr. Franklin confirms that the meeting ended unsuccessfully and acrimoniously.

[58] Pausing here in the narrative, I conclude that Mr. Mizzi’s account of what occurred at the November 28, 2019 meeting is closer to the truth. For the purposes of this motion only:

a. I find that before the meeting of November 28, 2019, for the purposes of contemplated litigation against Mr. Mizzi, Mr. Cavanagh prepared a list of corporate assets. I find that he prepared a list of targets for a Mareva injunction to tie up Mr. Mizzi’s assets. Before the meeting on November 28, 2019, Mr. Cavanagh accessed Mr. Mizzi’s emails and provided Mr. Franklin with information for the negotiations. Mr. Cavanagh also used the extracted information and other information to create a website https://firespark.appspot.com with confidential and slanderous material. I shall discuss this website below. b. It may be the case that Mr. Franklin did not personally access the information from Mr. Mizzi’s email account, but I find as a fact that he knew that Mr. Cavanagh was doing and Mr. Franklin knew that there were plans to create a webpage to expose the misdeeds of Mr. Mizzi, most particularly his alleged misappropriation of loans from the Paramount Group. c. It may be that Mr. Franklin’s self-labelled zealotry got the better of him, but he has some explaining to do why he received an email message in early November 5, 2019 that indicates that Mr. Cavanagh at least was having a website created with information about Mr. Mizzi. Mr. Franklin has some explaining to do about Mr. Cavanagh’s email message of November 17, 2019 providing advice about how to hack Mr. Mizzi’s email account. Mr. Franklin has some explaining to do as to why he sent an email message on November 18, 2019 stating that: “You have to explain how I get to open the account. I opened my own Gmail account at your suggestions and tried Enzo@mpirerealty on the google page and nothing happened.” Mr. Franklin has some explaining to do about Mr. Cavanagh’s email message of November 18, 2019 about having accessed and deleted the spam to facilitate the scrutinizing of Mr. Mizzi’s email account.

[59] Returning to the narrative, on November 28, 2019, after his meeting with Mr. Mizzi, Mr. Cavanagh sent an email message to Lydia, Christina, Phil, E.J., and Manuele Adrian Mizzi. The message referred to a website https://firespark.appspot.com. The message stated:

Hey Guys,

Just went to see Enzo. He threw me out of his office. Wanted to discuss settling up our 30 years of business together. Just so you know, I have been trying to settle things up with Enzo for many, many years (perhaps 15+ years) but he has kept putting me off. Please have a look at this website before it is published because it affects all you rather severely (I’m sorry about this).

[60] The screen shots of the website reveal defamatory statements and confidential details of Mr. Mizzi’s business, assets and personal connections. The webpage opens with a picture of Mr. Mizzi under the header “ENZO MIZZI – RUN 4 YOUR LIFE”. Then, there is a list of eighteen persons whose bank accounts are to be closed, including thirteen persons named Mizzi. Then there is a list of seventy-three names of persons and entities along with their email addresses who are identified as “Mizzi Primary Associates” The list is followed by a picture of Mr. Franklin who is identified as the “the fraud detective.” There is some information about Mr. Franklin, and this is followed by what appears to be a series of newspaper headlines about investment scandals. Next is a list of seven law firms or lawyers and an invitation to share stories or to obtain further information from them. Next, there is a heading “What’s Enzo been up to? Followed by questions such as: “Where did the money go?” The logos of the OSC, the RCMP and the OPP appear with messages such as “Fraud”, “The authorities are being asked to investigate” and the request “We want to help – This site is to help collect the information”. Next is a reference to bed bug infested residences. (Mr. Mizzi’s business operated some public housing.) Next a reference to legal proceedings in Chicago, where a fraud lawsuit against Mr. Mizzi is proceeding. These comments are followed by miscellaneous materials that seem to identify a group of persons who will provide answers to the questions about Mr. Mizzi’s activities. The website continues with five photos of Mizzi family residences and offices. Then there are images of materials from the fraud litigation in Chicago, which images appear to have been captured from a public viewing terminal. Then there is a list of fifteen residential projects in which Mr. Mizzi was involved as a developer. This is followed by information about North 44 Property Management, a Mizzi enterprise. Next are copies of materials from the OSC proceedings involving the Paramount Group. Then a concluding comment that Mr. Mizzi has a net worth of $280 million.

[61] If it is true, as he deposed during cross-examination, that Mr. Franklin did not know about the firespark documents until Mr. Mizzi produced similar documents in different litigation in mid- 2020 or when the material showed up in Mr. Mizzi’s affidavits in this litigation, he may have to explain why he did not know that his client immediately after the November 28, 2019 meeting sent an email message to Lydia, Christina, Phil, E.J., and Manuele Adrian Mizzi with a link to https://firespark.appspot.com.

[62] For the purposes of this motion, I find as a fact that Mr. Cavanagh was involved in the creation of this website. If Mr. Franklin was not involved, he may have to explain why he let his client engage in internet troll litigation.

[63] Pausing here, I note that https://firespark.appspot.com may have been available on the internet only for a short time because it was eventually taken down. It is not known to what extent the link was accessed by the numerous people identified on the screen shots. It is not known if Mr. Cavanagh sent messages about the link to others and if he did how many others.

[64] Returning to the narrative, perhaps prompted by Mr. Cavanagh’s email message to the Mizzi family or for some other reason, Mr. Mizzi had his lawyer Michael Simaan reach out to explore whether a settlement between Mr. Mizzi and Mr. Cavanagh could be reached. A meeting was arranged for December 5, 2019.

[65] On December 5, 2019, there was another meeting between Mr. Cavanagh and Mr. Franklin with Mr. Mizzi, this time represented by Mr. Simaan. The parties have provided little information about this meeting, apart from the fact that they are on common ground that there was no settlement.

[66] Also, on December 5, 2019, Grant Thornton Ltd., the Paramount Group’s court-appointed receiver commenced an action in which Mr. Mizzi and his corporations were joined as defendants. Grant Thornton alleged that Paramount Group loan funds had been diverted to Mr. Mizzi and his corporations. According to Mr. Mizzi’s evidence, the Paramount Group scandal had been discussed at the November 28, 2019 meeting and, as I shall explain below, the considerable publicity associated with this scandal has a critical role to play in the Mizzi family’s action and in Mr. Franklin’s s. 137.1 (3) motion.

[67] After December 5, 2019, the receiver’s action against Mr. Mizzi was widely reported, including in news reports in the Globe and Mail on December 8, 2019. As part of the media attention, sometime between December 5 and December 17, 2019, Mr. Franklin met with the consumer news reporters from Global News. Mr. Franklin was interviewed, and the interview was video recorded.

[68] On December 17, 2019, Global News broadcast a news report about the Paramount Group scandal. The news reporters had interviewed several individuals who had lost their investments by investing with the Paramount Group. As noted above, Global News also interviewed Mr. Franklin about the Paramount Group scandal. Snippets of Mr. Franklin’s interview were included in the broadcast. In his interview, Mr. Franklin criticized the regulators in failing to protect the public, and he stated that investors should seek legal counsel before investing in mortgages. In response to a question about the Paramount Group’s receiver’s action, Mr. Franklin commented that actions tended to be futile because the plaintiff would run out of money. Mr. Franklin spoke about the Paramount Equity scandal about syndicated mortgages. Mr. Franklin’s interview was interspersed with information about Mr. Mizzi’s involvement with Paramount Equity.

[69] I pause here to note that at no time was a libel notice in accordance with s. 5 of the Libel and Slander Act, served with respect to the broadcast of news by Global News or by any other media.

[70] On December 19, 2019, Mr. Cavanagh sent an email message to Lydia, Christina, Phil, E.J., Joe, Natasha, Manuele Adrian, and Carmelo Mizzi. The message included a link to the news video and stated: “Hey Guys, my lawyer, David Franklin has started the process. Did you see his interview on Global News on Tuesday?”

[71] I take from Mr. Cavanagh’s email that Mr. Cavanagh was promoting the video as some sort of process to encourage a settlement of Mr. Cavanagh’s claim. If so, Mr. Franklin may need to explain what Mr. Cavanagh actually meant with the veiled threat “David Franklin has started the process.”

[72] On December 25, 2019, Mr. Mizzi’s wife received an email message from an anonymous sender with the email address paramountvictim53@gmail.com. The troll message stated:

Subject: Merry Christmas

Hello Fraudster’s wife

Hmmmm? Maybe I should call you’re a fraudster as well. Because, according to tort law, you are just as guilty as your husband. Take a few minutes from designing your Bayview Ave house, which was paid for with proceeds from crime and familiarize yourself with the definition of “perpetrator to a crime”. … Hope your enjoying the money your husband stole from innocent people which the OPP and RCMP is looking into. I understand your in Florida in Naples now – hopefully when your [sic] back a second interview with more victims of your husband’s fraud will air …. Enjoy it will you can. Maybe watch an episode of “orange is the new black …

[73] Mr. Franklin has denied having anything to do with this email message. I am unable to make a determination on this point. I cannot determine whether this email message was a consequence of Mr. Cavanagh’s “process” or a consequence of the widespread media reports about the Paramount Group scandal, or a consequence of the Global News broadcast, or a consequence of the https://firespark.appspot.com post on the Internet. The email message is some evidence that the Mizzi family was experiencing stress and emotional harm.

[74] On December 31, 2019, Mr. Mizzi’s legal counsel, Ron Chapman, wrote Mr. Franklin and the litigation now before the court commenced three weeks later.

[75] On January 14, 2020, by email, Mr. Franklin contacted the regulators and invited them to investigate Mr. Mizzi. Mr. Franklin deposes that he did so in an effort to protect the public and his client Mr. Cavanagh.

[76] Mr. Franklin sent email messages to: (a) the Honourable Doug Downey, Attorney General of Ontario; (b) Liana Brown of the Government of Ontario’s Ministry of Finance; and (c) the RCMP. Mr. Franklin advised them that Mr. Mizzi had forged documents and he requested an investigation. Mr. Franklin received no response to these entreaties. Mr. Franklin wrote letters to various lawyers acting for Mr. Mizzi advising them of the likelihood of criminal proceedings against Mr. Mizzi.

[77] For present purposes, I shall leave it for some other day for a determination of the appropriateness of any of these communications.

[78] I simply note that there is a live issue about whether Mr. Franklin’s actions before, at, and after the meeting of November 28, 2019 crossed the line of proper activism drawn by rule 3.2-5 of the Law Society of Ontario’s Rules of Professional Conduct, which states:

Threatening Penal or Regulatory Proceedings

3.2-5 A lawyer shall not, in an attempt to gain a benefit for a client, threaten, or advise a client to threaten, without reasonable and lawful justification:

(a) to initiate or proceed with a charge for an offence, including an offence under

(i) the Criminal Code or any other statute of Canada;

(ii) a statute of a province or territory of Canada; or

(iii) a municipal by-law; or

(b) to make a complaint to a regulatory authority.

Commentary

[1] It is an abuse of the process of a court or, ordinarily, a regulatory authority to threaten to make or advance a charge or complaint in order to secure the satisfaction of a private grievance. Even if a client has a legitimate entitlement to be paid monies, threats to take penal action are not appropriate.

[2] It is not improper, however, to notify the appropriate authority of conduct that may attract penal or regulatory consequences while also taking steps through the civil system. Nor is it improper for a lawyer to request that another lawyer comply with an undertaking or trust condition or other professional obligation or face being reported to the Law Society. The impropriety stems from threatening to use penal or regulatory proceedings for unintended purposes.

[3] A complaint to a regulatory authority is justified if it is reasonable and lawful, for example when a regulatory process is intended to provide redress or a remedy to individuals for the matter complained of.

[79] I shall end this account of the factual background by saying that the evidentiary record was bloated with material from other litigation past and present to paint Mr. Mizzi as having so tarnished a reputation that his reputation was a dead horse past injury and past resuscitation. Some of the evidentiary record seemed designed to paint Mr. Franklin as being an unruly vigilante for justice. For present purposes, I need not say anything about this evidence. This motion can be determined by the evidence of the events between November 2019 and the middle of January 2020.

G. Discussion and Analysis

[80] As foreshadowed at the outset, Mr. Franklin’s s. 137.1 (3) motion turns on its facts. Save for a discussion of the proper approach to determine when a proceeding “arises from” an expression, it is not necessary to undertake an exegesis of the law of s. 137.1 (3) motions. I shall apply the law that was recently expounded by the Supreme Court of Canada in 1704604 Ontario Ltd. v. Pointes Protection Association, 2020 SCC 22, and Platnick v. Bent, 2020 SCC 23, to the facts of this case. [See also: Subway Franchise Systems of Canada, Inc. v. Canadian Broadcasting Corp., 2021 ONCA 26; B.W. (Brad) Blair v. Premier Doug Ford, 2020 ONSC 7100; Zoutman v. Graham, 2019 ONSC 2834, affd. 2020 ONCA 767].

[81] I begin the discussion of Mr. Franklin’s s. 137.1 (3) motion by noting that the Mizzi family has not pleaded a defamation action and because of the absence of the prerequisite of the libel notice, a defamation claim is statute-barred. However, while perhaps overly succinct and therefore somewhat vague, the Mizzi family’s Statement of Claim does advance claims for intrusion on seclusion and for intentional infliction of emotional harm.

[82] The elements of intrusion on seclusion are: (1) the defendant intentionally or recklessly without lawful justification intrudes physically or otherwise upon the seclusion of the plaintiff in his or her private affairs or concerns; (2) the invasion would be highly offensive causing distress, humiliation or anguish to a reasonable person. [Hopkins v. Kay, 2014 ONSC 321; Jones v. Tsige, 2012 ONCA 32].

[83] It should be noted that intrusion upon seclusion can be a largely private matter and does not necessarily involve publication of confidential information in the public domain. In Jones v. Tsige, 2012 ONCA 32, the defendant was an employee of the Bank of Montreal. On at least 174 occasions, the defendant scrutinized the banking records of the plaintiff at the bank. The plaintiff was the ex-married wife of the defendant’s ex-common law husband. The plaintiff was awarded $10,000 in damages for intrusion on seclusion; i.e., for the invasion of her privacy. The mere fact that her personal bank records were examined was a source of anguish and distress.

[84] The Mizzi family also advances a claim for extortion. I agree with Mr. Franklin’s submission that there is no civil tort of extortion. However, there is a tort of intimidation, but it appears that not all of the elements of this claim are present in the immediate case.

[85] Intimidation is committed when the defendant threatens to commit an unlawful act and in so doing causes loss to the person threatened (two-party intimidation) or to a third party (three-party intimidation). The elements of a claim of intimidation are: (1) the defendant coerces the plaintiff or others to the injury of the plaintiff to act or to refrain from doing an act; (2) the defendant uses a threat as a means of compulsion; (3) the defendant intends to injure the plaintiff; (4) the threat involves the use of unlawful means; (5) the plaintiff complies with the demand; and, (6) the plaintiff suffers damage. [The Score Television Network Ltd. v. Winner International Inc., 2007 ONCA 424; R.W.D.S.U., Local 558 v. Pepsi-Cola Canada Beverages (West) Ltd., 2002 SCC 8; Daishowa Inc. v. Friends of the Lubicon (1996), 27 O.R. (3d) 215 (Div. Ct.); Roehl v. Houlahan (1990), 75 O.R. (2d) 482 (C.A.); Canada Potash Co. v. Saskatchewan, [1979] 1 S.C.R. 42; Roman Corporation Ltd. v. Hudson's Bay Oil and Gas Co. Ltd., [1973] S.C.R. 820; Rookes v. Barnard, [1964] A.C. 1129 (H.L.)].

[86] In the immediate case, the problem for the Plaintiffs is that the alleged intimidation was to coerce a settlement and Mr. Mizzi resisted the coercion and did not succumb to the intimidation. That said, the other elements of the intimidation claim are present, and those elements complement or supplement the intrusion on seclusion claim. There is also the possibility that the elements of the tort of intimidation may encompass the unusual or peculiar facts of the immediate case.

[87] The elements of a claim of intentional infliction of mental suffering are: (1) the defendant’s actions are flagrant and outrageous; (2) the defendant intends to harm the plaintiff or the defendant knows that his or her conduct will cause harm; and, (3) the plaintiff suffers a visible and provable illness. [Piresferreira v. Ayote 2010 ONCA 384; Correia v. Canac Kitchens, a division of Kohler Ltd., 2008 ONCA 506; Parklane Consulting Inc. v. Royal Group Technologies Ltd., [2007] O.J. No. 107 (S.C.J.): Prinzo v. Baycrest Centre for Geriatric Care (2002), 60 O.R. (3d) 474 (C.A); High Guay v. Sun Publishing Co., [1953] 2 S.C.R. 216; Wilkinson v. Downton, [1897] 2 Q.B.D. 57]. At the moment, the apparent weak or suspect element of this cause of action is the absence of evidence of a visible and provable illness amongst the Mizzi family plaintiffs. However, once again, the elements of the intentional infliction of mental suffering that are present complement or supplement the intrusion on seclusion claim.

[88] These being the causes of action that are being advanced, relying on s. 137.1 (3) of the Courts of Justice Act, Mr. Franklin seeks to have the claims dismissed. For Mr. Franklin to succeed, he must satisfy the court that the proceeding arises from an expression by Mr. Franklin that relates to a matter of public interest.

[89] Mr. Franklin submits that he had nothing to do with the intrusion on seclusion aspects of the Mizzi family action because he had nothing to do with the hacking of Mr. Mizzi’s email and therefore, Mr. Franklin argues that the action against him is based solely on his interview on Global News. Thus, he argues that in accordance with the language of s. 137.1 (3) of the Courts of Justice Act, he has satisfied the onus on him of showing that the proceeding “arises from” an expression that relates to a matter of public interest; i.e., the Mizzi family proceeding arises from his comments made on the Global News broadcast.

[90] I agree with Mr. Franklin that his comments made on the Global News broadcast were an expression that relates to a matter of public interest. However, based on my findings of fact made for the purposes of this motion, I am not satisfied that Mr. Franklin has insulated himself from the intrusion on seclusion aspects of the Mizzi family action, and I am not satisfied that their action “arises from” the Global News broadcast.

[91] In my opinion, the Mizzi family action arises from what took place before, at, and after the November 28, 2019 meeting between Mr. Mizzi and Mr. Cavanagh and Mr. Franklin regardless of the Global News broadcast which is coincidental or incidental to the gravamen of their complaint.

[92] That the Global News broadcast is not the source from which the Mizzi family action arises can be quickly demonstrated by the thought experiment of assuming that it never happened. Mr. Mizzi and his family would still suffer the anguish, embarrassment, and distress caused by the alleged intrusion on their seclusion and privacy and Mr. Mizzi would still have suffered the alleged extortion or intimidation of Mr. Cavanagh’s and Mr. Franklin’s approach to negotiating a settlement of Mr. Cavanagh’s claim for a 50% interest in the family’s treasures.

[93] Mr. Franklin has not been successful from isolating himself from what happened before, at, and after the meeting of November 28, 2019. Based on the factual record for this motion, I am not satisfied that the Mizzi family’s action is a proceeding arising from an expression by Mr. Franklin that relates to a matter of public interest.

[94] In 1704604 Ontario Ltd. v. Pointes Protection Association, 2020 SCC 22, Justice Côté discussed the proper approach to determine when a proceeding “arises from” an expression. She stated at paragraph 24:

24. Second, what does “arises from” require”? By definition “arises from” implies an element of causality. In other words, if a proceeding “arises from” an expression this must mean that the expression is somehow causally related to the proceeding. …. This means that proceedings arising from an expression are not limited to those directly concerned with expression such as defamation suits. A good example of a type of proceeding that is not a defamation suit, but that nonetheless arises from an expression and falls within the ambit of s. 137.1 (3) is the underlying proceeding here, which is a breach of contract claim premised on an expression made by the defendant.

[95] Based on the factual record, I am not satisfied that there is a causal link between Mr. Franklin’s comments on the Global News broadcast and the Mizzi family’s action and it cannot be said that their action “arises from” Mr. Franklin’s participation in that program. What Mr. Franklin said does not ground their claim.

[96] What Mr. Franklin said, is an aspect of their claim, but it is not the source or the gravamen of it. It cannot be said that but for his participation in that broadcast, there would be no basis to sue Mr. Franklin. As the thought experiment above demonstrates, Mr. Franklin would have been a target for an intrusion on seclusion claim even if he had kept his mouth shut and holstered his pen. The Mizzi family did not initiate their action to muzzle Mr. Franklin’s freedom of expression about the regulation of investments in real estate projects.

[97] I appreciate that s. 137.1 (3) is not limited to causes of action that are directly concerned with expression such as defamation suits, and I appreciate that the legislation to protect freedom of expression on matters of public interest may encompass other causes of action including breach of contract and negligence and perhaps even intrusion on seclusion. However, based on the factual record of this case, I am not satisfied that the Mizzi family’s causes of action are caught by s. 137.1 (3).

[98] Mr. Mizzi and his family are not advancing a claim that arises from an expression as was the case in Subway Franchise Systems of Canada, Inc. v. Canadian Broadcasting Corp., 2021 ONCA 26, where the plaintiff fast food franchisor’s negligence claim against Trent University for its testing of its sandwiches was dismissed pursuant to s. 137.1 (3) and (4) as an action arising from the expression of a matter of public interest.

[99] In the Subway Franchise Systems case, the university’s test results had been reported on a CBC news program and thus there was a logical causal tether to suggest that the plaintiff’s action arose from the expression of a matter of public interest. There was nothing otherwise culpable about what the university did, which was to express test results for a program of interest to the consumer public. The expression of the test results was integral to the plaintiff’s negligence claim, including matters of the duty of care, whether the duty was breached, and damages. The same cannot be said about the Mizzi family’s intrusion on seclusion claim which is not dependent on whether Mr. Franklin went public about what he knew about the problem of syndicated mortgage investments and about the connection between Mr. Mizzi and the Paramount scandal.

[100] In the immediate case, the plaintiffs did not serve a libel notice precisely because defamation did not define the ambit of their grievances. My impression is that it was an advertent not an inadvertent decision not to serve a libel notice. It is not defamatory to disclose that a person is rich, but it may be an invasion of the person’s privacy to have one’s richness paraded out for public inspection and derision as demonstrated by the hateful email sent to Mrs. Mizzi. It is not an expression of a matter of public interest to hack into someone’s email. It is not an expression of a matter of public interest about expressions and veiled threats used in settlement discussions. Expression is not the gravamen of the Mizzi family’s causes of action.

[101] Because Mr. Franklin has not satisfied the prerequisites of s. 137.1 (3), the onus of proof being on him, it is not necessary or even proper to consider the criterion in s. 137.1 (4), the onus of which is on the Mizzi family to establish. Only if the plaintiff satisfies the criteria set out in s.137.1 (3), will the criteria set out in s. 137.1 (4) be applicable. [Subway Franchise Systems of Canada, Inc. v. Canadian Broadcasting Corp., 2021 ONCA 26 at para. 33].

H. Conclusion

[102] For the above reasons, Mr. Franklin’s motion is dismissed.

[103] If the parties cannot agree about the matter of costs, they may make submissions in writing beginning with the plaintiffs’ submissions within twenty days of the release of these Reasons for Decision followed by Mr. Franklin’s submissions within a further twenty days.

Perell, J.

Released: March 3, 2021