Court File and Parties
File SC-20-00000077-0000
ONTARIO
SUPERIOR COURT OF JUSTICE
Walkerton Small Claims Court
Between:
Westfield Carpentry Company Ltd.
Plaintiff
and
Provincial Store Fixtures Ltd.
Defendant
Judgment
Tyler Mäkinen, Counsel for the Plaintiff
Dimitrios Papadopoulos, Counsel for the Defendant
Background
Sometime around 2018, Gateway Casinos & Entertainment Limited, as owner, contracted with B.L.T. Construction Services Inc. (“BLT”), to construct the “Playtime Casino” in Hanover, Ontario.
By agreement dated November 19, 2018, BLT, as contractor, entered into a agreement with Provincial Store Fixtures Ltd. (“Provincial”), as subcontractor, to undertake the actual construction of the project.
Provincial, in turn, further subcontracted with Westfield Carpentry Company Ltd. (Westfield) “to complete the installation of all product as delivered to site”. The agreement between Provincial and Wesfield followed Westfield’s quotation to Provincial dated December 27, 2018. The price quoted was $186,420.00 plus HST. Significant terms in the quotation included, “Millwork items to arrive shop assembled to the greatest extent possible.” and “Accelerated Schedule to be substantially complete by Feb. 22nd, 2019.”
Westfield commenced work on January 19, 2019.
The project was not done by Feb. 22nd, 2019. It was finally completed only hours
before the casino’s opening at 8:00 a.m. on March 19, 2019, and after an intense last minute rush with workers working through the night and on the weekend.
As part of that last minute rush and in order to get the job done on time, BLT provided workers and charged back $42,337.42 against their payment to Provincial to offset their expense for that labour. Provincial says that the chargeback and alleged deficiencies cost them a total of $82,678.42. Because of this, Provincial did not release the final 10% holdback otherwise due to Westfield.
Westfield states that the deficiencies alleged by Provincial include matters unrelated to their work and, as to anything connected to their work, Westfield states that they corrected all such deficiencies in a timely manner. A few minor approved extras to the contract brought the total contract price before HST to $188,192.50. With HST, the total was $212,657.53. The 10% holdback which Provincial did not release to Westfield was therefore $21,265.75. Additionally, Westfield claims that an invoice for overtime in the amount of $16,261.83 was never paid. The amount claimed in this action by Westfield is the total they say is owing for the holdback and for the overtime. That total is $37,527.58.
The amount claimed in the Claim was $35,000.00. The excess was waived at the time the Claim was issued in 2020 considering that the jurisdiction of the Small Claims Court at that time was $35,000.00. At the commencement of trial, the Plaintiff moved to amend its claim to $37,527.58 as the jurisdiction of the Court had increased October 1, 2025 to $50,000.00. The amendment was granted as the Claim was clear that the alleged damages were $37,527.58 and that all productions by the Plaintiff prior to trial clearly disclosed an alleged quantum of damages in the amount of $37,527.58.
Deficiencies
The issue of deficiencies can be quickly resolved. There was a deficiency list prepared by BLT shown to be printed on May 15,2019. This deficiency list did not break down responsibility between Provincial and Westfield. It was simply a list of deficiencies at the project. The Court accepts the evidence of Westfield’s manager, Rob DeVries, that some of the matters said to be deficiencies were unrelated to Westfield’s work and that all other matters were corrected by Westfield. Mr. DeVrie’s evidence in discussing the deficiencies was detailed, readily understandable, and convincing.
Overtime and Delays
The more problematic issues were, a) why was it necessary for Westfield to incur overtime costs and for BLT to bring in extra workers at the end to complete the project? and b) who should bear the costs for that overtime and BLT charge?
Westfield says that Provincial caused overtime and extra time to be necessary by failing to get materials to the site in a timely fashion. Provincial says that Westfield failed to have sufficient workers available to install the millworks promptly when they were delivered to the site.
On the quotation accepted by Provincial, Scott Harvey, the Project Manager for Provincial hand wrote in blue ink (the terms of the contract were printed in black) in capital letters, “ACCELERATED SCHEDULE TO BE SUBSTANTIALLY COMPLETE BY FEB 22ND 2019". Clearly, everyone knew - particularly Provincial, having regard to the fact that these were the words specifically written in by their Project Manager - that this was a rush job requiring every effort possible to meet a very tight deadline. Apparently, everyone also understood that the casino was scheduled to open March 19, 2019.
Westfield started January 19, 2019 with three workers assigned to the job. Workers’ hours were logged and the records of these hours were filed as exhibits at trial.
The first week on the job, Westfield ran out of work the first full day as Provincial did not have millwork on site to keep Westfield otherwise working.
The next week, the week of January 27, there was nothing for Westfield to install as nothing further had been delivered to the site by Provincial. One of the troubling things about this is that Provincial signed their subcontract with BLT on November 19, 2018. Although Provincial did not have an installer (Westfield) until January, 2019, Provincial knew from November, 2018 that millwork had to be manufactured and installed and knew that there would be a short window of opportunity to get that done.
The following week, the week of February 3, Provincial had enough millwork on site to keep Westfield busy for only four days of the five day work week available.
The February 22, 2019 date for substantial completion came and went. Where was the millwork from Provincial? There wasn’t a detailed list of what was delivered when, but an e-mail from Rob DeVries (Westfield) to Mohamad Wehbe (Provincial) date March 8, 2019 states, “Now that we have a significant amount of product here, BLT is pushing for weekend work. I could get a couple of guys here tomorrow, but we are looking at double time rate. The added cost would be $82.00 per hour. We would need your approval to proceed...” On behalf of Provincial, Scott Harvey, Projects Director, replied, “Approved. I would like a min. of 5 guys on site tomorrow, so we can see work on the canopy, to get out from above where the banquettes have to install & a crew working on the bar top.”
A Field Ticket Work Approval Form signed “Verfied by ‘P. Green” dated March 21, 2019 sets out the hours of double time claimed by Westfield for their employees. It totals 139 hours, of which 26 hours are for March 9, 2019; 10 hours are for March 10, 2019; 38 hours are for March 16, 2019; 47 hours are for March 17, 2019; and 18 hours are for March 18, 2019. “P. Green” who signed the verification is Peter Green, who was the site supervisor for BLT. An additional Field Ticket Work Approval form signed by Peter Green showed time and half hours on March 8, 2019 (24 hours); March 15, 2019 (36 hours); March 16, 2019 (9 hours); and March 18, 2019 (4 hours). Did Peter Green, site supervisor for BLT, have the authority to bind Provincial to pay the overtime hours claimed?
Mr. DeVries testified that Peter Green was always on site for BLT and that there was no one on site regularly from Provincial to sign the Field Ticket Work Approval Form. Provincial argued that Peter Green may have verified the overtime hours, but that all he was doing was confirming the hours noted on the form, and that he was not authorized to sign anything binding Provincial. Provincial further points out that the form was signed after the work was done and that, according to their agreement with Westfield, approval for overtime had to be requested beforehand and approved in writing. The exact wording in the agreement relating to extra work was:
“Any work requested on site that is deemed extra to contract and/or requires overtime labour must NOT be commenced without written permission from PSF. Likewise, all site work must be detailed on a formal PSF Site Time Sheet with scope information, installers name, start time, finish time by task and must be signed for by an authorized Client Site Super and dated the same day as the work was performed. Failure to follow this procedure may result in late or non-payment for the work if client refuses signing retroactively.”
Mr. DeVries stated that he understood from discussions with Scott Harvey that Westfield had a blanket authorization to obtain workers on an overtime basis as required. Mr. Harvey did not give evidence, but in this regard, Mr. DeVries’ evidence was weak. Eessentially, he assumed from these discussions that he had blanket approval for overtime. Given the clear wording in the contract, as set out above, and given that Mr. DeVries did request written authorization on March 8, 2019, and given that the approval reply referred to “tomorrow”, not to the rest of the project, the Court cannot conclude that Westfield had the blanket approval he says they did.
Waiver of Overtime Approval
Clear evidence that Provincial waived the requirements in the agreement and gave blanket approval would be necessary for Westfield to succeed on this point. In Technicore Underground Inc. V. Toronto (City), 2012 ONCA 597, at para. 63, the Court notes:
“The Supreme Court of Canada provides guidance on the doctrine of waiver in Saskatchewan River Bungalows Ltd. v. Maritime Life Assurance Co., 1994 100 (SCC), [1994] 2 S.C.R. 490. In paragraphs 19, 20 and 24, it lays down the following. Waiver occurs when one party to a contract (or proceeding) takes steps that amount to foregoing reliance on some known right or defect in the performance of the other party. It will be found only where the evidence demonstrates that the party waiving had (1) a full knowledge of the deficiency that might be relied on and (2) an unequivocal and conscious intention to abandon the right to rely on it. The intention to relinquish the right must be communicated. Communication can be formal or informal and it may be inferred from conduct. The overriding consideration in each case is whether one party communicated a clear intention to waive a right to the other party.”
In authorizing overtime for “5 guys on site tomorrow”, Mr. Harvey, for Provincial, gave the written approval for overtime required by the agreement. Did that written approval constitute a waiver of the requirement for written approval for all subsequent overtime? No, not to the extent that there was a “clear intention to waive” as referenced in Technicore Underground Inc. v. Toronto (City), supra.
In cross-examination by Mr. Papadopoulos, counsel for the Defendant, Mr. DeVries said, ‘It was clearly understood that that’s moving forward, moving forward overtime is approved.” He also said that the e-mail established that “in black and white”. However, not all his comments were as definitive. He also stated, “I took it to be moving forward”, “that’s how it was taken; that was the spirit of the e-mail”, and “It was implied that we have carte blanche for overtime from that time forward”. Mr. DeVries’ answers were not consistently unambiguous. They do not comfortably align with the words in the e-mail. Itself. It was simply insufficient for Mr. DeVries to assume or imply that all subsequent overtime was approved. That does not constitute a “clear intention to waive” the requirement of a written request for that further overtime as was set out in the agreement.
The authorization for March 9, 2019 indicated that there was to be a minimum of “5 guys” on site. Provincial pointed out that only three employees of Westfield were on site, as evidenced by the Field Ticket Work Approval Form mentioned above. Westfield pointed out that, besides their own three employees, they hired extra workers from Brecon Construction Inc. (who invoiced Westfield $3,757.25 on March 14, 2019 for 35 man hours and by further invoice dated March 14, 2019, $5,152.80, for 48 man hours); from Better Cabinet Designs (who invoiced Westfield $5,622.30 on March 20, 2019); and from International Millwork Inc. (who also invoiced Westfield $5,622.30 on March 20, 2019).
None of these invoices give a day by day breakdown of the hours worked. There was no evidence given during the trial with a breakdown of the days on which the independent contractors paid by Westfield did their work. If there were workers from these companies present on March 9, 2019, there were five “guys” present and working that day. The Court does not consider it necessary that the “guys” referred to in Mr. Harvey’s authorization e-mail had to be employees of Westfield. The difficulty the Court faces with respect to the invoices from the independent contractors hired by Westfield is that there is no clear evidence of the hours worked by these “guys” on March 9, 2019. The best evidence that the Court has is that the Better Cabinet invoice refers to “6 days per diem” and the International Millworks invoice refers to “6 days ... PER DIEM”. (evidently these documents mean to reference 6 days at a certain per diem rate not the literally impossible “6 days per diem”).
The total of these independent contractor invoices is $20,154.65. Given the reference to 6 days, the best the Court can do to establish the cost of this labour for March 9, 2019 is to divide $20,154.65 by 6, which gives us a cost to Westfield for March 9, 2019 (one day) of $3,359.11. In making this calculation, the Court is guided by Martin v. Goldfarb, 1998 4150 (ON CA), [1998] O.J. No. 3403, application for leave to Supreme Court of Canada dismissed: [1998] S.C.C.A. No. 516, wherein Finlayson, J.A., stated, at para. 73, the following regarding evidentiary issues in the context of an assessment of damages:
“I have concluded that it is a well established principle that where damages in a particular case are by their inherent nature difficult to assess, the court must do the best it can in the circumstances. That is not to say, however, that a litigant is relieved of his or her duty to prove the facts upon which the damages are estimated. The distinction drawn in the various authorities, as I see it, is that where the assessment is difficult because of the nature of the damage proved, the difficulty of assessment is no ground for refusing substantial damages even to the point of resorting to guess work. However, where the absence of evidence makes it impossible to assess damages, the litigant is entitled to nominal damages at best.”
Therefore, the authorized overtime for March 9, 2010 was the $3,359.11 paid to the three independent contractors for their labour, and the cost to Westfield for the overtime for their three workers, which was 26 hours @ $82.00 per hour ($2,132.00) or $2,409.16, inclusive of HST. The Court finds that Provincial authorized Westfield to incur the total of these, $5,768.27 in Mr. Harvey’s approval e-mail of March 8, 2019.
As noted above, the 10 % holdback not paid to Westfield was $21,265.75. Together with the authorized overtime of $5,768.27, there would be $27,034.02 owing from Provincial to Westfield, were it not for other issues raised by Provincial in their Defence. The Court has dealt with the deficiencies issue, finding none. The remaining issues arise from BLT’s holdback of $42,337.42 which Provincial says more than sets off any amount otherwise payable to Westfield.
Provincial’s argument boils down to two points: a) the holdback happened because BLT had to step in to do work that Westfield was contracted to do, and b) the contract between Provincial and Westfield had a “pay when paid” clause and Provincial didn’t get paid $42,337.42 from BLT when BLT charged back for the millwork installation it did at its own expense when the millwork installation would never otherwise have been done in time for the casino’s opening..
Westfield’s response to these arguments is that: a) Provincial rendered Westfield’s timely completion of the contract impossible by Provincial’s extraordinary tardiness in getting materials to the site, and b) the law does not recognize a “pay when paid” clause so strictly as to make non-payment to a subcontractor absolute in every case.
Did Provincial’s late deliveries to the site render it impossible for Westfield to do its work within the contractually specified time? In a word - yes.
As noted above, the Project Director for Provincial, Scott Harvey, made it clear right from the beginning that this project was on an “Accelerated Schedule to be substantially complete by Feb. 22nd, 2019.” In fact, Provincial did not get any substantial amount of material to the site until the beginning of March after the Feb. 22, 2019 date for substantial completion had already passed. This, notwithstanding the emphasis on an accelerated schedule and the fact that Provincial had obtained their contract with BLT on November 19, 2018.
Marco Schipani, the Financial Controller for Provincial, gave evidence that he had been involved in 50 to 100 casino projects and that it was “common knowledge” that it was always a “mad dash push” to get casinos open on time, “especially in Nevada”. No evidence was given that anyone at Westerfield was ever apprised of such “common knowledge” nor of Provincial’s Nevada experience where Mr. Schipani said it was common for crews to work all night. Essentially, Provincial took the position that a mad dash was normal, reasonable, and that it was Westfield’s fault that Westfield did not have sufficient labourers on staff or on call when it was time for the mad dash.
Paul Waddell gave evidence at trial. Mr. Waddell was the construction manager for BLT. His construction experience covered 30 years. He was frustrated that everything seemed to be behind on the project. In direct examination, he said that he saw problems with both manpower and product. In cross-examination, he specifically referenced “lack of millwork” as the project was nearing its end. This millwork was to be delivered to the site by Provincial.
It is the conclusion of the Court that the primary cause of the delay was unreasonable delay by Provincial in getting product to the site. This meant that workers had to be located at the last minute, that they had to work nights and through weekends at overtime rates just to be able to complete the project sufficiently for the casino to open at 8:00 a.m. on March 19, 2019. Apparently, numerous workers were involved in the project through the night, right up until just before the casino opened. BLT stepped in with their people to get the job done and, quite reasonably, charged their expenses back to Provincial. Westfield had their workers going flat out and hired independent contractors as well. The reason the Court has not allowed Westfield to claim for overtime and independent contractors beyond March 9, 2019 is not because they were not on the site and necessary to get the job done. It is because of lack of authorization as required by the contract.
A “mad dash” way of doing business may have seemed normal to Mr. Schipani. It did not seem reasonable to the Court, particularly since Provincial knew, as well as anyone, that there was a critical deadline to meet. One of the clauses in the agreement between Westfield and Provincial states: “Scheduling: Sub-Contractor to work in partnership with PSF to best adhere to all published scheduling as required to meet contractual obligations.” The concept of partnership meant that the parties would work
together to meet the deadlines. It did not mean that Provincial could work at its own pace, inconvenience Westfield with tardy delivery of product and, at the last minute expect Westfield to somehow put together everything required to complete a mad dash to the deadline.
That would not be a commercially reasonable manner in which to interpret the contract. In Ontario (Transportation) v. J & P Leveque Bros. Haulage Ltd., 2025 ONCA 573, the Court of Appeal ruled at para. 17:
“Third, a commercial contract is to be interpreted in keeping with sound commercial principles and good business sense, so as to avoid commercial absurdity: 2484234 Ontario Inc. V. Hanley Park Developments Inc., 2020 ONCA 273, 150 O.R. (3d) 481, at para. 64; Toronto (City) v. W.H. Hotel Ltd., 1966 8 (SCC), [1966] S.C.R. 434, at p. 440. Commercial contracts are to be construed in accordance with sound commercial principles and good business sense, objectively rather than from the perspective of one contracting party: Kentucky Fried Chicken Canada v. Scott’s Food Services Inc. (1988), 1998 4427 (ON CA), 114 O.A.C. 357, at para. 27.”
Besides the reference to a “partnership” in the parties’ agreement, there is a duty of good faith to be considered. In Jones v. Quinn, 2024 ONCA 315, at para. 74, the Court states:
“In Bhasin v. Hrynew, 2014 SCC 71, [2014] 3 S.C.R. 484, the Supreme Court acknowledged that ‘good faith contractual performance is a general oganizing principle of the common law of contract’ and ‘manifests itself in various more specific doctrines governing contractual performance:’ at paras. 33, 63. The list of doctrines is not closed, but includes: ‘1) the duty of cooperation between the parties to achieve the objects of the contract; 2) the duty to exercise contractual discretion in good faith; 3) the duty not to evade contractual obligations in bad faith; and 4) the duty of honest performance:’ 2161907 Alberta Ltd. V. 11180673 Canada Inc., 2021 ONCA 590, 462 D.L.R. (4th) 291, at para. 44"
It cannot be said that Provincial acted in bad faith. Listening to Marco Schipani give his evidence, the Court believes that Provincial is a decent, honourable company. Rather, in common parlance, they simply failed to get their act together in a timely fashion and thereby failed in their duty of cooperation between the parties to achieve the objects of the contract.
The "Pay-When-Paid" Clause
Consideration must therefore be given to the argument strenuously advanced by Provincial’s counsel that the “pay when paid” provisions of the contract are an absolute bar to Provincial’s owing Westfield anything, regardless of the circumstances, given that BLT withheld $42,337.42 to cover BLT’s expenses in brining in labourers at the last minute to complete the installation of the millwork.
The contract between Provincial and Westfield does not specifically contain a “pay when paid” provision. Rather, that contract contains a provision which states:
“This contract is for the above noted project and shall be tethered to the same terms and conditions as the main contract that PSF has entered into with the client.”
“Client” is not specifically identified in the agreement, but at other places in the agreement, the term “Client/GC” or “GC” is used in the same context and everyone knew that the main contract was between Provincial and BLT, so, clearly, the contract between Provincial and their client refers to the contract between Provincial and BLT.
That contract, between BLT as the general contractor and Provincial as subcontractor, contains the following wording in Article 6 - Payment (This is a lengthy Article; the following are the key words only):
“,, Final payment ... shall be made within fifteen (15) business days ... provided that an amount equivalent to and representing such final payment has been received by the Contractor from the Owner ...”
Westfield’s first objection to this barrier to payment is that they never received a copy of the contract between Provincial and BLT. That was the evidence of Mr. DeVries. There was no clear evidence that he did receive that contract and it would not be surprising that he did not. Neither Westfield nor Provincial strictly complied with the exact provisions of their agreement. Westfield’s request for overtime did not comply with the agreement, even though approval for one day was granted. Provincial was to “issue a weekly Critical Path Overview (CPO) to sub-contractor” and, apparently, did not do so. (It is noted that his may also have helped the parties focus on meeting the looming deadline. Regrettably, this was not done.)
Mr. DeVries was questioned about various parts of Westfield’s agreement with Provincial and, somewhat exasperated, at one point stated, “I’m a carpenter, not a lawyer”. Of course, that does not excuse him from carefully reading the documents that he signs, but it does seem to paint an accurate picture of what both parties were doing - namely, focusing on the actual job and not on strict compliance with the detailed terms of the agreement.
In any event, the “pay when paid” clause does not, in the Court’s opinion bar payment by Provincial to Westfield in this case.
Counsel for Provincial stressed his client’s position that the “pay when paid” clause effectively transferred all risk of payment to Westfield and that BLT’s charge back was an absolute bar to Westfield’s entitlement to payment. In this regard, counsel cited the decision of the Ontario Court of Appeal in Timbro Developments Ltd. V. Grimsby Diesel Motors Inc., 1988 CarswellOnt 773, [1988] C.L.E. 1104, [1988] O.J. No. 448, 32 C.L.R. 32. In that case, the agreement in question contained the following clause:
“8a. When used for sub-contract work the following terms will apply: Payments will be made not more than thirty (30) days after the submission date or ten (10) days after certification or when we have been paid by the owner, whichever is later. Holdback will be retained in accordance with the Mechanics Lien Act in effect at the time, and when released by owner all payments will be made in Canadian Funds and will be payable at par in Welland.”
The ruling of the Court is set out at para. 3:
“The Court is divided on the interpretation of the underlined words which were added to the standard form used by Ontario contractors several months before execution by the subcontractors. The appellants contended that the added clause was ambiguous but the majority (Blair and Cory JJ.A.) reject this submission. In their opinion the clause clearly specifies the condition governing the contractor’s legal entitlement to payment and not merely the time of payment. Under the clause, the subcontractor clearly assumes the risk of non-payment by the owner to the contractor. Since Timbro was not paid, it is not obliged to pay the subcontractors and the appeal must fail.”
Finlayson J.A., dissenting, was “of the view that the clause relates to the timing of payments due under the contract and in no sense puts the subcontractors at risk they they will not be paid if the contractor is not paid.”
Counsel for Westfield challenged Mr. Schipani with a question about whether he considered a charge back by an owner for any reason, including something unrelated to the subcontractor, was a valid reason to deny payment to the subcontractor. Mr. Schipani replied that in “black and white” it seemed that is what the “pay when paid” clause allowed, but that in his opinion it wasn’t “professional” to hold back funds from a subcontractor when the charge back by the owner did not relate to the subcontractor’s work. The Court appreciated Mr. Schipani’s candour and ethical standards in giving that answer.
In reply to Provincial’s counsel’s arguing Timbro Developments Ltd. V. Grimsby Diesel Motors Inc., supra, counsel for Westfield referred the Court to a decision of the Court of King’s Bench of Alberta, Canadian Pressure Testing Technologies Ltd. v. EllisDon Industrial Inc., 2022 ABKB 649 where, at para. 21, the Court states, “In summary, I am not going to follow Timbro. It is not binding on me. It appears to have been minimized, distinguished and ignored to the point that it has little precedential value.”
At para. 19 of that case, the Court referred to the Ontario case, Kor-Ban Inc. v. Pigott Construction Ltd., (1993) 11 C.L.R. (2d) 160 (Ont. Gen. Div.). Of particular significance to the present case is the following passage:
“18 Relying on the Court of Appeal’s decision in Timbro Developments Ltd. v. Grimsby Diesel Motors Inc. (1988), 32 C.L.R. 32 (Ont. C.A.), Bell J. accepted that the clause in the contract specified a condition precedent to legal entitlement to payment from the contractor to the sub-contractor.
19 At p. 28 of her judgment, Bell J. states [at pp. 185-186 C.L.R.]:
“Thus, the issue is whether there has been any act or default on the part of the general contractor which has been the cause of the owner’s failure to pay the general contractor. If there has been, then the general contractor would not be entitled to rely on a clause such as s. 12, in the subcontract in this case.”
This last point is key to the Court’s decision in the present matter. Provincial cannot rely on the “pay when paid” clause because its own act or default has been the cause of the owner’s failure to pay it. The reason that BLT stepped in with its own labourers as the project was critically approaching the deadline was because Provincial had not provided materials to the site in a timely manner that would have allowed Westfield to get the installation done on time with its own employees or independent contractors.
As a result, Westfield is entitled to the 10% holdback, $21,265.75, and the authorized overtime, $5,768.27, for a total of $27,034.02.
Disposition
Westfield shall have judgment against Provincial for $27,034.02 plus pre-judgment interest at the Courts of Justice Act rate from May 18, 2019. The date for commencement of pre-judgment interest is based on substantial completion of Westfield’s work on March 19, 2019 plus 60 days to account for the time frame when holdback was appropriate pursuant to the Construction Act, R.S.O. 190, c. C.30, as amended.
Costs are reserved pending written submissions by counsel, to be provided to the Court Clerk within two weeks of the release of this Judgment.
Dated: January 14, 2026
Ross C. McLean,
Deputy Judge