1147335 ONTARIO INC. v. THYSSEN KRUPP ELEVATOR, 2012 ONSC 4139
CITATION: 1147335 ONTARIO INC. v. THYSSEN KRUPP ELEVATOR, 2012 ONSC 4139
DIVISIONAL COURT FILE NO.: 11-126
DATE: 20120727
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
SWINTON, NORDHEIMER AND WILTON-SIEGEL JJ.
BETWEEN:
1147335 ONTARIO INC.
Applicant
– and –
THYSSEN KRUPP ELEVATOR (CANADA) INC.
Respondent
P. Tunley, for the applicant
B. Bissell, for the respondent
HEARD at Toronto: June 26, 2012
NORDHEIMER J.:
[1] The applicant seeks judicial review of the decision of Master Albert dated December 21, 2010, with written reasons dated February 11, 2011, in which the Master dismissed a motion by the applicant seeking that she recuse herself from her role as Case Management Master for a number of related actions under the Construction Lien Act, R.S.O. 1990, c. C.30. The motion was brought on the basis that there existed a reasonable apprehension of bias on the part of the Master. The applicant seeks to set aside that decision and obtain an order in the nature of prohibition precluding the Master from further acting as the Case Management Master with respect to these matters.
[2] The related actions have been ongoing since 2003. Under s. 58 of the Construction Lien Act, after the close of pleadings, a judge may refer the whole of the trial or any part of it to a master, a case management master or to a person agreed on by the parties. On October 23, 2006, the Master was appointed by a judge not only to case manage the actions but also to preside at the trial of those actions. Since that time, the Master has conducted a number of pre-trial hearings in which scheduling and other issues have been addressed. It is the Master’s conduct in relation to these pre-trial hearings that gives rise to the allegation of a reasonable apprehension of bias.
Jurisdiction
[3] I begin with the issue whether this court has jurisdiction to hear an application for judicial review seeking to prohibit the Master from continuing to case manage and ultimately try these actions. The applicant asserts that such jurisdiction exists in the inherent jurisdiction of Superior Courts to supervise their process and specifically rests in the Divisional Court pursuant to s. 2(1) of the Judicial Review Procedure Act, R.S.O. 1990, c. J.1 that reads, in part:
…the court may, despite any right of appeal, by order grant any relief that the applicant would be entitled to in any one or more of the following:
- Proceedings by way of application for an order in the nature of mandamus, prohibition or certiorari. …
[4] The respondent, on the other hand, contends that there is no such supervisory jurisdiction with respect to Masters in construction lien proceedings. The respondent refers to s. 71(3) of the Construction Lien Act which provides that there is no appeal from interlocutory orders made in a proceeding under the Act. The respondent also relies on the decisions in Connie Steel Products Ltd. v. Greater National Building Corp. (1977), 3 C.P.C. 327 (Ont. Div. Ct.) and Canada Building Material Co. v. City of London (1978), 1978 1526 (ON SC), 22 O.R. (2d) 98 (Div. Ct.) in support of its position that there is no jurisdiction in this court to entertain the relief sought by the applicant. In Connie Steel, this court held that the Judicial Review Procedure Act was:
… not intended in any way to allow a division of the Supreme Court to superintend and review proceedings taken by any of its other divisions or emanations.
The decision in Canada Building adopted that conclusion.
[5] The applicant in turn relies on the decision of this court in Re Selkirk and Schorr et al (1977), 1977 1070 (ON SCDC), 15 O.R. (2d) 37 (Div. Ct.) where a different conclusion was reached. In Selkirk, Grange J. (dissenting but not on this point) said:
Whether or not the Supreme Court has jurisdiction in prohibition over its own officers, it is unquestionable that it has an inherent jurisdiction to control their processes.
The majority expressly agreed with that statement and conclusion.
[6] Unfortunately, neither of the decisions in Connie Steel nor Canada Building refer to or consider the decision in Selkirk that preceded both of those decisions. Equally unfortunate is the apparent inconsistency between these decisions - one that I must now attempt to resolve.
[7] I note that it is possible to draw a distinction between these cases arising out of the fact that there is a difference in the nature of the decision that was in issue in these three cases. In both Connie Steel and Canada Building the application was in essence an appeal of an interlocutory order. There was no suggestion that the manner in which the proceeding was being conducted was in question but only the correctness of the particular result that was reached. In that sense, the applications in those two cases could be seen as an effort to avoid the effect of what is now s. 71(3) of the Construction Lien Act, that is, the prohibition against appeals of interlocutory orders.
[8] In Selkirk, on the other hand, the manner in which the proceeding was being conducted was in issue. Indeed, it was suggested that the Taxing Officer was biased. The situation in Selkirk is therefore much more akin to the situation here. The decision in that case also falls more cleanly into the recognized inherent jurisdiction of a Superior Court to control and supervise its own process.
[9] I recognize that this distinction is a narrow one and one that may not withstand careful scrutiny given the broad language used in both Connie Steel and Canada Building. While I view it, nevertheless, as a sufficiently important distinction, a closer examination of the issue and the existing authorities is advisable.
[10] Regrettably, the authorities that I have been able to locate do not provide much assistance or analysis on this issue. I have already provided the quotation from Connie Steel regarding the intention of the Judicial Review Procedure Act. I am unable to discern the source from which the court drew that stated intention, that is, to preclude any review of this court’s “other divisions or emanations”. Such an intention is not apparent from the provisions of the Judicial Review Procedure Act itself that do not contain any such restriction. I accept that there is nothing in the Act or at common law that would suggest that the Superior Court could, through the Divisional Court, purport to review another division of the court of equal stature, e.g., a motions judge or a trial judge. To conclude otherwise would be incongruous to the structure of the court and to the detailed appeal provisions in the Courts of Justice Act, R.S.O. 1990, c. C.43. That said, I do not see any compelling reason why that inherent restriction should be extended to bring within its scope all “emanations” of the court. In fact, there are other decisions of this court that have expressly held to the contrary.
[11] I have already referred to Selkirk where this court held that it could review the conduct of a taxing officer. Taxing officers are an emanation of this court. Indeed, Masters of this court are expressly made assessment officers (the successor title to taxing officers) by virtue of s. 90(2) of the Courts of Justice Act. In this same vein, it was held in Peck v. Residential Property Management Inc., 2009 38504 (ON SCDC), [2009] O.J. No. 3064 (Div. Ct.) that this court could review the conduct of a Deputy Judge of the Small Claims Court. The same conclusion was reached in Gulati v. Husain, [2011] O.J. No. 384 (Div. Ct.). I note that the Small Claims Court is also an emanation of this court.[^1] Again, unfortunately, no analysis of the jurisdiction issue was made in any of those cases.
[12] In addition to these authorities, I mention two others.[^2] One is Anderson v. Hamilton (City), [2010] O.J. No. 5371 (Div. Ct.). While the decision in that case held that judicial review did not lie where the applicant sought to challenge the judgment of a Superior Court judge hearing an appeal under the Building Code Act, 1992, S.O. 1992, c.23, the court observed, at para. 2:
The law is clear that certiorari is not available at common law to challenge a decision of a Superior Court judge, except perhaps in exceptional circumstances [citations omitted; emphasis added]
[13] The other is the decision in Yorkville Development Ltd. v. North York (City) (1988), 1988 4701 (ON CA), 64 O.R. (2d) 225 (C.A.). In that decision, the Court of Appeal held that a provision in the Planning Act, 1983, S.O. 1983, c. 1, that made the order of a judge on appeal from a property standards committee “final and binding” precluded any further appeal of the judge’s order. In so concluding, however, Morden J.A. said, at p. 227:
Finally, I would also mention a point suggested by the respondent to the effect that, while s. 31(19) prohibits an appeal from a judge’s order, it may not, in an appropriate case, i.e., where considerations relating to the jurisdiction of the judge to make the order are raised, bar an application for judicial review.
I note that a finding that there was a reasonable apprehension of bias on the part of the Master would go directly to her jurisdiction – see Newfoundland Telephone Co. v. Newfoundland (Board of Commissioners of Public Utilities), 1992 84 (SCC), [1992] 1 S.C.R. 623.
[14] In the end result, I return to the distinction that I noted above regarding the nature of the process being reviewed and reiterate that it is, in our view, an important distinction. It would be an anomalous result to suggest that this court is without authority to supervise the actions of its officers whether they are Taxing Officers, Masters or any other form of officer, especially, as is the case here, where the Master is exercising an authority that has been expressly delegated to her by an order of this court as authorized by the statute. While the prohibition against appeals from interlocutory orders is obviously intended to expedite and streamline the process for construction lien claims, it cannot be that that statutory prohibition is intended to require parties to continue to participate, without relief, in a process that is fundamentally flawed or unfair to one side or the other. If it is found that there is a reasonable apprehension of bias in the presiding official, then it is self-evident that such unfairness exists. In those situations, rare as they will hopefully be, to require the parties to persist to the conclusion of the process and only then seek relief by way of appeal would be the antithesis of the expeditious and streamlined process envisioned by the statute.
[15] The inherent power of a Superior Court to supervise its processes is not to be invoked routinely nor as an avenue to avoid specific statutory restrictions on the right of appeal. Where, however, the conduct of a proceeding by an officer of this court is brought into question on a serious basis such as an assertion of bias, it is my view that this court does have jurisdiction, to that limited and narrow degree, to entertain an application for judicial review. I reiterate that, central to my conclusion on this issue, is the prohibition on any appeal from the interlocutory orders that the Master made.
[16] I conclude therefore that this court does have jurisdiction to entertain this application.
The merits
[17] Turning then to the merits of the application, the Master dismissed the motion seeking that she recuse herself for two main reasons. One was the applicant’s delay in bringing the application and the other was her conclusion that the applicant had failed to demonstrate the presence of bias or the appearance of bias in her conduct of the proceedings. I do not intend to examine in detail the litany of complaints that the applicant raises with respect to the manner in which the Master has conducted the proceedings to date. Rather, I intend to deal with the core of those complaints. Before doing so, however, I should say something about the standard of review.
[18] It is clear that the standard of review that is to be applied where the fairness of the process is at issue is one of correctness – see Newfoundland and Labrador Nurses’ Union v. Newfoundland and Labrador (Treasury Board), 2011 SCC 62, [2011] 3 S.C.R. 708 at para. 21. The complaint here, that there is a reasonable apprehension of bias on the part of the Master, goes to the fundamental fairness of the proceeding. Given the importance of that allegation to the maintenance of the integrity of the administration of justice, it is my view that the appropriate standard of review is correctness. In other words, this court must be satisfied that the Master was correct in her conclusion that there was no reasonable apprehension of bias requiring her to recuse herself from these related proceedings.
[19] I begin with the issue of delay. The respondent says that any complaint about the conduct of the Master must be dismissed based on the applicant’s delay in bringing forward its complaint. The respondent relies on the decision in Authorson v. Canada, [2002] O.J. No. 2050 (Div. Ct.) in support of this submission. In response, the applicant says that the appearance of a reasonable apprehension of bias arises from a culmination of various events and that it would have been inappropriate, and factually unsustainable, to have brought such an application when the first instance of seemingly antagonistic conduct by the Master towards it occurred. Some passage of time was therefore necessary in order for the issue to crystallize. The applicant refers to Baker v. Law Society of Upper Canada (1999), 1999 19935 (ON SC), 42 O.R. (3d) 413 (Div. Ct.) as evidencing a situation where it was necessary to wait for the accumulation of events to demonstrate the foundation for a reasonable apprehension of bias.
[20] I agree with the applicant that delay itself is an insufficient basis in the circumstances here to, on its own, result in the dismissal of the recusal motion. I acknowledge that parties cannot be allowed to “sit in the weeds” and allow a proceeding to continue to only latterly seek to set it all aside based on a reasonable apprehension of bias. At the same time, however, the delay principle should not be developed in a fashion that would require a party to immediately bring on such an application after the first occasion when a decision is made that is counter to their interests.
[21] In a situation such as is the case here, where a proceeding is being case managed, there must be an allowance for the fact that decisions made will favour one side on one occasion and another side on another occasion. It may be that only after a sufficient length of time passes, and a series of decisions are made, that the foundation for a reasonable apprehension of bias will become evident. At other times, one incident may be sufficient to provide the foundation for such an application. Different cases will lead to different results. In this case, I am not satisfied that the delay in bringing the application warranted its dismissal on that basis alone. That said, I would add that the time that passed between the time when the realization is said to have been reached that an apprehension of bias existed and the actual launching of the application is one that does cause me concern. I also do not wish to be seen as condoning, in any way, the actions of the applicant’s counsel (not counsel on this application) regarding the cross-examinations that were to occur before the recusal motion was argued and that were, in my view, indefensible.
[22] On that latter point, I should address another complaint raised by the applicant. The actions of the applicant’s counsel that caused the cross-examinations not to take place lead the Master to strike out the affidavit filed on behalf of the applicant. The applicant suggests that this action is another example of the Master’s negative attitude towards the applicant. I do not agree. While it might have been preferable if the Master had simply left the affidavit on the record but given it little weight in light of the lack of cross-examination, the decision to strike out the affidavit is of little consequence given the reality that the affidavit was largely, if not entirely, irrelevant to the issue of bias for two reasons. One is that the facts that are relied upon by the applicant as evidencing bias are all capable of being drawn from the existing record in the proceeding. The other is that the contents of the affidavit, even accepting them to be true, are largely self-serving expressions of opinion by the applicant. As I shall explain below, it is not the opinion of the party that is relevant to the issue of the appearance of bias. Rather, it is the opinion of a reasonably informed outside observer that is relevant.
[23] The other complaints of the applicant can be broken down into two groups. One is that the Master made the applicant subject to orders that were not equally applied to the respondent. Central to this complaint appears to be the Master’s requirement that the applicant particularize its counterclaim without making a similar order at the same time against the respondent regarding its damage claim. The other is that the applicant had, to that time, been prevented from examining the respondent for discovery.
[24] In my view, neither of these complaints, individually or collectively, are sufficient to establish a reasonable apprehension of bias on behalf of the Master. In Newfoundland Telephone Co. v. Newfoundland (Board of Commissioners of Public Utilities), supra, when discussing the concept of a reasonable apprehension of bias, Cory J. said, at para. 22:
As a result, the courts have taken the position that an unbiased appearance is, in itself, an essential component of procedural fairness. To ensure fairness the conduct of members of administrative tribunals has been measured against a standard of reasonable apprehension of bias. The test is whether a reasonably informed bystander could reasonably perceive bias on the part of an adjudicator.
[25] It is clear that, in this case, it is the appearance that has been created through the course of the pre-trial hearings that gives rise to the concern about bias. The Master has had to make a number of procedural orders over the lengthy history of this proceeding. This is a natural result in many case managed proceedings. It is also a natural result of many case managed proceedings that procedural orders may be directed more to one party than to another, as has been the case here.
[26] In Sorger v. Bank of Nova Scotia (1998), 1998 3715 (ON CA), 39 O.R. (3d) 1 (C.A.) the Court of Appeal delineated certain factors to look at in determining whether a reasonable apprehension of bias is raised. The court said, at para. 10:
Prejudgement of issues, prejudgment of credibility, undue and one-sided interventions with counsel or in the examination of witnesses, all may be relevant factors to consider: [citations omitted]
[27] In my view, the applicant has failed to establish the degree of conduct that would sustain a conclusion that a reasonable observer would reasonably perceive bias on the part of the Master. In reaching that conclusion, it is important to note the distinction for the purposes of the test for the appearance of bias between the impression that a party may have and that that an outside observer would have.
[28] As I alluded to earlier, the process of case management does not require an equivalency in the orders that are made relative to each party. Certain parties to a proceeding may require more management than other parties. Further, the nature of claims and defences will differ and require different treatment in terms of ensuring the efficient progress of the action. One cannot evaluate the fairness or balance with which case management is being applied simply by making a comparison, either in number or in effect, of the orders or directions made.
[29] On a review of the record, it is evident to me that the applicant has, through a series of different counsel, failed to honour directions made by the Master in terms of the conduct of these proceedings. Those failings have, in turn, lead to delay in the overall progress of the actions. This has been a legitimate cause for concern on the part of the Master. The fact that the Master may have been guilty of expressing some measure of exasperation and frustration at these events, while unfortunate, is nonetheless understandable. Frustration and exasperation do not equate to bias, however. It is also of some importance that the comments that have been made by the Master have been almost entirely directed to the applicant’s counsel (not the counsel on this application) and not to the applicant itself. There is nothing on the record before us that demonstrates that the Master has a closed mind when it comes to the applicant’s position in these proceedings. I would also note that the principal complaint regarding the suggested unequal application of particulars regarding the parties’ respective claims does not withstand close scrutiny. The fact is that the Master did ultimately order the respondent to provide details of its claim when that specific request was forthcoming from the applicant.
[30] The issue regarding the examination for discovery gives rise to even less concern regarding the decisions of the Master. Normally one party is entitled to commence and complete their examination for discovery before the opposing party commences their examination. Notwithstanding that norm, it may be that, in some cases, counsel will agree to have the examinations proceed concurrently. In other cases, it would be open to the officer case managing the proceeding to direct that an examination for discovery commence before another has been completed, if there was a sufficient reason for doing so. For example, if the examining party was dilatory in the conduct of the examination, that might be a reason to allow an opposing examination to begin. These are matters that are within the discretion of the case management officer and are entitled to deference by any reviewing court. The fact that the Master in this case has allowed the respondent’s examination of the applicant to continue prior to permitting the applicant to examine the respondent does not properly found an allegation of bias.
[31] All of that said, I accept that there have been occasional instances where specific actions of the Master may have been inadvisable, notably changing the costs provision in a consent order without canvassing the issue with counsel. There have also been occasions in which the Master’s choice of words could have been more balanced, indeed one could say less intemperate, including within her reasons for dismissing the recusal motion. The standard, however, is not one of perfection. The standard, as stated above, is whether a reasonably informed bystander would consider the Master to be biased in her approach. I consider the facts in this case to fall short of that standard.
[32] The application is therefore dismissed. Costs are fixed at $9,500 inclusive as agreed between the parties payable to the respondent within thirty days.
NORDHEIMER J.
SWINTON J.
WILTON-SIEGEL J.
Date of Reasons for Judgment: July 27, 2012
Date of Release: July 27, 2012
CITATION: 1147335 ONTARIO v. THYSSEN KRUPP, 2012 ONSC 4139
DIVISIONAL COURT FILE NO.: 11-126
DATE: 20120727
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
SWINTON, NORDHEIMER and WILTON-SIEGEL JJ.
BETWEEN:
1147335 ONTARIO INC.
Applicant
– and –
THYSSEN KRUPP ELEVATOR (CANADA) INC.
Respondent
REASONS FOR JUDGMENT
NORDHEIMER J.
Date of Reasons for Judgment: July 27, 2012
Date of Release: July 27, 2012
[^1]: see s. 22(1) of the Courts of Justice Act
[^2]: In mentioning these two cases, I do not intend to ignore either the decision in Olympic Towers Ltd. and Flanigan et al. (1978), 20 O.R. (2d) 679 (H.C.J.) or in R. v. Ciccone, [1976] O.J. No. 223 (Div. Ct.) that touch on this issue. However, since both of those decisions rely on the doctrine of persona designata that has been expressly abolished by s. 81 of the Courts of Justice Act, I do not find them helpful to my analysis.