102007987 SASKATCHEWAN LTD., PLAINTIFF - v. -, 2023 SKKB 49

KING’S BENCH FOR SASKATCHEWAN Citation: 2023 SKKB 49 Date: 2023 02 24 Docket.: QBG-RG-01101-2020 Judicial Centre: Regina BETWEEN: 102007987 SASKATCHEWAN LTD., PLAINTIFF - and - AMRITPAL SINGH KHAIRA, RANBIR SINGH KHAIRA, and M2 CONSTRUCTION AND DEVELOPMENT LTD., DEFENDANTS (PLAINTIFFS BY COUNTERCLAIM) 102007987 SASKATCHEWAN LTD., NEWPREET SINGH JOHAL and ANTERPREET SINGH JOHAL, DEFENDANTS BY COUNTERCLAIM Counsel: Adam T. Ailsby for 102007987 Saskatchewan Ltd., Newpreet Singh Johal and Anterpreet Singh Johal Iqbal S.

Brar for Amritpal Singh Khaira, Ranbir Singh Khaira and M2 Construction and Development Ltd. ___________________________________________________________________________ JUDGMENT POPESCUL C.J.K.B. February 24, 2023 ___________________________________________________________________________

I. INTRODUCTION [ 1 ] Newpreet Singh Johal [NSJ] and Anterpreet Singh Johal [ASJ] along with their corporation, 102007987 Saskatchewan Ltd. [Saskco] [collectively, the Applicants], were in business with Amritpal Singh Khaira [ASK] and Ranbir Singh Khaira [RSK], along with their corporation, M2 Construction and Development Ltd. [M2] [collectively, the Respondents].

The business relationship eventually soured, and the parties entered into a Settlement Agreement [Settlement Agreement], on September 23, 2019, in which they purported to untangle their business relationship and resolve the outstanding issues that had arisen between them. Saskco launched this action in which it seeks to enforce the terms of the Settlement Agreement and seeks judgment for monies allegedly not paid as required pursuant to the terms of the deal.

The Respondents have filed a defence to the claim and have counterclaimed against the Applicants for allegedly breaching the confidentiality terms of the Settlement Agreement. In the counterclaim they seek return of the sum of $501,293.54, which is the amount of money already paid pursuant to the Settlement Agreement. [ 2 ] The Applicants have now brought a

summary judgment application pursuant to Rule 7-2 of The Queen’s Bench Rules in which they seek the following relief: 1. An order dismissing the counterclaim against NSJ, ASJ and Saskco; 2. An order granting judgment in favour of Saskco, jointly and severally against ASK, RSK and M2 in the amount of $506,120.55, plus per diem interest of $189.04 from February 4, 2022 until the date of judgment; and, 3.

An order that costs, on a solicitor-and-client basis, or, alternatively, costs as determined by the Court be awarded against ASK, RSK and M2 in favour of Saskco, NSJ and ASJ. [ 3 ] The Applicants contend that this is a relatively straightforward case of enforcement of an unpaid debt that is capable of being determined within the

summary judgment provisions. [ 4 ] The Respondents argue that the facts are very much in dispute and are incapable of being resolved by affidavit and thus, this is not a case suitable for determination by

summary judgment. They request that the

summary judgment application be dismissed and that it be sent off for trial in the usual way. In the alternative, the Respondents request that the Saskco’s claim be dismissed because it has breached the Settlement Agreement and it is no longer able to rely upon it. By counterclaim, they seek return of the funds already paid to Saskco pursuant to the terms of the Settlement Agreement, which they now say has been breached. II. BACKGROUND FACTS [ 5 ] The Settlement Agreement required certain payments to be made by and to various parties.

Most of the payments contemplated by the Settlement Agreement were, in fact, made. It is common ground that M2 has made payments to Saskco totalling $501,293.54. The last payment required to be made pursuant to the Settlement Agreement was $315,000 ($300,000 plus GST of $15,000), plus interest. It is not disputed that this last payment and the interest associated with it were not paid. [ 6 ] The Settlement Agreement states that the last payment was due on October 31, 2019.

Notwithstanding the October 31, 2019 due date, the parties agreed that interest at the rate of 23 percent per annum would accrue on the outstanding amount commencing April 30, 2019, if not paid by that date. An interest payment of $21,389.70, covering the period between April 30, 2019 and August 30, 2019, was made by M2 to Saskco, as required by the Settlement Agreement. However, no further payments have been made since. [ 7 ] Saskco calculates the amount owing, as of August 12, 2022, to be $517,325.85, calculated as follows: (

a) Principal Payment #2 $300,000.00 (

b) GST on Principal Payment #2 $ 15,000.00 (

c) Interest (August 31, 2019, to September 29, 2019) $ 5,217.00 (

d) Interest (September 30, 2019 to October 31, 2019) $ 5,043.10 (

e) Interest (November 1, 2019, to August 12, 2022) $ 192,065.75 ($300,000 x 23% = $69,000 / 365 = $189.04 x 1016 = $192,065.75) Total: $ 517,325.85 In addition, they seek 23 percent interest on the unpaid amount due and payable, up to the date of judgment. [ 8 ] I find that the interest calculation as set forth by Saskco, above, respecting the post October 31, 2019 time frame is not entirely correct as it calculates the per diem based upon $300,000 which does not take into account the M2 invoice credit.

I will elaborate. [ 9 ] The precise terms of the Settlement Agreement pertaining to Principal Payment #1 and Principal Payment #2 and the respective interest calculations are as follows: Payments

2. Subject to the other terms of this Agreement, payments to be paid pursuant to this Agreement to SaskCo by M2 are as follows: a. FOUR HUNDRED SEVENTY ONE THOUSAND DOLLARS ($471,000.00 being “Payment #1”) with total Interest on Payment #1 being EIGHT THOUSAND NINE HUNDRED AND THREE DOLLARS AND EIGHTY-FOUR CENTS ($8,903.84 being “Interest #1”); and b. THREE HUNDRED THOUSAND DOLLARS ($300,000.00 being “Payment #2), plus G.S.T. in the amount of FIFTEEN THOUSAND DOLLARS ($15,000.00 being “G.S.T. on Payment #2”) due on October 31st, 2019.

Interest will accrue on the amount of Payment #2 minus the M2 invoice amount at the rate of 23% per annum beginning April 30th, 2019 and ceases three (3) days prior to the date of confirmed delivery of Payment #2 and G.S.T. on Payment #2 (“Interest Calculation Formula”) in the form of a certified cheque or M2’s solicitor’s law firm cheque to SaskCo (“Interest #2”) to the address for notice for SaskCo provided in this Agreement or other address pursuant to this Agreement.

As indicated below, the amount of Interest #2 shall be adjusted to account for Potential Interest Payment #1A (as defined below) and any Potential Interest Payment Ongoing (as defined below) being paid to SaskCo. i.

If Payment #2 and G.S.T. on Payment #2 is not made by August 30th 2019, then Interest owing to August 30th, 2019 pursuant to the Interest Calculation formula shall be paid to SaskCo in the form of a certified cheque or M2’s solicitor’s law firm cheque to SaskCo to the address for notice for SaskCo provided in this Agreement or other address pursuant to this Agreement within three (3) business days after September 15th, 2019.

For clarity, this payment, if necessary, will be in the amount of TWENTY ONE THOUSAND THREE HUNDRED AND EIGHTY NINE DOLLARS AND SEVENTY CENTS ($21,389.70 being “Potential Interest Payment #1A”) For clarity, the amount of $21,389.70 has been calculated as follows: per diem rate of $173.90 per day * 123 days. ii.

If Payment #2 and G.S.T. on Payment #2 is not made on or before August 31st, 2019, then Interest owing for a thirty (30) day period (the “Period”) subsequent to August 30th, 2019 calculated pursuant to the Interest Calculation Formula and taking into account the already paid Potential Interest Payment #1A and already paid Potential Interest Payments Ongoing (as defined below) shall be paid to SaskCo in the form of a certified cheque or M2’s solicitor’s law firm cheque to SaskCo to the address for notice for SaskCo provided in this Agreement or other address pursuant to this Agreement within three (3) business days after the 15th day of the month subsequent to the month of the last day of said Period.

For clarity, the subsequent Interest payment for Interest accrued to September 29th, 2019 (the first Period after August 30th 2019), if necessary, would be paid within three (3) business days after October 15th, 2019 and would be in the amount of FIVE THOUSAND TWO HUNDRED AND SEVENTEEN DOLLARS ($5,217.00 being the “Potential Interest Payment Ongoing”) For clarity, the amount of $5,217.00 has been calculated as follows: per diem rate of $173.90 per day * 30 days.

For further clarity, the commencement of a Period is not an entitlement to a payment of thirty (30) days of interest at the per diem rate of $173.90 per day. For further clarity, any Potential Interest Payment Ongoing accounts for all previous interest payments made by M2 per this Agreement and will be calculated to the date of receipt of Payment #2, G.S.T. on Payment #2, and Interest #2 (as adjusted) by SaskCo and adjusted per the Calculation Formula.

For additional clarity, Payment #2, G.S.T. on Payment #2, and Interest #2 (as adjusted) is to be paid to SaskCo by M2 on or before October 31st, 2019 and, if Potential Interest Payment #1A and Potential Interest Payment Ongoing are paid to SaskCo by M2, and M2 will be making Payment #2, G.S.T. on Payment #2 and Interest #2 (as adjusted) on October 31, 2019, then the amounts to be forwarded to SaskCo by M2 on October 31, 2019, subject to the other terms of this Agreement, will be the following: a. $300,000.00 being Payment #2; b. $15,000.00 being “G.S.T. on Payment #2; and c. $5,043.10 (per diem rate of $173.90 per day * 29 days) being Interest #2 as adjusted. [ 10 ] It is not disputed that $471,000 was paid pursuant to

Article 2.a. of the Settlement Agreement. Further, it is common ground that the first late interest payment on Principal Payment #2 in the stated amount of $21,389.70 was also paid (interest from April 30, 2019 to August 30, 2019), in accordance with

Article 2.b. of the Settlement Agreement. It is the monies and interest after August 30, 2019 that are in contention. [ 11 ] The Settlement Agreement is not a model of clarity. It must be read very carefully in order to discern the proper amount of interest payable on late payments. In fact, counsel for the Applicants had difficulty reconciling the 23 percent interest payments with the “clarifications” contained within the payment provisions of the Settlement Agreement. Counsel for the Applicants were prepared to concede that calculations directed by paragraph 2.b. “could be seen as less than entirely mathematically accurate” and that “the Settlement Agreement is not the easiest contractual

section to read (including the fact that the clarifications do not actually aid in the clarification of the terms), and the calculation of the interest amounts owed for the August 31, 2019 to September 29, 2019 and September 30, 2019 to October 31, 2019 are mathematically questionable …”. Counsel for the applicant appears to have been unable to reach the per diem calculation of $173.90. Instead, the per diem was calculated at $189.04. [ 12 ] However, the Court was able to line up the general interest provisions with the clarification terms.

Article 2.b. states that, “Interest will accrue on the amount of Payment #2 minus the M2 invoice amount at the rate of 23% per annum beginning April 30th, 2019 and ceases three (3) days prior to the date of confirmed delivery of Payment #2 and G.S.T. …”. The Settlement Agreement defines “Payment #2” as $300,000 (and does not include the GST payment) and defines the “M2 Invoice” as $24,030. Thus, according to the terms of the Settlement Agreement, the 23 percent would be calculated on the difference, which is $275,970 ($300,000 - $24,030 = $275,970).

Interest at 23 percent on balance of $275,970 amounts to a per diem of $173.85 ($275,970 x 23% = $63,473.10 / 365 = $173.90]. The Settlement Agreement is internally consistent. The method of calculation, as set forth in the clarification portions of

Article 2 are congruent with the overall scheme of that provision. For example, the $21,389.70 interest payment covering the period between April 30, 2019 and August 30, 2019 is spot on: $300,000 - $24,030 = $275,970 x 23% = $63,473.10 / 365 = $173.90 x 123 days = $21,389.70. [ 13 ] It is uncontroverted that Principal Payment #2, the GST and interest (after August 30, 2019) has not been paid. But for any defences available to the Respondents, the amounts owing, as of February 24, 2023, are as follows:

a) Principal Payment #2 $300,000.00

b) GST $ 15,000.00

c) Interest (August 31, 2019 to February 24, 2023) 1274 days x $173.90 = $221,154.86 $221,154.86 Total: $536,154.86 [ 14 ] Although the Settlement Agreement stipulates that Principal Payment #2, the GST and the interest is payable as part of the arrangement and although there is no dispute that the funds have not been paid, the Respondents contend that they ought not be ordered to pay anything and offer a variety of tenuous reasons as to why.

The Respondents argue that the Applicants have breached the confidentiality and non-disparagement provisions of the Settlement Agreement to such a degree that there has been a fundamental breach that repudiates the contract and, thus, nothing is owing because there is no agreement in place. [ 15 ] The facts offered by the Respondents to support their assertion of fundamental breach are set forth in the affidavits. [ 16 ] I will summarize the evidence tendered by the Respondents to support their contention that there were fundamental breaches of the Settlement Agreement.

When doing so, it is necessary to refer to the Respondents’ position so that the facts can be put into context. [ 17 ] The 16-page Settlement Agreement contains a “Mutual Confidentiality” and a “Mutual Non-Disparagement” clause. They read as follow: Mutual Confidentiality 24. This Agreement may not be disclosed to any person or entity except the Parties may disclose this Agreement to their legal counsel for enforcement or the dollar amount of this Agreement: (

a) To their respective lawyers, to their respective tax advisors, to agents of governmental taxing authorities acting in their official capacities, to agents of governmental agencies acting in their official capacities, or pursuant to lawful subpoena, as may otherwise be required by law; (

b) To defend the lawyers for any party against claims for professional negligence or misconduct; (

c) With express, written permission of the other Parties; (

d) On a “need to know” basis, to its board members, officers, agents, and employees. It shall not be a breach of this paragraph or of this Agreement for either party to state that “issues between the parties were resolved by way of this Agreement to the parties’ mutual satisfaction” (or substantially similar comment) or to disclose or refer to anything that is public record. Mutual Non-Disparagement 37.

The Parties agree that none will engage in any conduct or communications designed or which might be reasonably expected to disparage or otherwise cause damage or inconvenience to the others. [ 18 ] The Respondents suggest that these two provisions are critical and important parts of the Settlement Agreement, such that a breach of either one of these two cornerstone clauses effectively voids the Settlement Agreement due to fundamental breach. [ 19 ] The Respondents also argue that there was an earlier agreement, in October of 2018, that functionally binds the parties and that the Settlement Agreement that was executed on September 23, 2019 is merely the written recording of the previously consummated and binding agreement. [ 20 ] The parties met on October 27, 2018.

The purpose of the meeting was to attempt to negotiate a resolution to their ongoing difficulties. According to RSK, the meeting resulted in the parties coming to a resolution. Some handwritten notes, referred to by RSK as “the minutes and notes of the preliminary settlement agreement” purport to set out some of the details, but not all, of what was discussed. According to RSK, “A relatively detailed written copy of the terms was prepared on the day, but it has been lost”. RSK contends that the cornerstone of what he now calls the “2018 agreement” was confidentiality.

Further, RSK asserts that M2 and Saskco agreed that each would retain their own counsel to finalize a settlement agreement to facilitate the payments that were contemplated and that such agreement should be drafted and finalized by the end of 2018. [ 21 ] The Respondents now characterize the upshot of the October 27, 2018 meeting as the “2018 Agreement” and suggest that confidentiality and non-disparagement were critical aspects of that “agreement”, too. [ 22 ] What followed the October 27, 2018 meeting was a number of emails and correspondence between counsel for the various parties wherein the specific terms of the final arrangement were discussed and negotiated.

Some of the correspondence evidencing the “back-and-forth” between the parties as they worked on the terms of what would become the September 23, 2019 Settlement Agreement, were submitted as part of the affidavit evidence. [ 23 ] In addition, RSK lays out in his affidavit the perceived breaches allegedly perpetrated by the Applicants. RSK swears that NSJ and ASJ made a number of wrongful statements and disclosures to family members and business associates that were not allowed by what he describes as the “2018 Agreement” and/or the Settlement Agreement.

These include the following: • Gurpreet Kaur Khaira [GKK] told RSK “on or about October 2019” about details of the 2018 Agreement or the Settlement Agreement (which one is not specified), that were made to her orally by NSJ while he was at her residence in New Delhi, India. However, this alleged breach is tendered without sworn proof. According to RSK’s affidavit, “Due to stress and anxiety of the issues of this litigation and not wanting to take sides in the family, Gurpreet Kaur Khaira was unwilling to swear an affidavit to attest to the above for this matter at this point in the litigation”. [GKK allegations]

• Khushminder Sandhu [KS] told RSK, “sometime after October 2019” that he had knowledge of the “settlement agreement” (whether it was the 2018 Agreement or the Settlement Agreement was not made clear). This allegation is also tendered without sworn proof. According to RSK’s affidavit, “Khushminder Sandhu did not disclose to me who told him of the said dispute or the settlement agreement.

To date, I have not been able to locate or contact Khushminder Sandhu to swear an affidavit to attest to the said disclosure or make further inquiries as to its source which was not [ASK]”. [KS allegations] • Gurbachan Singh Khaira [GSK], RSK’s grandfather, informed RSK, “Sometime after, but not long after, October 2019” about a conversation he had with ASJ which took place “on or about July 2019”, according to RSK’s grandmother who had been listening in to the telephone conversations between her husband and ASK.

RSK relates in his affidavit what his grandmother told him about what she overheard which, he says, involved details of the alleged breach of the 2018 Agreement respecting confidentiality and non-disparagement. The Respondents did not file an affidavit from GSK, nor the unnamed grandmother.

The only explanation provided was, “Due to stress and anxiety of the issues of this litigation and her old age, my grandmother has been unable to swear an affidavit to attest to the above for this matter at this point in the litigation”. [GSK allegations] • Avtar Singh Dhaliwal [ASD] told RSK, “In about October 2019” of a conversation that he allegedly had with ASJ respecting the details of “an Agreement” and of disparaging remarks made by NSJ about the Respondents.

As far as when these comments were allegedly made, RSK states, “He [ASD] did not at that time inform me of the approximate date on which the conversation occurred”. No affidavit from ASD has been filed, according to RSK, “Due to stress and anxiety of the issues of this litigation and not wanting to take sides in the family, Mr.

Avtar Singh Dhaliwal was unwilling to swear an affidavit to attest to the above for this matter at this point in the litigation”. [ASD allegations] • Gurpreet Singh Bhatia [GSB] swore an affidavit saying that “at a Tim Hortons in Regina in or about October, 2018” he had a conversation with ASJ, at which time ASJ allegedly spoke about an agreement that had been made between the Applicants and the Respondents and that, “it had taken 23 draft version [ sic ] to finalize the Agreement and gave me details of what the Agreement entailed”. [GSB allegations] [ 24 ] ASK filed an affidavit in support of the Respondents, and in opposition to the Applicants’ motion, that does not add much, other than to say that he has read the affidavits of GSB and RSK and, insofar as RSK’s affidavit is concerned, “I confirm the contents thereof as they relate to me, to M2, and to the negotiations that M2 and I were involved in with Ranbir, Newpreet, Anterpreet and 102007987 Saskatchewan Ltd.”. [ 25 ] NSJ has denied making any such statements.

However, more importantly, in the context of this

summary judgment application, he provided unrefuted evidence respecting the timing of his conversations that he had with GKK and ASD. According to NSJ his last trip to India, where he would have spoken to GKK and ASD, was between November 27, 2018 and January 25, 2019, a time frame that precedes the signing of the Settlement Agreement by several months. [ 26 ] ASJ has also denied making the statements attributed to him in the RSK affidavit. [ 27 ] Further, he does confirm that he had a meeting with GSB at a Tim Hortons restaurant in Regina, but that such meeting was in October of 2018.

He says that he has not spoken with GSB since (except to express condolences in 2020). [ 28 ] Also, ASJ denies ever speaking to GSK by telephone, but does acknowledge having a meeting with GSK, in person at ASJ’s home in regard to his ongoing business relationship with ASK and RSK. ASJ swears that the meeting took place in the summer (likely July) of 2019. III. ANALYSIS

A) Is this case suitable for determination by

summary judgment? [ 29 ] The Applicants have brought a

summary judgment application pursuant to Rule 7-2 of The Queen’s Bench Rules. They urge the Court to decide the issues in this action, including granting judgment in favour of Saskco in relation to the last payment and associated interest and dismissing the counterclaim against all three Applicants, by employing the

summary judgment procedure because there is no genuine issue requiring a trial. The Respondents take the opposite position. They argue that there are significant issues of credibility that need to be decided and that it is in the interests of justice for those credibility issues to be decided at a full trial. [ 30 ] The question of when it is appropriate to utilize the

summary judgment procedure is now well settled. The Supreme Court of Canada, in Hryniak v Mauldin , 2014 SCC 7 , [2014] 1 SCR 87, signaled the need to embrace a “shift in culture” away from conventional trials to procedures that favour a proportionate, timely and less expensive means of achieving a fair result. This concept has been embodied in The Queen’s Bench Rules respecting

summary judgment applications in Rules 7-2 through 7-5. [ 31 ] Rule 7-5(1)(

a) sets forth the governing principle respecting the appropriateness of deciding a case using the

summary judgment procedure. The question is whether the court is “satisfied that there is no genuine issue requiring a trial”. Whether there is a genuine issue requiring a trial will be determined by considering the evidence before the Court. No genuine issue requiring a trial will exist if a fair and just determination can be made on the merits based upon the evidence that has been submitted by affidavit. This will be the case where the

summary judgment procedure:

a) allows the judge to make the necessary findings of fact;

b) allows the judge to apply the law to the facts; and

c) is a proportionate, more expeditious and less expensive means to achieving a just result than going to trial.

See Tchozewski v Lamontage , 2014 SKQB 71 at paras 26-30 , 440 Sask R 34 [ Tchozewski ]; and Pervez v Caskey , 2013 SKQB 377 at paras 25-34 , 431 Sask R 201. [ 32 ] As is evident from the above passages, the emphasis is not on whether the affidavit evidence before the Court is equivalent to, or is as exhaustive as, a conventional trial; rather, it is on whether the judge is confident that the necessary facts exist to fairly resolve the dispute in a proportionate and more expeditious way. [ 33 ] As Barrington-Foote J. (as he then was), set out in Tchozewski at para 30 : 30 ... 3. The issue is not whether the

summary judgment process is as thorough or the evidence is as complete as at trial. It is whether the judge is confident he or she can find the facts and apply the relevant legal principles so as to fairly resolve the dispute. If the judge has that confidence, proceeding to trial is generally not proportionate, timely or cost effective. A process that does not give the judge confidence in his or her conclusions, on the other hand, is never proportionate. ( Hryniak , paras. 50 and 57 ). … [ 34 ] I conclude that there is no genuine issue requiring a trial.

There are sufficient facts in the evidentiary record before the Court to make the necessary findings of fact to resolve the dispute. Although there are numerous factual disputes with respect to some aspects of the case, these relate to matters which are of no consequence to the determination of the “real issues”. Contradictory affidavit material focusing on matters that do not require resolution to determine the substantive issues does not impede coming to a conclusion on issues that matter.

The only two issues of significance are whether a settlement was formally reached in October of 2018 as opposed to September of 2019, and whether what is alleged to have been said by NSJ and ASJ results in a fundamental breach of the compromise settlement such that it has become void. [ 35 ] The Court is in a position to reach a fair and just determination on the merits based upon the relevant affidavit evidence that has been filed. In particular, the Court is well positioned to make the necessary findings of fact and apply the law to the facts.

Further, to do so in this case is a proportionate, more expeditious and less expensive means to achieve a just result than going to trial. [ 36 ] In this case, the relevant facts are straightforward and the legal issues that need to be determined can be conveniently discussed under two headings:

(1) Was there a legally enforceable agreement entered into by the parties in October 2018?

(2) Was there a fundamental breach of the Settlement Agreement? Accordingly, I find that it is appropriate for this action, including the counterclaim, to be determined in accordance with the provisions of

Part 7, Division 2, Rules 7-2 through 7-5 of The Queen’s Bench Rules , respecting

summary judgments.

B) Was there a legally enforceable agreement entered into by the parties in October 2018? [ 37 ] The Respondents spent much time and effort attempting to establish that the settlement reached occurred in October of 2018 and that the formally signed Settlement Agreement dated September 23, 2019 was simply the papering of an already existing and binding agreement.

The motivation for this approach, it would appear, is to enable the Respondents to argue that the alleged improper breaches of the confidentiality and non-disparagement provisions occurred prior to September 23, 2019, which is the date the Settlement Agreement was formally executed. The Respondents appear to have recognized the difficulty of alleging that an agreement could be breached before it existed. The suggestion that the breach related to an event that happened in October of 2018, rather than in September of 2019, is of recent making.

The statement of defence filed by the Respondents on August 10, 2020 clearly states that the contract that the Respondents say that the Applicants breached was the Settlement Agreement. The statement of defence is silent with respect to any suggestion that there was any prior relationship that would bind the parties contractually. However, that appears to have changed when the Respondents realized that any evidence tending to suggest that NSJ or ASJ may have mentioned details of their settlement discussions or made disparaging remarks happened before the Settlement Agreement was signed.

This appears to have caused the Respondents to pivot in their position and create the novel suggestion that what occurred in October of 2018 somehow amounted to a contract. [ 38 ] Based upon the record of evidence before the Court the only rational conclusion that can be drawn is that there was no binding agreement that resulted from the October 27, 2018 meeting. This is because the elements necessary to create a binding contract arising from that meeting are absent. Recently, the Supreme Court of Canada, in Ethiopian Orthodox Tewahedo Church of Canada St.

Mary Cathedral v Aga , 2021 SCC 22 , 459 DLR (4th) 425 , confirmed the critical conditions necessary to find the formation of a contract. Basic principles extracted from this case include the following:

a) A contract is formed when there is an offer by one party accepted by the other with the intention of creating a legal relationship, and supported by consideration (para. 35);

b) Where one of the parties alleges that a contract exists, they would have to show the intention to form contractual relations (para. 34);

c) The test for an intention to create legal relations is objective. Have the parties indicated to the outside world, in the form of the objective reasonable bystander , their intention to contract and the terms of the contract? The question is not what the parties subjectively had in mind but whether their conduct was such that a reasonable person would conclude that they intended to be bound

(paras. 36-37);

d) In answering the question of objective intent, courts are not limited to the four corners of the purported agreement, but may consider the surrounding circumstances (para. 37);

e) Under the objective test, the nature of the relationship among the parties and the interests at stake may be relevant to the existence of an intention to create legal relations. For example, courts will often assume that such an intention is absent from an informal agreement among spouses or friends. The question in every case is what intention is objectively manifest in the parties’ conduct (para. 38). [ 39 ] Clearly, the four men met on October 27, 2018 to discuss the terms of a settlement. A fruitful discussion did in fact take place and the terms of a possible resolution were sketched out.

RSK states in his affidavit that at the conclusion of that meeting a, … preliminary settlement agreement … was executed on October 27th, 2018 as between myself, Amritpal, M2, Newpreet, Anterpreet, and 102007987 … is attached hereto and marked as Exhibit “B”. There is another detailed copy of the 2018 Agreement that myself, Amritpal, M2, Newpreet, and Anterpreet had executed on that same day and of which each of us received a copy. Amritpal and I do not have a copy of that document anymore … .

The suggestion by RSK that a document of this significance, of which each party supposedly received a copy, has somehow gone missing, is difficult to accept. No details of how or why it cannot be located were proffered. NSJ and ASJ state that no such document exists. There was no document signed by the parties on October 27, 2018. [ 40 ] Instead, what is appended as Exhibit “B” to RSK’s affidavit are two pages of handwritten notes in a very rough and abbreviated form. It appears to have been written more as an aide memoir than as an “agreement”. It is not dated, it is not signed.

It does not list who the parties are. It is not accurate to describe Exhibit “B” as an “agreement” when it is obviously merely RSK’s personal notes of a meeting. Although RSK swears in his affidavit that “The intention of the 2018 Agreement’s terms and the context under which it was reached was to ensure confidentiality …”, the two pages of handwritten notes are silent respecting confidentiality and disparagement -- and for that matter, many of the other essential terms that found their way into the final Settlement Agreement.

The two pages of handwritten notes are sparse, vague and incomplete and are not capable of being properly construed as an agreement. [ 41 ] Further, RSK acknowledges in his affidavit that the settlement needed to be “finalized by the parties retaining their own counsel who would work together to draft the final settlement agreement with completed terms reflecting the intention of the parties agreements reached on October 27, 2018”. It is acknowledged by RSK and is common ground that what followed were lengthy and protracted discussions and negotiations respecting the ultimate agreement.

RSK attached some of the “without prejudice” communications that were sent from his counsel to counsel for the Applicants. A review of that correspondence reveals a somewhat typical negotiation between the lawyers for the parties as they move toward clarifying details in an effort to arrive at a mutually acceptable arrangement to which all parties were prepared to formally commit. Significant details needed to be worked out, and ultimately were. Although the parties expressed their desire to complete a deal by the end of 2018, this did not happen.

It was not until September 23, 2019 that all details were finally resolved and the parties put pen to paper. [ 42 ] The fact that the Settlement Agreement needed to be negotiated and ultimately reduced to writing and signed by all parties also militates strongly against an objective assessment that the requisite intent for an offer arose previous to September 23, 2019. The parties continued to negotiate on the very subject matter of the contract alleged to have been formed in October 2018.

Ultimately, they ended up executing a formal compromise agreement that covered the same territory that the Respondents now say had already been completed. [ 43 ] These factors alone conclusively determine that no legal contract was created on October 27, 2018. The discussions were tentative. The alleged terms were vague and incomplete and not capable of creating a contractual relationship even with the benefit of reading-in implied terms. Contractual intent was absent.

On an objective assessment, it is clear that the parties intended to contract at a later date, on the condition that a formal agreement with all the relevant terms would need to be achieved with the assistance of their respective legal counsel. There is an absence of proof that there had been an offer and acceptance on essential matters of principle.

It is apparent that the parties were in the process of negotiations and had not yet reached the point of “offer and acceptance” and that they had, at best, arrived at a potential solution that was subject to finalizing the details and to the signing of a formal agreement, which did not happen until September 23, 2019. [ 44 ] RSK reveals in his affidavit that in January of 2019, NSJ sent RSK a message seeking payment from M2 based on the broad details of what was discussed at the October 27, 2018 meeting.

RSK’s response was essentially that the payments that had been discussed were not going to be made because a final agreement had not yet been finalized. The parties were still exchanging drafts at the end of August of 2019. [ 45 ] I should add at this point that the fact some payments were made by M2 to Saskco before the September 23, 2019 signing of the Settlement Agreement is not determinative of anything in these circumstances.

A strong indication of an offer and an acceptance and the existence of a formal contract would be whether the parties conducted themselves as if they were bound by contractual relations. It was obvious from the facts that any settlement would involve monies flowing from M2 to Saskco and that a significant interest component was intended to be attached to the outstanding payments. It made sense in these circumstances for M2 to tender some of the payments, with interest, notwithstanding that a final agreement was not in place.

It was a business decision intended to minimize the amount of interest that would eventually become payable, knowing that the preliminary discussions contemplated a large interest payment on any monies that were eventually found or agreed to be owing. The first payment, and interest, were specifically referred to in the Settlement Agreement and subsequently acknowledged to have been paid. [ 46 ] No objective reasonable bystander would conclude that the parties intended to form contractual relations, nor would they be able to determine the terms of the purported contract based on the October 2018 meeting.

Rather the parties intended to wait until all the details were worked out and then sign a formal agreement to acknowledge their obligations. An intention of binding

effect was prospective, but not present. [ 47 ] Even if there had been some type of contract arrived at in October of 2018, which I have found that there was not, the terms of the Settlement Agreement executed on September 23, 2019 would have overtaken the previous agreement. The Settlement Agreement, which contains the following contractual provisions, makes it clear that there were no other agreements in place at the time it was signed and that it is the whole agreement: 16. It is declared that the terms of this Agreement are fully understood by the Parties. 17.

This Agreement contains the entire agreement between the Parties to this Agreement and the terms of this Agreement are contractual and not a mere recital. 43. This Agreement constitutes the entire agreement among the Parties, and there are no other understanding [ sic ] or agreements, written or oral, among them on the subject. Separate copies of this document shall constitute original documents, which may be signed separately but which together shall constitute a single agreement.

This Agreement will not be binding on any party until signed by all Parties or their representatives. [ 48 ] Accordingly, for the above reasons, I find that the discussions that occurred between the parties on October 27, 2018, do not amount to a legal contract. The only legal contract in place, in the context of this action, is the Settlement Agreement that was executed on September 23, 2019. It governs the rights of the parties which are the subject of this action.

C) Was there a fundamental breach of the Settlement Agreement? [ 49 ] Having found that the Settlement Agreement is the only valid contract governing the rights and obligations of the parities, it is necessary to review the complaints of the Respondents within the context of that document. As alluded to previously, but for the existence of some basis to conclude otherwise, this action is a simple, straightforward non-payment of monies pursuant to the terms of a contract.

The Respondents, in an attempt to avoid their obligations to pay, have overstated the importance of the confidentiality and non-disparagement provisions of the Settlement Agreement.

They contend that confidentiality and non-disparagement provisions are crucial cornerstone aspects of the agreement such that the breach of either of those clauses should result in the voiding of the contract and the return of the monies paid pursuant to the provisions of the Settlement Agreement. [ 50 ] However, the Respondents’ position in this regard must fail for a variety of reasons including that they have not been able to prove that the Applicants breached either of those provisions and, even if they did, that such conduct would constitute a fundamental breach sufficient to void the contract.

I will elaborate on these two points. [ 51 ] First, there is the Respondents’ failure to establish that the breaches occurred and if they did occur, that they happened before the September 23, 2019 signing of the Settlement Agreement. There are five alleged contractual breaches. Four of the alleged breaches are hearsay. With respect to the GKK allegations, KS allegations, GSK allegations and the ASD allegations, all the proof that was tendered by the Respondents was through the affidavit of RSK in which he said that certain people told him certain things.

Then, rather than tender proof by affidavit, in each of those four instances, RSK simply indicates that the person that spoke the words to him either declined to provide an affidavit or could not be found. [ 52 ] Rule 7-3(3) does not absolutely prohibit the use of hearsay within affidavits filed in

summary judgment applications. It reads as follows: 7-3(3) An affidavit for use on an application for

summary judgment may be made on information and belief as provided in rule 13-30, but, on the hearing of the application, the Court may draw an adverse inference from the failure of a party to provide the evidence of any person having personal knowledge of contested facts. [ 53 ] As Leurer J. (as he then was) explained in Kennett v Diarco Farms Ltd. , 2018 SKQB 61 , 21 CPC (8th) 353, hearsay may , on a principled basis, be admitted in

summary judgment applications, in order to provide flexibility. The decision contains these helpful comments: 17 ... The drafters of the Rules would have been aware of the restriction on the admission of hearsay in support of requests for final relief when they contemplated the use of that evidence on

summary judgment. To put it another way, the drafters of the Rules would not have granted permission to use hearsay under Rule 7-3(3), but then by implication rescind that permission by incorporating the prohibition on the use of such evidence under Rule 13-30. 18 Rule 7-3(3) therefore permits the use of affidavits sworn on information and belief on

summary judgment when the source of that information has been be [ sic ] disclosed in the affidavit (Rule 13-30(2)). However, that does not mean the court must admit hearsay that complies with the formal requirements of Rule 13-30. Rule 13-30 gives the court receiving evidence under Rule 7-3(3) discretion to refuse to admit the evidence, because Rule 13-3(2) provides only that such evidence “may” be admitted. ... 20 Surespan Construction v Saskatchewan , 2017 SKQB 55 , 64 CLR (4th) 60 [ Surespan ] was cited to me. In that case, Justice Ball dealt with the admissibility of an affidavit sworn on information and belief in support of a request for

summary judgment in the following manner: 76 The manner in which Mr. Gunnlaugson dealt with Surespan’s claim for damages was also problematic. A significant portion of that evidence was not his own. Instead, he “adopted” statements of fact contained in a letter written by Ms. Sargent and attached as an exhibit to his affidavit. Ms. Sargent is now employed by Surespan as its in-house counsel. Her letter contains disputed statements of fact and calculations related to damages which form the basis of Surespan’s damage claim.

Evidence adduced in that manner is inadmissible as hearsay and offends the best evidence rule. It is not permitted by Rules 7-3(3) and 13-30 of The Queen’s Bench Rules . Further, if

Surespan had wished to rely on Ms. Sargent’s expert opinion about the manner in which damages should be calculated in cases of this kind, it should have proffered her as an expert witness so that the Ministry could test her evidence by way of questioning. 21 I do not read Ball J. as refusing to admit the evidence impugned in that case simply because it was hearsay, but I do understand him to test whether it should be admitted on a principled basis. In the result, he exercised his discretion not to admit the evidence on the basis of its unreliability in the context of the issues before him. 22 It might seem curious that hearsay is admissible in the context of

summary judgment when it remains prohibited in contexts where other final orders are requested. However, a liberalization of rules of evidence in

summary judgment is consistent with an intention by the drafters of the Rules to give breadth to the procedure. This point is driven home by the subsequent direction from the Supreme Court of Canada that a “cultural shift” in judicial thinking is required in order to encourage the use of

summary judgment: Hryniak v Mauldin , 2014 SCC 7 at paras 2 , 49-50, [2014] 1 SCR 87 . [Bolding emphasis in original] [Underlining emphasis added] [ 54 ] Therefore, although hearsay is tacitly permitted, such a practice does come with significant risk because although the Rule states that hearsay “may” be admitted, it does not say that such evidence will be admitted.

Furthermore, the Rule warns that the court may draw an adverse inference from the failure to provide personal knowledge evidence. [ 55 ] In this case the Respondents have made a half-hearted attempt to introduce hotly contested evidence in a most unsatisfactory manner. The details of the alleged conversation are vague, there is no supporting confirmation (e.g., an unsworn written statement) and the informative details as to why first-hand evidence was not provided are lacking.

In the case of the GKK allegations, the GSK allegations and the ASD allegations, RSK simply states that due to stress and anxiety the various individuals “have been unable to swear an affidavit”. Further, in the case of KS, who RSK describes as a “local Saskatchewan business owner”, the justification for seeking to rely on hearsay evidence is that, to date, he has been unable to locate or contact KS. [ 56 ] While hearsay may be considered in some situations involving

summary judgment applications, this is not one of those situations. This is evidence which, from the Respondents’ perspective is critical to and at the heart of their case. Further, it is contested and there is no justifiable reason proffered as to the “principled” reason as to why such evidence, which offends the best evidence rule, should be permitted in these circumstances.

While relaxing the rules of evidence to permit hearsay evidence in limited circumstances can promote efficiency and lead to cost savings and thus, would be in line with access to justice considerations, this ought not be done where to do so would be prejudicial, unfair or unjust. Accordingly, the Court is not prepared to accept these hearsay statements. Such statements are not the “best evidence” and there has been no valid articulable reason advanced to justify their admission. The parties in a

summary judgment application are required to “put their best foot forward”, even though the process of doing so might prove to be stressful or uncomfortable to affiants. Accordingly, these hearsay statements are not evidence upon which the Court is prepared to rely to determine the

summary judgment application. [ 57 ] There was one first account affidavit filed by GSB respecting what he was allegedly told by ASJ at a Tim Hortons restaurant in Regina, “in or about October 2018”. Interestingly, that affidavit suggests that ASJ purportedly told GSB in October of 2018, that, “... it had taken 23 draft version [ sic ] to finalize the Agreement and gave me details of what the Agreement entailed”. This statement would seem to fly in the face of all of the other evidence which was that a discussion took place in October of 2018 which led to the signing of the formal agreement in September of 2019.

Between those two dates, numerous drafts and discussions took place between the parties.

However, it is clear that in October of 2018, 23 draft versions of the agreement had not been created, which casts doubt on the reliability of GSB’s statement. [ 58 ] In any event, even if these five allegations could be construed as cogent and admissible evidence before the Court as proof suggesting that NSJ and ASJ improperly mentioned aspects of an agreement and made disparaging remarks about any or all of the Respondents, these purported statements are immaterial because of their timing. [ 59 ] With respect to the GKK allegations, the KS allegations and the ASD allegations, they are all said to have been made in or around October of 2019 and, according to RSK’s affidavit, pertained to a breach of the 2018 Agreement or the Settlement Agreement -- without specifying which one.

These ambiguously vague hearsay assertions fall far short of establishing that whatever was said related to the Settlement Agreement that was signed on September 23, 2019, which could be relevant, as opposed to the October 2018 discussion, which is not. [ 60 ] As far as the GSK allegations, according to the affidavit of RSK, they occurred in July of 2019 (although he supposedly heard about them in October of 2019), which predates the Settlement Agreement and is therefore irrelevant. [ 61 ] Further, the affidavit of GSB is also irrelevant due to timing because whatever he did hear was conveyed to him “in or about October of 2018” which predates the Settlement Agreement. [ 62 ] Accordingly, I find that the alleged breaches of the confidentiality agreement and non-disparagement agreement, if they did happen, pertained to the October 2018 discussions and not the September 23, 2019 Settlement Agreement, and thus, cannot constitute a breach because the events of October 27, 2018 did not create a contract and thus there can be no breach. [ 63 ] Even assuming that there was a breach of the Settlement Agreement as a result of comments made by NSJ and ASJ that divulged details of its terms and even if NSJ and ASJ made comments that could be construed to be disparaging in contravention of the spirit of the Settlement Agreement, does this amount to a fundamental breach of the Settlement Agreement? [ 64 ] The test for a fundamental breach amounting to repudiation of a contract is well-settled.

A fundamental breach is a breach “going to the very root of the contract; where one party fails to perform the very purpose for which the contract is designed so as to deprive the other of the whole or substantially the whole of the benefit which the parties intended should be

conferred and obtained”. See Doman Forest Products Ltd. v GMAC Commercial Credit Corp. - Canada , 2007 BCCA 88 at para 90 , 65 BCLR (4th) 1. [ 65 ] According to G.H.L. Fridman, The Law of Contract in Canada , 6th ed (Toronto ON: Carswell, 2011) at 576, the question is heavily fact dependent: In every instance, it is a question of fact whether the breach complained of by the innocent party amounts to a fundamental breach.

That question, in turn, depends upon: the terms of the contract; the intended benefit to the innocent party; the purpose of the contract; the material consequences of the breach; and, perhaps, though this has never been discussed in the cases, the extent to which the loss incurred by the innocent party can be remedied adequately by an award of damages. One point is clear. Whether a breach is fundamental does not appear to depend upon any express terms of the contract.

The determination of a fundamental breach is a teleological question not one that involves construction of the contract in the narrow, literal sense. The concept of fundamental breach seems to transcend the normal issues of contractual

interpretation. It involves investigation of the underlying nature and purpose of the contract into which the parties have entered, and the respective benefits designed to be obtained or ensured by the agreement. [ 66 ] Here, we have a 16-page contract that sets forth the reasonably complex terms and conditions respecting the ways in which two corporations, and related directors, will extricate their business interests from one another.

Payments of close to three-quarters of a million dollars plus specified interest rate are laid out in detail, as are the credits to be considered, and when and how the payments are to be made. Full mutual release conditions and an indemnification clause is found within the document.

Also, there is a detailed provision respecting “Confidential Information,” which relates to keeping secret certain business practices and information such as “Customer Information”, “Marketing and Development Information”, “Business Operations” and “Accounting Information”. [ 67 ] In addition to these and other foundational provisions, the Settlement Agreement also contains two standard type clauses relating to “Mutual Confidentiality” and “Mutual Non-Disparagement”, both of which have been set out in their entirety above. These are similar to clauses commonly found in settlement agreements of this nature.

They are not front and centre components of the Settlement Agreement but are peripheral to its main terms. [ 68 ] The Respondents seek to inflate the importance of these two provisions and elevate them to the status of one of, if not, the most, critical aspects of the agreement.

RSK deposes that the “intention” of what he calls the “2018 Agreement”, was, “to ensure confidentiality so that the good business, professional, and personal reputations of myself, Amritpal, M2, Newpreet, Anterpreet, and 102007987 Saskatchewan Ltd. in the real estate and home construction business community and personal relationships with various business owners and contractors would be unaffected by the issues between 102007987 Ltd. and M2”. He goes on to state that: ...

Another primary intention of 2018 Agreement’s terms and the context under which it was reached was to ensure that confidentiality was maintained so members of the extended families ... would not hear about the issues between 102007987 Saskatchewan Ltd. and M2 or become involved, because we all agreed this would cause rifts in the family, animosity between our mutual family members, and undue stress on older mutual members of the family.

This was a very important term of the 2018 Agreement and it was written explicitly into the finalized settlement Agreement by the counsel for the legal parties. [ 69 ] While I do not doubt that it was the intention of the parties that they should be bound by both the confidentiality and non-disparagement provisions of the Settlement Agreement, I do not accept that these clauses go to the very root of the contract such that a breach, minor or major, would strike at the heart of the agreement such to cause it to become void. The essence of the agreement was financial.

The two clauses upon which the Respondents seek to use as a basis to refuse to make payment of funds owing are a peripheral, and not central, aspect of the Settlement Agreement. [ 70 ] I find that if there was a breach of the confidentiality or non-disparagement provisions of the Settlement Agreement, which I have found that there was not, the facts fall far short of establishing that such acts would constitute a fundamental breach such that the other provisions of the contract became inoperable.

D) Summary [ 71 ] The parties met on October 27, 2018 to start negotiating the terms of settlement that would untangle their respective business dealings. Although broad principles were discussed, no legal contract was formed. Ultimately, on September 23, 2019, the Settlement Agreement was finalized and formally executed by all parties. The Respondents made the initial payments pursuant to the Settlement Agreement and then balked when it became time to make the final payment. Saskco sued for the payment of the last payment, plus interest.

In an effort to try to avoid payment of the monies that were clearly due pursuant to the Settlement Agreement, the Respondents have attempted to create a reason to justify their non-payment. However, none of the reasons advanced for non-payment have merit.

There is no foundation for suggesting that words uttered by either NSJ or ASJ could be a breach of the confidentiality or non- disparagement provisions because there is insufficient admissible evidence to establish these statements, most if not all of the alleged statements were made before the Settlement Agreement was signed and even if such statement were made and could be found to be linked to the Settlement Agreement, they would not constitute a fundamental breach that would justify rescission of the contract and return of the amounts paid. [ 72 ] Accordingly, Saskco is entitled to judgment for the unpaid monies, plus interest due under the Settlement Agreement, and the counterclaim of the Respondents is dismissed.

IV. COSTS [ 73 ] The Applicants claim costs on a solicitor-and-client basis. They rely on

Article 22 of the Settlement Agreement that says that if a party sues another party to enforce the terms, the “prevailing party” is entitled to “reasonable solicitor/client fees and expenses”. Specifically, the

Article reads in full as follows: Suit for Enforcement

22. If any party sues the other party for enforcement of this agreement, the prevailing party shall receive its reasonable solicitor/client fees and expenses for pursuing said action. [ 74 ] H owever, a court is not bound to award solicitor-and-client costs even where a contract provides for such payment because the court continues to retain discretion to award costs pursuant to Rule 11-1 of The Q ueens’s Bench Rules .

See McGuire Equity Corp. v Wheatland Developments Ltd. , 2020 SKQB 114 ; Prairie Pulse Inc. v Lacasse , 2004 SKQB 30 , 244 Sask R 126 ; and Terra Grain Fuels Inc. v Babich , 2009 SKQB 465 , 349 Sask R 146 . [ 75 ] The Applicants have prevailed, in that they have been awarded judgment in substantially the amount claimed and the counterclaim of the Respondents has been dismissed. The way in which the Respondents responded to the Applicants’ claim demonstrated an effort to obfuscate rather that illuminate.

While not bound to order solicitor-and-client costs, I see no reason not to, in light of the contractual provision that states that the successful party who sues for enforcement of the agreement is entitled to solicitor- and-client costs and the Applicants’ success on the

summary judgment application. In my view it is proper and fair to exercise my discretion in favour of making the costs award sought. Accordingly, the Applicants are entitled to their costs, calculated on a solicitor- and-client basis, plus appropriate disbursements. V. CONCLUSION [ 76 ] It is hereby ordered that: 1. 102007987 Saskatchewan Ltd. is awarded judgment, jointly and severally, as against Amritpal Singh Khaira, Ranbir Singh Khaira and M2 Construction and Development Ltd., in the amount of $536,154.86, subject to paragraph 4 below; 2.

The counterclaim of Amritpal Singh Khaira, Ranbir Singh Khaira and M2 Construction and Development Ltd., as against 102007987 Saskatchewan Ltd., Newpreet Singh Johal and Anterpreet Singh Johal, is hereby dismissed; 3. 102007987 Saskatchewan Ltd., Newpreet Singh Johal and Anterpreet Singh Johal are entitled to costs, on a solicitor-and-client basis, jointly and severally, against Amritpal Singh Khaira, Ranbir Singh Khaira and M2 Construction and Development Ltd.; 4. The Settlement Agreement stipulates, in

Article 4.a. that Saskco is to pay the sum of $24,030.00 to M2 Construction and Development Ltd. “due as of April 30, 2019”. The affidavit material is not clear as to whether this amount has been paid and/or taken into account. Accordingly, if this adjustment has not been made and/or taken into account, it should be deducted from the judgment amount awarded in paragraph 1; 5. Any of the parties have leave to bring the matter back before this Court, within 45 days from today’s date, for the purpose of clarification of any of the amounts referred to within the judgment and/or with respect to the assessment of the costs. C.J.K.B. M.D. POPESCUL