ATM Cash Systems (Canada) Ltd v Vanshaw Enterprises Ltd, 2017 ABQB 622

Court of Queen’s Bench of Alberta Citation: ATM Cash Systems (Canada) Ltd v Vanshaw Enterprises Ltd, 2017 ABQB 622 Date: 20171017 Docket: 1501 06573 Registry: Calgary Between: ATM Cash Systems (Canada) Ltd. Plaintiff - and - Vanshaw Enterprises Ltd., 692271 Alberta Ltd., Alta-Tech Industrial Designs Ltd., DirectCash Payments Inc., Kevin Van Der Kooy, and Mayfield Television Productions Ltd. Defendants _______________________________________________________ Memorandum of Decision of A. R. Robertson , Q.C., Master in Chambers _______________________________________________________ Introduction [ 1 ] This application for

summary judgment is brought by the plaintiff ATM Cash Systems (Canada) Ltd. pursuant to the terms of contracts that it says are clear and provide for liquidated damages. It says that a breach of contract occurred on June 8, 2015. It calculates its liquidated damage claim as of July 1, 2015, when a threat of a breach of its contract made on June 8, 2015 became reality. Its claim is for $2,855,538.55. [ 2 ] ATM had refused, until after I reserved to review the evidence and authorities, to produce certain records that the defendants argued strenuously are relevant and material.

After I had written these reasons, subject to some modest editing, I was provided with the records that the defendants had been asking for, but not in an affidavit. ATM proposed to provide an affidavit if I asked, but did not want

any cross-examination to be held. [ 3 ] Counsel for the defendants have, properly, objected. I do not take the records into account as they are nor properly before me, and they are not in the evidence. Even if they were now in evidence, this would be a case of violation of rule 6.6(3) as well as Practice Note 2, although as I will explain all parties seem to have ignored the deadlines set out in Practice Note 2. [ 4 ] This decision is therefore released as if the records had not been provided.

Background History of the Agreements [ 5 ] ATM Cash had made an agreement with Vanshaw Enterprises Ltd. and the shareholders of Vanshaw, to have the exclusive right to place automatic teller machines in the casino operated by Vanshaw in the Mayfield Inn in Medicine Hat, Alberta. [ 6 ] The agreement was not initially with Vanshaw, but instead it was with two of Vanshaw’s shareholders, 692271 Alberta Ltd. and Alta-Tech Industrial Designs Ltd. Those two corporations previously held the exclusive rights to operate automatic teller machines in the casino.

By a written agreement amongst ATM Cash and those corporations dated April 28, 2006, the exclusive rights were sold to ATM Cash for $2,062,000 plus one half of each surchargeable transaction fee in excess of $2.75 received by ATM Cash. [ 7 ] By written agreement dated June 16, 2006 amongst the same three corporations ( i.e. , still not with Vanshaw), the parties agreed to extend the time for financing and to change the closing date. [ 8 ] By written agreement dated June 28, 2006 the same three corporations agreed to reduce the purchase price to $1,962,000 plus one-half of each surchageable transaction fee in excess of $2.75.

They also agreed that the two shareholder corporations would “carry” $300,000 of the purchase price. [ 9 ] The purchase price was paid to 692271 Alberta Ltd. and Alta-Tech Industrial Designs Ltd. [ 10 ] By written agreement date October 5, 2012 ATM Cash agreed with Vanshaw, 692271 Alberta Ltd., Alta-Tech Industrial Designs Ltd. and another shareholder of Vanshaw, Mayfield Television Productions Ltd., which recited, incorrectly according to the documents we now see, that “ATM and Vanshaw are parties to an Agreement dated April 28, 2006 amended June 16, 2006 ...”.

As discussed, the previous agreement that was referenced was not actually with Vanshaw but was with two of its shareholders, and it had been amended twice, not once. [ 11 ] However, by this 2012 agreement the termination date of the previous agreement(s) (which had been July 17, 2016) was amended to be July 17, 2026 (ten years later), “and to add as parties to the Agreement the shareholders.” The price for the extended licence was $500,000 and ATM Cash was to pay it “to Vanshaw or the Shareholders”.

The surchargeable transaction fee was increased, and “Vanshaw or the Shareholders” were to receive at least $2.00 per transaction. [ 12 ] The 2012 agreement specifically addressed the possibility of either the sale of shares or the sale of the business assets by Vanshaw prior to the end of the extended term. It contemplated but the agreement essentially provided that ATM Cash would be compensated by both Vanshaw and the shareholders.

Exclusivity [ 13 ] The original April 28, 2006 agreement was clear that ATM Cash was acquiring “the exclusive licence to own, operate and provide processing of all automatic cash machines located on the casino premises and upon any such other premises operated during the currency of this Agreement by the [shareholders] as a casino” and nothing in the amending agreement altered that. [ 14 ] The October 5, 2012 agreement that added Vanshaw and Midfield Television as parties was signed pursuant to a written offer that specifically referred to the exclusivity.

That offer was made by ATM Cash to “Casino by Vanshaw”, a body corporate with offices in the province of Alberta”. “Casino by Vanshaw” accepted it. No one suggests that “Casino by Vanshaw” is anything other than Vanshaw Enterprises Ltd. [ 15 ] Accordingly, although the documentation is somewhat awkward, there is no doubt that a core part of the agreement was that ATM Cash had exclusive rights to operate automatic teller machines in the casino until 2026.

Parties to the 2012 Agreement [ 16 ] There is also no doubt that the three shareholders expressly made themselves parties to the agreement, covenanting for this exclusivity. Two of them, 692271 Alberta Ltd. and Alta-Tech Industrial Designs Ltd. had received significant compensation for selling this exclusivity. The other shareholder, Mayfield Television was not initially sued, and was added only late in the day (May 16, 2017).

It may have received some compensation directly because of the “either/or” payment obligations. [ 17 ] Notwithstanding their express covenants set out in the 2012 agreement, there is said to be an issue as to the liability of the defendants 692271 Alberta Ltd., Alta-Tech Industrial Designs Ltd., and Mayfield Television Productions Ltd. as to whether they are liable to ATM Cash for the agreements that they signed.

They argue that the breach was committed by Vanshaw alone, and the shareholdings have apparently changed in the interim (Alta-Tech sold its shares in Vanshaw to 692271 Alberta Ltd. in 2014), although there is no evidence that ATM Cash was advised of the changes. Alta-Tech did not give any such notice. [ 18 ] However, the preliminary issue is whether or not the plaintiff is entitled to

summary judgment as against anyone. Anticipatory Breach

[ 19 ] On June 8, 2015 (or perhaps it was June 9 but the precise date is not material) Mr. Tony Steiert, the owner of ATM Cash systems, received a telephone call from Kevin Van der Kooy of Vanshaw. Mr. Van der Kooy explained that the casino was in financial difficulty, and in order to alleviate the difficulty he had entered into a new financing agreement with DirectCash. [ 20 ] Of importance to Mr. Steiert was the fact that the DirectCash agreement required the removal of the ATM Cash machines from the casino and the replacement of them with machines owned by DirectCash. Mr. Van der Kooy told Mr.

Steiert that the DirectCash financing agreement was already in place. [ 21 ] In that telephone conversation Mr. Van der Kooy offered Mr. Steiert $1,200,000 to buy out the ATM Cash Systems contract. Mr. Steiert said he needed time to talk to his investor. [ 22 ] Within 24 hours Mr. Van der Kooy called him back and withdrew the offer of $1,200,000, and instead offered $10,000 per month for 10 years, which would pay $1,200,000 over that ten year period. [ 23 ] Mr. Steiert did not agree, and Mr. Van der Kooy responded that ATM Cash could sue him. Court Proceedings [ 24 ] ATM Cash did sue.

On June 11, 2015, its counsel applied for an “interim interim” injunction on an ex parte basis prohibiting Vanshaw from breaching the contract, and that injunction was granted. The Court directed that the matter return June 17, 2015. [ 25 ] The June 17 application was at adjourned by consent to June 23, when it was heard as an emergency special application before Jeffrey, J. [ 26 ] Mr. Justice Jeffery set aside the “interim interim” injunction because he was not satisfied that there was irreparable harm and that there had been a clear breach of the agreement.

However, the Court said that Vanshaw is a party to the contracts and that it covenanted to accept ATM Cash’s exclusive automated teller machines over the term of the contracts, and he said that the fact that there was a liquidated damages clause in the contracts did not permit Vanshaw to breach the contracts and ATM Cash’s exclusivity rights.

The Court said this: If Vanshaw were to shut down [ATM Cash’s] machines or allow any such machines into the casino other than [ATM Cash’s], all other things being equal, it would breach [ATM Cash’s] exclusivity rights and entitlement to relief, perhaps in law, perhaps in equity, and perhaps with better evidence. [ 27 ] The parties have been involved in not only this action, but some of them have been involved in other related proceedings. There is an ongoing dispute between Vanshaw and Mayfield Enterprises about the lease, and there is an oppression claim brought by Mayfield Television relating to Vanshaw.

An application to place Vanshaw in receivership was returnable on Friday, August 26, only days before this application came before me as a special application. That was resolved only very shortly before that application by way of payment of the debt. Agreements with Mayfield and Others [ 28 ] We are now told that the day before the hearing in front of Jeffery, J. (on June 22), ATM Cash reached some kind of agreement with one of the Mayfield companies, either Mayfield Television or a related company, Mayfield Enterprises Ltd., which is the landlord of the casino.

However, that evidence was not revealed until much later. It came out in the context of an investigation done by the Alberta Gaming and Licensing Commission (“ AGLC ”) because of some approval it had given earlier in its capacity as the licensing body of the casino. [ 29 ] The details of those agreements had not been disclosed prior to the hearing before me, and the agreements themselves have not been placed in evidence. That is one of the reasons the defendants other than Mayfield Television say

summary judgment should not be granted. They see improper actions being taken by ATM Cash and Mayfield Television, or perhaps Mayfield Enterprises, and argue that the production of those agreements is necessary for a fair and just ruling. [ 30 ] ATM Cash says those agreements are not relevant. Although Alta-Tech specifically pled improper activity in its third party claim against ATM Cash, Vanshaw, 629271 Alberta Ltd., Mr.

Van der Kooy and Mayfield Television (it pleads that there was a conspiracy between and among DirectCash, Mayfield Television /Mayfield Investments and ATM Cash), which at first blush would seem to make the agreements relevant and material for record production purposes. [ 31 ] I note that pleadings were still being filed on August 29, 2017, the day of the oral hearing before me. Timing of the Contract Breach [ 32 ] ATM Cash says the breach of the contract occurred June 8 or 9, and whatever agreement ATM Cash may have reached with Mayfield weeks later on June 22, is irrelevant.

The agreement it sues upon specifically provides for liquidated damages, and it wants them paid. [ 33 ] In Mr. Steiert’s affidavit sworn July 26, 2017 he said the breach occurred “on or before July 1”. He stated this in paragraphs 8 and 9: 8. In contravention of ASC’s Exclusive ATM Rights, on or before July 1, 2015 ACSC’s ATMs were replaced with DirectCash ATMs (the “ DirectCash ATMs ”). 9. The installation of the DirectCash ATMs was a clear and blatant breach of ACSC’s Exclusive ATM Rights and is the basis upon which ACSC is applying for

Summary Judgment against the Respondents (the “ Breach ”).

[Emphasis added.] [ 34 ] The evidence is clear that the machines were taken out of service on or about July 1. It seems very likely that the only reason the machines were not removed earlier is because of the intervening ex parte interim interim injunction and the pending hearing for a continuation of it. [ 35 ] The defendants argue that ATM Cash has not properly mitigated its damages. Firstly, it was offered $1,200,000 in a lump sum payment, did not accepted immediately, and secondly it turned down an opportunity to have $10,000 a month paid over 10 years.

ATM Cash says it had no obligation to accept those offers. Those would have seriously compromised its rights. It was entitled to performance of the agreement by having its automated teller machines remain in the casino, or be paid liquidated damages. [ 36 ] It did everything it could to require Vanshaw to keep its machines in the casino. ATM Cash brought, in total, three injunction applications. The first one was granted ex parte , and only for an interim period. The second appearance was before Jeffrey, J. and it was unsuccessful.

A third application for an injunction was brought on September, 2015, before Macleod, J., and it was also unsuccessful. [ 37 ] When its machines were ultimately removed from the floors of the casino (Vanshaw put them in storage), ATM Cash elected to move for

summary judgment based on the liquidated damages clause. Liquidated Damages [ 38 ] The amount of the claim for liquidated damages arises from a mathematical calculation set out in the agreements. There is some, but very little, dispute as to the mathematics. As mentioned, the amount claimed is $2,855,538.55. [ 39 ] Vanshaw, 692271 Alberta Ltd., and Alta-Tech Industrial Designs Ltd. argue that the liquidated damages clause is unenforceable, because it amounts to a penalty.

They say that the amount payable is essentially the amount that would have been earned over the balance of the long term of exclusivity, with no allowance for present value. Therefore, they say it is not a reasonable pre- estimate of damages and without a present-value component it is more than actual damages. [ 40 ] However, the liquidated damages clause uses a formula that presumes no increase or decrease in business during the balance of the exclusive period, so it does not necessarily reflect the amount that ATM Cash would have received as income during that period; it may be more, it may be less.

One assumes that all involved thought that over time business at the casino, including the use of automatic teller machines, would generally increase with time, so at the time of making the agreement, it may have been that the calculation used was a reasonable pre-estimate of damages that was appropriate without requiring the services of an actuary. [ 41 ] For reasons set out below, it is not necessary for me to determine whether the clause is enforceable. [ 42 ] The parties have been very active in this application with cross-examinations, late-affidavits, late-filed briefs, and last-minute pleadings.

The final cross-examination took place only the day before the appearance before me. The result was that I had to reserve not only to consider my decision, but to have an opportunity to actually read the evidence which had not yet made it to the court file. Counsel for ATM Cash offered to provide copies of all court documents filed in the last month so that I would have access to all that I needed. Submissions on

Summary Judgment [ 43 ] Vanshaw argues that the application is, in any event, premature because of the non-production of the agreements referenced in the report by AGLC.

It also argues that all of the related proceedings should be consolidated, because if they are not then various members of the Court of Queen’s Bench will continue to look at different parts of a larger jigsaw puzzle. [ 44 ] The defendants other than Mayfield Television say that the agreements that they have learned of, but had not seen, would appear to indicate that ATM Cash is somehow in league with one of the Mayfield companies in what Vanshaw, at least, believes is an effort to destroy Vanshaw. ATM Cash, of course, has no interest in consolidation of actions when it is not party to all of them.

It is not interested in the shareholder dispute/landlord and tenant dispute as between Vanshaw and the Mayfield companies. [ 45 ] However, no application for consolidation was brought before me. It is raised only as an argument why a fair and just decision cannot be made summarily at this point. [ 46 ] One of the issues is when the breach occurred. As mentioned, if it is clear that the breach of the contracts occurred on June 8 or 9, then ATM Cash’s argument is that whatever agreement might have been reached among ATM Cash, Mayfield, and DirectCash after that date is irrelevant.

Its claim for liquidated damages arose as at the date of the breach. It purports to put forward a conservative claim for calculation under the express terms of the agreement. [ 47 ] However, the machines were not actually removed from the floor until July 1, 2015. The defendants argue that if there was a breach, that is when it occurred. That was after the June 22 agreements that they have not seen, although it was after Vanshaw had drawn a line in the sand with ATM Cash. Mr.

Steiert’s affidavit (for ATM Cash), quoted above, says that the breach occurred when the DirectCash machines were installed – July 1. [ 48 ] The defendants say that there are credibility issues that require a trial. For example, Mr. Steiert was asked in cross- examination why Vanshaw had not been named in the action. He said he did not know. In oral argument I was told that the action was commenced June 23.

That is the day after the agreements are said to have been reached with Mayfield. [ 49 ] However, the court file shows the ex parte injunction was granted June 11, 2015 somehow without a statement of claim having yet been filed. The statement of claim was filed June 23, but the court file was active long before. [ 50 ] Furthermore, counsel for Vanshaw asserts that Mr. Steiert initially said that there was no agreement with Mayfield. The AGLC report says otherwise, and I was told that later on he agreed there was an agreement, but his company ATM Cash now takes the

position that the agreement is not relevant. [ 51 ] However, the supposed denial by Mr. Seiert in cross-examination is not as clear as Vanshaw asserts. A review of pages 23 and 24 of his August 17, 2017 transcript suggests very clearly that he was addressing a written agreement. He admitted there may have been an oral agreement and then said, “No, there was no agreement drawn up at that point.” At page 29 he confirmed that there was no written agreement by June 22.

At page 37 he made it clear that he had no conversation with DC Bank (DirectCash) at all. [ 52 ] There seems to be no material credibility issue for trial, at least on these points. The Date of the Breach [ 53 ] It would seem that the determination of relevance as put forward by ATM Cash rides, at least to some extent, on the determination of when the breach occurred and the consequences of the liquidated damages clause. [ 54 ] I see that as a straightforward issue. On June 8 or 9 Mr. Van der Kooy called Mr.

Steiert to tell him that the machines had to come out and that Vanshaw had made an agreement with DirectCash. That was an anticipatory breach. An anticipatory breach can amount to a repudiation of a contract: Jackson v Trimac , 1994 ABCA 199 at para. 18 , and Annett v Annett , 2017 ABQB 216 . Mr. Van der Kooy was in clear terms telling Mr. Steiert that Vanshaw was not going to honour the exclusivity covenant, and he offered a settlement figure. It was not an offer to pay liquidated damages as agreed.

That was a fundamental breach repudiating the contract. [ 55 ] The next day he withdrew that offer but made another one. The anticipatory breach – the statement that the contract would be breached – continued. Mr. Van der Kooy was expressing a clear repudiation of the contract. [ 56 ] On June 22, when ATM Cash apparently made an oral agreement with Mayfield and perhaps DirectCash, it was during a time when Vanshaw was clearly stating that it was not going to honour the agreement. This was not a circumstance where ATM Cash could be said to have decided on its own to act inappropriately so as to harm Vanshaw.

The facts clearly show that whatever ATM Cash was doing, it was in a circumstance where it knew that Vanshaw was going to breach the contract and cut off its income. Based on the evidence now before the Court, I do not see this as a circumstance where the “general organizing principle of good faith” discussed in Bhasin v Hrynew , 2014 SCC 71 can be invoked by the defendants. [ 57 ] That intention to breach the contract never changed.

After Justice Jeffery dismissed the injunction, but made his views about the agreement clear, Vanshaw continued with its stated plan to breach the agreement by removing and replacing the machines. It then committed the actual breach on July 1. [ 58 ] The breach of contract is admitted by Vanshaw. At page 17 of Mr. Van der Kooy’s cross-examination transcript he admitted the breach but explained that from his perspective it was a business necessity: Q. The point is you had a choice. You could have let the casino go into receivership, right? A. If that’s a choice, then yes. Q. Right.

But instead you decided to breach the contracts that Vanshaw and the shareholders had with ATM Cash? A. As any responsible owner would do to save his business, yes. [ 59 ] It appears that the agreement or agreements reached June 22, 2015 between ATM Cash and Mayfield also involved DirectCash, and the agreements involved some arrangement whereby Mayfield had agreed with DirectCash to buy its financing position with Vanshaw. That would put Mayfield in a position of control in relation to Vanshaw, being able to call a loan if there is a breach, and take whatever remedies are available pursuant to the security.

This was important to the AGLC because that part of the financing arrangements was not disclosed to AGLC in May, 2015 when it granted an approval of the loan from DirectCash Payments to Vanshaw. [ 60 ] At this juncture, it is not clear to me how an agreement reached by ATM Cash during the period of time when Vanshaw was continuing, unabated, in its stated intent to remove the machines could change the fact of the breach and its obligation to pay liquidated damages.

Even if Mayfield Enterprises did end up with a beneficial ownership of the loan between DirectCash and Vanshaw it is difficult to see how ATM Cash’s entitlement to the performance of its agreement, either by leaving the machines in place or by payment of liquidated damages at least, would change. “Mitigation” [ 61 ] Mr. Van der Kooy is clearly miffed that ATM Cash would not accept the offers that he made to resolve the claim. Vanshaw argues that ATM Cash failed to “mitigate” its damages, although the claim is for liquidated damages so it is not clear to me that the concept of mitigation has any application.

The whole intent of a liquidated damages clause is to avoid the calculation of actual damages because of the expected difficulty, at the time the contract was entered into, of calculating them.

ATM Cash is not claiming additional damages beyond the agreed liquidated amount. [ 62 ] Even where a claim is for damages that are not liquidated, the refusal to accept a cash offer of settlement is not a “failure to mitigate.” (Offers to settle a contract breach are not normally before the Court because they are privileged, but the evidence was tendered here without objection from anyone.) Failure by the plaintiff to accept an offer by the defendant to perform the contract, made after it was breached, may result in a finding that there was a failure to mitigate: Evans v.

Teamsters Local Union No. 31 , [2008] 1 S.C.R. 661, 2008 SCC 20 . But a refusal of a cash settlement that the plaintiff did not see as adequate is not. [ 63 ] We can now see that the amounts offered were well under what ATM Cash says it is entitled to, but Mr. Van der Kooy sees the secret agreement with Mayfield as the reason for not accepting his offers. Apparently ATM Cash had some other option than accepting his (from ATM Cash’s perspective) inadequate offer. ATM Cash’s first choice was to insist on performance, and it sought an

injunction for that. Since that failed, it now wants liquidated damages under the contract. [ 64 ] I do not think it is an appropriate complaint by a party in breach of a contract that the other party to the contract insists on compliance. “Conspiracy” [ 65 ] The defendants allege that there was a “conspiracy” at play and that should preclude

summary judgment. However, there is not a clear explanation given to me of how the supposed “conspiracy” was actionable at law. For a conspiracy to be actionable either the actions done must be unlawful and the defendants should know that injury to the victim is likely to result and does result, or the predominant purpose of the conspiracy, whether the means used are lawful or unlawful, is to cause injury to the victim: Mraiche Investment Corporation v McLennan Ross LLP , 2012 ABCA 95 . [ 66 ] If Mayfield acquired the lending position of DirectCash, that is not in and of itself unlawful.

If Mayfield did so with the expectation of then being able to foreclose or seize as a lender could with a defaulting debtor, that would not affect Vanshaw’s ability to pay its debts and simply avoid the financial calamity. The essential possible unlawful conduct of the “conspiracy” was not made clear. [ 67 ] The predominant supposed purpose, of possibly causing injury to Vanshaw, is hardly clear. We often see an interested party buying the lending position of another party who has a better position vis-à-vis an asset.

For example, second mortgagees sometimes buy the position of a first mortgagee to have control of the foreclosure on the first mortgage. They already have money tied up in the asset; they want to be in the best position to control their own fate. Here, Mayfield owns the building and is the landlord. ATM Cash was being threatened by Vanshaw. Both had obvious reasons for taking steps to protect their interests. [ 68 ] Mr.

Stange of Alta-Tech described the “secret agreements” as “shenanigans” which he thought were done with a goal “to bring down Vanshaw.” Secrecy [ 69 ] Nonetheless, the involvement of Mayfield was kept secret from AGLC. That appears to have been in violation of AGLC’s requirements, with its discovery leading to AGLC setting aside its previous approval to Vanshaw of the DC financing. It is obvious that AGLC must be told who the financers of a casino are, because it wants to ensure that the funds used to finance the casino did not come from crime.

Secret financing arrangements would be an obvious alarm to AGLC. [ 70 ] I point out that AGLC’s requirements do not necessarily have any effect on ATM Cash. I am not ruling that the supposed secrecy necessarily made the agreements an actionable conspiracy. Conclusion [ 71 ] However, because of this factor, although its connection to ATM Cash is not clear to me, I find it inappropriate to grant

summary judgment. Proper disclosure of the June 22, 2015 agreement or agreements appears at least to be relevant and material to Alta- Tech’s third party claim (which includes a claim as against ATM Cash), if not the initial claim, and granting

summary judgment at this point is premature. As mentioned, pleadings were still being filed as the matter came to court for the hearing. [ 72 ] However, once the records have been produced, if they are properly produced (no one has actually brought an application to compel production, and as mentioned they were produced on the basis that there would be no cross-examination in connection with them) ATM Cash may be entitled to apply again for

summary judgment. [ 73 ] Accordingly, the application is dismissed. Heard on the 29 th day of August, 2017. Dated at the City of Calgary, Alberta this 17 th day of October, 2017. A. R. Robertson, Q.C. M.C.C.Q.B.A. Appearances: Patrick Heinsen and Locklyn E. Price Borden Ladner Gervais LLP for the Applicant (Plaintiff)

Kent W. Jesse Walsh LLP for the Respondents (Defendants) Vanshaw Enterprises Ltd., 692271 Alberta Ltd, and Kevin Van Der Kooy Luke M. Day Stringam LLP for the Respondent (Defendant) Alta-Tech Industrial Designs Ltd. Edward R. Feehan Duncan Craig LLP For the Respondent (Defendant) Mayfield Television Productions Ltd.