Awad v. Dover 2021 ONSC5437

COURT FILE NO.: 03-CL-0005217

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Awad, et al., Applicants

AND:

Dover et al, Respondents

BEFORE: Master Josefo

COUNSEL: Dr. G. Awad, in person, for Applicants

Mr. H. Wolch, counsel for Respondents, Dover et al.

DATES HEARD: August 28, 2019, January 27, 2020, February 8, 9, 10, 11, 12, March 10, April 1, 2021.

DATE OF DECISION: August 10, 2021

Reference Trial Report of Master Josefo dated August 10, 2021

Summary and Overview of the Reference:

[1] This matter demonstrates a worst-case scenario when parties to a joint venture (occasionally, “JV”) fall out. Dr. Awad (and his corporate entity) and Robert Salna (and his corporate entities Dover Investments Limited and/or Dover Petroleum Limited), became joint venturers in two oil fields in Egypt: Ras El Ush (“REU”) and East Wadi Araba (“EWA”). Dr. Awad commenced his Ontario Superior Court Application in 2003, amidst other litigation amongst the parties then ongoing. Ever since, a key dispute is, in essence, if Dr. Awad received his entitlements, or less or more than he should have, pursuant to the agreements between him and Mr. Salna, and all else which has since ensued with Mr. Salna.

[2] Pursuant to Rules 54 and 55 of the Rules of Civil Procedure, the Reasons for Judgment, and an Order originally made November 24, 2006, Justice Spence directed that a Reference and Accounting be heard by the Master. Justice Spence modified his Order, issuing several supplementary reasons for decision, and issuing his further Order of September 13, 2011.

[3] Justice Perell, in his June 27, 2012 decision, well summarized the terms of Reference in Awad v. Dover Investments Limited 2012 ONSC 3778, at paragraph 105 and following of his decision:

[105] When all the litigation dust settles, practically and juridically speaking, the status of this matter is that Justice Spence ordered two things:

1. First, Justice Spence ordered that accounts be taken to determine what Dr. Awad (or Transpacific) is owed or what Dr. Awad (or Transpacific) owes for the Awad share of the profits or losses from the REU Oil Field Joint Venture subject to: (a) this accounting recognizing the findings made in the British Columbia and Alberta parts of the pan-Canadian litigation; and (b) prejudgment or post-judgment interest be paid on the account balance.

2. Second, Justice Spence ordered that Dr. Awad’s (or Transpacific’s) interest in the REU Oil Field Venture be sold, essentially expropriated, to Mr. Salna and Dover Investments as of December 31, 2005 with post-judgment interest payable after that date.

[106] The two motions by Mr. Salna and Dover Investments provides an opportunity to implement Justice Spence’s orders and directions. By seizing this opportunity, it is to be hoped that the pan-Canadian litigation may now move forward to a just conclusion.

[107] I, therefore, make the following procedural orders or directions:

• The new application by Transpacific is dismissed as res judicata or an abuse of process.

• Transpacific is added as a party applicant to Dr. Awad’s oppression application.

• Dover Petroleum is added as a party respondent to Dr. Awad’s oppression application.

• There shall be no further motions for directions by any party, and the Master shall assume management of the reference procedure.

• Subject to the Master setting a different timetable, Mr. Salna, Dover Investments, and Dover Petroleum shall, within 120 days of the release of these Reasons for Decision, deliver:

(a) an affidavit setting out the revenues received, assets acquired, the expenses and liabilities incurred, and payments made under the REU Oil Field Joint Venture Agreement;

(b) a statement setting out the calculation of the net amount owing, if any, to Dr. Awad or Transpacific with respect to the accounting and the evaluation for the REU Oil Field Joint venture; and

(c) an expert’s appraisal report valuing Dr. Awad’s or Transpacific’s interest under the REU Joint Venture as of December 31, 2005.

• Subject to the Master setting a different timetable, within 120 days after the delivery of the affidavit of accounts, Dr. Awad and Transpacific shall deliver:

(a) a Notice of Objection setting out the grounds of the objection to the accounts; and,

(b) an expert’s appraisal report valuing Dr. Awad’s or Transpacific’s interest under the REU Joint Venture as of December 31, 2005.

• The experts’ reports shall comply with the direction that the valuation of the REU Oil Field be based on information up to and including December 31, 2005.

[108] I note that these procedural orders address one of Dr. Awad’s complaints about the progress of the proceedings to date. He complains that Dover Investments have never produced a complete set of documents accountings for revenues and expenses and that the courts in Ontario, British Columbia, and Alberta have never ordered disclosure. Regardless of the merits of this complaint, of which I make no comment, the accounts will be now be disclosed in a timely way.

[109] I also note that Dr. Awad complains that because of the delay in the proceedings, the original orders of Justice Spence should no longer apply. During the argument, I pointed out to Dr. Awad that in accounting and financial matters, prejudgment and post-judgment interest is the usual remedy for delay and that section 130 of the Courts of Justice Act provides the court with a discretion to allow interest at a rate higher or lower rate than provided for under sections 128 or 129 of the Act and to allow interest for a period other than provided in either section.

[110] Justice Spence’s orders provide for prejudgment and post-judgment interest. The matter of delay can be dealt with as a part of the reference procedure. …

[4] Spence J., in his September 13, 2011 Order, also directed that the reference for accounting and valuation determine the net amounts which remain owing pursuant to judgments and orders, including costs awards, made in what Perell, J. later described as this “pan-Canadian litigation”, which spanned several provincial Superior Courts over many years.

[5] Spence, J., also ordered a trial of an issue: to determine the value of the REU joint venture oil field in Egypt. That trial took place before Justice McEwen over 18 days in 2014. Justice McEwen rendered his decision on January 6, 2015, finding (at paragraph 146) as follows:

Based on the foregoing, the answers to the three issues to be determined at trial are as follows:

(i) The volume of the oil produced by the REU # 12 up to and including December 31, 2005 totals 78,000 barrelsand the revenue earned by Dover from the sale of the oil produced by the REU # 12 up to and including December 31, 2005 is $1,447,595.00;

(ii) The value of the REU Joint Venture as of December 31, 2005 is $5,423,000.00;

(iii) The Applicants are required to pay 17.647% of monies paid by the investors who purchased a 5.71% interest in the REU Joint Venture.

[6] Justice Penny in an Endorsement dated January 14, 2019, dismissed the request of the applicant to, inter alia, set aside the decision of Justice McEwen. Justice Penny granted the request of the respondents to have the Reference address the rate and availability of interest. In that regard, Justice Penny stated as follows at paragraph 16 of the decision:

[16] Accordingly, I order the following additions to be made to the issues to be determined on the reference:

(1) What is the applicable rate of interest under the Courts of Justice Act for any money found to be owing to the applicants for REU revenue earned between June 1, 2004 to December 31, 2005, for the period up to November 24, 2006 (the date of Spence J.’s judgment)?

(2) What is the applicable rate of interest for money found to be owed other than for the period June 1, 2004 to December 31, 2005, both before and after the date of the judgment of Spence J?

(3) What pre-and post-judgment interest rates should be used to calculate interest on any money found to be owing in the reference for the accounting? and

(4) To what extent should delays occasioned by either party in the prosecution of these proceedings affect the award of the interest?

Detailed Factual Underpinnings:

[7] As stated by Justice Perell, this has been marathon litigation, spanning Ontario, Alberta, and British Columbia. The parties have been at war since at least 2003, albeit relations between them broke down before the Ontario litigation commenced. I am only the latest in a long line of jurists tasked to adjudicate and finalize their disputes. Unfortunately, I doubt that I shall be the last.

[8] For the best summary of this overall matter from its inception, I again turn to the June 27, 2012 decision of Justice Perell. While what follows is quite a lengthy excerpt, this is a lengthy and complex case. This lengthy excerpt will also hopefully put my task, and my ultimate decision, into much clearer context:

[1] …Dr. Ghareeb Awad, who is a geologist, and Transpacific Petroleum Corp., his family’s corporation, have been engaged in pan-Canadian litigation with law suits in Ontario, Alberta, and British Columbia against Dover Investments Limited and Robert Salna and sometimes Dover Petroleum Limited. The litigation is about two petroleum joint venture projects in Egypt, and the dispute has been about whether Dr. Awad has received less – or more ‑ than what he is entitled to for having been in business with Mr. Salna and Dover Investments and Dover Petroleum.

[16] It is a colossal understatement to say that the pan-Canadian litigation between Dr. Awad and Mr. Salna has involved a multiplicity of proceedings. The problems that have led to so much litigation seem to have begun with Mr. Salna’s maneuver of submitting the new evidence that led Justice Spence to write his supplemental reasons for decision (the “SRD”), which, in turn, led to Dr. Awad’s similar maneuver that led Justice Spence to write his second supplemental reasons for decision (the “SSRD”). Mr. Salna and his corporations also had made effective tactical moves in more than one jurisdiction. The usually self-represented Dr. Awad’s numerous interlocutory moves have been much less successful.

[17] Mr. Salna and Dover Investments blame the anathema of a multiplicity of proceedings on Dr. Awad, but as the review of the history of the litigation will reveal, it seems to me that both parties are to blame for a litigation drama that approaches the theatre of the absurd. All parties and the courts across the country have reason to be exasperated by the delay and multiplicity of proceedings. But enough is enough, and it is time to complete the reference to the Master.

[21] In 2003, in Ontario, Dr. Awad brought an application (03-CL-5217) against Dover Investments Inc. and Robert Salna, who is the President of Dover Investments. The application was for an oppression remedy under s. 245(a) and s. 248 of the Business Corporations Act, regarding the two separate oil and gas exploration joint ventures in Egypt that were being managed by Dover Investments. The two joint ventures were:

• (1) a producing oil field known as the REU Oil Field, where Dr. Awad, John Riva, and Dover Investments were the joint venturers under a 2000 agreement; and

• (2) an exploration concession known as the EWA Concession, where Dr. Awad, John Riva, Brokton International Ltd, Dover Petroleum, and Mr. Salna were the joint venturers under a 2001 agreement.

[22] With respect to the REU Oil Field, Dr. Awad claimed that Dover Investments and Mr. Salna had wrongfully excluded him from management and that they had failed to account for sums wrongfully deducted from the distribution of revenues from the joint venture. Further, Dr. Awad alleged that Dover Investments and Mr. Salna had wrongfully withheld his share of revenues by setting off sums allegedly, but not actually, owing by Dr. Awad for the EWA Concession. With respect to the EWA Concession, Dr. Awad claimed that he had been excluded from significant decisions and that Dover Investments and Mr. Salna had failed to execute a deed of assignment.

[23] It is important to note that at the time of Dr. Awad’s Ontario application, there was already an action in British Columbia by Dover Investments against Dr. Awad for libel, slander, and intentional interference with contractual relations. Dr. Awad delivered a counterclaim for a breach of an employment agreement. (There eventually were two more British Columbia actions, and all three actions were eventually tried together.)

[24] Justice Spence’s initial Reasons for Judgement, dated September 21, 2004, are reported as Awad v. Dover Investments Ltd., 2004 CanLII 30248 (ON SC), [2004] O.J. No. 3847 (S.C.J.) (the “ORD”).

[25] In his original Reasons for Decision, Justice Spence determined that Dr. Awad was not a creditor with respect to the EWA Concession Joint Venture. Justice Spence determined, however, that Dr. Awad was a creditor of the REU Oil Field Joint Venture and that Dover Investments and Mr. Salna had no entitlement to set-off debts, if any, owed for the EWA Concession Joint Venture against the REU Oil Field Joint Venture payments.

[26] Justice Spence ruled that a set-off was improper and, moreover, there was a live issue whether Dr. Awad was liable for any cash calls for the EWA Concession Joint Venture. As noted in para. 83 of his reasons, these were issues yet to be determined in the British Columbia litigation. At para. 92, Justice Spence noted that the British Columbia court could allow appropriate adjustments so that inconsistent findings would not occur in the multiple proceedings.

[27] It will be pertinent to note that Mr. Salna and Dover Investments excused their withholdings based on the allegation that Dr. Awad had made himself judgment proof. In his original Reasons for Decision, Justice Spence found this not to be the case. In any event, it was oppressive for Dover to set-off alleged EWA Concession expenses against Dr. Awad’s REU Oil Field entitlements. It was also oppressive for Dover to withhold $37,500 for what was referred to as the “CIPC withholding”. (CIPC refers to Canadian International Petroleum Corporation.)

[28] Justice Spence concluded that Dr. Awad was entitled to two oppression remedies. First, he was entitled to the amounts withheld on account of the EWA Concession Joint Venture and the CIPC. Second, given the oppressive conduct, it was Justice Spence’s conclusion that it was appropriate to end the relationship between the parties in the REU Oil Field Joint Venture and, therefore, Dover and Mr. Salna should buy-out Dr. Awad’s 18% interest, which, on the basis of an evaluation known as the “Ryder Scott” evaluation, was worth $630,000 before adjustments.

[29] Justice Spence’s conclusion and the terms of his order are set out in paragraph 151 of his Reasons which states:

151. For the above reasons, based on the oppressive conduct of the Respondents as determined above, orders are to go as follows:

(i) there is to be a reference and accounting pursuant to Rules 54 and 55 in respect of the revenues received, the expenses incurred and the payments made under the REU joint venture agreement for the purpose of determining the amounts, if any, owing between Awad and the Respondents, such accounting to be made in accordance with these reasons and any further directions given by the Court.

(ii) the Respondents are to pay to Awad forthwith on account of the amounts that were withheld from his REU Oil Field Joint Venture revenues on account of EWA Concession expenses and on account of CIPC, amounts equal as of the date of judgment to USD$725,095.48 and USD$37,500.00, respectively, without prejudice to the ability of the Respondents to initiate proceedings to establish their claims of Awad's indebtedness;

(iii) Awad's interest under the REU Joint Venture agreement is to be valued by means of a reference under Rule 54 on the basis of a base value for that interest of $630,000.00 as at March 1, 2004, with proper adjustments for the oil extractions made after March 1, 2004 and for the amount determined to be owing pursuant to the first order above and the payments made pursuant to the second order above.

[30] Several points need to be emphasized about Justice Spence’s original determination (the “ORD”), namely:

• First, he did not determine whether or not Dr. Awad was correct in asserting that he was entitled to more payments from the REU Oil Joint Venture because of unauthorized deductions. Rather, there was to be an accounting of revenues, expenses, and payments under the REU Joint Venture.

• Second, Dr. Awad was immediately to be paid US $725,095.48 (for the EWA Concession withholding) and US $37,500.00 (for CIDC) without prejudice to Dover Investments or Mr. Salnas’ claims against Dr. Awad.

• Third, Justice Spence accepted, assumed, or did not question that Dr. Awad had an 18% interest in the REU Oil Field Joint Venture. (The extent of Dr. Awad’s interest was not an issue until later in the pan-Canadian litigation.)

• Fourth, the value of Dr. Awad’s interest in the REU Joint Venture agreement was to be determined by reference based on a base value of $630,000.00 as at March 1, 2004, with adjustments.

[31] Shortly after the release of Justice Spence’s Reasons and before any order was entered, Dover Investments began the parties’ habit of asking Justice Spence to reconsider his original Reasons for Decision. Mr. Salna and Dover Investments asked for leave to submit new evidence. In Supplemental Reasons for Decision (the “SRD”), dated February 3, 2005, Justice Spence set aside the term of the order that Dover Investments pay Dr. Awad $725,095.48 on account of the EWA Concession withholdings. Varying the conclusions of his original ruling (the “ORD”), Justice Spence concluded that Dr. Awad should immediately be paid only US $37,500. See Awad v. Dover Investments Ltd., [2005] O.J. No. 341 (S.C.J.).

[32] In para. 58 of his Reasons in the SRD, Justice Spence concluded that there should be a trial of the issue whether the withholdings already made by Dover Investments in respect of EWA Concession Joint Venture expenses for Dr. Awad's share of these expenses exceeded Dr. Awad’s reasonable expectations. At para. 60, Justice Spence came to a similar conclusion about the CICP withholding. He stated that the specific issue to be tried was: “whether Dover withheld such amounts in respect of CIPC in an amount that exceeds the reasonable expectations of Awad in respect of such withholdings.”

[33] In reaching his conclusions for his Supplemental Reasons for Decision (the “SRD”), Justice Spence treated the evidence of Dr. Awad’s divesting himself of assets as going to the merits of whether it would be within his reasonable expectations that his joint venture partners in one joint venture could fairly withhold payments because of Dr. Awad’s obligations in the other joint venture.

[34] Returning to the story, the point is contested by Mr. Salna and Dover Investments, but for the purposes of these Reasons for Decision, I find that in August 2005, Dr. Awad assigned all his rights in the REU Oil Field Joint Venture to Transpacific. I take this fact from paragraphs (n) and (p) of Dr. Awad’s recent notice of application which state, with my emphasis added:

(n) In order to compensate the other shareholders of the Applicant [Transpacific] for funds they advanced to Awad; including the $450,000 Royal Bank loan, and because the Respondent failed to pay proceeds of the judgment and continued to withhold all oil revenues, Awad agreed to assign all withheld funds and rights to 18% interest in REU to Transpacific as of August 8, 2005 and to actively take steps to list Transpacific on TSX-V as publically traded company.

(p) The ORD recognized Awad a creditor of Dover who continued to withhold his entire share of REU revenues since September 2003 until present and, as of August 8, 2005 there were no conflicting judgments, costs orders or liens against Awad or his assets in any Court, that could have prevented such transactions. As of August 8, 2006 Transpacific was the beneficiary of all the assets, all withholdings and all agreements however; as the action was initiated by Awad in 2003, the shareholders of the Applicant [Transpacific] requested that he continue to act on its behalf until the accounting and valuation were completed and funds were advanced to Transpacific.

[35] Transpacific is a British Columbia corporation. Dr. Awad is the President, director and a shareholder. His spouse and his children comprise the remaining shareholders. They admit that they know very little about Transpacific.

[36] Accepting that Dr. Awad had assigned his interest to Transpacific, the litigation continued nevertheless without a transmission of interest. The named parties set about settling the Order, but before that process could be completed in March, 2006, Dover Petroleum and Mr. Salna began new actions against Dr. Awad in both Ontario and Alberta. They sued Dr. Awad for non-payment of his share of production expenses associated with the EWA Concession Joint Venture.

[37] The Alberta action was commenced on March 13, 2006 and was an action by Mr. Salna, Dover Petroleum, and Dover Investments against Dr. Awad. The plaintiffs claimed $708,315 for Dr. Awad’s portion of expenses for drilling and related costs for the EWA Concession and $4,849,043 for moneys owing under the EWA Concession agreement, plus interest. The Ontario action was similar and was apparently brought out of an abundance of caution.

[38] Meanwhile, interlocutory motion activity continued in Ontario, and now it was Dr. Awad’s turn to challenge Justice Spence’s Supplementary Reasons for Decision (the “SRD”). Dr. Awad argued that those reasons had been based largely on a false paragraph in Mr. Salna’s affidavit.

[39] It appears that Dr. Awad delivered nine new affidavits and requested various forms of relief. There were at least eight days of hearings plus written argument between May to November 2005. The result was Justice Spence’s unreported Second Supplemental Reasons for Decision (the “SSRD”) released on August 30, 2006.

[40] In his SSRD, Justice Spence decided that the evidence that Dr. Awad had made himself judgment proof was now relevant only to the costs for the application. (Justice Spence ultimately decided there should be no order as to costs because success was divided.)

[41] In his SSRD, Justice Spence replaced what had been paragraph 151(iii) of his original Reasons for a second time. In paragraphs 78 and 79 of his Second Supplemental Reasons for Decision, Justice Spence stated:

78. In view of these considerations the order set out in paragraph 151 (iii) of the ORD should be varied by being deleted and replaced by the following:

79. (iii) Mr. Awad’s interest under the REU Joint Venture agreement is to be valued by means of a reference under Rule 54 on the following basis:

(a) the date of the valuation of the interest shall be December 31, 2005;

(b) in determining the value of the interest as at the valuation date, effect shall be given to the extent proper to the draft valuation of the total REU Oil Field Interest by Ryder Scott as of March 1, 2005 and to Mr. Awad’s acceptance of that valuation; and

(c) all proper adjustments shall be made for all REU transactions occurring subsequent to the valuation date for the amounts determined to be owing pursuant to the order in paragraph 151 (1) and the payment made pursuant to paragraph 151 (ii).

79. For the reasons given above, the conclusion in paragraph 62 of the SRD is varied by being set aside and replaced by paragraph 151 of the ORD, but varied as to amount in respect of paragraph 151 (ii) as set forth above. Orders to go accordingly and also set forth herein in respect of other matters to the extent necessary in respect of these other matters.

[42] When read with the rest of the SSRD, the operative effect of Justice Spence’s reasons was that $493,861 of withholdings on account of the EWA Concession Joint Venture should immediately be paid to Dr. Awad.

[43] Under the SSRD, there was also now a fixed valuation date of March 1, 2005 for the buy-out of Dr. Awad’s assumed or accepted 18% interest in the REU Oil Field Joint Venture, but the base value had become indeterminate although “effect shall be given to the extent proper to the draft valuation.”

[44] The parties settled the terms of the formal order of Justice Spence, which is dated November 24, 2006. For present purposes, the important provisions of the order are set out below:

3. THIS COURT ORDERS that the Respondents are to pay to Ghareeb Awad forthwith on account of the amounts that were withheld from his REU Oil Field Joint Venture revenues on account of EWA Concession expenses and on account of Canadian International Petroleum Corporation [CIPC] amounts equal as of the date of judgment to $U.S. 493,861 and $U.S. 37,500 respectively, without prejudice to the ability of the Respondent to initiate proceedings to establish their claims as to the indebtedness of the Applicant to them.

4. THIS COURT FURTHER ORDERS that there is to be a reference and accounting pursuant to Rules 54 and 55 of the Rules of Civil Procedure, R.R.O. Reg. 194 in respect of the revenues received, the expenses incurred and the payments made under the REU joint venture agreement for the purposes of determining the amounts, if any, owing between the Applicant and the Respondents, such accounting to be made in accordance with the Decisions and any further directions given by the Court, including any directions as contemplated in the Decisions.

5. THIS COURT FURTHER ORDERS that any money owing to the Applicant on account of REU revenue earned between June 1, 2004 and December 1, 2005 shall bear prejudgment interest at the rates determined in accordance with the Courts of Justice Act and shall commence each month starting June 1, 2004 and ending on December 1, 2005 on the amount of money if any accruing due to the Applicant each month from June 1, 2004 to December 1, 2005 calculated to the date hereof and thereafter shall bear post-judgment interest thereafter at the rates determined in accordance with the Courts of Justice Act.

6. THIS COURT FURTHER ORDERS that prejudgment and post-judgment interest on any money owing in the reference and accounting shall be determined in the accounting.

7. THIS COURT FURTHER ORDERS that the Applicant is to sell and the Respondents to buy the entire interest of the Applicant under the REU Joint Venture Agreement dated February 2000 in accordance with the following requirements:

(i) The interest of the Applicant under the REU Joint Venture agreement is to be valued by means of a reference under Rule 54 on the following basis:

(a) the date for the valuation of the interest shall be December 31, 2005;

(b) in determining the value of the interest as at the valuation date, effect shall be given to the extent proper to the draft evaluation of the total REU Oil Field Interest prepared by Ryder Scott as of March 1, 2004 and to the fact determined in the Decisions that the Applicant accepted that valuation; and

(c) all proper adjustments shall be made for all REU transactions occurring subsequent to the valuation date and for the payments made and the amounts determined to be owing pursuant to the preceding provisions and otherwise as directed by the Court; and;

(ii) the sale and purchase shall be completed by the parties 15 days after the completion of the evaluation, subject to further order of the Court as to the closing date and other closing matters.

9. THIS COURT FURTHER ORDERS that the monies to be paid by the Respondents to the Applicant under paragraph 8 herein shall bear interest starting 15 days after the completion of the valuation at the rates determined for prejudgment interest in accordance with the Courts of Justice Act.

10. THIS COURT FURTHER ORDERS the accounting provided for in paragraph 5 and the evaluation in paragraph 8 shall be conducted by a Master. The two references shall be conducted together or one after the other, unless determined otherwise by Order of the Court or the Master appointed to conduct the references. The references shall make all necessary inquiries, take all necessary accounts and make all necessary assessment of costs. The Applicant shall have carriage of each reference, subject to any other Order of the Court. Subject to any further direction of the Court, the costs of the references shall be payable by the Respondents and shall be in the discretion of the Master in all other respects.

11. THIS COURT FURTHER ORDERS that the parties may seek any directions necessary from the Court in respect to the implementation of this Judgment.

[45] Both parties appealed Justice Spence’s order of November 24, 2006, which incorporated the rollercoaster of decisions from the original reasons (the “ORD”) and the first (the “SRD”) and Second Supplemental Reasons for Decision (the “SSRD”).

[46] In December 2006, Dr. Awad and Transpacific commenced the second British Columbia action against Dover Investments. Dr. Awad and Transpacific sued Mr. Salna and Dover Investments for breach of contract, wrongful dismissal, and claims arising out of the REU Oil Field Joint Venture. Dr. Awad claimed that Mr. Salna and Dover Investments had breached the REU Oil Field Joint Venture and in particular, they refused to transfer the Abu Sennan concession to CIPC or to Dr. Awad in breach of the joint venture agreement.

[47] Mr. Salna and Dover Investments counterclaimed for a declaration that Dr. Awad was not entitled to any revenues from REU 12, nor were any expenses for that well to be deducted from him and for a declaration that REU 12 is not a part of the buy-out of Dr. Awad’s interest in the REU Oil Field Joint Venture.

[48] Meanwhile, while the appeal from Justice Spence’s November 24, 2006 Order was pending, on January 11, 2007, in a clever tactical move, Dover Investments and Mr. Salna moved ex parte in Alberta pursuant to its Civil Enforcement Act and obtained an Attachment Order from Master Alberstat that permitted them to pay the approximate $600,000 owing to Dr. Awad from the Ontario judgment into the Alberta court. They sought the order to ensure that there would be exigible assets in the event they were successful in the Alberta litigation. The attachment order was set aside by Master Laycock, but it was restored by Justice Erb. See Salna v. Awad, 2007 ABQB 455.

[49] On June 15, 2007, Master Birnbaum granted Dr. Awad’s motion to stay Dover Petroleum’s Ontario action on the grounds that Alberta was the forum conveniens. See Dover Petroleum Corp. v. Awad, [2007] O.J. No. 2500 (Master).

[50] Around this time, the third British Columbia action was commenced. It was an action by Dover Investments against Transpacific and Dr. Awad for damages for libel and slander and intentional interference with economic relations based on Dr. Awad’s letter of January 2007 to the Egyptian Minister of Petroleum and letter of June 6, 2007 to Tradewinds Oil and Gas Inc.

[51] In July 2007, in Alberta, Dr. Awad brought a motion for payment out of court of the money that was paid into court in Alberta. This motion was dismissed by Justice McDonald on October 9, 2007.

[52] On January 16, 2008, the appeal of Justice Spence’s November 24, 2006 Order was argued, and on February 4, 2008, Justice Kiteley delivered the reasons for the Divisional Court (Jennings and Swinton, JJ. concurring) dismissing the appeal and a cross-appeal. (Justice Kiteley’s judgment, which is not reported, contains a comprehensive and helpful review of some of the considerable procedural history.)

[53] On June 5, 2008, in Post Judgment Direction No. 1, Justice Spence ruled that the British Columbia action should be completed before the reference to the Master could proceed.

[54] In the fall of 2008, the three British Columbia actions were tried by Justice Loo. The trial lasted over 25 days. Among other allegations, Dr. Awad alleged that certain expenses had been improperly charged to him under the REU Oil Field Joint Venture and that he had wrongfully been dismissed from employment.

[55] On March 25, 2006, Justice Loo released part of her judgment. She dismissed Dr. Awad’s and Transpacific’s claims and ordered that: (1) Dr. Awad was not entitled to any revenues, nor to be charged any expenses from oil and gas well REU 12; and (2) oil and gas well REU 12 was to be eliminated from the evaluation for the purposes of the buy-out of Dr. Awad’s interest in the REU Oil Field Joint Venture.

[56] Paragraphs 22 to 29 of Justice Loo’s judgment dismiss a variety of claims advanced by Dr. Awad and make findings of fact against Dr. Awad and Transpacific. These paragraphs state:

22. I find that Dr. Awad has failed to establish any breach of contract on behalf of Dover or Mr. Salna and I find that there has been no breach of contract or no breach of the REU agreement. I also find that Dr. Awad is liable for his proportionate share of financing costs, including Dover’s office costs in Toronto and in Egypt, and is not limited to what he claims is his 18% share of the $5,978,000 acquisition costs.

23. Secondly, Dr. Awad alleges he was wrongfully dismissed as general manager of Dover and Petrozeit on July 10, 200, wrongfully dismissed as general manager of EWA on January 7, 2003 and wrongfully dismissed as deputy exploration manager of Petrozeit on May 18, 2003. I find that Dr. Awad has failed to establish he was wrongfully dismissed from any of those positions. I further find that with respect to the first two positions, he resigned.

24. Thirdly, Dr. Awad claims that he is entitled to a 70 percent allowance that is paid to ex-patriates pursuant to the terms of the concession agreement. In order to succeed, Dr. Awad must establish that 70 percent allowance or uplift was a term of this employment contract. Dr. Awad negotiated all of the terms of his employment contract which he reduced to writing. It did not include a term that he would be entitled to the uplift and he admits he was not promised any uplift. Dr. Awad’s claim is ill-conceived and I find he has failed to establish that he is entitled to the 70 percent allowance.

25. Fourth, I find that Dr. Awad has failed to establish that the defendants have somehow prevented him from claiming his foreign tax credits.

26. Fifthly, dealing with Abu Sennan, which is an oil concession in Egypt that Dover bid for in January 2005, Dr. Awad claims that he is entitled to an interest in the concession or compensation for his entitlement pursuant to the terms of the REU agreement, Alternatively, he claims that an interest in the Abu Seenan concession should be transferred to a public company known as CIPC which is not a party to this litigation.

27. Whether CIPC is a party to this litigation, I find that Dr. Awad’s claim is ill-conceived for a number of reasons, including an interpretation of the REU agreement and his admission through his lawyer in Ontario in September 2004 that the REU agreement does not require the parties to acquire properties jointly or on behalf of CIPC.

28. Dr. Awad has tried to carry out what I would describe as an end run around Dover and Mr. Salna by unilaterally and without authority transferring to himself the majority of the shares of CIPC and increasing his number of shares. In doing so, CIPC’s charter has now been void since March 2002 and CIPC because of Dr. Awad’s acts, now owes in excess of $400,000 in state taxes.

29. Dr. Awad also has a claim relating to his son’s Range Rover. That claim is also dismissed.

[57] It is useful here to note that Justice Loo’s order is made to fit with the circumstance that the buy-out of Dr. Awad’s interest was already part of the oppression remedy proceedings underway in Ontario.

[60] On November 26, 2009, Justice Loo completed her trial judgment. She granted Mr. Salna’s and Dover Investments’ claim for defamation and interference with contractual relations. Dover Investments and Mr. Salna recovered special, general, and punitive damages totalling $177,992.39. See TransPacific Petroleum Corp. v. Dover Investments Ltd., 2009 BCSC 918 and 2009 BCSC 1620, affd. 2010 BCCA 114, leave to appeal to the S.C.C. refd. [2010] S.C.C.A. No. 171. Pertinent to the still pending Ontario reference proceedings, Justice Loo also ordered as follows:

THIS COURT ORDERS THAT the Plaintiffs recover damages in the sum of $65,000 from the Defendant for defamation.

THIS COURT ORDERS THAT the Defendants interest in the Ras EL Ush pursuant to the February 2000 Joint Venture Agreement be reduced by 0.353 percent to 17.647 percent and Dover Investment Limited’s interest in that agreement be increased by 0.353 percent.

THIS COURT FURTHER ORDERS THAT the Defendant account to the Plaintiff for all monies received from Ras EL Ush in excess of his 17.647 percent interest.

[61] On March 5, 2010, the British Columbia Court of Appeal dismissed the appeal from Justice Loo’s judgment. Costs were assessed at $18,664.80

[62] On May 11, 2010, Justice Newbould ordered that Dr. Awad pay costs on a substantial indemnity basis of $50,000, all inclusive, to be paid within thirty days. The punitive costs order was made because Dr. Awad had made unsubstantiated allegations of fraud. See Awad v. Dover Investments Ltd., 2010 ONSC 2734.

[63] In Alberta, on July 2, 2010, Justice Horner granted judgment against Dr. Awad for unjust enrichment in the amount of $949,594.98 and dismissed his counterclaim. This judgment was affirmed by the Alberta Court of Appeal on January 24, 2011. See Salna v. Awad 2010 ABQB 4, affd. 2011 ABCA 20.

[64] On January 28, 2011, in British Columbia, the costs of the three actions heard by Justice Loo were assessed at $263,594.50.

[65] On April 2011, Dover Investments commenced a new action in British Columbia challenging that Dr. Awad had fraudulently assigned his interests in REU Oil Field Joint Venture to Transpacific.

[66] On May 11, 2011, Dover Investments recovered $708,560 from the money that had been paid into court. It also recovered $155,777 from Dr. Awad.

[67] In May 2011, in Ontario, both sides brought motions for directions, and on May 26, 2011, Justice Spence gave directions to implement the 2006 oppression remedy judgment. In his unreported Reasons for Decision at para. 40, Justice Spence set out the Orders of Justice Loo that affected the accounting and the evaluation and at paragraphs 53 and 54 he held that these determinations were binding in Ontario because of issue estoppel. He stated:

40. The orders of Justice Loo that bear on the accounting and the valuation are:

(1) Awad shall not be entitled to any revenues from the Ras El Ush oil and gas well REU #12 nor are any expenses or costs in respect to that well to be deducted from him.

(2) That the Ras El Ush oil and gas well REU #12 is to be eliminated from the evaluation for the purposes of the buyout of Awad's interest in the Ras El Ush.

(3) Awad's interest in the REU Joint Venture Agreement is reduced by 0.353 percent to 17.647 percent and Dover's interest in the REU joint venture is increased by 0.353 percent.

(4) Awad is to account to Dover for all money received from REU in excess of his 17.647 percent interest.

(5) Awad is liable for his proportionate share of financing costs including Dover's office costs in Toronto and in Egypt, and is not limited to what he claims is his 18 percent share of the $5,978,000 acquisition costs.

(6) There was no breach of the REU joint venture agreement with respect to the REU #1 and #11 wells. Awad's claim that he is not liable for his share of these expenses was dismissed.

(7) In his written closing argument Awad submitted that Dover was in breach of the REU joint venture agreement by not obtaining his approval to carry out workovers.

All of Awad's claims were dismissed by Justice Loo.

53. The preconditions for issue estoppel have been met. The issues that Awad asks this Court to decide are the same as the issues the Court in British Columbia has decided. The decision of Justice Loo is final and the parties are the same.

54. Issue estoppel precludes re-litigation in this court of the issues raised by Awad at paragraph 27 of the Amended Notice that were decided in the British Columbia litigation and the request in that paragraph constitutes an abuse of the process of the court in respect of those issues.

Process of the Reference—ultimate (at least, initial) agreement on an expert witness:

[9] This Reference was commenced by another Master, who retired before it could proceed beyond case-conferences. Thus, it was re-assigned to me. After case-conferences to try to clarify the issues, we began the actual Reference on August 28, 2019 with a truncated hearing day as Dr. Awad had booked an afternoon return flight to Vancouver. Nevertheless, he testified in chief and counsel for Dover began his cross-examination of Dr. Awad.

[10] Our next hearing days were to begin on January 27, 2020 and to continue for five days. Unfortunately, Mr. Wolch (counsel for Dover) took ill near the end of the first day, still managing to complete the cross-exam of Dr. Awad. Thankfully, Mr. Wolch recovered, yet my next available five-day block was only July 6, 2020. Alas, the Covid pandemic intervened, making those dates impossible.

[11] We convened by Zoom beginning on February 8, 2021, continuing through February 12th. We had initial closing submissions on March 10, 2021, with final testimony of the expert witness (his role to be discussed below) occurring on April 1, 2021.

[12] Prior to our recommencing in February 2021, in the interval caused by the Covid pandemic, during several case-conferences I again exhorted the parties to try to find some common ground to resolve their disputes. Mediation was attempted, yet it failed. It was my further suggestion that the parties needed a particular type of mediator, one who understood the oil and gas (petroleum) industry in Egypt, and who was also financially literate so to understand the accounting for such enterprises, as well as who could discuss the accounting involved in the JV projects in which these parties were engaged.

[13] As discussed in my November 18, 2020 Endorsement, the parties were initially amenable to the idea of that kind of knowledgeable individual assisting them. Given the legal issues involved (which will be discussed below), as documented in my December 7, 2020 Endorsement, it was however concluded by the parties and by me that even such a knowledgeable person, selected by the parties as mediator, would be unable to take the matter to its conclusion. A jurist would still be required.

[14] Yet, as was also recorded in my December 7, 2020 Endorsement, the parties agreed (probably the first time they had agreed on anything in many years) that such a knowledgeable person could be a joint neutral expert mutually chosen by them, for the benefit of the court, upon whom the court could rely. They agreed that they would each further discuss with that expert their respective views of the accounting, providing written materials to and oral explanations for the expert. The expert would prepare a report for the parties and for me, and he or she would testify, with each of the parties able to question him before me.

[15] The expert whom the parties chose and agreed upon was Mr. Albert Gress. The summary of his resume lists his experience. Succinctly, Mr. Gress, an American CPA, has 35 years of work experience, including many years in the petroleum industry, encompassing years as an executive, both financial and operational, and also as a country manager for energy companies operating in Egypt. His experience includes publicly traded companies. He is currently based in Turkey, where he is engaged in ventures involving start-up oil production in the entire region, not dissimilar to the projects in which Mr. Salna and Dr. Awad were engaged many years earlier.

[16] In my view, Mr. Gress was well qualified to be a neutral expert. He completed the Form 53 as of January 28, 2021. Mr. Gress provided five reports in total, which included those following his initial testimony where he was asked to re-calculate or verify calculations based on different assumptions or new information. His reports are dated January 5, 15, 28, February 16 and 20, 2021.

[17] During his testimony, he was very patient, including with those of us less financially literate than he. Mr. Gress also demonstrated, in my view, true neutrality. He patiently explained, for example, why he preferred to rely on the financial chart and calculations prepared by Dover rather than what Dr. Awad had prepared. Yet, when Dover’s calculations were questionable, he was equally not hesitant to say so and to explain why he so concluded. He augmented his written reports and charts with cogent and clear testimony, well explaining how he arrived at his various calculations. He addressed the (in the main) concerns of Dr. Awad, well explaining why the numbers presented by Dr. Awad were simply not reliable.

[18] I found that Mr. Gress, with no stake in this matter, no axe to grind, with his specific knowledge of the industry and the locale, to be the perfect neutral financial expert for this matter, able to address and clarify the calculations. He ultimately offered two scenarios, depending on the resolution of a legal issue pertaining to a contractual clause, which I explain further below.

[19] The parties and I had in late 2020 realized that, without someone like Mr. Gress to address, explain, and vet the calculations offered by the parties, the task for me to select either parties’ chart, in a vacuum of independent and reliable evidence of why or if one was better than the other, and then to work through the calculations, would be evidentiarily difficult, to say the least. Even with Mr. Gress, it still took days of his review of the charts from the parties and, inter alia, the relevant prior decisions which underpinned the charts before-hand, and his various discussions with the parties in my absence, along with his review of emails from the parties, so he could formulate his opinion and complete his calculations.

[20] The hearing still took much time with Mr. Gress, who testified for several days, going through the various schedules and attachments/charts to his reports. Based on how matters evolved at the hearing, Mr. Gress was prepared to and did modify his spreadsheet and calculations, ultimately leading to his final report. His original report dated February 2, 2021 with related documents is Exhibit # 6, while his follow up report dated March 3, 2021 with related documents is exhibit 14. I elaborate on the conclusions of Mr. Gress ahead.

Brief Discussion of the Testimonial Evidence:

[21] While courts in several provinces have weighed the credibility of Dr. Awad and Mr. Salna, these individuals also testified before me. I thus perform my own credibility assessment pursuant to the issues which are before me.

[22] Addressing Dr. Awad, it is my overall impression that he only tells the truth if he deems that doing so suits his interests. It appears that the ends, his financial goals, justify his means, even if such includes dissembling (or worse) under oath.

[23] When cross-examined by Mr. Wolch, for example, Dr. Awad acknowledged that his chart included at line 21 revenue from REU # 12. Yet, per the prior judgments of Justice Spence and Justice Loo, REU # 12 was to be excluded from the calculations. Dr. Awad, however, claimed he included it so to get interest on the excluded REU # 12 amount. Yet it should have been obvious that one cannot get interest on an excluded item. In that regard, either Dr. Awad was completely financially unaware, which would undermine the reliability of his chart and his calculations therein, or he was deliberately seeing what he could sneak through. If that, then this also undermines the reliability of his submissions, and his testimony.

[24] Questioned about the decision of Justice Loo in Dover Investments Limited v. Transpacific Petroleum Corp., 2009 BSSC 918, which decision Dr. Awad included in volume one of his July 8, 2019 motion record (exhibit 9A), before me, Dr. Awad continued to deny the factual findings of Justice Loo, especially continuing to dispute the following:

Issue 8: Has Dover and Salna Breached the Joint Venture Agreement by Improperly Deducting Financing Costs?

[216] Dr. Awad testified that Murray Sinclair agreed to provide financing for Canoil and advance $7 million based on the data he provided showing the strength of the reserves and production. That was false. Dr. Awad alleges that “despite their reservations about Salna’s reputation, Quest provided the $4.7 million (USD) required to close the deal after the Egyptian government approval was received on July 24, 2000”. Dr. Awad claims that he spoke to someone at Quest—he did not know who—but Quest told him they did not like Mr. Salna’s ethics. That too was false.

[217] Murray Sinclair is co-chairman of Quest, a publicly-traded merchant bank. He testified that he had about three meetings with Dr. Awad and some other men who sought financing for Canoil so it could acquire an Egyptian oil field. Quest was interested in collateral for the loan and asked them to provide an engineering report on the reserves, a title opinion, and a legal opinion establishing that Quest could perfect its security and recover on the assets in Egypt. None of the opinions or reports was provided. None of the due diligence requirements were met and Quest never made a firm commitment to advance any funds.

[218] Mr. Salna met Quest’s due diligence requirements which were onerous and costly because he is a private individual and not a publicly-traded company, and because Quest did not reach an adequate comfort level on the proposed security over assets and projected cash flow in Egypt.

[219] (Dr. Awad maintained at trial that Quest’s requirement for additional security means that Mr. Salna must be a crook.)

[220] By March 31, 2000 Quest had decided not to advance any funds. Dr. Awad still insisted he had no money to contribute, and neither he nor Mr. Riva advanced as much as $1.00. Mr. Salna alone raised all of the financing.

[25] Dr. Awad repeatedly claimed these and other findings made by Justice Loo were “false”. Yet the decision of Justice Loo was upheld by the British Columbia Court of Appeal; see 2010 BCCA 114, with leave to appeal to the Supreme Court denied. While an unsuccessful litigant may well feel aggrieved, the failure to acknowledge the end of the road and the facts indisputably found (from my review, based on cogent and compelling evidence) undermines his credibility.

[26] Reviewing earlier paragraphs of the BCSC decision, and the finding that he defamed Mr. Salna, Dr. Awad’s response in testimony before me was that he “didn’t care”. Addressing that Quest had initially refused to finance the joint venture project, Dr. Awad, without any foundation, asserted that the Bank of Egypt would have done so. Yet, from all the evidence before me, that was clearly a flight of fantasy.

[27] Addressing the financing costs of the joint venture, Dr. Awad maintained before me that he objected to the $2 million bonus payment being refunded, and he still claims part of it. Yet this flies in the face of the holding by Justice Loo, beginning at paragraph 241 of her decision, as follows:

[241] The February Agreement is clear. Dover is entitled to recover “all of its advanced funds, including the operating costs as well as all costs of financing to close the deal” before there is a distribution of net revenues.

[28] Overall, having spent many days with Dr. Awad before me, observing him, including during his interactions with Mr. Gress as discussed subsequently, my assessment of his reliability as a witness is akin to that of Justice Loo. At paragraph 116 and following of her decision, she found as follows:

[116] From the many e-mails that Dr. Awad wrote and his evidence and demeanour at trial, I find that Dr. Awad regards himself very highly, and puts down, denigrates, and insults almost everyone else. He takes slight easily, and is quick to anger. He refers to the Egyptians who work at the EGPC as idiots. He repeatedly insulted Mr. Salna. He repeatedly questioned the competence of everyone, even those who were much more experienced than he was. He said that no Egyptian businessman is capable of running an oil field (which is surprising, considering that for most of his business life, Dr. Awad was an Egyptian citizen). He described Dexter Salna as having no business experience and Mr. Moulds as barely competent to sweep the floor. Like many of the descriptions Dr. Awad uses for people, his descriptions of Mr. Salna and Mr. Moulds are totally inappropriate and offensive. His e-mails are vitriolic. He exaggerates. He takes credit for anything positive that develops; he blames everyone else for anything negative that occurs. He does not tell the truth, even when his statement is made under oath. He contradicts himself on important points. He jumps to the most amazing and outlandish conclusions on the flimsiest of evidence.

[117] At trial he testified that the first time he ever spoke to Dave Coatney was during Canoil’s attempted acquisition. In an affidavit filed in the Ontario court proceedings, he swore that he entered into discussions with Mr. Coatney before he went to Marathon’s data room in Houston which is before he came to Vancouver. He was confronted with the conflicting evidence:

Q Did you swear that affidavit, sir?

A Yes.

Q And was that content true?

A In a way, yes.

Q In a way?

A Yes.

Q Just in a way?

A It doesn’t matter. That whole – that’s what – the chronology here was not that important.....That affidavit was made to lift the stay of Mr. (sic) Spence’s decision. It was not meant to decide on any detailed facts.

Q So this one wasn’t meant to have the proper details?

A No.

[118] In the Ontario proceedings, when cross-examined on his affidavits, Dr. Awad admitted that he lied:

Q. And you say: I already helped Dover Petroleum by paying $296,510—

A. Yes, yes.

Q. —as well as buying almost 300,000 shares—

A. Yes.

Q. —that cost me over $400,000.

A. Yes.

Q. Is that true, sir?

A. No. I was exaggerating.

Q. Oh, I see. So that was a lie when you wrote that you bought almost 300,000 shares of Dover Petroleum?

A. Yeah, it is a lie.

[119] Dr. Awad agrees that he lied, but that “it was no big deal”.

[123] There are two statements that Dr. Awad made at trial that are true: he said that he does not do business the way North Americans do business; and, he said that he does business the way he thinks it should be done, whether people like it or not.

[29] I concur with those conclusions of Justice Loo. In my view, in his testimony before me, Dr. Awad was an unreliable and self-serving historian whose exclusive goal was to further his own interests. I thus do not rely on his testimony unless corroborated. I find the evidence of the expert Mr. Gress to be far more reliable than Dr. Awad.

[30] Robert Salna testified on February 10 & 11, 2021. He described how, as a relative novice in the oil and gas exploration field in 2001 since getting his start in this industry in about 1999, he negotiated to buy the REU oilfields from a company called Marathon. He described the agreements made with Dr. Awad, including the May 28, 2001 EWA oilfield JV agreement which was prepared by Dr. Awad on his computer. That included clause six, the provision addressing what would happen if either side failed to make a cash call. Clause six reads as follows:

For cash calls, the partners will be subject to a penalty of 500% of the costs for exploratory wells, if the funds are not provided in a timely fashion.

[31] Mr. Salna testified that clause six was Dr. Awad’s idea. Dr. Awad in his evidence concurred that he came up with this clause and the wording for it. When cross-examined by Dr. Awad, Mr. Salna agreed that the purpose of clause six was to compel all parties to the agreement to meet their respective financial commitments. I will return to the significance of clause six subsequently.

[32] Mr. Salna described how matters deteriorated between him and Dr. Awad when things went wrong—which problems he ascribed to poor operational decisions by Dr. Awad regarding, inter alia, the EWA project. Overall, the bitterness and frustration of Mr. Salna was apparent in his testimony, as was equally apparent that he blames Dr. Awad for all that has occurred between them since the ill-fated JV projects began.

[33] Overall, despite being embittered toward Dr. Awad, after carefully considering his testimony, I find that Mr. Salna was in the main a far more accurate historian than was Dr. Awad. While I concur with Justice Perell that neither side is blameless in how it has aggressively conducted the within litigation, in my view, after consideration, Mr. Salna testified before me in a reliable fashion. Importantly for my purposes, moreover, Mr. Salna’s earlier sworn evidence as to the financial costs of these projects proved reliable. During the testimony of Mr. Gress, for example, back-up documents to financial issues had to occasionally be checked. These were found in the multiple binders attached to Mr. Salna’s January 24, 2013 affidavit. Ultimately, even if it took a while, the assertions sworn by Mr. Salna in his affidavit and/or made in his testimony before me were corroborated by the underpinning and, at times, original business and other documents found in those binders. That reliability of the back-up documents further validated the figures relied upon by Mr. Gress for his calculations, as well as demonstrated the reliability of Mr. Salna as a witness in this matter.

The Expert’s Reports and his Ultimate Opinion:

[34] As noted above, both Dr. Awad and Mr. Salna agreed that Mr. Gress would be the joint neutral expert in this matter and, given various opportunities to speak with him and review their position and financial figures, that they would accept his financial calculations and opinion. Dr. Awad, however, purported to subsequently change his position in that regard because he stated that Mr. Gress ultimately chose not to use his chart, and also because Mr. Gress, after reviewing Dr. Awad’s figures in context of the case, did not agree with much of his calculations and therefore, with his conclusions.

[35] In my view, however, that the chosen expert, whom everyone initially agreed is neutral, with no genuine connection to either party, ultimately issues an opinion in favour of one party does not entitle the other party to resile from their prior commitment. The parties in this case agreed to an appropriate, indeed, a necessary process, to finally allow them to get to the long-delayed end result. Neither side can abandon that agreement just because they do not like the end result, or because it seemingly does not favour their position. As previously discussed, I found Mr. Gress to be reliable, providing helpful understanding of the financial issues involved and how the calculations worked. Thus, I rely on his reports and conclusions.

[36] The first narrative report of Mr. Gress dated January 5, 2021 noted that he was working with the parties, discussing the financial issues so to be able to offer a final opinion. At that time, he provided what could be called a “working draft” for their respective comments and he sought further underpinning documents which he would review.

[37] His penultimate report of January 28, 2021 provides detail as to how he understood his task, as well as his then conclusions. His report is lengthy, so I do not quote all of it, albeit this excerpt is long enough, although hopefully informative and providing good context:

Report Date: January 28, 2021 Expert view of Awad vs Dover Investments monetary award and other observations Submitted by Albert Gress:

Preface: I understand my task is to assist the Master to ascertain the appropriateness of the calculations related to the Awad's entitlement from the Ras El Ush oil field in Egypt up to December 31, 2005 and the appropriateness of the valuation due Awad from Dover Investment's purchase of his entitlement to be valued on December 31, 2005. I am providing my opinions based on my several years of experience in the Egyptian petroleum industry. I do note that this has been a long and tenuous journey for the parties against the backdrop of several court appearances and related judgements. As such, I have read, as best as I can, volumes of court transcripts and related rulings, in addition to several, most unsolicited, emails from Awad providing his opinions which at many times were contrary to the judgements made in his presence. These actions precipitated more e-mails from Dover through its attorney to contradict or address some of the claims.

As a result, the magnitude of correspondence was more than expected. I do appreciate the frustrations of both parties and it does appear they have siloed their positions. I want the record to show that my intent is to maintain unbiased focus on the appropriateness of the calculations and what would be expected business costs related to such joint venture activities in Egypt and, in general, in the petroleum industry. Further, I was not asked to audit the numbers, that would be a much more time-consuming matter and requiring potentially reviews of actual documents which would be difficult. Accordingly, I did where I could tie back amounts to copies of records (several thankfully provided by Awad) but did rely on affidavit provided testimony and amounts identified in the resultant judgements. I provided an initial report (attached) on 5 January 2021 to the parties with a follow up call on 7 January 2021 to review the report and to solicit responses on some of the questions posed in said report. I subsequently received various comments and updated excel workbooks from each of the parties presenting their calculations of the monetary awards due to/from Awad. The intent of the calculations was to capture the adjudicated positions and the viewpoints of each of the parties of such positions. I then sent on 13 January 2021, my edits directly on the Dover Investments Excel Workbook, of which I sent a brief memo to the parties (attached) identifying the changes I made and the related impact on the amount due to/ owed from Awad, based on information I had through that date. (See below as to why I used one of the parties excel workbooks to best provide my opinions and calculations.) I was then provided various comments from both parties, more precise from the Dover Investment party and again several emails from Awad.

I was then informed on 15 January 2021, courtesy of Howard Wolch, attorney representing Dover Investments, that the Master requested more verbiage as to why I included or did not include certain amounts / adjustments to my calculations and brief memo. As such, the following is my latest report and attached are my edits on the Dover Investments Excel Workbook:

Joint Venture Agreements and Related Business Dealings:

I believe a critical element is the lack of a market standard joint venture agreement between the parties at the onset. Almost all parties in the petroleum industry work collectively under a rather standard joint venture agreement which details on how to handle many of the matters that are in dispute between the parties. The joint venture agreements in place between Awad and Dover Investments are basic in nature and only document certain items between the parties. Since there was a communication breakdown and mistrust between the parties, as I identified in my 5 January 2021 report, I relied on my several years of experience on what would be expected joint venture costs between parties under similar situations.

My positions on the following expenditures under what would be expected under market type joint venture agreements:

1. Acquisition Costs / Financing: It would be expected that partners agreeing to procure a business would share all the related costs. In this case, the joint venture agreement clearly identified that Dover would incur all upfront costs and that Awad would reimburse Dover through its share of cash profits. This is a reasonable approach and as long as Dover captured and documented all such related costs for such acquisition, including financing costs for such acquisition, such costs should be shared between the parties. Dover has captured these amounts properly in my opinion - refer to Schedule 4 in the Dover Excel Workbook. Awad has contested the C$2 million paid to Quest is some type of payoff. Unfortunately, this is an expected cost of doing business when attracting financing on behalf of individuals/ private companies with no significant credit lines. Further, I do believe the lender reviewed the projected cash flows of the opportunity and saw the opportunity to chase the bonus payment. Based on the various court transcripts, it is clear that Awad was fully aware of the financing and related costs. In addition, the costs related to failed financing attempts is also a cost of doing business which should be shared between the parties. Schedule 4 of the Dover excel workbook identifies clearly the related acquisition and financing costs and the date those costs were incurred.

2. Local branch office / Canada (operator headquarter) incurred expenditures: In the joint venture agreement, there was no language excluding operator headquarter or local branch costs. Many market type agreements may include certain provisions where operator headquarter costs are percentage of certain operating and capital costs to avoid the hassle of verifying such costs for the non-operating partner. No such agreement here. Further, Dover in Canada appears to be only handling the upstream business in Egypt and not involved in other dealings thus such charges have been assumed to be related to the business in Egypt where Awad is a partner. As such, costs incurred in Canada for the operations, based on the silence in the agreement, would be expected joint venture costs, thus Awad would be subject to remitting his share of such costs. These are costs charged to the joint venture in columns G & J in the Dover Excel Workbook.

3. Salaries incurred by Dover in Canada and Egypt (compensation outside of the joint venture operating company - PetroZeit): Absent any documented agreement, joint venture parties are responsible for the full share of such costs, regardless if allowed as cost recoverable or not in Egypt. This is standard practice as we all acknowledge that EGPC sets salaries at certain levels based on a table of experience of the individual. The EGPC practice is not a market indicator of salaries, thus joint venture parties recognize what the true costs are of using personnel, both expatriate and national. As such, all the captured salary and bonuses paid to verified employees are expected joint venture costs. I did not "audit" the amounts to related documents, but it appears that Awad's contention is not that these costs were incurred but that such costs should be limited to EGPC approved costs.

4. General comment: Awad continually asserts that he had not agreed to these joint ventures expected costs and that such costs should have been agreed to in advance as documented in the joint venture agreement. However, there was no call for a board meeting or joint venture partners meeting from himself, as an example. Further, his assertion is difficult to agree to in that 1) he was aware of the challenges of raising financing - as he approached Dover after failing to secure financing on his own; 2) he was part of the management team at the onset, and as such was aware of the corporate structure, including the Canada and local office; 3) arguably mismanaged his management responsibilities requiring Dover to identify expatriate personnel to manage the business, thus incurring more personnel costs. Court transcripts particularly those with BC Judge Loo identify several of the issues that Dover (Salna) had to contend with to manage the situation that Awad had created. Further I note that Awad attempted to offer as a negotiation trade to Dover via e-mails of which I was copied, that he would accept the headquarter costs / salaries, thus effectively acknowledging that these are acceptable joint venture costs.

5. 5x no cash call payment penalty: I do note as someone who has negotiated and has been a part of several joint venture agreements, that I have never seen quite the punitive deal that the parties including Awad signed with respect to the EWA joint venture agreement. Paragraph 6 is rather clear that the partners are subject to a 500% penalty for non-timely payment of exploration well costs. Most agreements state for exploration wells, you owe the money regardless for a commitment well (normally an exploration well) and that any non-payment renders your participating interest no longer valid and that the percentage ownership is split between the remaining parties. However, stating this, the penalty as documented in the agreement was signed by the parties and therefore is valid, regardless of market norms.

Excel Workbooks - provided by Awad and Dover Investments I received each parties excel workbook identifying their view on what the business had generated in cash through the end of 2005. In comparing the structure and layout and reasonableness for use, the Dover Investment excel workbook made the most sense to use and make comments, observations, and my proposed changes. As such, I reviewed this excel workbook against the several court judgements and resultant monetary award calculations to ascertain the reasonable amount due to (owed from) Awad.

The version presented by Awad, which appeared to be continually modified as it was sent to me several times, is 1) not easy to use, not much use of formula, 2) shows interest due from their oil buyer - double counted - part of the revenue column plus identified separately, 3) random additions of amounts in his favor without basis or understanding the of the underlying agreement or business. For example, his workbook shows completely incorrect or nonsensical calculations such as:

1. Adding short-term assets and short-term liabilities at 12/31/2005 and contesting that Dover provide him with his share of the total summation as working capital due him. You subtract liabilities from assets to ascertain working capital.

2. Calculating his share of the REU buyout at 12/31/05 by including his share of cost recovery balances (cost recoverable cost pools, collected against future cost oil barrels), plus the valuation provided by Ryder Scott. The Ryder Scott valuation considered the future recovery of both cost and profit oil barrels, thus Awad again was double counting perceived value due him. Considering that he has worked under the production sharing agreements in Egypt, either he is not as informed as he suggest he is with respect to the Egyptian fiscal terms or he is gaming the system, by creating more and more asks, just to confuse the courts, and other parties.

3. Reflecting the acquisition of the Marathon assets. His calculation does not even take into account the original deposit paid to Marathon. It just considers the net payable to Marathon - and comparing that to the principal and interest paid to Quest. This unreasonable calculation yields in Awad's calculation a credit owed him of about $349,000. Again, no rhyme or reason for this amount.

4. The Marathon settlement, again Awad included the actual receipts from Marathon of $838,679 but then added various credit amounts, where Awad arbitrarily added $660,000 to the amount and is claiming his share of the difference. Again, no rhyme or reason for the addition of $660,000. 5. Abu Sennan (U$451,407) and East Wadi Araba ($3,793) costs that should be added back - Again Awad identifies the amounts incurred from 2000 through 2005 for such costs (based on an EGPC rejected cost schedules), but then adds superfluous amounts, some double counting.

As a result of the above examples, there are a few more, it become evident that using Awad's excel workbook would be problematic and huge time consuming. From my opinion, he did not attempt to follow a reasonable approach towards identifying amounts applicable for REU business and valuation.

[38] With this cogent excerpt I hope it is clear why Mr. Gress was a valuable resource. His explanation, in particular, why he did not use Dr. Awad’s calculations satisfies me, as did his oral testimony on that point, why Dover’s spreadsheet was preferred as a basis for his calculations. His observations regarding what went wrong between the two parties at the outset, when commenting on the lack of a typical JV agreement, is also worthwhile as it shows his understanding of this particular industry and how it usually operates. Regarding his comments about clause six, however, on this legal issue I acknowledge his opinion but, as this is beyond his scope of expertise, I specifically do not rely upon it. I address clause six ahead in these reasons.

[39] The final follow-up report of Mr. Gress is dated February 20, 2021. As it is only 1.5 pages, I excerpt it in its entirety:

Follow Up Report issued 20 February 2021 By Albert Gress

Preface: As further to my report provided on 16 February 2021 and referenced excel workbooks provided, I was contacted by Dr. Awad via e-mail with certain comments and by Dover through their attorney Mr. Wolch via e-mail with certain comments. Both comments are identified below of which I have addressed and prepared an updated excel workbook…which is attached, and the results are compared with the other version results in the 16 February report in the table below

[table below omitted as it will not reproduce clearly].

Comments from Awad on Schedule 3 (16 Feb e-mail) (Gress follow up comments in bold)

1. A judgment for $750 in Awad's favour from the Ontario Court of Appeal dated Aug. 12, 2015 is missing. This was added in Schedule 3 and Dover has agreed to this.

2. Line 10. ($20,000) is subject to prejudgment interest of 2.8%; Not correct, the interest is not yet calculated on the opening balance.

3. Line 18. damages (similar to the following three lines) is not subject to interest; Seems to be a misunderstanding of the way the schedule works, line 18 interest is the interest applicable from the previous period.

4. Line 25. should be interest to Awad; Yes, line 25 considers that Awad received an award in his favor and the resultant balance subject to interest is reduced.

5. Line 29. should be $708,560.33 and the interest to Awad; Agreed and changed, not sure why the lesser amount was used - Dover may want to clarify.

6. Lines 53 & 54. the interest should be deleted and the total corrected. Again, not understanding the schedule and how it works, this is a running balance of interest based on the time period. These amounts are correct.

Comments from Dover through Wolch (19 Feb e-mail) (Gress follow up comments in bold):

Please remove the penalty amount of $3,541,575 and replace it with $2,047,513.96 as this is the actual total of Mr. Awad's payments that were deducted/applied to the EWA 500% penalty by Dover. Dover will be asserting as an alternative that this is the amount that should be taken into account as the penalty and since it was actually collected by Dover at the time, there should not be any interest accruing on this amount. I have adjusted the penalty amount as advised by Dover. It is a smaller penalty charged against Awad and not disputed by me as it appears to have been the amount withheld from Awad. Further, as Dover as agreed with, this amount should not be considered in the interest calculation and as such, is considered as a charge to Awad and is placed at the end of Schedule 2 so as not to be impacting the interest charges calculated on that schedule.

I hope this addresses the comments as provided above and does establish a new potential monetary award amount for consideration by the Master as identified in the table above.

[40] The various spreadsheets, which the parties and I have (these are attached to the Gress reports, found in exhibits 6 and 14) are too unwieldy to reproduce herein. Of course, I have reviewed all of these, not only during the hearing when Mr. Gress, the parties, and I went through them almost line-by-line. I have also reviewed these subsequently as I have prepared these reasons. In my view, all this information—the spreadsheets, the testimony of Mr. Gress, his opinions in part excerpted above—are persuasive and, I find, accurate, thus reliable. Nothing that Dr. Awad has provided or said has persuaded me otherwise.

[41] It is also noteworthy that Dover accepts the calculations of Mr. Gress, whether Dover must pay Dr. Awad or gets paid by Dr. Awad, depending upon which scenario is correct based on the remaining “legal issue” discussed below. Of course, Dover submits that it should be paid yet, either way, it does not dispute the calculations and rationale offered by the neutral expert.

[42] It is now important to address the “bottom line” calculations. Mr. Gress ultimately concluded that, after accounting for the revenue stream, all the costs awards, and judgments to date, there were two alternative results:

• If clause six of the May 28, 2001 EWA report is found enforceable, Dr. Awad owes Dover the sum of $331,087.33, plus potentially costs for this reference trial. That is because the 500% “penalty” equates to the approximately $2.4 million figure referenced and used above in the penultimate paragraph of the final Gress report.
• If, on the other hand, clause six is not found enforceable, then Dover owes Dr. Awad the sum of $1.65 million, again, plus potentially costs for this reference trial.

[43] Thus, as alluded to earlier in these reasons, the final issue to be decided is a legal question: is clause six enforceable?

Clause Six of the Binding Joint Venture Agreement Between At Home Holdings, Inc, and the “Partners” For The Exploration of East Wadi Araba Concession, Gulf of Suez-Egypt, dated May 28, 2001: A “Penalty Clause” or an Enforceable Contract Term?

[44] For the reader’s convenience, clause six is re-stated as follows:

For cash calls, the partners will be subject to a penalty of 500% of the costs for exploratory wells, if the funds are not provided in a timely fashion.

[45] There has as yet been no judicial determination of this clause. The closest is the following cautionary observation by Justice Loo in her earlier referenced 2009 Dover v. Transpacific decision. At paragraph 254, Loo, J. observes as follows:

[254] Dover concedes that it has withheld revenues from Dr. Awad since January 2004. I do not know the extent of those revenues. However, Dover has paid Dr. Awad’s share of expenses for the EWA which is currently being litigated in Alberta, and has taken an assignment of Dover Petroleum’s interest in the EWA. The claim against Dr. Awad in the Alberta litigation is for $708,315 representing his share of the cash calls which he has refused to pay. Under the EWA joint venture agreement, a failure to make a cash call provides for a 500 percent penalty. His potential liability is therefore greater than any REU revenue that is owed to him. I am told by counsel that Dr. Awad has been unsuccessful in the Ontario courts and in Alberta to have funds that are otherwise owed to him, paid out to him [emphasis added].

[46] I begin this analysis by reiterating that both Mr. Salna and Dr. Awad testified that clause six was Dr. Awad’s idea. He drafted this JV agreement. The wording of clause six was his. All parties agreed to it, so the agreement was signed. Dr. Awad explained that he wanted a clause of this nature, as he believed such would protect his interests from any default of Dover. Yet he, and the other joint venturers, all signed the agreement so, presumptively, all are bound to what they knowingly and willingly agree and sign.

[47] That ultimately it is Dr. Awad, who wanted this contractual wording, yet who was the one who defaulted, not Dover, thus Dr. Awad being caught by his own wording, does not automatically allow him to escape the consequences of his deliberate choices and actions.

[48] The evidence before me is also informative that the clause had a purpose other than “in terrorem”, if the long-established law on penalty clauses still applies (that query is discussed below). After the debacle with the EWA project, and the resulting losses, if the partners had not managed to make the cash call, the evidence is that there would have been a loss of an approximately $4 million cost recovery pool, as well as additional millions as pertains to expenses for the well, and the concession, overall. To avoid or prevent such losses, the 500% penalty was devised. Therefore, it seemingly had a rational purpose, so in that case would be a genuine pre-estimate of damages connected to the viability, longer term, of this JV project.

[49] The defining case on penalty clauses is Dunlop Pneumatic Tyre Co. v. New Garage & Motor Co. (1914), [1915] A.C. 79 (U.K.H.L.). The four key principles extrapolated from that case are:

1. While contracting parties may use the words “penalty” or “liquidated damages”, and the parties supposedly mean what they contractually say, the court must determine if the payment is in reality a penalty or liquidated damages.
2. A penalty is stipulating a sum of money as payment in terrorem, while liquidated damages is a genuine pre-estimate of damages.
3. The terms and circumstances of each contract, and each case, are important determining factors, judged as of the time the contract was formed and not at the breach.
4. An amount can still be a genuine pre-estimate of damages even if the consequence of the potential future breach are impossible, at time of contract formation, to quantify. Indeed, that is the situation when the parties wisely turn their minds to agreeing on a genuine pre-estimate of damages, which would be the intended bargain that the parties made.

[50] This law was confirmed in Canada in H.F. Clarke Ltd v. Thermidaire Corp. (1974), [1976] S.C.R. 340, as was referenced in Haas v. Viscardi, 2018 ONSC 2883 (paragraph 12). Yet, is it still absolute? Counsel for Dover relied upon decisions from the Court of Appeal which, it was submitted, arguably are shifting this inquiry toward more of an unconscionability analysis. See, in that regard, 869163 Ontario Ltd. v. Torrey Springs II Associates Ltd., 2005 CANLII 23216 as well as Birch v. Union of Taxation Employees, Local 70030, 2008 ONCA 809 (paragraphs 34-37).

[51] A recent decision of the Superior Court, Divisional Court, on appeal of a Small Claims Court decision, is Save Max Real Estate Inc. v. Dutta, 2019 ONSC 6116. Therein, in determining whether a real estate agent had to pay $10,000 to his brokerage after precipitously quitting, Justice Le May wrote the following:

[29] In considering these cases, there are a number of principles that emerge. First, the Courts will consider whether the clause in question is a genuine pre-estimate of damages or whether it is a penalty clause. See Canada General Electric Co., supra and Thermidaire, supra at para. 38.

[30] Second, the most important factor a court will consider in determining whether the clause is a penalty clause is the quantum of damages. Infinite Maintenance Systems, supra at para 14.

[31] Third, the test that will be applied in determining what is a penalty clause was set out in Infinite Maintenance Systems, supra at para 14 as follows:

[14] In determining whether a clause is a pre-estimate of damages or a penalty, the most important factor a court will consider is quantum. As stated by Lord Justice Dunedin in Dunlop Pneumatic Tyre Co. v. New Garage & Motor Co., [1915] A.C. 79 at 87:

It [a “liquidated damage” clause] will be held to be a penalty if the sum stipulated for is extravagant and unconscionable in amount in comparison with the greatest loss that could conceivably be proved to have followed from the breach.

[32] This test requires the Court to consider whether the sum is “extravagant” or “unconscionable” in light of the maximum loss that could have been sustained by the party seeking to enforce the clause. In my view that is, at most, a question of mixed fact and law.

[33] In this case, there is a cost to the brokerage in carrying a real estate agent. That cost will be difficult to estimate, and may vary depending on the agent. Similarly, the training that is necessary for an agent will depend on the skills of the agent. It appears that, in this case, the Appellant would have required more training than other people. Part of the training will be on-the-job training, and it will be difficult to quantify the cost of that training. Therefore, the fact that the cost of training cannot be precisely quantified is not a ground for concluding that the clause is a penalty clause.

[52] Extrapolating from the above, again, the evidence is that the consequences of not making the capital call on the EWA JV project could have led to over $4 million in losses, plus essentially the forfeiture of the entire JV project. The 500% penalty contemplated and implemented by Dr. Awad, therefore, which, per the final Gress report as acknowledged by Dover, represents under that figure at worst ($3,541,575) and acknowledged to actually be $2,047,513.96, representing Dr. Awad’s payment of the penalty as deducted from him, cannot be stated to be excessive, extravagant, or unconscionable in these circumstances. It is certainly less than $4 million in either scenario. Accordingly, the 500% figure itself would, again, seem not to be in the nature of a penalty.

[53] That the actual or potential loss amount was not known at the time when Dr. Awad came up with the 500% clause is because the actual amount would have been genuinely difficult to estimate when the contract was formed. Yet, as Justice Le May held in the Save Max decision, the inability to precisely quantify the amount does not lead automatically to the conclusion that the clause is a penalty clause.

[54] As to which analysis (traditional penalty clause or unconscionability) applies or is to be preferred, it is not for me in this decision to pronounce whether the law of penalty clauses has or has not shifted. That is for others at higher stations of the judiciary. Suffice it for me to conclude that, applying the traditional analysis beginning with Dunlop Pneumatic Tyre, and as refined over the years in the Canadian Courts, in my view, clause six is not a penalty clause. Dr. Awad also did not claim it to be so in his testimony. Accordingly, I conclude that the clause was intended as a pre-estimate of damages which was, in the context and circumstances, reasonable and appropriate given the potentially devastating consequences of a breach.

[55] When I also consider the issue through the lens of unconscionability, I am equally unable to conclude that holding Dr. Awad to the bargain that he not only freely made, but that he himself initiated via the specific terms of the agreement, even approaches unconscionability in the result. Accordingly, if the question should also be addressed pursuant to an unconscionability analysis, then on the evidence it is inconceivable to me that it would be unconscionable to hold Dr. Awad to a contractual term of his creation, in a contract which he wrote, and with which all parties agreed and signed. Dr. Awad, as other have found, is not the typical self-represented party. Rather, he holds a doctorate in the sciences; and I find that he is, to say the least, quite astute at trying to protect his own perceived interests. He accordingly needs no special protection from the court. He is thus held to the bargain which he freely conceived and made.

[56] In the end result, I conclude that clause six of the agreement is not a penalty clause. It is also not unconscionable. Rather, it is an enforceable contractual term.

[57] The final argument made by counsel for Dover is that the penalty clause analysis does not even arise in this case, because the breach is tied to a specific conditional event, namely, the failure of a joint venturer to pay his portion of a cash call. It was submitted that the law on penalty clauses only applies in the circumstances of an unspecified breach, not to a specified conditional event, such as, in this within matter, the failure to make a cash call payment.

[58] Counsel in that regard relies on an Alberta Court of Appeal decision, Bidell Equipment LP v. Caliber Midstream GP LCC, 2020 ABCA 478. That case involved a breach of contract claim with a supposed “liquidated damages” provision. At paragraph 23, the Alberta Court of Appeal describes the distinction, which Mr. Wolch in his submissions made to me, as follows:

[23] Courts have enforced contract provisions that are a bona fide pre-estimate of damages suffered on breach or non-performance of a contract. These are commonly known as liquidated damages clauses. Conversely, courts have refused to enforce penalty provisions, which are essentially designed to deter a party from breaking a contract, irrespective of the anticipated loss. But a more fundamental issue here is whether this analysis applies at all to the present appeal. We say it does not. This analysis only applies on breach or non-performance of the contract; it does not apply to a conditional event that is governed by the contract [emphasis added].

[59] This attractive analysis seemingly well fits to the present case. If I am wrong in my analysis to this point, then this distinction may well be worthy of further consideration. Yet I need not pronounce further on this Alberta decision, or about its applicability in Ontario, given my conclusions above.

Disposition:

[60] On this Reference, after considering and applying all the financial and other evidence, I conclude that the applicants Dr. Awad and Transpacific must pay the respondent Dover companies and Mr. Salna the sum of $331,087.33.

[61] Pursuant to my hearing notes, the issue of interest was not disposed of pending my coming to these conclusions. The other remaining issue is that of costs of this Reference. While I encourage the parties to resolve these two issues themselves, I am aware that such is not likely to succeed. Accordingly, a tele-case-conference or a Zoom case-conference can be scheduled with me through ATC Mr. Magnante to address these remaining issues and to schedule, if necessary, a brief hearing for that purpose.

Master J. Josefo