COURT FILE NO.: CV-16-1766-00 DATE: 2023 03 14

ONTARIO SUPERIOR COURT OF JUSTICE

B E T W E E N:

LUCIA DERENZIS Plaintiff

Ashu Ismail, for the plaintiff

- and -

CORY SCOBURGH, and LATOYA McLEAN Defendants

Emma Gardiner and Lonny Rosen, for the non-party The Gore Mutual Insurance Company

HEARD: In Brampton January 4, 2023, by Zoom

REASONS FOR DECISION

Emery J.

[1] Motions for the production of documents from non-parties are heard routinely in Ontario each week. Those motions are a regular feature of the civil litigation process. Orders made for a non-party to produce documents are generally granted when unopposed once the presiding judge or associate judge is satisfied that the motion has been served on the adverse party and the non-party, and the test under Rule 30.10 has been met.

[2] Once an Order is made, it is binding on the parties and the non-party according to its terms.

[3] Lucia Derenzis was involved in a motor vehicle accident on November 24, 2015. She commenced this action to claim damages against the defendants for causing that accident. The Gore Mutual Insurance Company (“Gore Mutual”) insured Ms. Derenzis under a motor vehicle insurance policy on the date of the accident, and she has claimed accident benefits from Gore Mutual under that policy.

[4] On June 3, 2019, the defendants served Gore Mutual with their motion under Rule 30.10 as a non-party to produce its accident benefit file and related documents (together, the “AB file”) regarding its insured. The notice of motion showed that the motion was returnable on June 14, 2019.

[5] On June 11, 2019, the defendants served Gore Mutual with a Motion Confirmation Notice that the motion was proceeding on June 14, 2019.

[6] The defendants’ motion was heard on June 14, 2019. The plaintiff, having been served, consented to the motion. Gore Mutual did not serve any responding materials and did not appear at the motion.

[7] The Order requested in the notice of motion was granted by Justice Doi that day (the “Doi Order”). The Doi Order requires Gore Mutual to produce all text management notes, correspondence including internal reports, all surveillance reports, billing and instructions to private investigation companies, all financial transactions relating to the plaintiff’s claim, all OCF forms she has submitted, and all sorts of instructions given and provided by Gore Mutual. Paragraph 1 of the Doi Order also contained the following clause:

h. Any redactions that occur on a basis of privilege will be clearly marked as such with sufficient specificity so that such claims can be challenged.

[8] Gore Mutual now brings this motion under Rule 37.14(1) to vary the Doi Order. Gore Mutual bases its motion on evidence contained in the two affidavits of Ken Jones, a senior adjuster at Gore Mutual, that Gore failed to attend the motion through accident or mistake. The other reason for bringing the motion under the rule, being insufficient notice, is not advanced as a ground.

[9] Mr. Jones was cross-examined on July 27, 2021. Therefore, the evidence in his affidavits and the answers given on his cross-examination was the extent of the evidentiary record given by Gore Mutual on this motion.

[10] The plaintiff Lucia Derenzis opposes the motion as she seeks as much disclosure for Gore Mutual as possible for reasons that will become apparent. In response to the motion, her counsel has filed the affidavit of Eric Winkworth, a lawyer with the Campisi LLP firm who represents her. Mr. Winkworth’s affidavit sets out the history of the action and the plaintiff’s position on the motion.

[11] The defendants neither filed material nor appeared on the motion, and took no position.

The evidence of Ken Jones

[12] Ken Jones swore his first affidavit dated December 12, 2019. In paragraph 2 of his affidavit, he introduces himself as an insurance adjuster at Gore Mutual. He describes how that the plaintiff applied to Gore Mutual for various accident benefits after she was involved in the accident. In paragraph 3, Mr. Jones describes how he has had carriage of the plaintiff’s claim for accident benefits since May 16, 2018.

The Doi Order

[13] Mr. Jones acknowledges that Gore Mutual was served with the defendants’ motion. Although he was the adjuster assigned to the plaintiff’s AB file, he did not become aware of the motion until after it had been heard. He states that he was not aware of the Doi Order until Peter Murray sent him an email on August 19, 2019 to follow up for compliance. Mr. Murray is a lawyer with Campisi LLP, the law firm representing the plaintiff.

[14] Upon receiving the email from Mr. Murray, Gore Mutual conducted an internal investigation to determine how it had missed the intake of the motion, and at the same time sought legal advice. Mr. Jones explains that he learned from reaching out to counsel for this matter that “all” legal counsel were away on summers vacations at the time, and he therefore awaited their return.

[15] On August 26, 2019, Gore Mutual received correspondence, this time from counsel for the defendants, to follow up on the Doi Order.

[16] Mr. Jones has reviewed the file and concedes that he received a Motion Confirmation Form for the motion on June 11, 2019, by fax. However, he states that because it related to the tort file involving Ms. Derenzis, he did not consider it relevant to her AB file and did not take action. He states that he was aware that the tort action was not being handled by Gore Mutual.

[17] During his file review, Mr. Jones states that he also saw that he had received a letter from counsel for the defendants enclosing the Doi Order. He had asked his assistant to prepare a copy of the AB file for review on June 21, 2019. However, he does not recall receiving a response from that assistant, and it appears he did not follow up himself.

[18] By September, Gore Mutual had retained separate counsel, Rosen Sunshine LLP (“RS LLP”), to represent it with respect to the Doi Order. On September 4, 2019, RS LLP wrote to counsel for the defendants to advise they had been retained and required time to familiarize themselves with the file. On September 9, 2019, RS LLP wrote to counsel for the defendants and requested proof that the motion record had been served on Gore Mutual and to request copies of the motion materials. Each of these requests was satisfied remarkably quickly.

[19] Gore Mutual ultimately confirmed that it had been served in the manner described in the affidavit of service provided. Mr. Jones sets out the circumstances in paragraph 15 of his affidavit that led to the failure of Gore Mutual to attend on the motion after it had been properly served. Those circumstances include, in brief:

a. Gore Mutual has a general practice with respect to accepting service of court documents. Service of court documents is generally channelled through supervisors of various departments to ensure a document is directed to the appropriate person;

b. In this case, the supervisor for the Property Damage department accepted service. Instead of providing the motion materials to the accident benefits department, he put them on Mr. Jones’ desk. Mr. Jones works from home most days, and attends the office in person approximately 2, 3 or 4 times a month;

c. Instead of being scanned and sent to Mr. Jones, the motion materials were covered up by other materials placed on his desk (specifically, those related to a recent conference he had attended). Mr. Jones believes he then shuffled all of the desktop documents, including the materials related to both the motion and the conference, into a desk drawer. It was not until he received confirmation in September 2019 as to how Gore Mutual had been served that he discovered the materials in his desk.

[20] Mr. Jones gave the following evidence at his cross-examination about Gore Mutual’s receipt and attention to the motion record:

a. He is a senior claims specialist, and has been in this role for 15 of his 30 years at Gore Mutual;

b. The motion record was placed on his desk on June 3, 2019. He just did not look at it. He believes at some point he covered the motion record with materials from a seminar he had attended. He cannot say what the seminar materials looked like, what topics were discussed, the date of the seminar or on what date the motion materials were discovered;

c. He admits to receiving the Motion Confirmation Notice on June 11, 2019. He did not read it beyond the heading;

d. The Order made by Justice Doi on June 14, 2019, provides that the non-party may redact records for privilege;

e. The defendants provided a copy of the Order to seek compliance. Mr. Jones admits to receiving a copy of the Order but does not recall reading it. However, he admits that it was his intention to comply upon receiving the Order;

f. On August 19, 2019, counsel for the plaintiff wrote to Gore Mutual to seek compliance of the Order;

g. On September 17, 2019, Mr. Rosen confirmed that he had been engaged by Gore Mutual to assist with responding to the Order. He also advised that Gore Mutual was intending to seek to vary the Order to accord with Orders issued by the Licence Appeal Tribunal (“the LAT”) with respect to the plaintiff’s application for accident benefits;

h. On December 17, 2019, Gore Mutual served the motion record to vary the Order of Doi J. dated June 14, 2019;

i. On July 9, 2020, Gore Mutual served an amended notice of motion; and

j. Mr. Jones admits that he has no knowledge, information or belief about this delay beyond noting that Adjudicator Sharma made an Order from the LAT on March 24, 2020.

[21] Mr. Jones took the following positions on behalf of Gore Mutual at his cross-examination about producing certain documents, should the court be inclined to vary the Order:

a. With respect to text message notes, Mr. Jones agrees that they are relevant and producible, subject to privilege. This variation is requested to match the wording of Adjudicator Sharma’s Order;

b. With respect to producing the required correspondence, Mr. Jones advised there is nothing in the possession, power or control of Gore Mutual that would change what would be produced as a result of the requested variation. The variation requested is intended to match the wording of Adjudicator Sharma’s Order;

c. To produce surveillance, Mr. Jones explained that the only reason for the requested change was to match the wording of Adjudicator Sharma, and that nothing would be excluded from the variation requested;

d. Mr. Jones could give no reason to prefer the wording used by Adjudicator Sharma’s Order over the wording used in the Doi Order;

e. As to financial transactions, Mr. Jones stated that Gore Mutual was willing to produce what Justice Doi had ordered, but with redactions for privilege and information about setting reserves;

f. Gore Mutual seeks a variation of the Doi Order to allow the withholding of any instructions to regulated health professionals to produce documents (directly, or imposed by contract) and information provided to regulated health professionals;

g. The contracts are one or two pages, as instructions to assessors are more akin to obligations imposed on them. He further admitted that the contract governs the production of medical evidence to the health practitioner writing a report. He stated that Gore Mutual seeks the exclusion of the contracts because they are “not related to this accident benefit file’; and

h. Gore Mutual objects to producing claims committee reports. Mr. Jones explained that these are annual reports from the relevant adjuster based upon a review of the file. Gore Mutual objects to producing the reports because they do not “pertain to the management of the file” and contain information about setting reserve amounts.

[22] Gore Mutual had disclosed previous information to the plaintiff arising from the application she had filed with the LAT on April 28, 2017, to enforce her claim for accident benefits. In the course of that application, the LAT had issued an order requiring Gore Mutual to produce its accident benefits file and adjusters log notes up to the date the Application, with privileged information redacted, including information relating to reserves.

The LAT Orders

[23] Mr. Jones notes that the plaintiff had received disclosure of many documents from her AB file in regard to her application to the LAT. Gore Mutual’s interest with respect to the plaintiff’s application to the LAT were represented by a separate firm, Camporese Sullivan Di Greoria (“CSD”).

[24] The LAT ordered Gore Mutual to disclose documents on September 18, 2017. On October 11, 2017, the plaintiff had asked Gore Mutual to re-consider its disclosure obligations. A case conference on the LAT application was subsequently convened on January 24, 2018. On January 29, 2018, counsel for Gore Mutual produced those documents requested by plaintiff’s counsel at the case conference a few days before.

[25] Mr. Jones states that surveillance was conducted on Ms Derenzis on several occasions. He states that copies of video surveillance and the surveillors notes and qualifications were sent to counsel for the plaintiff on November 24, 2017.

[26] On December 28, 2017, Gore Mutual had sent the AB file for Ms. Derenzis and log notes relative to the LAT application to her counsel.

[27] On May 18, 2018, the LAT was asked by the plaintiff to reconsider matters not related to the LAT file or the production of her AB file. She also requested clarification of a production Order made by the LAT on December 22, 2017. The LAT made a subsequent Order dated May 18, 2018.

[28] The LAT issued a further Order dated August 10, 2018, for Gore Mutual to answer certain undertakings and refusals.

Productions made by Gore Mutual

[29] RS LLP wrote a letter to counsel for the defendants on September 17, 2019, to advise them that Gore Mutual intended to being a motion to vary the Doi Order on two grounds. The first was that Gore Mutual had not been aware of the motion until after it had been heard, although duly served. The second was that the defendants did not seem aware that the plaintiff already had possession of significant disclosure made in the course of the LAT proceeding.

[30] After a further exchange of correspondence between counsel for the defendants and the Campisi firm, RS LLP sent copies of some of the documents it had already produced to the plaintiff to counsel for the defendants on October 28, 2019.

[31] Ken Jones swore a second affidavit June 24, 2020. In that affidavit, Mr. ones further explains that the plaintiff had filed two applications with the LAT, one for income replacement benefits and the second application for a special award.

[32] Mr. Jones goes on to state that a case conference was held on March 24, 2020. At that case conference, Adjudicator Rakesh Sharma made an order requiring Gore Mutual to produce a number of documents relating to the plaintiff’s AB file. Adjudicator Sharma referenced a letter from Campisi LLP dated February 28, 2020, that specified the documents the plaintiff was requesting. Many of the same documents described in that letter were ordered by Adjudicator Sharma in paragraph 8 of his Order.

[33] Gore Mutual takes the position that the Doi Order compelling disclosure as a non-party in this action has already been determined by Adjudicator Sharma at the LAT. Gore Mutual submits that the Doi Order should be varied to conform with the disclosure ordered by Adjudicator Sharma.

Analysis

[34] To provide a frame of reference, Rule 37.14 (1) reads as follows:

37.14 (1) A party or other person who,

(a) is affected by an order obtained on motion without notice;

(b) fails to appear on a motion through accident, mistake or insufficient notice; or

(c) is affected by an order of a registrar, may move to set aside or vary the order, by a notice of motion that is served forthwith after the order comes to the person’s attention and names the first available hearing date that is at least three days after service of the notice of motion. R.R.O. 1990, Reg. 194, r. 37.14 (1) ; O. Reg. 132/04, s. 9.

[35] The leading case on a motion under Rule 37.14(1) is the decision of Justice G.R. Strathy, when a judge of this court, in Ontario (Attorney General) v. 15 Johnswood Crescent, 2009 ONSC 50751 (“Johnswood”). In para. 34, Justice Strathy sets out the following critical path:

34. It seems to me that the following factors should be considered and weighed in the exercise of the court’s discretion in the application of Rule 37.14(1)(b):

(1) Proof of accident or mistake: The moving party must establish a failure to appear on the original motion through accident, mistake or insufficient notice. This is a precondition to relief under the rule. A party who has simply chosen not to appear on a motion cannot complain later if he or she does not like the outcome.

(2) The party must move forthwith after the order comes to his or her attention: This is also a precondition to relief under the rule, but there is room for flexibility in the interpretation of “forthwith”, depending on the circumstances. I will examine this requirement in more detail below.

(3) The length of the delay and the reasons for it: In considering whether to set aside an order, the court will consider whether there has been delay in bringing the motion and the reason for it. All other things being equal, the longer an order has been in effect, particularly where parties have acquired rights or changed their positions as a result of the order, the less likely it will be that the court will set it aside.

(4) The presence or absence of prejudice: The court should consider whether a party will be prejudiced by setting aside the order or by failing to set aside the order. There will always be prejudice if an order is made against a party without sufficient notice and there will always be some kind of prejudice to the other party if the order is set aside. Nevertheless, the exercise of the court’s discretion may require an examination of the relative prejudice to the parties.

(5) The underlying merits of the moving party’s case: It may be necessary to consider the underlying merits of the moving party’s case in weighing the various factors, balancing the interests of the parties, and determining what is just in the circumstances. Lengthy delay in bringing the motion may be more readily forgiven if the moving party has a very strong case on the merits. It will be less readily forgiven if the party’s case appears frivolous.

[36] The onus to show that an Order should be set aside or varied under Rule 37.14(1) is squarely on the moving party.

Proof of accident or mistake

[37] The sequence of the steps in the critical path set out by Strathy J. is important because the first and second steps establish thresholds for the moving party to meet. These first steps are grounded in the language of Rule 37.14(1) and expanded upon in Johnswood. Such steps engage common law principles of fairness, consideration of prejudice and the strength of the underlying merits.

[38] Strathy J. held that the court should exercise the discretion to make an order under Rule 37.14 with the purpose of the rule in mind: “to give a party an opportunity to litigate the matter that was, through inadvertence, never dealt with by the court as a true lis.” He explained further that the purpose of the rule is to uphold the fundamental principle that a court should hear both sides of a case, and that it provides a remedy where one party has failed to appear as a result of an accident or mistake.

[39] It is important that the moving party supply the necessary evidence for the court to assess whether it can make a finding that that party did not participate in a hearing because of an accident or mistake. This finding is fundamental to granting relief under the rule. This process is remedial in nature but subject to that strict condition. It is therefore the primary threshold for the moving party to overcome. If the moving party cannot meet this threshold, the motion under Rule 37.14 must fail.

[40] It is evident from the affidavit of Mr. Jones, modified by the answers he gave under cross-examination, that Gore Mutual did not appreciate the nature of the motion documents served on its office in relation to this motion. Gore Mutual did not act on the motion materials because no one referred those documents to the appropriate supervisor when they were received. The materials were instead placed on the desk of Mr. Jones – who worked mostly from his home. There is also the Motion Confirmation Notice that Mr. Jones did see - but did not read. Then there is the letter enclosing the Order itself, which was not processed.

[41] The evidence shows that the reasons for ignoring the motion documents leading to the making of the Doi Order was not because of mistake or accident. On the evidence, the motion materials were not brought to the attention of the appropriate supervisor at the appropriate time with no evidence to explain this institutional oversight. There was no evidence given on the motion that justified the reliance on a hierarchy that did not screen incoming documents with the required rigour. There is little evidence that these documents were tracked after they reached the desk of Mr. Jones. The rule only goes so far to provide a party or non-party with a second chance to respond to the motion. The moving party must show that attention to the motion was missed more because of circumstances beyond its control than carelessness or lack of diligence.

[42] There is also the submission that Mr. Jones did not appreciate the nature or context of the Motion Confirmation Notice he received on June 11, 2019. I cannot accept that this oversight was due to inadvertence due to accident or mistake when he had the court document right before his eyes and did not have the foresight to read it.

[43] The court also recognizes that the motion was directed at Gore Mutual as the non-party. This placed the responsibility on Gore Mutual to ensure court documents coming in are properly distributed, reported, and processed. Mr. Jones may have a responsibility for his part within Gore Mutual, but it is the corporation that bears the ultimate responsibility.

[44] The civil litigation system relies upon counsel and sophisticated non-parties alike to receive and process court documents that are properly served, and to take responsive action in a timely manner. The motion materials of the defendants were served properly and in accordance with the rules. Gore Mutual should have filed responding evidence or appeared at the motion before Justice Doi on June 14, 2019. I find that Gore Mutual failed to respond to the motion for reasons other than through accident or mistake.

[45] I am dismissing the motion to vary the Doi Order on this ground alone. Gore Mutual has not met the threshold set by Strathy J. in Johnswood.

Obligation to move “forthwith”

[46] Even though I have dismissed the motion on the threshold issue, I would not exercise my discretion to vary the Doi Order for other reasons. Chief among those reasons is the failure of Gore Mutual to bring its motion forthwith.

[47] The Johnswood decision examined the requirement of the moving party to move forthwith in accordance with the rule if it is to seek the relief requested on this motion. With reference to Beattie v. Ladouceur (1995), 23 O.R. (3d) 225 (Gen. Div.) at pages 228-229, and R. v. Parrot (1979), 27 O.R. (2d) 333 (Ont. C.A.) at pages 339-340, Strathy J. identified the meaning of forthwith to be any of the following:

• “immediately”
• As soon as possible in the circumstances, the nature of the act to be done being taken into account”
• As promptly as is reasonably possible or practicable under the circumstances” or
• “without any unreasonable delay, considering the objects of the rule and the circumstances of the case“.

[48] According to the evidence, Mr. Jones did not take immediate steps to instruct counsel on behalf of Gore Mutual to bring a motion to set the Order of Doi J. aside. Mr. Jones first realized the Order had been granted when he received the follow up email from Mr. Murray on August 19, 2019, seeking compliance with its terms. He received a further email from counsel for the defendants on August 26 to the same effect. During this time, he had initiated an internal investigation and made the decision to wait for counsel to return from their summer vacations.

[49] Once counsel for Gore Mutual had been retained and instructed, they proceeded to make inquiries whether the defendants had proof the motion record had been served on Gore Mutual, and those inquiries were swiftly answered. Following this exchange, Gore Mutual provided certain disclosure to the defendants in October, 2019. Finally, Gore Mutual served its motion on December 17, 2019. Subsequently, Gore Mutual served an amended motion returnable on July 29, 2020. This was the motion that was finally heard by me as a long motion on January 4, 2023.

[50] While the timing of this motion was enveloped by the temporary suspension of court operations in the early days of the pandemic, the motion might well have been heard later in 2019 had it been brought as promptly as reasonable possible, or sometime in 2020 after the court adapted the available technology to hear motions virtually.

[51] In my view, the motion to set aside the non-party Order was not brought promptly, or without unreasonable delay having regard to the circumstances of the case. In the result, I find that Gore Mutual did not bring its motion to set aside of vary the Doi Order forthwith.

Delay

[52] There is also the delay from the time the motion was brought in 2019 to the time it was ultimately heard on January 4, 2023. That expanse of time is too long to have a motion heard and determined, even with the intervention of COVID-19 protocols and contending with motions to quash summonses.

[53] It would appear from the evidence that receipt of the follow up letters from counsel enclosing the Doi Order galvanized Gore Mutual to retain counsel to take steps on its behalf. As Strathy J. did in Johnswood, I have considered whether the court should, in the circumstances, consider exercising the power to extend time to bring a motion under Rules 2.03 or 3.02. In the present circumstances, I have considered the length of the delay and the explanations for inaction since 2019. I would not have granted an extension of time on the evidentiary record for this motion.

Prejudice

[54] Gore Mutual has provided reasons that go to privilege for the relief it seeks based on the nature of the disclosure ordered. This information includes documents that reveal information about how and why Gore Mutual set reserves on the plaintiff’s claim. It also relates to reports and internal communications.

[55] The Doi Order contains a clause allowing for the redaction of privileged information. Counsel for the plaintiff also stated at the motion that they would not move to enforce the Order for the failure of Gore Mutual to produce documents related to privileged information.

[56] Counsel for Gore Mutual mentioned in his submissions that disclosure of the documents ordered by Justice Doi could prejudice the position of Gore Mutual in another action the plaintiff has commenced against it for “insurer misconduct.” In the decision of Chown J. on a previous motion in the instant action, that other action is described (at para. 5) as an action in which Ms. Derenzis and her son-in-law are claiming millions of dollars in damages against Gore Mutual “for the systemic predatory practice of staging insurer examinations.”

[57] There was little, if any evidence given on how the documents Doi J. has ordered Gore Mutual to produce would work to its prejudice in the other action. In any event, the implied undertaking rule would apply to limit the use of those documents for purposes other than the prosecution or defence of the current action. If Gore Mutual required a court order to enforce that restrictions on the use of any such documents that could cause it prejudice in the other action, it would be at liberty as a party to that action to seek its remedy under Rule 30.1.01.

[58] I find the general objection made by Gore Mutual that it will suffer prejudice if the Order of Doi J. is not varied or set aside has little merit.

[59] Conversely, the prejudice to the plaintiff and to the defendants who obtained the Order in 2019 has accumulated over the intervening years because the case has not moved forward in the absence of the required productions. There is no evidence before the court that the documents Doi J. has ordered are assembled and await release if this motion fails. If they have not been preserved as a set, there is a risk Gore Mutual will require greater time to locate and assemble each set of documents to comply with the Order.

Underlying merits

[60] Gore Mutual relies on Ontario (Attorney General) v. Stavro for the submission that documents must be considered relevant to the issues in the action before a court will order a party to produce them to the other side, or to make an Order under Rule 30.10. This submission, which would have traction if this was a motion of first instance under Rule 30.10, should only be considered if all other parts of the test had been met and this was the factor on which my discretion rested.

[61] The defendants did not file evidence or appear on this motion, indicating only that they supported the position of the plaintiff’s opposition to it. However, the defendants have raised the statutory defences in the statement of defence of an entitlement to set-off against like damages under s. 267.8 of the Insurance Act. Those defendants would have an interest obtaining production of all collateral benefits paid or payable to the plaintiff under the Statutory Accident Benefits Schedule under this defence. It is this legal position that makes much of the disclosure required by the Order relevant, and would entitle the defendants, and the plaintiff, to disclosure from Gore Mutual on the merits.

[62] Finally, Gore Mutual takes the position that Adjudicator Sharma has already determined the nature and scope of the disclosure it should make. Gore Mutual takes the position that the Doi Order should be varied to conform with the Order made by Adjudicator Sharma on March 24, 2020. This position is evident from the answers given by Mr. Jones when he was cross-examined for this motion.

[63] I give little weight to this submission as it relates to the merits. The application of the plaintiff before the LAT involves statutory claims that Ms. Derenzis is making under her insurance policy. These claims are very different in nature and scope from the claims and defences of the parties in the tort action, except for the claim to set off collateral benefits. Doi J. made the Order on June 14, 2019, on the motion record before him without regard to any disclosure Order made by Adjudicator Sharma some nine months later.

Conclusion

[64] The motion is dismissed.

[65] The parties are encouraged to resolve costs as between themselves. In the event the court is asked to award costs, the plaintiff shall deliver her written submissions by April 7, with the responding submissions due by April 28, 2023. No reply submissions are permitted. Any written submissions shall not exceed two pages not including a bill of costs or offer to settle the motion.

[66] Written submissions may be filed by email to my judicial assistant at melanie.powers@ontario.ca. If no submission claiming costs has been received by April 7, 2023, I shall assume that any costs issue has been resolved.

Emery J.

Released: March 14, 2023