Fransen v. Stewart, 2021 ONSC 3943

COURT FILE NO.: CV-19-0684-0000

DATE: 2021 05 31

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

WALTER FRANSEN

Shaun Singh, for the Plaintiff

Plaintiff

• and -

ELISIANNE STEWART

Elisianne Stewart, the Defendant (not appearing)

Defendant

HEARD: May 12, 2021, Brampton, Ontario, via videoconference

Price J.

ENDORSEMENT

Nature of the Proceeding

1The plaintiff, Walter Fransen lives in Ontario and is represented by a lawyer, Shaun Singh. The defendant, Elisianne Stewart, lives in Chicago, Illinois and is self-represented.

2Mr. Fransen moves for summary judgment for re-payment of a loan, or series of loans, he says he made to Ms. Stewart from October 2016, to June 2018. Ms. Stewart responds with a motion of her own, in which she asks that Mr. Fransen’s action be dismissed. Both motions were scheduled to be heard at a long motion hearing by videoconference on May 12, 2021.

The adjournment of the motions

3Neither party was in attendance on May 12. Mr. Singh appeared on behalf of Mr. Fransen and, in effect, as Ms. Stewart’s agent. He advised the court that he had received an e-mail from Ms. Stewart the previous day, in which she advised him that she would be unable to attend the hearing because she had received her first vaccination for COVID 19 that day and was experiencing COVID symptoms, including blurred vision, which would impair her ability to participate. She requested an adjournment of the motions. Mr. Singh advised the court that his client did not oppose the request but, owing to the past delays in the motion, caused, in part, by the COVID pandemic and the disruptions it has caused to the operations of the court, he was seeking terms to help ensure that the motions would be heard on the next date set.

4The next date that is currently available for the hearing of a long motion is October 4, 2021, for 3 hours. Mr. Singh advised the court that he believed this would be sufficient time for the hearing of the motions. The court therefore adjourned the hearing of the motions to October 4, 2021, at 10:00 a.m. As it appears likely that the public health measures in response to the COVID 19 pandemic will continue for some time, the hearing on October 4, 2021, will be by videoconference.

The steps to be taken before the motions are heard

5Before adjourning the hearing on May 12, I advised Mr. Singh that, having regard to the fact that Ms. Stewart is self-represented, and that she resides in Chicago where she may not have as ready access to a lawyer familiar with the law of Ontario and the rules that govern court proceedings in this Province as an Ontario resident, I would be raising, in my endorsement, a number of concerns, based on my reading of the material, which Mr. Singh said he had no objection to, and added that he believed would be appropriate in the circumstances.

6Judges have a duty to guide self-represented litigants during their court proceeding. SRL’s are also expected to take appropriate measures to familiarize themselves with the relevant court rules and procedures for their case. See, in this regard: Watterson v. Canadian EMU, 2016 ONSC 6744, paras. 37-51, Pintea v. Johns 2017 SCC 23 and the commentary, Pintea v. Johns: 18 months later, 2018 Docs 10547.

a. An Affidavit from Ms. Stewart

7My first concern is that Ms. Stewart has not delivered an affidavit in opposition to Mr. Fransen’s motion for summary judgment or in support of her own motion to have his action dismissed. I will explain, for the benefit of Ms. Stewart, why her failure to deliver an affidavit is important, and the result that a continued failure to do so may have.

8When the court is asked to decide a motion for summary judgment, it is required to apply the Rules of Civil Procedure, R.R.O. 1990, Reg. 194. The Rules are a regulation made to enable the court to perform its function under the Courts of Justice Act, R.S.O. 1990, c. C.43. The fundamental purpose of the Rules, as set out in rule 1.04(1), is to secure the just, most expeditious and least expensive determination of every civil proceeding on its merits.

9Rule 20.04(2) of the Rules of Civil Procedure provides that the court “shall” grant summary judgment if it is satisfied that there is “no genuine issue for trial with respect to a claim or defence.” The purpose of that rule is to remove such cases from the system prior to trial to avoid unnecessary expense to the litigants and preserve court resources and, therefore, access to justice for all litigants: 10615090 Ontario Ltd. v. Ontario Jockey Club (1995), 1995 1686, 21 O.R. (3d) 547 (Ont. C.A.) at 557; Dawson v. Rexcraft Storage and Warehouse Inc. (1998), 1998 4831, 26 C.P.C. (4th) 1 (Ont. C.A.), at 9.

10The Supreme Court of Canada has formulated the legal test the Court is required to apply when deciding, on hearing a motion, whether to grant summary judgment. In its decision in the case of Hryniak v. Mauldin, 2014 SCC 7, [2014] 1 SCR 87, at paragraphs 4-5 and 49, the court held that a court must decide whether the evidence before it gives it a sufficient appreciation of the facts and law to reach a fair and just determination on the merits of the action, or whether there is a genuine issue that requires a trial. That is, the court must decide whether it is able, at the hearing of the motion, to make the necessary findings of fact and apply the law to the facts, to decide the issues that are in dispute in the action. It must also decide whether the motion is a proportionate, more expeditious (that is, quick) and less expensive means than a trial to achieve a just result.

11As the court noted in its decision in the Ontario Jockey Club case, above, a responding party on a motion for summary judgment is not permitted to rest on allegations or denials in its pleadings but must provide evidence, by affidavit or otherwise, to show that there is a genuine issue for trial. The onus of establishing that there is no triable issue is on the moving party, but the respondent bears an evidential burden and, in the terminology of the card game, “Bridge”, “must lead trump or risk losing”. If there is an issue of credibility to be determined, a trial will generally be required.

12Ms. Stewart has not served and filed an affidavit in support of her own motion, on in opposition to Mr. Fransen’s motion. Without sworn evidence to support her position, she risks losing both Mr. Fransen’s motion and her own, and having a judgment issued against her for the repayment of the loans that Mr. Fransen alleges he made to her, and interest, and the costs of the motion and of the action as a whole. Such a judgment could be enforced against her in the United States by engaging the existing legislation and treaty between the United States and Canada governing the reciprocal enforcement of judgments.

13Ms. Stewart, in the documents she has filed, makes reference to the assertions she made in her Statement of Defence, filed June 24, 2018. Self-represented litigants sometimes do not understand the distinction between a “pleading”, which term includes a Statement of Claim and a Statement of Defence, and “evidence”, which consists of an affidavit or testimony given at a court hearing under an oath or solemn affirmation. A pleading is not evidence. A court, in making findings of fact, must rely on evidence, not pleadings.

14This court, in Watterson v. Canadian EMU, 2016 ONSC 6744, held that where it is obvious to the court that a self-represented litigant does not understand the distinction between evidence and a pleading, it is under a duty to point this out, and to give the litigant who is mistakenly relying on its pleading an opportunity to request an adjournment so that it can file evidence in the form of an affidavit, or seek to testify under oath or affirmation at the hearing. Litigants may tender an affidavit or give testimony that make the same assertions they have already made in their Statement of Claim or Statement of Defence, but it is only the evidence, and not the pleadings, that the court can base its decision on.

15Evidence in a motion or application is generally given in the form of an affidavit. The Rules of Civil Procedure and Evidence Act, R.S.O. 1990, c. E.23, provide that an affidavit by a witness in one country is normally required to be notarized in that country by a Notary Public in order to be admissible in a proceeding in Ontario. The affidavit of a person in Ontario who swears or affirms an affidavit in this Province may do so before a Commissioner of Oaths, a designation given to many lawyers and some court staff, authorizing them to administer the oath or affirmation to a witness.

16Because of the practical constraints imposed by public health measures in response to COVID 19, the court has permitted affidavits to be filed with the court without first being sworn or affirmed. The court, at the hearing of a motion or trial then permits the litigant or witness who has given the affidavit to attest to its truth under oath or affirmation by videoconference.

17The evidence at the trial of an action begun by Statement of Claim, unlike the evidence given at the hearing of a motion or at the trial of a proceeding begun by application, is normally given in the form of live testimony, given under oath or solemn affirmation from the witness stand. In the current pandemic, accommodations are made to enable a witness to give a solemn affirmation (having the same effect as an oath) remotely, by video-conference, with the witness in one place and the Registrar of the court, who administers the affirmation from the courtroom, at another place, watched remotely by the judge and the lawyer for the opposing litigant, also by video-conference.

b. Cross-examination on the affidavits

18When I advised Mr. Fransen’s lawyer, Mr. Singh, when he attended to adjourn the motions, that I proposed to explain, in my endorsement, the importance of an affidavit in a motion for summary judgment (and, I might have added, the requirement to serve and file a factum), he agreed that this would be appropriate. Mr. Singh also advised the court that if Ms. Stewart files an affidavit, he will likely want to cross-examine her on it. Ms. Stewart may also wish to cross-examine Mr. Fransen on his Affidavit.

19While the court has a discretion as to whether to allow cross-examination on an affidavit, I believe that in the present case, it will benefit the litigants and the judge hearing the motion to allow the litigants the cross-examine each other in advance to clarify facts contained in their respective affidavits, and in any documents they intend to rely on at the hearing. The transcript of such cross-examination will add to the evidentiary record the judge can consider at the hearing.

20Cross-examination is especially useful in a case like the present one, in which there are disputed facts or an issue of whether a witness is credible. The court has frequently commented on the challenge of making findings of fact based on conflicting affidavits or expert reports when the evidence they contain has not been tested by cross-examination and cautioned against litigants proceeding to a trial without such cross-examination. See, for example: Ziskos v. Miksche, 2007 ONSC 46711, per Spies J., at para. 44; Vopni v. Norris, (1994) 73 O.A.C. 305 (Ont. Div. Ct.); Finch v. Butler, 2010 ONSC 4796, per Di Tomaso J., at para. 52; McNutt v. Draycott, 2015 ONSC 5363, per Gray J., at para. 21 and 40; Logiacco v. Papadopoulos, 2005 ONSC 5473, per Hoilett J., at para. 4; Compresseurs Gagnon Inc. v. Max Auto Supply Ltd., 1998 ONCA 874, per curiam, at para. 1; Smith v. Smith, 2009 ONSC 50215, per Daley J., at para. 8 and 15.

21While Ms. Stewart has not yet delivered an affidavit, the court can infer from the conflicting assertions made in the pleadings that such conflicts will be replicated in the parties’ evidence. There are a number of factual issues that are apparently in dispute. For example:

a. Mr. Fransen alleges that he and Ms. Stewart discussed, ahead of time, that the money he was going to send to her was to be repaid and the terms, at paragraph 6 of his Factum and paragraph 39 of his Affidavit, that the parties agreed that the loan would be payable on demand and would not bear any interest.

b. Mr. Fransen asserts in paragraph 12 of his Statement of Claim, “The Loan was an on-demand loan, made in Ontario.” In Ms. Stewart’s Statement of Defence, attached as Exhibit H to Mr. Fransen’s Affidavit, she states, with reference to paragraph 12, “There was no document nor reference to on demand loan. We did not speak in those terms….he helped me as I had done him and I was thankful as I had nobody to help me.”

c. Mr. Fransen asserts in paragraph 14 and 15 of his Claim, in reference to the loan of $10,000.00 he says he made to Ms. Stewart in October 2016, “Lisa promised to repay this $10,000.00, on demand.” In her Defence, Ms. Stewart says, in reference to paragraph 14 of his Claim, “I was unaware of any mention of the term “on demand.” It was a friend to a friend and I was thankful to him.”

d. In paragraphs 22 to 26 of his Statement of Claim, Mr. Fransen refers to what he says was an agreement between him and Ms. Stewart in June 2016, when she requested the last payment of $15,000.00 from him, by which she agreed to repay the loan in monthly installments of $2,000 CDN beginning August 1, 2018. At paragraph 57 of his Affidavit, Mr. Fransen states that Ms. Stewart asked him to draw up a repayment plan and to send her the details, which he says he did by an e-mail on July 8, 2018. He characterizes this as “the Agreement in an Excel spreadsheet.” The document does not appear to contain Ms. Stewart’s signature or a return e-mail from her agreeing to the re-payment schedule. However, in paragraphs 27 to 37 of the Claim, Mr. Fransen refers to a $2,000.00 cheque that Ms. Stewart sent to him on August 10, 2018, which was returned by reason of insufficient funds, which he says she promised to replace but never did.

e. In paragraph 37 of his Claim, Mr. Fransen says that at all material times, he intended to enforce his rights to obtain repayment on the loan. In reference to this paragraph, Ms. Stewart says, “I cannot comment on what he intended to do, I only know there was no mention of agreement or other ‘demand loan’ terminology throughout the assistance provided, up [the word “until” apparently omitted] his chronology cited in Paragraphs 22-26 of the statement of claim,” apparently referring to the re-payment schedule of $2,000.00 installments that Mr. Fransen sent to her on July 8, 2018.

f. Ms. Stewart raises facts concerning Mr. Fransen’s relationship with her that may or may not have relevance to the characterization of the payments he made to her and the enforceability of an obligation to replay. Mr. Fransen acknowledges that when he first met Ms. Stewart, the two of them were colleagues at Zurich Insurance in Toronto and that In his Claim, he states, in paragraph 4 and 5, “Walter [Fransen] met Lisa [Stewart] in or around the Fall of 2013 at their previous place of employment. At the time, Lisa and Walter were coworkers. Commencing in or around January 2014, Lisa and Walter developed an intimate physical and romantic relationship outside of work in Ontario.” In her Statement of Defence, Ms. Stewart states, with reference to those paragraphs, “I started working at Zurich April 2013 and met Walker that month. I was assigned to work on a project he was leading. My first project at my new place of employment. In December 2013, Walter gave me ‘rewards’ where you can purchase personal items. I purchased a bracelet. The intimate relationship was not outside of work…Walker would walk by my desk and say, “Come here” and direct me to the stairwell. This behaviour went on for a couple of months – as I recall, within the office during office hours and as I was working on the project he was leading.”

c. Factum from Ms. Stewart

22Ms. Stewart has not yet served and filed a Factum. A Factum is a document which sets out a concise statement of the facts and law a litigant relies on, with references to the evidence supporting each of the facts and the legislation and court decisions supporting the principles of law. A Factum is required by The Consolidated Practice Direction of this Court, which can be found on the Court’s web site. Paragraph 45 of the Practice Direction states, “Factums are required for long civil motions and encouraged for all other motions unless otherwise directed by a judge.”

23Additionally, the Rules of Civil Procedure provide, in Rule 20.3, in relation to motions for summary judgment:

20.03 (1) On a motion for summary judgment, each party shall serve on every other party to the motion a factum consisting of a concise argument stating the facts and law relied on by the party. O. Reg. 14/04, s. 14.

(2) The moving party’s factum shall be served and filed with proof of service in the court office where the motion is to be heard at least seven days before the hearing. O. Reg. 394/09, s. 4.

(3) The responding party’s factum shall be served and filed with proof of service in the court office where the motion is to be heard at least four days before the hearing. O. Reg. 394/09, s. 4.

24Rule 61.03, governing Factums to be used in appeals, can be looked to for guidance concerning the contents of a factum. It provides, in part:

(4) The moving party shall serve a motion record and transcripts of evidence, if any, as provided in subrule 61.03 (2), and a factum consisting of the following elements:

1. Part I, containing a statement identifying the moving party and the court from which it is proposed to appeal, and stating the result in that court.

2. Part II, containing a concise summary of the facts relevant to the issues on the proposed appeal, with such reference to the evidence by page and line as is necessary.

3. Part III, containing the specific questions that it is proposed the court should answer if leave to appeal is granted.

4. Part IV, containing a statement of each issue raised, immediately followed by a concise statement of the law and authorities relating to that issue.

5. Schedule A, containing a list of the authorities referred to.

6. Schedule B, containing the text of all relevant provisions of statutes, regulations and by-laws. O. Reg. 61/96, s. 6; O. Reg. 333/96, s. 2 (2).

(5) Parts I to IV shall be arranged in paragraphs numbered consecutively throughout the factum. O. Reg. 61/96, s. 6.

25Providing a Factum is especially important in a motion like the present one, where there are apparently disputes between the parties concerning the applicable law as well as the facts. For example:

a. Characterization of the loan as a demand loan, payable on demand, or a contingent loan, payable when a future event occurs:

Mr. Fransen characterizes the loan as a demand loan. Ms. Stewart, in her Defence, denies that those words were ever used. Mr. Fransen attaches as Exhibit S to his Affidavit an email from Ms. Stewart dated October 21, 2016, three days before Mr. Fransen sent the first payment to her. In the email, Ms. Stewart, after recounting the difficulties she was having settling issues arising from her separation from her husband, wrote: “I hate to ask you but I have nowhere else to go, and no one else to turn to…can you loan me 10,000? I have to pay my portion of the lease and get out of here. I will pay you back with interest as soon as we settle this stuff? I want to use it to be able to leave Chicago and move back to Toronto….” On May 30, 2019, a year after Mr. Fransen made his last payment to her, Ms. Stewart wrote in a further email, attached as Exhibit W to Mr. Fransen’s Affidavit, in the discussion of Mr. Fransen’s proposed schedule of repayments, “Yes, 2000 sorry, I wrote to correct the first email, but it stayed in my drafts. And our settlement is not done because he is fighting for participation in the selling of my parents land in Italy, and yes, I want to make monthly payments to you – but as soon as he signs off I want to pay in full – that is obviously the goal – I hate how long it is taking…” Because the parties have focused, in their pleadings, on Mr. Fransen’s characterization of the loan as a “demand loan”, it is unclear to me whether, or when, Ms. Stewart’s settlement with her husband was, in fact, finalized, if it was the event that the parties had agreed would enable her to begin re-payments.

b. The nature of the “demand”: Mr. Fransen characterizes the parties’ discussion of repayment in June 2018, after the final loan was made to Ms. Stewart, as a “demand”. In Ms. Stewart’s Statement of Defence, she states, with reference to paragraphs 22-26 of Mr. Fransen’s Claim, that she accepted his offer of the fourth and last payment in June 2018, in reference to which he said “…this will have to be the last time” and that it was after he made that payment that he first mentioned repayment and asked her what she could afford to pay. She says that when she offered $200.00 per month, he yelled at her, saying that the amount was ridiculous, and that she felt intimidated. She denies that there was an agreement on the schedule and amounts of repayment. As noted above, it was a year later, in May 2019, that Ms. Stewart wrote, “Yes, 2000 sorry, I wrote to correct the first email, but it stayed in my drafts.”

c. The law of the place governing the loan: Mr. Fransen relies, in paragraphs 1 and 2 of his grounds for his motion, on the law of Ontario, based on the fact that he sent the funds from Ontario and received Ms. Stewart’s “acceptance” of the repayment schedule he had prepared after making his last payment to her. Ms. Stewart was apparently living in Chicago from April 2016, six months before Mr. Fransen advanced the first of the payments to her, onward. She continued to reside there after he made the final payment on June 24, 2018, and during the discussion of re-payment that followed. He appears to have expected Ms. Stewart to send him repayments from Chicago. In Etler v. Kertesz, 1960 128 (Ont. C.A.), the Court of Appeal, while concluding that where a loan is made from a creditor in one country to a debtor in another, the governing law had to be determined on a case by case basis, based on the place with which the parties and transaction had the closest connection, cited with approval the following passage from Dicey:

Dicey p. 738

In the absence of countervailing considerations, the following presumptions as to the proper law of a contract have effect:

First Presumption:-- Prima facie the proper law of the contract is presumed to be the law of the country where the contract is made (lex loci contractus); this presumption applies with special force when the contract is to be performed wholly in the country where it is made, or maybe performed anywhere; but it may apply to a contract partly or even wholly to be performed in another country.

Second Presumption:-- When the contract is made in one country, and is to be performed either wholly or partly in another, then the proper law of the contract may be presumed to be the law of the country where the performance is to take place (lex loci solutionis). This presumption may, in exceptional cases, be applicable only to certain aspects of the contract. It will usually apply to the mode of performance as distinguished from the substance of the obligation.

d. Whether the unequal power of Ms. Stewart and Mr. Fransen when both were employed by Zurich Insurance vitiated Ms. Stewart’s consent to the sexual activity between them and amounted to sexual harassment (See Janzen v. Platy Enterprises Ltd., 1989 97, at paras. 55-57, Norberg v. Wynrib, 1992 65, at p. 468, and Depuis v. British Columbia (Ministry of Forests), 1992 16472, at paras. 60 to 64), whether it affects the enforceability of an obligation to repay the loans that Mr. Fransen later made to Ms. Stewart, or whether Ms. Stewart intends, as permitted by Section 46.1 of the Ontario Human Rights Code, to counterclaim for damages for such harassment, (See Jaffer v. York University, 2010 ONCA 654, at para. 44,), which damages, in cases before the Human Rights Tribunal, have ranged from $12,000 to $150,000, and claim for set-off. See: Assessing the Damage: Money Awards by the OHRT in Sexual Harassment Cases, 2019 Docs 1745.

d. Mediation

26In spite of the parties’ differences on the factual and legal issues in the case, their overall dispute may lend itself to resolution by means of mediation. Mr. Fransen has acknowledged that this was an interest-free loan, and seeks re-payment of it. Ms. Stewart disputes the characterization of the loan as a “demand loan”, and denies that the parties agreed on the amounts and schedule of re-payments. However, she does not deny that Mr. Fransen loaned money to her.

27Each of the parties face uncertainties of the outcome at the hearing of the motions, based on the issues set out above. It has been said that negotiations occur where there are uncertainties in the outcome of a dispute, and because uncertainties entail risk. Avoiding the risk of an unfavourable outcome at trial is a key objective of negotiation.

28Ms. Stewart could be found liable for full re-payment of the amounts she received, and possibly pre-judgment interest, and the costs of one or both motions, and of a trial. Mr. Fransen could face the dismissal of his motion, and possibly of his action, if the governing law is that of Illinois, from where Ms. Stewart was apparently expected to repay the loans, or based on findings as to the alleged demand and the terms of repayment, and whether Ms. Stewart is claiming damages against him for sexual harassment, which may be set off against his claim for the money owing to him. He at least faces uncertainty as to whether the court will find, based on the above factual and legal disputes, a genuine issue for trial.

29The cost of the whole proceeding, if it continues to the end of a trial, may be roughly estimated at as much as $25,000.00 for each day the trial requires, when one includes the cost of pleadings, disclosure, conferences, preparation, and attendance at motions and trial, and if one includes both the amount a party may have to pay their own lawyer and the compensation they may be ordered to pay the opposing party, if unsuccessful, especially if the opposing party made a reasonable offer to settle which was not accepted, and achieves a better outcome at trial.

30I remind the parties that an Offer to Settle can shift the liability for costs from one litigant to the other and can either protect a party from the compensation they would otherwise be ordered to pay to the other party, or increase the proportion of their own costs that the other party may be required to pay to them if they are successful. Rule 24.10 provides that if a party who has been successful at trial has failed to accept an Offer to Settle on better terms than they have achieved at trial, they may be deprived of any compensation for their own costs, and may be ordered to pay compensation to the unsuccessful party for their costs. Conversely, if a party who has been unsuccessful at trial has failed to accept an Offer to Settle on better terms than they have achieved in the outcome of the trial, they may be ordered to pay compensation to the successful party for their costs on a 50% higher scale than they would otherwise have been required to pay.

31For the reasons stated, I will order that the parties attend a mediation by video-conference, facilitated by the Peel Mediation Service, a free service offered in Peel and staffed by trained mediators, before the costs of the case exceed the amount at stake in the action. I urge both parties to seek a middle ground, seek an outcome that is more acceptable than the potential outcome of a trial.

Resources available to self-represented litigants

32I am mindful of the fact that Ms. Stewart is self-represented and will face a challenge in complying with the requirements of the Rules, as set out in this Order. I urge her to make full use of the resources that are available, in Ontario, for self-represented litigants. These include the following:

a. The Law Society of Ontario Help Line: 416-947-3315 or toll free 1-800-668-7380 extension 3315;

b. The web site of the Superior Court of Justice (https://www.ontarioucourts.ca/scj);

c. The law contained on the web site of the Federation of Law Societies (https://www.canlii.org/en/on/);

d. The web site of the Ministry of the Attorney General (https://www.attorneygeneral.jus.gov.on.ca);

e. The web site of the National Self-Represented Litigant Project (https://representingyourselfcanada.com/). referred to on the web site of the Law Society of Ontario, and which contains, among other resources, a list of lawyers across Canada who are willing to provide “unbundled legal services” without being retained to represent the client for the entire proceeding.

Order

33For the reasons stated above, it is ordered that:

1. Ms. Stewart shall, by June 30, 2021, electronically serve and file an Affidavit;

2. The parties shall, by July 14, 2021, attend at Peel Reporting Services Inc., to cross-examine each other on their affidavits. The cross-examinations shall begin at 10:00 a.m., beginning with the Plaintiff’s cross-examination of the Defendant, and each cross-examination shall be limited to one hour in duration;

3. The parties shall, by August 15, 2021, attend a mediation with the Peel Mediation Service;

4. If the action is not settled at the mediation, Ms. Stewart shall, by September 15, 2021, electronically serve and file her Factum;

5. If the action is not settled at mediation, each party shall, by September 30, 2021, serve an Offer to Settle on the Other.

6. The motions shall be heard on October 4, 2021, at 10:00 a.m., for an estimated 3 hours.

Price J.