Wang v. Lambie Construction Inc., 2022 NSSC 51

SUPREME COURT OF Nova Scotia Citation: Wang v. Lambie Construction Inc. , 2022 NSSC 51 Date: 20220218 Docket: Hfx. No. 506537 Registry: Halifax Between: KUN WANG and YU NI Applicants v. LAMBIE CONTRUCTION INC. , a body corporate and 3338346 NOVA SCOTIA LIMITED , a body corporate Respondents DECISION ON

SUMMARY JUDGMENT Judge: The Honourable Justice Scott C. Norton Heard: February 3, 2022, in Halifax, Nova Scotia Decision: February 18, 2022 Counsel: Andrew Christofi, for the Applicants Cory Withrow, for the Respondents By the Court: [ 1 ] The Respondent, 3338346 Nova Scotia Limited (“333”), filed a Notice of Motion on September 28, 2021, for

summary judgment on evidence pursuant to Civil Procedure Rule 13.04 and for an order dismissing the Applicants’ claim for specific performance and vacating the lis pendens registered against 53 and 55 Hilden Drive, Spryfield, Nova Scotia (the “Lands”). [ 2 ] The underlying proceeding is an Application in Court filed by Kun Wang and his wife, Yu Ni, claiming specific performance and damages arising from the failure by Lambie Construction Incorporated (“LCI”) to complete the sale of a newly constructed duplex in Spryfield, Nova Scotia as contracted. [ 3 ] The Applicants responded on December 6, 2021, by filing a motion seeking to amend the Notice of Application to add a new cause of action whereby the Applicants seek to piece the corporate veil of LCI in order to establish liability against 333.

The motion to amend was heard and granted by Justice Coughlan on December 16, 2021. [ 4 ] The Respondents maintain their right to

summary judgment and say that the amended allegation in relation to the breach of the corporate veil of Lambie to establish liability against 333 should also be dismissed on

summary judgment. [ 5 ] The motion evidence from 333 consisted of two affidavits from Floran Lambie, the principal shareholder of 333 and LCI. The evidence from the Applicants was comprised of two affidavits from the Applicant Kun Wang and one affidavit from Jennifer Buchanan, a legal assistant at the Applicant’s law firm. Mr. Lambie was cross examined at the hearing of the motion. Facts

[ 6 ] LCI agreed to sell the Lands to the applicants on May 10, 2021, pursuant to two Agreements of Purchase and Sale dated May 8, 2020 (the “Agreements”). LCI agreed to construct a duplex on the Lands prior to the closing date.

The Agreements each appended a copy of construction plans for the duplex. [ 7 ] The Agreements contained a term stating, “The seller reserves the right to cause title to be transferred from the title holder to the buyer in the event the seller is not the legal title holder on closing”. [ 8 ] The Applicants say that LCI failed to complete the sale on May 10, 2021, entitling them to an order for specific performance and damages. [ 9 ] LCI was incorporated on January 5, 2016 and is in the business of residential construction and renovations. Floran Lambie and Cherise Lambie are the shareholders.

Floran Lambie is the majority shareholder. Floran Lambie is the sole director and officer. The Royal Bank of Canada is LCI’s bank. [ 10 ] 333 was incorporated on July 2, 2020 and is in the business of land investment and development. Floran Lambie is the sole shareholder, director and officer. The Bank of Montreal is 333’s bank. [ 11 ] 333 is the present registered owner of the Lands. At the time the Agreements were executed the Lands were owned by a third party. LCI entered into an agreement with the third party to acquire the lands but was unable to obtain financing.

The mortgage lender required that the owner of the Lands not be financially or legally connected to LCI. LCI assigned its agreement with the third party to 333, and 333 acquired the Lands in September 2020. [ 12 ] 333 has no contract or agreement with the Applicants. [ 13 ] 333 has no contract or agreement with LCI to transfer the lands. [ 14 ] At no time did LCI represent to the Applicants that it owned the Lands. The Applicants never made inquiry of LCI or raised any issues with LCI about the ownership of the Lands prior to LCI’s inability to complete construction.

The Parties’ Positions 333 [ 15 ] 333 asserts that the Applicants have no cause of action against 333. The only cause of action pleaded in the Application relates to a claim for breach of contract against LCI.

The pleading only names 333 as the registered owner of the Lands on which the duplex was to be constructed for the purpose of an order for specific performance. 333 has no contract or agreement with the Applicants. 333 has no contract or agreement with LCI regarding transfer of the Lands. 333 asserts that specific performance is not a remedy available in this Application because the evidence does not establish a legal requirement for specific performance, specifically, that the lands must be “unique”. 333 says it is therefore entitled to

summary judgment and an order dismissing the claim for specific performance. It is also entitled to an order vacating the lis pendens because, absent specific performance, the Application cannot provide the Applicants with an interest in the Lands. The Applicants [ 16 ] The Applicants’ submissions are based on the amendments made to the Application by the December 16, 2021 Order. Those amendments added an allegation that Floran Lambie is the sole shareholder of LCI and 333 respectively.

The Application was further amended by adding the following allegation: The applicants say that NumberCo [333], as shell titleholder of the Properties [Lands], at all times material hereto acted as the seller’s [LCL’s] duly authorized agent, servant, employee or alter ego for the sole improper and objectionable purpose of facilitating the seller to unlawfully breach the Agreements and avoid liability for specific performance in the event the Agreements should become financially unfavourable to the seller.

Therefore the corporate veil of Lambie Construction Inc. should be pierced and liability found as against 3338346 Nova Scotia Limited. [ 17 ] The Applicants assert that whether the properties are unique is a question of fact or mixed fact and law which must be determined at the hearing of the claim.

They further assert that the amended claim for breach of the corporate veil requires the court to answer a question of law: “Where a corporation makes an agreement of purchase and sale of real property, but title to the real property is held by a corporation owned and controlled by the same principal as the seller’s principal, do the seller and the titleholder have a duty in law and/or equity to convey title to the property to the buyer?” The Applicants say that this argument stands a real chance of success at trial. 333’s Reply [ 18 ] In response to the amended Application and the argument for piercing the corporate veil of LCI, 333 replies that the authorities are clear that strong evidence of improper purpose is required for the legal principle of the corporate veil to be pierced and that such evidence has not been produced by the Applicants.

Law [ 19 ]

Summary judgment on evidence is governed by Civil Procedure Rule 13.04: 13.04

Summary judgment on evidence in an action

(1) A judge who is satisfied on both of the following must grant

summary judgment on a claim or a defence in an action:

(

a) there is no genuine issue of material fact, whether on its own or mixed with a question of law, for trial of the claim or defence; (

b) the claim or defence does not require determination of a question of law, whether on its own or mixed with a question of fact, or the claim or defence requires determination only of a question of law and the judge exercises the discretion provided in this Rule 13.04 to determine the question.

(2) When the absence of a genuine issue of material fact for trial and the absence of a question of law requiring determination are established,

summary judgment must be granted without distinction between a claim and a defence and without further inquiry into chances of success.

(3) The judge may grant judgment, dismiss the proceeding, allow a claim, dismiss a claim, or dismiss a defence.

(4) On a motion for

summary judgment on evidence, the pleadings serve only to indicate the issues, and the subjects of a genuine issue of material fact and a question of law depend on the evidence presented.

(5) A party who wishes to contest the motion must provide evidence in favour of the party’s claim or defence by affidavit filed by the contesting party, affidavit filed by another party, cross-examination, or other means permitted by a judge.

(6) A judge who hears a motion for

summary judgment on evidence has discretion to do either of the following: (

a) determine a question of law, if there is no genuine issue of material fact for trial; (

b) adjourn the hearing of the motion for any just purpose including to permit necessary disclosure, production, discovery, presentation of expert evidence, or collection of other evidence. [ 20 ] The Nova Scotia Court of Appeal summarized the analysis required for

summary judgment on evidence in the now well known Shannex Inc. v Dora Construction Ltd ., 2016 NSCA 89 . Justice Fichaud instructed, starting at para 34: [34] I interpret the amended Rule 13.04 to pose five sequential questions: • First Question: Does the challenged pleading disclose a “genuine issue of material fact”, either pure or mixed with a question of law? [Rules 13.04(1), (2) and (4)] If Yes, it should not be determined by

summary judgment. It should either be considered for conversion to an application under Rules 13.08(1)(

b) and 6 as discussed below [paras. 37-42], or go to trial. The analysis of this question follows Burton’s first step. A “material fact” is one that would affect the result. A dispute about an incidental fact - i.e. one that would not affect the outcome - will not derail a

summary judgment motion: 2420188 Nova Scotia Ltd. v. Hiltz , 2011 NSCA 74 , para. 27 , adopted by Burton , para. 41, and see also para. 87 (#8). The moving party has the onus to show by evidence there is no genuine issue of material fact. But the judge’s assessment is based on all the evidence from any source. If the pleadings dispute the material facts, and the evidence on the motion fails to negate the existence of a genuine issue of material fact, then the onus bites and the judge answers the first question Yes. [Rules 13.04(4) and (5)] Burton , paras. 85-86, said that, if the responding party reasonably requires time to marshal his evidence, the judge should adjourn the motion for

summary judgment.

Summary judgment isn’t an ambush. Neither is the adjournment permission to procrastinate. The amended Rule 13.04(6)(

b) allows the judge to balance these factors. • Second Question: If the answer to #1 is No, then: Does the challenged pleading require the determination of a question of law, either pure, or mixed with a question of fact? If the answers to #1 and #2 are both No,

summary judgment “must” issue: Rules 13.04(1) and (2). This would be a nuisance claim with no genuine issue of any kind – whether material fact, law, or mixed fact and law. • Third Question: If the answers to #1 and #2 are No and Yes respectively, leaving only an issue of law, then the judge “may” grant or deny

summary judgment: Rule 13.04(3). Governing that discretion is the principle in Burton’s second test: “Does the challenged pleading have a real chance of success?” Nothing in the amended Rule 13.04 changes Burton’s test. It is difficult to envisage any other principled standard for a

summary judgment. To dismiss summarily, without a full merits analysis, a claim or defence that has a real chance of success at a later trial or application hearing, would be a patently unjust exercise of discretion. It is for the responding party to show a real chance of success. If the answer is No, then

summary judgment issues to dismiss the ill-fated pleading. • Fourth Question: If the answer to #3 is Yes, leaving only an issue of law with a real chance of success, then, under Rule 13.04(6) (a): Should the judge exercise the “discretion” to finally determine the issue of law? If the judge does not exercise this discretion, then: (1) the judge dismisses the motion for

summary judgment, and (2) the matter

with a “real chance of success” goes onward either to a converted application under Rules 13.08(1)(

b) and 6, as discussed below [paras.37-42], or to trial. If the judge exercises the discretion, he or she determines the full merits of the legal issue once and for all. Then thejudge’s conclusion generates issue estoppel, subject to any appeal. This is not the case to catalogue the principles that will govern the judge’s discretion under Rule 13.04(6)(a). Those principleswill develop over time. Proportionality criteria, such as those discussed in Hryniak v. Mauldin, 2014 SCC 7 , [2014] 1 S.C.R. 87,will play a role. A party who wishes the judge to exercise discretion under Rule 13.04(6)(

a) should state that request, with notice to the otherparty. The judge who, on his or her own motion, intends to exercise the discretion under Rule 13.04(6)(

a) should notify the parties thatthe point is under consideration. Then, after the hearing, the judge’s decision should state whether and why the discretion was exercised.The reasons for this process are obvious: (1) fairness requires that both parties know the ground rules and whether the ruling willgenerate issue estoppel; (2) the judge’s standard differs between

summary mode (“real chance of success”) and full-merits mode; (3) thejudge’s choice may affect the standard of review on appeal. [35] “Discretion”: The judge’s “discretion” under the amended Rule 13.04(6)(

a) governs the option whether or not to determine thefull merits – i.e. the Fourth Question. I disagree with Mr. Upham’s factum that Rule 13.04(6)(

a) gives the judge “unfettered” discretionto just dismiss Shannex’s

summary judgment motion. The Civil Procedure Rules do not authorize judges to allow or dismiss

summaryjudgment motions on an unprincipled or arbitrary basis. [36] “Best foot forward”: Under the amended Rule, as with the former Rule, the judge’s assessment of issues of fact or mixed factand law depends on evidence, not just pleaded allegations or speculation from the counsel table. Each party is expected to “put his bestfoot forward” with evidence and legal submissions on all these questions, including the “genuine issue of material fact”, issue of law, and“real chance of success”: Rules 13.04(4) and (5); Burton, para. 87.

Analysis [21] On the evidence before me, I am satisfied that there is no contractual relationship between the Applicants and 333 in relation tothe Lands. The Applicants did not plead there was. There is no formal contractual relationship between LCI and 333 in relation to thetransfer of the Lands. The Applicants did not plead that there was. 333 has no intention of transferring the Lands to the Applicants.

Floran Lambie testified that to do so given the increased costs of construction would result in a loss and LCI being unable to paysuppliers and contractors who worked on the Lands. [22] The success of the claim against 333 is contingent upon the remedy of specific performance being available to the Applicants. The issue of piercing the corporate veil only requires determination if a right to specific performance is available. [23] Canadian law is settled that for the remedy of specific performance to be available as it relates to land, the land in questionmust be “unique”.

The burden is on the party seeking specific performance to establish that it is a remedy that is appropriate. Doucettev Giannoulis, 2006 NSSC 166, at para. 35. [24] The leading case on specific performance is the Supreme Court of Canada decision in Semelhago v Paramadevan, (SCC), [1996] 2 S.C.R. 415, where the court rejected the earlier jurisprudence that all real estate was unique.

JusticeSopinka, writing for the majority of the court said at paras. 20-22: 20 … While at one time the common law regarded every piece of real estate to be unique, with the progress of modern real estatedevelopment this is no longer the case. Residential, business and industrial properties are mass produced much in the same way as otherconsumer products. If a deal falls through for one property, another is frequently, though not always, readily available. 21 It is no longer appropriate, therefore, to maintain a distinction in the approach to specific performance as between realty andpersonalty.

It cannot be assumed that damages for breach of contract for the purchase and sale of real estate will be an inadequateremedy in all cases. The common law recognized that the distinction might not be valid when the land had no peculiar or special value.In Adderley v. Dixon (1824), 1 Sim. & St. 607, 57 E.R. 239, Sir John Leach, V.C., stated (at p. 240): Courts of Equity decree the specific performance of contracts, not upon any distinction between realty and personalty, but becausedamages at law may not, in the particular case, afford a complete remedy.

Thus a Court of Equity decrees performance of a contract forland, not because of the real nature of the land, but because damages at law, which must be calculated upon the general money value ofthe land, may not be a complete remedy to the purchaser, to whom the land may have a peculiar and special value. 22 Courts have tended, however, to simply treat all real estate as being unique and to decree specific performance unless there wassome other reason for refusing equitable relief. See Roberto v. Bumb, (ON CA), [1943] O.R. 299 (C.A.), at p. 311;Kloepfer Wholesale Hardware and Automotive Co. v.

Roy, (SCC), [1952] 2 S.C.R. 465; Nepean Carleton DevelopmentsLtd. v. Hope, (SCC), [1978] 1 S.C.R. 427, at p. 438. Some courts, however, have begun to question the assumption thatdamages will afford an inadequate remedy for breach of contract for the purchase of land. In Chaulk v. Fairview Construction Ltd.(1977), 14 Nfld. & P.E.I.R. 13, the Newfoundland Court of Appeal (per Gushue J.A.), after quoting the above passage from Adderley v.Dixon, stated, at p. 21: The question here is whether damages would have afforded Chaulk an adequate remedy, and I have no doubt that they could, and would,have.

There was nothing whatever unique or irreplaceable about the houses and lots bargained for. They were merely subdivision lotswith houses, all of the same general design, built on them, which the respondent was purchasing for investment or re-sale purposes only.He had sold the first two almost immediately at a profit, and intended to do the same with the remainder. It would be quite different ifwe were dealing with a house or houses which were of a particular architectural design, or were situated in a particularly desirablelocation, but this was certainly not the case.

Specific performance should, therefore, not be granted as a matter of course absent evidence that the property is unique to the extent thatits substitute would not be readily available. The guideline proposed by Estey J. in Asamera Oil Corp. v. Sea Oil & General Corp) (SCC), [1979] 1 S.C.R. 633, with respect to contracts involving chattels is equally applicable to real property.

At p. 668, EsteyJ. stated: Before a plaintiff can rely on a claim to specific performance so as to insulate himself from the consequences of failing to procurealternate property in mitigation of his losses, some fair, real and substantial justification for his claim to performance must be found. [Emphasis added] [25] It is important to underscore that the uniqueness of real property goes to the characteristics of the land itself, not transactionsinvolving it. In United Gulf Developments Ltd. v.

Iskandar, 2003 NSCA 83, Justice Saunders considered the issue in the context of amotion to stay the decision of the decision of the trial judge dismissing a claim for specific performance. At paras. 22 and 23 JusticeSaunders stated: [22] When I pressed Mr.

Moreira during argument to explain why his clients’ property was “unique” such that the remedy ofspecific performance could be said to meet the requirements expressed by Sopinka, J. in Semelhago, I was informed that what makesthese appellants’ “claim” “peculiar” and “out of the ordinary” is that it represents “a very specific business opportunity” negotiated bythe parties in a “complicated” share/purchase agreement.

This, in counsel’s submission, amounted to a very unique business opportunityand this “uniqueness of the subject matter of the transaction” ought to warrant specific performance protection. [23] With respect, I cannot agree. The inquiry as to the availability and suitability of a remedy of specific performance must bedirected at the property itself and not to the terms of the transaction surrounding it, or the profit that might be derived from its successfulcompletion. By all accounts the parties on both sides of this dispute are seasoned and successful business people, hardly neophytes incommercial transactions.

The construction, acquisition and operation of condominium properties is no longer special or rare in thisprovince. Any on-looker can see the explosion of such developments throughout the metropolitan area. [Emphasis Added] [26] This analysis has been repeatedly followed by Nova Scotia jurisprudence. In Doucette, supra, Justice Boudreau stated: [36] I can state unequivocally that specific performance is not appropriate in this case and that damages are an adequate remedy. Thecondominium unit in question is not unique, as argued by Mr. Doucette..

The testimony of witnesses revealed that there are literallydozens of such units for sale in the south end of Halifax. Granted, there are differences in style and appearance, but they essentially havethe same accommodations and services… [37] It should also be kept in mind that specific performance is an exceptional equitable remedy and this discretionary remedy shouldnot be lightly employed by the court. … [27] In Hilchie v.

Waterton Condominiums Inc., 2011 NSSC 489, reversed on other grounds, Justice Stewart wrote of the onus onthe party claiming specific performance to demonstrate uniqueness at para. 49: [49] In examining the actual findings in the seminal Supreme Court of Canada decision Semelhago v.

Paramedevan, (SCC), [1996] 2 S.C.R.415, Roscoe, J.A. highlighted that; 1) it is no longer appropriate to assume that specific performance isalways the suitable remedy for a breach of contract for the sale of land; 2) that specific performance should not be granted as a matter ofcourse; 3) there is need for evidence that the property is unique to the extent that its substitute would not be readily available. (UnitedGulf Developments Ltd. v. Iskardar 2004 NSCA 35, leave to appeal denied [2004] S.C.C.A.

No. 172 @ para. 16 and 17). [50] Post Semelhago, specific performance is an appropriate remedy where a piece of real estate is "unique" in the sense that it has aquality or qualities that make it especially suitable for the proposed use that cannot be reasonably duplicated elsewhere and a substituteproperty is not readily available and where damages would not afford the purchaser an adequate remedy (Coulin v. Minhas, 2009 ABQB42 , [2009] A.J. No. 74 (para. 43)); United Gulf Developments Ltd., supra @ para. 17, referencing John E. Dodge Holdings Ltd.v. 805062 Ontario Ltd., (ON SC), [2001] O.J.

No. 4397 @ para. 49-60)). The relevant inquiries are as to whether theproperty is "unique" as elaborated in the case law and whether damages are an adequate remedy. [51] In this instance, the Purchasers led no evidence of the uniqueness of the property and its intrinsic value to them. Nothing wassubmitted to substantiate any such claim. They did not demonstrate that the property has characteristics or distinctive features that makean award of damages inadequate for them. Granted the burden is not to prove a negative and demonstrate the complete absence ofcomparable properties (John E.

Dodge Holdings Ltd., supra @ 57 and 60); but, evidence is required to substantiate their position.Certainly, as of hearing, Saberi's evidence reveals substitute property is readily available in the general vicinity of the Northwest Arm. Within Tower One alone, some 80 units with marginal differences from one to the other remain unsold. There is nothing to suggestotherwise as of the time of the breach. The Purchasers failed to discharge the onus with respect to specific performance of the contract. It is a remedy not available in the circumstances.

The Purchasers' remedy lies in an award of damages for breach of the contract. [28] The evidence filed by 333 supports the argument that the Lands fall into the category of mass produced, semi-detached homesof a similar design of many others in the Halifax area. [29] The Applicants did not plead that the Lands were unique in any way. In response to the motion for

summary judgment theApplicants had the obligation to put their “best foot forward” with evidence to support the argument of uniqueness or that there was amaterial issue of fact. [30] Putting one’s best foot forward is an important obligation of parties to a

summary judgment motion. In Nova Scotia

Association of Health Organizations Long Term Disability Plan Trust Fund v. Amirault , 2017 NSCA 50 , Justice Bryson adopted Shannex and as to the responsibility on the party responding to a

summary judgment motion stated at para 14: [14] Importantly for this case, the parties have an obligation to put their “best foot forward” and tender evidence on all live issues. Again relying upon Fichaud J.A. in Shannex : [36] “Best foot forward”: Under the amended Rule , as with the former Rule , the judge’s assessment of issues of fact or mixed fact and law depends on evidence, not just pleaded allegations or speculation from the counsel table.

Each party is expected to “put his best foot forward” with evidence and legal submissions on all these questions, including the “genuine issue of material fact”, issue of law, and “real chance of success”: Rules 13.04(4) and (5); Burton , para. 87. [Emphasis added] [15] Putting one’s best foot forward is an important obligation of parties to a

summary judgment motion. A respondent to a

summary judgment motion “must lead trump or risk losing” ( Goudie v. Ottawa (City) , 2003 SCC 14 at ¶ 32 ). Assuming there has been adequate time for disclosure, an absence of evidence cannot be overcome by arguing that something might turn up in the future . The Supreme Court emphasized the obligation of the parties in Canada (Attorney General) v. Lameman , 2008 SCC 14 : [19] We add this. In the Court of Appeal and here, the case for the plaintiffs was put forward, not only on the basis of evidence actually adduced on the

summary judgment motion, but on suggestions of evidence that might be adduced, or amendments that might be made, if the matter were to go to trial. A

summary judgment motion cannot be defeated by vague references to what may be adduced in the future , if the matter is allowed to proceed. To accept that proposition would be to undermine the rationale of the rule. A motion for

summary judgment must be judged on the basis of the pleadings and materials actually before the judge, not on suppositions about what might be pleaded or proved in the future . This applies to Aboriginal claims as much as to any others. [Emphasis added – bold and italics in original] [ 31 ] Here the Applicants led no evidence on the issue of uniqueness of the Lands. Beyond arguing that uniqueness is a question of fact or mixed fact and law they did not produce any evidence that there was a genuine issue in this regard. Counsel for the Applicants referred to the plans for the home exhibited to the affidavit of Mr.

Wang and argued that they are unique. This amounts only to counsel’s opinion on the issue which is not admissible evidence. There is no evidence that the Lands are unique, not even in the opinion of Mr. Wang. His affidavits offer no indication that he thinks the Lands are unique. [ 32 ] On the record before me, I cannot find that there is a genuine issue of fact, either pure or mixed with a question of law, in respect to the uniqueness of the property. The only evidence before me establishes that the Lands are not “unique” with respect to their nature or location.

There are no qualities in respect of the Lands that cannot reasonably be duplicated elsewhere in readily available substitute properties. [ 33 ] If the Lands are not unique, the authorities are clear there is no right to specific performance. The inability of the Applicants to obtain specific performance is determinative of the motion for

summary judgment by 333. The remedy sought against 333 is not available at law. The claim against 333 has no chance of success. [ 34 ] Absent the remedy of specific performance, there is no basis on which the Applicants can claim an interest in the Lands. There is neither a genuine question of title, nor any chance of title being affected by the outcome of the damages claim. The certificates of lis pendens should accordingly be discharged. See Dempsey v. Dempsey , 2008 NSSC 137 ; Little Island Fisheries Ltd. v. Royal Harbour Seafoods Inc. , 2009 NSSC 300 ; and Iform Inc. v. Rossignol , 2010 NSSC 478 . [ 35 ] The motion by 333 for

summary judgment is granted. [ 36 ] There is no claim for damages pleaded against 333. I order that the Application against 333 is dismissed. Pursuant to s. 58 of the Land Registration Act , the certificates of lis pendens are hereby discharged. [ 37 ] The Application against LCI will continue as scheduled. [ 38 ] I direct Mr. Withrow to prepare the form of Order. If the parties are not able to resolve the issue of costs between them, I will receive their written submissions within 30 calendar days of the date of this decision. [ 39 ] Judgment accordingly. Norton, J.