SUPERIOR COURT OF JUSTICE - ONTARIO
DIVISIONAL COURT
RE: ontario council of hospital unions and tony clement
BEFORE: Justice Epstein
COUNSEL: Robert Staley and Evangelia Kriavis, for the Moving Party,
Sean Dewart, for the Responding Parties, the Ontario Council of Hospital Unions, Ontario Health Coalition and Ontario Public Service Employees Union,
Leslie McIntosh, for the Minister of Health and Long-Term Care for the Province of Ontario.
HEARD: April 10, 2006
E N D O R S E M E N T
EPSTEIN J.
1The moving party, the Healthcare Infrastructure Company of Canada Inc. (“THICC”) seeks a stay in the order of Master Polika dated March 9, 2006 pending its appeal to this Court. The motion is brought in the context of a judicial review application in which the Responding Parties seek to quash approvals granted by the Minister of Health and Long-term Care for the Province of Ontario of plans by the two hospitals, one being the William Osler Health Care Centre, to permit for profit corporations to design, build, manage and use a hospital facility.
2The judicial review, that involves important issues pertaining to the exercise of statutory powers of decision accorded to the Minister, was commenced on September 22, 2003, and the matter came before Gravely J.. By order dated September 23, 2004 he adjourned it to allow material to be filed.
3The Responding Parties sought documentary discovery from THICC on the basis that the documents represent key portions of the record of the approvals and public funding commitments comprising the impugned statutory powers of decision.
4As a result, THICC brought a motion for an order protecting the confidentiality of certain documents, for the purpose of the application. The motion was brought before Winkler RSJ who had been extensively involved in case managing the matter.
5The dispute was resolved and, on consent, Winkler RSJ granted a detailed order dealing with the protection of the confidentiality of certain documents and information to be disclosed by THICC to the Responding Parties. The terms of this order included a provision that the Confidential Information (broadly defined in the order itself) “shall be kept confidential by the Designated Individuals (again, a defined term) and may not be disclosed to the Applicants [the Responding Parties before me] or to any other person or entity, other than pursuant to this order”.
6On September 23, 2005, the Minister moved for an order sealing portions of certain Schedules to the Funding Agreement and the Amending Agreement between the Minister and the William Osler Health Centre and directions with respect to whether those portions of the remaining material that was before the Minister when he made his decision and concerning which THICC had taken the position was confidential, should be sealed.
7The Responding Parties opposed the motion and requested the Minister to produce and file, copies of the record of the proceedings in which the challenged statutory powers of decision were made, pursuant to s. 10 of the Judicial Review Procedure Act, R.S.O. 1990 c. J.1.
8Master Polika heard the motion and in his reasons released March 9, 2006 he ordered THICC to serve and file a section 10 record. Specifically, he ordered:
the respondents to file a redacted section 10 record. The redactions would apply to certain dollar figures and percentages in Schedules to the Funding Health and Long-Term Care and William Osler Health Care Centre; and
the Section 10 Record would include material, which THICC had advised was its confidential and proprietary information. Such material was not to be sealed but disclosed to the applicants and placed in the public record.
9THICC has appealed the order of Master Polika to a panel of this court on the basis that the learned Master erred in not finding that the order of Winkler RSJ applied to keep its information that it claims to be confidential, out of the public record.
10Master Polika’s order requires the Minister to serve and file a copy f the Section 10 Record within 30 days of the release of his reasons and the order. That period expires today. I was called upon to hear and determine the matter on an urgent basis. Accordingly, notwithstanding that the underlying issues in this proceeding and the issues raised in this motion for a stay are of considerable importance, I have, given the time constraints, been unable to write considered reasons.
The applicable Test
11There is no issue over the test for the determination of whether a stay pending appeal ought to be granted. It is that set out in RJR-MacDonald Inc. v. Canada, 1994 117 (SCC), [1994] 1 S.C.R. 311 at 334. First, a preliminary assessment must be made of the merits of the case to ensure there is a serious issue to be tried. Secondly, the court must determine whether the moving party would suffer irreparable harm if the stay were not granted. Finally, the court must assess which of the parties would suffer greater harm from the granting or refusal of the stay pending the appeal.
12Counsel for THICC argues that, in the application of this test to the facts present here, considerable emphasis must be placed on the fact that failure to grant the stay would render the appeal nugatory.
13On the other hand, the Responding Parties, state that in applying the test in RJR-McDonald to the facts in this case, consideration must be given to the fact that the remedy sought relates to a matter that has already been adjudicated. Considerable weight ought to be attributed to this factor as the decision of the Master must be viewed as being prima facie, correct.
Seriousness of the Issue to be Tried on the Appeal
14This part of the test focuses on two issues; whether the proposed appeal raises a serious issue to be tried and whether the appeal should be entitled to proceed at all.
15First, THICC submits that there is a serious issue to be decided on appeal relating to the confidential status of its materials and the application of Winkler RSJ’s order. Such an issue is neither frivolous nor vexatious. The Responding Parties disagrees, primarily by relying upon the fact that THICC has failed to adduce any evidence to support its claims of confidentiality.
16With respect to the second issue, the Responding Parties take the position that this matter is interlocutory. THICC failed to comply with the requirements of r. 63.02(1) and therefore the appeal has not been properly prosecuted. Counsel for THICC, relying on decisions including Smerchanski v. Lewis (1980) 1980 1699 (ON CA), 30 O.R. (2d) 370, contends that because it, a non-party, is affected by the order, it is final and an appeal lies as of right to the Divisional Court.
17THICC has satisfied me that there is a serious issue to be tried involving whether the consent order is limited to defined confidential materials in THICC’s possession or whether it refers to documents and materials in the hands of the Minister. Put another way, there is an important issue for the determination of the panel concerning the nature and extent of the order’s affect on the Minister’s obligations under the JRPA.
18While Mr. Dewart advanced compelling submissions that the order is limited to addressing a management issue having to do with assisting the parties in resolving the question of the relevance of THICC’s documents in circumstances where confidentiality interests had been raised, it cannot be said that Mr. Staley’s arguments that RSJ Winkler’s order had been made in circumstances where he was well-aware of THICC’s firm position with respect to the confidentiality of the documents in question and had specifically provided for them to be cloaked with a provision of confidentiality, are “devoid of merit”. Furthermore, consideration must be made of the implications of the Responding Parties’ having consented to an order that arguably acknowledges the confidentiality of the documents in question.
19With respect to the second issue under this first branch of the RJR-McDonald test, I am not persuaded that the manner in which the appeal has been advanced detracts from my conclusion that there is a serious issue to be tried.
20There is at the very least a strong argument that given THICC’s status as a non-party, the appeal is final. In any event, if the panel were to determine that the order appealed from is interlocutory, the court has jurisdiction to resolve that procedural difficulty.
21THICC has satisfied the first branch of the test.
Irreparable Harm
22The Responding Parties submit that while my dismissal of the motion for a stay would render the appeal form the order of Master Polika moot, there is no evidence in the record to establish that this will cause harm or irreparable harm to THICC.
23In support of this argument, the Responding Parties return to their primary submission that THICC only offers unsupported and untested assertions that the information and documentation in question is proprietary and confidential or that public access to this information will harm its commercial interests.
24Predictably, THICC also returns to its main contention being that in consenting to the order of Winkler RSJ., all parties, including the Responding Parties, acknowledged the confidentiality of the documents. If the stay is refused then THICC will lose this confidentiality and suffer harm that cannot be remedied if its appeal is ultimately successful.
25Against the backdrop of my determination that there is a serious issue to be tried as to the meaning and import of RSJ Winkler’s order, I am satisfied that THICC stands to suffer irreparable harm if the stay is not granted.
Balance of Convenience
26The fact that THICC’s appeal will be rendered meaningless by the dismissal of this motion weighs heavily in its favour in the balance of convenience. However, in CPC International Inc. v. Seaforth Creamery Inc., 1996 539 (ON CA), [1996] O.J. No. 3537 (C.A), Charron JA. made it clear that the factors to be weighed on a consideration of this branch of the test are not all one-sided. (para. 28)
27I must, therefore, examine other factors such as the prejudice of delay upon which the Responding Parties rely. While the efficient resolution of every proceeding is always a factor to take into account, I attach little weight to the delay argument. The application has been on going for several years. The appeal can be scheduled to be heard within weeks. There is no evidence that a delay this brief, in this case with this history, would have any material affect on the parties.
Conclusion
28The motion is allowed. The stay is granted pending appeal. At the request of counsel in the event a stay were granted, the Master’s order, including that portion that imposes obligations on the Ministry not affected by the pending appeal, is stayed pending the appeal. The hearing of the appeal is to be expedited.
29The costs of the stay motion are reserved to the panel hearing the appeal.
April 10, 2006 ______________________