Court File and Parties

COURT FILE NO.: CV-21-655902 DATE: 20220112 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Waterdown Garden Supplies Ltd. AND: Steven Sardinha aka Steven Silva, aka Steven Silva Sardinha, The Estate of Maria De Fatima Sardinha, Angie Sardinha-Farias, Sardinha Holdings Inc., Forever Topsoil and Seeding Inc., Michael Freeborn aka Mike Freeborn

BEFORE: W.D. Black J.

COUNSEL: Daniel Ciarabellini, for the Plaintiff Samuel Nash, for the Defendant Angie Sardinha-Farias and the Estate of Maria De Fatima Sardinha

HEARD: January 10, 2022

Endorsement

[1] This is further to my endorsements in this matter on October 15, 2021 and November 24, 2021. There was some confusion and disagreement between the parties concerning the details and effect of my endorsements and as to the proper content of the Orders to reflect those endorsements. This case conference was convened to settle the Orders.

[2] Specifically, there was a disagreement about whether or not the Estate of Maria De Fatima Sardinha (the “Estate”), should be liable for costs of the motion resulting in my October 15, 2021 endorsement.

[3] Counsel for the Estate pointed to correspondence confirming that throughout the proceedings culminating in the hearing of that motion, the Estate had specifically advised counsel for the plaintiff that the Estate was not opposing the motion or the relief sought.

[4] In light of that correspondence, I went back to check the record that was before me on that motion. I could find no confirmation in that record of the Estate’s non-opposition to the motion; as such I had considered the position of the Estate to be equivalent to other defendants including Steven Sardinha and the corporate entities controlled by him. That is, I proceeded on the basis that like those defendants, the Estate had simply taken no position on the motion, effectively requiring that the motion proceed in its entirety.

[5] Having now been satisfied, before finalizing the Orders, that, contrary to that understanding, the Estate actively and repeatedly advised that it was not opposing the relief sought, I agree that no costs should be payable by the Estate on the motion. While I appreciate that the power to amend even discretionary conclusions like this one should be used sparingly, in this case, having now had the fact of the Estate’s stated non-opposition to the motion brought to my attention, in my view it would not be fair to require the Estate to pay costs. This conclusion holds true with respect to the preliminary proceedings before Justice Myers as well; there is no finding in His Honour’s endorsements to suggest that the Estate was active in the events giving rise to the need for injunctive relief.

[6] Plaintiff’s counsel, in taking issue with that finding, submitted that in fact “all of the assets” are “stashed” in the Estate and that he is concerned that the plaintiff will be unable to collect costs from other defendants.

[7] In response to that submission, I note two points. First, there was no evidence before me as to where assets of the defendants reside and there is no basis for me to determine that all or the majority of assets are in the Estate. Second, even if that is the case, based on my decision, the injunction remains in place against all defendants including the Estate, such that any assets held in the Estate will continue to be held there and can presumably be accessed by the plaintiff when and if the plaintiff is successful in its action.

[8] I also clarified in my discussion with counsel, that the intent of my endorsements is that the injunction should remain in effect until the disposition of the trial in this matter or further order of this court and that the costs order, subject to the exception described above vis-à-vis the Estate, and also excepting the defendant Michael Freeborn, who had not yet been served and took no part in the motion before me, is to be joint and several. The qualifications on the joint and several aspect of the order are that Ms. Sardinha-Farias is liable for a maximum of $40,000 in costs and of course the plaintiff is not entitled to collect more than the total costs award of $100,000.

[9] I understand that with these clarifications, counsel can now agree on the appropriate forms of orders to reflect my endorsements.

[10] Finally, while I believe this matter should now be finalized, I remind counsel that it is inappropriate to communicate with the court without having the consent of the opposing party to do so. I expect to receive no further communications in this matter, but if either counsel feels further need to contact the court, they should do so only with the concurrence of all parties.

W.D Black J. Date: January 12, 2022