Court File and Parties

2023 ONSC 2703

Court File No.: CV-21-00671545 Motion Heard: 20230228

Superior Court of Justice - Ontario

Re: Suntower Developments Limited, Plaintiff And: Studios of America Corporation and Studios of America Limited Partnership, Defendants

Before: Associate Justice L. La Horey

Counsel: Andrew Parley and Mark Andrews-Lee, for the moving party plaintiff Robert W. Staley and Jason M. Berall, for responding parties, defendants

Heard: February 28, 2023 by videoconference

Reasons for Decision

Nature of the Motion and Overview

[1] The plaintiff, Suntower Developments Limited (“Suntower” or the plaintiff), brings this motion for a certificate of pending litigation (“CPL”) over property located at 440 Unwin Ave., Toronto, Ontario, which is known as the “Hearn” as it was the site of the R.L. Hearn Generating Station (the “Hearn” or the “Property”). The defendants, Studios of America Corporation and Studios of America Limited Partnership (collectively “Studios” or the defendants), are the registered owners of the Property.

[2] Suntower and Studios entered into an agreement dated December 1, 2007 (the “Agreement”). At that time, Studios leased the Property from Ontario Power Generation Inc. (“OPG”). The Agreement provides that in return for its work in acquiring and developing the Property, Suntower was to receive a share of cash flow from the Property pursuant to the formula set out in the Agreement. Under the Agreement, Studios was not required to make any financial contribution to the project and was not entitled a share in the ownership of the Property. In its statement of claim, Suntower has asserted a claim for unjust enrichment and a constructive trust over the Property and claims a CPL.

[3] The defendants oppose the motion arguing that plaintiff has no reasonable claim to an interest in the Property, given that nothing in the Agreement grants it an interest in the Property. They submit that Suntower has attempted to dress up what is in essence a contractual claim into a constructive trust claim to obtain a CPL for the purpose of obtaining leverage in negotiations with Studios in respect of their contractual dispute. In any event, the defendants submit that the court should not exercise its discretion to grant a CPL.

[4] For the reasons that follow, Suntower’s motion is dismissed.

Background

[5] On March 8, 2002, Studios entered into a lease agreement with OPG for the lease of the Property. The term of the lease was 20 years.

[6] In 2005, the plaintiff’s principal, Stephen Kauffman, entered into discussions with Studios regarding Suntower’s potential involvement in Studios’ future plans for the Property.

[7] Mr. Kauffman prepared a first draft of a written agreement between Suntower and Studios in July 2007. The draft was revised following discussions between the parties. The Agreement dated December 1, 2007, appears to have been signed in January 2008.

[8] The Agreement provides in part:

2. Studios wants to acquire a freehold interest in all or part of the Hearn. Studios also wishes to sell and lease portions of the Hearn to public and private corporations or entities.

3. Studios has designated Suntower as the Managing Partner of the Development to make all arrangements and finalize all transactions subject to Studios' prior written approval. Suntower will coordinate the consultants and professionals to arrange for the acquisition of the Hearn and the subsequent sales and leases. Suntower's responsibilities are generally shown on Schedule "A" and the program is called " the Development".

4. Studios is responsible for 100% of the funding required. Studios will make all payments for all costs incurred. Suntower shall not incur any costs without prior written approval. All financing shall be arranged by Studios on a non-recourse basis to Suntower.

5. In return for Suntower's non-financial contributions, Studios agrees to divide the Distributable Cash Flow of the Development with Suntower as follows:

Studios 89% (Eighty-nine per cent) Suntower 11 % (Eleven per cent)

[9] Under the Agreement, Studios is required to perform a separate accounting to determine Distributable Cash Flow which is defined to mean the amount by which Gross Receipts of the Development exceeds the Gross Expenditures of the Development. Gross Receipts is a defined term in the Agreement and includes certain rental income and net proceeds from any sale. Gross Expenditures is also defined in the Agreement and includes payments made in connection with the Development and costs related to any lease or sale. The Agreement provides that Suntower is entitled to access to financial records and other documents.

[10] In his affidavit on this motion, Mr. Kauffman describes some of the work that he performed, through Suntower, to further the development of the Property and deposes that he has not been paid for this work. Mr. Kauffman was not cross-examined and his evidence on this point is unchallenged.

[11] Studios purchased the Property from OPG on November 22, 2018, for approximately $16 million. Suntower did not contribute anything to the purchase price.

[12] Mr. Kauffman’s evidence is that following the sale, he continued to provide advice and information to Studios regarding the Property.

[13] Following a meeting with Mr. Kauffman on June 4, 2021, Studios wrote to Suntower by letter dated June 22, 2021, stating in part:

You recently contacted us concerning a purported Agreement dated December 1, 2007 in which Suntower Developers Limited (“Suntower”) claims to have an interest in the Hearn.

We are unable to locate an original of the purported Agreement. The version you provided does not reflect our recollection of the Agreement and contains additions that were not authorized. If you have an original of the Agreement duly executed by both parties, could you please provide access to it.

Regardless, the purported Agreement has expired and/or is moot. The pre-conditions for any interest of Suntower in the Hearn has expired and /or have not been met.

[14] The defendants do not now dispute the authenticity of the Agreement. Rather, they take the position that the plaintiff has no entitlement to any financial compensation under the Agreement.

[15] The plaintiff issued the statement of claim on November 5, 2021, and served its motion for leave to register a CPL in November 2021.

[16] In its statement of claim, Suntower claims, inter alia: a) a constructive trust over an 11% interest in the Property; b) an order granting leave to register a CPL over the Property; c) an injunction prohibiting the conveyance of the Property; d) an accounting; e) a tracing order; f) in the alternative, a sum to be determined for breach of fiduciary duty, breach of contract, fraudulent misrepresentation, deceit, quantum meruit and unjust enrichment; and, g) punitive, aggravated and exemplary damages.

[17] Suntower pleads that the Agreement included the provision that in return for its non-financial contributions, Studios agreed to divide the “Distributable Cash Flow”, with 89% to Studios and 11% to Suntower. It alleges that Studios had a contractual duty to “abide by the allocation of an 11% interest in the Distributable Cash Flow from the development of the Hearn to Suntower”. Suntower alleges that Studios has breached its fiduciary and/or contractual duties by, inter alia, denying the Agreement exists, claiming that the Agreement is moot or that pre-conditions for any interest of Suntower in the Property have not been met, and denying that Suntower is owed 11% of any Distributable Cash Flow from the development of the Property.

[18] The statement of claim pleads that Suntower and Studios were in a partnership, which pre-dated but was reflected in the Agreement. Alternatively, the plaintiff submits that Suntower and Studios were in a joint venture. Suntower alleges that as a result of the partnership or joint venture, that Studios owed fiduciary duties to Suntower in addition to its contractual duties.

[19] Under the heading “Remedies”, Suntower pleads:

60. Studios’ freehold interest in the Hearn was obtained as a result of the efforts of Suntower in developing the Hearn and assistance in negotiating the purchase of the Hearn by Studios. Furthermore, Studios has engaged in various forms of wrongful conduct. As a result, Suntower is entitled to a declaration that the freehold interest of Studios in the Hearn is impressed with a constructive trust over an 11% interest in the Hearn for the benefit of Suntower.

[20] Suntower also makes an alternative claim for damages “equivalent to 11% of any and all Distributable Cash Flow in connection with the development or transfer of the Hearn, including 11% of any and all Distributable Cash Flow in connection with the development or transfer of the Hearn on an ongoing basis, pursuant to the Agreement.”

Applicable Law and Analysis

Test for a CPL

[21] Section 103 of the Courts of Justice Act authorizes the registration of a CPL when “an interest in land is in question.”

[22] The test for a CPL is well known. Master Glustein (as he then was) summarized the applicable principles in Perruzza v. Spatone, 2010 ONSC 841, at para. 20 as follows:

(i) The test on a motion for leave to issue a CPL made on notice to the defendants is the same as the test on a motion to discharge a CPL (Homebuilder Inc. v. Man-Sonic Industries Inc., at para. 1 ("Homebuilder") at para. 1 );

(ii) The threshold in respect of the "interest in land" issue in a motion respecting a CPL (as that factor is set out at section 103(6) of the Courts of Justice Act, R.S.O. 1990, c. C.43) is whether there is a triable issue as to such interest, not whether the plaintiff will likely succeed (1152939 Ontario Ltd. v. 2055835 Ontario Ltd., 2007 CarswellOnt 756 (S.C.J.), as per van Rensburg J., citing Transmaris Farms Ltd. v. Sieber, [1999] O.J. No. 300 (Gen. Div. - Comm. List) at para. 62);

(iii) The onus is on the party opposing the CPL to demonstrate that there is no triable issue in respect to whether the party seeking the CPL has "a reasonable claim to the interest in the land claimed" (G.P.I. Greenfield Pioneer Inc. v. Moore, at para. 20);

(iv) Factors the court can consider on a motion to discharge a CPL include (i) whether the plaintiff is a shell corporation, (ii) whether the land is unique, (iii) the intent of the parties in acquiring the land, (iv) whether there is an alternative claim for damages, (v) the ease or difficulty in calculating damages, (vi) whether damages would be a satisfactory remedy, (vii) the presence or absence of a willing purchaser, and (viii) the harm to each party if the CPL is or is not removed with or without security (572383 Ontario Inc. v. Dhunna, 1987 CarswellOnt 551 (S.C. - Mast.) at paras. 10-18); and,

(v) The governing test is that the court must exercise its discretion in equity and look at all relevant matters between the parties in determining whether a CPL should be granted or vacated (931473 Ontario Ltd. v. Coldwell Banker Canada Inc., 1991 CarswellOnt 460 (Gen. Div.); Clock Investments Ltd. v. Hardwood Estates Ltd., at para. 9).

Does the plaintiff have a triable claim to an interest in land?

[23] As noted above, it is the party opposing the CPL that has the onus of demonstrating that there is no triable interest in land.

[24] In RJM56 Holdings Inc. v. Treemart Farms Inc., 2021 ONSC 4422, at para. 13, Master McGraw (as his title then was) explained:

It is not the court’s role to determine whether the plaintiff’s claim will likely succeed at trial (HarbourEdge Mortgage Investment Corp. v. Timbercreek Mortgage Investment Corp. (Trustee of), [2016] O.J. No. 265 at para. 56; Sun Rise at para. 10). In determining if there is a triable issue, the evidentiary bar is low and the court is not to assess credibility or decide disputed issues of fact (Huntjens v. Obradovic, 2019 ONSC 4343; Sunrise at para. 10; Saggi at paras. 45 and 62; Bains v. Katri, 2019 ONSC 1401 at para. 36). Rather, the court must examine the whole of the evidence and, without deciding disputed issues of fact and credibility, consider whether the plaintiff’s case constitutes a reasonable claim to the interest in land claimed in the action (Huntjens at para. 21; Boal at para. 64).

No triable issue that Suntower is entitled to a constructive trust for unjust enrichment

[25] Suntower submits that it has a reasonable claim for a constructive trust on the basis of unjust enrichment. To prove an unjust enrichment, the plaintiff must prove: (1) an enrichment; (2) a corresponding deprivation; and (3) the absence of a juristic reason for the enrichment. Sorochan v. Sorochan, [1986] 2 SCR 38 at para 11. A contract is a juristic reason. Moore v. Sweet, 2018 SCC 52 at para 57; Brouilette Building Supplies v. 1662877 Ontario Inc., 2009 O.J. No. 92 (SCJ).

[26] Constructive trust is available as a remedy for an unjust enrichment where: (1) monetary compensation is inadequate; and (2) there is a link between the contribution that founds the action and the property in which the constructive trust is claimed. Peter v. Beblow, [1993] 1 SCR 980 at para 3.

[27] A constructive trust as a remedy for unjust enrichment may be an interest in land for the purposes of a CPL. 1861067 Ontario Inc. v. Sang, 2021 ONSC 7226 at para 55; Avan v. Benarroch, 2017 ONSC 4729 (Master) at para 26. As Justice DiTomaso held in HarbourEdge Mortgage Investment Corp. v. Community Trust Co., 2016 ONSC 448 at para 45:

45 The threshold in respect of the "interest in land" issue on a motion respecting a CPL is whether there is triable issue to such interest (whether a reasonable claim to such interest has been raised); not whether the plaintiff will likely succeed ultimately at trial. It is enough to establish that a constructive trust is a possible remedy at trial based upon the evidentiary record on the motion for a CPL. Moreover the court does not "assess the credibility of deponents or decide disputed issues of fact" at the juncture of an interlocutory motion for a CPL, or on a motion to discharge the CPL.

[28] The defendants contend that the claim for unjust enrichment is doomed to fail because the Agreement is the juristic reason for an alleged enrichment.

[29] The evidence submitted by the plaintiff on this motion is that the work that it performed was pursuant to the Agreement. In an email of June 4, 2021, to the defendants’ representatives, Mr. Kauffman attaches the Agreement stating, “I am attaching the agreement under which I have been working since 2007.” In a further email of June 25, 2021, Mr. Kauffman said: “All of my actions since 2007 have been in accordance with this Agreement.” In its reply factum, the plaintiff states that all of its work was performed pursuant to the Agreement. Thus there is no allegation that Suntower provided benefits to Studios outside the scope of the Agreement in respect of which an unjust enrichment claim could arise.

[30] The defendants rely on Brouilette Building Supplies v. 1662877 Ontario Inc., 2009 O.J. No. 92 (SCJ), a case in which the plaintiff who had supplied labour and building materials under a contract to the defendant property owner claimed a constructive trust over the property and sought a CPL. The plaintiff had failed to exercise any rights under the Construction Lien Act. The court held that the contract was a juristic reason preventing the plaintiff from recovering in an action for unjust enrichment.

[31] Suntower submits that Brouilette is distinguishable, in that unlike the plaintiff in that case, Suntower does not seek a specific sum for unpaid materials and labour, rather the Agreement entitles Suntower not only to 11% of the Distributable Cash Flow, but also the ability to affect the amount in its role as the “Managing Partner of the Development.”

[32] This distinction is not relevant. Suntower’s claim for compensation is pursuant to the contract. The fact that it has the ability to increase the amount of its entitlement by doing a good job is immaterial to that central fact.

[33] Suntower also submits that a contract does not amount to a juristic reason when “the enrichment was in clear breach of the agreement.” Relying on Robertson v. Fieldstone Homes Ltd.. However, if there was any enrichment of Studios by the work that Mr. Kauffman performed over the years on behalf of Suntower, it was because of the work that Suntower was engaging in pursuant to the Agreement, not in breach of it.

[34] Given the plaintiff’s own evidence that all of its work was pursuant to the Agreement, the plaintiff’s claim in unjust enrichment is doomed to fail.

[35] The defendants also submit that even if Suntower had a reasonable claim for unjust enrichment, it does not meet the requirements to obtain a constructive trust remedy because monetary compensation would be adequate and Suntower has no reasonable expectation in receiving an interest in the Property.

[36] The parties to the Agreement considered the value of Suntower’s services and agreed that it would be paid 11% of the Distributable Cash Flow, not that it would be entitled an 11% interest in the Property.

[37] In determining whether a constructive trust remedy is appropriate (as opposed to money damages), the court will consider whether the claimant reasonably expected to receive an actual interest in the property, and whether the respondent knew or reasonably ought to have known of that expectation. Sorochan v. Sorochan, [1986] 2 SCR 38 at para 33; Gulamani v. Dewji at para 12; G.R.ACE Financial v. Terrelonge at para 19.

[38] In Gulamani v. Dewji at para 14, Justice Swinton granted leave to appeal a decision granting a CPL finding that she had good reason to doubt the correctness of the motion judge’s conclusion that there was a triable issue with respect to the applicant’s interest in the property. In that decision she held:

In this case, the applicants had a contractual arrangement with the respondents for the payment of an incentive bonus. Their claim is rooted in that contract, and it must be considered in relation to the constructive trust claim. While the applicants may have conferred a benefit on the respondents by giving their services and improving the value of the hotels, there is some question as to whether there was a corresponding deprivation, given that they were paid for their services. More importantly, even if there was a deprivation because of the level of compensation paid, there was a juristic reason for the benefit - namely, the terms of the contract. In the circumstances, there is no evidence that they could have a reasonable expectation to acquire an interest in the hotel properties because of their work, given that the contract entitles them to payment of a sum of money.

[39] The Divisional Court allowed the appeal and ordered that the CPL be vacated stating in part: Dewji v. Gulamani at para 6:

In addition, an equitable cause of action must be demonstrated to support the granting of an equitable remedy such as a remedial constructive trust. Here, counsel for the Respondents (Plaintiffs) conceded that his claim for a remedial constructive trust is intended to give effect to remedies for breach of the contract.

[40] The plaintiff relies on 1861067 Ontario Inc. v. Sang, 2021 ONSC 7226, where Justice Perell found that the plaintiff had a “genuinely arguable claim for a constructive trust” in the circumstances of the case before him. In that case a project manager and owner entered into an agreement whereby the project manager would be paid a percentage of the total cost of the project.

[41] However, 1861067 Ontario Inc. v. Sang is distinguishable in that the claimant in that case advanced funds towards the construction project despite it having no contractual or other legal obligation to do so. In the case at bar, Suntower’s position and evidence is that its contributions to the Property were pursuant to its legal obligations under the Agreement, not that it made extra-contractual contributions. In addition, nowhere in the decision does Justice Perell suggest that the claimant’s reasonable expectations should be disregarded.

[42] Suntower argues that where the property is unique and difficult to value, as in this case, damages are not an adequate remedy. However, even if the Property is difficult to value, monetary damages can be calculated as there is a formula for the calculation of Suntower’s entitlement in the Agreement. The damages are tied to a percentage of profits, not an unrealized value of the land.

[43] Based on the record before me, for the purposes of this motion, I find that there is no triable interest with respect to the plaintiff’s claim to a constructive trust as a remedy for unjust enrichment. In this case, the Agreement is clear that Suntower was not to obtain a proprietary interest in the Property and the plaintiff did not lead any evidence that it had an expectation of a proprietary interest.

No triable issue that Suntower is entitled to a constructive trust for alleged wrongful conduct

[44] In Soulos v. Korkontzilas, [1997] 2 SCR 217 at para 45 the Supreme Court held that a constructive trust may be imposed as an equitable remedy for wrongful conduct. It identified four conditions for imposing a constructive trust remedy:

(1) The defendant must have been under an equitable obligation, that is, an obligation of the type that courts of equity have enforced, in relation to the activities giving rise to the assets in his hands;

(2) The assets in the hands of the defendant must be shown to have resulted from deemed or actual agency activities of the defendant in breach of his equitable obligation to the plaintiff;

(3) The plaintiff must show a legitimate reason for seeking a proprietary remedy, either personal or related to the need to ensure that others like the defendant remain faithful to their duties; and,

(4) There must be no factors which would render imposition of a constructive trust unjust in all the circumstances of the case.

[45] The plaintiff claims that it has raised a triable issue with respect to all four prongs of the test. The defendants contend that the plaintiff cannot establish a triable issue with respect to any aspect of the test.

[46] For the purposes of my analysis, I need only consider the second part of the test. On the record before me, it is clear that the plaintiff will not be able to establish that the assets in the hands of the defendants (the Property) have been shown to have resulted from the deemed or actual agency activities of the defendants in breach of their obligations to the plaintiff. Studios’ ownership of the Property did not result from any breach of its obligations. Studios already held a long term lease of the Property prior to the Agreement. The Agreement contemplated that Studios would acquire the freehold in the Property. The plaintiff does not suggest that there was anything improper in Studios’ purchase of the Property from OPG. Mr. Kauffman, in his affidavit, describes finding out about the sale of the Property to Studios in November 2018. He did not take issue with Studios’ acquisition of the Property. It was not until spring 2021 that a dispute manifested, when, according to Mr. Kauffman, one of the representatives of Studios denied the Agreement at a meeting, more than two years after Studios’ acquisition of the Property. In response, Mr. Kauffman then provided a copy of the Agreement and took the position that it was binding. The wrongful conduct asserted by the plaintiff took place in 2021, years after the defendants acquired the freehold of the Property.

[47] I conclude that the plaintiff has no reasonable claim to a constructive trust for alleged wrongful conduct.

[48] For the purposes of this motion, based on the record before me, I find that Studios has met its burden of demonstrating that there is no triable issue as to whether Suntower has a reasonable claim to an interest in land.

Consideration of the Equities

[49] In the event that I am wrong in my conclusion on whether there is a triable issue, I will consider the equities, including what are commonly called the Dhunna factors. These factors are not intended to be exhaustive nor is any one determinative. Rather, the court must exercise its discretion in equity and look at all relevant matters between the parties.

Whether the plaintiff is a shell corporation

[50] There is no allegation that plaintiff is a shell corporation. This factor weighs in favour of a CPL.

Whether land is unique

[51] Whether the property is unique is not a factor where the plaintiff is seeking a constructive trust rather than specific performance. 1861067 Ontario Inc. v. Sang, 2021 ONSC 7226, at para. 65.

[52] The intention of Studios in acquiring the land was to develop or sell it. The plaintiff entered into the Agreement with the intention of receiving monetary compensation. There was never any intention for Suntower to acquire an interest in the Property. This factor weighs against a CPL.

Whether there is an alternative claim for damages

[53] The plaintiff has an alternative claim in damages. This is a factor against a CPL.

The ease or difficulty of calculating damages

[54] Damages will be relatively easy to calculate as there is a formula in the Agreement for determining Suntower’s monetary compensation, i.e., 11% of Distributable Cash Flow, as that term is defined. This factor militates against granting the CPL.

Whether damages are a satisfactory remedy

[55] In my view, damages would be a satisfactory remedy. In its factum, the plaintiff says that damages are inadequate and difficult to calculate. It then goes on to say: “The appropriate remedy here is a constructive trust, given the Defendants’ wrongful conduct as this would ensure that Suntower receives the benefit it bargained for in the Agreement.” The benefit that the plaintiff bargained for is a percentage of cash flow, i.e. a monetary sum, not an interest the Property. This factor weights heavily against the granting of a CPL.

The presence or absence of a willing purchaser

[56] There is no evidence of the presence or absence of a willing purchaser and therefore this is not a factor in the case at bar.

The harm to each party

[57] The plaintiff submits that there is no evidence that granting a CPL would harm either party. The plaintiff states that the defendants have represented through counsel that they have no plans to sell, transfer, or encumber the Property until the case is determined. However, in their letter to the court dated February 11, 2022, filed in respect of a case conference, counsel for the defendants stated that Studios has “no current intention to sell the Hearn.” (emphasis added). Even if the defendants do not have any current intention to the sell the Property, they may wish to do so in the future and the Agreement specifically contemplates a sale of the Property. It is well known that a CPL acts a cloud on title and deters purchasers and mortgagees from dealing with the land in question. 4241258 Canada Inc. (c.o.b. Laurin Group) v. Diamond Jubilee Hospitality Inc., 2022 ONSC 567 (Associate Judge) at para 29. However, given that the defendants have no current intent to sell, this factor weighs less heavily than if there was evidence that the defendants were actively looking to sell the Property at this time.

[58] The equities favour the defendants, even without consideration of the merits of the plaintiff’s claim.

The strength of the plaintiff’s claim

[59] In determining whether or not it is just that a CPL should be granted, the court can consider the strength of the plaintiff’s case. Avan v. Benarroch, 2017 ONSC 4729 (Master) at para 18. Even if I am wrong in my assessment that there is no triable issue, the plaintiff faces an uphill battle on its constructive trust claim on the record before me, given the terms of the Agreement that it says is binding and given that the plaintiff says that all of its work was done pursuant to the Agreement. The Agreement provides for monetary compensation, not an interest in land. Even if the plaintiff is successful in establishing unjust enrichment, it is hard to see why a proprietary remedy would be appropriate given the terms of the Agreement and the expectations of the parties.

[60] Similarly, the plaintiff’s claim for a constructive trust remedy on the basis of alleged wrongful conduct is, at best, very weak. Aside from the second factor referred to above, it seems doubtful that the plaintiff can establish a legitimate reason for seeking a proprietary remedy. The plaintiff says that damages are insufficient given the uniqueness of the property. However, I have already rejected this argument above. In oral argument, Mr. Parley stated that the alleged misconduct is the disavowal of the Agreement at a meeting on June 4, 2021, and the letter of June 22, 2021, stating that the Agreement was expired or moot and the pre-conditions have not been met. This is allegedly wrongful because of the work done by Suntower pursuant to the Agreement. However, it is not at all unusual for parties to take the position that there is no contract, or if there is a contract, disagreement as to its interpretation. If this happens, litigation may ensue and the party who is found to be in the wrong is expected to pay the winner’s court costs. It seems unlikely that a court would impose a proprietary remedy to act as a deterrent to other defendants as a sanction for wrongfully taking a position about the validity of a contract or its terms.

[61] Considering the merits of the case, the scale is tilted even more heavily against a CPL.

Conclusion on the equities

[62] Having considered and balanced the equities, I have concluded that it is just and equitable refuse the plaintiff’s motion for a CPL.

Disposition

[63] The plaintiff’s motion is dismissed.

[64] The parties are encouraged to agree to costs. The parties filed costs outlines prior to the hearing and made submissions on costs at the hearing. However, it became clear during costs submissions that there were privileged settlement communications that may impact costs. For that reason, I invite the parties to make written submissions on costs if they cannot agree on the costs of the motion.

[65] The parties may each file written costs submissions not to exceed three pages (double-spaced) exclusive of attachments. The defendants shall deliver their costs submissions by May 23, 2023. The plaintiff shall deliver its costs submissions by June 7, 2023.

L. La Horey, A.J. Date: May 2, 2023