Date: 20151221

Docket: T-1876-14

Citation: 2015 FC 1404

Ottawa, Ontario, December 21, 2015

PRESENT:    The Honourable Madam Justice Strickland

BETWEEN:

STRATHEARN CONSULTING INC.

Plaintiff

and

BARBRA ANN KIRSHENBLATT, KIRKOR ARCHITECTS AND PLANNERS, STEVEN KIRSHENBLATT, RKS BUILDING GROUP LTD., ERIC KIRSHENBLATT A.K.A.  RICKY KIRSHENBLATT, KING MASONRY YARD LTD., FOREST HILL REAL ESTATE INC., JULIE GOFMAN, JOHN DOE, AND JANE DOE

Defendants

and

BARBRA ANN KIRSHENBLATT

Third Party

ORDER AND REASONS

[1]               This is an appeal brought by motion of the Appellant herein, Strathearn Consulting Inc. (“Appellant”), pursuant to Rule 51 of the Federal Courts Rules, SOR/98-106 (“Rules”), of an order of Prothonotary Tabib, as Case Management Judge, dated October 16, 2015.  The Prothonotary granted a motion of the Respondent, Kirkor Architects and Planners (“Respondent”), seeking an order, pursuant to Rule 249 of the Rules, for inspection of property.

[2]               For the reasons stated below, the appeal is dismissed.

Background

[3]               The Appellant claims that it is the owner of the copyright in the design of a renovation to a residential property located at 33 Strathearn Road, Toronto, Ontario (“33 Strathearn”).  On August 28, 2014, the Appellant commenced an action, pursuant to the Copyright Act, RSC 1985, c C-42 alleging infringement of that copyright interest by the Respondent, among other defendants.  The Respondent was the architect retained to design and draft architectural plans for a residential property built at 21 Vesta Drive, Toronto, Ontario (“21 Vesta”), which the Appellant claims is an infringing copy of 33 Strathearn.  The Strathearn property is owned by a private third party, not named in the present proceeding.

[4]               Parties have exchanged affidavits of documents, but no examinations for discovery have yet been conducted.

[5]               In February 2015, the Respondent brought a motion for inspection of 33 Strathearn.  The supporting affidavit filed and sworn by counsel for the Respondent stated that the Respondent had retained an expert, Carson Woods Architects & Planners (“Woods”), to inspect the two homes in order to provide its opinion on the allegations related to the exterior architectural features of 33 Strathearn as compared to 21 Vesta.  The affiant also stated that he had been advised by Woods that it required a close-up view of the property in order to carry out a meaningful inspection because 33 Strathearn is gated off from the street and substantially set back from the curb.

[6]               Prothonotary Tabib granted the Respondent’s motion and issued an order for inspection under Rule 249 (“Inspection Order” or “Order”).

Issue

[7]               This appeal raises the issue of whether the Prothonotary erred in granting the Respondent’s motion for inspection, including the awarding of costs.

Standard of Review

[8]               The parties agree that in an appeal from a prothonotary’s order, this Court should conduct a de novo assessment only where:

        i.            the order is clearly wrong, in the sense that the exercise of discretion by the prothonotary was based upon a wrong principle or upon a misapprehension of the facts; or

      ii.            the prothonotary improperly exercised his or her discretion on a question vital to the final issue of the case (Apotex Inc v Eli Lilly Canada Inc, 2013 FCA 45 at para 4 [Apotex FCA 2013]; Merck & Co Inc v Apotex Inc, 2003 FCA 488 at para 19; AstraZeneca Canada Inc v Apotex Inc, 2008 FC 1301 at para 21). 

Decision of the Prothonotary

[9]               The Inspection Order states that:

1.    The owners of the property municipally known as 33 Strathearn Road in Toronto, Ontario, shall permit access to the said property by the Defendants’ experts and representatives for the purpose of carrying out a visual inspection of the said property, at a time agreeable to all parties and to the occupants of the property.

2.    The inspection shall take no more than one half day, and shall be limited to the exterior of the house.

3.    The inspector(s) may record photographs or video, but shall avoid any photography or videography of the interior of the house.

4.    Use of a ladder or stepladder during the inspection shall be permitted provided that no damage is likely to be caused to the house or the property grounds by the use of the ladder or stepladder, and provided that direct views inside the house are avoided when using the ladder.

5.    Costs in the amount of $1,750.00 shall be payable by the Plaintiff to the Defendant/Third Party Kirkor Architects and Planners.

[10]           The Prothonotary stated that “it was fair that there be an inspection of this house at some point” noting that the Appellant (Plaintiff in the action) alleged that the design of 33 Strathearn was copied through visits to the property.  She also stated that “there was a cogent argument that, because the house is an adaptation of a previously built, original house, it is not unreasonable that a site visit would be better to inform as to what is original, what is new, and how the two work together than would a series of photographs”.

[11]           The Prothonotary found that the inspection in this case was not unduly invasive as it was comprised of a walking tour of the exterior, restricted to half a day and that neither samples nor destruction of the property would be required.  She also considered the fact that the Respondent requested the inspection prior to discoveries and found that it was neither the Court’s nor the Respondent’s (Defendant in the action) contemplation that there would be a need for a site visit after discoveries.  Further, as to timing, the Prothonotary found that the Respondent’s choice about when they wanted to hold the inspection was not unreasonable. 

[12]           As to her award of costs, the Prothonotary stated that she ordered costs because they were requested and because the Appellant conceded that the winner in the motion should have its costs.  Were it not for the Appellant’s concession, she would have awarded no costs, as a motion was required in any event.  She went on to say:

The Plaintiff is also correct that the motion record was deficient: particularly, the parameters of the desired inspection were not expressed and there was no undertaking or suggestion that this should be the only inspection that would be made.  A motion would have had to be brought, but it might not have been disputed if the record had been more fulsome and if all the parties had picked up the phone, assumed good faith on the part of one another, and had discussions in which each was willing to understand and address the concerns of the other side.  This is why, had the Plaintiff not conceded that the winner should have its costs, I would have awarded no costs.

Relevant Legislation

Federal Courts Rules, SOR/98-106

Submissions of the Parties

The Appellant’s Position

[13]           The Appellant submits that the Prothonotary’s order should be reviewed de novo and set aside because it is clearly wrong.  This is because the Inspection Order was made in the absence of a proper evidentiary foundation, the inspection motion was premature, and, the Prothonotary erred in the exercise of her discretion in awarding costs.

[14]           As to Rule 249, the words “necessary or expedient” are intended to provide broad discretion to the Court.  However, the facts of a particular case are important and the Court must balance all applicable factors which are relevant to the interests of the parties, the property owners and the trier of fact.

[15]           The Appellant submits that in granting the Inspection Order on the basis of an evidentiary record which she recognized was “deficient”, the Prothonotary’s exercise of discretion was based on a wrong principle and in the absence of a suitable factual basis.

[16]           In that regard, the only evidence brought by the Respondent was a solicitor’s affidavit advising that an expert had been retained and containing the hearsay statement of an unnamed individual of the retained firm.  No qualifications of the expert were provided nor any explanation given as to what was hoped to be gained by an inspection at this early stage.  This precluded testing of the expert on cross examination.  Thus, in granting the Inspection Order, the Prothonotary relied on vague, inadequate and improper hearsay evidence and proceeded in the absence of evidence from the Respondent’s expert that the inspection was necessary or expedient as required by Rule 249.

[17]           The Appellant also submits that an order for inspection represents a serious intrusion on the rights of the property owner, particularly where the property is privately owned (Apotex FCA 2013 at para 14).  Inspection of third-party private property is an extraordinary and intrusive remedy and should be granted only based on evidence allowing the trier-of-fact to be satisfied that an inspection would serve a useful, non-speculative purpose.  By granting the Order without supporting evidence, the Prothonotary acted contrary to the principles set out in Rule 249, the jurisprudence and was clearly wrong.

[18]           The Appellant further submits that the motion for inspection was premature.  In concluding that the inspection was justified at a pre-discovery stage of the proceeding because there should be an inspection “at some time”, the Prothonotary’s exercise of her discretion in granting the Order was based on a wrong principle.

[19]           The Court has recognized that information that might be available through an inspection can usually be readily obtained through discovery (Apotex FCA 2013 at para 15).  The Respondent has not demonstrated that an inspection is the only means of obtaining the information or that it is necessary at this stage “for any immediate purpose” (PJ Wallbank Manufacturing Co Limited v Kuhlman Corporation, [1981] 1 FC 645 at 146 (FCA) [Wallbank]; Posi-Slope Enterprises Inc v Sibo Inc, [1984] FCJ no 507 at 141 (FCA)).  The Appellant’s affidavit of documents includes numerous photographs and architectural plans about which further details will likely be revealed during discoveries.  The Respondent’s expert has not stated that these are insufficient such that an inspection is necessary or expedient.

[20]           Finally, the Appellant submits that the Prothonotary has opened the door to the possibility of a multiplicity of inspections by the numerous Defendants in this case, some of which are currently unknown.  To the extent that an inspection may be necessary or expedient, it should occur only after discoveries to prevent multiple inspections being sought.  Thus, the granting of the Order at the pre-discovery stage does not fulfil the objective of proportionality, is likely to result in prejudice to the Appellant and is clearly wrong.

[21]           On the costs award, the Appellant submits that it was clearly wrong for the Prothonotary to award costs in the face of the Respondent’s deficient evidentiary record in the motion.  The Respondent took no steps to cure those deficiencies despite knowing of the Appellant’s objections.

The Respondent’s Position

[22]           The Respondent submits that in appeals from a case management judge, he or she should be given latitude to manage cases and the Court should only interfere in the clearest cases of misuse of judicial discretion (Sawridge Band v R, 2001 FCA 338; Novopharm Ltd v Eli Lilly Canada Inc, 2008 FCA 287 at para 59 [Elli Lilly FCA 2008]).  Litigants face a heavy burden when seeking to overturn an interlocutory case management order (Eli Lilly FCA 2008 at para 28; Bard Peripheral Vascular Inc v WL Gore & Associates Inc, 2015 FC 1176 at para 13; Apotex Inc v Sanofi-Aventis Canada Inc, 2011 FC 52 at para 15; Apotex FCA 2013 at para 5).  Prothonotaries are to be afforded ample scope in the exercise of their discretion when managing cases (J2 Global Communications Inc v Protus IP Solutions Inc, 2009 FCA 41 at para 16).

[23]           The motion for inspection was not vital to the final issue.  The Prothonotary’s Order also was not based on a misapprehension of the facts, nor was this alleged by the Appellant.

[24]           The Respondent submits that, contrary to the Appellant’s submissions, the Prothonotary was entitled to rely on the motion materials, the pleadings, the submissions of counsel at the motion and her familiarity with the history and details of the case, not just the Respondent’s written submissions.  As seen from her reasons, the Order was a matter of common sense based on the fact that copyright infringement was alleged.

[25]           The motion record provided the ground for requesting the inspection and in oral submissions, the Respondent further explained the relevance of an inspection, its proposed length and identified the expert retained to conduct the inspection.  Pursuant to Rule 81(1), affidavits on motions, other than summary judgment or trial, can include statements as to the deponent’s belief.  Failure to provide the best evidence may go to weight, but the Respondent’s affidavit evidence in the motion was not improper hearsay as the Appellant submits.  This is not a fundamental error of law or principle.

[26]           Further, in the Respondent’s view, the Prothonotary was able to assess whether an inspection would be necessary or expedient in this case without evidence from the Respondent’s expert and explained in her reasons how an inspection would serve a useful purpose that would assist the trier of fact.  The Appellant’s contention that there was insufficient evidence provided to the Prothonotary is unfounded and, in any event, it is not an error of law or principle to grant an order on the merits where it would advance an understanding of the issues in the circumstances.

[27]           The Respondent submits that the Prothonotary properly applied Rule 249.  There is no principle mandating that discoveries take place prior to an inspection.  The Prothonotary exercised her discretion in determining what was appropriate in the circumstances and specifically addressed timing in her reasons.  This furthers the purpose of the Rules in securing the just, most expeditious and least expensive determination in accordance with Rule 3.

[28]           An order for inspection is not by its nature extraordinary or intrusive.  The term “necessary” in Rule 249 means that there is a reasonable possibility that the proposed test or inspection would reveal something useful for the trier of fact (Apotex FCA 2013 at paras 8 and 10).  The words “necessary or expedient” broadens the discretion available to the Court.  The Prothonotary balanced the interests of those involved: the parties, the owners of the property and the trier of fact, ultimately concluding that the level of intrusion or invasiveness was relatively low.  Her Order also ensures that there will be no serious intrusion or irreparable harm for the owners of 33 Strathearn resulting from the inspection.  The requirements of Rule 249 have been met.

[29]           The Respondent also submits that the Prothonotary exercised the discretion given to the Court by Rule 400(1) in awarding costs in the motion and explained her reasons.  She did not rely on any wrong principle in awarding costs and, therefore, her discretionary decision should not be decided de novo.

Analysis

[30]           The Appellant’s position is almost entirely premised on its view that the Prothonotary erred in granting the Inspection Order on the basis of a deficient evidentiary record.  In that regard, I would first note that the Prothonotary’s comment as to the deficient motion record was made in the context of her award for costs.  She explained that the Rules require that a motion be brought when an order for an inspection is sought thus, to obtain the order, a motion was unavoidable.  She also stated that, had the Respondent’s motion record been more fulsome and had the parties been willing to discuss the matter in good faith, then it was possible that the motion may not have been contested.  That was why, but for the Appellant’s concession that the winner should have its costs, the Prothonotary would have made no order as to costs.

[31]           Further, the deficiencies that the Prothonotary noted were not evidentiary in nature, they were concerned with the scope of the requested inspection.  Specifically, she noted the absence of parameters for the desired inspection and an undertaking or suggestion that this would be the only inspection.  The Prothonotary addressed both of these concerns in the terms of her Order. 

[32]           I also agree with the Respondent that Rule 81(1) permits the filing of affidavits on motions of this type which can include statements of the deponent’s belief, together with the ground for that belief (Twentieth Century Fox Home Entertainment Canada Ltd v Canada (Attorney General), 2012 FC 823 at para 22).  Accepting the solicitor’s affidavit was, therefore, not a fundamental error of law or principle.  The affidavit identified the architectural firm that was retained as an expert, Woods, and that the purpose of the retainer was to compare the two homes in order to provide an opinion.  The affidavit states that 33 Strathearn is substantially set back from the curb and that the affiant was advised by Woods that it requires access to a close up view in order to carry out a meaningful inspection.  Thus, the deponent set out the source of his belief and the basis for the requested inspection.  This was straightforward and non-technical.  The Prothonotary was entitled to and did, in my view, weigh this evidence in considering the motion for inspection.

[33]           As to Rule 249, the Federal Court of Appeal addressed its interpretation in Apotex FCA 2013.  That decision is of particular relevance to this matter:

[8]        The parties have provided us with case law indicating that the word “necessary” used in these various provincial Rules appears to have been consistently understood to mean that there is “a reasonable possibility that the proposed test will reveal something useful for the trier of fact (that is something which will assist the trier of fact in determining an issue in the proceeding)”...

…

[10]      Read in the context of Rule 3, which was added in the 1998 revision of the Rules, the test set out in Rule 249 is clear and does not require that this Court provide more detailed and strict guidelines in respect of its application. In fact, it would be unwise to try to do so as it is evident that the use of the words “necessary or expedient” was intended to give a broad discretion to the Court. As always, facts do matter and they are particularly important when dealing with motions such as those under Rule 249 which require the Court to balance any number of factors relevant to the three main interests at play: those of the party requesting the inspection or samples, those of the party in possession of the property concerned and those of the trier of fact. It is because of this need to balance all the relevant factors that a party must move to get an order under Rule 249, contrary to other discovery Rules. In our view, this is exactly how the Prothonotary approached her task when she set out to determine the motions before her.

[11]      We do not accept Apotex’s submission that our Court set out a strict test in P.J. Wallbank Manufacturing. Co. Limited v. Kuhlman Corporation, [1981] 1 F.C. 645, 50 C.P.R. (2d) 145 at 146 (F.C.A.) (Wallbank) and in Posi-Slope Enterprises Inc. v. Sibo Inc., 1 C.P.R. (3d) 140, [1984] F.C.J. no. 507 (QL) at 141 (F.C.A.) (Posi-Slope) and that the Prothonotary and the Judge were bound to require evidence that the proposed tests were “the only means” for the Respondents to establish their case or at least that this was an “exceptional case” where such testing was the solution of “last resort” as mentioned in Gerber GarmentTechnology Inc. v. Lectra Systems of Canada, 66 C.P.R. (3d) 24, [1996] F.C.J. no. 41 (QL) at paragraph 3 (F.C.A.) (Gerber).

[12]      In Wallbank, this Court overturned the decision of Cattanach J. on the basis that he was wrong when he found that the inspection of the premises was the only means available to the plaintiff. That being so and considering the irreparable harm (prejudice) that could result from the said inspection, this Court found that the Judge should not have issued the Order. This conclusion was based on the balancing of the relevant factors in the particular facts of that case.

[13]      It is also clear from the decision of this Court in Posi-Slope, above, that the motion was dismissed as “it was not necessary for either the purpose of pleading or for any immediate purpose” expressly leaving the door open for the applicant to bring a further motion at a later stage. Posi-Slope cannot be read as construing the full scope of Rule 249 (as it then read) when the very language of the Rule is absent from the Court’s reasons.

[14]      The Court agrees with Apotex that the same test applies to all orders pursuant to Rule 249. But once again, facts matter. We understand that the balancing of the relevant factors may well weigh more in favour of dismissing a motion for the inspection of private premises, as it was the case in Wallbank and Posi-Slope, as it often involves a serious intrusion and possibly irreparable harm for the party whose property is concerned.

[15]      Usually, the information that is available through discovery (for example, a full and detailed description of the property or machinery or photographs thereof) is sufficient to satisfy all the interests at play. However, in complex pharmaceutical patent cases like the present ones, the usual mechanisms of discovery may well not suffice and parties will often have to rely on Rule 249. Of course, orders will still only issue upon the Federal Court being satisfied that the requirements of Rule 249 have been met.

[16]      In such cases, “expediency” may well be a major factor for the Court in exercising its discretion (Richter Gedeon Vegyészeti Gyar RT v. Apotex Inc., Order of Lutfy, A.C.J. dated 4 December 2000, Docket T-2520-93; Richter Gedeon Vegyészeti Gyar RT v. Apotex Inc., 2002FCT 1284, affirmed 2003 FCA 221; Glaxo Group Ltd. v. Novopharm Ltd, 87 A.C.W.S. (3d) 356, [1999] F.C.J. no. 381 (QL) (F.C.T.D.)).

…

[18]      In concluding as we do, we are reminded of the principle set out in previous decisions of this Court that one should be particularly reluctant to interfere with discretionary decisions made on non-vital issues such as those raised in the current appeal by Prothonotaries or Federal Court Judges in the course of case managing a matter (See Sawbridge Indian Band v. Canada (Minister of Indian Affairs and Northern Development, 2001 FCA 338 at paragraph 11; j2 Global Communications Inc. v. Protus IP Solutions, 2009 FCA 41 at paragraph 16; Mushkegowuk Council v. Canada (Attorney General), 2011 FCA 133 at paragraph 5).

(emphasis in bold added)

[34]           In my view, it is evident from the Inspection Order that the Prothonotary understood the balancing requirements of Rule 249 and applied them to the evidence and facts before her.  She did not exercise her discretion based on a wrong principle.  The Prothonotary’s reasons demonstrate that she was of the view that the inspection was necessary and that there was a reasonable possibility that it would reveal something useful for the trier of fact.  In other words, she did not accept the Appellant’s contention that the series of photographs that it produced was sufficient, she was clearly of the opinion that the site visit might produce something more stating that “because the house is an adaptation of a previously built, original house, it is not unreasonable that a site visit would be better to inform as to what is original, what is new, and how the two work together than would a series of photographs”.  I find no issue or error with this conclusion and note that when taking photographs of the house the Appellant may have focused on similarities with the other house while the Respondent’s expert might focus on differences.  Further, the stated immediate purpose of the inspection is to inform the expert’s opinion, not merely to provide further photographs.  And, as seen from Apotex FCA 2013, the proposed inspection need not be the only means available to the Respondent, nor must an inspection order be premised on an exceptional case.

[35]           The Prothonotary also noted that the owner of the property had been served with the motion but did not directly oppose it.  She found that the proposed inspection was not unduly invasive, it was an exterior walking tour of a half day duration, samples were not to be taken nor destructive testing undertaken.  Her Inspection Order also specifically prohibited direct viewing or photographing of the interior of the house through its windows.  That is, she balanced the interests of the party requesting the inspection, the property owner and the trier of fact.  This was not a situation such as Wallbank where there was a serious intrusion upon the premises and a danger of irreparable harm.

[36]           As stated by the Federal Court of Appeal in Apotex FCA 2013, the test in Rule 249 is clear and was intended to give broad discretion to the Court.  Thus, I do not agree with the Appellant that the Prothonotary was required to base her analysis on the evidence of the intended architecture expert.  Nor do I agree that it was necessary for that expert to file an affidavit in support of the motion so that he could be cross examined on it prior to the inspection.  This was a straight forward visual inspection.  Any issues as to the expert’s qualifications and the use of his or her report can be addressed at the discovery stage and at trial.

[37]           As to prematurity of the inspection, the Appellant submits that if an inspection should ultimately prove to be necessary or expedient then it should only be after discoveries to avoid a multiplicity of inspections.  The Prothonotary dealt with the pre-discovery timing of the inspection.  She indicated that there was no contemplation of further site visits.  Further, counsel for the Respondent advised me at the hearing of this appeal that all of the named Defendants were served with its motion for an inspection order and none opposed it.  It is true that there are John and Jane Doe Defendants, however, their participation at a future date is speculative.  And, in any event, given the high level of discretion available to case management judges, the Prothonotary would be in a position to take the prior inspection into account when assessing any future motions for inspection, including the usefulness of such information to the trier of fact.

[38]           Rule 249 contains no requirement that an inspection order be granted only after discoveries are conducted.  It may well be that conducting the inspection and obtaining an expert report prior to discoveries will allow the discoveries to be more focused and proceed more expediently as the Respondent suggests.  The Prothonotary exercised her discretion in deciding that a pre-discovery inspection was appropriate in this case.  She did not proceed on a wrong principle.

[39]           Finally, given the circumstances described above, I do not agree that the Prothonotary relied on any wrong principle in awarding costs to the Respondent.  Rule 400 grants full discretionary power over the awarding of costs.  The Appellant sought costs at the motion, agreed that the successful party should have its costs and further agreed to the amount of these costs.  To now argue that the Prothonotary’s costs order was based on a wrong principle because she proceeded on a deficient record, is without merit.  This falls just short of an argument that because the Appellant was not successful, an award of costs is based on a wrong principle.

[40]           In summary, the Inspection Order was not clearly wrong as the Prothonotary did not exercise her discretion based upon a wrong principle or upon a misapprehension of the facts.  A de novo assessment is therefore not required and the appeal is dismissed.

ORDER

THIS COURT ORDERS that

1.      The appeal of the Prothonotary’s decision is denied; and

2.      Kirkor Architects and Planners shall have its costs in the all-inclusive lump sum of $2,000.00.

“Cecily Y. Strickland”

FEDERAL COURT

SOLICITORS OF RECORD

DOCKET:	T-1876-14
STYLE OF CAUSE:	STRATHEARN CONSULTING INC. v BARBRA ANN KIRSHENBLATT, KIRKOR ARCHITECTS AND PLANNERS, STEVEN KIRSHENBLATT, RKS BUILDING GROUP LTD., ERIC KIRSHENBLATT A.K.A. RICKY KIRSHENBLATT, KING MASONRY YARD LTD., FOREST HILL REAL ESTATE INC., JULIE GOFMAN, JOHN DOE, AND JANE DOE
PLACE OF HEARING:	Toronto, Ontario
DATE OF HEARING:	December 15, 2015
ORDER AND REASONS:	STRICKLAND J.
DATED:	December 21, 2015

APPEARANCES:

Kevin Sartorio James Green	For The PLAINTIFF
Charles Simco Isabelle Eckler	For The DEFENDANTS, Kirkor Architects and PlannerS and Steven Kirshenblatt
Jeremy Lum-Danson	FoR THE DEfendants, Barbara Ann Kirshenblatt, RKS Building Group Ltd., and Eric Kirshenbatt a.k.a. Rick Kirshenblatt

SOLICITORS OF RECORD:

Gowling LaFleur Henderson LLP Barristers & Solicitors Toronto, Ontario	For The PLAINTIFF
Shibley Righton LLP Barristers & Solicitors Toronto, Ontario	For The DEFENDANTs, Kirkor Architects and PlannerS and Steven Kirshenblatt
Ross Barristers Toronto, Ontario	FoR THE Defendants, Barbara Ann Kirshenblatt, RKS Building Group Ltd., and Eric Kirshenbatt a.k.a. Rick Kirshenblatt