Court File and Parties

COURT FILE NO.: 19-68169 DATE: 2021-03-10 ONTARIO SUPERIOR COURT OF JUSTICE

B E T W E E N:

Heffner Investments Limited, Plaintiff Darrell N. Hawreliak, for the Plaintiff

- and -

Medcap Real Estate Holdings Inc., Defendant F. Scott Turton, for the Defendant

HEARD: January 11 and February 16, 2021

Reasons for Judgment

A.J. GOODMAN J. :

[1] This is a motion for summary judgment brought by the plaintiff.

[2] The plaintiff, Heffner Investments Limited (“HIL”) is a corporation whose principal is Willy Hefner, (“Heffner”). In this action the plaintiff asks for summary judgment for $2,505,000.00 plus interest, less interest payments received, (the “Heffner Indebtedness”) secured by a Promissory Note dated February 28, 2014 (the “Note”), and a second mortgage on real property municipally known as 635 Upper Wentworth Street, Hamilton, Ontario registered on February 28, 2014 (the “Mortgage”). A demand for payment of the Heffner Indebtedness was made on October 5, 2016 and has not been repaid.

[3] The defendant, Medcap Real Estate Holdings Ltd. (“Medcap”) is a corporation whose principal is John Cardillo (“Cardillo”).

[4] The deponents of the affidavits on this motion are Heffner on behalf of the plaintiff and Cardillo on behalf of the defendant. There are three affidavits by Heffner (July 24, 2018, September 13, 2018, and June 3, 2019), and two by Cardillo (August 13, 2018 and January 6, 2020). Each deponent was cross-examined and each provided some responses to undertakings.

[5] After the first appearance before me and based on the initial submissions of defendant’s counsel, I afforded an opportunity to all parties to conduct further cross-examinations on their affidavits in order to clarify certain issues, which was not undertaken.

[6] While there is a companion rule 20.01 motion before me, this specific action relates to the Heffner Indebtedness as purported to be evidenced and secured by the Note, the Mortgage, and the Loan and Priorities Agreement.

[7] For the reasons that follow, the motion for summary judgement is dismissed.

Legal Principles:

[8] Under Rule 20.01 (1) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, a plaintiff may move for summary judgment on all or part of a claim in the Statement of Claim, with supporting affidavit material or other evidence, after the defendant has delivered a Statement of Defence.

[9] Summary judgement is available when the court is satisfied that there is no genuine issue requiring a trial with respect to a claim or defence. In determining whether a genuine issue is present, the court must consider the evidence submitted by the parties and relevant legal principles. In doing so, the judge may exercise any of the following powers for this purpose, unless the interest of justice require that such powers be exercised only at a trial, including the weighing of the evidence, evaluating the credibility of a deponent and drawing reasonable inferences: Hryniak v. Mauldin, 2014 SCC 7, at paras. 43, 44 and 45.

[10] The evidence is deemed to be sufficient to grant summary judgment if the motions judge is confident that the dispute can be resolved fairly. The evidence does not need to be the same as equivalent to the evidence at a trial: Hryniak, at para. 57.

[11] A judge should determine if there is a genuine issue requiring a trial based only on the evidence before him/her, without using the new fact-finding powers. There will be no issue requiring a trial if the summary judgment process provides him/her with the evidence required to fairly and justly adjudicate the dispute under rule 20.04(2.1) and (2.2). A judge may employ the expanded fact-finding powers at his/her discretion, provided that it is not against the interests of justice and will lead to a fair and just result and will serve the goals of timeliness, affordability and proportionality in light of the litigation as a whole: Hryniak at para. 66.

[12] The mere possibility that a defence may exist if the action is permitted to proceed to trial is not sufficient. Where the plaintiff has made out a prima facie case, the defendant must show the defence has a real chance of success. Each side must “put their best foot forward”.

[13] The judge is entitled to draw inferences from the evidence on a common-sense basis and may look to the overall credibility of a party’s case. Merely raising an issue of credibility will not be an answer. Issues of credibility must be genuine and not spurious: Bhakhri v. Valentim 2012 ONSC 2817 at para. 8.

Plaintiff’s Position and Alleged Facts:

[14] On or about February 28, 2014, HIL advanced loan proceeds of $4,632,706.24. Of that amount, $2,103,000.20 was paid to Mr. Stephan Frankel, a lawyer acting for the purchaser of 221 York Blvd., Hamilton, repayment to be secured by a first mortgage registered on title to that property (“the Hess Advance”). The sum of $2,505,000.00 was applied to pay an amount described as the “Heffner Indebtedness” in a Loan and Priorities Agreement (“the LP Agreement”), repayment to be secured by the Note and the Mortgage. The balance of $24,706.24 was applied to the transaction costs.

[15] The Hess Advance was repaid in full on August 16, 2018 and the Mortgage registered in favour of HIL on title to 221 York Blvd., Hamilton, Ontario has been discharged.

[16] From the proceeds of sale of 221 York Blvd, Hamilton, a sale that could not have been completed without the Hess Advance from HIL, the “Cardillo Family/Giselle Briden” received $1,000,000.00.

[17] The plaintiff says that the “Heffner Indebtedness” is an acknowledgement of part of a larger debt created as the result of dealings between companies owned or controlled by Cardillo on the one hand (the “Cardillo Group”) and Heffner on the other (the “Heffner Group”) over a period of many of years. Prior to the signing of the LP Agreement, the debt owed by the Cardillo Group consisted of amounts owing for equipment leases and other loans. Some of the loans were evidenced by promissory notes. Cardillo had personally guaranteed payment for all the leases and the promissory notes. As at February 28, 2014, the plaintiff says that the amount owed by the Cardillo Group and Cardillo (the “Entire Debt”) included:

a) 22 equipment leases pursuant to which $1,777,647.12 was owing with interest at the rate of 2% per month; b) 4 Promissory Notes of various amounts totalling $1,601,637.87 with interest at 13.75 % per year; and c) Unsecured loans totalling $1,103,050.04

[18] In the second draft of the LP Agreement and in the signed LP Agreement, the “Heffner Indebtedness” is defined:

“AND WHEREAS [Medcap] and other corporations and parties related to or associated with [Medcap] are indebted under a series of promissory notes and certain leases to Heffner Auto Sales and Leasing Inc. and to Heffner Leasing Limited (collectively the “Heffner Creditors”) in the total amount of $2,500,000.00 (the “Heffner Debt”);

AND WHEREAS [Medcap] has requested that [Heffner Investments Limited] advance an amount sufficient to repay the Heffner Debt and to provide additional funds to [Medcap] and [Heffner Investments Limited] has agreed to provide such a loan to [Medcap], upon the terms and conditions in this agreement, which loan shall be in the amount of $2,505,000.00 and shall bear interest at the rate of 2.2% per annum, calculated semi-annually not in advance, (such loan and interest being herein referred to as the “Heffner Indebtedness”).

[19] In addition to the Note, the plaintiff says that Medcap offered the Mortgage as security for repayment of the Heffner Indebtedness. However, Medcap could not grant a second mortgage on the Lands unless Scott Wilson (“Wilson”) and Physiomed Health Holdings Inc. (“Physiomed”), agreed to share their existing secured priority with HIL. Medcap proposed that the issue be resolved by what was initially called a “Postponement and Pari Passu Agreement” and which, after negotiation, became the LP Agreement dated February 4, 2014 and signed on or about February 28, 2014.

[20] In essence, the LP Agreement provides that upon HIL advancing $2,505,000.00, those funds were to be (and in fact were) applied to repay $2,500,000.00 of the Entire Debt thereby, among other things, extinguishing Cardillo’s personal liability for that amount in exchange for which HIL received an acknowledgement of some of the Entire Debt, a fresh debt instrument (the Note) and fresh and improved security for repayment in the form of the Mortgage. HIL, Wilson and Physiomed agreed between themselves that in the event HIL on the one hand or Wilson and Physiomed on the other should realize upon their mortgage security registered on title to the Lands, then they would share pari passu. The sum of $5,000.00 was applied to Medcap’s legal fees as directed.

[21] The two earlier drafts and the final version the LP Agreement were drafted by Medcap’s lawyer, Ms. Tabuchi. Medcap received independent legal representation throughout the negotiations leading up to the signing of the LP Agreement.

[22] In no draft of the LP Agreement, or in the signed LP Agreement itself, does the description of the “Heffner Indebtedness” include a reference to the Hess Advance, to 221 York Blvd. or to a mortgage to be registered on title to 221 York Blvd. The Heffner Indebtedness is secured in part by a Promissory Note:

FOR VALUE RECEIVED, the undersigned promises to pay, to the order of Heffner Investments Limited, at Kitchener, Ontario, the sum of Two Million Five Hundred and Five Thousand ($2,505,000.00) dollars, with interest at the rate of 2.2 percent per annum, calculated semi-annually, not in advance, with the interest to be paid monthly on the 28th of each month, commencing March 28, 2104 and continuing on the 28th day of each month thereafter until the principal has been repaid and the principal shall be payable on demand.

Presentment, notice of dishonour, protest and notice of protest are hereby waived by the undersigned.

[23] The plaintiff says that its indebtedness is also secured by the Mortgage. The Standard Charge Terms provide for the usual covenants including the promise to pay, acceleration upon default, costs added to principal, possession on default and the remedy of power of sale.

[24] Medcap made some interest payments totalling $33,295.00 on account of the Heffner Indebtedness. Medcap had provided a series of postdated cheques to be applied to the monthly interest payment but asked HIL not to cash any of them dated after December 31, 2014. HIL saved those postdated cheques. On the face of each postdated cheque that HIL did not cash are the underlined words “Memo: Upper Wentworth”.

[25] Medcap again appeared to acknowledged the Mortgage and the Heffner Indebtedness in writing on July 19, 2016 in an email addressed to Heffner from Cardillo, (writing on behalf of Medcap), in which Cardillo writes: “I am trying to make an arrangement with CRA on the debt owing to them, and they have requested that through my lawyer Neil Bass, give (sic) them a balance of each mortgage registered on the Upper Wentworth property. Please provide this information to my lawyer, Neil Bass, on your company letterhead that holds the mortgage. I need this today. Thank you. John Cardillo”.

[26] Medcap alleges that Heffner is knowingly advancing a false claim, referring to the plaintiff’s claim as a “sham”. Heffner responds that Medcap offers no credible, objective proof of this serious accusation. This is not supported only by the terms of the Mortgage but also in circumstances in which unfounded allegations of fraud and dishonesty have been made.

[27] The plaintiff says that the Note is straightforward and is a Bill of Exchange and that this is fundamentally a case that can be determined on the documents.

[28] The plaintiff submits that this matter is ripe for summary judgement. The Note is an unconditional written promise to pay a certain sum signed by the defendant payable to the plaintiff on demand, which has not been fulfilled.

Defendants’ Alleged Facts and Position:

[29] The defendant says that there is a fundamental difference between the plaintiff and the defendant. Both agree that in February 2014 the plaintiff advanced $2.1 million. Both agree that the plaintiff received a mortgage for $2.1 million. There is no dispute that the $2.1 million mortgage has now been repaid.

[30] The defendant says that with that repayment the defendant owes nothing to the plaintiff. The plaintiff apparently gave its own lawyer $2.5 million in trust and that lawyer then paid that same money back to the plaintiff the same day that created a second debt for which the plaintiff says the defendant is responsible.

[31] The defendant argues that the affidavit evidence is flush with differing versions of events by the parties and the determination of the case will be highly dependent upon assessments of credibility. Moreover, this matter goes beyond just the Note as framed by the plaintiff or the documents filed. For this, and other reasons, this case is not one suited to summary judgment. This is a 2016 action in which no discoveries have been held and no affidavits of documents served. Other than this summary judgment motion started three years ago, the action has not progressed past the pleadings stage. Moreover, this action is now tied to two other actions that similarly have not progressed past the pleadings stage in their four-year life.

[32] The defendant submits that this summary judgment motion has contributed nothing to the goals of proportionate, timely, and affordable justice and this matter must proceed to trial on a full record and assessments of credibility.

Analysis:

[33] The origin of the loan transaction that animates this action is in a building in Hamilton. Cardillo explains that in 2003 a company of which he was the principal, 1554080 Ontario Inc. (“155”) purchased the building at 221 York Boulevard in Hamilton (“221 York”). Cardillo was interested in developing the site into a mixed-use retail/commercial complex or a residential condominium. Cardillo and Heffner had business dealings previously and Cardillo approached him circa 2013 about partnering with him in developing the building. Cardillo states “Willy Heffner liked the idea and agreed to partner with me in the redevelopment of the building.” Heffner swore an affidavit on June 3, 2019 in reply to Cardillo’s affidavit, and while Heffner disputes many things in the Cardillo affidavit, he does not dispute that statement. An examination of the events between Cardillo and Heffner may properly take account of the partnership relation between them and the fiduciary duties entailed by that relationship.

[34] It appears that the problem that the amendment created was that the sale did not generate enough cash to discharge the existing first mortgage on 221 York in favour of First National Financial GP Corporation (“First National”). That mortgage was for $2.5 million registered against both 221 York and Medcap’s building at 635 Upper Wentworth. To close the sale 155 would need to inject money into the transaction sufficient to be able to discharge First National, but 155 did not have the money to do that. Cardillo approached Heffner about lending $2.5 million secured by way of the second mortgage on 635 Upper Wentworth. Heffner in his reply affidavit does not take issue with these events up to this point. He agrees that “In early February of 2014 Mr. Cardillo asked me for financing to enable the Mosque to purchase 221 York Blvd. for cash.”

[35] Cardillo realized that his second mortgage proposal would not work because the existing second mortgage to First National was collateral to its mortgage on 221 York, and when that mortgage was discharged so too would be the collateral second on 635 Upper Wentworth. To provide Heffner with a mortgage in second place on 635 Upper Wentworth it would have to be a new mortgage, not an assignment of the existing First National second mortgage.

[36] However, a new mortgage to Heffner would require the existing third mortgage holder on Upper Wentworth, Scott Wilson, (“Wilson”) to postpone to a new mortgage in favour of Heffner. Cardillo deposed that he discussed this with Wilson and Heffner and what the parties came up with was the concept that there be an agreement that Heffner and Wilson’s mortgages would rank pari passu.

[37] In Heffner’s affidavit of July 24, 2018, he provides the initial draft of the Postponement and Pari Passu Agreement among Medcap, Heffner and Wilson (and Wilson’s company Physiomed Health Holdings Inc.). This document may appear to be consistent with Cardillo’s description of the loan from Heffner, namely $2.5 million secured by a second mortgage on 635 Upper Wentworth, with the added terms between Heffner and Wilson to create parity among their respective mortgages.

[38] The Postponement and Pari Passu Agreement was not signed. Heffner states that he does not agree with the description and characterization of the negotiation set out in paras. 18 to 23 of the Cardillo August 13, 2018 affidavit. Heffner states that: “The arrangement finally proposed by Mr. Cardillo himself, not me, is described in an email he sent to me dated February 17, 2014 and marked as Exhibit B to this my affidavit.” In paras. 4 and 5 of the plaintiff’s Reply to the Statement of Defence the plaintiff states that it is the February 2014 email which is “the agreement which led to the creation and signing of the promissory note and mortgage” [i.e. what the plaintiff is suing for in respect of in this action].

[39] As both plaintiff and defendant point to the February 17, 2014 email as setting out the terms of their agreement, this document requires examination to determine whether it discloses one loan of $2.5 million secured by a second mortgage on 635 Upper Wentworth and a first mortgage on 221 York to be advanced by payment to discharge the First National mortgage [defendant’s position], or a loan of 2.1 million plus a loan of 2.5 million [plaintiff’s position].

[40] The core terms set out in the February 17, 2014 email were:

(a) Heffner would lend the Downtown Hamilton Mosque 2.1 million dollars, which would be secured by a first mortgage on 221 York. The mortgage would bear no interest [in keeping with the Islamic values of the Mosque regarding no payment of interest on loans]; (b) From the proceeds of sale of 221 York, 155 [the owner company of 221 York] would pay off the existing first mortgage with First National (about $2,155,000.00); (c) From the proceeds of sale of 221 York, 155 would pay Heffner $250,000.00. (d) Heffner would provide working capital funds to fitness clubs operating in Medcap properties; (e) When a new first mortgage lender for Medcap’s property at 40B Hansen Road, Brampton, was found Heffner would help the refinancing of that property by providing his personal or business guarantee for the new first mortgage; (f) In consideration of the forgoing terms being performed Medcap would sign the Loan and Priorities Agreement and allow Heffner to register a 2.5 million dollar mortgage on 635 Upper Wentworth.

[41] The terms regarding the sale of 221 York and the mortgage with the Mosque were carried out in February 2014 and Medcap proceeded to fulfil the part of the agreement requiring it to sign the LP Agreement and allowing Heffner to register the Mortgage against 635 Upper Wentworth on February 28, 2014. The other terms of the agreement were to be performed in the future and in signing the LP Agreement and allowing the registration of the Mortgage, Medcap was doing so on the condition that Heffner would perform the remaining terms of the agreement that were the consideration for Medcap signing and allowing the Mortgage to be registered.

[42] Heffner allegedly breached the agreement. Medcap did find new first mortgage financing for 40B Hansen later in 2014. Heffner had agreed to help that refinancing by providing either his personal guarantee or the guarantee of one of his businesses. He failed to do so. In fact, Heffner does not contradict or deny this fact in his reply affidavit of June 3, 2019:

“Those promises are shown in the email that I sent to Willy Heffner on 17 February 2014 (exhibit I to the Heffner affidavit). In particular I point to item C, which is the refinancing of Medcap’s building at 40B Hansen Road in Brampton. Not only did Willy Heffner not assist Medcap in refinancing a new first mortgage, as Willy Heffner promised, he used his failure to fulfil that promise as the means to pressure Medcap into selling that building to him on very favourable terms, including a sale price of less than appraised value with a no interest vendor take back mortgage.”

[43] Cardillo states that he did make interest payments on the loan of $2.5 million, but stopped doing so by reason of Heffner’s default in failing to assist with the refinance of the Hansen Road building:

“And secondly, okay, the fact that when I stopped making the interest payments, he didn’t do anything about it. I said I’m not going along with this anymore. You’re not going to help me on Hansen Road. I’m not making any more payments. Deal done. He never sued me, he never sent me a default notice, he never said anything because he knew I was right.”

[44] The evidence on this motion is that Heffner agrees that the agreement is set out in the email of February 17, 2014. Medcap states that as Heffner has been repaid the 2.1 million that he actually advanced he is entitled to nothing more. The consideration for the “lift” as Cardillo describes it from $2.1 million to $2.5 million and the monthly interest payments of 2.2% failed due to Heffner’s breach. Thus, the defendant argues that there is nothing owing to the plaintiff.

[45] The deal is explained by Cardillo in his answers given on his cross-examination:

A. 97 My email to him outlines the deal that for the $2.5 million mortgage that I was going to have him register I wanted the following: 2.1 million to pay off the mosque deal – to do the 221 York deal, and the balance – he had to do a bunch of other things including doing my – helping me with re-mortgaging Hansen Road. There’s a whole list – the emails – we have that as part of the exhibits.

A. 247 There was only one $2,505,000.00 loan which was $2.1 million for the mosque, another $400,000.00 built in for the interest because Wilson’s mortgage called for two percent. Heffner is greedy; he wants 14, 15 percent on stuff. So he said to me if I’m going to lend $2.1 million and get zero interest for the mosque because of their religious beliefs then I need to build in an amount that gives me the offset, because Wilson was at two percent – or 2.2 percent, and I said to Heffner, I said, I can’t give you – I can’t do a pari passu deal with Wilson and I’m going to give you eight percent and give him two percent, he’s going to want the same. So therefore you take 2.2 and that’s what the $400,000.00 difference was.

[46] Heffner has a very different position. He disagrees that there is one loan and one debt. He asserts that that there are two loans. He claims that the promissory note is a separate debt distinct from the $2.1 million loan for the Mosque purchase of 221 York and hence Heffner is entitled to be paid $2.1 million plus $2.5 million.

[47] Again, I return to the February 17, 2014 email. Heffner asserts his position is based on the same February 17, 2014 email. This is what he says the proposal in that email is:

[12] In paragraph 18 to 23 of Mr. Cardillo’s affidavit sworn August 13, 2018, Mr. Cardillo describes a negotiation, the description and characterization of which I do not agree. The arrangement finally proposed by Mr. Cardillo himself, not me, is describe in an e-mail he sent to me dated February 17, 2014 and marked as Exhibit “B” to this my affidavit. I summarize Mr. Cardillo’s proposal as follows:

A. HIL will agree to loan the Mosque 2.1 million interest free to enable the Mosque to purchase 221 York Blvd. for cash. The loan is to be secured by a first mortgage on that property; B. HIL will agree to lend Medcap money to enable the Cardillo Group to pay part of Mr. Cardillo’s liability for the equipment leases and loans funded by the Heffner Group (described as the “Heffner Debt” in the Loan and Priorities Agreement) that were then in default; C. If called upon to do so, the Heffner Group and I personally will agree to assist Medcap to refinance the mortgage on Hansen Road, Brampton; and D. In consideration for the foregoing, Medcap will agree to sign the Loan and Priorities Agreement and agree to grant a 2nd mortgage to HIL to be registered on title to 635 Upper Wentworth, Hamilton, Ontario in the amount of $2,500,000.00, the loan referred to in paragraph B above.

[48] The defendant raises a very interesting point in that the significant problem with the Heffner version of the February 17, 2014 email is that there is absolutely nothing in that email about “HIL will agree to lend Medcap money to enable the Cardillo Group to pay part of Mr. Cardillo’s liability for the equipment leases and loans funded by the Heffner Group (described as the “Heffner Debt” in the Loan and Priorities Agreement) that were then in default”. The Heffner claim, which Heffner says is the February 17, 2014 email, involves a loan of $2.1 million, and a loan of $2.5 million is not supportable by the language of that email. It does not set out a second loan and the mention of a second loan of $2.5 million.

[49] It seems that this is not such a minor or insignificant detail that it should not be explicitly mentioned in the document as to any impugned agreement. However, the LP Agreement does make reference in a recital to a “Heffner Debt” of $2.5 million. Whether that recital is true is another matter. Heffner’s lawyer’s trust statement does show that Heffner gave his lawyer $2.5 million that the lawyer then the same day paid back to Heffner.

[50] Heffner denies that the “second loan” is a sham or that he was misleading his bank. But notably, these appear to be bare assertions as found in his affidavit of June 3, 2019. He does not set out the particulars of what this $2.5 million Heffner Debt was or produce any document indicating demands for payment of this debt, or calculations of amounts owing, or emails to Cardillo indicating what the debt was or negotiating some quantification of it at $2.5 million. Heffner fails to establish any rational reason why Medcap would agree to make itself liable for $2.5 million dollars when neither Medcap nor Cardillo had any such liability to Heffner, especially given the apparent passage of the limitation period on these old leases.

[51] Heffner admitted on his cross-examination that there were no documents evincing a guarantee or lease obligation by Medcap other than on a single lease and he failed to produce payment histories for these leases. He agreed that no demands, lawsuits, or any proceedings had ever been taken to enforce or collect on these old leases. Defendant’s counsel’s request for a list of the liabilities that compose the $2.5 million Heffner debt was refused. Heffner admitted that his company borrowed from its bank, Royal Bank, and reported annually on its assets to the bank, but refused to produce any of those reports.

[52] On this record, there is a notable absence of documents that would be consistent with $2.5 million of debt having been repaid in 2014 as Heffner contends. The PPSA registrations for the leases were not discharged, no pay out statements were received by the debtors, the payments would have had to have included HST and no documentation evidencing that was ever received.

[53] In any event, I am not convinced that the Note can simply be categorized and acted upon as simply as the plaintiff suggests. I am persuaded by Mr. Turton’s submissions that this case goes well beyond the mere presentation of the Note. There are multifaceted and intertwined commercial relations between the parties. This includes a complex history that involves sophisticated corporate principals and transactions. There are areas of dispute and contradictions that have neither been fully addressed nor clarified by the plaintiff either through responses or documentation. There are also significant issues of credibility related to the history between the parties, relationships and transactions involving other commercial transactions in the years before, during and post-signing of various documents and agreements in relation to the relevant transactions, including the February 17, 2014 email. I find that these issues cannot be fairly assessed, even with this court’s expanded powers for summary judgment.

[54] In sum, the defendant has satisfied me that there is a significant divergence between the parties as to what their agreement was that goes well beyond the documentation. The record is not capable of determination and resolution without making considerable findings of credibility.

[55] In other words, the evidence is not determinative in order to fairly and justly adjudicate the dispute in a timely, affordable and proportionate manner.

[56] In my opinion, there is a genuine issue requiring a trial. The plaintiff’s motion for summary judgment is dismissed and this matter will eventually be scheduled to proceed to trial before a different jurist.

Costs:

[57] If the parties cannot agree on costs, the defendant shall file its submissions within 15 days of the release of this ruling. The plaintiff shall file its response within 15 days of receipt of the defendant’s submissions. The defendant may file a brief reply within 10 days thereafter. These submissions shall not exceed three pages in length (not including Bills of Costs or Offers to Settle).

A.J. Goodman J. Released: March 10, 2021