COURT FILE NO.: CV-20-0182

DATE: 2021/11/16

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

Ayesof Professional Inc. o/a St. Mary’s IDA Pharmacy Plaintiff

– and –

Revera Inc. Defendant

Mr. D. Touesnard, for the Plaintiff

Mr. C. Casher, for the Defendant

HEARD: at Brantford, Ontario, on October 19, 20 and 21, 2021

THE HONOURABLE JUSTICE J. R. HENDERSON

REASONS FOR JUDGMENT

INTRODUCTION

[1] This is my decision on the liability issue in this bifurcated trial. The essential question in this part of the trial is as follow:

Did Sarah Poirier (“Poirier”) hand deliver a Notice of Non-Renewal (“the Notice”) to Faisal Firoz (“Firoz”) on June 16, 2020, thereby notifying the plaintiff that the defendant would be terminating the Provider Pharmacy Services Agreement (“the Services Agreement”) as of August 21, 2020?

[2] Poirier, a representative of the defendant corporation, testified that she hand delivered the Notice directly to Firoz, the president of the plaintiff corporation, but Firoz testified that Poirier did not enter the plaintiff’s pharmacy that day and did not hand deliver the Notice to him.

[3] The plaintiff alleges that the defendant has breached the Services Agreement by terminating the agreement without properly delivering a notice of non-renewal. If the Notice was delivered as described by Poirier, then the plaintiff’s action must be dismissed. If the Notice was not delivered, then the plaintiff’s action for damages will continue.

THE BACKGROUND FACTS

[4] The defendant (“Revera”) owns and operates a chain of retirement facilities, including The Williamsburg Retirement Residence (“The Williamsburg”) in Burlington, Ontario. The Williamsburg contains a retirement residence and an attached set of commercial retail units that are accessible to the residents and to the public.

[5] The plaintiff is a professional corporation that operates a pharmacy known as St. Mary’s IDA Pharmacy (“the pharmacy”). At all material times the plaintiff leased one of the retail units at The Williamsburg for the operation of the pharmacy. Firoz is a pharmacist who is the president of the plaintiff corporation.

[6] The plaintiff entered into the Services Agreement with Revera’s predecessor, Williamsburg Seniors Holdings Inc., on August 21, 2015. It is acknowledged that Williamsburg Seniors Holdings Inc., with the consent of the plaintiff, assigned the Services Agreement to Revera in May 2017.

[7] The Services Agreement gives the plaintiff the exclusive right to provide pharmacy services to the residents of The Williamsburg. Section 1 of the Services Agreement states that the agreement will remain in effect for an initial period of five years, and that “The agreement shall be automatically renewed on the same terms and conditions, for successive five (5) year terms unless the Pharmacy or the Facility gives notice to the other of non-renewal at least sixty (60) days prior to the expiry of the then-current term of this Agreement”.

[8] Section 13 of the Services Agreement provides that all notices “shall be in writing and delivered personally, by certified or registered mail, return receipt requested, or by overnight courier”.

[9] The parties acknowledge that the initial five-year term of the Services Agreement was scheduled to expire on August 21, 2020. The parties agree that if either party wished to terminate the agreement on the scheduled expiry date, that party would be required to deliver a notice of non-renewal in the manner set out in section 13 on or before June 22, 2020.

[10] It is not disputed that the vast majority of the pharmacy’s business came from its association with The Williamsburg. Therefore, I accept Firoz’s testimony that the plaintiff could not afford to operate the pharmacy in the absence of the Services Agreement.

[11] I find that in June 2019, Poirier and Ron Brett, vice president of Revera, met with Firoz and informed him that Revera would be terminating the Services Agreement on the scheduled expiry day because Revera had entered into a national services agreement with Medisystem. Pursuant to its national services agreement, Revera had agreed to transition from all of its existing pharmacy service agreements in order to give Medisystem the exclusive right to provide pharmacy services for all of Revera’s retirement homes across Canada. Revera’s decision to terminate was confirmed by a subsequent email exchange with Firoz in July 2019.

[12] Firoz testified that in the summer of 2019 he believed that Revera had not made a final decision to terminate the Services Agreement. However, I find that by the end of July 2019 Firoz was aware that Revera intended to exercise its right to terminate on the scheduled expiry date, August 21, 2020. Because the Services Agreement was essential to the plaintiff’s business, I find that Firoz was very concerned and anxious about the impending termination of the agreement.

[13] On December 16, 2019, I find that Wendy Muller (“Muller”), the national director of health and wellness for Revera, met with Firoz and his wife, Sadaf Faisal (“Sadaf”), and again informed them that Revera would be terminating the Services Agreement as of August 21, 2020, because of Revera’s plan to transition to Medisystem. At that meeting Firoz and Sadaf expressed their concerns about Revera’s decision and told Muller that it would significantly impact the plaintiff’s business. I find that Muller listened to their concerns and repeated that Revera had made its decision to transition to Medisystem.

[14] Then, by email dated December 30, 2019, Firoz and Sadaf informed Muller that they were “very worried and highly anxious as there is some uncertainty pertaining to the continuation of the (Services Agreement) beyond August 2020.” They set out a number of reasons as to why they would like Revera to renew the Services Agreement. Firoz and Sadaf ended this email by asking Muller to “give us the good news that there will not be any changes and the contract will continue beyond August 2020”.

[15] Muller replied to Firoz and Sadaf by email dated January 13, 2020. She wrote “At this time we will not be continuing our contract with you providing medications to the residents on the medication administration program at The Williamsburg. We will be working on transitioning them to our National vendor at the end of your current contract as was discussed with you”.

[16] Thereafter, there were no further discussions between the plaintiff and Revera about the termination or renewal of the Services Agreement until the events of June 16, 2020.

THE EVENTS OF JUNE 16, 2020

[17] At this trial there was evidence of two distinct and opposing versions of the events that occurred on June 16, 2020.

[18] Poirier is the executive director of The Williamsburg, and she has an office on the first floor of The Williamsburg. Poirier testified, and I accept, that Revera’s corporate counsel sent the Notice to her by email on June 4, 2020, along with instructions to deliver the Notice to Firoz.

[19] The Notice, dated June 4, 2020, is addressed to the pharmacy to the attention of Firoz, and it states on its face that it will be delivered by courier and by email. The Notice reads, in part, “In accordance with Section 1 of the Agreement, we hereby notify you that we will not renew the Agreement after the expiration of the initial term on August 21, 2020”.

[20] Subsequent to Poirier receiving the Notice, there was an exchange of correspondence between corporate counsel and Poirier in which Poirier asked if, instead of using a courier, she could walk over to the pharmacy and hand deliver the Notice. Corporate counsel confirmed that Poirier could hand deliver the Notice to Firoz and send a copy to Firoz by email. She was also instructed to ask Firoz to sign and return the second page of the Notice, and to confirm receipt of the email.

[21] Poirier testified that just before 12:00 p.m. on June 16, 2020, she left her office at The Williamsburg, exited through the side door, walked around the building, and entered the pharmacy through the pharmacy’s public door.

[22] She saw Firoz at the pharmacy counter, and she told him that she needed to speak with him. She suggested that they speak in his office, so they both went into Firoz’s office which was behind the counter.

[23] Poirier said that she reminded Firoz that Revera had decided not to renew the Services Agreement, and she explained that she was there to personally deliver the Notice to him.

[24] Poirier testified that she handed the Notice to Firoz, and he appeared to read it. She asked Firoz to sign the Notice on the second page to confirm receipt. She testified that Firoz said nothing to her and did not sign the Notice, but he kept his copy of the Notice. Poirier told him that she would be sending him a copy by email. Then, Poirier left the pharmacy. She did not see anyone else in the pharmacy. The entire interaction at the pharmacy took between one and four minutes.

[25] Poirier testified that she immediately walked back to her office at The Williamsburg. She re-entered The Williamsburg through the front door as she did not have the fob that she would have needed to re-enter through the side door.

[26] Poirier testified that when she returned to her office, she sent an email to Firoz. It is acknowledged that Poirier sent an email to Firoz on June 16, 2020, at 12:04 p.m. The email reads, “As discussed please find attached the notice of non-renewal I hand delivered to you today. If you could please confirm receipt of this email and also sign page 2 of the document and email it back to me to confirm receipt it would be much appreciated”.

[27] On the basis of Poirier’s evidence, Revera’s counsel submits that Revera has properly delivered a notice of non-renewal and that the Services Agreement was terminated as of August 21, 2020.

[28] However, Firoz disputes Poirier’s version of events. Firoz testified that he was working at the pharmacy all day on June 16, 2020, along with one of his employees, Kelsey Hickey (“Hickey”). Firoz testified that Poirier did not enter the pharmacy on June 16, 2020, that he did not meet with Poirier that day, and that he did not receive the Notice that day.

[29] Firoz testified that Poirier’s email of June 16th was addressed to st.maryida@gmail.com (“the st.mary email address”) and he acknowledged that this was one of the pharmacy’s email addresses. However, he testified that he did not regularly monitor the email received at the st.mary email address as he used a different email address (“the ayesof email address”) for his business and corporate matters.

[30] Firoz testified that he checked the st.mary email address on June 30, 2020, at which time he saw Poirier’s June 16th email for the first time. He testified that he was shocked when he read the email. He said that he did not know what Poirier was talking about as she had never hand delivered a notice of non-renewal to him.

[31] Based on Firoz’s evidence, counsel for the plaintiff submits that Revera has not properly delivered a notice of non-renewal, and therefore the Services Agreement has automatically renewed for five years.

ANALYSIS

[32] The plaintiff’s theory is that Poirier made a mistake. Plaintiff’s counsel submits that either Poirier forgot to hand deliver the Notice, or she chose not to do so. Therefore, plaintiff’s counsel submits that Poirier fabricated a version of events about hand delivering the Notice in order to cover up her mistake. He submits that Poirier’s June 16th email is part of that fabrication.

[33] The defendant’s theory is that Poirier delivered the Notice, on instructions from corporate counsel, in the manner described by Poirier in her testimony. Revera’s counsel submits that Firoz has been lying about not receiving the Notice because the termination of the Services Agreement would cause the plaintiff’s business to suffer.

[34] The competing theories submitted by the parties cannot both be correct. Therefore, I must carefully analyse the credibility of Firoz and Poirier by considering any internal inconsistencies in their testimony, any external inconsistencies between their testimony and other reliable evidence, any independent supporting or corroborating evidence, and the plausibility of their testimony.

[35] I accept the statement made in Faryna v. Chorny, 1951 252 (BC CA), [1951] B.C.J. No. 152, [1952] 2 D.L.R. 354 (BCCA) at para. 11 as follows, “In short, the real test of the truth of the story of a witness in such a case must be its harmony with the preponderance of the probabilities which a practical and informed person would readily recognize as reasonable in that place and in those conditions.”

[36] I start my analysis of the credibility of these two witnesses with the evidence of the alleged corroborating witnesses. To be clear, there was no witness who could specifically corroborate either version of events, but both sides called witnesses who testified regarding the surrounding circumstances.

[37] Sadaf and Imran Ali (“Ali”), Firoz’s wife and brother-in-law respectively, testified for the plaintiff. Sadaf was present on June 30, 2020, when Firoz read the June 16th email from Poirier. She testified that Firoz seemed shocked by the email, and he said that he did not know what they were talking about.

[38] Ali testified that Firoz had been worried about the possible termination of the Services Agreement, but that on June 28, 2020, Firoz told him that the time had passed, and that Revera had not terminated the agreement. Firoz seemed relieved and more relaxed that day.

[39] In my view, the evidence of both Sadaf and Ali is clearly hearsay evidence. They both testified as to what Firoz said or what emotions he expressed. They do not have any firsthand knowledge of the events. There are many actions in which courts have identified the dangers associated with accepting this type of hearsay evidence. In particular, in this case it is impossible for this court to determine if Firoz was being honest with the witnesses, or if they accurately recalled what Firoz said or expressed, or if they correctly interpreted what Firoz said or expressed.

[40] Similarly, counsel for Revera called one of Poirier’s co-workers, Christine McMahon (“McMahon”), who testified that she spoke with Poirier on June 16th. McMahon testified that Poirier told her in the afternoon of June 16th that she had hand delivered the Notice to Firoz earlier that day. Again, McMahon’s evidence is hearsay evidence, and it suffers from the same frailties as the testimony of Sadaf and Ali.

[41] Accordingly, in the circumstances of this case, I find that I cannot rely on the testimony of Sadaf, Ali, or McMahon, to corroborate the testimony of Firoz or Poirier about the events of June 16th, or as evidence of Firoz’s statements or his state of mind on June 28th or 30th.

[42] I next turn to the several factors raised by plaintiff’s counsel that he submits support Firoz’s version of events and/or discredit Poirier’s version of events.

[43] First, plaintiff’s counsel submits that Poirier was a very busy person during this period of time. She was the executive director of The Williamsburg, and she was also assisting at another senior’s residence owned by Revera. At the same time, she was attempting to cope with a multitude of problems that were associated with the Covid-19 pandemic.

[44] Plaintiff’s counsel submits that the delivery of the Notice to Firoz was yet another duty that had been downloaded onto Poirier during a busy time. He submits that Poirier was preoccupied by her other tasks, and simply forgot to deliver the Notice. Poirier’s forgetfulness is evidenced, counsel submits, by her failure to sign the logbook at the front desk, as required by protocol, when she entered and re-entered The Williamsburg that day.

[45] Poirier, when cross-examined, readily acknowledged that she was very busy during the Covid-19 pandemic. Moreover, she acknowledged that she failed to sign the logbook as required, and that this was something that she had forgotten on other occasions. In my view, she was open and frank about being very busy and occasionally forgetting to sign the logbook.

[46] Further, I accept Poirier’s testimony that she had received the Notice from corporate counsel on June 4th, along with instructions to arrange for a courier to deliver it. There is clear evidence that she then engaged in an exchange with corporate counsel in which Poirier asked if she could hand deliver it since her office was only a few minutes away from the pharmacy, and that corporate counsel agreed.

[47] Therefore, I find that as of June 16th Poirier knew that it was her job to hand deliver the Notice to Firoz, knew that it was important to do so, and knew that it had to be hand delivered by June 22nd. Although she was very busy, I find that this was not a duty that she would likely forget about for any extended period of time.

[48] On this same issue, plaintiff’s counsel suggests, in the alternative, that Poirier was so busy that she intentionally chose to send the Notice only by email instead of hand delivering it. Considering that Poirier specifically asked corporate counsel for permission to hand deliver the Notice, I find that Poirier did not have any intention of avoiding hand delivery or of substituting an email for hand delivery. This was not a duty that she purposely decided to circumvent.

[49] Second, plaintiff’s counsel relies on the evidence of Hickey, who was a university student at the time. In the summer of 2020, when she was not attending school, Hickey worked approximately two shifts per week at the pharmacy as a pharmacy technician.

[50] The pharmacy records disclose that Hickey was working at the pharmacy on June 16th. The only people working that day were Hickey and Firoz. Hickey testified that she never left the pharmacy during her work shifts. She further testified that if someone entered the pharmacy, she would see them as the pharmacy is a small operation. She said that she would recognize Poirier, and she testified that Poirier did not enter the pharmacy on June 16th. If Hickey is accurate and is believed, then Poirier did not enter the pharmacy on June 16th and did not hand deliver the Notice that day.

[51] Revera’s counsel cross-examined Hickey about her evidence and obtained some modest concessions. Hickey agreed that it was possible that she may have briefly been in the washroom or out of sight of the public door of the pharmacy during her shift on June 16th. If so, she acknowledged that she would not have seen anyone who entered the pharmacy during that short period of time. She added that even if she did not see a person enter the pharmacy, if she was anywhere in the pharmacy, she would have heard a person enter the business. This last piece of evidence is not helpful as Hickey did not say that she would recognize Poirier by sound.

[52] Further, Hickey disclosed that she was never asked about what she recalled about the events of June 16th until some point in October 2020. Hickey also acknowledged that June 16th was a day that was not out of the ordinary. Therefore, I find that Hickey did not recall the events of June 16th in particular, but rather she testified about her shifts of the summer of 2020 in a general way.

[53] I accept that Hickey could not recall Poirier entering the pharmacy and meeting with Firoz on any of her shifts during the summer of 2020, but one must wonder whether Hickey has forgotten about what appeared to be a brief inconsequential meeting, given that four months passed before she was asked about it.

[54] I felt that Hickey was an honest witness and her testimony certainly causes me to question Poirier’s testimony. However, I find that it is possible that Hickey would not have always been in a position to observe Poirier enter the pharmacy; that there were short periods of time when Hickey would not have seen a person enter the pharmacy. Given that the encounter between Firoz and Poirier was only a few minutes in duration, I accept that it is possible that Poirier could have entered the pharmacy, delivered the Notice, and left the pharmacy without being detected by Hickey. I also accept that it is possible that Hickey has forgotten about observing a brief meeting between Firoz and Poirier.

[55] The third factor raised by plaintiff’s counsel is Hickey’s testimony that Firoz never left the pharmacy counter unattended. This evidence is in fact corroborated by Sadaf. Hickey said that if Firoz needed to step into his office, away from the counter, Firoz would ask Hickey to cover the pharmacy counter for him. Hickey testified that on June 16th Firoz did not ask her to cover the pharmacy counter so he could meet with Poirier in his office.

[56] However, I note that Firoz’s office is only a few steps from the pharmacy counter. If Poirier arrived and requested to talk with Firoz, Firoz may have assumed that he would only be with Poirier for a very short time, and therefore chose to briefly step away from the counter. In the alternative, again it is possible that Hickey might have simply forgotten about one instance in the summer of 2020 in which Firoz asked her to briefly cover the counter. Again, this evidence makes me question Poirier’s testimony, but it is not conclusive.

[57] The fourth factor raised by plaintiff’s counsel is that there was a very narrow time window, based on Poirier’s evidence, that would have been available for Poirier to deliver the Notice. Poirier’s email account was examined in detail. Poirier sent an unrelated email from her computer at 11:51 a.m. and she testified that she was in her office at The Williamsburg at the time. We also know that Poirier sent an email to Firoz from her office computer at 12:04 p.m. Poirier confirmed that she walked to the pharmacy and delivered the Notice at some point between the times of these two emails.

[58] The evidence is that the walk from The Williamsburg to the pharmacy, round-trip, is between three and five minutes. Poirier testified that the meeting with Firoz was between one and four minutes in total. Further complicating the matter, the telephone records from the pharmacy indicate that someone at the pharmacy made or received telephone calls at 11:56 a.m., 12:00 p.m., and 12:01 p.m., all of which were very short in duration.

[59] Based on this evidence, I accept that Poirier only had a very narrow window in which to walk to the pharmacy, meet Firoz, return to her office, and send the 12:04 p.m. email. Again, this causes me to question her testimony, but I again accept that it is possible that Poirier’s actions, as she described, could fit within this narrow window.

[60] Fifth, the plaintiff submits that Poirier fabricated the precise route that she took from The Williamsburg to the pharmacy and back because that route is not traceable by way of an electronic record. That is, if Poirier took the route that she described, she would not have needed to use her fob to open any of the doors, and there would be no electronic record of her movements. If she had taken a different route and, for example, returned through the retail hallway or through the side door, she would have needed to use her fob, and there would be an electronic record of her route.

[61] This argument does not raise a significant question in my mind about Poirier’s evidence. Poirier testified that she had temporarily lost her keys with her fob that day. She cannot say when she lost or found the fob, but she knows that she did not have it when she walked to The Williamsburg. She therefore chose to take a route that did not require the fob. I do not draw any conclusions from the route that Poirier described.

[62] Sixth, plaintiff’s counsel asked that I draw an adverse inference because Revera did not call the receptionist from the front desk at The Williamsburg to testify at trial. The plaintiff submits that the receptionist would have seen Poirier return from the pharmacy and would be able to provide evidence in this respect.

[63] I do not draw the adverse inference as requested by the plaintiff. Poirier acknowledged that she did not sign the logbook either on her entry or re-entry that day. I expect that the receptionist could only rely, at this point, on whatever entries might be in the logbook. Therefore, I doubt that the receptionist would have any relevant evidence to give regarding Poirier’s return to The Williamsburg.

[64] Finally, plaintiff’s counsel raises a concern because the Notice itself provided for delivery by courier, but Poirier testified that she delivered it by hand. In my view, nothing turns on this issue. Clearly, corporate counsel initially instructed Poirier to deliver the Notice by courier, and then Poirier asked if she could deliver by hand. Neither Poirier nor corporate counsel chose to change the indication on the Notice that it was being delivered by courier and by email. In my view, this is an irrelevant factor.

[65] Revera’s counsel also raised several factors that he submits support Poirier’s version of events and/or discredit Firoz’s version of events.

[66] First, Revera’s counsel submits that Firoz had a motive to lie because the plaintiff heavily relied upon the Services Agreement, and a termination of the agreement would cause a significant loss of income for the plaintiff.

[67] On the witness stand, Firoz candidly acknowledged that the plaintiff would suffer financially if the Services Agreement was terminated. He confirmed that he was highly anxious and concerned about the potential termination of the Services Agreement. I felt that he was open and frank about his concern. Therefore, I accept the submission that Firoz had a reason to want to avoid the termination of the Services Agreement; however, I will not assume that Firoz chose to lie about a series of events based solely on the fact that he had a motive to do so. This is just one factor that I will consider.

[68] Second, Revera’s counsel submits that Revera had entered into a national services agreement with Medisystem, and therefore it is clear that Revera had made a decision in 2019 to terminate the Services Agreement with the plaintiff.

[69] I have no doubt that Revera intended to terminate the Services Agreement by delivering the Notice prior to June 22, 2020. I find that Revera made the decision to terminate, and initially informed Firoz of that decision, in June and July of 2019. Further, I find that at no time after July 2019 did Revera attempt to negotiate a renewal of the agreement with the plaintiff.

[70] This raises an issue about Firoz’s credibility, as Firoz did not acknowledge on the witness stand that he knew that Revera would be terminating the Services Agreement. Firoz testified that he believed that the statements made by Revera in the summer of 2019, and at the meeting with Muller in December 2019, were all negotiation tactics; that they were negotiating a renewal of the agreement. He testified that even after he received Muller’s email in January 2020, he believed that Revera was still negotiating with him.

[71] In my view, Firoz’s testimony that he believed that these statements were negotiation tactics defies belief. I do not accept that Firoz could possibly have believed that there were ongoing renewal negotiations; Firoz knew that Revera intended to terminate the Services Agreement. This denial of an obvious fact causes me to question Firoz’s credibility.

[72] Third, Revera’s counsel questions Firoz’s evidence that he did not regularly monitor the st.mary email address. I accept that the plaintiff had two email addresses, the st.mary email address and the ayesof email address. However, Firoz used both of these email addresses to communicate with Revera in the year prior to June 2020. In particular, Firoz used the st.mary email address to contact Poirier in March 2020 about a lost key.

[73] Further, the evidence is that the st.mary email address was the email address that was published on the pharmacy’s public website. Members of the public who wished to contact the pharmacy by email were invited to use the st.mary email address. It is illogical to think that the plaintiff publicized the st.mary email address for use by the public, but that the plaintiff did not regularly monitor it.

[74] Therefore, I do not accept Firoz’s evidence that he did not regularly monitor the st.mary email address. Similarly, I also do not accept Sadaf’s evidence about the lack of regular monitoring as I find that Sadaf was not aware of how often Firoz was monitoring the st.mary email address. This evidence causes me to question Firoz’s testimony about not seeing the June 16th email until June 30th.

[75] Fourth, Firoz testified that after he saw the June 16th email on June 30th, he wrote a letter to Poirier which he sent to her by email on July 10, 2020. In his letter Firoz raised his concerns about Poirier’s June 16th email. Firoz wrote, in part, “you were required to provide written notice to us prior to June 21…”, “The email you sent this notice to…is mostly used to send out invoices…and is not checked regularly…”, “...we only now become aware of this letter…”, and “your letter suggests that it was sent to us by courier as well, however we have not received this by courier”.

[76] Nowhere in this letter does Firoz say that he did not receive a hand delivered notice from Poirier. In cross-examination, Firoz said that he thought that in his July 10th letter to Poirier he had implied that he had not received a hand delivered notice. However, in my view, the implication suggested by Firoz is not obvious. One wonders why, if Firoz read the June 16th email on June 30th, he did not bluntly state in his letter that he had not received such a hand delivered notice.

[77] Fifth, Revera’s counsel points out that the pharmacy is equipped with security cameras. Firoz acknowledged that the security cameras would have captured the image of any person who entered the pharmacy. The security cameras retain their images for approximately three weeks, and thereafter the images are overwritten.

[78] Firoz testified that when he read the June 16th email on June 30th, he did not check the security cameras. The images on the security cameras for June 16th would have been available until approximately July 7th. Because Firoz did not check the security cameras prior to July 7th, any confirming or refuting evidence from the security cameras has been lost. Again, this evidence causes me to question Firoz’s credibility.

[79] In summary, both the plaintiff and the defendant have raised a significant number of factors that cause me to question the credibility of both Poirier and Firoz. I have concerns about the testimony of both of these witnesses.

[80] In my view, the most significant factor in assessing credibility is the fact that Poirier wrote the June 16th email to Firoz. That email is a written confirmation that Poirier hand delivered the Notice to Firoz on June 16th. The only logical purpose of this email is to confirm delivery of the Notice after it had been hand delivered.

[81] Plaintiff’s counsel offered two possible alternate explanations for the June 16th email. First, plaintiff’s counsel suggested that Poirier was unhappy about being given the additional responsibility of hand delivering the Notice when she was very busy. She therefore chose to send this email, with a copy of the Notice attached, instead of hand delivering the Notice.

[82] I find that this explanation suggested by counsel is not plausible. As discussed earlier, Poirier had specifically asked corporate counsel for permission to hand deliver the Notice, and therefore I find that she intended to do so. If she had wanted to avoid hand delivery, she could have sent the Notice by courier as originally instructed. Further, it makes no sense for Poirier to send a false email containing a lie about hand delivery in order to avoid walking approximately two or three minutes to the other side of the building to hand deliver the Notice.

[83] Plaintiff’s counsel suggested, in the alternative, that Poirier intended to hand deliver the Notice and that she sent the June 16th email before she had done so, in anticipation of hand delivering the Notice. Then, plaintiff’s counsel submits that Poirier forgot to deliver the Notice. That is, the email was sent, but she forgot to follow up by delivering the Notice.

[84] I accept that it is possible that Poirier may have sent the email in advance, intending to hand deliver the Notice later. However, if Poirier had forgotten to deliver the Notice on June 16th, she still had six more days to do so. There was no urgency to deliver on June 16th.

[85] Therefore, I find that if Poirier forgot to deliver the Notice on June 16th, it is very unlikely that she would have forgotten to deliver the Notice for six more days thereafter. Poirier knew the importance of hand delivering the Notice. In my view, if she had temporarily forgotten to deliver the Notice, she would have remembered her task within those six days and then she would have simply delivered the Notice prior to June 22nd.

[86] Accordingly, I do not accept plaintiff’s counsel’s submission that Poirier sent the June 16th email in order to cover up a mistake. In fact, as of June 16th, there was no mistake to cover up. She still had until June 22nd to deliver the Notice.

[87] Therefore, on a balance of probabilities, I accept that Poirier’s June 16th email is an accurate confirmation of her actions. I find that the June 16th email confirms that Poirier had hand delivered the Notice to Firoz at some point on June 16th prior to 12:04 p.m.

CONCLUSION

[88] For the reasons set out herein, I find that, on a balance of probabilities, Poirier hand delivered the Notice to Firoz on June 16, 2020, and that Revera has therefore properly terminated the Services Agreement as of August 21, 2020. The plaintiff’s action is hereby dismissed.

[89] If there are any issues arising out of this decision, including costs, I direct that the party seeking relief shall deliver written submissions, no longer than five pages, to the trial coordinator at Brantford within 20 days of the release of this decision with responding submissions to be delivered within 10 days thereafter. If no submissions are received within this timeframe, the parties will be deemed to have settled all of the remaining issues as between themselves.

J. R. Henderson J.

RELEASED: November 16, 2021

COURT FILE NO.: CV-20-0182 DATE: 2021/11/16

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

Ayesof Professional Inc. o/a St. Mary’s IDA Pharmacy Plaintiff

– and –

Revera Inc. Defendant

REASONS FOR JUDGMENT

J. R. Henderson J.

Released: November 16, 2021