Court File and Parties

COURT FILE NO.: CV-18-607668-00CL DATE: 2023-01-18 SUPERIOR COURT OF JUSTICE – ONTARIO (COMMERCIAL LIST)

RE: WEB OBJECTIVE INC. AND CÉLINE TACNIÈRE, PLAINTIFFS AND GUESTLOGIX INC., BRETT PROUD AND PATRICK LEUNG, DEFENDANTS

BEFORE: Osborne J.

COUNSEL: Albert Pelletier and Andrew Morganti, for the Plaintiffs Kevin O’Brien and Simon Cameron, for the Defendants

HEARD: October 26, 2022

Endorsement

[1] The Plaintiffs on the one hand, and the Defendant GuestLogix Inc. (“GuestLogix”) on the other hand, each move for relief relating to what are alleged to be production deficiencies on the part of the other.

[2] The Plaintiffs, in their Amended Notice of Motion, seek an order striking the defence of GuestLogix for failure to serve a proper Affidavit of Documents and an order requiring the Registrar to note GuestLogix in default, or in the alternative an order compelling GuestLogix to produce a further and better Affidavit of Documents and in particular an affidavit that has been properly sworn by a representative of the corporation.

[3] The Defendant GuestLogix, by Amended Notice of Cross-Motion, seeks an order directing each of the Plaintiffs Web Objective Inc. (“Web Objective”) and Céline Tacnière (“Tacnière”) to deliver a further and better Affidavit of Documents specifically including all relevant documents in their power, possession or control for the period between November, 2013 and November, 2015 inclusive, together with documents related to the Plaintiffs’ level of trading knowledge and sophistication as investors. GuestLogix also seeks, if necessary, an order pursuant to Rule 2.03 of the Rules of Civil Procedure dispensing with the requirement that GuestLogix deliver a signed Affidavit of Documents.

Background and Context

[4] Some context for these motions is in order. GuestLogix is an OBCA company in the business of providing onboard retail and payment technology particularly for the airline and travel sectors. Its common shares traded on the TSX until February 2016, at which time it entered creditor protection pursuant to the CCAA (Companies’ Creditors Arrangement Act, R.S.C. 1985, c. C-36).

[5] That filing for creditor protection was a response to the issuance of a statement of claim by Morganti & Co. as class counsel on behalf of a class of shareholders pursuant to the Class Proceedings Act, 1992 one month earlier on January 25, 2016, alleging secondary market misrepresentations against GuestLogix.

[6] On July 13, 2016, Justice Morawetz (now Chief Justice) issued an order in his capacity as Supervising CCAA Judge approving the sale of the assets of GuestLogix to new owners. The purchasers had no relationship with the former GuestLogix.

[7] Approximately two months later, this Court approved a plan of compromise in the CCAA proceeding pursuant to which claims against GuestLogix, except for certain unaffected claims, were released. Those unaffected claims included what were defined as “Insured Claims”, which included the claims now advanced in this action.

[8] Pursuant to the plan of compromise approved by the Court, recovery on Insured Claims was limited to the proceeds of the applicable insurance policies held by GuestLogix prior to the CCAA proceeding.

[9] This action was commenced on October 26, 2018, and a Fresh as Amended Statement of Claim was issued on June 18, 2019.

[10] In June, 2020, the proposed class proceeding referred to above was settled and the settlement received Court approval. There were, however, opt outs.

[11] The Plaintiffs in this action are former shareholders of GuestLogix. The principal of the plaintiff, Web Objective, Mr. Tom Douramakos, was the CEO of GuestLogix until October, 2012 and was an independent director of GuestLogix until April, 2015. At that time, Web Objective owned approximately 9 million shares in GuestLogix.

[12] At approximately the same time, the plaintiff Tacnière owned approximately 20,000 shares.

[13] Douramakos and Tacnière opted out of the class action settlement on the basis that they were sophisticated investors capable of making decisions concerning their investments.

[14] Counsel for the Plaintiffs in the present action is the same counsel who commenced the proposed class proceeding on behalf of the class. When the class proceeding settled and the present Plaintiffs opted out, counsel resigned as counsel for the class and was retained by the present Plaintiffs.

[15] The (now former) individual Defendants, the former CEO and director Mr. Brett Proud, and the former CFO, Mr. Patrick Leung, both of whom were in office during much of the period relevant to the allegations in the claim, were let out of this action in June, 2020 on consent and on a without costs basis, such that GuestLogix is the only remaining Defendant.

[16] Essentially, the Plaintiffs allege in this action that GuestLogix released to the market certain statements that contained misrepresentations in that the statements concealed material risks associated with investing in, or retaining, securities of the company. The statements at issue were released on SEDAR on June 8, August 12 and September 16, 2015 respectively (collectively, the “Alleged Misrepresentations”).

[17] Specifically, the Plaintiffs allege that GuestLogix failed to disclose all material facts related to loan agreements with Comerica Bank (“Comerica”), and Vistara and Beedie Capital Partners (“Vistara”), for credit facilities. GuestLogix entered into the Comerica loan agreement on December 23, 2013, and entered into the Vistara loan agreement on May 25, 2015.

[18] On June 8, 2015, GuestLogix released a statement about the Vistara loan but disclosed only the identification of the parties, the amount of the loan, the interest rate and the fact that it was conveying equity to the lenders. The Plaintiffs allege misrepresentation by omission of material facts including that there was a minimum EBITDA requirement.

[19] On August 12, 2015, GuestLogix released its Q2 2015 financial statements for the period ending June 30, 2015. The Plaintiffs allege that the statements contained further misrepresentations by omission in respect of the EBITDA requirement in the Vistara loan described above, and an EBITDA requirement in the amended Comerica loan made on or about June 22, 2015, among others.

[20] On September 16, 2015, GuestLogix issued what the Plaintiffs describe as a partial public correction in the form of a press release and corresponding Material Change Report (“MCR”) announcing the departure from the company of Mr. Brett Proud, its former CEO. The Plaintiffs allege that the MCR omitted material facts as to why Mr. Proud left the company and also omit relevant facts concerning his conduct specifically with respect to the Vistara and Comerica loans, with the result that the market speculated on the uncertainty of those circumstances and about the prior disclosures, and the share price dropped.

[21] The position of the Plaintiffs is that they relied on the Alleged Misrepresentations to retain their shares and suffered damages in excess of $4 million as a result. The Plaintiffs allege that they were sophisticated investors and would have liquidated their shares if the material facts had been disclosed.

[22] Since the close of pleadings, the parties have been battling about the scope of required production.

[23] The parties exchanged unsworn affidavits of documents of Web Objective and GuestLogix respectively, on November 3, 2020. The Plaintiffs did not insist on a sworn affidavit from GuestLogix at that time.

[24] As is not unusual in practice, both affidavits included “boilerplate” Schedule “B” language, identifying the categories of privilege applicable to documents in their possession, control or power, but not identifying individually all documents over which privilege was claimed, or the specific basis for the claim of privilege relevant to each document.

[25] Some nine months later, on August 10, 2021, the Plaintiffs requested that GuestLogix deliver a detailed Schedule “B”, and that request was complied with.

[26] Much correspondence and conflict between the parties ensued thereafter.

The Motions

Motion of the Plaintiffs

[27] The Plaintiffs seek in their Amended Notice of Motion an order striking the Statement of Defence of GuestLogix or in the alternative, an order compelling GuestLogix to produce a further and better Affidavit of Documents including a sworn affidavit and properly particularized Schedules “A”, “B” and “C”.

[28] At the hearing of these motions, the Plaintiffs argued that there were five main deficiencies, or categories of deficiencies, with respect to the affidavit and productions of the Defendants.

[29] The first of those five deficiencies revolves around the fact that the Affidavit of Documents of GuestLogix was, as originally delivered, unsworn, and is now sworn, albeit by a representative of the D&O insurer only. As that is separate and distinct from the other categories of alleged deficiency, and is also the subject of the cross motion by the Defendants, it will be dealt with separately below in this Endorsement.

[30] With respect to the other four categories, the Plaintiffs take the position that GuestLogix has failed to satisfy its obligations of production as follows:

(a) GuestLogix has failed to produce documents relating the resignation of its former CEO, Brett Proud;

(b) GuestLogix has failed to identify, or identify with sufficient particularity, the sender/recipient for the documents listed on Schedule “X” to the Reply Factum;

(c) GuestLogix has failed to identify, or identify with sufficient particularity, the solicitor for the documents listed on Schedule “Y” to the Reply Factum over which solicitor-client privilege is claimed, such that the solicitor should be identified, or if there is no solicitor, the documents should be produced; and

(d) GuestLogix has improperly claimed solicitor-client privilege over documents listed on Schedule “Z” to the Reply Factum, which documents identify third parties in the communications, such that the claim of privilege is improper, and the documents should be produced.

The GuestLogix Affidavit of Documents – Informed Deponent

[31] As noted above, the Affidavit of Documents originally delivered on behalf of GuestLogix was unsworn and unaffirmed.

[32] The dispute essentially arises from the chronology described above, and the fact that GuestLogix was sold as part of the CCAA process, with the result that there is no individual at the company today who has any history with the company or any knowledge of the facts at issue in the action since the purchase and sale was well subsequent to the relevant period for production of documents in this action.

[33] As a result, the record is clear that counsel for GuestLogix repeatedly advised the Plaintiffs that there was no suitable individual who was in a position to swear to the truth of the statements contained in the affidavit (including but not limited to the accuracy of the Schedules).

[34] GuestLogix originally took the position that it ought to be relieved of any obligation to deliver a signed affidavit for three principal reasons:

(a) given the sale of the Company pursuant to the CCAA sales process to new and unrelated purchasers, there is no suitable affiant and there is no individual with any knowledge of this matter still with the company;

(b) the action proceeded for more than 18 months before the request of the Plaintiffs for a signed affidavit during which period there was no complaint or even request from the Plaintiffs for a sworn affidavit; and

(c) in any event, the Plaintiffs have received fulsome productions and would suffer no prejudice by the failure (due to inability) of GuestLogix to deliver a sworn affidavit.

[35] In an attempt to address the concerns expressed by counsel for the Plaintiffs, GuestLogix delivered on September 2, 2022 a further revised unsworn affidavit including additional productions, then followed by a properly affirmed affidavit under cover of correspondence, filed as part of the record on these motions, explaining what was being provided, and why.

[36] The deponent of the affidavit affirmed on October 3, 2022 was Ms. Madeleine Dinnissen, Vice President of Chubb Insurance, the insurer with carriage of this litigation on behalf of GuestLogix as a result of the carveout of Insured Claims from the other claims released in the CCAA Plan of Arrangement and Sanction Order. It is accompanied by the required Lawyer’s Certificate, in the proper form.

[37] Schedules “A”, “B” and “C” relate to the categories of documents produced (“A”), or over which privilege is claimed (“B” and “C”), and are discussed below.

[38] In her affidavit, Ms. Dinnissen described her position at Chubb, and goes on to state the following:

1. I am Vice President, Claim Leader, Financial Lines at Chubb Insurance Company of Canada (“Chubb”). Chubb issued a directors and officers liability insurance policy (the “Policy”) to the defendant, GuestLogix Inc. (“GuestLogix”).

2. I am advised by Osler, Hoskin & Harcourt LLP (“Osler”), counsel for GuestLogix in this matter, that: (a) On February 9, 2016, GuestLogix commenced an application and obtained an initial order under the Companies’ Creditors Arrangement Act, R.S.C. 1985, c. C-36 (“CCAA”). (b) On July 13, 2016, Justice Morawetz of the Ontario Superior Court of Justice (Commercial List) issued an order approving the sale of GuestLogix to a group of purchasers having no relation to the former management of GuestLogix. (c) On September 12, 2016, Justice Morawetz issued an order sanctioning GuestLogix’s plan under the (the “Sanctions Order”). Pursuant to s. 6.2 of the Sanctions Order, the plaintiffs’ potential recovery in this action has been irrevocably limited to the amounts available under the Policy.

3. I am further advised by Osler, counsel for GuestLogix, and believe that their view is that there is no more suitable affiant able to swear this Affidavit of Documents.

4. Listed in Schedule A are those documents that Osler advises were in the possession, control, or power of GuestLogix, were collected and identified as relevant by Osler, and which GuestLogix does not object to producing for inspection relating to the plaintiffs’ Claim.

5. Listed in Schedule B are those documents that Osler advises are privileged and the grounds for each such claim.

6. I swear this affidavit for the sole purpose of addressing the defendant’s obligation under Rule 30.03 of the Rules of Civil Procedure to serve a sworn Affidavit of Documents. Nothing in this affidavit is intended to constitute waiver of any privilege as between Osler, GuestLogix and Chubb, and all rights to assert and any such privilege is hereby reserved.

[39] The correspondence from counsel for the Defendant dated September 2, 2022 under cover of which the revised Affidavit of Documents was delivered (see Supplementary Motion Record of GuestLogix) states, as counsel had previously advised counsel for the Plaintiffs, that “there is no more suitable affiant to swear GuestLogix’s Affidavit of Documents in this matter.” The letter is clear on its face as to the intention of GuestLogix to rely on both the letter and the sworn Affidavit of Documents on this motion.

[40] The Plaintiffs take the position that even this sworn affidavit still fails to satisfy the requirements under the Rules since it is circular in that, as is clear from the excerpted language above, it is based on advice from counsel since the affiant herself has no direct knowledge, and since there is no more suitable an affiant.

[41] The Plaintiffs argue in their Reply Factum, and argued at the hearing of this motion, that since there is no individual with any more or better knowledge of the facts, the affirmation that all relevant documents have been produced “cannot actually be affirmed as true” and instead represents continued stonewalling by GuestLogix of the Plaintiffs and “not putting forward any representative with knowledge”. It follows that there will be no better informed witness for the Defendant on examination for discovery. As a result, the Plaintiffs maintain, the Statement of Defence should be struck.

[42] GuestLogix accepts that an unsworn or un-affirmed Affidavit of Documents would not be sufficient, which is why it delivered the properly affirmed affidavit as it did, on September 2, 2022. Had it not done so, I would have ordered the delivery of a properly sworn or affirmed affidavit.

[43] But beyond that, GuestLogix submits that it has made all reasonable and appropriate efforts in the circumstances, given the court-approved sale of the company to a third party purchaser and the (uncontested) fact that there is no better informed or more appropriate individual available to sign the affidavit.

[44] I agree, particularly in the circumstances in which this action is prosecuted. This is not a case where there is any evidence in the record before me to suggest that there is in fact a more appropriate witness to swear the affidavit but that he or she is being sheltered by the Defendant and a less informed individual has intentionally been put forward to thwart or delay the discovery process.

[45] This Court issued a transaction approval and vesting order in the CCAA proceeding on July 13, 2016 (Responding Motion Record, Ex. “B” to the affidavit of Ms. Scelsa, sworn August 12, 2022). That order approved the purchase and sale transaction for GuestLogix and authorized and directed the company to perform its obligations and take all steps necessary to complete the transaction including the development of a Plan of Compromise or Arrangement to implement the transaction.

[46] The Court in the CCAA proceeding issued the Plan Sanction Order on September 12, 2016, pursuant to which the Plan of Compromise and Arrangement dated July 29, 2016, as amended in accordance with the terms thereof, was sanctioned and approved. The Plan itself is attached to that order as Schedule “A”.

[47] Pursuant to Article 6.2 of the Plan, Insured Claims (of which the present action is one), are carved out and not released, but “any Person having an Insured Claim shall be irrevocably limited to recovery in respect of such Insured Claim solely from the proceeds of the applicable Insurance Policies, and Persons with an Insured Claim shall have no right to, and shall not, directly or indirectly, seek any recoveries in respect thereof from the Company, any Director or Officer or any other Released Party, other than enforcing such Person’s rights to be paid by the applicable insurer(s).”

[48] That sanction order was appealed, unsuccessfully. Accordingly, it is final.

[49] The CCAA proceeding was concluded in 2016. After all of that, as described above, the present Plaintiffs opted out of the class action settlement and have subsequently continued with this action.

[50] As is clear in the record, counsel for the Defendant advised at least as early as October 21, 2020 that the Affidavit of Documents would be unsworn “because, as you are aware, none of the individuals involved in this matter are still with the company and the company has since been sold. We trust this won’t be an issue but we can discuss further if necessary.” (Electronic mail correspondence between counsel, Caselines B-1-96).

[51] Subsequently, counsel for the parties had various exchanges about the scope of production, including but not limited to productions relating to the departure of Mr. Proud.

[52] Indeed, no issue or objection was taken to the fact that the Affidavit of Documents was unsworn for almost two years until June, 2022.

[53] The Motion Record of the Plaintiffs originally delivered on December 17, 2021 sought relief on the basis that the productions of GuestLogix were insufficient, but did not rely upon or indeed reference at all any objection to the fact that the Affidavit of Documents was unsworn. That position was advanced for the first time in the Amended Notice of Motion delivered some seven months later on June 21, 2022.

[54] In any event, and as described above, a properly affirmed Affidavit of Documents has now been delivered.

[55] The Affidavit has been properly signed and affirmed pursuant to Rule 4.06(1) of the Rules of Civil Procedure. As required by Rule 4.06(2), it is confined to the statement of facts within the personal knowledge of the deponent or to other evidence that the deponent could give if testifying as a witness.

[56] The Affidavit is based on information and belief of Ms. Dinnissen, but in the circumstances that is appropriate. Moreover, the affidavit, as is required, expressly states that the statements are made on information and belief, and discloses the source for that belief.

[57] I am satisfied on the evidence before me that, as stated above, there is no more appropriate a witness to sign the Affidavit of Documents on behalf of GuestLogix. There are no continuing employees, directors or officers of the “old” GuestLogix, as it existed prior to the CCAA purchase and sale. The purchase and sale that underlies the Plan of Arrangement was a sale of assets. The Plaintiffs were well aware of all of this, and were aware at the time it occurred. There is no evidence of any surprise or after-the-fact knowledge as to what transpired, what was being bought and sold, or what (and who) would be part of the new entity going forward.

[58] On the contrary, these claims were specifically contemplated at the time and carved out of the Plan as Insured Claims for which recovery was limited to the proceeds of applicable insurance. Clearly and expressly as a term of the Plan of Compromise and Arrangement sanctioned by the Court, not only was there no individual (such as an officer or director who might typically swear an Affidavit of Documents) continuing with the new entity, but no exposure or liability in respect of the claims advanced in this action continued or attached to those assets sold to the new entity.

[59] It can therefore hardly be a surprise to the Plaintiffs that that insurer, which bears the practical exposure in this action, is the one directing and providing instructions to counsel. The former company is no longer in operation and has no knowledgeable employees, officers or directors.

[60] I am unable to draw any conclusion other than that the form of Affidavit of Documents that has now been provided is exactly that which was contemplated by the Plan of Arrangement, contemplated in the Sanction Order, and contemplated by the Plaintiffs and their counsel. Nothing in the Plan or Sanction Order has been brought to my attention that would suggest that either was intended to require GuestLogix to preserve some employee or director or officer or other knowledgeable individual or otherwise make them available on behalf of GuestLogix and in a capacity that would bind GuestLogix, to defend this action.

[61] Moreover, and also as stated above, Messrs. Proud and Leung, who were the former CEO and CFO respectively, and therefore would be expected to perhaps have some knowledge of the relevant issues, were let out of the action by the Plaintiffs acting with counsel, pursuant to a consent dismissal.

[62] While I accept that the consent dismissal of the action as against two individuals does not in itself relieve a corporate defendant of its obligation to deliver an affidavit of documents, I merely observe that those individuals, likely the two individuals with some knowledge of the issues related to the claims advanced in this action, were in fact named Defendants, and the Plaintiffs, moving parties on this motion, let them out.

[63] Even today, and although those individuals are no longer Defendants, the Rules provide for the possibility of production of documents by, and discovery evidence of, non-parties where appropriate.

[64] In the circumstances, and given the chronology this action, I am satisfied that the Affidavit of Documents is appropriate and complies with the Rules, particularly with respect to who the deponent is (which is the principal complaint of the Plaintiffs).

[65] If and to the extent it does not so comply, I would dispense with further compliance with the Rules pursuant to Rule 2.03 of the Rules of Civil Procedure as I am satisfied that such is necessary in the interest of justice in this particular case, all for the above reasons.

[66] In concluding as I have about the appropriateness of the deponent, I should be clear that GuestLogix naturally still has the obligation to deliver an affidavit that complies with the Rules and particularly Rule 30.03, which discloses to the full extent of the party’s knowledge, information and belief all documents relevant to any matter in issue in the action that are or have been in the party’s possession, control or power.

[67] I am satisfied, however, that the affirmed affidavit now delivered does just that. The deponent, Ms. Dinnissen, could not be expected to have any further or more direct knowledge than as is stated in the affidavit. For this reason, the argument of the Plaintiffs that the affidavit is inappropriately circular, must fail.

[68] Ms. Dinnissen fairly states that, in making the affirmed statements as she does, that she is relying on the advice and assistance of counsel. It is obvious that Ms. Dinnissen was not personally involved in any events during the relevant period but appreciates and understands the obligation of GuestLogix to produce all relevant documents. Again, I am satisfied that the manner in which this was done, with the involvement of counsel, was appropriate and reasonable in the circumstances.

[69] There is no evidence in the record that, by so assisting the deponent, counsel for GuestLogix has acted inappropriately, let alone withheld properly producible documents or otherwise “stonewalled” the efforts of the Plaintiffs at proper production, as they allege. Counsel for the Defendant is an experienced litigation firm. Counsel from that firm have signed the required Solicitor’s Certificate.

[70] It follows that I decline to order a further and better Affidavit of Documents with the different deponent (there is none), and I also decline to strike the defence of GuestLogix on the basis of a deficient Affidavit.

Remaining GuestLogix Production Deficiencies

[71] The other arguments advanced by the Plaintiffs on this motion relate not to the identity of the deponent, but rather to the sufficiency of the Schedules and the scope of production identified in the four categories described above in this Endorsement.

[72] GuestLogix observes, as a matter of proportionality of production, that it has already produced in excess of 3600 documents in this action (in contradistinction to the production of fewer than 100 documents by the Plaintiffs between them). In addition, the principal of the Plaintiff Web Objective is the founder of GuestLogix, and was a member of its board of directors during the relevant period of time.

[73] Perhaps more importantly, GuestLogix submits on this motion that it has already produced, albeit in response to the motion of the Plaintiffs, the very relief in respect of additional production which they now seek.

[74] As noted above, Mr. Proud was the former CEO and a director of GuestLogix. The Plaintiffs take the position that the documents relating to his resignation are relevant to the issues in the action, and specifically draw my attention to paragraph 28 – 32 of the Statement of Claim and paragraph 44 of the Statement of Defence.

[75] Those paragraphs in the Claim describe the allegations of the Plaintiffs arising from what they allege is a misrepresentation by omission particularly in the September 16, 2015 press release and corresponding Material Change Report relating to Mr. Proud’s resignation and departure from the company.

[76] However, GuestLogix delivered a revised Affidavit of Documents on September 2, 2022 (following a lengthy exchange between and among counsel), together with production of an additional 300 (approximately) documents.

[77] Without prejudice to the position of GuestLogix that the additional documents sought and produced are relevant to the issues in the action, those documents were produced and, GuestLogix maintains, include the documents identified as relevant to the departure of Mr. Proud, the Comerica and Vistara loans, and includes a revised Schedule “B” which provides significant additional information about the basis for the privilege being claimed.

[78] In particular, and as described in the letter from counsel for GuestLogix dated September 2, 2022 under cover of which the revised Affidavit was delivered (CaseLines B-1-149), the basis for the privilege claim is described individually for each document over which privilege is being claimed, which documents are also identified individually. A review of the revised Affidavit of Documents and particularly Schedule “B” (beginning at CaseLines B-1-330) reflects this.

[79] The documents itemized by the Plaintiffs about which they complain, described in their Schedules “X”, “Y” and “Z” referred to above, identified by the document numbers known to the Plaintiffs, seem to appear in the Schedule “B”, and counsel have advised that all are included. This includes identification of the sender/recipient (“X”), the identity of the relevant solicitor (“Y”), and the identity of the third party referred to in the communication (“Z”).

[80] In their Reply Factum and in argument, the Plaintiffs still maintain that the revised Schedule “A” is deficient such that the defence of GuestLogix should be struck.

[81] I have addressed the issue of the identity of the deponent or representative above.

[82] The Plaintiffs still maintain that the productions with respect to the resignation of Mr. Proud are deficient, but on the record before me, GuestLogix maintains not that the documents will not be produced, but rather that they have in fact been produced to the extent that they exist and can be located.

[83] Finally, the Plaintiffs complain that numerous documents produced reflect the fact that the directors and officers used personal email addresses and there is no accountability that communications between and among them, or with representatives of Comerica and Vistara, have been produced. The Plaintiffs may or may not be satisfied with the scope of production, but they now have, at least as of September 2, a properly affirmed Affidavit of Documents, together with a properly completed Solicitor’s Certificate, to the effect that appropriate searches have been made and documents produced. What if anything is made of this at trial is for another day.

[84] Submissions were made in argument about continuing deficiencies with Schedule “B”, in terms of, for example, the identity of author or recipient, but it became clear in the submissions of the parties, and particularly the submissions of counsel for GuestLogix, that while it might be argued that certain cells in the chart were not as crystal clear as on reflection they might have been, the information has in fact been provided.

[85] In sum, I am satisfied that GuestLogix has, at least as of September 2, 2022, complied with its obligations such that none of the additional relief sought by the Plaintiffs on this motion is appropriate, and none is granted.

[86] The motion of the Plaintiffs is dismissed.

Motion of the Defendants

[87] The Defendant GuestLogix brought a cross-motion for a further and better Affidavit of Documents from the Plaintiffs.

[88] Prior to the hearing of these motions, however, the Plaintiffs delivered a further and better Affidavit of Documents specifically including additional documents for the period between November 2013 and November 2015 inclusive, which had been requested.

[89] GuestLogix acknowledges receipt of this Affidavit and productions referred to therein and seeks no further relief at this time, but reserves its right to bring a motion in the future for a further and better affidavit of documents if and as necessary.

Costs

[90] At the conclusion of argument, counsel for the parties advised the Court that they had agreed, as is encouraged by the Commercial List, on the quantum of costs payable by the unsuccessful party or parties to the successful party or parties in the all-inclusive amount of $10,000.

[91] The Defendant GuestLogix was successful. Accordingly, that amount is payable by the Plaintiffs to the Defendant GuestLogix within 60 days.

Osborne, J. Date: January 18, 2023