Court File and Parties
Citation: Shields et al v. London Police Services Board, 2015 ONSC 1591 Court File No.: 5/15 Date: 2015-03-10 Superior Court of Justice – Ontario (Divisional Court)
Re: Rick Shields et al, Applicants And: The London Police Services Board, Respondent
Before: Heeney R.S.J.
Counsel: Michael Cassone, for the moving party Ross Towing and Transportation Services Inc. Sean Flaherty, for the Applicants
Heard: March 10, 2015 at London
Endorsement
[1] This motion comes before me as a single judge of the Divisional Court, pursuant to the designation of ACJ Marrocco under Rule 13.03. The moving party, Ross Towing and Transportation Services Inc. seeks leave under Rule 13.01 to be added as a party to this application for judicial review.
[2] I do not intend to go into the facts in any detail. Suffice it to say that the subject matter of the judicial review application is a Request for Proposal issued by the Respondent which had the effect of directing all calls for vehicle towing initiated by the police to a single towing company, as opposed to a rotating roster of various towing companies. Ross Towing was the successful bidder on the RFP. There is a motion for an interlocutory injunction scheduled for March 31, 2015 to stay the towing contract and restrain the Respondent from acting on it until the judicial review application is dealt with.
[3] It is clear that Ross Towing meets the criteria in rule 13.01(1)(a) and (b) for being added as a party. They have a direct interest in the subject matter of the proceedings, and they may be adversely affected by whatever judgment is ultimately rendered. This flows from the fact that:
- If the judicial review application is allowed and the RFP is set aside, they stand to lose $13,000 per week in towing revenue;
- They purchased new equipment at a cost in excess of $100,000 to service the contract awarded to them under the RFP, which will be wasted if the RFP is set aside;
- They hired four new employees to service the additional work that is anticipated, who will be rendered redundant if the RFP is set aside; and,
- The Applicants have made allegations that Ross Towing colluded with the Respondent in putting together the RFP, so that their reputation is directly put at issue in the judicial review application.
[4] Mr. Flaherty, for the Applicants, concedes that Ross Towing should have the right to file evidence and fully participate in these proceedings. However, he submits that they should bear their own costs.
[5] In other words, what the Applicants concede is that Ross Towing has the right to participate as a party, as opposed to an intervenor. An intervenor normally has no right to file evidence or participate in cross-examinations, but makes instead its submissions based on the evidentiary record created by the parties. Intervenors generally bear their own costs because they are involved in the proceedings voluntarily, and are not essential parties.
[6] However, Ross Towing is an essential party, because they have relevant evidence to offer on the issue of collusion, which is to deny that it took place. They have the right to defend themselves against those allegations. Furthermore, given the potential economic impact on Ross Towing of the ultimate decision by the Divisional Court, procedural fairness dictates that they fully participate in these proceedings.
[7] In my view, the decisions of Durham Area Citizens for Endangers Species v. Ontario (Minister of Natural Resources and Forestry), 2014 ONSC 7167, and 3714683 Canada Inc. v. Parry Sound (Town), [2004] O.J. No. 5062 (S.C.J.) are directly on point and fully support the relief sought by Ross Towing.
[8] Accordingly, Ross Towing shall be added as a party Respondent. As such, they will be fully exposed to a costs award against them if they are unsuccessful, but will equally be entitled to seek costs in the event they are successful.
[9] I will deal with costs of this motion through a separate handwritten endorsement.
“T. A. Heeney R.S.J.”
Regional Senior Justice T. A. Heeney
Date: March 10, 2015