CITATION: Unimac-United Management Corp. v. St. Clare’s-Monaco Place, 2015 ONSC 4760
DIVISIONAL COURT FILE NO.: 110/15
DATE: 20150722
SUPERIOR COURT OF JUSTICE – ONTARIO
DIVISIONAL COURT
RE: Unimac-United management corp., Applicant
AND:
St. clare’s-monaco place, 2295091 ontario ltd. AND 2063889 ontario ltd., Respondents
BEFORE: Then, Harvison Young, Lederer JJ.
COUNSEL: Osborne G. Barnwell, for the Moving Party Applicant
Robert A. Centa and Jodi J. Martin, for the Respondents, 2295091 Ontario Ltd. and 2063889 Ontario Ltd.
Priya Sarin, for the Respondent, St. Clare’s-Monaco Place
HEARD at Toronto: July 22, 2015
ENDORSEMENT
HARVISON YOUNG J.: (ORALLY)
[1] This matter arises pursuant to claims made under the Construction Lien Act, RSO 1990, c. C.30, as amended. Master Albert was appointed as the case management judge in 2012 by order of Stinson J. The applicant seeks judicial review of the Master’s refusal to recuse herself from further hearing the matter on the grounds of bias as asserted by the applicant.
Background
[2] The Construction Lien Act directs that proceedings carried out under its ambit are to be dealt with in a summary fashion. Interlocutory steps other than those provided for by the legislation are not to be taken without leave of the court (or Master in this case) and only upon proof that the steps are necessary or would expedite the resolution of the issues in dispute: see the Construction Lien Act, s. 67.1.
[3] Further direction is provided by the Rules of Civil Procedure, RRO 1990, Reg 194. The Master is to take control of the reference in order that the process will move forward. The Master is directed to “devise and adopt the simplest least expensive and expeditious manner of conducting the reference”. The Master “may dispense with any procedure ordinarily taken that he or she considers to be unnecessary or adopt a procedure different from that ordinarily taken”. See Rule 55.01.
[4] The order referring the action to the Master was made on May 18, 2012, more than three years ago. It has not yet passed through the pre-trial stage and is not yet ready for trial. The applicant, Mr. Biachoo, says that this is because the Master is biased against him and has been throughout the process in the action. Counsel for the other parties blame Mr. Biachoo. They say he has failed to co-operate, has been disruptive and disrespectful to the court.
[5] In her reasons on the recusal motion, the Master states that the process of the reference was “stopped in its tracks” on May 14, 2014 when Mr. Biachoo wrote to her indicating his intention to request that she recuse herself. Apparently dates were available for the hearing of a recusal motion as early as August, 2014. It did not however, proceed until February 5, 2015, apparently to accommodate the applicant’s schedule. The Master refused to recuse herself and counsel for Unimac seeks judicial review of that refusal.
The Prematurity Issue
[6] At the outset of the hearing before us, counsel were asked to consider and make submissions as to whether this application is premature. Having heard the submissions of counsel and carefully reviewed the materials submitted, we find that the application is premature for the following reasons.
[7] This is an interlocutory order. The court has consistently demonstrated that it is loath to interfere with ongoing administrative proceedings until they are completed. The rationale is that these matters are to proceed with expedition and not be interrupted and fragmented by appeals which, depending on the outcome, may not be necessary. See Volochay v. College of Massage Therapists of Ontario, 2012 ONCA 541; Ontario College of Art v. Ontario (Human Rights Commission), [1983] OJ No 61 (Div Ct); Coady v. Law Society of Upper Canada (2003), 171 OAC 51 (Div Ct), Haigh v. The College of Denturists of Ontario, 2011 ONSC 2152 (Div Ct).
[8] The applicant submitted that this court should be governed by the decision of this Court in Thyssenkrupp v. 1147335 Ontario Inc., 2011 ONSC 5073. In our view, that decision is of limited assistance in this case. It determines that the Divisional Court has jurisdiction to consider the issue of bias, a determination with which all parties to this motion, and this Court, agree. That case did not, however, address the question of when or whether a court should exercise its discretion to intervene “midstream” or before the underlying proceeding has run its course. Here, the respondent squarely submits that the issue is premature and that the Court should exercise its jurisdiction not to hear the matter at this stage. It submits that to do so would run counter to the well-established presumption that the court will not take jurisdiction with respect to applications for judicial review until the underlying matter has been determined on its merits and other remedies exhausted. It further emphasizes that the Construction Lien Act and the case management scheme established thereunder reinforces this principle, for example, appeals from interlocutory orders are not permitted (see s. 71.3(b)).
[9] The central issue before the Court in considering the prematurity issue is thus whether this is a case which calls for the exercise of the court’s discretion to hear the review application, notwithstanding the fact that the merits of the underlying construction lien proceeding had not been completed. In the case of Air Canada v. Lorenz, [2000] 1 F.C. 494, (T.D.), Evans J. considered the factors to be considered by the court in determining whether the threshold for interlocutory intervention has been met in such circumstances. At paragraph 18 he stated as follows:
…the exercise … turns principally on a weighing of two competing considerations. On the one hand are the possible hardships caused to Air Canada, and the time and resources that will have been wasted, if the bias question is not determined prior to the completion of the proceeding before the adjudicator. On the other hand, there are the adverse consequences of delaying the administrative process and of countenancing a multiplicity of litigation.
[10] Evans J. went on to set out a number of factors to be considered in determining whether or not to proceed. These include hardship to the applicant, waste, delay, fragmentation and strength of the case. I will address them in turn.
Hardship to the Applicant
[11] In paragraphs 19 and 20, Evans J. stated as follows:
[19] Counsel submitted that an allegation of bias casts a cloud over the legitimacy of the entire proceeding before the adjudicator, and to require Air Canada to push through to the end without having this question resolved would impose serious hardships. A party should not be subject to the exercise of legal powers by a tribunal whose very authority to hear the dispute the party has called into question.
[20] This factor cannot be determinative, however, because otherwise a reviewing court would always have to decide allegations of bias and to award relief when they are upheld, even though raised before the completion of the administrative process. This would mean, in effect, that a court would have no discretion to dismiss an application for judicial review for prematurity when bias is alleged or, putting it another way, an allegation of bias always constitutes "exceptional circumstances" justifying judicial intervention before the administrative process is complete. In my opinion this is not the law.
[12] This quotation applies in the case at bar. The applicant submits that it would be unfair to require him to continue in a toxic environment before the very Master who, in his submission, has failed to provide his client with a fair hearing consistent with the rules of natural justice. We acknowledge that returning to this proceeding before the Master may be difficult for the applicant but we note that this is not a factor that is to be considered in isolation of the other factors which we turn to now.
Waste
[13] The second consideration is waste. If the bias consideration is ultimately upheld, then it will have been a waste to require the proceeding to continue. However, this argument cuts both ways. Here, when the motion was brought, two years had elapsed from the beginning of the case management process and the evidentiary hearings had yet to commence. As the respondent argues, an enormous amount of time will have been wasted if the allegation of bias is not ultimately made out. Such waste will be exacerbated in a construction lien case such as this where there are a number of parties involved, all of whom would have to start from scratch.
Delay
[14] The third consideration is delay. As in the Lorenz decision, (see paras. 24-25), the delay consideration extends beyond the parameters of this case. If the matter does not proceed, we are inviting other parties in other cases to seek delay by alleging bias or other breaches of natural justice. In such circumstances, we would thus run the risk of reducing fundamental concerns running to the heart of the administration of justice such as bias to an “off ramp” from a statutorily mandated process when the proceeding is not going well for one of those parties.
Fragmentation
[15] The issue with respect to fragmentation was put succinctly by Evans J. in Lorenz at paragraph 26:
[26] A determination of Air Canada's bias allegation at this time may also proliferate litigation. If the allegation were found to be misconceived then, when the ultimate decision is made by another adjudicator, an aggrieved party could make a second application for judicial review on other issues. Fragmentation of the issues raised by an administrative proceeding is wasteful of court resources and unduly burdens the administration of public programs.
The same is true in this case.
The Strength of the Case
[16] The final factor we consider is that of the strength of the case. At paragraph 27 of Lorenz Evans J. states:
[27] The potential harmful consequences of deciding or not deciding the merits of this application for judicial review prior to the determination of the administrative process are largely premised on the eventual success or failure of the allegation of bias. It is therefore appropriate to consider the strength of the case made by the applicant.
[17] There was considerable discussion of this factor during the hearing before this Court. Mr. Barnwell submits that a prima facie case is sufficient, while Evans J. suggests that any non-frivolous allegation of bias that falls short of a cast iron case does not meet the threshold. Evans J. clarified in Lorenz that by “cast iron” he meant “clear and obvious”. Mr. Barnwell submitted that the cumulative, if not individual, effect of the alleged twenty incidents, as itemized in his materials, meet such a standard. In addition, he argues that the proper test should be that of prima facie case analogous to the test for injunctive relief. There are few difficulties with this submission.
[18] First, Mr. Biachoo’s evidence regarding the alleged incidents are hotly contested on the record both by other counsel who filed affidavits on the refusal motion and by the Master herself. It is not possible or desirable on the consideration of the prematurity issue to resolve these disputes. That would be in effect, a determination of the application on its merits. It is enough that these issues are disputed on the record. That is not to say that the evidence on an interlocutory judicial review application will never be sufficient to justify the exercise of the court’s jurisdiction to hear such an application. For example, this is not a case where a decision maker was a recipient of gifts from one of the parties or was in a position of conflict vis-a-vis any of the parties by being a shareholder in a corporation who was party to a proceeding.
[19] Second, in this case, racism was raised. In the end, counsel for the applicant conceded that this was a subjective perception of his client and as such was insufficient to found an allegation of racism. He emphasized the concerns of systemic racism requiring the sensitivity of all judicial officers but pointed to the assertion of racism in this case, not as an allegation per se but as the best explanation his client could come up with to explain the Master’s actions towards him as he perceived them.
[20] Third, we would also emphasize the statutory framework designed to provide speedy access to resolution of construction lien matters. This scheme also provides for robust case management. The factors set out above are arguably even more important in such a context because interlocutory judicial review risks undermining the very purpose of this legislative framework. In our view, as indicated earlier, the impact upon other participants in the process, particularly the lien claimants for small amounts of money, may be significant and this is another factor to be considered in the balance in the interests at issue.
[21] Finally, it must also be emphasized that the Act provides for full appeals on the merits as a corollary to the restrictive approach to interlocutory appeals. It will thus be open to the applicant to raise the issue of bias in any subsequent appeal. In this case, having considered the factors as set out in Air Canada v. Lorenz, we find that the adverse consequences of delay outweigh the possible hardship to the applicant by not determining the bias issue before the completion of the lien reference. For these reasons, the application is dismissed on the basis of prematurity.
Then J.
Harvison Young J.
Lederer J.
Date of Reasons for Judgment: July 22, 2015
Date of Release: August 6, 2015