RDX Technologies Corporation v Appel, 2019 ABQB 477

Court of Queen’s Bench of Alberta Citation: RDX Technologies Corporation v Appel, 2019 ABQB 477 Date: Docket: 1401 09394 Registry: Calgary Between: RDX Technologies Corporation Plaintiff - and - Brian Appel, Resource Recovery Corporation, CWT Enterprises (Canada), Inc., CWT Canada II Limited Partnership, Jean Noelting, Bruce MacFarlane and Candie Blazar Defendants Corrected judgment: A corrigendum was issued on November 21, 2019; the corrections have been made to the text and the corrigendum is appended to this judgment. _______________________________________________________ Reasons for Judgment of the Honourable Mr.

Justice Bryan E. Mahoney _______________________________________________________ I. Introduction [ 1 ] RDX Technologies Corporation ("RDX") alleges fraud and misrepresentation by CWT Enterprises (Canada) Inc., CWT Canada II Limited Partnership, Resource Recovery Corporation, Jean Noelting (collectively "CWT"). Counsel for CWT does not act for Candie Blazer or Brian Appel, none of whom was expected to participate in this application. [ 2 ] At counsels' request, the Court assigned this action into Case Management on October 22, 2018.

On April 26 and May 10, 2019, as Case Management Justice, I heard applications for orders to: 1. compel responses to questions and undertakings asked for by RDX and objected to by CWT ("Refusal Application"); 2. restrain CWT from proceeding with its application in Ontario for an order recognizing a judgment from the State of New York, USA involving these parties ("Anti-Suit Injunction"); 3. reinstate CWT's earlier jurisdiction application that was struck by the Court for failure to meet filing deadlines ("the Reinstatement Application").

II. Brief History [ 3 ] RDX alleges fraud and misrepresentation relating to a biodiesel plant located in Missouri, USA that CWT sold to RDX in 2013.

The parties entered into a Unit Purchase Agreement ("UPA") dated March 11, 2013, pursuant to which partnership units in CWT were sold to RDX. [ 4 ] On August 26, 2014, RDX filed a Statement of Claim alleging breaches of the UPA against all of the CWT Defendants. [ 5 ] The UPA contains a provision that Alberta is the exclusive jurisdiction for resolving any action or litigation or suit arising from or related to the UPA. [ 6 ] On October 28, 2014, CWT filed an application to stay this action on the basis that the State of New York was the more appropriate forum for resolving the matter (the “Jurisdiction Application”). [ 7 ] Both parties filed evidence in the Jurisdiction Application and cross-examination was completed by early 2015.

The Jurisdiction Application was set down for a hearing in this Court on April 20, 2015 but was adjourned sine die by consent because the parties needed time to address the CWT action filed in New York. [ 8 ] In 2016, RDX requested that CWT agree to set new dates for a hearing of the Jurisdiction Application. After some procedural squabbling, the parties agreed to set the Jurisdiction Application down for hearing on September 6, 2018. [ 9 ] CWT did not file a brief in support of the Jurisdiction Application by the Practice Note deadline of August 17, 2018.

Accordingly, the Jurisdiction Application was automatically struck by the Clerk of the Court. [ 10 ] On the same day its brief was due, CWT filed an application, returnable in morning chambers on September 6, 2018, alleging r es judicata and supported by the August 18, 2018 Affidavit of Jeffrey Eilender, CWT's New York lawyer (the “ Res Judicata Application”). [ 11 ] On September 4, 2018, CWT filed an application to reinstate the struck Jurisdiction Application ("the Reinstatement Application"). [ 12 ] The parties consented to an order to apply for case management and to adjourn the Res Judicata Application and Reinstatement Application sine die . [ 13 ] Mr.

Eilender's questioning on his affidavit in support of the Res Judicata Application was set for November 5 - 6, 2018. CWT refused RDX's request that Mr. Eilender provide copies of records under his control. [ 14 ] Mr. Eilender's questioning on his affidavit commenced on November 5, 2018. He declined to answer some questions and to provide records. CWT advised RDX that Mr. Eilender was not available for the scheduled continuation of questioning on November 6, 2018. The questioning was adjourned sine die . Given Mr. Eilender's refusals, RDX filed the Refusal Application on November 19, 2018.

CWT takes the position that Mr. Eilender ought not be questioned further until this Court rules on the Refusal Application. [ 15 ] On January 17, 2019, CWT informed counsel for RDX it would be filing an application in Ontario to recognize and enforce the New York judgment. In response to the Ontario Application, RDX filed the Anti-Suit Injunction Application in Alberta and sought a stay of proceedings in Ontario. A hearing of the Ontario stay application has yet to be scheduled. III. Reinstatement Application A.

Argument [ 16 ] RDX refused to consent to the Reinstatement Application, arguing the Res Judicata Application constituted an attornment to this Court’s jurisdiction. RDX argues that CWT, having attorned, cannot now seek to challenge this Court’s jurisdiction. Accordingly, any application challenging jurisdiction is hopeless and moot.

In the interests of efficiency and fairness, RDX submits that the Jurisdiction Application should not be reinstated. [ 17 ] CWT submits that there is authority for the proposition that, if a party appears in a court to challenge jurisdiction or seek a stay on the basis of forum non conveniens , any additional steps taken by the party pursuant to an order of the court will not amount to attornment: see Bansal v Ferrara Pan Candy Co, 2014 ABQB 384 at paras 19-20 and cases cited therein. CWT also submits that attornment does not determine whether or not the court should exercise jurisdiction.

The forum conveniens analysis still applies and CWT asserts that it has contested jurisdiction from the outset: see Meta4Hand Inc v Research In Motion Ltd , 2017 ABQB 23 at paras 43-45 . B. Ruling [ 18 ] The parties agree there is no particular test for reinstating an application that has been struck pursuant to Practice Note No. 2. Applications are regularly reinstated where there has been inadvertence or no unfairness would result. However, I agree with RDX's submission that this was not inadvertence.

Rather, CWT filed a new application, being the Res Judicata Application. [ 19 ] Rule 3.68 of the Alberta Rules of Court , AR 124/2010 reads as follows:

3.68

(1) If the circumstances warrant and a condition under subrule (2) applies, the Court may order one or more of the following: (

a) that all or part of a claim of defence be struck out; … (

d) that an action, an application or a proceeding be stayed.

(2) The conditions for the order are one or more of the following: (

a) the Court has no jurisdiction; (

b) a commencement document or pleading discloses no reasonable claim or defence to a claim; (

c) a commencement document or pleading is frivolous, irrelevant or improper; (

d) a commencement document or pleading constitutes an abuse of process; (

e) an irregularity in a commencement document or pleading is so prejudicial to the claim that it is sufficient to defeat the claim. [20] I find that the Res Judicata Application falls under Rule 3.68(2)(d), engages the merits of the action and constitutesattornment to Alberta's jurisdiction. Reinstatement of the Jurisdiction Application after the filing of the Res Judicata Application wouldbe hopeless and moot.

It would also be unfair to RDX, as it would be required to respond to a moot application. [21] Manson v Canada (Department of Justice), 2006 ABCA 212 at para 5 is authority for the principle that a "party to litigationattorns to the jurisdiction by bringing a motion, returnable before the Court, and by appearing and arguing the motion." As such, "ifsomeone takes steps in an Alberta suit (other than objecting to Alberta's jurisdiction or its order for service ex juris), then he attorns toAlberta's jurisdiction." Manson is binding authority that seeking the affirmative relief of an order staying or dismissing a claim as anabuse of process constitutes an attornment to the Alberta courts. [22] The fact that the Res Judicata Application sought an Order declaring that "this application and any resulting Order made doesnot constitute an attornment to the jurisdiction of Alberta for the hearing of this matter" has no relevance to the question of attornment.The question of attornment is dependent upon a party engaging the merits of an action.

CWT cannot engage the merits of this action andat the same time reserve the right to challenge jurisdiction. It cannot have it both ways. [23] Meta4Hand was decided on a different set of facts and does not change the long line of authorities holding that a party whoattorns to the jurisdiction of the court is precluded from challenging jurisdiction. [24] I agree with RDX that CWT has made it clear it wishes to move forward with its Res Judicata Application. The parties havealready begun to engage the merits thereof, as is evident from the incomplete cross-examination of Mr.

Eilender and the RefusalApplication being heard contemporaneously with the Reinstatement Application. [25] Consequently, the Reinstatement Application is dismissed and CWT and the Defendants represented by CWT counsel areprecluded from challenging the jurisdiction of this Court on the basis of jurisdiction simpliciter or forum non conveniens. IV. Anti-lawsuit Injunction Application A.

Argument [26] It is common ground that when a party raises res judicata on the basis of a foreign judgment, the court must consider whetherthat foreign judgment will be enforceable in Canada. [27] RDX complains that on January 18, 2019, five months after filing the Res Judicata Application, CWT filed a new proceedingin Ontario for an order recognizing and enforcing the New York default judgment, the same judgment CWT seeks to have recognized inAlberta.

To counter CWT's Ontario proceeding, RDX both applied for a stay of the Ontario proceeding and filed the Anti-Suit Injunctionin Alberta. [28] As a matter of process, the Ontario court ordered that the stay and enforcement motions proceed at the same time. Thosemotions have not yet been scheduled for hearing in Ontario, either together or sequentially. [29] RDX points out that Mr. Eilender has filed an affidavit in the Ontario enforcement motion that is largely a duplication of theaffidavit filed here on the Res Judicata Application. Mr. Eilender even adopts the Alberta affidavit in the Ontario motion.

RDX submitsthat because cross-examination of Mr. Eilender has commenced in Alberta and it has brought the Refusal Application, it makes sense toobtain a ruling here first to avoid duplicate proceedings. B. Test for an Anti-Suit Injunction [30] In an anti-suit injunction, this Court must first determine if, based on the relevant factors, Ontario is the most appropriateforum to hear the action. Second, if I find that Ontario is a more appropriate forum, I must determine the justice or injustice to all partiesin allowing the action to proceed in Ontario.

See Amchem Products Inc v British Columbia (Workers' Compensation Board), (SCC), [1993] 1 SCR 897 at paras 55-61; Pe Ben Oilfield Services

(2006) Ltd v Arlint, 2017 ABQB 678 at 21.

[ 31 ] Normally, prior to applying for an anti-suit injunction, RDX should seek and be denied a stay of proceedings in Ontario: Amchem at paras 56-57. In this case, RDX has filed a stay application in Ontario which, as mentioned, has not yet been heard.

Nonetheless, I agree with RDX’s submission that, standing alone, this requirement is not sufficient reason to deny this anti-suit application since the Ontario proceeding was initiated by CWT after it commenced a duplicative proceeding five months earlier here: see Bell'O International LLC v Flooring & Lumber Co (2001), 11 CPC (5 th ) 327 (Ont SCJ) at paras 11-14 and 20 . C.

Analysis [ 32 ] RDX argues that CWT's more recent Ontario proceeding involves the same parties, concerns claims arising out of a similar factual matrix and seeks relief similar to that claimed in Alberta. [ 33 ] RDX further argues that, by filing the Res Judicata Application, CWT attorned to this Court's jurisdiction to determine the enforceability of the New York judgment. RDX asserts that it is inconsistent for CWT to now suggest that this Court is an inconvenient forum for hearing that issue.

Citing Bell'O , RDX submits that CWT's commencement of the Ontario proceeding has "all of the appearances of forum shopping" and that a "pre-emptive intrusion" into the jurisdiction of the Ontario court is warranted in order to prevent the unfairness and expense of forcing RDX to respond to parallel proceedings in two jurisdictions. [ 34 ] CWT puts forward "four undisputed facts" that it says ought to be considered by this Court in respect of a discretionary anti- suit order: 1. Mr. Danzik, the CEO of RDX, stole $5 million of trust money now claimed by CWT. 2. Both Mr.

Danzik and RDX were found in contempt in New York for refusing to pay money into court. 3. Mr. Danzik is a fugitive from justice. There is a warrant out for his arrest in New York for his contempt. 4. Neither the contempt order, nor the more recent order made by the New York court in February 2019 dismissing the attempt to set aside the judgment, is subject to the type of attack being made by RDX on the underlying New York judgment. [ 35 ] CWT next argues that, prior to bringing this anti-suit application, RDX should have sought and been denied a stay of proceedings in Ontario.

As RDX’s application for a stay has not yet been denied, CWT submits this application is premature. [ 36 ] CWT further submits that an anti-suit injunction in favor of RDX alone, not Mr. Danzik, would lead to an absurdity because the Ontario application would still proceed against Mr. Danzik, one of the two judgment debtors. [ 37 ] Finally, CWT submits that RDX is an Arizona-based company with no connection to Alberta. RDX has no assets, no business, and no office in Alberta.

The only thing binding RDX to Alberta is the UPA forum selection clause and there is debate between CWT and RDX as to how that clause came about. D. Ruling [ 38 ] CWT filed its Ontario application after it filed the Res Judicata Application raising the issue of recognition of the New York judgment. Consequently, I find that the application in Ontario to recognize and enforce the New York judgment is duplicative and inappropriate. Obviously, the New York judgment must be recognized by a Canadian court before it can be enforced. CWT has asked this Court to do so in the Res Judicata Application.

As discussed above, by filing the Res Judicata Application, CWT has attorned to the jurisdiction of this Court for purposes of determining whether the New York judgment.

As a result of that attornment, this Court has jurisdiction to issue an anti-suit injunction in respect of the Ontario application. [ 39 ] I have already addressed CWT’s submission that, before bringing the anti-suit injunction application in Alberta, RDX ought to wait and see if it will be denied a stay of proceedings in Ontario. [ 40 ] While CWT’s “four undisputed facts” may be relevant to the merits of the Res Judicata Application, I find they are not relevant to the anti-suit injunction application.

CWT submits that, even if an anti-suit injunction is issued in Alberta in respect of RDX, it will continue to seek enforcement of the New York judgment against Mr. Danzik in Ontario. RDX responds that CWT ought to be restrained from proceeding in Ontario against both RDX and Mr. Danzik, since the proceeding in Ontario against Mr. Danzik could prejudice RDX’s position in the Alberta proceedings. I find that permitting CWT to pursue enforcement of the New York judgment against Mr. Danzik without RDX as a party to that proceeding could prove prejudicial to RDX’s interests in the Res Judicata Application.

It may lead to pre-judgment in Ontario on issues critical to the disposition of the Res Judicata Application. [ 41 ] CWT did not name Mr. Danzik as an interested respondent when it filed its Res Judicata Application even though the New York judgment names both RDX and Mr. Danzik. If CWT thought that it was going to proceed against Mr. Danzik in Canada, it should have named him as an interested respondent in the Res Judicata Application. Not having done so creates an incongruous situation where Mr.

Danzik is not named in or given notice of the Res Judicata Application but is named in the Ontario recognition and enforcement application. [ 42 ] A time-honored civil process policy consideration is that duplicative litigation, potential inconsistent results, undue costs, and inconclusive proceedings are to be avoided: Danyluk v Ainsworth Technologies Inc , 2001 SCC 44 at para 18 . [ 43 ] Consequently, CWT and the Ontario applicants are restrained from proceeding, as against RDX, with the Ontario application, or from seeking any other order in the Ontario Superior Court of Justice for recognition and enforcement of the New York judgment, pending further order of this Court.

V. Refusal Application A. Facts and Argument [ 44 ] At cross-examination on his affidavit in support of the Res Judicata Application, Mr. Eilender refused to respond to over one hundred requests for information (the "Refusals"). RDX asserts that the Refusals pertain to information contained in the affidavit and brought the Refusal Application to compel answers. RDX argues that the Refusal Application should have been unnecessary because CWT conceded the issue of relevancy by addressing res judicata issues in Mr.

Eilender's affidavit. [ 45 ] There are two layers to address when dealing with the foreign judgment in the Res Judicata Application. First, whether the foreign judgment should be recognized by this Court and, second, whether the matter is truly res judicata if the foreign judgment is recognized. [ 46 ] RDX states that it focused the cross-examination of Mr.

Eilender on the enforceability of the foreign judgment and that it is entitled to explore and to test CWT on these issues. [ 47 ] CWT, on the other hand, argues that the bulk of RDX's cross-examination questions were properly refused because most of them go to the issue of Mr. Eilender's joint retainer. According to CWT, none of the refused questions go to the underlying issues of res judicata or abuse of process. CWT states that RDX is on a "fishing expedition" designed to make a collateral attack on the New York judgment. It asserts that questions designed to attack Mr.

Eilender and his law firm’s joint retainer were resolved to in CWT's favour in the New York judgment and have nothing to do with the Res Judicata Application. B. Ruling [ 48 ] In Ontario v Rothmans Inc , 2011 ONSC 2504 , Perell J provided a concise list of principles delineating the scope of cross- examination of a deponent on an application. While that case was supported mainly by Ontario authorities, it nonetheless captures the development of the law on this topic that is common to Alberta.

Starting at para 142, the Court said: Case law has determined what are proper questions for a cross-examination on an affidavit. Once again, relevancy is a key determinant of a proper question, and relevancy is determined by reference to the matters in issue in the motion in respect of which the affidavit has been filed and by the matters put in issue by the deponent's statements in the affidavit. The scope of the cross-examination for an application or motion only coincidentally will be commensurate with the scope of an examination for discovery.

The case law has developed the following principles about the scope of the cross-examination of a deponent for an application or motion: • The scope of a cross-examination of a deponent for an application or motion is narrower than an examination for discovery... • A cross-examination is not a substitute for examinations for discovery or for the production of documents available under the Rules of Civil Procedure ... • The examining party may not ask questions on issues that go beyond the scope of the cross-examination for the application or motion... • The questions must be relevant to: (

a) the issues on the particular application or motion; (

b) the matters raised in the affidavit by the deponent, even if those issues are irrelevant to the application or motion; or (

c) the credibility and reliability of the deponent's evidence... • If a matter is raised in, or put in issue by the deponent in his or her affidavit, the opposite party is entitled to cross-examine on the matter even if it is irrelevant and immaterial to the motion before the court... • The proper scope of the cross-examination of a deponent for an application or motion will vary depending upon the nature of the application or motion... • A question asked on a cross-examination for an application or motion must be a fair question... • The test for relevancy is whether the question has a semblance of relevancy... • The scope of cross-examination in respect to credibility does not extend to a cross-examination to impeach the character of the deponent... • The deponent for an application or motion may be asked relevant questions that involve an undertaking to obtain information, and the court will compel the question to be answered if the information is readily available or it is not unduly onerous to obtain the information... • The deponent for a motion or application who deposes on information and belief may be compelled to inform himself or herself about the matters deposed... [Citations omitted.] [ 49 ] I find that the scope of the cross-examination is defined by the issues raised in the Res Judicata Application.

Mr. Eilender swore his affidavit in support of that application and, therefore, the issues that can be explored by cross-examination are those raised in the affidavit.

[50] The Affidavit is 33 pages long and attaches 46 exhibits. It also attaches and expressly adopts the contents of a 2015 affidavitsworn by Mr. Eilender in a separate creditor arrangement action; that affidavit is 23 pages long and attaches 23 exhibits. Also exhibitedto the affidavit on the Res Judicata Application is a 23-page Affirmation filed by Mr. Eilender in the New York action. Thus, there is alarge amount of affidavit material upon which RDX may pose questions to Mr.

Eilender in opposing the Res Judicata Application. [51] Upon reviewing the record, almost all of the Refusals flow from assertions or statements made in the affidavit. Relevance ofthese Refusals has already been conceded by CWT by including the assertions and statements in the affidavit. As stated in Ontario, if amatter is raised or put in issue by the deponent in his or her affidavit, the opposite party is entitled to cross-examine on the matter even ifit is irrelevant and immaterial to the motion before the court. [52] Accordingly, I find that the scope of cross-examination on Mr.

Eilender’s affidavit can include any questions about facts thatare relevant to whether: • jurisdiction was properly assumed by the New York court; • the New York judgment is clear and final; • the New York judgment was obtained by fraud, or in a manner that does not accord with Canadian standards of public policy ornatural justice; • the issues and parties in the crossclaims leading to the New York judgment are the same as the issues and parties in this Action;and • RDX has discovered new evidence that could not have been put forward in the New York action which precludes the operation ofthe doctrine of res judicata. [53] If CWT meets its burden of establishing that jurisdiction properly was assumed by the New York court and the New Yorkjudgment is clear and final then RDX, in resisting recognition and enforcement of the New York judgment, bears the onus of establishingany applicable impeachment defences, i.e. that the New York judgment was obtained by fraud or in a manner that does not accord withCanadian standards of public policy or natural justice: Chevron Corp v Yaiguaje, 2015 SCC 42; Beals v Saldanha, 2003 SCC 72; ProSwing Inc v Elta Golf Inc, 2006 SCC 52. [54] RDX asserts that the Refusals relate to significant issues it raises to resist the Res Judicata Application.

It emphasizes thattesting the ability of Mr. Eilender's law firm to represent RDX in the New York action and to continue representation of the CWTDefendants in the New York action as against RDX is critical to assessing the enforceability of the New York judgment. It argues that anessential component of the New York court assuming jurisdiction over RDX was Mr. Eilender's representations regarding confidentialinstructions to waive jurisdiction that he allegedly had received from RDX during the joint retainer period.

RDX submits that, in Canada,misuse of a client's confidential information is one of the highest ethical violations a lawyer can commit. [55] Assessment of the merits of RDX's grounds for impeaching the New York judgment on the basis of lawyer ethical violationsor the discovery of new evidence will come at the Res Judicata Application.

Nevertheless, I find there is sufficient relevance at this stageto compel answers to questions and responses to undertakings. [56] I have reviewed the charts attached to RDX’s brief that summarize the questions and undertakings leading to the Refusals,along with a concise description of the basis on which RDX asserts relevance or lack of privilege. It is obvious that RDX put a heavyemphasis on the assertion that the New York judgment is unenforceable as a result of the lawyer conflict arising from the joint retaineragreement.

In attempting to meet its onus of establishing any applicable impeachment defences, RDX is entitled to question Mr. Eilenderand to seek undertakings and production of documents on matters relevant to those impeachment issues. [57] RDX also submits it is entitled to test the Mr. Eilender's credibility with cross-examination questions on his affidavit. I agreewith the point made in Ontario that the scope of cross-examination in respect of credibility does not extend to cross-examination toimpeach the character of the deponent.

This point is well expressed in Moyle v Palmerston Police Services Board (1995), (ON SC), 25 O.R. (3d) 127 (Ont Gen Div) where the Court stated: Is the same scope of cross-examination of a trial witness appropriate to the cross-examination of the deponent of an affidavit served insupport of, or in opposition to, an application? In my view, the scope of cross-examination in the case of an application is considerablynarrower than at a trial.

There can be no question that the witness can be cross-examined in respect to any issue of fact relevant to theapplication contained in the affidavit, or any fact relevant to the application which, although not contained in the affidavit, is within theknowledge of the witness. Because the motion judge cannot decide the credibility of affidavit witnesses (as contrasted with trialwitnesses) the scope of cross-examination in respect to credibility would not include cross-examination intended to impeach the characterof the witness.

However, to the extent that credibility is a relevant issue, all questions may be asked which tend to expose the errors,omissions, inconsistencies, exaggerations or improbabilities of the deponent's testimony contained in his or her affidavit. Such cross-examination is intended to challenge the truth or accuracy of a fact deposed to by removing the foundation for the fact. As such, it isintended to neutralize the probative value of the fact. If successful, the result may be to eliminate any contradictory evidence in respect tothe fact, thereby making it possible for the motion judge to decide the application.

However, a broader cross-examination designed toimpeach the character of the witness, such as that discussed in the Rowbotham case, supra, would rarely, if ever, be proper as, unlike atrial judge, a motion judge is prevented from ruling on the credibility of a deponent. [58] Mr.

Eilender can be asked questions that tend to expose the errors, omissions, inconsistencies, exaggerations orimprobabilities of his affidavit evidence but broader cross-examination questions designed to impeach his character or credibility are notallowed for the reasons given in Moyle. [59] Except for question 45 p. 98 (argumentative) and question 82 p. 223 (improper credibility question) I direct Mr. Eilender, notlater than September 2, 2019, to provide written answers to the questions in Appendix A to the RDX brief filed April 5, 2019, failing

which RDX may apply forthwith to have the Res Judicata Application struck. [ 60 ] Except for Undertaking No. 4, I also direct Mr. Eilender, not later than September 2, 2019, to answer, respond to or produce documents for Undertakings No. 2, 3, 4 and 5 in Appendix B to the RDX brief. Regarding documents requested under Undertaking 5, if the parties cannot agree on a method to comply reasonably with the document request by August 1, 2019 then each party may provide its suggested method to the Court in writing. [ 61 ] Mr.

Eilender is directed to attend a continuation of his questioning on affidavit for one day of no more than 7 hours not including breaks, at a date to be set by communication to take place between the parties no later than August 1, 2019. The date for the continuation must be no later than November 1, 2019. If the parties cannot agree on a date for the continuation, then each party will propose in writing dates to be chosen by the Court. If Mr. Eilender, without reasonable cause, fails to attend on the date set for the continuation of questioning, RDX may apply forthwith to have the Res Judicata Application struck.

VI.

Summary [ 62 ] To Summarize, it is ordered that: 1. the CWT Reinstatement Application is dismissed and CWT and the Defendants represented by CWT counsel are precluded from challenging the jurisdiction of this Court on the basis of jurisdiction simpliciter or forum non conveniens . 2.

CWT and the Ontario applicants are restrained from proceeding, as against RDX, with the Ontario application, or from seeking any other order in the Ontario Superior Court of Justice for recognition and enforcement of the New York judgment, pending further order of this Court. 3. except for question 45 p. 98 and question 82 p. 223, Mr. Eilender is directed, not later than September 2, 2019, to provide written answers to the questions in Appendix A of the RDX brief filed April 5, 2019, failing which RDX may apply forthwith to have the Res Judicata Application struck. 4. Except for Undertaking No. 4, Mr.

Eilender is directed, not later than September 2, 2019, to answer, respond to or produce documents for Undertakings No. 2,3,4 and 5 in Appendix B of the RDX brief. Regarding documents requested under Undertaking 5, if the parties cannot agree on a method to comply reasonably with the document request by August 1, 2019 then each party may provide its suggested method to the Court in writing. 5. Mr.

Eilender is directed to attend a continuation of his questioning on affidavit for one day of no more than 7 hours not including breaks, at a date to be set by communication to take place between the parties no later than August 1, 2019. The date for the continuation must be no later than November 1, 2019. If the parties cannot agree on a date for the continuation, each will propose dates in writing to be chosen by the Court. If Mr.

Eilender, without reasonable cause, fails to attend on the date set for the continuation of questioning, RDX may apply forthwith to have the Res Judicata Application struck. [ 63 ] Costs of this application, if not agreed to, shall be decided upon written submissions no longer than 5 pages with proposed Bill(

s) of Costs attached. Heard on the 26 th day of April, 2019 and the 10 th day of May, 2019. Dated at the City of Calgary, Alberta this 24 th day of June, 2019. Bryan E. Mahoney J.C.Q.B.A. Appearances: Matti Lemmens and Garrett Finegan for the Plaintiff Milton A. Davis and Nigel Forster for the Defendants, Resource Recovery Corporation,

CWT Enterprises (Canada), Inc., CWT Canada II Limited Partnership and Jean Noelting _______________________________________________________ Corrigendum of the Reasons for Judgment of The Honourable Mr. Justice Bryan E. Mahoney _______________________________________________________ Para 1 has been modified to “ RDX Technologies Corporation ("RDX") alleges fraud and misrepresentation by CWT Enterprises (Canada) Inc., CWT Canada II Limited Partnership, Resource Recovery Corporation, Jean Noelting (collectively "CWT"). Counsel for CWT does not act for Candie Blazer or Brian Appel, none of whom was expected to participate in this application.”