JAMES BAY RESOURCES LIMITED v. MAK MERA NIGERIA LIMITED et al, 2022 ONSC 5711

Court File and Parties

COURT FILE NO.: CV-14-00511332 MOTION HEARD: 2022-09-14

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: JAMES BAY RESOURCES LIMITED, Plaintiff/Responding Party AND: MAK MERA NIGERIA LIMITED et al, Defendants/Moving Parties

BEFORE: ASSOCIATE JUSTICE R. FRANK COUNSEL: J. Sirivar and H. Singer for the Defendants/Moving Parties H. Book and W. McLennan for the Plaintiff/Responding Party

HEARD: 14 SEPTEMBER 2022

REASONS FOR DECISION

1This is a motion by the Defendants for:

a) an Order pursuant to Rules 57.03 and 60.12 of the Rules of Civil Procedure, dismissing this action or, in the alterative striking the Statement of Claim of the Plaintiff, James Bay Resources Limited ("James Bay"), and/or staying the proceedings; or

b) in the alternative, an Order pursuant to Rule 56 of the Rules of Civil Procedure requiring the Plaintiff to post security for the costs of the Defendants in the amount of $386,408.72 forthwith.

2For the reasons set out below, the motion is dismissed.

I. BACKGROUND FACTS

3The Plaintiff commenced this action in September 2014 claiming damages for breach of contract and unjust enrichment of approximately US$500,000, as well as general, aggravated, exemplary and punitive damages. Prior to defending the action, the Defendants brought a motion to stay the action on jurisdictional grounds, which was dismissed in March 2015. The Defendants' appeal of the decision on the jurisdiction motion was dismissed in November 2015.

4The action moved through pleadings and discovery and was set down for trial. In March 2019, the trial of the action was scheduled for January 2021. In December 2019, the trial date was adjourned to September 2021 because the Defendants' counsel had a scheduling conflict.

5At the time the trial was scheduled to commence, WeirFoulds was counsel of record for the Plaintiff. On the first day of trial, Justice Pollak, the trial judge, raised a potential issue of conflict of interest because one of the Plaintiff's directors, a partner at WeirFoulds, was a potential trial witness.

6After hearing submissions on the conflict issue, Justice Pollak reserved her decision on the conflict issue. However, the Plaintiff elected to terminate its retainer with WeirFoulds and sought an adjournment of the trial. The adjournment was granted on terms agreed to by the parties with the exception of costs.

7On November 22, 2021, following written submissions from the parties with respect to the costs of the adjournment, Justice Pollak awarded the Defendants their costs thrown away in the amount of $74,163.03. The Plaintiff sought leave to appeal from Justice Pollak's costs order.

8On December 6, 2021, two weeks after Justice Pollak's decision was released, the Defendants demanded that the Plaintiff post security for costs, which the Plaintiff refused to do. The Defendants had not made any previous demand for security for costs.

9On March 18, 2022, the Divisional Court denied leave to appeal Justice Pollak's costs order, and ordered the Plaintiff to pay the Defendants costs of the motion for leave to appeal in the amount of $5,000, (collectively with Justice Pollak's costs order, the "Costs Orders").

10The Plaintiff acknowledges that it had liquid assets in the form of shares of Cerrado Gold Inc. ("Cerrado Gold") that were available to pay the Costs Orders, but chose not to sell the shares or use other means to pay the Costs Orders until August 2022, approximately five months after the decision of the Divisional Court.

II. LAW AND ANALYSIS

(a) Issue #1: Should the Plaintiff's claim be struck or dismissed for breach of prior court orders?

11The Defendants' position is that the action should be dismissed pursuant to Rules 57.03 and 60.12 of the Rules of Civil Procedure as a result of the Plaintiff's deliberate breach of the two Costs Orders.

12Rule 57.03 provides as follows:

57.03 (1) On the hearing of a contested motion, unless the court is satisfied that a different order would be more just, the court shall,

(a) fix the costs of the motion and order them to be paid within 30 days; or

(2) Where a party fails to pay the costs of a motion as required under subrule (1), the court may dismiss or stay the party's proceeding, strike out the party's defence or make such other order as is just.

13Rule 60.12 provides as follows:

60.12 Where a party fails to comply with an interlocutory order, the court may, in addition to any other sanction provided by these rules,

(a) stay the party's proceeding;

(b) dismiss the party's proceeding or strike out the party's defence; or

(c) make such other order as is just.

14Relying on Typhoon Offshore B.V. v. Jacob,¹ the Defendants submit that the Plaintiff has demonstrated a contumelious breach of court orders through the deliberate breach of the Costs Orders). The Defendants argue that despite the Plaintiff's assertion that it had the resources to satisfy the Costs Orders, the Plaintiff disregarded and deliberately breached those two orders, and that its claim should therefore be struck.

15The Plaintiff asserts that it would not be appropriate to dismiss this action simply due to the delay in paying the Costs Orders. The Plaintiff argues that such a severe remedy, which would preclude the hearing of the claims on their merits, is reserved for circumstances of prolonged, egregious and ongoing misconduct by a party.

16In Typhoon, the court struck out a statement of defence in circumstances where the defendants had failed to pay two costs awards in the amount of $480,000 plus interest and had breached multiple court orders (some of which were peremptory) over several years, including orders relating to a timetable, document production and attending at examination for discovery. Associate Justice Jolley (then titled Master Jolley), who was case managing the action, held that "Having flouted multiple peremptory court orders, including orders to which they consented, and having similarly ignored the last chance order, I find the defendants' breaches to have become 'contumelious such as to demonstrate an utter disregard by the defaulting party for the court's orders'" and that "I am satisfied that all efforts short of dismissal have been tried and have not succeeded in ensuring the defendants met their obligations to comply with orders made. The court has tried costs awards, peremptory orders, warnings and ultimately a last chance order. I am satisfied that there is no other appropriate and practical remedy short of dismissal that would ensure compliance going forward."²

17The discretion to strike a claim for non-payment of costs should be exercised sparingly. Dismissing a claim is a "severe remedy" that should not be imposed as a remedy of first resort without providing an opportunity for the defaulting party to cure the default.³ The facts of Typhoon were egregious and are distinguishable from the Plaintiff's conduct in this action. In this case, while there was delay in paying the two Costs Orders, those costs orders have now been satisfied and there is no order in respect of which the Plaintiff is currently in breach. Further, the Plaintiff did not previously breach any timetable orders, discovery orders or other orders of the court as had the defendants in Typhoon.

18In the circumstances, it would not be appropriate to strike the Plaintiff's claim or dismiss its action. This part of the Defendant's motion is dismissed.

(b) Issue #2 – Should the Plaintiff be required to post security for costs?

19Rule 56.01(1) of the Rules of Civil Procedure governs security for costs orders and provides, in part, as follows:

56.01(1) The court, on motion by the defendant or respondent in a proceeding, may make such order for security for costs as is just where it appears that,

(d) the plaintiff or applicant is a corporation or a nominal plaintiff or applicant, and there is good reason to believe that the plaintiff or applicant has insufficient assets in Ontario to pay the costs of the defendant or respondent.

20Rule 56.01(1) involves a two part inquiry. During the first stage of the inquiry, the onus is on the moving party to demonstrate a basis for invoking one of the subparagraphs of the Rule. The initial onus is on the defendant to satisfy the court that it "appears" that there is "good reason to believe" that the corporate plaintiff has insufficient assets to satisfy a costs award. It need not go so far as to actually prove that the plaintiff has insufficient assets.⁴ A defendant's onus under Rule 56.01(1)(d) has been described as a "light one".⁵

21While the initial onus is a reduced one, the moving party must provide enough information about the corporation to raise a belief of insufficiency that goes beyond mere conjecture, hunch, or speculation. There must be a reasonable belief that the plaintiff is without "real, substantial and exigible assets". Assets are sufficient so long as "their realizable net value is sufficient to meet the amount of costs to be secured".⁶

22Once the first part of the test is satisfied, the onus is on the plaintiff to establish that it has sufficient assets in the jurisdiction to satisfy the costs order, or that an order for security for costs would be unjust.⁷ The applicable test has been explained as follows:

Rule 56.01 is clearly discretionary. It provides that a judge may make an order "as is just". This discretion requires the judge to take into account a multitude of factors, including the circumstances of the plaintiff, the impecuniosity of the plaintiff, the merits of the claim, and the possible injustice of denying a plaintiff the opportunity of having his case adjudicated. See the case of Chachula v. Baillie (2004), 2004 27934 (ON SC), 69 O.R. (3d) 175 at paras. 12-14.⁸

23The Court of Appeal has recently provided guidance with respect to the issue of the justness of a security for costs order:

22 In deciding motions for security for costs, judges are obliged to first consider the specific provisions of the Rules governing those motions and then effectively to take a step back and consider the justness of the order sought in all the circumstances of the case, with the interests of justice at the forefront. […]

23 The Rules explicitly provide that an order for security for costs should only be made where the justness of the case demands it. Courts must be vigilant to ensure an order that is designed to be protective in nature is not used as a litigation tactic to prevent a case from being heard on its merits, even in circumstances where the other provisions of Rules 56 or 61 have been met.

24 Courts in Ontario have attempted to articulate the factors to be considered in determining the justness of security for costs orders. They have identified such factors as the merits of the claim, delay in bringing the motion, the impact of actionable conduct by the defendants on the available assets of the plaintiffs, access to justice concerns, and the public importance of the litigation. See: Hallum v. Canadian Memorial Chiropractic College (1989), 1989 4354 (ON SC), 70 O.R. (2d) 119 (H.C.); Morton v. Canada (Attorney General) (2005), 2005 6052 (ON SC), 75 O.R. (3d) 63 (S.C.); Cigar500.com Inc. v. Ashton Distributors Inc. (2009), 2009 46451 (ON SC), 99 O.R. (3d) 55 (S.C.); Wang v. Li, 2011 ONSC 4477 (S.C.); and Brown v. Hudson's Bay Co., 2014 ONSC 1065, 318 O.A.C. 12 (Div. Ct.).

25 While this case law is of some assistance, each case must be considered on its own facts. It is neither helpful nor just to compose a static list of factors to be used in all cases in determining the justness of a security for costs order. There is no utility in imposing rigid criteria on top of the criteria already provided for in the Rules. The correct approach is for the court to consider the justness of the order holistically, examining all the circumstances of the case and guided by the overriding interests of justice to determine whether it is just that the order be made.⁹

i. Is there good reason to believe the Plaintiff has insufficient assets?

24The Defendants submit that the evidence on this motion provides indicia of the Plaintiff's insolvency or instability that is sufficient to meet their onus of demonstrating that there is good reason to believe the Plaintiff has insufficient assets to satisfy a costs award. In this regard, they submit that the evidence shows that:

a) the Plaintiff has been unable to pay its liabilities as they become due, including liabilities relating to executive compensation and legal counsel;

b) as of June 30, 2022, the Plaintiff's liabilities listed at $1,728,290 were understated by at least $1 million and were likely in the range of $2.72 million.

c) the Plaintiff's only exigible asset is the shares it owns in Cerrado Gold which, based on Cerrado Gold's share price of $1.17 on August 23, 2022, were valued at $2.25 million. The value of Cerrado Gold's shares has since suffered a further significant decline with the shares trading at $1.05 as of September 2, 2022, which would value the shares at $2.02 million.

d) the Plaintiff has no source of revenue to satisfy its increasing liabilities or to fund operations, and it sells shares it holds in Cerrado Gold to fund its liabilities and operations such that the number and value of its holdings will continue to decrease while its liabilities increase.

e) as of June 30, 2022, the Plaintiff had an overall deficit of approximately $17.7 million.

f) for several quarters, and as of June 30, 2022, the Plaintiff has not been in compliance with the working capital requirements mandated by its regulator, the Canadian Securities Exchange ("CSE"). The CSE requires adequate working capital of $50,000 which the Plaintiff does not have.

25Relying on CTT Pharmaceutical Holdings v. Rapid Dose Therapeutics,¹⁰ the Defendants assert that security for costs are warranted because the evidence demonstrates the Plaintiff's financial instability. In my view, CTT Pharma is distinguishable because in that case: (1) there was a note in the financial statements of the plaintiff expressing substantial doubt about the plaintiff's ability to continue as a going concern; (2) the plaintiff had not paid a judgment against it in the amount of $24,908 (plus interest) for 10 years; and (3) there were multiple lawsuits pending that involved the plaintiff, including an ongoing breach of contract claim against the plaintiff seeking damages in the amount of $20 million.

26While the Defendants in this case have raised specific examples of financial challenges and deficits purportedly faced by the Plaintiff, considering the evidence of the Plaintiff's overall financial position, I find that the Defendants have not satisfied their onus of demonstrating that it appears the Plaintiff has insufficient assets to pay a potential cost award. Specifically, although the Defendants assert that the Plaintiff has been unable to pay its liabilities as they become due, the evidence from the Plaintiff is that it is capable of satisfying its liabilities, and that it has done so in the past by selling shares it owns in Cerrado Gold and by raising cash through financings. There is no evidence of any proceedings commenced against the Plaintiff for debts owing or other claims, nor of any unsatisfied demand for payment by any material (or other) creditor. The debts identified by the Defendants as concerning are accounted for in the liabilities listed in the Plaintiff's financial statements that indicate that its assets are sufficient to meet its liabilities. Further, "…the fact the plaintiff paid a significant costs award (albeit late) negates, rather than supports, the notion that the plaintiff should post security for costs.¹¹

27In terms of the Plaintiff's exigible assets, the parties each made submissions about the value of the shares the Plaintiff owns in Cerrado Gold, a publicly-traded junior mining company. For purposes of this motion, I find that, based on the evidence in the record, the Cerrado Gold shares are a liquid asset of the Plaintiff that, as at the time the Plaintiff's representative was cross‑examined and re-examined on August 23, 2022, had a market value of approximately $2.25 million. Beyond that, it is speculative to predict the future value of the Cerrado Gold shares.

28Faced with financial statements of a public company that disclose assets in excess of liabilities (even if the assets are adjusted to their value as at August 23, 2022), the Defendants assert that the Plaintiff's liabilities are understated based on a purported potential liability for costs related to an ongoing or recently concluded ICC arbitration "involving" the Plaintiff (the "ICC Arbitration"). While there is a dispute about the admissibility of certain evidence relied on by the Plaintiff with respect to the ICC Arbitration which I deal with in my reasons below, even without considering the contested evidence, I find that the cross-examination evidence of the Plaintiff's representative demonstrates that:

a) Crestar Integrated Natural Resources Limited ("CINRL"), not the Plaintiff, is the party to the ICC Arbitration;

b) the Plaintiff had previously agreed to pay certain legal costs in connection with the ICC Arbitration that it would not otherwise have been legally obligated to make; and

c) the Plaintiff's agreement to pay legal fees does not require the Plaintiff to pay any cost awards that may be made against CINRL in the ICC Arbitration.

29This is consistent with the Plaintiff's audited financial statements and its interim financial statements for the period ending June 30, 2022, neither of which disclose any potential liability for costs of the ICC Arbitration. In the result, I find that the purported liability of the Plaintiff for the ICC Arbitration costs is contradicted by the evidence, and I do not accept the Defendants' assertion that the Plaintiff's accrued liabilities are "likely understated by at least $1 million".

30The Defendants also submit that the Plaintiff has no source of revenue to satisfy its liabilities or to fund operations, and that it had an overall deficit of approximately $17.7 million as of June 30, 2022. However, while there is no certainty the Plaintiff will be successful in doing so on a going‑forward basis, the Plaintiff has a track record of funding its activities through capital raises and loans. As such, I find that, although relevant, the Plaintiff's lack of operational revenue and accumulated deficit are not sufficient factors, alone or in combination with the other evidence on this motion, for the Defendants to meet their onus of demonstrating that there is good reason to believe the Plaintiff has insufficient assets to satisfy a costs award. I also note that the Plaintiff's lack of operational revenue and accumulated deficit are not recent developments, a point that I return to below in my analysis of the question as to whether making an order for security for costs would be just.

31Finally, the Defendants argue that for several quarters, and as of June 30, 2022, the Plaintiff has not been in compliance with the working capital requirements mandated by its regulator, the Canadian Securities Exchange ("CSE"). However, there is no evidence of any steps taken by the CSE, as regulator, with respect to the Plaintiff's compliance/non-compliance with the CSE's working capital requirements. In any event, I find that this is another factor that, although relevant, is not a sufficient factor, alone or in combination with the other evidence on this motion, for the Defendants to meet their onus. Further, as with the issues of operational revenue and accumulated deficit, compliance the CSE working capital requirement is not a recent development, and I return to this point in the discussion below about whether making an order for security for costs would be just.¹²

32In summary, I find that the Defendants' have not satisfied their onus of demonstrating that there is good reason to believe that the Plaintiff has insufficient assets in Ontario to pay the Defendants' costs.

33I pause here to note that the Defendants objected to certain evidence relied on by the Plaintiff in connection with the assessment of the sufficiency of the Plaintiff's assets. Specifically, the objection relates to a letter dated September 2, 2022 from the Plaintiff's counsel to the Defendants' counsel following the cross-examination and re-examination of the Plaintiff's representative, Mr. Stephen Shefsky, on August 23, 2022. Mr. Shefsky was examined with respect to his affidavit sworn July 28, 2022. The September 2, 2022 letter contains: (1) answers to certain questions taken under advisement at Mr. Shefsky's cross-examination (the "Contested Post‑examination Answers"); and (2) purported corrections to some of the answers given by Mr. Shefsky during his cross-examination (the "Contested Post-examination Corrections").

34Dealing first with the Contested Post-examination Corrections, I do not accept them as proper evidence on this motion and, in any event, would give them no weight. The Contested Post‑examination Corrections were provided by way of letter from the Plaintiff's counsel after the completion of the cross-examination and re-examination of Mr. Shefsky. The "corrections" are not in the form of sworn evidence, and the Defendants had no opportunity to reply to the purported corrected evidence or test it by way of cross-examination. Counsel for the Plaintiff did not offer to put the Contested Post-examination Corrections into a sworn affidavit from Mr. Shefsky in respect of which he could be cross-examined (even assuming the late delivery of such sworn evidence would not be otherwise precluded). In the circumstances of this motion, I find that the Contested Post-examination Corrections are not proper evidence before the court.

35The Contested Post-examination Answers require a more nuanced approach. Those answers relate to a series of questions which the Plaintiff took under advisement during Mr. Shefsky's cross‑examination. The Contested Post-examination Answers provide answers, in whole or in part, to some of the questions, including a request for production of an agreement. Unlike the Contested Post-examination Corrections, the Contested Post-examination Answers relate to unanswered questions specifically asked by the Defendants during cross-examination, including a request for production of a document. In the context of this motion, I find that the answers are admissible, subject to an assessment of the weight to be given to the evidence. I recognize that the Defendants had no opportunity to test the Contested Post-examination Answers by way of cross-examination. Ordinarily, I would take this into consideration in assessing the weight to be given the evidence, which would depend on factors such as the source and nature of the evidence, and whether the receiving party was in a position, practically speaking, to seek an adjournment of the motion to cross-examine on it. However, in the circumstances of this motion, I need not assess the weight to be given to the Contested Post-examination Answers because, even without relying on those answers, I have concluded that the Defendants have not met their onus.

ii. Would an order for security for costs be unjust?

36The Defendants submit that they did not delay in bringing this motion which they argue results from recent and significant changes to the Plaintiff's financial situation. They submit that a court can make a security for costs order, on a new or delayed motion, when a party's financial circumstances have changed.¹³ They also submit that even if there has been delay, delay without evidence of prejudice to the Plaintiff is insufficient to defeat the motion.¹⁴ They assert that the Plaintiff must show actual irreparable prejudice arising from the delay.¹⁵

37The Defendants argue that the evidence on this motion shows: (1) the Plaintiff's evolving and continually deteriorating financial situation; (2) that the Plaintiff has not shown any actual prejudice that would result from the Defendants' delay in bringing this motion; and (3) that an order for security for costs would not be unjust.

38The Plaintiff submits that if the Court finds that it does not have sufficient assets to pay a costs order, the Court must then "step back and consider the justness of the order sought in all of the circumstances of the case".¹⁶ The Plaintiff submits that one of the circumstances the court considers is whether a moving party has delayed bringing its motion for security for costs. In terms of delay, the Plaintiff argues that:

a) when a defendant believes it is entitled to an order for security for costs, it should move at the "earliest possible moment so that the plaintiff may know whether it will be required to pay security";¹⁷

b) unexplained delay by the moving party can be fatal to the motion, whether or not the responding party establishes prejudice arising from the delay;¹⁸ and

c) security for costs is not to be used as a litigation tactic to prevent a case from being heard on its merits.¹⁹

39In this case, I find that much of the evidence relied on by the Defendants relates to financial circumstances of the Plaintiff that have been known for a significant period of time, including at the time the trial was set to commence in September 2021 (and was subsequently adjourned by Pollak J.). Throughout the litigation, many of the financial issues now raised by the Defendants have been disclosed in the Plaintiff's financial statements, which are publicly available on SEDAR. In this regard, I note that between the time this litigation started in 2014 and its most recent annual financial statements for 2021, the Plaintiff has shown an accumulated deficit on its balance sheet ranging from a high of $23 million in 2015 to a low of $10 million in 2018. The Plaintiff's listed assets and liabilities have also fluctuated in that period. Further, the Plaintiff's audited financial statements for many years have included:

a) a note under its statement on the nature of operations and going concern that the Plaintiff has funded its deficit primarily through debt or equity; and

b) a note that the Plaintiff's ability to continue as a going concern was dependent on its ability to raise sufficient funds to meet its obligations as they become due, which the Plaintiff could not assure it would be able to do in the future.

40With respect to the Defendants' submission with respect to the Plaintiff's non‑compliance with the CSE working capital requirements, that situation is not a new one. The issue was disclosed not only in the Plaintiff's June 30, 2022 financial statement, but also in the Plaintiff's audited financial statement for 2019/2018, 2020/2019 and 2021/2020.

41Taking a step back and consider the justness of the order sought, I find that this is a situation in which, by reason of the Defendants' delay in bringing this motion for security for costs, the Plaintiff has gone to the expense of bringing the action to trial and is only now faced with this motion for security for costs. Unlike the situation in CTT Pharma in which the defendant brought a motion for security for costs within a year of the commencement of the action, this action has been ongoing for eight years. The commencement of the trial was initially delayed as a result of the unavailability of counsel for the Defendants. In addition, I note the unusual circumstance that the trial was set to commence in September 2021 but was then adjourned. While the Plaintiff bears responsibility for that most recent delay in the trial of the action, the Plaintiff has paid a significant costs order (albeit belatedly) to compensate the Defendants for that adjournment.

42In summary on the issue of delay, I find that many of the concerns asserted now by the Defendants about the Plaintiff's financial wherewithal are not "new" or "evolving" factors that demonstrate a significant change in the Plaintiff's financial circumstances. As a result, I do not accept that there has been a material change in circumstances justifying the Defendants' delay in bringing this motion. As noted in the caselaw, "One of the reasons for the rule against delay is that the plaintiff should not be placed in the position of having to post security for costs after having incurred considerable expense in advancing the lawsuit....".²⁰ Even if the evidence were sufficient to warrant an order for security, the Plaintiff should not be prevented at this late date from going to trial,²¹ and it would not be just in the circumstances to make an order for security for costs.

iii. Quantum of security

43As I have concluded that there should be no order for security for costs, I need not consider the issue of the appropriate quantum or terms for payment of security for costs.

III. DISPOSITION

44For the reasons set out above, the Defendants' motion is dismissed.

45With respect to costs, the parties agreed that the successful party should be awarded costs in the amount of $25,000, inclusive of taxes and disbursements. As the Plaintiff was successful in opposing the motion, I order that the Defendants shall pay the Plaintiff costs in the amount of $25,000 inclusive of disbursements and taxes within 30 days.

R. Frank Associate J.

Footnotes

1. 1Typhoon Offshore B.V. v. Jacob, 2021 ONSC 4555 ("Typhoon"), aff'd 2022 ONSC 1663
2. 2Typhoon at paras. 76 and 81 [citations omitted]
3. 3Koohestani v. Mahmood, 2015 ONCA 56 at para. 54
4. 4Precision Tree at para. 36
5. 5Canadian Metal Buildings Inc. v. 1467344 Ontario Limited, 2019 ONSC 566 at para. 14
6. 6City Commercial Realty (Canada) Ltd. v. Bakich, [2005] O.J. No. 6443 (Ont. C.A.) at paras. 8-9
7. 72311888 Ontario Inc v Ross, 2017 ONSC 1295 at para. 17; Precision Tree Care Ltd. v. Peel Condominium Corporation et al, 2018 ONSC 5755 ("Precision Tree") at paras. 36-37
8. 82311888 Ontario Inc. v. Ross, 2017 ONSC 1295 at para. 15
9. 9Yaiguaje v. Chevron Corp., 2017 ONCA 827 at paras. 22-25
10. 10CTT Pharmaceutical Holdings v. Rapid Dose Therapeutics, 2019 ONSC 731 ("CTT Pharma")
11. 11Density Group Limited v. H K Hotels LLC, 2015 ONSC 7717 at para. 52
12. 12The Plaintiff relies on certain "corrected" evidence with respect to the issue of its compliance with the CSE capital requirements. For the reasons outlined below, I do not accept the unsworn "corrected" evidence (which is contained in the Contested Post-examination Corrections, as defined below), and I have not considered the "corrected" evidence in assessing the issue of the Plaintiff's compliance/non-compliance with the CSE's working capital requirements. If I had accepted the "corrected" answer as evidence, I would have attributed no weight to it.
13. 13Tri-Lag Corp v York Region District School Board, 2016 ONSC 176 at para. 40
14. 14Deans Standard v. Westmont et al, 2018 ONSC 1019 at para. 30
15. 15Tabrizi v. Kaushal et. al., 2017 ONSC 7660 at para. 26
16. 16Yaiguaje v Chevron Corp., 2017 ONCA 827 at para. 22
17. 17Charron v. MacDonald, 15 1938 352 (ONSC), as cited in Wilson Young & Associates Inc. v. Carleton University et al, 2020 ONSC 4542 at para. 61
18. 18Apex Sound & Light Corporation v. 1878170 Ontario Ltd. ("Apex"), 2021 ONSC 3615 at para. 16
19. 19Yaiguaje v Chevron Corp., 2017 ONCA 827, at para. 23
20. 20Deans Standard v. Westmont et al, 2018 ONSC 1019 at para. 61, citing Pelz v. Anderson, 2006 39571 (ON SC), [2006] O.J. No. 4726, 2006 CarswellOnt 7482 ("Pelz") at para. 23. See also Tabrizi v. Kaushal et. al., 2017 ONSC 7660 at footnote 2 to para. 26, citing Pelz at para. 23
21. 21See Charron v. MacDonald, 15 1938 352 (ONSC) as cited in Apex at para. 17, and Wilson Young & Associates Inc. v. Carleton University et al, 2020 ONSC 4542, at para. 61