Court File and Parties

COURT FILE NO.: CV-14-511332 DATE: April 18, 2023

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: JAMES BAY RESOURCES LIMITED, Plaintiff

AND:

MAK MERA NIGERIA LIMITED a.k.a. MAK MERA LIMITED and ADEWALE OLORUNSOLA a.k.a. WALE SOLA, Defendants

BEFORE: Justice Papageorgiou

COUNSEL: Hilary Book and William McLennan for the Plaintiff Erin Chesney and David Hakim for the Defendant

HEARD: April 5, 2023

Endorsement Re Motion for Leave to Introduce Documents Not Previously Disclosed Pursuant to Rule 53.08

The Motion

[1] The plaintiff James Bay Resources Limited (“James Bay”) claims damages for breach of contract and libel as against the defendants Mak Mera Nigeria Limited (“Mak Mera”)and Adewale Olorunsola (“Sola”) (collectively the “Defendants”).

[2] At the commencement of the trial, James Bay advised that it had located three additional documents which were relevant and that it proposed that it would bring a motion to introduce these documents at the point in time when they arose in the chronological presentation of its evidence in chief. Counsel for the Defendants advised that they did not consent to the admission, but that if these documents were admitted, then they requested a right to conduct a condensed discovery on those documents. They also did not oppose the motion being brought at the point in time suggested by James Bay.

[3] I agreed with counsel’s suggested approach, which, even in hindsight, made a great deal of sense. The facts are complex and involve numerous interrelated corporations and transactions. Had James Bay had to bring the motion at the outset, the evidence to be filed in respect of the motion to explain the case and the relevance of the documents would have been lengthy as would have been the argument. This would have been inefficient and would have lengthened the trial.

Background

[4] To address the motion, it is important to set out the background of this proceeding and the allegations made by the parties.

James Bay’s Breach of Contract Claim

[5] James Bay’s breach of contract claim relates to contracts entered into by James Bay and Mak Mera and the subsequent fallout.

The MOU

[6] In that regard, in paragraph 5 of the Statement of Claim, James Bay asserts that on March 9, 2011 it entered into a Memorandum of Understanding (the “MOU”) which related to the provision of services by Mak Mera to James Bay in connection with the potential acquisition by James Bay of an oil and gas asset in Nigeria.

[7] The Defendants have not as yet called any evidence, but it is important to understand the Defendants’ assertions at least, with respect to its role. The Statement of Defence pleads that Nigeria has a legal requirement under the National Content Act that requires any non-Nigerian entity that seeks to profit from the extraction of oil in Nigeria to partner with at least one indigenous Nigerian business and that this is known as the “local content” requirement. Mak Mera provides assistance to foreign entities wishing to enter Nigeria’s oil and gas sector through its knowledge, experience and contacts in the Nigerian oil and gas sector. The Statement of Defence pleads that the Chairman of Mak Mera is Chief Michael Olorunfemi (“Chief Olorunfemi”).

[8] James Bay asserts that the MOU required the payment of US $300,000 and the issuance of 3,000,000 shares in James Bay to Mak Mera contingent on the completion of the acquisition of an oil and gas asset. James Bay defines these as a “Success Fee.”

The Letter Agreement

[9] The parties subsequently entered into a letter agreement dated February 1, 2012 (the “Letter Agreement”) which required the issuance 6,500,000 shares in James Bay upon a definitive agreement being entered into to acquire an interest in an oil and gas project in Nigeria.

[10] James Bay pleads that the Letter Agreement set out that the issuance of shares was subject to the TSXV and that such approval might never be received.

[11] The Letter Agreement also increased the amount of the alleged Success Fee by US $165,000.

[12] It is noteworthy that while a specific mining lease is referenced in both the MOU and the Letter Agreement, the Letter Agreement makes reference to generic “projects other than those” set out specifically in the Agreement.

[13] James Bay advanced a total of $405,000 to Mr. Sola and/or Mak Mera up until the end of July 2012.

[14] James Bay asserts that it made these payments because Mr. Sola contacted James Bay on a routine basis and advised that he was experiencing financial difficulty. James Bay pleads that Mr. Sola asked for advances as against the Success Fee and it was always understood that if no oil and gas asset was acquired, the money would have to be repaid.

OML-90

[15] It is admitted that Mak Mera/Mr. Sola introduced James Bay to D&H Solutions AS (“D & H”) as a technical partner for James Bay to enter into the Nigerian oil and gas market and that James Bay subsequently executed a memorandum of understanding pursuant to which D & H was to provide operational support to James Bay in pursuing opportunities in the oil and gas sector in Nigeria. It is admitted that this was a valuable introduction.

[16] It is admitted that James Bay Energy Nigeria Limited is a wholly owned subsidiary of James Bay.

[17] The trial evidence established (and it is also admitted) that on June 28, 2012, James Bay issued a press release announcing that it had entered into a Joint Operating Agreement (the “Joint Operating Agreement”) with Bicta Energy & Management Systems Limited (“Bicta”) to acquire a 47 % interest in the “Ogedeh” located in Oil Mining Lease-90 (“OML-90) to be implemented through a Joint Operating Agreement. This is also set out in the Agreed Statement of Facts.

[18] The Joint Operating Agreement would be subject to approval from the Government of Nigeria as well as regulatory and other approvals.

[19] It is undisputed that in May 2013 the Nigerian Department of Petroleum Resources (the “DPR”) approved James Bay’s acquisition of OML-90.

[20] James Bay’s acquisition of a significant and direct interest in an oil and gas field would constitute a change of business (“COB”) pursuant to Policy 5.2 of the Exchange, and this would require the approval of the TSXV. This approval was not obtained by the end of December 31, 2013.

[21] Therefore, in this proceeding, James Bay asserts that all of its contractual obligations to the Defendants came to an end, that it is entitled to repayment of all amounts paid, and that there is no obligation to issue any shares in James Bay to the Defendants.

[22] The Defendants, however, assert that Mak Mera became entitled to the share issuance upon the approval by the DPR with respect to OML-90. With respect to the payments made, the Defendants assert that they were not contingent on anything.

OML-25

[23] In paragraph 32 of the Statement of Defence, the Defendants also assert that pursuant to s. 6 of the Letter Agreement, Chief Olorunfemi was appointed as Chairman of James Bay’s operating company which was incorporated under the name Crestar Integrated Natural Resources Limited (“Crestar”). They plead that Chief Olorunfemi (and therefore presumably Mak Mera since he was its Chairman) was a key player in a bid to acquire an interest in an oil mining lease known as OML-25 in that capacity.

[24] It is admitted that James Bay owns 45 % of Crestar’s shares.

[25] I have not yet heard the Defendants’ evidence but it appears that the Defendants also allege that James Bay was in control of Crestar, and was the actual bidder in substance, if not in form.

[26] The trial evidence up until the argument of the motion was that Mr. Olaniyan (the Chief Operating Officer and Country Manager of James Bay Energy Nigeria, a wholly owned subsidiary of James Bay) and James Bay formed Crestar.

James Bay’s Libel Claim

[27] James Bay’s libel claim relates to the contents of a July 2, 2014 Letter written by Mak Mera which was sent to various individuals including the DPR, Royal Dutch Shell PLC (“Shell”) and various others which James Bay claims are defamatory (the “July 2, 2014 Letter”).

[28] The particulars of the libel are set out in paragraph 25 of the Statement of Claim and include: a) that James Bay has breached the intention of its agreement with Mak Mera by denying Mak Mera any participation in the OML-25 acquisition; b) that James Bay has dealt with Mak Mera, a Nigerian company, in an unfair manner; c) that James Bay has taken away equity which rightfully belonged to Mak Mera; d) that Mak Mera has been denied the benefit of the OML-25 acquisition through its “opaque relationship” with Crestar and that Mak Mera considers James Bay to have defrauded it by “misrepresentation and deceptive conduct.” The letter concluded by asking the DPR to suspend the award of the OML-25 lease to “James Bay/Crestar.”

[29] Part of the Defendants’ defence to the libel claim is that the contents of the July 2, 2014 Letter are true, that the Letter was fair comment and that it was published on a privileged occasion. In that regard, the Defendants plead that it was published pursuant to a moral and social duty of the Defendants and the recipients with respect to the integrity of Nigeria’s oil and gas sector.

Rule 53.08

[30] Rule 30.08(1) provides as follows:

Effect of Failure to Disclose or Produce for Inspection

Failure to Disclose or Produce Document

30.08 (1) Where a party fails to disclose a document in an affidavit of documents or a supplementary affidavit, or fails to produce a document for inspection in compliance with these rules, an order of the court or an undertaking,

(a) if the document is favourable to the party’s case, the party may not use the document at the trial, except with leave of the trial judge; or

(b) if the document is not favourable to the party’s case, the court may make such order as is just. R.R.O. 1990, Reg. 194, r. 30.08 (1) ; O. Reg. 504/00, s. 3.

[31] The current r. 53.08(1) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 provides as follows:

Evidence Admissible only with Leave

53.08 (1) If evidence is admissible only with leave of the trial judge under a provision listed in subrule (2), leave may be granted if the party responsible for the applicable failure satisfies the judge that,

(a) there is a reasonable explanation for the failure; and

(b) granting the leave would not,

(i) cause prejudice to the opposing party that could not be compensated for by costs or an adjournment, or

(ii) cause undue delay in the conduct of the trial. O. Reg. 18/22, s. 10 (1).

(2) Subrule (1) applies with respect to the following provisions:

1. Subrule 30.08 (1) (failure to disclose document)…..

[32] Rule 53.08(1) became effective on March 31, 2022.

[33] The prior r. 53.08(1) read as follows:

[34] EVIDENCE ADMISSIBLE ONLY WITH LEAVE

53.08 (1) If evidence is admissible only with leave of the trial judge under a provision listed in subrule (2), leave shall be granted on such terms as are just and with an adjournment if necessary, unless to do so will cause prejudice to the opposite party or will cause undue delay in the conduct of the trial. O. Reg. 284/01, s. 13.

(2) Subrule (1) applies with respect to the following provisions:

1. Subrule 30.08 (1) (failure to disclose document).

[35] The previous r. 53.08(1) was mandatory unless the admission of documents would cause prejudice to the opposite party or would cause undue delay.

[36] Agha v. Munroe, 2022 ONSC 2508 involved the late production of an expert report, but the Court’s comments at para 18 are nonetheless relevant:

Fundamentally, the aforesaid amendment, in my view, will result in a change in how trial judges will be required to consider motions that essentially ask for the indulgence resulting from late service of an expert report and the admissibility of that evidence at trial. Where the old rule provided that leave of the trial judge “shall be granted”, the new rule now is permissive using language “may be granted”.

[37] Thus, the current r. 53.08(1) is discretionary, and the onus is on the party seeking the admission of the documents to establish the following three things: a) a reasonable explanation for the failure; b) that granting leave will not cause prejudice that cannot be compensated by costs or an adjournment; and c) that granting leave will not cause undue delay in the trial.

[38] The only witness who testified at the voir dire was Mr. Stephen Shefsky (“Mr. Shefsky”), the President, CEO and a director of James Bay. The Defendants cross examined Mr. Shefsky but called no evidence. In argument they did make reference to facts which were not contested by James Bay including the number of affidavits of documents submitted by James Bay.

The Documents

[39] The first document is a Crestar slide deck dated October 25, 2013. It describes Crestar, its structure, its Board Members, its Management Team, its management and organization structure, details of its proposed deal closure and handover, its focus on OML- 25 (and 24), its delivery framework, and other details. It makes no reference to Chief Olorunfemi or Mak Mera.

[40] The second document is Crestar’s February 25, 2014 offer for 45 % participating interest in OML-25. The bid also includes information as to Crestar Management & Directors. It makes no reference to Chief Olorunfemi or Mak Mera.

[41] The third is Crestar Briefing Notes dated April 7, 2014 in respect of its bid for OML-25. It makes no reference to Chief Olorunfemi or Mak Mera.

[42] Thus, the documents address the Defendants’ claim that Chief Olorunfemi was appointed a director and Chairman of Crestar and that Chief Olorunfemi was a part of Crestar and a key player in the bid in that capacity.

[43] It is difficult to dispute that these documents are relevant. Indeed, the Defendants do not even dispute that, and they could not credibly do so.

[44] I turn now to the three criteria and I will begin with undue delay as it is the easiest to address in this case of the three.

Undue Delay

[45] On the first day of trial when I was advised of the issue, I adjourned for the day to permit the Defendants to conduct discovery on these new documents. This was to avoid delay, and the possible adjournment of the trial mid-stream if the documents were admitted, discovery was conducted midstream, and undertakings and refusals necessitated an adjournment. If anything critical arose out of this discovery, it was important that any adjournment request be dealt with at the outset. If the documents were not admitted, this would have resulted in minor inconvenience compared the potential adjournment of a trial midstream.

[46] I understand that the discovery took place on April 3, 2023.

[47] The motion was subsequently brought on April 5, 2023.

[48] There was no suggestion that the Defendants had not been able to ask any questions they wished, or that there were any undertakings or refusals that arose out of this discovery and which the Defendants needed for a fair trial.

[49] After having conducted this discovery on these documents, the Defendants did not request any adjournment for any reason.

[50] Therefore, the admission of the documents has not caused any undue delay.

Reasonable Explanation

[51] I begin by noting that this action was commenced by James Bay on September 2, 2014. The Statement of Defence, which specifically references Crestar’s bid, is dated January 15, 2016. The Lawyer’s Certificate of Trial Record is dated October 7, 2017.

[52] There were a total of 9 affidavits of documents provided by James Bay between August 2016 and February 2019, some sworn and some not sworn.

[53] Mr. Shefsky agreed that at each point in time when an affidavit of documents was produced, he would have turned his mind to the relevant documents and made inquiries, and that he conducted a diligent search of James Bay’s records.

[54] Mr. Shefsky testified that looked at all of his emails, including his cell phone and attachments over the time he was in Nigeria. He looked through their paper records and files and would have requested from Mr. Adeniyi Olaniyan that he do the same. At the relevant time, Mr. Olaniyan held the positions of Chief Operating officer and Country Manager of James Bay Energy Nigeria Limited (“James Bay Nigeria”), a wholly owned subsidiary of James Bay as well as President/CEO of Crestar. In addition, Mr. Shefsky spoke with Afolabi Omoni, James Bay’s office manager in Nigeria where most of their records were kept in their database.

[55] Mr. Wayne Egan, a partner with WeirFoulds and a member of James Bay’s Board of Directors was examined for discovery in February 2017 and November 2018 and provided a number of undertakings at these discoveries. Mr. Shefsky was a part of the process of responding to the undertakings. He agreed that he would have reviewed the answers to undertakings before they were produced and some of the undertakings required searches for additional documents. James Bay produced new documents in response to the undertakings.

[56] As well, the trial of this action was originally supposed to commence in September of 2021. Mr. Shefsky agreed that in the lead up to the trial in 2021 he was prepared. He agreed that the issues in September 2021 were the same as they are today and that he would have reviewed documents to consider the relevant issues. However, that trial did not proceed at that time because it was adjourned.

[57] I add that Mr. Shefsky has an impressive C.V., including the fact that he is a lawyer.

[58] It is difficult to understand how James Bay, as well represented and as sophisticated as it is, could have omitted the production of these documents.

[59] The explanation appears to be inadvertence.

[60] Mr. Shefsky testified that he first realized that the documents in question had not been produced on Friday, March 31, 2023 which was the Friday before the trial was scheduled to commence on April 3, 2023. He then searched his own computer records and paper files and did not locate these documents. He then contacted Mr. Olaniyan and asked him if he had the bid documents. Mr. Olaniyan searched his records and said he did not have them. He then indicated that he would search something called his “pin drives” and he located these documents on his pin drive.

[61] I add that James Bay recently obtained new counsel to conduct the trial.

[62] Counsel for the Defendants argued that inadvertence could not constitute a reasonable explanation. I agree that the explanation is on the very low end of what is reasonable. However, in my view, the Court should balance all of the factors in coming to a just result, and I will do so at the conclusion of these reasons taking into account the quality of the explanation given.

Prejudice that Cannot be Compensated by Costs or an Adjournment

[63] The new rule is not designed to subvert the search for the truth. It would indeed be an odd outcome if truly relevant documents were excluded because of late delivery where there was no actual prejudice and the Court came to a conclusion which was opposite to what had actually occurred.

[64] The direction of the Court of Appeal in Nemchin v. Green, 2019 ONCA 634 at para 50 is still relevant:

[50] That said, however, the trial judge did not assess the late disclosed surveillance to determine whether its admission would be prejudicial, in the sense noted by Leach J. in Ismail, at para 13, which I borrow. The question is whether there were any realistic or meaningful concerns about the plaintiff and her counsel being unfairly taken by surprise by the admission of such evidence at trial. Late production is not usually a good reason for excluding relevant evidence where it is similar to evidence that was disclosed on time, so that neither the plaintiff nor her counsel were unfairly caught by surprise. The trial judge erred in not assessing whether the late surveillance evidence should be admitted considering fairness and surprise.

[69] By way of aside, the approach that Leach J. took in relation to the late-produced surveillance in Ismail would otherwise have application. The trial judge was required to consider whether there were any realistic or meaningful concerns about the plaintiff and her counsel being unfairly taken by surprise by the admission of such evidence at trial.

[65] The evidence contained in the three documents support James Bay’s position that Chief Olorunfemi (who was the Chairman of Mak Mera) was not an officer and director, and did not play any role in Crestar or the bid for OML-25, that Crestar made the bid, and that James Bay owns 45 % of Crestar.

[66] The documents also contradict the August 30, 2013 expression of interest in the OML-25 which said that Chief Olorunfemi was in control of Crestar.

[67] But again, the Defendants always knew that James Bay’s position was that the August 30, 2013 was incorrect.

[68] In 2018, the Defendants examined James Bay’s representative, Mr. Wayne Egan, a partner with WeirFoulds and a Director of James Bay, on his corrected answers. He testified that the August 30, 2013 letter was a draft letter and that the statement that Chief Olorunfemi controlled Crestar was incorrect.

[69] When asked what information he looked at in order to draw this conclusion, he advised that he would have looked at the public filings of Crestar in terms of who were the officers, directors and shareholders in Nigeria. He said he would have obtained copies of these documents to satisfy himself that these individuals did not have control over Crestar. I note that these public filings have been produced in this proceeding as well and they do not show Chief Olorunfemi to be an officer or director of Crestar.

[70] Furthermore, the letter which Mak Mera wrote dated July 2, 2014, which is incorporated by reference into the Statement of Defence, and which the parties have agreed Mak Mera wrote in the Agreed Statement of Facts, supports the same conclusion. In this letter, Mak Mera (whose Chairman is Chief Olorunfemi) shows that it has very little information about Crestar. It states:

i) It has come to our attention that the preferred bidder for OML-25 is Crestar Integrated Natural Resources Limited ("CRESTAR"), an indigenous Nigerian company. JAMES BAY owns 45% equity interest in CRESTAR according to JAMES BAY's public filing. This fact is not reflected in the Corporate Affairs Commission, the Nigerian companies' public registry. The result of the above finding is that we know very little about the real beneficial ownership of CRESTAR. Who in fact are they? Who is CRESTAR?

A search conducted at the Corporate Affairs Commission on the 30th of June 2014 shows that a full-time employee of James Bay Energy (Nigeria) Ltd ., a 100% subsidiary of JAMES BAY, Mr Adenivi Olaniyan is a director of CRESTAR holding 9,999,999 shares while an unknown Sanusi Adetutu holds 1 share . There are no other shareholders and directors and there is no evidence of change of either directors or the allotment of share capital. The company remains the way it was registered. We find this to be mysterious! We are interested in knowing why JAMES BAY owns 45% of CRESTAR without any consultation with us. Who owns the other 55%?

[71] If they did not even know who Crestar was as at July 2014, how can the fact that Mr. Olorunfemi is not shown to have played any role in Crestar surprise them. In the words of the Court in Nemchi, at para 50, “late production is not usually a good reason for excluding relevant evidence where it is similar to evidence that was disclosed on time.”

[72] The fact that documents are helpful to one side is not the kind of prejudice that the rule addresses in my view. There must be some surprise or something about the late production that would make the trial unfair and I have seen no evidence that this late production will do that.

[73] In fact, while I am open to be persuaded otherwise, it appears that the documents are not even very relevant to the main issues in dispute which are: ▪ Whether James Bay used Chief Olorunfemi’s name and reputation to assist them with respect to OML-25. The incorrect reference to him in the August 30, 2013 expression of interest and other documents referenced so far are still relevant to that issue. ▪ Whether as alleged in paragraph 32 of the Statement of Claim, and regardless of who the officers and directors were, Crestar was the Indigenous Company that was supposed to be incorporated pursuant to section 6 of the February 1, 2012 Letter Agreement. ▪ Whether James Bay was in fact in control of Crestar because of various agreements it had with Crestar, that James Bay was in substance, therefore, the actual bidder through an opaque process, and that this violated Mak Mera’s agreements with James Bay ▪ Whether James Bay attempted to acquire an interest in oil and gas assets through Crestar in order to frustrate and deprive Mak Mera of its compensation under the Agreements. ▪ Whether the payments made by James Bay to Mak Mera were a “Success Fee” contingent on the successful acquisition of an oil and gas asset or meant to be ongoing payment of consulting fees. ▪ Whether pursuant to the February 1, 2012 Letter Agreement, James Bay successfully acquired an oil and gas asset upon approval of the DPR entitling the Defendants to their consideration, and that the TSXV approval of James’ Bays COB was not a requirement prior to such payments. ▪ Whether the contents of the July 2, 2014 Letter are defamatory, true or fair comment, in particular: i) that James Bay could not have made any inroads into Nigeria were it not for the valuable introductions that Mak Mera made; ii) that James Bay began its pursuit of OML-25 in August 2013, at a time when the Letter Agreement was still in force, without including them, constituting a breach of their agreements; iii) whether the other directors of Crestar were named in part because of their respect to Chief Olorunfemi; iv) that the assistance Mak Mera provided with respect to OML-90 was a “credential” for Crestar’s operational experience; v) that Crestar and OML-25’s bid and James Bay’s business in Nigeria were predicated on the goodwill and good faith of the agreements which James Bay had with Mak Mera; vi) that James bay would not have been conducting any business in Nigeria if it were not for Mak Mera; vii) that a corporate opportunity belonging to Mak Mera had been usurped; vii) that all of this constitutes some form of deception as alleged..

[74] All of these issues are still open to debate and will be determined by the evidence, contractual interpretation and the law.

[75] In all the circumstances, I am satisfied that James Bay has met its burden of demonstrating that there is no prejudice that cannot be satisfied by costs (the Defendants did not even ask for an adjournment) given: i) all of the above evidence; ii) James Bay’s early disclosure that Chief Olorunfemi was not a member of Crestar’s Board of Directors with supporting corporate records; iii) the way the case has been plead; iv) the admission by all parties that Crestar made the bid and that James Bay held 45 % of its shares; iiv)the statements made by Mak Mera in the July 2, 2014 letter that it did not even have any information at that time as to who Crestar was; and v) the fact that these new documents do not appear touch in any significant way on the bulk of the important and disputed issues which will be decided based on all of the evidence, the interpretation of the agreements, and the law.

Conclusion

[76] While the explanation of inadvertence is on what I would consider the very low end of being reasonable, the relevance of the documents is on the high end and it does not appear that these documents constitute unfair surprise.

[77] The Defendants have had an opportunity to conduct discovery on the documents. There do not appear to be any relevant additional undertakings or refusals which have arisen from this discovery—I would have expected someone to advise me if there were.

[78] With respect to the issue of prejudice, while the obligation to prove the absence of prejudice is on the moving parties, I note that the Defendants did not raise any specific issue of prejudice other than the fact that the documents are not helpful to a part of the Defendants’ case. In my view, that is not the kind of prejudice that the new rule is meant to address. The fact that the Defendants were able to conduct the discovery of the documents in a matter of a few hours and chose to call no evidence on the motion satisfies me that James Bay has met its burden in all the circumstances taking into account all relevant circumstances discussed above.

[79] While James Bay should have turned its mind to the production of these documents sooner, it is also the case that the Defendants could have also asked for documents related to the OML-25 bid at one of the discoveries. They did not.

[80] If the Defendants were of the view that these documents are somehow not authentic, they could have asked for an adjournment to do some analysis of the documents to see if they have been altered or to even make inquiries with Shell to determine if these are in fact the documents they purport to be. They did not.

[81] Therefore, the documents are relevant. There is no meaningful prejudice that cannot be compensated for by costs and the Defendants did not even request an adjournment which they could have if they were of the view that the documents constitute any prejudice.

[82] Like James Bay, the Defendants are well represented.

[83] Therefore, I am granting James Bay leave to admit the documents.

[84] The Defendants shall have their costs on a substantial indemnity basis in any event of the cause.

ADDENDUM

[85] Following the release of this decision, the parties sought clarification as to whether I had made any findings of fact which would limit the arguments which they can make in their closing submissions. I advised that I had not. The heading to this decision indicates that it is a decision in respect of a r. 53.08 motion; findings of fact for the purposes of an interim motion do not create any issues estoppel. As I advised the parties, they are free to make any and all arguments they wish in their closing submissions.

Justice Papageorgiou Date: April 18, 2023