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Court File No. CV-18-00611219-00CL ONTARIO

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Court File No. CV-18-00611219-00CL ONTARIO Court File No. CV-18-00611219-00CL ONTARIO SUPERIOR COURT OF JUSTICE COMMERCIAL LIST B E T W E E N: FTI CONSULTING CANADA INC., in its capacity as Court-appointed monitor in proceedings pursuant to the Companies’ Creditors Arrangement Act, RSC 1985, c. c-36 Plaintiff and ESL INVESTMENTS INC., ESL PARTNERS, LP, SPE I PARTNERS, LP, SPE MASTER I, LP, ESL INSTITUTIONAL PARTNERS, LP, EDWARD S. LAMPERT, WILLIAM R. HARKER and WILLIAM C. CROWLEY Defendants ______________________________________________________________________________ Court File No. CV-18-00611214-00CL ONTARIO SUPERIOR COURT OF JUSTICE COMMERCIAL LIST B E T W E E N: SEARS CANADA INC., by its Court-appointed Litigation Trustee, J. DOUGLAS CUNNINGHAM, Q.C. Plaintiff and ESL INVESTMENTS INC., ESL PARTNERS LP, SPE I PARTNERS LP, SPE MASTER I LP, ESL INSTITUTIONAL PARTNERS LP, EDWARD LAMPERT, EPHRAIM J. BIRD, DOUGLAS CAMPBELL, WILLIAM CROWLEY, WILLIAM HARKER, R. RAJA KHANNA, JAMES MCBURNEY, DEBORAH ROSATI and DONALD ROSS Defendants JOINT BOOK OF AUTHORITIES OF THE MONITOR AND THE LITIGATION TRUSTEE (MOTION FOR PRE-PLEADING PRODUCTIONS AND PARTICULARS) (RETURNABLE MARCH 20, 2019) 2 March 15, 2019 NORTON ROSE FULBRIGHT LAX O'SULLIVAN LISUS GOTTLIEB LLP CANADA LLP Counsel Royal Bank Plaza, South Tower Suite 2750, 145 King Street West 200 Bay Street, Suite 3800, P.O. Box 84 Toronto ON M5H 1J8 Toronto, Ontario M5J 2Z4 Orestes Pasparakis LSO#: 36851T Matthew P. Gottlieb LSO#: 32268B [email protected] [email protected] Tel: 416.216.4815 Tel: 416 644 5353 Robert Frank LSO#: 35456F Andrew Winton LSO#: 54473I [email protected] [email protected] Tel: 416.202.6741 Tel: 416 644 5342 Evan Cobb LSO#: 55787N Philip Underwood LSO#: 73637W [email protected] [email protected] Tel: 416.216.1929 Tel: 416 645 5078 Fax: 416.216.3930 Fax: 416 598 3730 Lawyers to FTI Consulting Canada Inc., in its Lawyers for Sears Canada Inc., by its Court- capacity as Court-appointed monitor appointed Litigation Trustee, J. Douglas Cunningham, Q.C. TO: LITIGATION SERVICE LIST INDEX INDEX LIST OF AUTHORITIES 1. Janza v. Nicholson, 2014 ONSC 5588 2. Sears Canada Inc. v. Pi Media Ltd., 2011 ONSC 2625 (Ont. Master) 3. Brigaitis v. IQT, Ltd., 2012 ONSC 6584 4. Martin v. The City of Mississauga, 2018 ONSC 3990 (Ont. Master) 5. Durish v. Bent, 1985 CarswellOnt 508 (Ont. Master) 6. HSBC Securities v. Davies, 2001 CarswellOnt 2813 (Ont. Master) 7. 1731431 Ontario Ltd. v. Crestwood Apartments (Thunder Bay) Ltd., 2010 ONSC 5040 8. Dudziak v. Boots Drug Stores (Canada) Ltd., 1993 CarswellOnt 547 (Ont. Master) 9. Hedley v. Air Canada, 1994 CarswellOnt 491 (Gen. Div.) 10. SA Capital Growth Corp. v. Mander Estate, 2012 ONCA 681 11. Salah v. Timothy’s Coffees of the World Inc., 2010 ONCA 673 12. Obonsawin v. Canada, 2001 CarswellOnt 306 (S.C.J.) 13. Arend v. Boehm, 2017 ONSC 3582 14. Olympia & York Developments Ltd. (Trustee of) v. Olympia & York Realty Corp., 2001 CarswellOnt 2954 (S.C.J. [Commercial List]) (aff’d, 2003 CarswellOnt 5210 (C.A.)) 15. Indcondo Building Corp. v. Sloan, 2014 ONSC 4018 (aff’d, 2015 ONCA 752) TAB 1 2014 ONSC 5588 Ontario Superior Court of Justice Janza v. Nicholson 2014 CarswellOnt 13168, 2014 ONSC 5588, 246 A.C.W.S. (3d) 65 Paul Janza, Vlado Zupanec and Nahanni Steel Prodcuts Inc. carrying on business as, "Jancox Stamping" v. Joseph Nicholson, Brim Holding Corp., Brim Roofing Inc., Brim Supply Inc. and Brim Ipco Inc. and Joseph Nicholson, Brim Holding Corp., Brim Ipco Inc., Brim Supply Inc., and Brim Roofing Inc. v. Paul Janza, Vlado Zupanec, Sebastijan Zupanec, Nahanni Steel Products Inc. (d.b.a. Jancox Stampings), Stephen Horbatiuk, Richard Myers, Corinne Myers (a.k.a. Cori Pratt), Facilitator Xtreme Corp., Jason Lagadin, Roch Beaulieu, Bobbi Jo Beaulieu, R. Beaulieu Roofing Ltd., RVP Roofing Systems Inc. and Joseph Nicholson, Brim Holding Corp., Brim Ipco Inc., Brim Supply Inc. and Brim Roofing Inc. v. Paul Janza, Vlado Zupanec, Sebastijan Zupanec, Nahanni Steel Products Inc. (d.b.a. Jancox Stampings), Stephen Horbatiuk, Richard Myers, Corinne Myers (aka Cori Pratt), Bobbi Jo Beaulieu, R. Beaulieu Roofing Ltd., Rvp Roofing Systems Inc. Emery J. Heard: August 11, 2014 Judgment: September 25, 2014 Docket: CV-14-0103-00, CV-14-1168, CV-14-1169-00 Counsel: E.J. Battiston, Harold Rosenberg, for Janza, Zupanec, Nahanni Steel & RVP Roofing Andrey Pinsky, for Nicholson and Brim Tibor Sarai, for Horbatiuk Emery J.: 1 Counsel for the parties in the three proceedings appeared before me on August 11, 2014 to address the motions scheduled for hearing that day pursuant to my Endorsement dated July 10, 2014. Under that Endorsement, the motions to be heard on August 11, 2014 were confined to all conflict motions in any of the three proceedings where a party was moving for an order to disqualify or remove the lawyer of record for any other party. That day was also reserved for submissions on the terms of adjournment for any status quo motion served to date. 2 Mr. Pinsky requested an adjournment of all motions to disqualify other counsel he had brought on behalf of his clients Joseph Nicholson, BRIM Holding Corp., BRIM IPCO Inc., BRIM Supply Inc., and BRIM Roofing Inc. (collectively the "Nicholson Group"). The Nicholson Group are the plaintiffs in actions commenced under court file numbers CV014-1168 and CV-14-1169. The Nicholson Group are also named as Respondents in an application commenced under court file number CV-14-0103 by Paul Janza, Vlado Zupanec and Nahanni Steel Products Inc. doing business as "Jancox Stampings" (the "Janza Group"). 3 In support of his request for an adjournment, Mr. Pinsky made submissions that Mr. Battiston and Mr. Rosenberg had not responded to an Notice of Examination he had served on them to appear and be cross-examined as the sources of information and belief stated in the affidavit of Sandra Belisamo. That affidavit had been filed by the Janza Group in 1 response to Mr. Pinsky's written argument that his client was entitled to production of documents in advance of cross- examinations. 4 Despite the service of a Notice of Examination to examine certain witnesses on the conflict motions under Rule 39.03, counsel for the Nicholson Group was not permitted to examine those witnesses. Two cross-examinations on affiants had been scheduled or started since the last case management conference, but little progress was made on either of those examinations and they were left until the parties obtained further directions from me. 5 For reasons endorsed on the record that day, I granted the request made by counsel for the Nicholson Group to adjourn the conflict motions. In those reasons, I indicated that once I released my decision on the advance production of documents issue before any examinations on those motions, counsel would have until October 17, 2014 to complete those examinations, including all cross-examinations. In my endorsement read out to counsel in court on August 11, 2014 I addressed the issues raised to streamline the examination process. 6 In this Endorsement, I propose to make my ruling on the preliminary issue of whether the Nicholson Group is entitled to the production of documents in advance of examinations under Rule 39.03 and cross-examinations on affidavits (generally referred to as "cross-examinations") even though pleadings are not closed in either of the two actions. I propose to make this ruling in the form of a direction under the authority I am given under Rule 37.15(1.2). 7 Various parties have also brought motions for interlocutory relief of an injunctive nature against other parties to preserve rights, information or property pending trial. These motions have been referred until now as the "status quo" motions. Since I determined in the Endorsement dated July 10, 2014 that the status quo motions could not proceed before the issues on the conflict motions are determined, I indicated all status quo motions would have to be adjourned. I propose to deal with those terms of adjournment at the end of these reasons under the authority give to me by Section 101 of the Courts of Justice Act and Rule 40 of the (Ontario) Rules of Civil Procedure relating to interlocutory injunctions and mandatory orders. Entitlement to Production of Documents 8 The Nicholson Group asks this court for a preliminary ruling on their entitlement to production of documents prior to cross-examinations on two grounds. First, counsel for the Nicholson Group argues that he and counsel for the Janza Group reached an agreement earlier in these proceedings for the parties to exchange affidavits of documents and to produce documents listed in those affidavits of documents. Alternatively, counsel for the Nicholson Group takes the position that the law permits this court to order the parties to serve affidavits of documents listing all documents relevant to the issues prior to the close of pleadings, and to order the parties to produce those documents listed in those affidavits of documents before the commencement of cross-examinations in respect of the motions to be heard on August 11, 2014. Was there an Agreement reached? 9 Dealing first with the issue whether counsel for the Nicholson Group and counsel for the Janza Group had agreed to exchange affidavits of documents and to produce documents listed in those affidavits of documents, it is important to identify the proceedings and the dates on which they were commenced. 10 Paul Janza, Vlado Zupanec and Nahanni Steel Products Inc., (d.b.a. Jancox Stampings), commenced an application against Joseph Nicholson and the BRIM Group on January 9, 2014. 11 Subsequently, Joseph Nicholson and the BRIM Group of Companies commenced two actions against Paul Janza, Vlado Zupanec and Nahanni Steel Products Inc., (d.b.a.
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