COURT FILE NO.: CV-16-561414

DATE: 20210126

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

Electro-Works Ltd.

Applicant

– and –

Fogler, Rubinoff LLP

Respondent

Julian Binavince, for the Applicant

Ross MacDougall, for the Respondent

HEARD: December 16, 2020

PapaGeorgiou J.

Nature of the Application

[1] This is an Application for an Order that the Respondent, Fogler, Rubinoff LLP (“Fogler, Rubinoff”) pay the Applicant, Electro-Works Ltd. (“Electro-Works”) $39,812.68. This is money Fogler, Rubinoff received from its client for legal fees and disbursements.

[2] The main issues in this Application are whether this money was impressed with a trust in favour of the Electro-Works, and whether Fogler, Rubinoff is in “knowing receipt” of trust funds by accepting the payment.

Decision

[3] For the reasons that follow, I find that the $39,812.68 was impressed with a trust when Fogler, Rubinoff received it, that it was in “knowing receipt” of trust funds, and I direct that Fogler, Rubinoff pay the sum of $39,812.68 to Electro-Works on the basis that it holds this money as a constructive trustee.

Background

[4] This Application involves trust principles set out in the Construction Lien Act, R.S.O. 1990, c. C.30 (the “Act”). The main actors are as follows:

a. R & B Properties (Queen Street) Inc. (“R & B”) was the “owner” (as defined in the Act) of 649 Queen Street West (the “Property”). R & B commenced a development on the Property (the “Project”);

b. Glenn Steven Abugov (“Abugov”) was a director and officer of R & B;

c. I.C.I. Construction Corporation (“I.C.I.”) was the general contractor for the Project (a “contractor” as defined in the Act);

d. Electro-Works Ltd. (“Electro-Works”) was a subcontractor of I.C.I. who provided electrical services to I.C.I. for the Project (a “subcontractor” as defined in the Act); and

e. Fogler, Rubinoff was counsel for I.C.I. in two litigation proceedings:

i. First, Fogler, Rubinoff represented I.C.I. in a construction lien action which I.C.I. brought against the R & B and Abugov with respect to labour and materials that I.C.I. had supplied to the Property (the “Lien Action”). At that time, a number of other contractors also registered a claim for lien against the Property (the “Subcontractor Lien Claims”). (The Applicant Electro-Works did not register a claim for lien.) R & B posted security to vacate all the liens registered.

ii. Second, Fogler, Rubinoff defended I.C.I. in an action brought by Electro-Works against it for breach of trust under s. 8 of the Act in respect of unpaid labour and materials furnished to the Project (the “Trust Action”). Electro-Works sought declarations that all amounts paid to, owing to, or received by I.C.I. and/or Abugov in any way related to the Project constituted trust funds for the benefit of Electro-Works, and that the I.C.I. and Abugov breached their trust obligations under the Act. I.C.I. denied the claim for a number of reasons including alleging that Electro-Works failed to perform the work in accordance with the contract terms and conditions, delayed the project, performed the contract deficiently and overcharged for the work done.

[5] I.C.I. settled all of the Subcontractor Lien Claims. I.C.I. also reached a settlement with R & B whereby R & B agreed to pay $406,712.74 to I.C.I. out of the security posted with the Court to vacate the liens in full and final settlement of its claim (the “Lien Action Settlement”). At the time of this settlement, I.C.I. was still disputing Electro-Work’s claim in the Trust Action.

[6] On or about September 30, 2014, Master Albert made a Consent Order (“Master Albert’s Order”) dismissing the Subcontractor Lien Claims and directing that $406,712.74 be paid to “Fogler, Rubinoff LLP in Trust” out of the money paid into court. Thereafter, on October 8, 2014, Fogler, Rubinoff received $406,712.74 (the “Lien Action Settlement Funds”) from the Court and deposited these funds in its trust account.

[7] After it received the Lien Action Settlement Funds, Fogler, Rubinoff made the following payments at the direction of I.C.I.:

a. October 8, 2014: transfer of $39,812.68 from its trust account into its general account for legal services performed for I.C.I. (the “Payment”);

b. October 8, 2014: payment of $50,000.00 to I.C.I.;

c. October 20, 2014: transfer to $14,712.60 to Castle Precast Ltd.;

d. October 20, 2014: transfer to $25,000.00 to I.C.I.;

e. November 3, 2014: transfer to $25,000.00 to I.C.I.;

f. November 3, 2014: transfer $130,000.00 to Roc-Win Management Limited, a lender to I.C.I.;

g. November 18, 2014: transfer to $22,187.46 to I.C.I.; and

h. December 5, 2014: transfer to $100,000.00 to I.C.I.

[8] On or about March 3, 2015, Fogler, Rubinoff brought a motion to remove itself from the record in the Trust Action.

[9] On or about July 14, 2015, I.C.I., Abugov and Electro-Works entered into Minutes of Settlement (the “Minutes”) whereby I.C.I. and Abugov confirmed that they owed Electro-Works $72,000 plus $5,000 for costs, and agreed to a payment plan. The Minutes provided that if I.C.I. defaulted, Electro-Works could obtain a consent judgment.

[10] I.C.I. defaulted on the settlement.

[11] On August 28, 2015, the Court in the Trust Action granted the following Judgment in favour of Electro-Works against I.C.I. and Abugov:

a. A declaration that all amounts received by I.C.I. from R & B on account of the contract between them constitute a trust fund for the use and benefit of Electro-Works;

b. A declaration that I.C.I. and Abugov breached the trust imposed by the Act;

c. An order for an accounting and tracing of all trust funds received and disbursed by I.C.I. and Abugov; and

d. An order that I.C.I. and Abugov pay Electro-Works $72,000 plus $5,000 on account of costs.

[12] I.C.I. has since become bankrupt and Electric-Works cannot locate Abugov. Neither have responded to this Application.

[13] Electro-Works argues that the Lien Action Settlement Funds received by Fogler, Rubinoff pursuant to Master Robinson’s Order were impressed with a trust immediately upon receipt and could only be used for purposes of the trust, that is, to pay subcontractors or others who supplied goods and services or materials to the improvement. Electro-Works argues that Fogler Rubinoff is liable as a constructive trustee for breach of trust as a party in “knowing receipt” of trust funds belonging to another.

[14] Fogler, Rubinoff takes the following position:

a. It is not a “trustee” under the Act and does not fall within the category of a person having effective care and control of I.C.I. so as to trigger liability under s. 13 of the Act;

b. The doctrine of “knowing receipt” does not apply to the statutory trust established under the Act;

c. Elector-Works has not satisfied the test for being in “knowing receipt” of trust funds in any event; and

d. there are policy reasons which would negate the imposition of liability on Fogler Rubinoff on the basis of “knowing receipt”.

Analysis

The relevant trust provision

[15] Section 8 of the Act provides as follows:

Contractor’s and subcontractor’s trust

Amounts received a trust

8. (1) All amounts,

(a) owing to a contractor or subcontractor, whether or not due or payable; or

(b) received by a contractor or subcontractor,

on account of the contract or subcontract price of an improvement constitute a trust fund for the benefit of the subcontractors and other persons who have supplied services or materials to the improvement who are owed amounts by the contractor or subcontractor. R.S.O. 1990, c. C.30, s. 8 (1).

Obligations as trustee

(2) The contractor or subcontractor is the trustee of the trust fund created by subsection (1) and the contractor or subcontractor shall not appropriate or convert any part of the fund to the contractor’s or subcontractor’s own use or to any use inconsistent with the trust until all subcontractors and other persons who supply services or materials to the improvement are paid all amounts related to the improvement owed to them by the contractor or subcontractor. R.S.O. 1990, c. C.30, s. 8 (2).

What is the doctrine of “knowing receipt” of trust funds?

[16] A stranger to a trust may, under some circumstances, attract the liabilities of a trusteeship. One of these circumstances is where that stranger to the trust is in “knowing receipt” of trust funds. Gold v. Rosenberg, 1997 333 (SCC), [1997] 3 S.C.R. 767, at paras. 26-27 (“Gold”). There is no dispute regarding the elements required to prove a “knowing receipt” of trust funds which are concisely set out in para. 37 of Fogler, Rubinoff’s factum:

a. The defendant received property subject to a trust in favour of the plaintiff;

b. The property was taken from the plaintiff in simple breach of trust;

c. The defendant had knowledge of facts sufficient to put a reasonable person on notice or inquiry of the breach of trust;

d. The defendant applied the property for its own use and benefit.

Chinook Country Properties Ltd. v. Fraser Milner Casgrain LLP, 2016 ABQB at paras 19-20

Gold v. Rosenberg, 1997 333 (SCC), [1997] 3 SCR 767 at para 53

Citadel General Assurance Co. v. Lloyds Bank Canada, 1997 334 (SCC), [1997] 3 SCR 805 at paras 25-26

[17] Liability under the “knowing receipt” doctrine is based on restitution. The stranger has received trust property for its own benefit and in doing so, has been enriched at the beneficiary’s expense. In Caja Paraguaya de Jubilaciones y Pensiones del Personal de Itaipu Binacional v. Garcia, 2020 ONCA 412, (“Caja v. Garcia”), at para. 55, the Court of Appeal held that “the stranger is therefore conscience-bound to restore the property received.” See also Caja v. Garcia, at para. 58, and Air Canada v. British Columbia, 1989 95 (SCC), [1989] 1 S.C.R. 1161, at pp. 1202-03.

[18] In “knowing receipt” cases, the threshold of knowledge is “constructive knowledge”, which means knowledge of facts sufficient to put a reasonable and honest person on notice or on inquiry of the possibility of a breach of trust.

[19] However, the stranger to the trust is not required to engage in an impractically extensive inquiry, nor is the stranger held to the standard of perfection: A & A Jewellers Ltd. v. Royal Bank of Canada, 2001 24012 (ON CA), [2001] 53 O.R. (3d) 97 (C.A.), at para. 43.

Does the doctrine of “knowing receipt” apply in cases involving the trust provisions of the Act?

[20] Fogler, Rubinoff argues that the “knowing receipt” doctrine does not apply in cases involving the trust provisions of the Act. In its factum, Fogler, Rubinoff argues “while equitable remedies are available against strangers to a common law trust in certain circumstances, the same is not true for the statutory trust established under the Act.”

[21] Fogler, Rubinoff argues that s. 13 of the Act supports this argument as it provides that those who are in effective control of a corporation can be liable for breach of trust under the trust provisions set out in the Act:

Liability for breach of trust

By corporation

13 (1) In addition to the persons who are otherwise liable in an action for breach of trust under this Part,

(a) every director or officer of a corporation; and

(b) any person, including an employee or agent of the corporation, who has effective control of a corporation or its relevant activities, who assents to, or acquiesces in, conduct that he or she knows or reasonably ought to know amounts to breach of trust by the corporation is liable for the breach of trust. R.S.O. 1990, c. C.30, s. 13 (1).

Effective control of corporation

(2) The question of whether a person has effective control of a corporation or its relevant activities is one of fact and in determining this the court may disregard the form of any transaction and the separate corporate existence of any participant. R.S.O. 1990, c. C.30, s. 13 (2).

Joint and several liability

(3) Where more than one person is found liable or has admitted liability for a particular breach of trust under this Part, those persons are jointly and severally liable. R.S.O. 1990, c. C.30, s. 13 (3).

Contribution

(4) A person who is found liable, or who has admitted liability, for a particular breach of a trust under this Part is entitled to recover contribution from any other person also liable for the breach in such amount as will result in equal contribution by all parties liable for the breach unless the court considers such apportionment would not be fair and, in that case, the court may direct such contribution or indemnity as the court considers appropriate in the circumstances. R.S.O. 1990, c. C.30, s. 13 (4).

[22] In my view, s. 13 expands on protections provided to contractors and subcontractors, it does not decrease them.

[23] In its factum Fogler, Rubinoff also argues that “the statutory trusts created by the Act are limited by the terms of the statute. The intended trustees and beneficiaries of those trusts are clearly identified. It would undermine the structure of relations and the system of priorities established by the Act to expand the remedies under the legislation and to impose positive trust obligations on lawyers or other third parties who are note “owners”, “contractors”, “subcontractors”, or who do not have “effective control of a corporation under s. 13.”

[24] Fogler, Rubinoff relies on Tremblar Building Supplies v. 1839563 Ontario Limited, 2020 ONSC 1316, aff’d 2020 ONSC 6302 (“Tremblar”), and in particular this passage at para. 10:

[…] The Construction Lien Act is remedial legislation and provides additional obligations and rights to those provided by the common law. The additional rights and obligations do not imply the existence of further rights and obligations that do not arise under contract law or the Construction Lien Act.

[25] I disagree that Tremblar stands for the broad proposition asserted by Fogler, Rubinoff that only those expressly liable for breach of trust under the Act may be liable, or that the Act, properly interpreted, ousts the doctrine of “knowing receipt” of trust funds.

[26] Tremblar involved a claim by a Subcontractor under the Act against an Owner after the Subcontractor could not collect from the Contractor (with whom the Subcontractor had a contract), who had become bankrupt. The Subcontractor had not filed a lien claim. Instead, the Subcontractor argued that it had a direct claim for breach of trust against the Owner as well as unjust enrichment because the Owner had the benefit of the Subcontractor’s work, without the Subcontractor having been paid.

[27] The Court reviewed the provisions of the Act which provide contractors and subcontractors with additional rights outside their common law rights, including statutory trust claims by subcontractors against contractors, statutory trust claims by contractors against owners and lien claims. The Court concluded that in that case there was no direct trust claim against the owner because trust claims under the Act requires privity of contract between the owner and whoever is asserting the trust claim. With respect to the claim for unjust enrichment the Court held, at para. 9, that “the comprehensive scheme of rights and obligations under the Construction lien Act is the juristic reason for precluding claims of unjust enrichment by subcontractors against owner” (emphasis added).

[28] Tremblar did not take away any common law rights. Indeed, even the passage referred to by Fogler Rubinoff above specifically states that “the Construction Lien Act is remedial legislation and provides additional obligations and rights to those provided by the common law” (emphasis added).

[29] Further, Tremblar did not consider the doctrine of “knowing receipt”, even though it is true that the underlying basis for recovery in “knowing receipt” cases is restitution or unjust enrichment, which the Court did consider in Tremblar in a different context. Tremblar considered a very specific set of facts where the arguments advanced by the plaintiff would expand on the trust obligations of owners under the Act. This is simply not the case here.

[30] Indeed, applying Tremblar to cases involving “knowing receipt” of trust funds by strangers to the trust, if accepted, would significantly undermine the trust provisions of the Act. It would mean that trust claims could easily be defeated if the person with the trust obligation (the owner under s. 7 or a contractor or subcontractor under s. 8) could simply transfer such money to someone else (even if that person knew that the purpose of the transfer was to deliberately defeat the trust claim) and the beneficiary would be unable to follow the money.

[31] In my view, once a trust has been created the principles of “knowing receipt” apply to third parties.

[32] Finally, Fogler, Rubinoff’s position and extension of Tremblar to cases involving “knowing receipt” of trust funds is inconsistent with the Court of Appeal’s decision in Arthur Andersen Inc. v. Toronto-Dominion Bank (1994), 1994 729 (ON CA), 17 O.R. (3d) 363 (C.A.) (“Arthur Andersen”). In Arthur Andersen, the Court confirmed that a bank could be liable as a stranger to the trust for “knowing receipt” of trust monies established for the benefit of subcontractors under the Act. Indeed, the Court accepted the trial judge’s conclusion that the Bank was a constructive trustee, but ordered a reference to determine the amount that might be owing to the plaintiff by the bank bearing in mind the trust provisions of the Act. Arthur Andersen has never been overturned and was not considered by the Divisional Court in Tremblar. See also Chris Nash Building Inc. v. Buckland, 2010 ONSC 5395 (“Nash”), where the Court also accepts that the doctrine of “knowing receipt” could apply to trust obligations under the Act, although the Court concluded in that case that the stranger to the trust was not in “knowing receipt”.

Was Fogler, Rubinoff in “knowing receipt” of trust funds when it transferred the Payment from its trust account to its general account.

[33] Fogler, Rubinoff asserts that it was not in “knowing receipt” of trust funds because its client, I.C.I., denied that any funds were owed to Electro-Works in the Trust Action. It argues that its knowledge of this fact satisfied its duty of inquiry. It also argues that at the time it transferred the Payment from its trust account to its general account, there were still sufficient funds remaining in the Lien Action Settlement Funds to pay Electro-Works’ claim if it ultimately succeeded.

[34] The parties provided me with a number of cases where courts have considered and applied the doctrine of “knowing receipt” to a variety of fact situations. However, the cases tend to be fact specific and none of them are analogous.

[35] In my view, in this case, Fogler, Rubinoff was in “knowing receipt” of trust funds for the following reasons:

Fogler, Rubinoff received property subject to a trust and applied it to its own use and benefit

a. In considering whether a reasonable person in Fogler, Rubinoff’s position would be put on notice that the Payment constituted trust funds for the benefit of those who supplied improvements to the Project, it is appropriate to take into account Fogler, Rubinoff’s status as a law firm. The lawyer at Fogler, Rubinoff who represented I.C.I. is Kenneth Movat; he is a certified specialist in construction law with 30 years of experience. A reasonable person in Movat’s position would be aware of, and understand, the provisions of the Act as they relate to the trust obligations of contractors like I.C.I.;

b. Section 8 of the Act makes it clear that the trust over monies received by a Contractor on account of an improvement continues to exist until “all subcontractors and other persons who supply services or materials to the improvement are paid all amounts related to the improvement owed to them by the contractor or subcontractor”. See also Great Northern Insulation Services Ltd. v. King Road Paving and Landscaping Inc, 2019 ONSC 3671, at para. 29 (“Great Northern”), where the Divisional Court confirms that this trust does not extinguish until all persons who provided services or materials have been paid;

c. Fogler, Rubinoff admits that the Lien Action Settlement Funds were payments made to I.C.I. (and held by Fogler, Rubinoff on its behalf) on account of improvements to the Project;

d. Therefore, the Lien Claim Settlement Funds were trust funds which Fogler, Rubinoff held on behalf of I.C.I.;

e. Payments by I.C.I. to Fogler, Rubinoff on account of legal services are properly characterized as overhead expenses of I.C.I. and are not payments made on account of any improvements to the Property: RSG Mechanical Inc. v. ABCO Construction Inc., [2000] O.J. No. 4287 (Ont. S.C.), at para. 36;

f. Therefore, I.C.I. committed a breach of trust when it made the Payment out of Lien Claim Settlement Funds;

Fogler, Rubinoff had knowledge of facts and circumstances sufficient to put a reasonable person on notice or inquiry that the Payment constituted trust funds for the benefit of those who provided improvements to the work

g. The Trust Action brought by Electro-Works (where it represented I.C.I.) constituted a fact and circumstance putting Fogler, Rubinoff on notice that there could be trust beneficiaries who had a claim over the Lien Action Settlement Funds and triggering the duty to inquire;

h. A reasonable person in Fogler, Rubinoff’s position would have known that if Electro-Works succeeded in the Trust Action, any prior payments out of the Lien Action Settlement Funds made to anyone who was not a contractor or subcontractor, who supplied improvements to the Project, would constitute a breach of trust;

i. In Gold at para. 65, the Supreme Court indicated that the question which must be asked is whether the defendant made sufficient inquiries or alternatively, whether it received assurances that would have satisfied a reasonable person. Apart from I.C.I.’s denial that any amounts were owed, Fogler, Rubinoff relies upon the cross-examination of Electro-Works’ representative in this proceeding where he agreed that I.C.I. had not signed a work order. These facts are not determinative of Electro-Works’ claim. In my view, in the context of ongoing litigation which had not even proceeded to discovery, this would be insufficient to satisfy a reasonable person’s inquiries in these circumstances. The case of Nash does not assist Fogler, Rubinoff because in that case the lawyer who accepted a payment out of what later turned out to be a trust in favour of contractors, did not know that the contractor was still claiming an amount from the Owner;

j. It is irrelevant that Fogler, Rubinoff believed that there were sufficient funds remaining to pay Electro-Works’ claim out of the remainder of the Lien Action Settlement Funds after the Payment to Fogler, Rubinoff. Section 8 makes it clear that the trust applies to “all amounts received by a trustee on account of an improvement” and that this trust continues until “all subcontractors and other persons who supply services or materials to the improvement are paid all amounts related to the improvement owed to them by the contractor or subcontractor”. [Emphasis added]. See also Great Northern, at para. 29;

There are specific provisions of the Act which direct when and how funds held in trust may be reduced. Section 10 provides that the trust is reduced to the extent of any payments made by the trustee in respect of improvements. Section 11(1) says that the trust is reduced to the extent the trustee uses its own personal funds to pay for improvements. Section 11(2) says that the trust is reduced to the extent of borrowed funds which the trustee uses to pay for improvements;

I.C.I. may have had valid arguments which reduced the portion of the Lien Action Settlement Funds which had to remain in trust based upon ss. 10-11. As well, just because all the lien claims had been settled, this did not mean that there were no other potential trust claims. It would set a dangerous precedent if this Court held that a stranger to the trust, when on notice that a trust exists, could legally accept a portion of such funds based upon its own determination or belief of how much money was still needed to satisfy outstanding contractor and subcontractor claims;

k. Arthur Anderson does not assist Fogler, Rubinoff. The Court concluded that TD did not at the relevant time know that there were issues with contractors and subcontractors not being paid in the ordinary course. In that context, the Court stated: “in the absence of sufficient facts or circumstances indicating there is a good possibility of trust beneficiaries being unpaid, there is no duty of inquiry on a bank to determine whether the trades have been paid or will be able to be paid.” This case is different as by the time Fogler, Rubinoff received the Payment, it had in its possession facts and circumstances which did alert it to the possibility of someone, namely Electro-Works, being an unpaid beneficiary of the trust. In my view, the comments made by the Court in Arthur Anderson have been taken out of context by Fogler, Rubinoff.

Are there public policy reasons why a constructive trust should not ensue?

[36] Fogler, Rubinoff says that as a lawyer for I.C.I., it did not owe any duty of care to Electro-Works, an adverse party represented by its own lawyer. Fogler, Rubinoff also says that it was duty bound to believe I.C.I. when it told Fogler, Rubinoff that no money was owed and duty bound to transfer the Payment to itself out of its trust account upon I.C.I.’s instructions to do so. It says that there are strong policy considerations against imposing duties on lawyers to non-clients who are potential beneficiaries to a constructive trust on the basis of “knowing receipt”. Imposing a constructive trust in these circumstances would result in a chilling effect on legal services, put lawyers in a difficult position when clients give them instructions and implicitly be contrary to a lawyer’s duty of loyalty to her clients.

[37] In my view, these concerns are not warranted. Fogler, Rubinoff wore two hats. It acted as counsel for I.C.I. in the Trust Action and the Subcontractor Lien Claim with all the duties and obligations that this entailed. However, when it received the Payment, it received it as a creditor of I.C.I. There are many rules within which lawyers must operate when representing clients and receiving money from them, and there are situations where lawyers may not follow their clients’ instructions because these instructions may be unlawful: e.g. mortgage fraud cases, money laundering etc.

[38] When I.C.I. instructed Fogler, Rubinoff to pay its account out of the Lien Action Settlement Funds, all Fogler, Rubinoff had to do was advise I.C.I. that these were trust funds and that it should pay its account in the ordinary course.

[39] While this would put Fogler, Rubinoff at risk that I.C.I. might not pay its bill, this risk does not provide any basis for giving a lawyer’s unsecured claim a preference over a subcontractor’s trust claim. (I note that Fogler, Rubinoff has not asserted a solicitors’ lien.)

[40] While this outcome may seem harsh given Fogler’s assertion and belief that it was duty bound to believe its client, it is important to keep in mind that the cause of action in “knowing receipt” cases is not based on any impropriety of the party in “knowing receipt”. As the Supreme Court stated in Gold at para. 49:

Rather, the cause of action in knowing receipt arises simply because the defendant has improperly received property which belongs to the plaintiff. The plaintiff’s claim amounts to nothing more than, “You unjustly have my property. Give it back.” Unlike knowing assistance, there is no finding of fault, no legal wrong done by the defendant and no claim for damages. It is, at its base, simply a question of who has a better claim to the disputed property.

[41] For the all the reasons set out above, Electro-Works has the better claim to the Payment.

[42] Accordingly, this Court declares:

a. The $39,812.68 received by Fogler, Rubinoff on October 8, 2014 is impressed with a constructive trust in favour of Electro-Works; and

b. Fogler, Rubinoff is directed to pay the amount of $39,812.68 to Electro-Works within 30 days of the date of this Order;

c. Electro-Works has requested interest at the rate of 3 % per annum commencing on September 29, 2016. If the parties cannot agree on the quantum of interest or the date upon which it begins to accrue, they may make brief submissions no longer than 4 pages on this issue within 2 weeks of the date of these reasons;

d. If the parties cannot agree on the costs of this matter, they may also make brief submissions on this issue, no longer than 3 pages as follows:

i. Electro-Works within 2 weeks of the date of these reasons;

ii. Fogler, Rubinoff within 2 weeks after the receipt of Electro-Works submission on costs.

Papageorgiou J.

Released: January 26, 2021

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

Electro-Works Ltd.

Applicant

– and –

Fogler, Rubinoff LLP

Respondent

REASONS FOR JUDGMENT

Papageorgiou J.

Released: January 26, 2021