Ontario Council of Hospital Unions et al. v. Clement, Minister of Health and Long-Term Care for the Province of Ontario et al.

[Indexed as: Ontario Council of Hospital Unions v. Ontario (Minister of Health and Long-Term Care)]

85 O.R. (3d) 55

Ontario Superior Court of Justice, Divisional Court,

Ferrier J.

February 2, 2007

Administrative law -- Judicial review -- Jurisdiction -- Master not having jurisdiction to hear interlocutory motion in judicial review application -- Judge in judicial review application having power to refer interlocutory issue to master acting as referee.

On an application for judicial review of certain decisions of the respondent Minister of Health, an issue arose about the confidentiality of certain documents. The case management judge found that the documents were confidential and were to be produced subject to restrictions on public access (the "Confidentiality Order"). If there were any issues of relevance concerning any document, the parties were to return to the case management judge to resolve those issues. The parties were unable to resolve issues of relevance of various documents and could not resolve issues concerning the ultimate confidentiality of documents in the hands of the respondent. The applicants wrote to the case management judge to schedule a motion before him to resolve relevance and confidentiality issues. The case management judge referred the matter to the Administrative Master, who in turn assigned another Master to deal with the matter. The Master heard a motion for directions regarding the content of the record to be publicly filed with the Divisional Court for the judicial review proceedings, pursuant to s. 10 of the Judicial Review Procedure Act, R.S.O. 1990, c. J.1 ("JRPA"). The Master ruled that the documents in question were to be placed in the Section 10 Record. On appeal from the Master's order, it was argued that the Master did not have jurisdiction over the subject matter of the motion and that, if he did have jurisdiction, he exceeded his jurisdiction by varying the Confidentiality Order.

Held, the appeal should be dismissed.

A Master does not have jurisdiction to hear an interlocutory motion in a judicial review application. Under rule 37.02(2)(f) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, a master does not have jurisdiction to hear a motion under s. 4 or s. 5 of the JRPA. Section 4 of the JRPA states, "On an application for judicial review, the court may make such interim order as it considers proper pending the final determination of the application." There is no longer any substantial difference between an "interlocutory order" and an "interim order". To the extent that any distinction remains, it can only be reasonably said to apply in the case of injunctions. Even if that conclusion were wrong, s. 21(3) of the Courts of Justice Act, R.S.O. 1990, c. C.43 requires "a motion" in the Divisional Court to be heard by a judge, and rule 37.02(2)(a) exempts from the jurisdiction of a master a motion "where the power to grant the relief sought is conferred expressly on a judge by a statute or rule".

A judge in a judicial review application, however, may refer an interlocutory issue to a referee, in this case a Master acting as a referee. The case management judge directed such a reference in this case. The Master made no reversible error on the merits. [page56 ]

APPEAL from the order of Master Polika. [page57 ]

Cases referred to Sierra Club of Canada v. Canada (Minister of Finance), [2002] 2 S.C.R. 522, [2002] S.C.J. No. 42, 211 D.L.R. (4th) 193, 287 N.R. 203, 93 C.R.R. (2d) 219, 18 C.P.R. (4th) 1, 2002 SCC 41, 20 C.P.C. (5th) 1 (sub nom. Atomic Energy of Canada Ltd. v. Sierra Club of Canada), consd Other cases referred to Century Engineering Co. Ltd. v. Greto, 1960 131 (ON SC), [1961] O.R. 85, [1960] O.J. No. 581, 26 D.L.R. (2d) 300 (H.C.J.); Dempster v. Mutual Life of Canada (2001), 2001 38743 (ON SCDC), 55 O.R. (3d) 409, [2001] O.J. No. 3336, 14 C.P.C. (5th) 274 (Div. Ct.); Ernst v. Ernst (1977) O.R. (2d) 585, 1977 1296 (ON SC), [1977] O.J. No. 2447, 4 C.P.C. 181, 2 R.F.L. (2d) 289 (H.C.J.); Kanda Tsushin Kogyo Co. v. Coveley, [1997] O.J. No. 56, 96 O.A.C. 324, 72 A.C.W.S. (3d) 745 (Div. Ct.); McDonald's Restaurants of Canada Ltd. v. Humm, [1983] O.J. No. 2445, 24 M.P.L.R. 103 (Co. Ct.); Nova Scotia (Attorney General) v. MacIntyre, 1982 14 (SCC), [1982] 1 S.C.R. 175, [1982] S.C.J. No. 1,49 N.S.R. (2d) 609, 132 D.L.R. (3d) 385, 40 N.R. 181, 96 A.P.R. 609, 65 C.C.C. (2d) 129, 26 C.R. (3d) 193 (sub nom. MacIntyre and R. (Re)); Prendiville v. 407 International Inc., [2002] O.J. No. 2548, [2002] O.T.C. 441, 24 C.P.C. (5th) 184, 114 A.C.W.S. (3d) 828 (S.C.J.) [Leave to appeal to Div. Ct. refused [2002] O.J. No. 3913]; RJR-MacDonald Inc. v. Canada (Attorney General), 1994 117 (SCC), [1994] 1 S.C.R. 311, [1994] S.C.J. No. 17, 60 Q.A.C. 241, 111 D.L.R. (4th) 385, 164 N.R. 1, 20 C.R.R. (2d) D-7, 54 C.P.R. (3d) 114; Simmons and Dalton (Re) (1886), 12 O.R. 505, [1886] O.J. No. 80 (H.C.J. Ch. D.); Solomon v. Solomon, [1991] O.J. No. 265 (Gen. Div.) Statutes referred to Courts of Justice Act, R.S.O. 1990, c. C.43, ss. 7(2), 18 [as am.], 19 [as am.], 21 [as am.], 134(2) [as am.], 137 Fire Protection and Prevention Act, 1997, S.O. 1997, c. 4, s. 53(9) Insurance Act, R.S.O. 1990, c. I.8, s. 58 [as am.] Judicature Act, R.S.O. 1970, c. 228, ss. 6, 17 Judicial Review Procedure Act, 1971, S.O. 1971, c. 48 Judicial Review Procedure Act, R.S.O. 1990, c. J.1, ss. 2, 4, 5, 10 Labour Relations Act, 1995, S.O. 1995, c. 1, Sch. A, ss. 48(12), 98(1) [as am.] Law Society Act, R.S.O. 1990, c. L.8, s. 49.27 [as am.] Ontario College of Teachers Act, 1996, S.O. 1996, c. 12, s. 29(1) Police Services Act, R.S.O. 1990, c. P.15, ss. 24(1), (2) Public Hospitals Act, R.S.O. 1990, c. P.40, s. 4 [as am.] Regulated Health Professions Act, 1991, S.O. 1991, c. 18, s. 37(1) Social Work and Social Service Work Act, 1998, S.O. 1998, c. 31, s. 25(3) Rules and regulations referred to Rules of Civil Procedure, R.R.O. 1990, Reg. 194, rules 1.03 [as am.], 1.04 [as am.], 1.05, 2.01, 2.03, 37.02 [as am.], 54.01, 54.02(1), 54.09 [as am.] Authorities referred to Homestead, G.S., et al., Homestead and Gale on the Judicature Act of Ontario and Rules of Practice, looseleaf (Toronto, Ont.: Carswell, 2006) Mullan, D.J., ed., Administrative Law: Cases, Text and Materials, 5th ed. (Toronto: Emond Montgomery Publications Limited, 2003) Reid, Honourable Mr. Justice R.F., "Jurisdiction of the Divisional Court" (Toronto: Dept. of Continuing Education, Law Society of Upper Canada, c. 1978)

Sean Dewart and Steven Shrybman, for applicants. Leslie M. McIntosh, for Tony Clement, Minister of Health and Long-Term Care for the Province of Ontario and Her Majesty the Queen in Right of Ontario. Robert W. Staley and Evangelia L. Krialis, for The Healthcare Infrastructure Company of Canada Inc.

1FERRIER J.: -- This appeal from a decision of Master Polika raises significant questions of jurisdiction and procedure.

2Does a Master have jurisdiction to hear an interlocutory motion in a judicial review application?

For the reasons that follow, the answer is "no".

3May a judge, in a judicial review application, refer an interlocutory issue to a referee, in this case a Master acting as a referee?

For the reasons that follow, the answer to the question is "yes".

4Did Winkler J. direct a reference in this case?

For the reasons that follow, the answer is "yes".

Overview

5In September 2003, the Ontario Public Service Employees Union, the Ontario Council of Hospital Unions and the Ontario Health Care Coalition (the "applicants") filed an application for judicial review of certain decisions of the respondent Minister of Health. The applicants seek to quash a number of approvals and funding commitments pertaining to the privatization of certain hospital facilities at the William Osler Health Centre. The issues in the application concern the expenditure of substantial public funds and the delivery of health care services and raise matters of broad public concern, in addition to being of direct concern and interest to the applicants.

6Section 10 of the Judicial Review Procedure Act, R.S.O. 1990, c. J.1 ("JRPA") requires that the Minister file the record of the approvals at issue in the proceeding, forthwith after notice of the application is served. More than 2[cents] years have passed since the application was filed, however the Minister has yet to file the record, because of assertions made by a non-party, the Healthcare Infrastructure Company of Canada Inc. ("THICC"), that parts of the record are confidential.

7Winkler J. had been case managing the file and on May 3, 2004, he made an order that certain documents, which THICC agreed to produce, were confidential and were to be produced [page58 ]subject to restrictions on public access (the "Confidentiality Order"). The Confidentiality Order specifically identified the documents that were to receive confidential treatment. The Confidentiality Order was made on the consent of all parties, including the applicants. The Confidentiality Order provided that if there were issues of relevance concerning any document, the parties were to return to Winkler J. to resolve those issues.

8The parties could not resolve issues of relevance of various documents and could not resolve issues concerning the ultimate confidentiality of documents in the hands of the Minister, which THICC asserted should be sealed and not form part of the public record.

9The applicants wrote to Winkler J. for the purpose of scheduling a motion before him to resolve relevance and confidentiality issues.

10Winkler J. referred the matter to the Administrative Master who in turn assigned Master Polika to deal with the matter.

11The parties ultimately agreed to leave the outstanding questions of relevance of documents to the panel hearing the judicial review application. However, they were unable to agree on the content of the record to be filed by the Minister, specifically with respect to documents alleged by THICC to be confidential.

12Thus, on December 2, 2005, Master Polika heard a motion brought by the Minister for directions regarding the content of the record to be publicly filed with the Divisional Court for the judicial review proceedings, pursuant to s. 10 of the JRPA, (the "Section 10 Record"). Upon hearing the motion, Master Polika ruled that the documents in question were to be placed in the Section 10 Record. In making his decision, Master Polika ruled that the Confidentiality Order of Winkler J. did not determine the issue. In making his order (the "Order"), Master Polika held that there was no evidence to satisfy the court that both "Sierra Club" tests had been met with respect to the documents THICC asserted were confidential.

13In this appeal THICC seeks an order setting aside or varying the Master's Order on the grounds that:

(a) the Master did not have jurisdiction over the subject matter of the motion; and

(b) the Master exceeded his jurisdiction by varying the previous order by Winkler J. concerning the production of the information by THICC.

Facts

14On September 22, 2003, the applicants brought an application for judicial review, amended on August 18, 2004, in the [page59 ]Divisional Court, seeking among other relief to quash approvals granted by the Minister, pursuant to s. 4 of the Public Hospitals Act, R.S.O. 1990, c. P.40, of any plans by the William Osler Health Centre or the Royal Ottawa Health Care group to permit for-profit corporations to design, build, finance, lease/own, maintain, operate, manage and use a hospital facility.

15THICC is the private sector consortium that was selected to design, build, finance, operate, property manage and maintain new hospital facilities for both the William Osler Health Centre and the Royal Ottawa Health Care Group. It is a non-party to the judicial review proceedings.

16The application for judicial review came before Gravely J. on September 30, 2003. He adjourned the application "to allow for filing of material and other preparation".

17The applicants sought to obtain documents from THICC, which they asserted were necessary for a determination of the application. This request resulted in an agreement between the parties on the terms under which documents, which THICC asserted were proprietary and confidential, were to be produced. THICC then brought a motion before Winkler J. for an order regarding the protection and maintenance of the confidential documents.

18In addition to asserting that the documents contained proprietary and confidential information, THICC asserted that they were not relevant to issues in this proceeding. On May 3, 2004, Winkler J. made the Confidentiality Order, on consent of the parties, which dealt with the production of documents to the applicants for the purpose of resolving disputes about their relevance: [See Note 1 below]

THIS COURT ORDERS THAT the Confidential Information shall be disclosed to the Designated Individuals solely for the purpose of this application and, more particularly, for the purpose of permitting the Applicants to assess, through the Designated Individuals, THICC's contention that the Confidential Information is not relevant to the issues raised on this application.

19Justice Winkler had been case managing the file. The Confidentiality Order also provided in para. 10 that:

Any disagreement concerning the relevance of the Confidential Information . . . shall be resolved on a motion brought before Justice Winkler for that purpose. [page60 ]

20As stated in para. 9, the purpose of the Confidentiality Order was to permit the applicants to assess "THICC's contention that the Confidential Information is not relevant to the issues raised on this application".

21After the applicants received and reviewed the documents in accordance with the detailed procedure provided for by the Confidentiality Order, they went back before Winkler J. for a determination of the relevance of the documents to the issues raised on the application. Justice Winkler referred the matter to the Administrative Master, who subsequently assigned it to Master Polika.

22A number of case conferences were subsequently convened before Master Polika to resolve the relevance issue. Ultimately, without conceding that the documents were relevant to the application, THICC agreed that this issue would be resolved by the Divisional Court panel dealing with the application on the merits.

23This left open the question of what would be publicly filed by the Minister. Despite specifically being given an opportunity by Master Polika to do so, THICC declined to bring any motion of its own for any relief protecting the alleged confidential nature of the documents in question. The Minister therefore filed a motion before Master Polika seeking advice and directions of the court about the filing of its record pursuant to s. 10 of the JRPA.

24At the motion brought by the Minister before Master Polika, THICC argued that the documents were proprietary and confidential in nature and that public disclosure would harm its interests. It adduced no evidence on the motion.

25THICC also argued the Master had no jurisdiction in view of the wording of Winkler J.'s Confidentiality Order.

26It is apparent that THICC did object to the Master's jurisdiction but not on the basis argued in this appeal.

27In my view, that is of no consequence. The Master either had jurisdiction or did not. Parties cannot confer jurisdiction by waiver or consent.

28Master Polika held that the documents were properly part of the public record and ordered the Minister to file the record, subject only to certain redactions that the applicants do not dispute. The documents in question consist solely of documents and information provided to the Minister by William Osler Health Centre, or documents produced independently by, or for, Ministry officials.

29As noted above, on this appeal, THICC argued that Master Polika had no jurisdiction but that if he did he erred in not ordering the documents to be sealed.

30The Master held he had jurisdiction by virtue of provisions of the Courts of Justice Act, R.S.O. 1990, c. C.43 ("CJA"), the JRPA and the Rules of Civil Procedure, R.R.O. 1990, Reg. 194. [page61 ]

31Master Polika also held, in the alternative, that if he were incorrect in this respect, he had jurisdiction by reason of the matter having been directed on a reference to him by Winkler J., pursuant to rule 54.02(1)(b).

32I turn now to an examination of the relevant statutes and rules concerning the jurisdiction of the Master, and the appointment and jurisdiction of a referee.

The Jurisdiction of the Master to hear Motions in Applications for Judicial Review

33A brief history of the Superior Court's jurisdiction in prerogative writs confirms that the jurisdiction is inherent in the court.

34The Divisional Court was created in 1970 by amendment to the Judicature Act, R.S.O. 1970, c. 228. Section 6 (now s. 18 of the CJA) established the Divisional Court as a division of the High Court of Justice of Ontario. Section 17 (now s. 19 of the CJA) set out the Divisional Court's jurisdiction. Clauses 17(1)(b) and (c) gave the Divisional Court jurisdiction over applications for judicial review made under the Judicial Review Procedure Act, 1971, S.O. 1971, v. 2, c. 48 (JRPA, 1971). The JRPA, 1971 came into effect on the same day that the Divisional Court first became operative -- April 17, 1972. [See Note 2 below]

35Prior to this date, judicial review through the prerogative writs was exercised by the Superior Courts. The Superior Court's power to engage in judicial review derives from its inherent jurisdiction. At the time of Confederation, the Canadian Courts of Queen's Bench had the powers of the Court of King's Bench in England. The King's Bench in England was a Court of Record, possessing inherent jurisdiction independent of any statute, and had power to issue the prerogative writs. [See Note 3 below]

36In Ontario, the prerogative writ of mandamus was first codified in 1872. [See Note 4 below] The first statutory expression of the writ of [page62 ]prohibition was set out in 1888 in rules 1137 and 1138. [See Note 5 below] The writ of certiorari was discontinued in 1888 by rule 1140 (and was later codified in the Judicature Act in 1908), and was replaced by an order for certiorari that had the same effect as the writ. [See Note 6 below] From Confederation to April 17, 1972 (the date the JRPA, 1971 came into force), an order for prohibition or mandamus was sought through an application by originating notice to a judge in chambers, and an order for certiorari was sought by motion to a judge. [See Note 7 below]

37Masters have no inherent jurisdiction and derive their powers from statutes: Ernst v. Ernst (1977), 1977 1296 (ON SC), 17 O.R. (2d) 585, [1977] O.J. No. 2447 (H.C.J.), at para. 4.

38The Divisional Court is a branch of the Superior Court of Justice: CJA, s. 18(1).

39The Divisional Court has limited appellate jurisdiction: CJA, s. 19. It also has jurisdiction in applications for judicial review: JRPA, s. 2. The judicial review jurisdiction includes the power to make an order in the nature of mandamus, prohibition and certiorari; as well as an order for a declaration or injunction in relation to the exercise, refusal to exercise or proposed or purported exercise of a statutory power: JRPA, s. 2. This judicial review jurisdiction in the Divisional Court continues the jurisdiction formerly exercised by single judges of what is now the Superior Court of Justice.

40A proceeding in the Divisional Court (whether an appeal or application for judicial review) is required to be heard by a three-judge panel: CJA, s. 21(1). In limited instances, not relevant here, a proceeding may be heard and determined by one judge: CJA, s. 21(2).

41Motions in the Divisional Court are dealt with in the CJA, s. 21(3), a provision at the core of the issue before me:

21(3) A motion in the Divisional Court shall be heard and determined by one judge, unless otherwise provided by the rules of court.

42Before turning to the provisions in rule 37.02, which define the jurisdiction of the Master, it is to be noted that in rule 37.02(1), a judge is given jurisdiction "to hear any motion in a proceeding".

43A "proceeding" means an action or application and accordingly includes an application to the Divisional Court: rule 1.03(1). [page63 ]Thus a judge has jurisdiction to hear any motion in a judicial review application. The requirement in the CJA, s. 21(3), that a motion in the Divisional Court shall be heard by one judge unless otherwise provided by the rules leaves open the possibility that the rules may confer jurisdiction on the Master.

44I turn now to the jurisdiction of the Master as provided in rule 37.02(2). The provisions relevant to this motion are as follows:

Jurisdiction of a Master

37.02(2) A master has jurisdiction to hear any motion in a proceeding, and has all the jurisdiction of a judge in respect of a motion, except a motion,

(a) where the power to grant the relief sought is conferred expressly on a judge by a statute or rule;

(b) to set aside, vary or amend an order of a judge;

(f) under section 4 or 5 of the Judicial Review Procedure Act; or

(g) in an appeal.

Thus, a Master has jurisdiction to hear any motion, subject to the exceptions listed.

45"Any motion" would include a motion such as that heard by Master Polika, in this application for judicial review, unless the motion falls within any of the exceptions.

46It is trite that, as provided in rule 37.02(2)(b), the Master has no jurisdiction to vary an order of a judge. THICC argues that that is what Master Polika purported to do. I disagree. The Master decided issues unrelated to the consent order of Winkler J.

47Subsections (a) and (f) of rule 37.02(2) are particularly relevant.

48In considering rule 37.02(2)(a) the question is whether the CJA, s. 21(3), expressly confers on a judge the power to grant relief in motions in the Divisional Court.

49I note that in its use of the word "shall", s. 21(3) is mandatory. It is apparent that the concluding words of the section "unless otherwise provided by the rules" leave open the possibility that the rules may provide that some motions may be required to be heard by the panel, or indeed by the Master. However, there are no such rules.

50I also note the difference between s. 7(2) of the CJA, which provides:

7(2)A motion in the Court of Appeal [and an appeal under clause 6(1)(c)] shall be heard and determined by one judge.

Thus, the rules cannot confer jurisdiction on a Master for motions in appeals at the Court of Appeal. [page64 ]

51Further, if Rule 37 were interpreted to give the Master jurisdiction in a judicial review application to the Divisional Court, such would produce the curious result that by operation of rule 37.02(2)(g) the Master would nevertheless not have jurisdiction in an appeal to the same court.

52As noted, rule 37.02(2)(f) exempts from the Master's jurisdiction motions under ss. 4 or 5 of the JRPA:

4. On an application for judicial review, the court may make such interim order as it considers proper pending the final determination of the application.

5. Despite any limitation of time for the bringing of an application for judicial review fixed by or under any Act, the court may extend the time for making the application, either before or after expiration of the time so limited, on such terms as it considers proper, where it is satisfied that there are apparent grounds for relief and that no substantial prejudice or hardship will result to any person affected by reason of the delay.

53The applicants argue that the Minister's motion was not an "interim order" under s. 4 of the JRPA, but rather was an "interlocutory order" on a motion brought pursuant to s. 137 of the CJA, s. 10 of the JRPA and rules 1.05 and 37 of the Rules of Civil Procedure.

54Further, argues the applicants, s. 4 vests a broad discretion with the court to grant interim relief, such as a stay of proceedings or other injunctive relief, when an application for judicial review is pending. Section 4 deals with interim orders "on" the application, pending "final determination", and does not purport to address any and all interlocutory orders made "in" the proceeding, such as orders made on practice motions. The applicants submit that an "interim" order is sought to preserve the underlying positions of the parties pending a determination of any particular dispute on the merits, whereas an "interlocutory" order may deal with any number of procedural or other issues that arise within on-going litigation.

55I note that the respondents cite no authority for the propositions advanced.

56The use of the term "interim" and "interlocutory" in Ontario statutes is inconsistent. Certain provisions support at least part of the applicants' proposition. For example, s. 134(2) of the CJA says, "On motion, a court to which a motion for leave to appeal is made or to which an appeal is taken may make any interim order that is considered just to prevent prejudice to a party pending the appeal" (emphasis added). Likewise, s. 49.27 of the Law Society Act, R.S.O. 1990, c. L.8 empowers the Hearing Panel to make an interlocutory order suspending the rights and privileges of a member or student member or restricting the manner in which a member may practise law if it is in the public interest (emphasis added). [page65 ]

57Yet there are also numerous examples that undermine the applicants' proposition. Clauses 48(12)(i) and 98(1)(a) of the Labour Relations Act, 1995, S.O. 1995, c. 1, Sch. A ("LRA"), and s. 53(9)(i) of the Fire Protection and Prevention Act, 1997, S.O. 1997, c. 4 empower arbitrators and the Ontario Labour Relations Board (the "OLRB") to "make interim orders concerning procedural matters" (emphasis added).

58The following are examples of bodies statutorily empowered to make interim orders that do not maintain the status quo:

-- Clauses 98(1)(b) and (c) of the LRA empower the OLRB to make interim orders requiring an employer to reinstate a terminated employee, and to alter the terms and conditions of employment of an employee who has been subject to reprisal, penalty or discipline by the employer.

-- Subsection 58(6) of the Insurance Act, R.S.O. 1990, c. I.8 empowers the Superintendent to make interim orders to cancel the licence of an insurer, or control the assets of an unincorporated insurer if it is in the public interest.

-- Subsection 29(1) of the Ontario College of Teachers Act, 1996, S.O. 1996, c. 12 empowers the Council or the Executive Committee to make an interim order suspending the licence of a member who is facing discipline or whose conduct will likely cause harm to students.

-- Subsections 24(1) and (2) of the Police Services Act, R.S.O. 1990, c. P.15 empowers the Commission to make an interim order, prior to holding a hearing, suspending a police chief for repeatedly failing to comply with prescribed standards of police services, only if it is in the public interest.

-- Subsection 37(1) of the Regulated Health Professions Act, 1991, S.O. 1991, c. 18 empowers the Executive Committee to make an interim order suspending the licence of a member who is facing discipline or whose conduct will likely cause harm to patients.

-- Subsection 25(3) of the Social Work and Social Service Work Act, 1998, S.O. 1998, c. 31 empowers the Council or the Executive Committee to make an interim order suspending the licence of a member who is facing discipline or whose conduct will likely cause harm to persons.

59In the case law, the difference between an "interim" order and an "interlocutory" order has been addressed almost exclusively within the context of injunctions. [page66 ]

60In Century Engineering Co. Ltd. v. Greto, 1960 131 (ON SC), [1961] O.R. 85, [1961] O.J. No. 581 (H.C.J.), at p. 90 O.R., McRuer C.J.H.C. addressed the difference between an "interim" injunction and an "interlocutory" injunction:

The authorities clearly indicate that the word "interim" in the legal sense has a well-established usage. It connotates a definite period of time with a fixed beginning and ending. It may well be that the words "interim" and "interlocutory" are used interchangeably but I do not think that they are strictly interchangeable. The term "interlocutory injunction" comprehends any order for an injunction made before the final disposition of the case.

61Therefore, an injunction that lasts until a fixed date is an "interim" injunction, and an injunction that lasts until the final disposition of a trial is an "interlocutory" injunction. This same distinction was adopted in Solomon v. Solomon, [1991] O.J. No. 265 (Gen. Div.), at p. 4 (cited to QL). However, the Divisional Court has concluded that there is no substantive legal distinction between an interim or interlocutory injunction since the same legal test set out in RJR - MacDonald Inc. v. Canada (Attorney General), 1994 117 (SCC), [1994] 1 S.C.R. 311, [1994] S.C.J. No. 17 applies: see Kanda Tsushin Kogyo Co. v. Coveley, [1997] O.J. No. 56, 96 O.A.C. 324 (Div. Ct.), at para. 7; Dempster v. Mutual Life of Canada (2001), 2001 38743 (ON SCDC), 55 O.R. (3d) 409, [2001] O.J. No. 3336 (Div. Ct.), at para. 19.

62In my view, not only is there no substantial distinction between an "interlocutory order" and an "interim order", the terms have been used interchangeably in recent decades to such a degree that there can no longer be a rational basis for a distinction in the meaning of the terms. This is evident from the statutory references noted above. To the extent that any distinction remains, it can only be reasonably said to apply in matters of injunctions.

63Even if I am wrong in this conclusion, the respondents' ultimate position is not saved. There remains the provision of s. 21(3) of the CJA requiring "a motion" to be heard by a judge and therefore is outside the jurisdiction of the Master by virtue of rule 37.02(2)(a).

64I conclude that the learned Master had no jurisdiction qua Master to determine the matters before him.

The Reference

65Following the order of Winkler J. of May 3, 2004, issues of relevance, and the confidentiality of documents in the hands of the Minister, remained unresolved. Thus, counsel for the applicants wrote a letter to Winkler J. indicating the impasse "regarding how the issue of confidentiality might be resolved", and asked for a date on which a motion might be heard. [page67 ]

66In the correspondence, it was pointed out that the material "is voluminous and the documents and details of the documents are clearly part of an integrated set of transactions which are the subject of the ministerial approvals being challenged by the applicants".

67In a written response to the request for a motion date, Winkler J. wrote in part:

I have referred the matter to Administrative Master McLeod and have forwarded to him a copy of your correspondence.

68Subsequently, in a series of case conferences before Master Polika, issues of relevance were left, on agreement, to be dealt with by the panel on the hearing of the application. There remained the question of what should form part of the public record filed by the Minister.

69As noted above, no party took issue with the jurisdiction of the Master qua Master, although THICC took issue with the Master's jurisdiction in light of the Confidentiality Order of Winkler J. of May 3, 2006, taking the position that the issues had to be dealt with by Winkler J.

70No party appealed the referral to the Master, and no party objected to the referral to the Master in the context of a "reference". From oral submissions on this appeal, I conclude that it did not occur to counsel at the time that Winkler J. was directing a reference under Rule 54. Nonetheless, I conclude that Winkler J. did have the power to direct such a reference and that he did so.

71Rule 54 provides:

54.02(1) Subject to any right to have an issue tried by a jury, a judge may at any time in a proceeding direct a reference of the whole proceeding or a reference to determine an issue where,

(a) all affected parties consent;

(b) a prolonged examination of documents or an investigation is required that, in the opinion of the judge, cannot conveniently be made at trial; or

(c) a substantial issue in dispute requires the taking of accounts.

72Although the matter will not proceed to a "trial", it is nevertheless a "proceeding" and falls within clause (b) of subsection (1).

73I note the oft referred to provisions of the rules which focus the court's attention on the just and expeditious determination of proceedings:

General Principle

1.04(1) These rules shall be liberally construed to secure the just, most expeditious and least expensive determination of every civil proceeding on its merits. [page68 ]

2.01(1) A failure to comply with these rules is an irregularity and does not render a proceeding or a step, document or order in a proceeding a nullity, and the court,

(a) may grant all necessary amendments or other relief, on such terms as are just, to secure the just determination of the real matters in dispute; . . .

2.03 The court may, only where and as necessary in the interest of justice, dispense with compliance with any rule at any time.

74Rule 54.01(1) requires the order directing the reference to specify the nature and subject matter of the reference. Although no formal order was issued, this requirement was met in the exchange of correspondence.

75No report back was required and the report of the referee (Master Polika) was, by virtue of rule 54.09(1)(b), confirmed 15 days after it was delivered. Rule 54.09(3)(b) requires that a motion opposing confirmation of the report be served within 15 days. Needless to say, no such motion was launched. I hereby extend the said 15 days and treat the appeal as a motion to oppose confirmation of the report.

76For the following reasons, I confirm the report of the referee, Master Polika.

The Merits

77There is a heavy onus on anyone seeking to deny public access to court documents or proceedings. It must be demonstrated that it is necessary to deny public access in order to protect a value of "super-ordinate importance": Nova Scotia (Attorney General) v. MacIntyre, 1982 14 (SCC), [1982] 1 S.C.R. 175, [1982] S.C.J. No. 1, at pp. 185-87 S.C.R.

78In Sierra Club of Canada v. Canada (Minister of Finance), 2002 SCC 41, [2002] 2 S.C.R. 522, [2002] S.C.J. No. 42, the Supreme Court of Canada enunciated a two-step test for determining under what circumstances the public should be denied access to court documents filed in a civil proceeding [at p. 543 S.C.R.]:

(a) First, it must be established that such an order is necessary to prevent a serious risk to an important interest.

(b) Second, the salutary effects of the confidentiality order, including the effects on the right of civil litigants to a fair trial, outweigh its deleterious effects, including the effects on the right to free expression, which in this context includes the public interest in open and accessible court proceedings. [page69 ]

79As Iacobucci J. explained for a unanimous court in Sierra Club, supra, a party seeking such a sealing order must show that the order is necessary to prevent a serious risk to an important interest including a commercial interest. In this regard, the "risk in question must be real and substantial, in that the risk is well grounded in the evidence, and poses a serious threat to the commercial interest in question".

80The commercial interest in question must be one "expressed in terms of the public interest in confidentiality" and cannot simply be specific to the party requesting the order: Prendiville v. 407 International Inc., [2002] O.J. No. 2548, [2002] O.T.C. 441 (S.C.J.), leave to appeal to Div. Ct. refused [2002] O.J. No. 3913.

81THICC argues that the learned Master erred:

(i) in finding that the Confidentiality Order of Winkler J. was irrelevant to the confidential character of the documents when the documents were in the hands of another party, the Minister, who had consented to the Confidentiality Order;

(ii) in finding that there was no evidence to satisfy the court that both Sierra Club tests had been met with respect to the documents THICC asserted were confidential, effectively requiring THICC to re-litigate an issue that had already been determined by Winkler J.;

(iii) by not recognizing that a consent order is of the same force and effect as other judicial orders, and is determinative of an issue; and

(iv) by varying Winkler J.'s Confidentiality Order without applying the test for amending, setting aside or varying a consent order.

82In reference to these submissions, I note the following:

(i) The Confidentiality Order was made for the purpose of permitting the applicants "to assess the relevance" of the documents. Furthermore, the documents in question were those in the hands of the Minister, not THICC.

(ii) and (iii) THICC, although given ample opportunity to move for a confidentiality order, did not do so. Nor did it lead any evidence on the motion brought by the Minister. The Confidentiality Order did not establish the confidential nature of the documents at issue, and did not determine whether they should be part of the public record. [page70 ]

(iv) As indicated above, the Master did not vary the order of Winkler J.

83The learned Master delivered a comprehensive, well reasoned decision in reference to the merits and dealt effectively with THICC's submissions. He made no reversible error in this respect.

84Accordingly, the report of Master Polika is confirmed and the appeal is dismissed.

85If the parties are unable to agree on costs, they may make brief written submissions within 20 days, with a right of reply within a further ten days.

Appeal dismissed.

Notes

Note 1: The order dealt with two categories of documents, namely un-redacted copies of the plans and leases for the Public-Private Partnership scheme (the "P3 scheme") that had previously been provided in redacted form by the Ministry, and additional documents about the P3 scheme, which had not been shared with or reviewed by the Ministry. Documents and materials in this second category are not the cubject of this appeal.

Note 2: The Honourable Mr. Justice R.F. Reid, "Jurisdiction of the Divisional Court" (Statutory powers and judicial review: edited proceedings from the programme held on November 27, 1976) at pp. 3-4. (Toronto: Dept. of Continuing Education, Law Society of Upper Canada, c. 1978).

Note 3: David J. Mullan, ed., Administrative Law: Cases, Text and Material, 5th ed. (Toronto: Emond Montgomery Publications Ltd. 2003) at p. 1093; Simmons and Dalton (Re) (1886), O.R. 505, [1886] O.J. No. 80 (H.C.J. Ch. D.), at para. 26 (QL); McDonald's Restaurants of Can. Ltd. v. Humm, [1983] O.J. No. 2445, 24 M.P.L.R. 103 (Co Ct.) at para. 72 (QL).

Note 4: George Smith Homestead et al., Homestead and Gale on the Judicature Act of Ontario and Rules of Practice, looseleaf (Toronto, Ont.: Carswell, 2006), vol. 1, p. 164, s.s. 30-31; Vol. 4, p. 2588, s.s. 3-4 (Homestead and Gale).

Note 5: Ibid., vol. 4, p. 2615, s. 35.

Note 6: Ibid., vol. 4, p. 2650, s. 75.

Note 7: Ibid., vol. 4, p. 2592.6, s. 11 (order of mandamus); Vol. 4, p. 2618, s. 40 (order of prohibition); Vol. 4, pp. 2666.8, 2666.10, s.s. 87,89 (order of certiorari).