COURT FILE NO.

: 06-CV-311077SR
DATE: 20061109

SUPERIOR COURT OF JUSTICE - ONTARIO

2006 CanLII 37880 (ON SC)

RE: Gary Sugar v. Megawheels Technologies Inc.

BEFORE: Justice D. Brown

COUNSEL: Gary Sugar, plaintiff in person

P. West, for the Defendant

DATES HEARD: October 25 and November 3, 2006

ENDORSEMENT

[1] In this Simplified Procedure action the defendant, Megawheels Technologies Inc.
(“Megawheels”), moved for an order staying this action under Rules 17.06(1)(b), 17.06(2)(c) and
21.01(3)(a) on the grounds that Alberta is the more convenient forum in which to hear this
dispute or, in the alternative, for an order dismissing the action pursuant to Rule 21.01(a) on the
grounds that the plaintiff lacks standing to bring this action because he is not the registered
owner of the securities at issue.

[2] For the reasons set out below, I dismiss the motion.

The Claim

[3] The plaintiff, Gary Sugar, is an officer of Brookshire Capital Corporation (“BCC”), a
registered limited market dealer in Ontario. He is also a barrister and solicitor licensed to
practice law in the Province of Ontario. Mr. Sugar represents himself in this action.

[4] On May 30, 2003 Mr. Sugar executed a Subscription Agreement for Convertible
Promissory Notes and Warrants (the “Subscription Agreement”) in which he subscribed to
purchase $25,000 of Notes in Megawheels. The Subscription Agreement specified that the
Notes and Subject Securities were to be registered in the name of Joanne Sugar. Mr. Sugar paid
the subscription price and securities were issued.

[5] In this action Mr. Sugar sought damages of $25,000. The Statement of Claim disclosed
that his action sounds in both tort and contract. In brief, Mr. Sugar alleged that when the CEO of
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Megawheels, Mr. Chris Bulger, solicited him to invest in the securities, he misrepresented to Mr.
Sugar that the Notes were convertible at the holder’s option into preferred shares of the company
(Claim, paras. 4 and 5). As well, Mr. Sugar pleaded that press releases from the company prior
to the subscription for the securities expressly or impliedly represented that the notes would be

2006 CanLII 37880 (ON SC)

convertible at the holder’s option (Claim, paras. 8 to 11, and 13). Mr. Sugar alleged that in July,
2004, after the issuance of the Notes and following his request to the company to redeem them,
Megawheels informed him for the first time that the Notes were not convertible at the holder’s
option, but were automatically convertible into shares. Mr. Sugar maintained that he did not
want to convert the Note into shares, but wished to redeem the notes and receive payment of the
stipulated principal and interest. The Statement of Claim alleged that Megawheels
misrepresented to him the nature of the conversion rights prior to the issuance of the Notes
(Claim, para. 20), failed to fulfill its obligations as a reporting issuer to give public notice of the
nature of the conversion rights (Claim, para. 22), and that the Automatic Conversion Clause in
the Subscription Agreement is void (Claim, para. 21).

Jurisdiction of Ontario courts

[6] Although the Notice of Motion refered to Rule 21.01(3)(a) as a ground for the stay, at the
hearing Megawheels’ counsel conceded that there was a sufficient connection between Ontario
and the subject matter of this action for the Ontario courts to possess jurisdiction. His
submissions focused exclusively on the issue of whether Ontario or Alberta was the most
convenient forum in which to adjudicate this matter.

Test for Forum Non Conveniens

[7] In Incorporated Broadcasters Limited v. Canwest Global Communications Corp., (2003),

63 O.R. (3d) 431; 223 D.L.R. (4th) 627 (C.A.)(“IBL”), at paragraph 49, the Ontario Court of
Appeal noted that the “choice of the appropriate forum is designed to ensure that the action is
tried in the jurisdiction that has the closest connection with the action and the parties” and that
“the starting place for considering convenient forum is ‘whether there clearly is a more
appropriate jurisdiction than the domestic forum chosen by the plaintiff in which the case should
be tried” (IBL, para. 58). The burden to so demonstrate lies on the moving party (IBL, para. 72).

[8] The factors a court must consider in determining the appropriate jurisdiction were
enumerated in paragraph 61 of the IBL decision and paragraph 41 in Muscutt v. Courcelles
(2002), 60 O.R. (3d) 20 (C.A.). I will review each factor in turn.

(a) Location of the majority of the parties

[9] Mr. Sugar resides in Toronto. Megawheels has its main office in Calgary, although an
August 18, 2006 Ontario Corporation Profile Report shows that the company, a CBCA
corporation, has its registered office in Toronto. Megawheels’ counsel stated that the Toronto
office is no longer operational, although the company has a few employees in Toronto, based at
the National Post’s offices.
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[10] In light of the business presence of Megawheels in Toronto, modest though it may be,
this factor inclines to Ontario as the appropriate forum.

(b) Location of key witnesses and evidence

2006 CanLII 37880 (ON SC)

[11] Each party stated that it will call 3 or 4 witnesses, with the plaintiff’s being located in
Ontario and the defendant’s in Alberta. A key witness will be Mr. Bulger, the CEO of
Megawheels. In his claim the plaintiff pleaded that Mr. Bulger solicited the plaintiff in Toronto
and made representations about the securities to the plaintiff in Toronto. Mr. Bulger maintains
residences in both Alberta and Ontario.

[12] Although counsel for Megawheels submitted that the corporate records of the company
are located in Alberta, this does not strike me as a significant factor regarding the location of the
relevant evidence. From the Statement of Claim, Motion Record and Responding Motion
Record it appears that the documentation in this case will not be extensive, and will focus largely
on drafts of the Subscription Agreement, several company press releases and filings with Alberta
and Ontario securities regulators.

[13] In the result, this factor is neutral, or slightly inclines towards Ontario given that Mr.
Bulger maintains residences in both Ontario and Alberta.

(c) Avoidance of Multiplicity of Proceedings

[14] This factor is not present in this case.

(d) Applicable Law

[15] Clause 12 of the Subscription Agreement provides, in part, that “The Subscription
Agreement is governed by the laws of the Province of Alberta”. The plaintiff pointed out that
Megawheels is an Ontario reporting issuer, solicited his subscription in Ontario and therefore
would have to comply with Ontario securities regulations.

[16] I do not think that this factor tilts significantly in one direction or the other. Part of the
action will require an interpretation of the Subscription Agreement. This case will also require an
assessment of what, if any, pre-execution representations were made by the defendant, their legal
effect and the implications of governing securities legislation. Ontario and Alberta share a
common law of contract interpretation and tort. Further, the securities legislation of both
jurisdictions may apply to any representations. On the whole, I consider this factor to be neutral.

(e) Jurisdiction in which the factual matters arose

[17] Mr. Sugar pleaded that Mr. Bulger’s representations were made to him in Toronto and
that he executed the Subscription Agreement in Toronto. Megawheels stated that the closing of
the subscription occurred in Calgary. From the materials, it appears that Mr. Sugar signed the
Subscription Agreement in Toronto, forwarded the document and payment to Calgary, and the
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issued securities were then sent to Mr. Sugar in Toronto. Given the simplicity of the transaction
and its links to both jurisdictions, this factor is neutral.

2006 CanLII 37880 (ON SC)

(f) Presence of a Choice of Forum Clause

[18] Megawheels’ counsel placed great weight on the choice of forum provision in Clause 12
of the Subscription Agreement which reads, in its entirety, as follows:

12. Governing Law

This Subscription Agreement is governed by the laws of the Province of Alberta

and the federal laws of Canada applicable therein. The Purchaser, in its personal
or corporate capacity and, if applicable, on behalf of each beneficial purchaser for
whom it is acting, irrevocably attorns to the non-exclusive jurisdiction of the
courts of the Province of Alberta.

Megawheels submitted that the presence of this clause was all but determinative of the
convenient forum issue, arguing that the parties should be kept to their bargain. The question is:
what bargain does this language reflect?

[19] Parties to a contract have open to them a spectrum of choices regarding the selection of a
forum in which to adjudicate any dispute arising between them. At one end of the spectrum
stand contracts that contain no choice of forum clause; the appropriate forum for the adjudication
of disputes will be decided in accordance with general principles of jurisdiction. At the other
end of the spectrum stand exclusive jurisdiction clauses in which the parties select a particular
jurisdiction, and no other, for the adjudication of disputes. The authorities cited to me reveal that
choice of forum clauses cover a wide spectrum using language that ranges from the exclusive to
the non-exclusive. Examples include the following:

(i) “any claim or dispute arising hereunder or in connection herewith shall be determined
by the courts in Antwerp and no other Courts”: Z.I. Pompey Industrie v. ECU-Line
N.V., [2003] 1 S.C.R. 450;

(ii) “any claims arising under this agreement shall be determined in a court of competent
jurisdiction in the State of California”: Mithras Management Ltd. v. New Vision
Entertainment Corp (1992), 90 D.L.R. (4th) 726 (Ont. Ct.J. (Gen. Div.));

(iii) “we…hereby irrevocably attorn to the jurisdiction of the court of the Province of
Saskatchewan with respect to any matters arising out of this agreement”: Kates v.
Wyant, [2002] O.J. No. 503 (Super.Ct.);

(iv) “…the parties hereby attorn to the non-exclusive jurisdiction of the Courts of the
Province of Ontario.”: 472900 B.C. Ltd. v. Thrifty Canada, Ltd., [1998] B.C.J. No.
2944 (B.C.C.A.).
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[20] Exclusive jurisdiction clauses cannot oust the jurisdiction of a domestic court. Courts,
however, will give weight in their forum non conveniens analysis to the choice of an exclusive
jurisdiction. In Gulf Canada Ltd. v. Turbo Resources (1980), 18 C.P.C. 146 (Ont. H.C.J.),
quoted in Mithras Management, supra., Galligan J. stated that a court ought not to interfere with

2006 CanLII 37880 (ON SC)

such an agreement “unless it is shown that the matter cannot be properly dealt with in the foreign
court.” In the case of an international bill of lading using language at the exclusive end of the
spectrum, such as that in ECU-Line N.V., supra., (“any claim should be determined by the courts
in Antwerp and no other Courts”), the Supreme Court of Canada noted that a burden existed on
the plaintiff “to satisfy the court that there is a good reason it should not be bound by the forum
selection clause” (ECU-Line N.V., supra., at para. 20). In staying that proceeding, the Supreme
Court of Canada emphasized the need to assure certainty in international commercial
transactions.

[21] What of language lying more in the middle of the spectrum, such as that in the present
case where the purchaser agreed to irrevocably attorn to the non-exclusive jurisdiction of the
Alberta courts? The plaintiff argued that the clause requires him to attorn to the Alberta courts in
the event that an action is commenced there, but leaves him free to start an action in Ontario in
the absence of an Alberta proceeding. Such an interpretation, Mr. Sugar contended, is necessary
in order to give some meaning to the words “non-exclusive” in Clause 12. Megawheels’ counsel
disagreed, and pointed me to four cases – two Canadian and two English – that have considered
the role played by non-exclusive jurisdiction clauses in forum non conveniens analysis.

[22] In 472900 B.C. Ltd. v. Thrifty Canada, Ltd., supra, the British Columbia Court of Appeal
signaled that a court must give some weight to a non-exclusive jurisdiction clause. In PWA
Corp. v. Gemini Group Automated Distribution Systems Inc. (1992), 136 A.R. 73 (Q.B.), the
Alberta Court of Queen’s Bench stated that such a clause is an “important consideration” in the
analysis. Virtue J. stated:

“I interpret the term ‘non-exclusive jurisdiction’ – in the context of the agreements in

which the expression is used – to mean that the parties attorn to the jurisdiction of the
Ontario courts except in matters where some extraordinary condition or reason would
require that the matter be determined elsewhere.”

[23] Megawheels also relied on the decision of the English Court of Appeal, in Ace Insurance
SA-NV v. Zurich Insurance Company, [2001] All E.R. (Comm.) 802, [2001] EWCA Civ. 173
(C.A.), for the proposition that where an agreement contains a non-exclusive jurisdiction clause,
a party seeking to bring suit in a forum not named in the clause must “point to some factor which
could not have been foreseen in order to displace the bargain which has been agreed.” That
would require the party showing “some good reason or special cause why it should not be held to
its agreement to submit to the agreed jurisdiction…”: Ace Insurance, para. 62.

[24] In my view the Ace Insurance decision does not go that far. First, the case involved
parallel proceedings in the domestic and foreign jurisdictions, which is not a factor here.
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[25] Second, the choice of forum clause in issue in the Ace Insurance decision provided that
“the Underwriters herein, at the request of the Insured (or Reinsured) will submit to the
Jurisdiction of a Court of competent jurisdiction with the United States…” In Ace Insurance the
English Court of Appeal referred to its previous decision in Excess Insurance Co. Ltd. v.

2006 CanLII 37880 (ON SC)

Allendale Mutual Insurance Co., [2001] Lloyd’s Rep.I.R. 524 (C.A.), where it had dealt with a
materially identical clause. In Excess Insurance, the lower court judge interpreted the clause as
preventing a reinsurer from commencing proceedings in England even if no action had been
commenced in the United States. The Court of Appeal disagreed with that interpretation. It did
not view the language of the clause as one of exclusive jurisdiction: under its terms either party
could sue the other wherever it had the right to do so, but if a suit were started in the United
States the defendant would be required to attorn: Ace Insurance, para. 59. The English Court of
Appeal adopted an interpretation of a non-exclusive jurisdiction clause similar to that advanced
by Mr. Sugar in this case.

[26] However, Megawheels’ counsel also referred me to the decision of the English Court of
Queen’s Bench, Commercial Division, in Antec International Ltd. v. Biosafety USA Inc (2006),
W.L. 176882, [2006] EWHC 47 (Comm.)(Q.B.). The agreement in dispute contained the
following choice of forum clause:

“This agreement shall be governed by and construed in all respects in accordance with
the Laws of England and each party hereunder submits to the non-exclusive jurisdiction
of the English Courts.”

The English party started proceedings in that country, which the United States party sought to
stay. The U.S. party, in turn, commenced parallel proceeding in Florida. Gloster J., rejected the
U.S. party’s request to stay the English proceeding. In her view, the case law established that the
“general rule is that the parties will be held to their contractual choice of English jurisdiction
unless there are overwhelming, or at least very strong, reasons for departing from this rule…”
She elaborated, at paragraph 7, on such possible reasons:

“Such overwhelming or very strong reasons do not include factors of convenience that
were foreseeable at the time that the contract was entered into (save in exceptional
circumstances involving the interests of justice); and it is not appropriate to embark upon
a standard Spiliada balancing exercise. The defendant has to point to some factor which
it could not have foreseen at the time the contract was concluded. Even if there is an
unforeseeable factor or a party can point to some other reason which, in the interests of
justice, points to another forum, this does not automatically lead to the conclusion that the
court should exercise its discretion to release a party from its contractual bargain…”

[27] In her reasons Gloster J. did not refer to the English Court of Appeal decision in Ace
Insurance, perhaps because the facts in Antec involved a motion for forum non conveniens
whereas Ace Insurance dealt with a motion for leave to serve process ex juris. Notwithstanding
this procedural difference, Gloster J.’s analysis of the impact of the clause is not reconcilable
with the conclusion of the English Court of Appeal that under a non-exclusive jurisdiction clause
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“either party may sue the other wherever it has the right to do so” unless a proceeding is
underway in the jurisdiction named in the choice of forum clause.

[28] Non-exclusive jurisdiction clauses fall between the two endpoints of (i) no forum

2006 CanLII 37880 (ON SC)

selection clause and (ii) the use of an exclusive choice of forum clause. By their language, non-
exclusive jurisdiction clauses are not the same as exclusive jurisdiction clauses; their operation is
more limited in scope. The approach to non-exclusive clauses taken by the English Court of
Appeal in the Ace Insurance decision makes sense. It gives meaning to the contractual language
which is not exclusive in nature: “either party may sue the other wherever it has the right to do
so”, but when a suit arises in the named jurisdiction, the party must keep its bargain by attorning
to that jurisdiction: Ace Insurance, paragraphs 59 and 63. If such an interpretation of non-
exclusive clauses is not taken, then in my view no practical difference would exist between
exclusive and non-exclusive jurisdiction clauses, rendering meaningless the “non-exclusive”
language chosen by the parties.

[29] In this case Clause 12 of the Subscription Agreement states: “The Purchaser…
irrevocably attorns to the non-exclusive jurisdiction of the courts of the Province of Alberta.”
This is not language of exclusive jurisdiction. It leaves the purchaser free to start a suit before
another competent court , but requires the purchaser to attorn to a suit brought in Alberta. While
the parties turned their minds to the issue of forum selection by agreeing to Clause 12, they did
not do so in a way that would give the clause determinative weight in a forum non conveniens
analysis. Consequently, Clause 12 does not overcome the cumulative effect of the other factors I
have examined above; it does not point clearly to Alberta as a more appropriate jurisdiction.

(g) Public Policy and Loss of Juridical Advantage

[30] Even if I should afford greater weight to the forum selection clause in the Subscription
Agreement, as noted by Power J. in the Kates case the deference accorded to choice of forum
clauses may give way in circumstances involving “public policy or uneven bargaining power
considerations”: Kates, supra., at paragraph 27. This is not a case of uneven bargaining power:
Mr. Sugar is a lawyer by training and a sophisticated investor. It remains to be considered
whether any public policy considerations, or loss of juridical advantage issues, are engaged in
this case.

[31] The plaintiff argued that to stay the action would deprive him of two legitimate personal
or juridical advantages in the domestic court: (i) his ability to represent himself in an Alberta
action given that he is not called to the Alberta bar; and (ii) his ability to proceed with this
$25,000 claim under a simplified rule process.

[32] I do not accept the plaintiff’s first point. No doubt Alberta courts witness the same
phenomenon seen here – a significant number of parties represent themselves without counsel.
Mr. Sugar could represent himself in an Alberta action, whether or not he was called to the
Alberta bar.

[33] His second point about the effect of proceeding under Ontario’s Simplied Procedure has
merit. At the initial hearing of this motion I asked the parties whether the Alberta rules of court
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contain a process similar to Ontario’s Simplified Procedure. Neither party could answer that
question, but counsel for Megawheels subsequently provided me with a copy of Part 48 of the
Alberta Rules of Court dealing with the Streamlined Procedure. I invited the parties to re-attend
before me to offer further submissions on the implications of the Simplified Procedure on a

2006 CanLII 37880 (ON SC)

forum non conveniens analysis, which they did on November 3, 2006.

[34] The Alberta Rules of Court regarding “Streamlined Procedure” differ from Ontario’s
Rule 76 in two main ways. First, whereas Rule 76 does not permit pre-trial examination for
discovery (Rule 76.04), Alberta’s Streamlined Procedure allows up to six hours of discovery of
each party (Rule 662(1)). Were this dispute to proceed in Alberta, the parties would be put to the
expense of two days of examination for discovery.

[35] Second, Rule 76 enables the parties to conduct a summary trial, relying on written
evidence in chief with limits placed on the length of cross-examinations (Rule 76.12). Based on
the materials before me describing the nature of the present case, it strikes me as one well-suited
for a summary trial. By contrast, Alberta’s Streamlined Procedure does not appear to contain the
equivalent of a summary trial. While evidence of a witness may be given at trial by affidavit,
Rule 664 requires that any cross-examination be conducted prior to trial, no time limits are
placed on the length of pre-trial cross-examinations, and the affidavit and cross-examination are
only admissible at trial with leave to the court.

[36] While Alberta’s Streamlined Procedure no doubt reduces the time and cost of a
proceeding from what it otherwise would be in the ordinary course, the process is not as
simplified as that under Ontario’s Rule 76.

[37] Counsel for Megawheels argued that any differences between the Ontario and Alberta
procedures are not material to a forum non conveniens analysis because courts will not consider a
party subject to a juridical disadvantage if “substantial justice” will be done in the foreign forum:
Mithras Management, supra., quoting The Spiliada, [1987] A.C. 460, [1986] 3 All E.R. 843, at
859 (H.L.).

[38] While justice certainly can be done in the Alberta courts, the question is: at what
comparative cost? From the materials provided to me it appears that the cost of proceeding in
Ontario (no discovery; summary trial) probably will be less than that of proceeding in Alberta.
The Simplified Procedure rules implement a public policy choice to secure civil justice for
parties at lower cost and with fewer delays. Achieving that public policy objective is a factor
that a court must take into account when conducting a forum non conveniens analysis involving a
proceeding under the Simplified Procedure rules. In my view, the prospect of disposing of this
case in Ontario at lower costs than in Alberta operates as a factor favouring Ontario.1

(h) Conclusion on Forum Non Conveniens Motion

1
I note that Henry, J. in BP Canadian Holdings Ltd. v. Westmin Resources Ltd. (1983), 32 C.P.C. 300 (Ont. H.C.J.) viewed the
availability of summary judgment under the old specially endorsed writ as a juridical advantage of which a plaintiff should not be
lightly deprived
 Page: 9

[39] Clause 12 of the Subscription Agreement does not point clearly to Alberta as a more
appropriate forum for this action. While several factors are neutral, others such as the location of
the parties, the location of witnesses and the likely prospect of lower overall cost to the plaintiff
by proceeding under Ontario’s Simplified Procedure Rules support keeping this action in

2006 CanLII 37880 (ON SC)

Ontario. For the reasons set out above, I dismiss Megawheels’ motion to stay this action;
Alberta is not clearly a more appropriate forum.

Rule 21.01(1)(a) motion

[40] Although Megawheels’ primary challenge to the plaintiff’s claim was on the basis of
forum non conveniens, the company advanced an alternative argument that in the event a stay
were not granted, the court should dismiss the action pursuant to Rule 21.01(a) because the
pleadings raise a question of law whose determination might dispose of all the action. No
evidence is admissible on such a motion without leave of a judge, which Megawheels has sought
(Rule 21.01(2)(a)).

[41] Megawheels contended that the question of law to be determined is whether the plaintiff
possesses sufficient standing to bring this action. It argued that the documents referenced in the
Statement of Claim, such as the Subscription Agreement, show that while the plaintiff may have
executed that agreement as Purchaser of the securities, he directed the securities to be registered
in the name of Joanna Sugar, thereby eliminating any basis upon which the plaintiff might bring
this action for misrepresentation and breach of contract.

[42] In my view, the question posed by Megawheels – does the plaintiff have standing to sue?
– is not a pure question of law that can be decided on a Rule 21.01(1)(a) motion, but one of
mixed fact and law.

[43] As this Court noted in Waterloo (City) v. Wolfraim, [2006] O.J. No. 3147 (Super.Ct.), at
paragraph 28, a court can only determine a point of law on a Rule 21 motion if the point of law
can be isolated from any factual dispute. At this stage of the proceeding the factual matrix
required to answer the question posed by the defendant is incomplete. The Statement of Claim
implies that the plaintiff paid for the securities and clause 16 of the Subscription Agreement,
“Subscription Particulars”, contemplates that a Purchaser may be entering into the agreement as
agent for a principal. Indeed the choice of forum clause contemplates that the purchaser may be
acting on behalf of a beneficial purchaser. I have no further indication from the materials before
me as to what evidence the plaintiff might adduce at trial regarding the circumstances of the
securities purchase or the legal relationship that may or may not exist between himself and the
registered owner of the securities, Joanna Sugar. I do not know whether any such evidence
would be disputed or uncontested.

[44] Megawheels is attempting to use Rule 21.01(1)(a) to obtain judgment before it has filed
a defence and before the parties have adduced sufficient evidence to enable the Court to
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determine those facts needed to consider fully the issue of the plaintiff’s standing to sue. That is
not an appropriate use of Rule 21.01(1)(a). As a result, I dismiss Megawheels’ motion to strike
the action under that rule.

2006 CanLII 37880 (ON SC)

Costs

[45] I must determine costs for an attendance by the parties before a Master on August 10,
2006, as well as the costs of this motion.

(i) Costs of August 10, 2006 Appearance before Master

[46] In August the plaintiff brought a motion for default judgment before a Master, apparently
in an effort to move this matter along, and the defendant responded by bringing a Rule 17.06
motion before a judge. At the return of the plaintiff’s motion before a Master on August 10, Mr.
Sugar argued that Megawheels’ stay motion, as then drafted, should be heard by a Master, not a
judge. Megawheels’ counsel advised that his client was considering amending its motion by
adding a Rule 21 motion that would require the matter to be heard by a judge. In the result, the
plaintiff’s August 10 default judgment motion was adjourned by the Master who fixed costs of
the attendance at $750, reserving their disposition to the master or judge ultimately hearing the
motions.

[47] Megawheels argues that the plaintiff should not have brought a motion for default
judgment since he knew that the company intended to respond to the action. Mr. Sugar takes
issue with the company’s failure to bring its original Rule 17.06 motion before a Master at an
earlier date than available in motions court.

[48] Given this unnecessary procedural jockeying by both parties, neither should recover any
costs of the August 10, 2006 attendance before the Master, so I make no award of costs for that
attendance.

(b) Costs of this Motion

[49] At the November 3, 2006 hearing the parties advised that some exchange of offers to
settle the motion had occurred. Having reserved my decision, I did not hear costs submissions at
that time.

[50] If the parties are unable to agree on the costs of this motion, they shall submit and
exchange brief written submissions on costs, not to exceed three pages. Mr. Sugar shall serve
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and file with me any submissions no later than 12:00 noon on Tuesday, November 14, 2006.
Megawheels shall file its responding submissions by 12:00 noon on Friday, November 17, 2006.
Mr. Sugar may file reply submissions, if any, by 5:00 p.m. on Monday, November 20, 2006.

2006 CanLII 37880 (ON SC)

Summary of Order:

[51] The motion by Megawheels under Rules 17.06 and 21.01(1)(a) is dismissed. No costs
are awarded to either party for the August 10, 2006 attendance before the Master. The parties
shall attempt to agree on the costs of this motion, failing which they shall file brief written
submissions regarding the costs as directed above.

___________________________
D. Brown J.

DATE: November 9, 2006