COURT FILE NO.: CV-24-723211-00CL DATE: 20241209 SUPERIOR COURT OF JUSTICE – ONTARIO (COMMERCIAL LIST)

RE: The Foundation Assisting Canadian Talent on Recordings (FACTOR), Applicant AND The Bank of Nova Scotia, VirgoCX Direct Inc., James Campagna, 10426377 Canada Inc., John Doe, Jane Doe and Doe Corporation, Respondents

BEFORE: W.D. Black J.

COUNSEL: Milton Davis, Catherine Francis and Hailey Abramsky, for the applicant Paul-Erik Veel and Devon Kapoor, for the Respondent Bank of Nova Scotia Greg Azeff and Gina Rhodes, for James Campagna and 10426377 Canada Inc. Andrew Jia, for the Respondent VirgoCX Direct Inc.

HEARD: November 29, 2024

Endorsement

Overview

[1] There were two motions before me in this matter today.

[2] First, the applicant, The Foundation Assisting Canadian Talent On Recordings (FACTOR), a non-profit funder of Canada’s musicians and industry members, brings a motion for additional productions from the respondent, The Bank of Nova Scotia (BNS).

[3] The application arises from and relates to a cybertheft of approximately $9.7 million from a bank account of FACTOR at BNS.

[4] I have previously dealt with this matter on two occasions.

[5] On July 10, 2024, I made an order in the nature of a Norwich order, which was unopposed.

[6] I next heard a case conference on August 19, 2024. At that time FACTOR was seeking to issue and deliver a Fresh as Amended Notice of Application (the “Amended Application”) to include Mr. Campagna and 10426377 Canada Inc. (104) as respondents, and was expressing concerns about what it alleged was an unduly narrow interpretation taken by BNS to its production obligations following from my July 10 order. BNS, for its part, was suggesting that rather than FACTOR issuing an Amended Application, the matter should instead be converted to an action. I note that, given that the hearing on August 19 was a case conference, there was no motion before me that day, either by FACTOR for additional productions, or by BNS to convert the proceeding to an action.

[7] In the circumstances at the time, apart from granting leave for FACTOR to issue its Fresh as Amended Notice of Application, I encouraged BNS to revisit its approach to productions, noting that my July 10 order had been broad in scope, and that the intention had been to allow for relevant information concerning the (fraudulent) transfer to be unearthed expeditiously to maximize the chances of recovery. I observed that in my view BNS’s narrow interpretation of its production obligations to that point was in fact too narrow, and found that at that stage, particularly given the need for expedition at the outset, there was no imperative to convert the proceeding to an action.

Issues Before me Today

[8] By the time the parties were before me today, while FACTOR had in fact issued and served its Amended Application, and had made some strides in its investigation to determine the means by which the unauthorized transfer occurred, the issues that were raised before me in a somewhat preliminary way on August 19 had persisted and taken hold.

[9] That is, FACTOR continues in its motion to complain about BNS’s parsimonious and incremental approach to productions, and BNS has now served the other (second) motion before me today, seeking to convert the application into an action and to put in place a timetable for that proposed action. BNS is supported in its request by Mr. Campagna and 104 (who as noted were added as parties in the Amended Application).

The Productions Motion

[10] Dealing first with FACTOR’s motion for productions, I would first observe that since BNS engaged new counsel, its approach to productions has been somewhat more expansive and forthcoming. That is not to criticize BNS’s former counsel; often a new set of eyes on the file will lead to changes in the way the case is being approached, and I expect that new counsel reinforced to BNS the need to be cooperative in delivering relevant documents.

[11] That said, FACTOR complains that BNS’s productions have still only arrived in “dribs and drabs,” and have yet to meet the expectations of comprehensive relevant productions, nor the spirit of the direction in my earlier endorsements in this matter.

[12] BNS maintains that it has produced virtually all of the documents that FACTOR has requested, that the only material it has knowingly held back is material that BNS says is not relevant or only marginally relevant, and is commercially sensitive, such that BNS requires protection and assurance that the material cannot and will not find its way into the public domain. In some instances, BNS’s position is that the material sought is so sensitive that BNS is not prepared to produce it at all, even with a structure to ensure that the material remains confidential.

[13] BNS also argues that the dispute over what is to be produced also underscores the benefits of an action as compared to an application. It asserts that in an action, where affidavits of documents are required, there is a structure and clear expectations guiding a party’s obligations. In an application, as here, BNS maintains that productions are less prescriptive and emerge as parties assert and respond to one another’s positions, including during the course of examinations.

[14] The latter observation is generally fair, but also conveniently tethered to BNS’s position that the application should be converted to an action. It also does not excuse non-compliance with a court order, like the one I made on July 10, mandating broad and inclusive disclosure. While BNS’s adherence to the expectations set by that order has been better of late, particularly since the arrival of new counsel, it is fair to observe, as FACTOR does, that BNS’s overall approach to productions has been characterized by some degree of obfuscation and heel-dragging.

Details of FACTOR’s Position on Productions

[15] In its materials relative to the productions motion, FACTOR has included a chart labelled “Chronology of Scotiabank Productions.”

[16] That Chronology confirms the dynamics described above.

[17] In the first couple of months of this matter, BNS appears to have taken a constrained and halting approach to productions, such that even when other entities – VirgoCX Direct Inc. (“VirgoCX”) and ATB Financial (“ATB”) – provided much more fulsome materials, BNS refused even to produce materials that had already been produced by those other entities (for example ATB produced correspondence between it and BNS concerning the fraudulent transfer, whereas BNS did not produce that same set of correspondence).

[18] There was a very modest flurry of additional production immediately after my August 19 endorsement, in which I was critical of BNS’s “interpretation of its production obligations.”

[19] The tap was then turned off again until BNS engaged new counsel, and, since then, there has been a steady trickle of additional BNS productions.

[20] As noted, part of FACTOR’s complaint is about the allegedly glacial pace at which BNS has provided relevant materials, particularly but not exclusively earlier on in the proceeding. As an example underlining FACTOR’s frustration with the manner of BNS’s disclosure of materials, in its factum FACTOR says: “Most recently, minutes before FACTOR served its factum for these motions, Scotiabank delivered key information it had been withholding: internal emails revealing that, on the day of the theft, the fraudsters deleted Ms. Anianova, the sole legitimate digital token holder, and Ms. Smysyk, FACTOR’s CEO, as authorized users of the online Scotiabank account.”

Three Categories of Outstanding Productions

[21] What appears to remain outstanding at this stage are three categories of materials:

(a) Certain details from the ongoing investigation that BNS has admittedly been conducting relative to the fraud, including internal email traffic that has clearly involved numerous BNS personnel but in respect of which only a smattering of emails have been produced;

(b) The “session logs” for FACTOR’s ScotiaConnect account. BNS describes these as “incredibly detailed technical documents that set out complete records of what occurs within a user’s Scotiabank account once a user has obtained access.” BNS asserts that these logs are not relevant in any event, in that the logs will only show what the fraudsters did within the account, the substance of which has already been disclosed. Nonetheless, BNS is prepared to produce the session logs, provided a sealing order is granted to protect their commercially sensitive contents;

(c) Lastly, the category of documents that “Scotiabank opposes production of under any circumstances” is detailed information sought by FACTOR pertaining to alerts of unusual activity within its systems.

A. Information from BNS’s Investigations

[22] Dealing with those three categories in turn, I think it is fair to say that BNS has, albeit somewhat slowly and grudgingly, produced in an indirect way the fruits of much of its internal investigation.

[23] For example, rather than producing copies of notes made by its employees of interviews with Mr. Campagna in the early days following the discovery of the fraud, I am advised that BNS has instead provided summaries of the discussions covered by the notes.

[24] The rationale for this indirect approach is apparently that the interview at issue was conducted at the request and direction of counsel. This purported justification seems thin to me, particularly now that Mr. Campagna has since become a party respondent in the litigation, but even apart from that development. A party cannot generally protect from disclosure information from a critical independent fact witness, simply because the interview of that witness was directed by counsel. The notes at issue are not notes made by counsel, which would merit different considerations.

[25] I do not know what other information has been filtered in some way as a result of being gathered as a consequence of encouragement by counsel, but I would again encourage BNS to take another look at the products of its internal investigations and revisit the question of what more might be producible. It seems to me that all such information is likely to be relevant, and if BNS is holding back relevant information under the guise of questionable claims for privilege, there are likely to be consequences down the road.

B. The Session Logs

[26] The second category of information sought seems to me to be readily soluble.

[27] BNS maintains that the session logs are of little or no relevance, but says that so long as appropriate protections are in place to prevent aspects of the session logs from spilling into the public domain, it is prepared to produce them.

[28] On the question of the relevance of the session logs, it seems to me that evidence about what the fraudster did, after providing fraudulently acquired authentication and accessing the account, is likely to qualify as relevant. FACTOR has already engaged a number of experts, and the basis for FACTOR’s request for the session logs is in part that one or more of its experts have requested that information.

[29] Moreover, as noted, and notwithstanding its stated position that the information is of marginal relevance at best, BNS is prepared to produce the session logs. In its factum, BNS says that its willingness to produce the session logs is “subject to an appropriate sealing order.”

[30] I am open to considering a sealing order relative to the session logs (or aspects thereof) when and if we are at the point that they are to be filed in the court file. At the moment, however, the issue is only how BNS can provide the session logs to FACTOR on a basis that assures BNS there will be no public disclosure of this information.

[31] There appears to be a debate between the parties about how best to have the information provided in a fashion that protects it from the public eye.

[32] It seems that BNS is continuing to insist on a form of sealing order, whereas FACTOR is suggesting instead a form of agreement that replicates the operative provisions of BNS’s proposed sealing order. Counsel for BNS has written to FACTOR’s counsel, in response to the proposed form of agreement, saying: “The NDA does not provide us with any assurances that the session logs won’t ultimately be publicly filed.”

[33] The parties should be able to sort this out. For example, the proposed agreement could be amended to include an undertaking on the part of FACTOR to consent to a sealing order as a precondition of filing the session logs, or any portion of them, in court (subject to the court’s direction). Whatever the specific drafting solution, I expect the parties to agree, acting reasonably, on the best way to surmount this small hurdle.

C. BNS’s Internal Alerts

[34] The third issue is, I agree, a trickier one.

[35] The request by FACTOR is for “all alerts set up by Scotiabank to detect or alert Scotiabank personnel to unusual activity.” BNS has refused production of the details of the internal alerts it has set up to detect unusual activity, for three reasons:

(a) First, BNS argues that in light of FACTOR’s pleaded theory of the case, these documents have no relevance. BNS characterizes FACTOR’s theory as being that BNS’s Guarantee (an online representation that BNS makes to customers and prospective customers that customer funds are safe in BNS accounts) requires BNS to reimburse the amounts owing. BNS maintains that the alerts (and BNS’s security systems more generally) have no relevance to the applicability of the Guarantee, in that the Guarantee’s application (if it is part of the contractual matrix) depends on whether FACTOR met its security obligations, not on BNS’s conduct.

(b) Second, BNS says, because none of the transactions at issue pertaining to FACTOR’s ScotiaConnect account resulted in any alert by which the Bank’s systems determined that further action, such as manual review, was required, therefore details of the alerts that BNS had in place are not relevant.

(c) Third, BNS emphasizes that the details of these alerts are highly confidential and commercially sensitive. It says that the details of the alerts are the “secret sauce” of ScotiaConnect’s online security efforts, and that their public disclosure would provide threat actors with information that would allow them to circumvent those systems. This could, in turn, undermine the Bank’s systems and result in substantial losses to both BNS and its customers. BNS says that for this reason, the alert details are never disclosed externally and highly restricted even inside the bank.

Discussion and Conclusions re BNS Productions

[36] Of the three stated reasons, I am sympathetic to the third one, but not persuaded by numbers one and two.

[37] With respect to the first reason, BNS’s counsel, in an exchange during argument, suggested that inasmuch as FACTOR’s claim is framed in contract, and not negligence, issues as to whether or not BNS’s internal systems, including its account alerts, meet expected standards are not relevant to pleaded claims.

[38] I disagree. While it is fair to observe that FACTOR’s claim is not expressly based in negligence, FACTOR does allege, in its Amended Application, that:

“32. It is an express, or in the alternative implied term of Scotiabank’s obligations under its banking arrangements, FINTRAC obligations and the Scotiabank Guarantee that Scotiabank has implemented sufficient safeguards in its systems, including its digital banking systems to:

a. Prevent unauthorized persons from gaining access to its customers’ accounts without the express authorization of the customers’ authorized signing officers;

b. Notify its customers of any potential unauthorized access to their accounts on a timely basis;

c. Detect unusual or suspicious activities in its customers’ accounts and notify them of such unusual or suspicious activities;

d. Take all reasonable steps to safeguard its customers’ funds;

e. Take all reasonable steps to recover the proceeds from any unauthorized activities in its customers’ accounts.”

[39] Even if not accompanied with language alleging negligence per se, these allegations in my view import considerations as to whether or not BNS’s internal security systems were reasonable and in keeping with expected standards. They specifically put in issue the adequacy of the means by which BNS protects its customers’ accounts and funds and, to the extent the internal alerts are an important feature of that regime – its “secret sauce” – the sufficiency of the alerts is squarely raised.

[40] As to the bank’s assertion that the issue will come down to the question of whether or not FACTOR, rather than BNS, met its obligations, it is of course open to BNS to allege and pursue that theory, but its ability to do so does not preclude other theories being advanced, any and all of which will ultimately be determined by the court.

[41] The second reason offered by the bank, with respect, seems circular and nonsensical. BNS says that, because the alerts were not triggered, the details of the alert triggers are not relevant. It seems to me that this begs the question. FACTOR points out that no alerts were triggered when FACTOR’s two authorized account users were terminated and replaced, or when an amount was transferred out of FACTOR’s account that was approximately 10 times larger than any previous transfer ever made from that account. It argues that this shows, or may show, that BNS’s internal alerts were inadequate to warn BNS or FACTOR that potentially nefarious efforts were afoot, and that as such the precise formulation of BNS’s internal alert system is highly relevant. In my view, this suspicion is available in the circumstances, and certainly justifies the requested production.

[42] As noted, I am sensitive and sympathetic to BNS’s third reason. I have no desire to risk compromising the integrity of the BNS’s customer account security.

[43] That said, I find that on balance the inquiry is a relevant one, and the information producible.

[44] Accordingly, I direct BNS, in consultation as necessary with its internal and/or external account security consultants, to determine and propose a mechanism to provide, or provide access to the relevant details of its internal alert system, to FACTOR, in a way that ensures the confidentiality of the information. I expect BNS to do so, and to propose to FACTOR, through counsel, a secure means to accomplish the production of the information, within 10 days of the date of the release of this endorsement.

Productions of Mr. Campagna and 104

[45] Turning now to the additional respondents, still on the issue of productions, I note that there are no complaints raised or relief sought vis-à-vis VirgoCX, which by all accounts produced the relevant material in its possession swiftly and comprehensively.

[46] On the other hand, I note that Mr. Campagna and 104 have provided no productions whatsoever to FACTOR.

[47] Mr. Campagna, in his affidavit in this matter, and presumably by way of purported explanation for not having produced anything to FACTOR, notes first that he was not a party as at July 10 when FACTOR’s initial motion was brought, and did not receive the motion record.

[48] That said, it is clear that Mr. Campagna has since received a copy of my July 10 order, and is aware that it compels “any other person having notice or knowledge of [the order]” to “forthwith deliver” essentially any and all documents in their possession relevant to the fraudulent transfer.

[49] Mr. Campagna goes on to say that he did provide certain materials to BNS, and that to his knowledge both BNS and VirgoCX have produced 104-related documents to FACTOR, including documents related to his BNS account (in the case of BNS) and communications between himself and VirgoCX (in the case of Virgo).

[50] This of course does not obviate the need for Mr. Campagna and 104 to comply with the July 10 order themselves and yet, somewhat remarkably, even knowing that others have produced materials that obviously would be within the possession, power and control of Mr. Campagna and 104 – and clearly subject to the July 10 order – Mr. Campagna and 104 have made no effort to furnish any productions at all.

[51] Mr. Campagna, in his affidavit, states that he takes “no issue with the [disclosure of documents by other parties] to date as it relates to the 104 Respondents”. This is not so magnanimous as Mr. Campagna seems to think; he remains obliged to make production of his relevant materials and those of 104, and he is in my view very late to do so.

[52] Mr. Campagna also echoes what BNS says in its materials concerning the benefits of converting the proceeding to an action.

[53] He says that “the matter should be converted to an Action so that I can provide relevant documents in response to the allegations raised in the statement of claim.” He provides no explanation as to why he has not provided those relevant documents in response to the July 10 order, not even since he and 104 were added as parties over three months ago. I find that despite the evident effort to shelter under the position of BNS, Mr. Campagna and 104’s response to the imperative to produce relevant materials is woefully and deliberately inadequate.

Summary of Conclusions re Productions

[54] Accordingly, and by way of summary with respect to my findings concerning the productions issues:

(a) BNS is to revisit its position regarding the results of its internal investigation, and to make further – and direct (i.e. not merely by way of summary) production of relevant materials in its possession relative to the investigation and not subject to an established privilege. I expect such additional materials as BNS determines to produce to be delivered within two weeks of the date of release of this endorsement;

(b) Counsel for BNS and FACTOR are to discuss and agree on the terms of an agreement under which the session logs are to be produced. I expect the agreement to be finalized within one week of the date of release of this endorsement, and that the session logs will be provided within three further days after that;

(c) With respect to BNS’s internal alert system(s), BNS is to consult with its internal and/or external consultants and is to propose to FACTOR (again via counsel) within 10 days after the release of this endorsement, a mechanism by which the information in this category can be conveyed to FACTOR in a way that eliminates or at least substantially minimizes the risk that any such information can or will be leaked into the public domain;

(d) In the case of Mr. Campagna and 104, they are to provide to FACTOR within a week of the release of this endorsement any and all relevant information in their possession relative to the fraudulent transfer, in accordance with my July 10 order.

The Conversion Motion

[55] I turn now to the second matter before me, being BNS’s motion, supported by Mr. Campagna and 104, that FACTOR’s application should be converted to an action.

[56] BNS recites, as its starting point, the provisions of Rule 38.10(1)(b) and (2), contemplating that applications may in some circumstances be converted to actions.

[57] Relevant caselaw confirms that the factors for consideration by the court in that context include:

(a) Whether there are material facts in dispute;

(b) Whether there are complex issues requiring expert evidence and/or a weighing of evidence;

(c) Whether there is a need for pleadings or discoveries; and

(d) The importance and impact of the application and the relief sought.

[58] BNS asserts, relying in particular on Fort William Indian Band v. Canada, that “An application is appropriate when there is no matter in dispute and when the issues to be determined do not go beyond the interpretation of a document.

[59] I note that the decision in Fort William is not quite as cut and dried as that. For example, after reciting the test set out above, G.P. Smith J. notes that “when a factual dispute simpliciter is involved, this by itself is not sufficient to convert an application into an action.”

[60] In Seabrook v. Pantrust, 2018 ONSC 5471, Nakatsuru J., in turn referencing the decision of Firestone J. (as he then was) in Przysuski v. City Optical Holdings Inc., 2013 ONSC 5709, sets out a list of “General principles to consider in determining whether to convert an application into an action.” These include:

(a) The “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 contract;

(b) The notion that 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;

(c) 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 an application record;

(d) When issues of credibility are involved, the matter should proceed by way of action;

(e) 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; and

(f) From the Collins v. Canada (Attorney General) (2005), the list of factors set out in paragraph 55 above.

[61] I would observe that, doubtless owing to imperatives of efficiency and access to justice, the court is often and I think increasingly amenable to allowing even somewhat complex matters to proceed by application, subject always to what I regard as the overriding consideration among the various factors, being the question of whether or not the judge hearing the matter feels that she or he can fairly make a proper determination of the issues based on the application record.

[62] It is not unreasonable in this case, in my view, for BNS to assert that the determination of this matter may ultimately have to be by trial. The matter involves cyber-fraud, and, as is evident from FACTOR having already engaged four experts (and BNS one), and from the extensive session logs and internal controls sought by FACTOR, there is complexity, at least in unravelling the technological means by which that fraud was perpetrated.

[63] It is easy to imagine that, once those experts generate their respective opinions, and assuming competing theories, the court is likely to need painstaking viva voce evidence to determine just what was done and who bears responsibility.

[64] I suspect that the likelihood of this kind of competing evidence, and other potential credibility issues was animating Kimmel J., when she wrote, in her endorsement establishing the timetable for this motion: “This is a fraud action. As it has evolved and expanded the question of whether it is appropriate to proceed as an application can and should be revisited.”

[65] In my discussion with FACTOR’s counsel during the course of submissions, I too raised a concern, in particular about the inevitably complex expert evidence, and whether that would lend itself to determination on a paper record.

FACTOR’s Response to Proposed Conversion

[66] FACTOR posits three main reasons why the application should remain an application, at least for now.

[67] First, it expresses, in this context, the same frustration that it voices concerning the somewhat protracted pace of the respondents’ productions to date. It characterizes the respondents’ motives in attempting to convert the application to an action as being “only to delay and frustrate this litigation.”

[68] Second, it maintains that this matter, despite its size, really boils down to a fairly straightforward interpretation of a contract, and in particular whether or not BNS is bound by its Guarantee to reimburse FACTOR for the fraudulently transferred funds.

[69] Third, and I think FACTOR’s most compelling position on this issue, it points out that unless and until the respondents deliver their evidence, it is and remains speculative as to the extent to which there genuinely are facts and credibility matters in issue.

[70] FACTOR observes, fairly, that the only evidence offered by BNS so far has been two affidavits from a single deponent, Ms. Leung: one in August to respond to FACTOR’s early concerns about BNS’s compliance with my July 10 order, and one in the context of this motion.

[71] Ms. Leung’s evidence, FACTOR asserts (again fairly) is at a high level, and speculative. For example, in describing BNS’s position and likely steps in the litigation, Ms. Leung deposes that “Scotiabank intends to advance crossclaims for contribution and indemnity against the co‑Respondents. Those claims for contribution and indemnity will likely involve determinations of the identity of the fraudster and relationships between the various co‑Respondents, among other material issues that are likely to be in dispute.”

[72] What Ms. Leung does not do is to definitively assert any affirmative evidence, or even firm positions, on behalf of BNS. While I understand the wish to be circumspect until further evidence emerges, this somewhat non-committal approach to the evidence underlines FACTOR’s point that unless and until BNS articulates a position and proffers specific evidence, the banks’ assertion that there will be matters in issue requiring viva voce evidence remains speculative.

[73] For his part, in his affidavit submitted for this motion, Mr. Campagna also makes broad pronouncements without particular evidence to support them. For example in paragraph 4 of his affidavit Mr. Campagna says “For the reasons that follow, the 104 Respondents are of the view that the Application should be converted into an Action. This matter involves highly disputed material facts and complex issues with respect to an alleged fraudulent transfer of $9,772,875.33 (the “Funds”) from FACTOR’s Scotiabank account, which have been converted to cryptocurrency.”

[74] What then follows in Mr. Campagna’s affidavit is in fact a straightforward recitation of known and undisputed facts, peppered by broad denials that Mr. Campagna is himself the fraudster. Again, as in the case of BNS, there is little in the way of affirmative evidence.

Conclusion re Conversion Motion

[75] On balance, I am persuaded that it is premature, until BNS and Mr. Campagna/104 deliver responding records, to order the proceeding converted to an action.

[76] I caution FACTOR that this may prove to be a Pyrrhic victory. It may prove to be the case, once the responding evidence is laid out, that there will in fact be significant factual matters in dispute, and, as Kimmel J. cautioned, the question of potential conversion to an action will have to be revisited.

[77] If that proves to be the case, then the time between now and the respondents’ delivery of their respective records may end up being minimally productive, and at that stage, and indeed at various junctures going forward FACTOR will be well-advised to continue to consider whether at some stage the conversion to an action is unavoidable (and perhaps beneficial).

[78] That too is necessarily speculative, and so I will reserve further comment until the extent of contentious evidence is known.

[79] In the meantime, so as to minimize the further delay, but understanding the demands of the season, I order the respondents to deliver their responding records by January 10, 2025. At that stage, if it wishes to proceed with cross-examinations, FACTOR (and of course the other parties) may do so, and such cross-examinations should be completed by January 31, 2025.

[80] At that point, I expect that all parties will be in a position to revisit the form of the proceeding. If FACTOR is persuaded at that stage (or of course if the court decides) that the matter should proceed from there as an action, I expect it will be appropriate to treat the records as the pleadings, and the cross‑examinations as discoveries.

[81] In that regard, both BNS and Campagna/104 have predicted the need for cross‑claims. (and it is conceivable that VirgoCX will also take that position). There is no specific mechanism under the rules for cross-applications. As such, I expect that in their respective responding materials, the respondents will each include such evidence as may form the basis of claims over against other respondents. The assertion of cross‑claims, depending on their content, may ultimately be another factor favouring conversion to an action, but again that remains to be seen.

Costs and Miscellaneous

[82] No party has uploaded a costs outline to Case Center as required. I will proceed on the assumption that is intentional, and that no party is seeking costs at this stage.

[83] If I am mistaken in that assumption, I would be prepared to hear submissions as to whether or not I should consider awarding costs and if so on what basis.

[84] I am also generally prepared to remain available to the parties to the extent they require ongoing directions or determinations.

W.D. BLACK J. RELEASED: December 9, 2024