Court File and Parties

COURT FILE NO.: CV-21-00659006-0000 DATE: 20220422 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: LIDA NEZHAT-MAHAL AND: COSMETICA LABORATORIES INC.

BEFORE: VERMETTE J.

COUNSEL: Oren Barbalat and John-Edward C. Hyde, for the Plaintiff Howard A. Levitt, for the Defendant

HEARD: April 11, 2022

Endorsement

[1] The Defendant moves to strike the Plaintiff’s Notice of Examination to Linda Kuga, President of the Defendant, and substitute Alessandro Mendes, Vice-President of Research and Innovation of the Defendant, as the Defendant’s corporate representative to be examined for discovery by the Plaintiff.

[2] As set out below, I find that the Defendant has not discharged its onus to show that Ms. Kuga is not an appropriate corporate representative for the Defendant’s examination for discovery. As a result, the Defendant’s motion is dismissed.

1. Factual Background

[3] The Plaintiff is a former employee of the Defendant. Her employment was terminated for cause on January 13, 2021. At the time, she was Vice-President of Research and Innovation. She had been employed by the Defendant for 25 years. At all material times, the Plaintiff reported directly to the President, Ms. Kuga, and Mr. Mendes was her subordinate.

[4] The Plaintiff’s employment was terminated after: (a) a “foundation leakage” issue was raised with respect to a product manufactured by the Defendant (“Product Issue”), and (b) an investigation was conducted in relation to the Product Issue by a law firm retained by the Defendant.

[5] The reasons for the termination are outlined in a letter dated January 13, 2021 that Ms. Kuga gave to the Plaintiff when her employment was terminated (“Termination Letter”). The Termination Letter reads as follows:

This is to advise that, after receipt and review of the Investigator’s Report and considering the matters which lead to it, your employment is terminated effective immediately for cause.

We have concluded, without any doubt, that your negligence and incompetence lead to a process failure resulting in 1.7 million units of the Rare Beauty Weightless Touch Liquid Foundation being produced and shipped, when they never should have been because of the severe oil leakage issue ascertained on an early basis by your department. You were personally aware of the issue on a very early basis, borne out by the tests performed on the production samples in the second week of production, yet did nothing whatsoever about it despite the obvious consequences to Cosmetica. Alessandro Mendes specifically advised you of the problem in December, 2019. As result [sic] of the failure to share stability and compatibility reports, for which you were also responsible, neither the client nor the relevant members of our Company were made aware of this serious problem at a time when production could still have been halted and damages, both financial and reputational, avoided. Although you were solely responsible for this process failure, as you admitted on at least one occasion and we and the Investigator have now concluded, you have failed to accept either responsibility or accountability. Instead, you attempted both to unwarrantedly blame others and to pressure at least one other employee to change her version of events in order to protect you and your position here. Such conduct is antithetical to your executive role with Cosmetica.

Quite apart from the significant liability to Rare Beauty and Sephora resulting from your negligence, although that number may yet change, [sic] is presently estimated to amount to $980,000, the additional consequences from your misconduct and negligence has [sic] already been the cancellation of two Rare Beauty projects and the prospective loss of additional business in the millions of dollars.

At least as serious, and cause in and of itself, was your attempt to mislead both your employer and the Investigator contrary to your fiduciary duties as a Cosmetica executive. With respect to misleading your employer, the Investigator’s findings included:

“Ms. Mahal intentionally misled her employer in the period of time leading up to my investigation. I believe she did so for the same reasons she misled me; namely, to avoid any liability. I believe she was aware that she was responsible for the Rare Beauty issue and specifically, the lack of oversight relating to the relevant Standard Operating Procedure. However, she misled her employer into thinking her department, Research & Innovation (“R & I”), was not responsible for the events leading up to the complaint from Rare Beauty.

Ms. Mahal specifically downplayed the severity of the issue to her employer, and refused to take accountability without being prompted by others. Further, in an effort to limit R & I’s responsibility, I believe Ms. Mahal attempted to manipulate the Project Manager at the time, Ms. Da Silva, to report to the Company’s “higher-ups” in a way that would clear herself and the R & I department from any responsibility ...... I believe Ms. Mahal attempted to manipulate Ms. Da Silva in particular, as she held significant information relating to the production and testing results of the Rare Beauty foundation, as well as the testing processes of R & I. In my view, it is likely that Ms. Mahal wanted to prevent Ms. Da Silva from making the aforementioned statements to other Executives at the Company or the President, Ms. Kuga.

Based on my interview with her, I believe Ms. Mahal is well aware that she is responsible, either in whole or in part, evidenced by the fact that she admitted to Ms. Nardi on different occasions that she was the one responsible. However, she appears to be having difficulty coming to terms with her involvement (or lack thereof) and is worried about losing her long-standing position at Cosmetica[.]”

With respect to misleading the Investigator, the Investigator concluded:

“Based on the totality of evidence gathered as part of my mandate along with my assessment of each witness’ credibility, it is my conclusion that Ms. Mahal intentionally misled me during the investigation. I believe she misled me in an attempt to avoid any liability for the oil leakage issue. It was clear to me from the outset of my interview with Ms. Mahal that she was worried about being found liable, either in whole or in part, as a result of my investigation. Consequently, I believe she only provided me with evidence that she believed would absolve herself from any liability. ..... Ms. Mahal was attempting to give me the perfect answer, rather than the honest answer.

In seeking to provide me with perfect answers, I find there was a deliberate attempt on Ms. Mahal’s part to mislead me into believing she was not responsible .... Overall, I believe Ms. Mahal misstated facts to me to make them more favourable to her; she wanted to ensure she did not come across as liable for the Rare Beauty issue.”

In light of these facts and findings, which deal with fundamental integrity issues and are therefore fundamental to your role here, we cannot continue you in your employment and must end that employment for cause.

Your Record of Employment will follow shortly.

I would ask that you return all property of Cosmetica in your possession or control and retain no copies. Any outstanding wages, including vacation pay, will be paid out during the next pay period.

Linda Kuga President Cosmetica Laboratories Inc.

[6] The Plaintiff commenced this action on March 18, 2021. She claims over $540,000 in damages for wrongful dismissal and $300,000 for bad faith conduct leading up to and in the manner of her termination.

[7] The Defendant has known that it was the Plaintiff’s intention to examine Ms. Kuga for discovery on behalf of the Defendant since the end of May 2021. However, the Defendant has refused to produce Ms. Kuga and has taken the position that Mr. Mendes should be the Defendant’s corporate representative for the Defendant’s examination for discovery.

[8] The evidence before me includes two affidavits of Mr. Mendes and one affidavit of a law clerk to counsel for the Plaintiff. Neither Ms. Kuga nor the Plaintiff provided affidavit evidence on this motion.

2. The Positions of the Parties

a. The Defendant’s position

[9] The Defendant’s position is that:

a. Ms. Kuga is not sufficiently knowledgeable in relation to the matters in issue;

b. it would be oppressive to require Ms. Kuga to be examined because it would give rise to an excessive number of undertakings and unnecessarily take Ms. Kuga away of onerous management responsibilities; and

c. there would be no prejudice to the Plaintiff to be required to examine Mr. Mendes instead of Ms. Kuga.

[10] The Defendant submits that Ms. Kuga is not the appropriate corporate representative to be examined as she had no direct involvement in the events leading to the Plaintiff’s termination, more specifically the Product Issue and its surrounding investigation, and she does not possess the background or experience to understand the technical aspects of the research and innovation testing and laboratory results.

[11] The Defendant states that Ms. Kuga’s involvement was limited to the following points, none of which, it says, are significant issues for the examination for discovery:

a. facilitating the relationship between the Plaintiff and Mr. Mendes;

b. learning from the Plaintiff and the Chief Operating Officer (“COO”) that there was an issue relating to the particular client;

c. learning that no department of the Defendant was taking responsibility for the Product Issue;

d. after speaking with her superior, the Chief Executive Officer (“CEO”), asking for an investigator to be appointed to look into the matter; and

e. after reviewing the investigation report, making the determination, together with the CEO and the Chief People Officer of the Defendant’s parent company, to terminate the Plaintiff’s employment.

[12] The Defendant argues that, in contrast, Mr. Mendes has personal direct knowledge of the matters in issue in the litigation, more specifically the Product Issue and the subsequent investigation which led to the Plaintiff’s termination. The Defendant points out that Mr. Mendes was the employee who flagged for the Plaintiff that the design of the component in issue would cause leakage, and the Plaintiff is alleged to have lied about this advice in the course of the investigation.

[13] The Defendant states that Ms. Kuga does not have the time to review and attempt to understand over 3,000 pages of primarily technical documentation in order to be prepared for an examination for discovery. The Defendant points out that it and its subsidiaries have 658 employees in North America, and that Ms. Kuga’s responsibilities expanded in 2022 as a result of the departure of the Defendant’s COO in January 2022. According to the Defendant, Ms. Kuga’s reports and responsibilities have increased upwards of 60% due to, among other things, new oversight and direct responsibility of the COO role. Ms. Kuga is also responsible for the onboarding of new Vice-Presidents, preparation for and mandatory attendance at meetings of the board of directors, spearheading the Defendant’s strategic plan, intensive monthly reporting, and management of production and customer fulfillment amidst significant global supply chain issues.

[14] The Defendant submits that this case is not a “landmark case”, and it would be oppressive to expect the President of the Defendant to appear as the corporate representative in a case such as this one.

[15] Finally, the Defendant argues that the Plaintiff’s choice of witness was made for ulterior purposes, i.e. that it was a tactic to leverage settlement.

b. The Plaintiff’s position

[16] The Plaintiff’s position is that the case does not turn on technical issues or on the assessment of formulas or cosmetic products, and that Ms. Kuga has sufficient personal knowledge about the primary issue in dispute: the alleged cause for termination. The Plaintiff states that Ms. Kuga had direct involvement with the Plaintiff and the transactions respecting the termination for cause. The Plaintiff points out, among other things, that Ms. Kuga: (a) was the Plaintiff’s direct superior at all material times; (b) made the decision to terminate the Plaintiff for cause; (c) signed and delivered the termination letter which summarizes the Defendant’s position in this case; (d) hired the workplace investigator and relied upon the investigator’s report in making the decision to terminate the Plaintiff for cause; (e) prepared board meeting materials and attended board meetings that dealt with the Plaintiff’s employment and the Product Issue; and (f) had communications and discussions with the Plaintiff regarding the Product Issue and the Plaintiff’s employment.

[17] The Plaintiff argues that Mr. Mendes has no personal knowledge of the central issue, i.e. the Plaintiff’s termination for cause, as he had no involvement in the decision to terminate the Plaintiff and in the termination itself. The Plaintiff argues that Mr. Mendes’ knowledge is limited to technical aspects of the Defendant’s operations and cosmetic formulas, and that he is nowhere near sufficiently knowledgeable to interfere with the Plaintiff’s prima facie right to examine Ms. Kuga.

[18] The Plaintiff submits that it would not be oppressive to produce Ms. Kuga given Ms. Kuga’s significant involvement in and knowledge of the issues, and the Plaintiff’s position of significant authority and direct reporting relationship to Ms. Kuga. The Plaintiff states that it is not expected that Ms. Kuga will analyze the technical details of laboratory studies or formulations in preparation for discovery. The Plaintiff argues that to the extent that it is inconvenient for Ms. Kuga to be examined, inconvenience is not sufficient to displace the Plaintiff’s selection in this case. Further, she points out that no evidence has been adduced pertaining to Ms. Kuga’s schedule until the deadline for the completion of examinations for discovery on June 30, 2022.

[19] According to the Plaintiff, the selection of Ms. Kuga is rational, consistent with the purpose of discovery and was made bona fide. Ms. Kuga was selected because the Plaintiff regards Ms. Kuga’s evidence as being critical to the most significant issues in the litigation, including the alleged cause for termination, the Defendant’s decision to terminate the Plaintiff for cause, the integrity of the investigation upon which the Plaintiff’s termination was allegedly based, and direct discussions between Ms. Kuga and the Plaintiff regarding the Product Issue and the Plaintiff’s employment. The Plaintiff states that the Defendant’s references to ulterior motives are ill-founded and unsupported.

[20] The Plaintiff submits that if Mr. Mendes were produced as the Defendant’s corporate representative, she would be significantly prejudiced because she would not have the direct evidence of the decision-maker in the area of primary dispute. Further, information with respect to substantial issues in which Mr. Mendes had no involvement would have to be received by way of undertakings.

3. Discussion

a. Applicable principles

[21] Rules 31.03(1) and (2) of the Rules of Civil Procedure state as follows:

Who may Examine and be Examined

Generally

31.03 (1) A party to an action may examine for discovery any other party adverse in interest, once, and may examine that party more than once only with leave of the court, but a party may examine more than one person as permitted by subrules (2) to (8).

On Behalf of Corporation

(2) Where a corporation may be examined for discovery,

(a) the examining party may examine any officer, director or employee on behalf of the corporation, but the court on motion of the corporation before the examination may order the examining party to examine another officer, director or employee; and

(b) the examining party may examine more than one officer, director or employee only with the consent of the parties or the leave of the court.

[22] Under Rule 31.03(2), the examining party has a prima facie right to select the corporate officer, director, or employee to be examined. The prima facie right of the examining party to select the corporate representative to be examined reflects, in part, the right of the examining party to explore the pleaded issues most important to its case. The court will not lightly interfere with the examining party’s selection. The onus is on the corporation to show that the person selected is inappropriate. See Farris v. Staubach, 2004 ONSC 31800 at para. 2 (Ont. S.C.J.) (“Farris”) and Ciardullo v. Premetalco Inc., 2009 ONSC 45445 at para. 20 (Ont. S.C.J.) (“Ciardullo”).

[23] In determining whether to substitute another corporate representative for the person selected, the court should consider the following factors:

a. whether the person selected is sufficiently knowledgeable in relation to the matters in issue;

b. whether it would be oppressive to require the person selected to be examined, for example because it would give rise to an excessive number of undertakings or unnecessarily take the person away from onerous management responsibilities; and

c. whether there would be prejudice to the examining party to be required to examine someone other than the person whom they selected.

See Ciardullo at paras. 9 and 21 and Farris at paras. 4, 10 and 12.

[24] Under the first factor, the issue is not which individual is more knowledgeable or which would make a better witness objectively. The witness ultimately selected must have sufficient knowledge to be an effective witness, but they do not have to be the most knowledgeable witness. Whether the relative degrees of knowledge of two potential witnesses will persuade the court to choose one instead of the other will depend on whether one is so much more knowledgeable than the other that their selection will clearly make the examination more effective. See Creative Kitchen Gallery Inc. v. YRCC No. 715, 2020 ONSC 1260 at paras. 28-30.

[25] When considering the second factor, it must be remembered that inconvenience is not sufficient to displace the examining party’s selection: see Nemni v. BCE Inc., 2011 ONSC 6196 (“Nemni”). Top officers and presidents of corporations are not immune from being produced on examinations for discovery. However, they should only be required to attend such examinations where they have sufficient knowledge of the matters in dispute, which means at least some direct involvement with the parties and the transactions out of which the claims arise. See Nemni and Canadian Imperial Bank of Commerce v. Cigam Entertainment Inc. at para. 23 (S.C.J.).

[26] With respect to the third factor, the question of whether there would be prejudice to the examining party to be required to examine someone other than the person whom they selected is largely a matter of the judgment of counsel for the examining party who is responsible for the development and presentation of that party’s case. The court should consider whether the examining party’s concerns about prejudice are misplaced or groundless. See Farris at para. 12.

b. Application to this case

[27] While both parties made arguments with respect to deficiencies in the other side’s evidence and requested that adverse inferences be drawn and/or portions of the affidavit evidence be struck, I find it unnecessary to deal with these issues separately given my analysis and conclusions below on the substantive issue raised on this motion. When considering the evidence and/or lack thereof, I have taken into account that it is the Defendant who has the onus to show that the person selected is inappropriate.

[28] I now turn to the three factors that the court should consider in determining whether to substitute another corporate representative for the person selected by the examining party.

i. Whether Ms. Kuga is sufficiently knowledgeable in relation to the matters in issue

[29] In my view, Ms. Kuga is sufficiently knowledgeable in relation to the matters in issue to be an effective witness in the context of an examination for discovery. Among other things, she was the Plaintiff’s direct superior, she made the decision to terminate the Plaintiff’s employment for cause, she hired the investigator, and she relied upon the investigator’s report in making the decision to terminate the Plaintiff for cause.

[30] On this motion, the Defendant has sought to both: (a) amplify the role of technical issues in this case, and (b) minimize Ms. Kuga’s knowledge and ability to understand the issues in this case. I reject both attempts of the Defendant.

[31] I agree with the Plaintiff that this case does not turn on technical issues or on the assessment of formulas. A review of the Termination Letter and the pleadings show that this case is not about the correct interpretation of laboratory studies. Rather, it is about the sharing of laboratory results and who knew what and when. It is not necessary to have a Bachelor of Chemical Engineering to understand this type of factual issues.

[32] As for Ms. Kuga’s knowledge and ability to understand the issues in this case, there is no direct evidence on these points as Ms. Kuga did not provide affidavit evidence. Mr. Mendes’ evidence on this issue is based on a general discussion that he had with Ms. Kuga (for instance, they did not discuss specific e-mails that Ms. Kuga received) and on his own inferences. On this motion, Ms. Kuga was depicted as someone who would sign the Termination Letter and deliver a “termination script” without understanding what she was signing or saying. She was also depicted as someone who was simply incapable of understanding e-mails that she received from her direct reports because she did not have the required knowledge and/or education.

[33] The Defendant’s position regarding Ms. Kuga’s knowledge or lack thereof is not credible. Ms. Kuga was appointed as President of the Defendant in July 2019. The Defendant is in the business of cosmetic manufacturing, has locations in both Canada and the United States of America, and has more than 650 employees. The very limited level of understanding, knowledge and ability that Ms. Kuga has been suggested to have on this motion is inconsistent with both the role that she has been holding for more than two years and at least some of the documents that she received, sent or signed. I am not prepared to accept the Defendant’s submissions regarding Ms. Kuga’s lack of knowledge and abilities based on the general, indirect and generally unsatisfactory evidence that is before me on this issue. In my view, it is very doubtful that Ms. Kuga would describe her knowledge, skills level and capacity to understand the Defendant’s business and operations in the same manner as they were described to this Court if she was asked to provide a description of these attributes to the Defendant’s customers and/or board of directors.

[34] As stated above, the issue on a motion under Rule 31.03(2)(a) is not which individual is more knowledgeable. I have already concluded that Ms. Kuga has sufficient knowledge to be an effective witness. Further, and in any event, the relative degrees of knowledge of Ms. Kuga and Mr. Mendes do not persuade me that Mr. Mendes should be selected as the appropriate corporate representative. During his cross-examination, Mr. Mendes admitted the following, among other things:

a. He was not involved in the decision to terminate the Plaintiff.

b. He is not the most knowledgeable person with respect to the Plaintiff’s termination or the decision to terminate her.

c. While he knew in January 2021 that the Plaintiff had left the employment of the Defendant, he did not know that the Plaintiff had been terminated until after the action was commenced.

d. He had no role in hiring the investigator, he did not speak with the investigator before she conducted her investigation, and he is not aware of what was discussed between Ms. Kuga and the investigator.

e. He did not review the investigator’s report until approximately two weeks before swearing an affidavit in support of this motion, which was more than a year after the Plaintiff’s termination.

f. While he repeatedly took the position that someone needs a scientific background to understand the issues that led to the Plaintiff’s termination, he thinks that the investigator properly understood the issues in this case, even though he does not know and there is no evidence that she has any scientific background.

[35] Thus, the first factor in the analysis favours the Plaintiff’s selection.

ii. Whether it would be oppressive for Ms. Kuga to be examined

[36] In my view, it would not be oppressive to require Ms. Kuga to be examined.

[37] Given my finding that this case does not turn on technical issues and that Ms. Kuga was directly involved in the main matters in issue in this case, examining Ms. Kuga should not give rise to an excessive number of undertakings.

[38] While the examination of Ms. Kuga will undoubtedly give rise to undertakings on issues with respect to which she has no knowledge, “this is a fact of life in corporate discovery”: see Ciardullo at para. 23. I am not satisfied that an examination of Mr. Mendes would give rise to less undertakings than an examination of Ms. Kuga. In my view, an examination of Mr. Mendes would likely give rise to more undertakings in light of his lack of involvement in a number of core issues, and these undertakings would likely be on issues that the Plaintiff considers to be among the most important to her case.

[39] Further, the Statement of Defence states that: (a) the problem in this case was that the compatibility testing performed on the product in issue was not shared with the appropriate persons, and (b) Mr. Mendes had no role whatsoever at any time respecting compatibility testing. Thus, Mr. Mendes’ statements about the extent of his first-hand knowledge are not entirely consistent with the Defendant’s pleading, nor are they with the numerous e-mails attached to his affidavit on which he is very often not a recipient. This suggests that Mr. Mendes, too, would have to give undertakings with respect to the events preceding the termination of the Plaintiff’s employment.

[40] In addition, I am not satisfied that examining Ms. Kuga would unnecessarily take her away from onerous management responsibilities. The evidence given by Mr. Mendes regarding Ms. Kuga’s calendar and responsibilities was very general. Mr. Mendes does not share a calendar with Ms. Kuga and he was not able to quantify the number of additional hours that Ms. Kuga allegedly has to work as a result of certain tasks of which she became responsible in January 2022. He “just know[s] that it is a lot of hours.”

[41] I also note that while Mr. Mendes stated in his affidavit that Ms. Kuga’s attendance at a particular industry trade show was mandatory, he admitted during his cross-examination that Ms. Kuga actually chose not to attend that trade show in order to attend a board meeting instead. Thus, it appears that the evidence on this motion regarding Ms. Kuga’s availability and responsibilities may have been exaggerated.

[42] The evidence discloses that Ms. Kuga is busy and has the typical responsibilities of a top officer in a corporation. While there was a transition period and new responsibilities in January 2022, we are now at the end of April 2022 and the deadline for the completion of the examinations for discovery is the end of June 2022. There is no specific evidence about Ms. Kuga’s availability in May and June 2022.

[43] As stated above, presidents of corporations and, more generally, busy people are not immune from being produced on examinations for discovery. In this case, given Ms. Kuga’s sufficient knowledge of the matters in dispute and her direct involvement in the termination of the Plaintiff, it is not oppressive to require her to attend an examination for discovery.

[44] The situation in the case at bar is similar to the situation in Nemni, where the plaintiff was seeking to examine the President of BCE Inc. for discovery as the corporate representative of the defendant. Master Sproat (as she then was) acknowledged that the President no doubt had many duties and obligations, but she noted that this was not a situation where the plaintiff’s choice was unreasonable. The plaintiff had held positions of very significant authority with the defendant, at the level of senior vice-president, and was reporting to the President. Master Sproat found that examining the President would not be unduly oppressive in light of his involvement in the matter, and that inconvenience was not sufficient to displace the plaintiff’s selection. She stated that the case before her was not a “garden variety” wrongful dismissal case given, among other things, that the plaintiff held a very high position and the President’s extensive and primary involvement in the plaintiff’s hiring, promotion and termination. The same reasoning applies to this case mutatis mutandis.

[45] I also find that there is no evidence of ulterior motives on the part of the Plaintiff. In my view, the correspondence between counsel that was referred to by the Defendant does not disclose any ulterior motive.

[46] In light of the foregoing, the second factor also favours the Plaintiff’s selection.

iii. Whether there would be prejudice to the Plaintiff to be required to examine someone other than Ms. Kuga

[47] The issue of prejudice to the Plaintiff is one factor to consider. However, prejudice does not necessarily have to be established for the examining party to successfully resist a motion under Rule 31.03(2)(a). As stated in the case law, the examining party has the prima facie right to select the corporate representative to be examined, and the court will not lightly interfere with the examining party’s selection.

[48] Given my conclusions on the other two factors, this third factor does not play a significant role in the analysis. However, I find that the concerns raised by the Plaintiff about having to examine Mr. Mendes and not having the direct evidence of the decision-maker in the area of primary dispute are not misplaced nor groundless.

[49] I also note that it would be an unusual situation in a wrongful dismissal case for a plaintiff to examine a subordinate as the corporation’s representative on discovery: see Ciardullo at para. 18. While there may be valid reasons to do so in certain circumstances, especially if this is the selection of the plaintiff, there are no special circumstances in this case that would justify disregarding the logical choice of the Plaintiff – i.e. her superior and the person who made the decision to terminate her employment – and requiring her to examine a subordinate. I find that the Plaintiff’s selection of Ms. Kuga is rational, consistent with the purpose of discovery and was made bona fide.

4. Conclusion

[50] Accordingly, the Defendant’s motion is dismissed.

[51] If costs cannot be agreed upon, the Plaintiff shall deliver submissions of not more than three pages (double-spaced), excluding the costs outline, within 14 days of the date of this endorsement. The Defendant shall deliver its submissions (with the same page limit) within 14 days of its receipt of the Plaintiff’s submissions. The submissions should also be uploaded onto CaseLines.

Vermette J. Date: April 22, 2022