Canada: Top 5 Civil Appeals From The Court Of Appeal (March 2015)

Last Updated: March 24 2015
Article by Carolyn Brandow

There is no shortage of interesting legal issues in the headlines in Canada, from the new legislation about terrorism and mandatory life sentences to which judges from Québec are qualified to sit on the Supreme Court of Canada. While these issues are being determined, the Court of Appeal was busy in February, releasing numerous decisions. This month's netletter summarizes important Court of Appeal decisions involving reasonable notice, an arbitrator's jurisdiction, the onus of proof in rear-end collisions and the use of surveillance evidence at trial, privacy class actions involving medical records and striking jury notices.

​1. Arnone v. Best Theratronics Ltd., 2015 ONCA 63 (Strathy C.J.O., Laskin and Brown JJ.A.), February 2, 2015

2. Ciano Trading & Services C.T. v. Skylink Aviation Inc., 2015 ONCA 89 (MacFarland, Hourigan and Benotto JJ.A.), February 9, 2015

3. Iannarella v. Corbett, 2015 ONCA 110 (Laskin, Lauwers and Hourigan JJ.A.), February 17, 2015

4. Hopkins v. Kay, 2015 ONCA 112 (Sharpe, van Rensburg and Pardu JJ.A.), February 18, 2015

5. Kempf v. Nguyen, 2015 ONCA 114 (Laskin, Rouleau and Epstein JJ.A.), February 18, 2015

1. Arnone v. Best Theratronics Ltd., 2015 ONCA 63 (Strathy C.J.O., Laskin and Brown JJ.A.), February 2, 2015

Matthew Arnone had worked with Best Theratronics Ltd. for more than thirty years when the company terminated his employment without cause. He sued for wrongful dismissal. On a motion for summary judgment, the motion judge ordered that Best pay Arnone damages equal to the gross amount of the salary he would have earned until he qualified for an unreduced pension as well as value of the loss of an unreduced pension and a retirement allowance.

On appeal, Best argued that a genuine issue requiring a trial existed regarding the character of Arnone's employment, one of the factors guiding the calculation of the period of reasonable notice under common law pursuant to Bardal v. The Globe and Mail Ltd. (1960), 24 D.L.R. (2d) 140 (Ont. H.C.). Writing for the Court, Brown J.A. rejected Best's submission that the motion judge disregarded conflicting evidence about Arnone's duties and responsibilities prior to the termination of his employment. Unlike in Thorne v. Hudson's Bay Co., 2011 ONSC 6010, on which the appellant relied, Arnone had accepted Best's characterization of his employment as supervisory for the purposes of the motion. As well, the motion judge had access to an "extensive and reliable" record, which included the cross-examinations of the affiants, to assist him in deciding whether he could make the necessary findings to determine the issues fairly without a trial.

Brown J.A. noted that recent case law on the Bardal factors suggests that the character of employment is of "declining importance" in the determination of the period of reasonable notice. In any event, the motion judge's findings about the character of Arnone's employment supported his conclusion that no genuine issue requiring a trial existed on that issue. Brown J.A. agreed with the motion judge that cases involving the determination of a reasonable notice period are generally amenable to a summary judgment motion.

Best submitted that the motion judge erred in calculating the common law period of reasonable notice to which Arnone was entitled. Brown J.A. agreed, observing that while the motion judge correctly referred to the Bardal factors as the starting point for his assessment, he then departed from the Bardal analysis by "bridging" the notice period to the date on which Arnone would have been entitled to an unreduced pension. The Bardal analysis, which is the prevailing approach to determining reasonable notice, does not include a consideration of the time between the date of termination and the employee's eligibility for a full pension. The motion judge therefore erred in setting the notice period at 16.8 months, the time needed to bridge to his entitlement to an unreduced pension.

Brown J.A. noted that the motion judge went on to make an alternate finding of a 22 month period of reasonable notice. He agreed with Arnone that this period fell within "an acceptable range" established by the case law for supervisors of his age and length of service. In accordance with the appropriate standard of appellate review on the issue of the period of reasonable notice in wrongful dismissal cases, set out in Minott v. O'Shanter Development Co. (1999), 42 O.R. (3d) 321 (C.A.), the Court declined to interfere with the motion judge's assessment.

Brown J.A. observed that because the motion judge took a "bridging" approach to calculating the period of reasonable notice, he did not deduct from the damage award Arnone's income from his new employment during the notice period. Brown J.A. agreed with both parties that the motion judge erred in this regard.

Best also submitted that the motion judge erred in awarding Arnone a retirement allowance equal to 30 weeks' pay. Brown J.A. found that the motion judge demonstrated a misapprehension of the evidence by approaching Arnone's claim to a retirement allowance as one involving his pension benefits. Eligibility for the retirement allowance was not tied to an employee's entitlement to a pension, but was, in fact, a separate contractual entitlement based on the employee's length of service. Nonetheless, Brown J.A. ultimately came to the same conclusion as the motion judge, observing that there was no dispute that it was a term of Arnone's contract of employment that he would receive a retirement allowance of one week for each year of service up to 30 weeks. In Brown J.A.'s view, the retirement allowance, which benefitted both parties, came with an implied term that if an employee was terminated without cause, he would be entitled to payment of the accumulated retirement allowance in consideration for his service to the company. In the absence of any provision to the contrary, effect ought to be given to that implied term. Best opted not to limit its employees' entitlement to the retirement allowance, therefore, Arnone was entitled to the accumulated retirement allowance upon his termination.

Best initially challenged the motion judge's decision to award Arnone damages in the amount of $65,000 to replace the loss of his pension benefits during the notice period. Although the appellant did not ultimately pursue this ground of appeal, Brown J.A. noted that the award – which was based upon a calculation performed by an actuary – was consistent with the principle expressed by the Court in Taggart v. Canada Life Assurance Co. (2006), 50 C.C.P.B. 163 (Ont. C.A.) that a terminated employee is entitled to claim damages for the loss of pension benefits that would have accrued had he worked until the end of the notice period. In the absence of evidence of any contractual term limiting that entitlement, there was no basis upon which to interfere with the award.

Arnone submitted on cross-appeal that the motion judge erred in his assessment of costs by failing to allow him to make submissions on the effect of his two offers to settle. Brown J.A. agreed, noting that a motion judge is required to consider the effect of offers to settle on the award of costs for the motion.

In the result, the Court allowed the appeal in part, substituting an order that Best pay Arnone damages for wrongful dismissal calculated on the basis of a reasonable period of notice of 22 months and requiring that income earned by Arnone during the notice period be deducted from the award. The issue of costs of the motion was remitted back to the motion judge.

2. Ciano Trading & Services C.T. v. Skylink Aviation Inc., 2015 ONCA 89 (MacFarland, Hourigan and Benotto JJ.A.), February 9, 2015

In this decision, the Court of Appeal considered the court's role in resolving a challenge to an arbitrator's jurisdiction.

When Skylink Aviation Inc. terminated its services agreement with Ciano Trading & Services C.T. & S.R.L., Ciano sued Skylink for numerous alleged breaches of the agreement as well as in tort. Ciano also brought an application for a declaration that the agreement's arbitration clause did not apply, pointing to the fact that the survival clause failed to reference the arbitration clause.

On a motion by Skylink to stay the proceedings pending arbitration, the motion judge granted the motion and dismissed Ciano's application, finding that it was unclear whether the arbitration clause survived the termination of the services agreement. Pursuant to the competence-competence principle, the motion judge held it was for the arbitrator to determine whether the arbitrator had jurisdiction. Ciano appealed.

The Court of Appeal rejected Ciano's submission that the motion judge ought to have found that the arbitration clause did not survive the termination of the agreement, noting that under the International Commercial Arbitrator Act, R.S.O. 1990, chapter I.9 and the UNCITRAL Model Law on International Commercial Arbitration, the motion judge was required to defer the issue of applicability of the arbitration clause to the arbitrator, "unless the agreement is null and void, inoperative or incapable of being performed". A court has discretion to decide a challenge to an arbitrator's jurisdiction where the determination of a question of law or of mixed fact and law requires only superficial consideration of the evidence. The Court of Appeal emphasized, however, that where it is unclear if the arbitrator has jurisdiction, it is best to defer the issue to the arbitrator pursuant to the competence-competence principle.

The motion judge found that both parties to the dispute presented arguable positions as to the survival of the arbitration clause. In light of that finding, he was not obligated to determine the operability of the arbitration clause, nor did he err in referring the issue of jurisdiction to the arbitrator.

The Court dismissed the appeal, confirming the referral of the matter to arbitration.

3.Iannarella v. Corbett, 2015 ONCA 110 (Laskin, Lauwers and Hourigan JJ.A.), February 17, 2015

In this decision, which arose from a motor vehicle accident claim, the Court of Appeal addressed the onus of proof applicable to rear-end collisions and the use of surveillance evidence at trial.

The appellant, Andrea Iannarella, was rear-ended by the respondent, Stephen Corbett, who was driving a concrete mixer. Iannarella and his wife sued for damages for his personal injuries, which Iannarella claimed left him unable to return to work.

At trial, the jury concluded that Corbett had not been driving negligently and the trial judge accordingly dismissed the action. On the provisional issue of damages, the trial judge dismissed Iannarella's claim for non-pecuniary damages on the basis that he failed to meet the statutory "threshold" under section 267.5 of the Insurance Act, R.S.O. 1990, chapter I.8 costs of $255,000 were awarded to the defendant. Iannarella appealed.

Iannarella first submitted that the trial judge erred in instructing the jury on the onus of proof applicable to rear-end motor vehicle collisions. Lauwers J.A. agreed, noting that the trial judge departed from the standard liability instruction, which places the onus on the defendant to prove that he could not have avoided the accident by exercising reasonable care. Lauwers J.A. wrote that, since Beaumont v. Ruddy, [1932] O.R. 441 (C.A.), the Court has adhered to the principle that in the case of rear-end collisions the fault is presumed to be with the driver of the rear car, and that driver must satisfy the court that the collision did not occur as a result of his negligence. While Blair J.A. cautioned in Martin-Vandenhende v. Myslik, 2012 ONCA 53, that the Beaumont principle does not automatically lead to liability for the rear driver, generally this will be the case, with the onus shifting onto that driver to demonstrate otherwise. The trial judge failed to adhere to this principle, instead emphasizing throughout his charge to the jury that the onus was on the plaintiff.

Lauwers J.A. held that in light of the facts and the law applicable to rear-end collisions, a new trial on liability was unnecessary. Even accepting Corbett's evidence, Lauwers J.A. held that he had failed to discharge his onus of disproving negligence such that a substituted finding of liability against Corbett was appropriate.

Iannarella next challenged the defendant's use of video surveillance evidence. During Iannarella's cross-examination, the defence tendered a 27 minute video of surveillance that showed Iannarella engaged in activities which they claimed were inconsistent with the alleged injuries and which, they submitted, demonstrated that Iannarella's evidence was not credible. The trial judge allowed defence counsel to enter the video as an exhibit, despite the fact that they had not disclosed its existence prior to trial.

Iannarella submitted that the trial judge erred in denying his pre-trial request for production or at least particulars of any surveillance. He argued that the trial judge further erred in allowing the defence to use the surveillance evidence despite their failure to disclose its existence in an affidavit of documents, contrary to rule 30.08(1)(a) of the Rules of Civil Procedure, and in refusing to order that they provide access to the full recordings. Finally, Iannarella submitted that the trial judge also erred in failing to instruct the jury on the proper use of the surveillance evidence in their deliberations.

Lauwers J.A. undertook a comprehensive, nearly 100 paragraph review of the rules governing the disclosure and use of surveillance evidence in personal injury actions and the use and judicial treatment of the respondents' surveillance evidence at trial. He concluded that a "trial by ambush" had occurred in this case. From the failure to require the respondents to comply with the Rules of Civil Procedure in disclosing the surveillance evidence to the failure to provide the jury with instructions on the permissible use of the evidence, Lauwers J.A. held that the trial judge's errors "critically impaired the fairness of the trial". Lauwers J.A. concluded that the damages verdict must be set aside and a new trial ordered on that issue.

Lauwers J.A. ordered that the costs disposition also be set aside on the basis of his decision on the substantive issues, and observed that the award of $255,000 for a fifteen-day trial was "distinctly punitive" to the appellants, who risked losing their home.

In the result, the Court allowed the liability appeal, substituted a finding of liability against the defendant driver, and ordered a new trial on the issue of damages.

4. Hopkins v. Kay, 2015 ONCA 112 (Sharpe, van Rensburg and Pardu JJ.A.), February 18, 2015

A proposed class action against the Peterborough Regional Health Centre raised the question of whether the Personal Health Information Protection Act, 2004 creates an exhaustive code, precluding courts from hearing civil actions for violations of privacy rights in relation to patient records.

Erkenraadje Wensvoort, a patient at the Peterborough Regional Health Centre (the "Hospital"), was notified by the Hospital pursuant to the Personal Health Information Protection Act, 2004, S.O. 2004, chapter 3, Schedule A ("PHIPA") that the privacy of her personal health information had been breached. Along with two other individuals no longer party to the action, Wensvoort commenced a class proceeding against the Hospital and a number of its employees, alleging that the employees improperly accessed and disclosed patient records and that the Hospital failed to adequately supervise its staff and implement policies.

Wensvoort initially asserted a cause of action based on breaches of PHIPA, but later amended the statement of claim to base her claim only on the common law tort of "intrusion upon seclusion", the existence of which was confirmed by the Court of Appeal in Jones v. Tsige, 2012 ONCA 32.

This appeal arose from the Rule 21 motion brought by the Hospital and its employee to dismiss the action on the basis that PHIPA is an exhaustive code that precludes common law claims for breaches of privacy rights relating to personal health information, ousting the jurisdiction of the Superior Court. The motion judge refused to strike the claim, finding that it was not plain and obvious that it would fail.

The Ontario Hospital Association intervened in support of the Hospital and its employee and supported the appellants' submission that PHIPA creates an exhaustive code in this context, such that Wensvoort could not pursue a common law claim for intrusion upon seclusion. The Information and Privacy Commissioner of Ontario (the "IPCO"), on the other hand, intervened to support the position of Wensvoort that the Superior Court has jurisdiction.

Writing for the Court, Sharpe J.A. noted that an intention to create an exhaustive code may be explicitly stated in the legislation or it may be implied. As PHIPA is silent on the issue of exclusivity, the Court had to determine whether an intent to exclude judicial jurisdiction could be implied from the language of the statute.

In Pleau v. Canada (A.G.), 1999 NSCA 159, leave to appeal refused, [2000] S.C.C.A. No. 83, Cromwell J.A. (as he then was) identified three factors that the Court should consider when determining whether the legislature intended to create an exhaustive code: (i) the process for dispute resolution established by the legislation; (ii) the nature of the dispute and its relation to the rights and obligations created by the legislation; and (iii) the capacity of the legislative scheme to afford effective redress.

With respect to the first factor, Sharpe J.A. observed that PHIPA established an "informal and highly discretionary" process for the resolution of breaches of privacy relating to personal health information, a process which was designed to deal with systemic issues rather than individual complaints. The statute does not imply that this complaint procedure is exhaustive or exclusive. To the contrary, it explicitly contemplates the possibility that complaints about the misuse of personal health information may properly be the subject of a procedure beyond its scope, both in court and proceedings of other tribunals. PHIPA explicitly provides in section 65 that a complainant can start a proceeding in the Superior Court to seek damages arising out of a breach of the PHIPA and the court can award damages for actual harm and mental anguish.

Turning to the "essential character" of the claim, Sharpe J.A. held that an action based on intrusion upon seclusion would not undermine the legislative scheme set out in PHIPA. As the Court explained in Jones v. Tsige, above, in order to establish a claim for intrusion upon seclusion, the claimant must go well beyond showing a breach of the PHIPA. A claimant must demonstrate intentional or reckless conduct by the defendant, that the defendant invaded, without lawful justification, the plaintiff's private affairs, and that a reasonable person would regard the infringement as highly offensive, causing distress, humiliation or anguish. Observing that these elements are far more difficult to establish than a breach of PHIPA, Sharpe J.A. held that a plaintiff initiating a common law action could not be said to be attempting to undermine or circumvent PHIPA.

On the third factor, redress, Sharpe J.A. noted that the IPCO's focus is on addressing systemic remediation of contraventions of PHIPA and that the IPCO has the authority to decline to conduct a review or make an order where an individual complaint under PHIPA fails to raise systemic issues. Given the broad discretion given to the IPCO, complainants would face "an expensive and uphill fight" on any judicial review application to challenge a decision not to review or proceed with an individual complaint. In Sharpe J.A.'s view, the process established by PHIPA does not provide effective redress to individual complainants.

Sharpe J.A. concluded that the language of PHIPA does not imply a legislative intention to confer exclusive jurisdiction on the IPCO to resolve all disputes about the misuse of personal health information.

The Hospital and its employee cited a number of cases in support of their position that PHIPA creates an exhaustive code that precludes the courts from hearing claims for common law breaches of privacy. Sharpe J.A. considered, but distinguished, each of the cases, concluding that none altered his conclusion that the legislature did not intend for PHIPA to constitute an exhaustive code.

While the Supreme Court held in Seneca College v. Bhadauria, [1981] 2 S.C.R. 181 that the Ontario Human Rights Code, R.S.O. 1970, chapter 318 constituted a comprehensive statutory scheme precluding a civil action for discrimination, PHIPA differs from the Code by explicitly contemplating other proceedings in relation to claims arising from the improper use of personal health information. While in the labour relations context the Supreme Court found that the Ontario Labour Relations Act, R.S.O. 1990, chapter L.2, provided an accessible mechanism for dispute resolution, PHIPA was not tailored to deal with individual complaints, and its invocation depends largely on the discretion of the IPCO. In British Columbia and Alberta, where the courts have held that privacy statutes "occupied the field" and precluded civil actions based on breaches of privacy, there was a general statutory cause of action for breach of privacy. In Ontario, however, there was no such statutory cause of action.

Sharpe J.A. therefore concluded that the plaintiff was not precluded from asserting a common law claim for intrusion upon seclusion.

5. Kempf v. Nguyen, 2015 ONCA 114 (Laskin, Rouleau and Epstein JJ.A.), February 18, 2015

On a spring day in 2008, Thi Thanh Nguyen and Rolf Kempf took part in the Ride for Heart bicycle ride to benefit the Heart and Stroke Foundation. This case arose out of a collision between the two cyclists.

Kempf, who suffered serious injuries from the collision, sued Nguyen in negligence. With the issue of damages settled, the issue at trial was the extent to which, if at all, Nguyen was liable for Kempf's injuries.

Prior to the start of the trial, Nguyen amended his statement of defence, pleading that Kempf had voluntarily assumed the risk of the ride when he executed the "waiver agreement" which all participants in the event were required to sign. Nguyen also claimed that Kempf had himself been negligent. At the opening of trial, Kempf moved to strike the jury notice (which had been served by Nguyen) on the basis that the defence of volenti non fit injuria altered the nature of the claim to one for declaratory relief, precluding it from being determined by a jury. He further argued that, even if the issue of volenti was reserved to the trial judge, the jury would be unable to appreciate the limited role of the waiver in the determination of liability. Nguyen countered that with appropriate instructions, the jury would be capable of understanding the manner in which the waiver could be used in the assessment of liability. Nguyen further argued that the motion to strike was premature, submitting that it be renewed later during the trial if necessary.

The trial judge rejected Nguyen's suggestion that she adopt a wait-and-see approach. She struck the jury notice, holding that "there is a real danger that the jury, in answering the liability questions, will be confused by the contents of the waiver or perhaps use it inappropriately in their deliberations", particularly in light of Nguyen's plea that Kempf voluntarily assumed the risks of the ride. At the conclusion of the trial, she found Nguyen responsible for Kempf's injuries without any contributory negligence on Kempf's part.

Nguyen did not challenge the trial judge's finding that he was negligent, but submitted that she erred in failing to apportion any liability against Kempf and in finding that the applicable standard of care was negligence as opposed to recklessness. He also argued that the trial judge erred in striking the jury notice.

Citing the decision of the Court of Appeal in Cowles v. Balac (2006), 83 O.R. (3d) 660 (C.A.), leave to appeal refused, [2006] S.C.C.A. No. 496, Epstein J.A. noted that the trial judge has considerable discretion in deciding whether to strike a jury notice. She emphasized, however, that the Court will order a new trial where it finds, as it did in Hunt (Litigation Guardian of) v. Sutton Group Incentive Realty Inc. (2002), 60 O.R. (3d) 665 (C.A.) and Brady v. Lamb (2005), 78 O.R. (3d) 680 (C.A.), that the trial judge has exercised her discretion "arbitrarily or based on improper principles". Epstein J.A. found that this was such a case. While the trial judge did not exercise her discretion to strike the jury in an "arbitrary or capricious" manner, she erred in basing her decision on wrong or inapplicable principles of law. It was an error for the judge to hold that the plea of volenti involved a claim for declaratory relief (a matter precluded from being determined by a jury) and that the jury, even properly instructed, would be unable to understand the limited use that they could make of the waiver.

Epstein J.A. explained that volenti is not a claim for declaratory relief but is rather "a full defence to a finding of negligence", a question of fact normally decided by a jury. The trial judge therefore erred to the extent that she based her decision to strike the jury on Nguyen's amended plea of volenti.

Epstein J.A. held that the trial judge also erred in striking the jury on the basis that even with proper instructions it could not deal with the issue of the waiver. Recalling the Court's decision in Hunt, above, she noted that it was the trial judge's duty to determine the applicable legal principles, including the ways in which the waiver might be relevant to liability, and to instruct the jury with respect to these principles. Discharging the jury because it would be difficult to explain the law is a reversible error.

The Supreme Court has held that it is wrong to make too much of the risk that a jury might use evidence for an improper purpose: R. v. Corbett, [1988] 1 S.C.R. 670 at 692; Hamstra (Guardian ad litem of) v. British Columbia Rugby Union, [1997] 1 S.C.R. 1092 at paragrah 15. With respect to the specific issues in this case for the jury, Epstein J.A. observed that the waiver was neither lengthy nor complicated and that its limited application was "hardly beyond the ken" of a jury. The waiver was a straightforward contract between participants in the ride and its organizers in which the riders agreed that they were riding at their own risk and that the organizers were absolved of liability for any injuries or damages suffered. A properly instructed jury would have no difficulty understanding that the waiver was not a bar to Kempf's action.

Epstein J.A. added that it would have been preferable for the trial judge to have adopted Nguyen's suggested wait-and-see approach, reserving her decision on the motion until after evidence had been heard or until a specific problem arose. She noted, however, that such an approach is not a rule of law, and declined to address the matter further.

Having concluded that the trial judge erred in striking the jury notice, Epstein J.A. turned to a consideration of the appropriate remedy. Pursuant to the test outlined by the Supreme Court in King v. Colonial Homes Ltd., [1956] S.C.R. 528, she questioned whether a jury, acting reasonably, would inevitably have reached the same result as the trial judge. Epstein J.A. concluded that an identical finding by the jury was not inevitable, identifying evidence upon which a jury properly instructed and acting reasonably could have come to a different conclusion than that reached by the trial judge. There was ample evidence to support a finding of contributory negligence, an issue which the trial judge failed to address. The jury could reasonably have assessed credibility differently from the trial judge and taken a different approach to the standard of care. In light of the possible different conclusions, Epstein J.A. held that ordering a new trial, despite being an exceptional remedy, was appropriate.

Epstein J.A. declined to address Nguyen's substantive grounds of appeal, noting that a new trial was a complete response to his concerns. Rouleau J.A. concurred.

Laskin J.A. dissented, finding that the trial judge did not err in exercising her discretion to discharge the jury and adding that, even if she did so err, a new trial is not necessary because any jury acting reasonably would have reached the same result and found Nguyen liable for Kempf's injuries.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.