COURT FILE NO.: CV-23-00003676-0000 DATE: 2024-04-15

SUPERIOR COURT OF JUSTICE – ONTARIO 491 Steeles Avenue East, Milton ON L9T 1Y6

RE: ROOF TILE MANAGEMENT GROUP INC., and ROOF TILE MANAGEMENT INC., Applicants

AND: Henry FORGET and 2149220 ONTARIO INC, Respondents

BEFORE: Justice Kurz

COUNSEL: Paul Fruitman and William C.S. Maidment, for the Applicants Email: pfruitman@lolg.ca and wmaidment@lolg.ca Mark Shapiro and David Z. Seifer, for the Respondents Email: MShapiro@dickinsonwright.com and DSeifer@dickinsonwright.com

HEARD: April 8, 2024, by in-person attendance

ENDORSEMENT

Introduction

[1] It is well understood, as the Supreme Court of Canada has affirmed, that the principles of fundamental justice include procedural fairness: Winnipeg Child and Family Services v. K.L.W., 2000 SCC 48, [2000] 2 S.C.R. 519, at para. 10. Absent procedural justice, a party may not receive the substantive justice to which they are entitled.

[2] Here, I have before me both an application for declaratory and other non-monetary relief on highly contested facts and a motion by the Applicants to amend their Notice of Application. The proposed amendment would seek a reference to determine damages against the Respondent. Each of the proposed amendment and the application itself are highly contested.

[3] Thus, as a preliminary matter, I must determine two interrelated issues: whether to grant the proposed pleading amendment and the propriety of the form of this proceeding, as an application rather than an action.

[4] In considering the evidence, authorities and arguments of the parties, I find that an application is not the appropriate form of proceeding to resolve the issues in this case. In bringing an application rather than an action, the Applicants seek to shoehorn the contested facts of this case into an application process that generally does not resolve such contested factual issues. The fact that the Applicants seek to add a damages reference to their application highlights the fact that an application is not the proper forum to determine all of this issues raised in their proceeding. Further, the reference which the Applicants seek would unnecessarily bifurcate this case, raising the risk of inconsistent findings. Thus, I am converting this application to an action, upon the terms set out below.

Background

[5] The Applicant, Roof Tile Management Inc.(“RTM”) is a corporation that engages in building contracting services. It is a corporation that is comprised of the personal holding companies of its four principals. Those principals include the Respondent, Henry Forget (“Forget”), whose holding company, (“Holdco”), is his co-respondent.

[6] Those four holding companies originally purchased 40.4% of the shares of RTM. They later formed a further holding company, the co-Applicant, Roof Tile Management Group Inc. (“RTMG”), to buy the remaining shares in RTM.

[7] Those principals and their holding companies signed a Unanimous Shareholder’s Agreement (the “USA”), whose terms included the following obligations:

a. Each principal was to be employed by RTM and “well and faithfully serve” it.

b. Each was prohibited from disclosing the private affairs of RTM or RTMG to “any person, firm or corporation whether for his own benefit or for the detriment or probable detriment of” RTM or RTMG.

c. Any principal could be terminated from their employment with RTM through a resolution approved by the holder of 67% of the issued shares of RTMG. In that event, a terminated party is entitled to nine months of termination pay and employment benefits.

d. Each principal is subject to a Canada-wide non-competition clause that applies until one year after they cease to be a shareholder of RTM or RTMG.

e. The terminated principal is entitled to have RTMG buy their shares at fair market value as agreed or determined by an independent business evaluator.

[8] Forget and his Holdco were terminated by the Applicants on May 27, 2022. He has yet to have his shares repurchased by the Applicants.

[9] In September 2022, Forget began to work for one of the Applicants’ competitors (“Robertson”). The Applicants assert that he breached the terms of the USA by violating his duties of confidentiality to them and his non-competition term. They claim that they have suffered an unquantified loss of income that they loosely value at between $1.6-2 million. Forget says that he took the Robertson employment at a time that the Applicants were in breach of the USA by refusing to continue to pay his severance payments under the USA. Those payments were withheld for approximately six weeks, during which time, Forget began work for Robertson. He did not terminate his employment when the severance payments resumed.

[10] The parties remain unable to resolve the quantum owed by the Applicants to the Respondents for the purchase of their shares (as well as an option to purchase a property, held by the Applicants). Therefore, on May 16, 2023 the Respondents commenced an application in this court, file no. CV-23-1467, seeking various relief under the terms of the USA.

[11] I am informed that CV-23-1467 has now been superseded by another application commenced by the Respondents against the Applicants on January 5, 2024, court file no. CV-24-68. The latter application has been adjourned to July 8, 2024. Since CV-23-1467 does not appear to have been otherwise disposed of, I adjourned it to the same July 8, 2024 date under a separate endorsement.

[12] On November 29, 2023, the Applicants commenced this application. In their Notice of Application, they sought the following relief:

a. Declarations that the Respondents:

i. are in breach of the USA,

ii. misappropriated and unlawfully used the Applicant’s confidential and commercially sensitive and other proprietary information;

iii. breached their fiduciary duties to the Applicants;

b. a set-off of any amounts that the Applicants may owe to the Respondents;

c. an order that the Respondents “immediately cease using and refrain from using in the future, any and all of the Applicant’s trade secrets and other proprietary information”‍;

d. an order that the Respondents “return any commercially sensitive or proprietary information”‍;

e. An “accounting and disgorgement of the profits gained by [the Respondents] through their breach of fiduciary duties;

f. Interests and costs.

[13] The parties conducted cross-examinations on affidavits, about a month ago, in early March 2024. At that time, the Applicants requested that the Respondents turn over Forget’s laptop computer to have its contents copied. That request was denied. As I understand it, that was the first time that this request was formally made. The request came over 21 months after Forget was terminated by the Applicants. The Applicants have never moved before this court to have any portion of the contents of Forget’s laptop copied or turned over to them.

[14] On March 18, 2024, three weeks before the hearing of this application was scheduled and following the completion of the cross-examinations of the parties, the Applicants moved to amend their application by:

a. Stating that their requested set-off was against any amount owing under CV-24-68. That request does not appear to have been opposed.

b. Seeking a reference “to determine damages owed by [the Applicants].”

Brief Summary of Arguments

[15] The Applicants point out that Rule 26.01 of the Rules of Civil Procedure states that pleading amendments “shall” be granted at any stage of a proceeding “unless prejudice would result that could not be compensated for by costs or an adjournment” They argue that no such prejudice exists. Thus, I should grant the amendment, proceed with the hearing of this application and after granting the non-monetary relief they seek, order a reference to determine damages.

[16] The Respondents strongly object to both the pleading amendment and the application process. They argue that the amendment is improper because:

a. No claim has been made for damages in this application, so there is nothing in this proceeding which requires a reference;

b. In any event, the test for a reference under Rule 54.02 of the Rules of Civil Procedure is not met;

c. Moreover, no evidence has been led as to damages other than bald, conclusory statements on behalf of the Applicants. The rest is speculation.

d. This request is an abuse of process. It recognizes that the Applicants have chosen the wrong procedural mode. There are many facts in dispute as to both liability and damages. Those disputed facts overlap both aspects of this case. In essence, the Respondents argue, the Applicants seek partial summary judgment without satisfying the test for partial summary judgment. In doing so they run the risk of inconsistent findings at the liability and damages stages.

[17] The Applicants respond to those arguments by stating that the evidence is clear and uncontested that Forget took a job with Robertson during the non-competition period set out in the USA. That alone demonstrates the breach of the USA. That fact is buttressed by Forget’s refusal to turn over what they described as their corporate property – his laptop. Thus the court must draw a negative inference of liability from the refusal to turn over the laptop. After all, why not turn it over if he has nothing to hide?

[18] The Applicants also point to cases, which I will cite below, where a reference has been ordered in the face of somewhat contested facts.

Applicable Authorities

Application v. Action

[19] Under Rule 14.02 of the Rules of Civil Procedure, every civil proceeding shall presumptively be commenced as an action, unless a statute or the Rules state otherwise. It reads:

14.02 Every proceeding in the court shall be by action, except where a statute or these rules provide otherwise.

[20] Rule 14.05 (3) of the Rules of Civil Procedure sets out the types of proceedings that may be brought by application, It states:

(3) A proceeding may be brought by application where these rules authorize the commencement of a proceeding by application or where the relief claimed is,

(a) the opinion, advice or direction of the court on a question affecting the rights of a person in respect of the administration of the estate of a deceased person or the execution of a trust;

(b) an order directing executors, administrators or trustees to do or abstain from doing any particular act in respect of an estate or trust for which they are responsible;

(c) the removal or replacement of one or more executors, administrators or trustees, or the fixing of their compensation;

(d) the determination of rights that depend on the interpretation of a deed, will, contract or other instrument, or on the interpretation of a statute, order in council, regulation or municipal by-law or resolution;

(e) the declaration of an interest in or charge on land, including the nature and extent of the interest or charge or the boundaries of the land, or the settling of the priority of interests or charges;

(f) the approval of an arrangement or compromise or the approval of a purchase, sale, mortgage, lease or variation of trust;

(g) an injunction, mandatory order or declaration or the appointment of a receiver or other consequential relief when ancillary to relief claimed in a proceeding properly commenced by a notice of application;

(g.1) for a remedy under the Canadian Charter of Rights and Freedoms; or

(h) in respect of any matter where it is unlikely that there will be any material facts in dispute requiring a trial.

[Emphasis added]

[21] Under Rule 38.10 of the Rules of Civil Procedure, the court hearing an application may:

(a) grant the relief sought or dismiss or adjourn the application, in whole or in part and with or without terms; or

(b) order that the whole application or any issue proceed to trial and give such directions as are just.

[22] In the event that a trial of an issue is required, “the order directing the trial may provide that the proceeding be treated as an action in respect of the issue to be tried, subject to any directions in the order, and shall provide that the application be adjourned to be disposed of by the trial judge”: Rule 38.10(3) of the Rules of Civil Procedure.

The Court’s Residual Right to Deny a Pleading Amendment

[23] While Rule 26.01 of the Rules of Civil Procedure presumptively requires the court “at any stage of an action” to “grant leave to amend a pleading on such terms as are just”, that obligation has limits. The rule itself contains the caveat “unless prejudice would result that could not be compensated for by costs or an adjournment”.

[24] In Marks v. Ottawa (City), 2011 ONCA 248, the Ontario Court of Appeal set out the contours of the court’s discretion to refuse a pleading amendment. As LaForme J. wrote for the court at para. 19:

19 Although the general rule is that amendments are presumptively approved, there is no absolute right to amend pleadings. The court has a residual right to deny amendments where appropriate: Daniele v. Johnson (1999), 45 O.R. (3d) 498 (Div. Ct.) at paras. 11-15. Further, I would agree that the proper factors to be considered are those first set out in Simrod v. Cooper, [1952] O.W.N. 720 (H.C.J. Master) at p. 721, aff'd at p. 723 (H.C.J.), and quoted with approval in Vaiman v. Yates (1987), 60 O.R. (2d) 696 (H.C.J.) at p. 698, which can be summarized as follows:

• An amendment should be allowed unless it would cause an injustice not compensable in costs.

• The proposed amendment must be shown to be an issue worthy of trial and prima facie meritorious.

• No amendment should be allowed which, if originally pleaded, would have been struck.

• The proposed amendment must contain sufficient particulars.

Conversion of Application to Action

[25] The generally accepted test and applicable factors for the conversion of an application to an action was set out by Firestone J. in Przysuski v. City Optical Holdings Inc., 2013 ONSC 5709, at paras. 5 – 10 as follows:

General principles to consider in determining whether to convert an application into an action

5 It is a well-established general principle that an application should be used when there is no matter in dispute and when the issues to be determined do not go beyond the interpretation of a document: see Collins v. Canada (Attorney General) (2005), 76 O.R. (3d) 228 (S.C.), at para. 28; Marten Falls First Nation v. Ontario (1994), 31 C.P.C. (3d) 149 (Ont. C.J. (Gen. Div.)), at paras. 7, 17; Re City of Burlington v. Clairton Village (1979), 24 O.R. (2d) 586 (C.A.), at pp. 588-90; and Re Acumen Investments Ltd. v. Williams (1985), 53 O.R. (2d) 247 (H.C.), at p. 250. This is not an application concerning the interpretation of a document.

6 Where the legislature has stipulated that a proceeding may be brought by application, there is a prima facie right to proceed by application and the matter should not be converted into an action without good reason: see Sekhon v. Aerocar Limousine Services Co-Operative Ltd., 2013 ONSC 542, at paras. 48-49; and College of Opticians (Ontario) v. John Doe, [2006] O.J. No. 5113, at paras. 18-21.

7 A good reason to convert an application into an action is when the judge who will hear the matter cannot make a proper determination of the issues on the application record: see Collins, at para. 29.

8 When issues of credibility are involved the matter should proceed by way of action: see Gorden Glaves Holdings Ltd. v. Care Corp. of Canada (2000), 48 O.R. (3d) 737 (C.A.), at para. 30; and Cunningham v. Front of Yonge (Township) (2004), 73 O.R. (3d) 721 (C.A.), at para. 20.

9 A factual dispute simpliciter in itself is not sufficient to convert an application. The fact(s) in dispute must be material to the issues before the court: see Niagara Air Bus Inc. v. Camerman (1989), 69 O.R. (2d) 717 (H.C.), at pp. 725-26; and BPCO Inc. v. Imperial Oil Ltd. (1993), 17 C.P.C. (3d) 130 (Ont. C.J. (Gen. Div.)), at para. 13.

10 In determining whether to convert an application into an action, Collins sets out the following factors that are relevant at para. 5:

• Whether material facts are in dispute;

• The presence of complex issues that require expert evidence and/or a weighing of the evidence;

• Whether there is a need for pleadings and discoveries; and

• The importance and impact of the application and of the relief sought.

The Nature and Limits Of Declaratory Relief

[26] In Bryton Capital Corp. GP Ltd. v. CIM Bayview Creek Inc., 2023 ONCA 363, at para. 62, the Court of Appeal for Ontario described the nature and limits of declaratory relief as follows:

62 A declaratory judgment is "a formal statement by a court pronouncing upon the existence or non-existence of a legal state of affairs": Harry Woolf & Jeremy Woolf, Zamir & Woolf: The Declaratory Judgment, 3rd ed. (London: Sweet & Maxwell, 2002), at p. 1. Declaratory relief, being restricted to a declaration of the parties' rights, "is mainly sought in commercial matters to help parties define their rights" and contains no provision ordering any party to do anything or any form of sanction: Harrison v. Antonopoulos (2002), 62 O.R. (3d) 463 (S.C.), at paras. 27-28.

[27] In S.A. v. Metro Vancouver Housing Corp., 2019 SCC 4, [2019] 1 S.C.R. 99, at para. 60, the Supreme Court of Canada spoke of the discretionary nature of declaratory relief and the criteria for granting it as follows:

Declaratory relief is granted by the courts on a discretionary basis, and may be appropriate where (a) the court has jurisdiction to hear the issue, (b) the dispute is real and not theoretical, (c) the party raising the issue has a genuine interest in its resolution, and (d) the responding party has an interest in opposing the declaration being sought.

[see also: Solosky v. The Queen, [1980] 1 S.C.R. 821, at p. 831.]

[28] In Bryton Capital, at para. 64, the court spoke of reasons to deny declaratory relief. Courts must be wary of using the application process and the declarations available under that process, to take the place of the full evidentiary hearing available under the trial process. The Court stated:

[64] As indicated in S.A, declaratory relief is discretionary. A non-exhaustive list of reasons why a court may deny declaratory relief includes “standing, delay, mootness, the availability of more appropriate procedures, the absence of affected parties, the theoretical or hypothetical nature of the issue, the inadequacy of the arguments presented, or the fact that the declaration sought is of merely academic importance and has no utility”: Gook Country Estates Ltd. v. Quesnel (City of), 2008 BCCA 407, 73 R.P.R. (4th) 241, at para. 10. Delineating whether a specific procedure is amenable to declaratory relief is important, as the burden of proof, determination of urgency, and limitation of actions may differ in favour of the litigant who chooses the declaration over other routes to relief: Lazar Sarna, The Law of Declaratory Judgments, 4th ed. (Toronto: Thomson Reuters, 2016), at pp. 52-53. There is a real risk that, “to permit the issuance of a declaration where another suitable remedy exists is to effectively erode the divisions between recourses and subsume all relevant writs and motions under the umbrella of the declaratory proceeding”: Sarna, at p. 53.

[Emphasis added]

Where a Reference May be Ordered

[29] The jurisdiction to order a reference is found in Rule 54.02 of the Rules of Civil Procedure. It states:

54.02 (1) Subject to any right to have an issue tried by a jury, a judge may at any time in a proceeding direct a reference of the whole proceeding or a reference to determine an issue where,

(a) all affected parties consent;

(b) a prolonged examination of documents or an investigation is required that, in the opinion of the judge, cannot conveniently be made at trial; or

(c) a substantial issue in dispute requires the taking of accounts.

[30] A reference to determine an issue may be ordered under Rule 54.02(2) of the Rules of Civil Procedure to determine an issue relating to:

(a) the taking of accounts;

(b) the conduct of a sale;

(c) the appointment by the court of a guardian or receiver, or the appointment by a person of an attorney under a power of attorney;

(d) the conduct of a guardianship or receivership or the exercise of the authority of an attorney acting under a power of attorney; or

(e) the enforcement of an order.

[31] The Applicants rely on two cases where a reference was ordered within an application. In CXL Universal Holdings Inc. v. Century 21 Harvest Realty Ltd., [2007] O.J. No. 372, DiTomaso J. ordered a reference on damages after finding on uncontested evidence that there had been a breach of an agreement of purchase and sale of real property. He opined at para. 20 that the jurisdiction under Rule 14.05(d) of the Rules of Civil Procedure, to interpret a deed, will, contract or other instrument, etc., “is not confined to cases where there are no material facts in dispute”.

[32] In MacDonald v. BMO Trust Co., 2020 ONSC 93, Belobaba J., made a finding of liability on a summary judgment motion and seized himself for a reference on damages. Rather than an application, that proceeding was a class action lawsuit. It was brought by registered account owners against certain financial institutions. The plaintiffs claimed that the financial institutions breached their fiduciary duties by failing to disclose their markup on foreign currency conversions. Following his finding of liability, Belobaba J. was willing to order the financial institutions to disgorge their improperly obtained profits. However, he was not satisfied that he could determine these profits, based on the duelling expert evidence before him. Thus, he ordered a reference before himself to do so.

Bifurcation Should be Ordered in Only the “Clearest”, “Extraordinary” Cases

[33] Despite the results of those two cases, the court must remain wary of bifurcating cases. As Sanfilippo J. summarized in 2287913 Ontario Inc. v. ERSP International Enterprises Ltd. 2021 ONSC 6756 at para. 366:

[366] The Ontario Court of Appeal held, in Elcano Acceptance Ltd. v. Richmond, Richmond, Stambler & Mills (1986), 55 O.R. (2d) 56, [1986] O.J. No. 578 (C.A.), at para. 11, that "it is a basic right of a litigant to have all issues in dispute resolved in one trial", [page745] such that it is a "narrowly circumscribed power" to order a Reference. In such circumstances, a Reference should be ordered after trial "in the interest of justice, only in the clearest cases". This is not such a case. Here, ASOI has not established a claim that would give rise to a Reference, or even sufficient evidence to establish the terms of a Reference on the issue of outstanding warranty.

[Emphasis added.]

[34] In Central Sun Mining Inc. v Vector Engineering Inc., 2015 ONSC 3320, Pollak adopted the test for bifurcation set out in Unwin v. Crothers, 76 O.R. (3d) 453, (S.C.J.). There, the court stated that “the evidence to justify bifurcation must be "extraordinary" and "the circumstances of the case must show that the preponderance of factors justify the court in departing from the general rule that all issues relating to litigation should be determined at the trial" (para. 79).

[35] In Unwin, Spies J. added at para 79 that:

Only if the court is satisfied on the balance of probabilities that severance will more likely than not result in the just, expeditious and least expensive determination of the proceedings on the merits, should the court order bifurcation (see Bourne v. Saunby, [1993] O.J. No. 2606, 23 C.P.C. (3d) 333 (Gen. Div.), at p. 344 C.P.C.).

[36] Pointing to the Supreme Court of Canada’s decision in Garland v. Consumers' Gas Co., 2004 SCC 25, [2004] 1 S.C.R. 629, [2004] S.C.J. No. 629, at para. 90, Spies J. notes that the court “expressly held that ‘litigation by installment’ is to be avoided wherever possible, so as to minimize the risk of multiplicity of proceedings and multiplicity of appeals.”

[37] The process of summary judgment is not available under an application: Maurice v. Alles, 2016 ONCA 287. Nonetheless, the Respondents analogize the request for declarations as to liability, followed by a reference as to damages as the equivalent of a request for partial summary judgment. As Respondent’s counsel pointed out, the Court of Appeal for Ontario has been very clear about the risks of partial summary judgment, particularly that of inconsistent findings: Butera v. Chown, Cairns LLP, 2017 ONCA 783, at paras. 26 to 35. As the court wrote at para. 34:

A motion for partial summary judgment should be considered to be a rare procedure that is reserved for an issue or issues that may be readily bifurcated from those in the main action and that may be dealt with expeditiously and in a cost-effective manner.

Analysis

[38] Here, I do not grant the amendment because, as set out before, it would improperly bifurcate this proceeding, causing a form of procedural injustice. Further, this proceeding should not be conducted as an application for the reasons set out below.

[39] The Applicants argue that sub-Rules 14.05 (3)(d) and (h) of the Rules of Civil Procedure apply to this application. Regarding the former, they contend that this application deals with the interpretation of the USA. That interpretation will set out the rights of the parties under the USA. They add that once that interpretation takes place, the court will have to rule that the Respondents have breached the USA. The issue of damages or disgorgement of profits that arise from that finding can then be the subject of a reference.

[40] I disagree. The issue of any breach of the USA by the Respondents is highly contested; not only on the law but the facts. This is not merely a matter of interpreting the USA. To determine the issues raised in this proceeding will require the court to look to the conduct of the parties, including:

a. The conduct of the Applicants and whether they breached the USA by terminating (in retrospect, temporarily) the Respondent’s termination pay, thus entitling Forget to join Robertson;

b. whether the Applicants were entitled to ownership, possession or the contents of the Forget’s laptop. I note that the Applicants only formally requested that the laptop be turned over to have its contents copied a few weeks before this motion was scheduled to be heard and over 21 months after Forget was terminated;

c. whether those contents contained any confidential materials;

d. whether Forget used any confidential information he obtained from the Applicants to assist Robertson in its bidding process for projects for which both companies competed;

e. whether Forget’s allegedly confidential information assisted Robertson in obtaining contracts for which the Applicants bid. I point out that in the evidence before me, after Forget joined Robertson, the Applicants were successful in bidding for six projects for which Robertson also bid. Further, of the three projects that the Applicants complain that Robertson obtained, they were not even the second lowest bidder in one. The evidence regarding another tender is unclear. Regarding the tender in which they were not even the second lowest bidder, the Applicants assert that the lowest bid is not always the successful one. That being the case, they could have lost their bids to Robertson for reasons other than the lowest bid or access to confidential information. These are all matters which require a full factual review and determination.

[41] In short, this is not a case where some minor facts are in dispute. There are significant factual issues between the parties, which touch on both liability and damages.

[42] Looking to the two cases which the Applicants primarily rely upon to argue for their proposed bifurcated proceeding, I find that they are based upon their unique factual matrices. In particular:

a. In CXL Universal Holdings, DiTomaso J. pointed out that in the case before him, no responding materials had been filed and no cross-examinations had taken place. Thus, there was no dispute regarding material facts. I take his comment regarding an application in the face of disputed material facts to be obiter or relevant to statutory or Rules based grounds for proceeding by application.

b. In MacDonald v. BMO Trust Co., Belobaba J. was dealing with an action, not an application. He was able to grant summary judgment as to liability on contested facts, making the issue of damages a distinct one. Further, the issue of damages only required the resolution of a narrow issue: the "’reasonable and necessary expenses’" incurred to generate the “impugned revenue” which the defendants were required to disgorge. The quantum of that revenue was not contested. However, since Belobaba J. was not satisfied with the expert evidence regarding the appropriate quantum of expenses that should be deducted from that revenue in order to determine the net amount of improperly earned profits. He felt that a focussed reference was the most appropriate manner in which to conduct an accounting of the proper expense deductions from the banks’ improper gross profits. That narrow scenario is quite different from the one facing this court.

Conclusion

[43] For the reasons cited above, I dismiss the motion to amend the Application and convert this proceeding into an action, under Rule 38.10 of the Rules of Civil Procedure.

[44] Upon consultation with counsel, I fix the following procedural schedule:

a. The statement of claim will be issued and served within 45 days of the release of this endorsement. A statement of defence will be issued and served within a further 45 days. A reply may be served ten days after service of the statement of defence.

b. Affidavits of Documents shall be exchanged no later than 120 days from the date of release of this endorsement;

c. All cross-examination transcripts shall be treated as discovery transcripts in this action.

d. Supplementary examinations for discoveries shall be completed within 210 days from the date of release of this endorsement;

[45] The timeline of procedural steps described above may be varied by court order or written agreement of the parties.

[46] The parties have agreed upon costs that are payable to the successful party. As the Respondents are the successful party, the Applicants shall pay them the costs of this proceeding of $24,295, inclusive of HST. This amount reflects the fact that much of the work already commenced may remain relevant to the action.

Kurz J.

Released: April 15, 2024