Court File and Parties

Court File No.: CV-16-1216 Date: 2023-08-31 Superior Court of Justice – Ontario

Re: Kingdom Construction Limited, Plaintiff And: Perma Pipe Inc., Delta Piping Products Canada Inc., CH2M Hill Canada Limited, Victaulic Company of Canada ULC, Emco Corporation, The Regional Municipality of York, The Regional Municipality of Durham, D.C. Bray, Brian M. Witek and Catlin Canada Inc., Defendants

Before: Justice D.A. Broad

Counsel: Sean Dewart and Brett Hughes, as agents for Brett Rideout, for the Plaintiffs Eitan Kadouri, for the Defendants Perma Pipe Inc., Delta Piping Products Canada Inc., CH2M Hill Canada Limited, Victaulic Company of Canada ULC, Emco Corporation and Brian M. Witek

Heard: July 17, 2023

Endorsement

Nature of the Motions

[1] The moving defendants’ motion seeks an order staying the plaintiff’s action as an abuse of process for failure of the plaintiff to make immediate disclosure of a settlement agreement it entered into with the defendants Catlin Canada Inc. and the Regional Municipalities of York and Durham (the “settlement agreement”). The plaintiff has brought a cross-motion for leave to amend the Statement of Claim to reflect and implement the settlement agreement by limiting its claims against the non-settling defendants to their several share of liability. The moving defendants agree that if their motion for a stay does not succeed, the plaintiff’s motion for leave to amend should be granted.

Background

[2] The plaintiff (“Kingdom”) was the general contractor for the construction of a disinfection facility (the “Project”) at a pollution control plant owned by the Regional Municipality of York (“York”) and the Regional Municipality of Durham (“Durham”). The contracting parties in the contract for completion of the Project (the “Contract”) were Kingdom and York.

[3] The Project included the installation of an underground pre-insulated heating water piping system. In 2014, after the piping system was installed, two leaks were detected which required remediation by Kingdom. It replaced the piping system in 2015 and in 2016 it commenced this action seeking recovery from one or more of the defendants of the costs of remediating the piping system in the aggregate sum of $1,299,146.76.

[4] The defendant Catlin Canada Inc. (“Catlin”) is an insurer which issued a builder’s risk and course of construction insurance policy (the “Policy”) to York listing it as the named insured and “all contractors, sub- contractors, and consultants” as additional insureds.

Plaintiff’s claims against the defendants

[5] In the Statement of Claim Kingdom alleged that its costs and damages in remediating the piping system constituted an insured loss pursuant to the terms of the Policy and claimed payment of those costs and damages from Catlin. In the alternative it claimed payment from Catlin under the terms of a Professional Liability Policy issued to it by Catlin.

[6] Kingdom also claimed payment from York for the cost of remediating the piping system pursuant to the terms of the Contract and also claimed recovery from both York and Durham based on the doctrine of unjust enrichment.

[7] CH2M Hill Canada Ltd. (“CH2M”) provided consulting engineering and project management services in respect of the Project to York. Kingdom claimed recovery of its remediation costs and damages from CH2M based upon its alleged “negligence and breach of contractual and other duties.”

[8] Kingdom entered into contracts with each of the defendants Perma Pipe Inc. (“Perma”) and Delta Piping Products Canada Inc. (“Delta”) in relation to the design, supply and installation of piping forming part of the piping system. Kingdom claimed recovery of its costs and damages from Perma and Delta based upon their alleged “negligence and breach of contractual and other duties.”

[9] Kingdom alleged that that the defendants D.C. Bray (“Bray”) and Brian M. Witek (“Witek”) prepared, engineered, and approved the design layout of drawings provided to it by Perma Pipe and Delta and certified the finished design set forth in the drawings. Kingdom claimed recovery of its damages, losses and expenses in relation to the remediation of the piping system from Bray and Witek.

[10] The defendant Victaulic Company of Canada ULC (“Victaulic”) manufactured the couplings which were supplied to the Project and used in completion of the piping system. Kingdom claimed damages, losses and expenses associated with the remedial work to the piping system from Victaulic based upon its alleged “negligence and breaches” in its manufacture of the couplings.

[11] Emco Corporation, carrying on business as Westlund Industrial (“Westlund”) was retained to supply materials, including the couplings, to the Project. Kingdom claimed damages, losses and expenses associated with the remedial work to the piping system from Westlund based upon its alleged “negligence and breaches” in relation to its supply of the couplings to the Project.

Statements of Defence and Crossclaims and steps taken in the proceeding

[12] The defendants delivered their respective Statements of Defence and, where applicable, asserted their Crossclaims, between November 23, 2017 and March 27, 2019.

[13] Perma, Delta, Bray, Witek, and Victaulic all crossclaimed against each of the other defendants. None of these defendants advanced a claim that they were additional insureds under the Policy.

[14] York and Durham crossclaimed against each of the other defendants. York and Durham pled that York is a named insured under the Policy and that the project contractors, subcontractors and consultants are additional insureds. They pled that the remediation costs are payable by Catlin under the Policy.

[15] CH2M crossclaimed against each of the other defendants except Catlin, York and Durham.

[16] Catlin asserted no crossclaims.

Kingdom’s Summary Judgment Motion

[17] Since commencement of the action no documentary disclosure has been made by any of the parties and no examinations for discovery have been conducted.

[18] On May 31 2019 Kingdom brought a motion for summary judgment in respect of its claim against Catlin. Kingdom served its motion record for the summary judgment motion on the defendants on or about June 10, 2019.

[19] Kingdom took the position that the summary judgment motion would resolve the entire action. It made the following submission in its Factum in support of the motion:

“This claim is suitable for a motion for summary judgment. Although there are collateral issues concerning the liability of the Region of York, Perma Pipe, Delta Pipe, CH2M Hill, and Kingdom itself for the Second Leak, they are all insureds for the purpose of the Insurer’s Policy. Since there can be no claim of subrogation by the insurer against another insured, granting judgment against the Insurer for the full amount of the cost of repair will bring the entire litigation to an end.”

[20] None of the defendants other than Catlin delivered responding material to Kingdom’s summary judgment motion and none of CH2M, Perma, Delta, Bray, Witek, and Victaulic (the “non-settling defendants”) otherwise participated in it.

[21] The summary judgment motion was adjourned several times and was finally scheduled to be heard during the week of March 1, 2021.

[22] Although the non-settling defendants did not respond to nor otherwise participate in Kingdom’s summary judgment motion, counsel for Perma and CH2M each made independent inquiries with then counsel for Kingdom Edward Dreyer in an effort to determine its outcome.

[23] On March 1, 2021 Mr. Dreyer informed counsel for CH2M that he expected that the motion would settle. On March 2, 2021 he advised “at this point I would be surprised if we do not settle. We are just working out some wording in the minutes of settlement.” In response for a request for clarification, Mr. Dreyer advised counsel for CH2M that the settlement being negotiated would resolve only the summary judgment motion and not the entire proceeding.

[24] On March 11, 2021, in response to an inquiry from counsel for Perma respecting the status of the summary judgment motion, Mr. Dreyer advised.

“We settled the motion. [Catlin’s counsel] will be reporting to the other parties. I do not think I am at liberty to say more than that.”

[25] None of the other non-settling defendants received any communication from counsel for Kingdom, Catlin, York or Durham respecting the status of the summary judgment motion or any settlement of it until receipt of the letter from counsel for Catlin dated March 29, 2021 to the lawyers for each of the non-settling defendants referred to below.

Settlement agreement and disclosure of its terms and documentation

[26] On March 2, 2021 Catlin, York and Durham (the “settling defendants”) entered into an agreement with Kingdom respecting the settlement of Kingdom’s claim against them. The terms included the following:

(a) Kingdom would assign to Catlin its rights to pursue the claim against the non-settling defendants;

(b) following the assignment, Catlin, on behalf of Kingdom, would enter into a Pierringer agreement with York and Durham, and would amend Kingdom’s claim to pursue the non-settling defendants only for their several liability, and to discontinue or dismiss its claim against York and Durham;

(c) Catlin would provide payment to Kingdom of amounts recovered from the non-settling defendants in excess of the amount paid to Kingdom on the settlement;

(d) Kingdom would make all relevant documents and its officers, directors, and staff available to assist Catlin in prosecuting the claim against the non-settling defendants.

[27] On March 5, 2021 Mr. Dreyer circulated a “list of things to do” which called for Catlin’s then counsel Robert Clayton to disclose the settlement agreement to “other counsel.”

[28] On March 29, 2021 Mr. Clayton sent a letter to the lawyers for each of the non-settling defendants advising the following:

(a) the summary judgment motion was resolved between Catlin and Kingdom;

(b) Kingdom agreed to accept an offer of settlement from York and Durham in full satisfaction of Kingdom’s claims against them;

(c) Catlin, upon payment to Kingdom, intended to exercise its subrogation rights to continue the action against the non-settling defendants, and would be bringing a motion to discontinue the action against the settling defendants;

(d) notices of change of lawyer would be filed upon execution of the necessary paperwork to resolve the summary judgment motion, expected to be completed within the ensuing few weeks; and

(e) inviting a conference call after the notices of change of lawyer were filed “to answer any and all questions [the non-settling defendants] may have on the conditions in terms of the settlement once they are all put in place.”

[29] Mr. Clayton’s affidavit in response to the motion at bar provides no explanation for the delay between the settlement agreement reached in early March and the delivery of his letter on March 29. 2021. He simply deposed that between March 2 and 29, 2021, the litigation was “dormant.”

[30] On September 22 2021 Kingdom served a Notice of Change of Lawyer confirming that it was now represented by Brett E. Rideout. By email on that date Mr. Rideout advised counsel for the non-settling parties that a settlement between the settling parties had been finalized and attached redacted copies of both an Assignment and Subrogation Agreement and the Pierringer Agreement.

[31] On March 23, 2022 counsel for Victaulic, writing for Victaulic, CH2M, Westlund and Perma, emailed Mr. Rideout seeking further information respecting the settlement, including the timing of steps taken in its negotiation and completion. In response, Mr. Rideout provided additional previously undisclosed documents including the (redacted) Minutes of Settlement and Pierringer Agreement.

Guiding Principles

[32] As stated by Trotter, J. in the recent case of Skymark Finance Corporation v. Ontario, 2023 ONCA 234 at para. 46, the Court of Appeal has held repeatedly that settlement agreements reached between some parties, but not others, need to be immediately disclosed to non-settling parties if they entirely change the litigation landscape of the proceeding.

[33] Trotter J.A. cited the helpful summary of how the “immediate disclosure rule” operates stated by Sossin, J.A. in CHU de Quebec – Universite Laval v Tree of Knowledge Corp., 2022 ONCA 467 at para. 55, as follows (citations omitted):

a) There is a "clear and unequivocal" obligation of immediate disclosure of agreements that "change entirely the landscape of the litigation". They must be produced immediately upon their completion;

b) The disclosure obligation is not limited to pure Mary Carter or Pierringer agreements. The obligation extends to any agreement between or amongst the parties "that has the effect of changing the adversarial position of the parties into a co-operative one" and thus changes the litigation landscape;

c) The obligation is to immediately disclose information about the agreement, not simply to provide notice of the agreement, or "functional disclosure";

d) Both the existence of the settlement and the terms of the settlement that change the adversarial orientation of the proceeding must be disclosed;

e) Confidentiality clauses in the agreements in no way derogate from the requirement of immediate disclosure;

f) The standard is "immediate", not "eventually" or "when it is convenient;”

g) The absence of prejudice does not excuse a breach of the obligation of immediate disclosure; and

h) Any failure to comply with the obligation of immediate disclosure amounts to an abuse of process and must result in serious consequences The only remedy to redress the abuse of process is to stay the claim brought by the defaulting, non-disclosing party. This remedy is necessary to ensure the court is able to enforce and control its own processes and ensure justice is done between the parties.

[34] It will be seen from the foregoing that the issues for determination of the non-settling defendants’ motion are twofold:

A. did the agreement among the settling parties change the entirety of the litigation landscape of the proceeding?

B. if so, did the settling parties fail to immediately disclose the existence of the settlement and the terms of the settlement that changed the adversarial orientation of the proceeding ?

Issue A. Did the agreement among the settling parties change the entirety of the litigation landscape of the proceeding?

(a) The test for determining whether the immediate disclosure rule has been triggered

[35] It is well-accepted that not all settlement agreements require immediate disclosure. Trotter J.A. in Skymark adopted the characterization of the type of agreement that will trigger the application of the immediate disclosure rule from Crestwood Preparatory College Inc. v. Smith, 2022 ONCA 743 at para. 57 as an agreement that have “the effect of changing entirely the landscape of the litigation in a way that significantly alters the dynamics of the litigation ” (emphasis in Skymark at para. 53).

[36] Trotter J.A. observed at para. 51 of Skymark that the determination is “fact-specific, based on the configuration of the litigation and the various claims among the parties.”

[37] In Handley Estate v. DTE Industries Limited, 2018 ONCA 324 at para. 40 the Court of Appeal adopted the test for determining whether an agreement triggers the immediate disclosure requirement enunciated by Nordheimer, J. (as he then was) in Aviaco International Leasing Inc. v. Boeing Canada Inc., [2000] O.J. No. 2420 (S.C.J.) at para. 23 as follows:

Do the terms of the agreement alter the apparent relationships between any parties to the litigation that would otherwise be assumed from the pleadings or expected in the conduct of the litigation?

(b) Moving parties’ position

[38] The moving parties submit that the test in Handley Estate has been met and that the settlement did significantly alter the dynamics of the litigation, citing the following factors:

(a) Kingdom was no longer advancing the position that the non-settling parties were additional insureds under the Catlin policy;

(b) Kingdom, Catlin, and the project owners York and Durham were no longer adverse to each other;

(c) Catlin, which had not asserted claims against the non-settling parties, was now directly adverse to them and pursuing, in effect, a subrogation claim;

(d) Catlin, which would have been statute-barred from asserting a claim against the non-settling parties, has now advanced such a claim by way of subrogation;

(e) Kingdom, and the project owners, which had not tendered any documentary discovery or advanced their litigation against the non-settling parties, were now assisting Catlin in its litigation against the non-settling parties;

(f) Catlin was no longer a defendant, but a plaintiff by subrogated claim; and

(g) Kingdom was no longer seeking payment of damages, for which it will have received consideration, and instead Catlin is pursuing such damages.

(c) Responding party’s position

[39] The responding parties Kingdom/Catlin submit that the partial settlement did not entirely change the litigation landscape in the proceeding, citing the following factors:

(a) Kingdom’s claim against Catlin was distinct from its claims against the non-settling defendants. The dispute between Kingdom and Catlin was a coverage dispute that turned on the interpretation and application of the insurance policy. The non-settling defendants were content for the coverage dispute to be dealt with as a preliminary matter without their involvement;

(b) Kingdom’s claim in contract and unjust enrichment (or quasi-contract) against the project owners York and Durham was also distinct from its negligence claims against the non-settling defendants;

(c) Catlin and the non-settling defendants were already adverse in interest. The non-settling defendants sought indemnity from Catlin in their cross-claims which Catlin did not agree to provide. Catlin never made common ground with the non-settling defendants. It is noted however in this respect that, as observed previously, unlike the other non-settling defendants, CH2M did not cross claim against Catlin, York or Durham;

(d) the nature of the claims pursued by Kingdom against the non-settling defendants remained the same before and after the settlement, as did the documents and evidence necessary to pursue those claims. The nature of the claims in the documents, and evidence to be used to prove the claims, never changed;

(e) Catlin is not pursuing its own claim against the non-settling defendants, but is simply advancing Kingdom’s existing claim as subrogee;

(f) there is no evidence that Catlin has tailored the evidence that Kingdom will provide to support its claim. It is standard for an insurance policy to provide the insurer with a subrogation right and to impose a cooperation obligation on the insured in respect of it. The Catlin policy was part of the record on Kingdom’s summary judgment motion and all parties were aware that it contained such provisions. Moreover, an insurer also has subrogation rights in equity; and

(g) given that the coverage dispute was settled as a preliminary matter before the parties exchanged affidavits of documents or conducted examinations for discovery, the non-settling defendants’ positions and defences remain entirely intact and their ability to defend the claims against them remains the same as they were previously.

(d) Discussion

[40] I find that Kingdom’s claims against Catlin on the insurance policy and against York on the contract and York and Durham based on unjust enrichment are fundamentally distinct from its claims against the non-settling defendants all of which founded in negligence, and that this distinction weighs against the settlement being found to have changed entirely the landscape of the litigation in a way that significantly alters the dynamics of the litigation.

[41] It is noteworthy that there was no requirement for the insurance coverage issue to be litigated within the same proceeding as the negligence claims against the non-settling defendants, as it was a discrete issue capable of being advanced by a separate application. Although the action was commenced in 2016, no affidavits of documents were exchanged or other documentary disclosure made and no examinations for discovery were conducted prior to or subsequent to the motion for summary judgment being brought by Kingdom for determination of the insurance coverage issue in 2019, some three years after commencement of the action.

[42] Although the non-settling defendants were served with the summary judgment motion materials, none of them responded to it or otherwise sought to participate in it. Therefore, it is evident that all parties treated the coverage issue as a discrete preliminary matter to be determined before any further steps were taken in the proceeding. Given that none of the non-settling defendants took a position in reference to the summary judgment motion, each of them must be taken to have been satisfied that, whatever the outcome of the motion, their interests would not be adversely impacted.

[43] The determination of whether Catlin was obliged to provide coverage on the policy for Kingdom’s loss was capable of being made by either a finding to that effect by the Court on the motion, or by settlement between Kingdome and Catlin. Regardless of whether Catlin was found by the Court to be required to provide coverage or it accepted such obligation in whole or in part by settlement, the non-settling defendants must necessarily have appreciated that Catlin would be entitled to subsequently advance a subrogated claim against them, either pursuant to the terms of the Policy, which had been disclosed to them in the summary judgment motion materials, or in equity. A subrogated claim by Catlin against them could therefore be “expected in the conduct of the litigation” as stated in the applicable test in Handley Estate.

[44] I find that the legal positions of the non-settling defendants were unaffected by the settlement between Kingdom, Catlin, York and Durham. As noted previously, none of the non-settling defendants advanced a claim that they were additional insureds under the Catlin policy. However, it would be open to them to seek leave to amend their pleading to make that allegation. Although Kingdom asserted in its Factum in support of the summary judgment motion that certain of the non-settling defendants were insureds under the Catlin policy, it made no such assertion in its Statement of Claim. The settlement took nothing away from the non-settling defendants’ ability to claim that they were additional insureds under the policy.

[45] Moreover, the settlement took nothing away from the non-settling defendants’ denials of liability in negligence in their respective pleadings. The nature of the claims against them as asserted in Kingdom’s Statement of Claim, and the documents and evidence to be led to advance those claims were unaltered by the settlement. Although the terms of the settlement require Kingdom to make all relevant documents and its officers, directors, and staff available to assist Catlin in prosecuting the claim against the non-settling defendants, that same evidence would have been marshalled against the non-settling defendants had the settlement not occurred.

[46] The fact that, by virtue of the settlement, Kingdom, Catlin, York and Durham were no longer adverse to each other did not significantly alter the dynamics of the litigation. As indicated, the prior adversity between Kingdom and Catlin related solely to the coverage issue under the Policy, and the adversity between Kingdom and York was contractual in nature and between Kingdom and Durham quasi-contractual. None of these issues concerned the non-settling defendants, and any change in this respect had no impact on their legal positions.

[47] I am unable to accept the submission of the non-settling defendants relating to Catlin having been previously statute-barred from asserting a claim against them and now advancing a claim by way of subrogation. Catlin never had an independent claim against any of the non-settling defendants. The claims against them were Kingdom’s to make and they remain Kingdom’s, albeit now being advanced by Catlin by subrogation.

[48] The fact that Catlin is no longer a defendant but is now a plaintiff, is a function of the operation of subrogation. It does not significantly alter the dynamics of the litigation. The same point applies in relation to the fact that it is Catlin that is now seeking damages rather than Kingdom.

[49] No authorities have been cited in which a partial settlement was found to have significantly altered the dynamics of litigation in analogous circumstances, involving settlement of claims which were entirely discrete from and unconnected with the surviving claims against non-settling defendants, such as the insurance coverage and contractual and quasi-contractual claims which were settled in the case at bar.

[50] I find that, although the litigation landscape was changed by the partial settlement, in that the claims in negligence against the non-settling defendants are now being advanced by Catlin by subrogation, it was not changed entirely in a way that significantly altered the dynamics of the litigation. Kingdom and Catlin were therefore under no duty to immediately disclose the existence of the settlement and the terms of the settlement that changed the adversarial orientation of the proceeding.

Issue B. Did the settling parties fail to immediately disclose the existence of the settlement and the terms of the settlement that changed the adversarial orientation of the proceeding?

[51] Although I have found that there was no obligation on Kingdom or Catlin to make immediate disclosure of the existence and terms of the settlement agreement, in the event that I am wrong in that respect, I find that Kingdom and Catlin did make sufficient immediate disclosure by means of the letter from Mr. Clayton to the lawyers for the non-settling defendants on March 29, 2021, being twenty-seven days after the agreement was entered into.

[52] The moving parties rely upon the case of Tallman Truck Centre Limited v. K.S.P. Holdings Inc., 2022 ONCA 66 in which a three-week delay between a settlement agreement between the plaintiff and one of two defendants being reached and disclosure of it to the non-settling defendant was found not to have met the obligation of “immediate disclosure.”

[53] At para. 26 of Tallman the Court stated:

The standard is "immediate"; it is not "eventually" or "when it is convenient". As the motion judge said: "The rules really can't be any clearer. Where an agreement involves a party switching sides from its pleaded position, it must be disclosed as soon as it is made." Here, Tallman and Secure [the settling parties] attempted to implement the settlement agreement before disclosing it to K.S.P. [the non-settling defendant]. More troubling, it is unclear on this record whether Tallman would have disclosed the agreement had K.S.P.'s counsel not asked for it. Even then, it was disclosed for tactical reasons, not in observance of a legal obligation.

[54] Tallman (released on January 27, 2022) was considered by the Court in Tree of Knowledge Corp. released on June 16, 2022. At para. 66 of Tree of Knowledge Corp. Sossin, J.A, writing for the panel, stated that “the application of the term ‘immediate disclosure’ in a particular case pursuant to the rule in Handley Estate, will be ‘fact-dependent’” citing Aecon Buildings v. Stephenson Engineering Ltd., 2011 SCC 33, at para. 5.

[55] Sossin, J.A. went on to observe that the facts in the case before the Court were unlike the situation in Tallman where the court rejected the plaintiff’s argument that it made “functional” disclosure of the agreement when it served its notice of discontinuance and the settling defendant served an affidavit on the non-settling defendant, without disclosing the existence of the settlement or the relevant terms.

[56] In my view, the facts in the case at bar are also quite unlike the situation in Tallman where active steps were being taken in the litigation by the settling defendant serving an affidavit on the non-settling defendant after the settlement agreement was reached and prior to ultimate disclosure of it.

[57] In the case at bar the settlement agreement was finalized between March 2 and 4, 2021. Counsel for Kingdom advised counsel for CH2M on March 1 2021 that a settlement was imminent and on March 2, 2021 that written minutes of settlement were being finalized. On March 5 2021 counsel for the settling parties internally discussed their plan to disclose the settlement, on March 11, 2021 counsel for Kingdom advised counsel for Perma that there was a settlement, and on March 29, 2021 counsel for Catlin by correspondence advised counsel for all parties of the settlement, disclosing the terms listed above, including that Catlin would pursue a subrogated claim against the other defendants except York and Durham.

[58] I agree with the submission of the responding party that the disclosure obligations outlined in Handley Estate and other cases should be applied purposively, to prevent the abuse of the court’s process by parties who conceal a change in adversity from non-settling defendants and the court, and that disclosure is “immediate” if, on the facts of the particular case, it prevents such abuse. In my view this is consistent with the direction of the Court of Appeal in Tree of Knowledge Corp. that the determination of whether there has been immediate disclosure is fact-dependent.

[59] In the case at bar the settling parties made no effort to conceal or delay disclosure of the settlement agreement, but rather informed counsel for certain of the non-settling defendants of the imminence and fact of the settlement, and within approximately 27 days advised counsel for all of the non-settling defendants of the summarized terms of the settlement. In the intervening period, no steps were taken by any parties and, as then counsel for Catlin Clayton deposed, the litigation was “dormant.”

Disposition

[60] For the reasons set forth above it is ordered as follows:

(a) the motion of the defendants CH2M Hill Canada Limited, Perma Pipe Inc., Delta Piping Products Canada Inc., Victaulic Company of Canada ULC, Emco Corporation and Brian M. Wick (the “moving defendants”) for a stay or dismissal of the action is dismissed;

(b) the cross-motion of the plaintiff for leave to amend the Statement of Claim is granted.

Costs

[61] The parties are strongly encouraged to resolve the issue of costs.

[62] If they are unable to do so, plaintiff may deliver written submissions on costs within 14 days of the release of this Endorsement. The moving defendants have 10 days to deliver responding submissions on costs. There shall be no reply submissions without leave or without a request by the court.

[63] The costs submissions shall not exceed four (4) double-spaced typewritten pages, exclusive of Bills of Costs, Costs Outlines and Offers to Settle, and shall be delivered to the Trial Coordinator at Brantford at the e-mail address utilized for the release of these Reasons.

[64] If the foregoing timetable is not followed, the parties shall be deemed to have settled the question of costs.

D.A. Broad, J. Date: August 31, 2023