CITATION: Unimac-United Management Corp. v. Metrolinx, 2016 ONSC 2032

DIVISIONAL COURT FILE NO.: DC 211/15

DATE: 20160323

SUPERIOR COURT OF JUSTICE – ONTARIO

DIVISIONAL COURT

RE: UNIMAC-UNITED MANAGEMENT CORP., Applicant

AND:

MetroLINX, Respondent

BEFORE: C. Horkins J.

COUNSEL: Justin P. Baichoo, for the Applicant

Gregory D. Hersen, for the Respondent

HEARD at Toronto: February 29, 2016

ENDORSEMENT

Introduction

[1] The respondent Metrolinx brings this motion to quash the applicant’s Amended Notice of Application for Judicial Review (“judicial review application”). In the alternative, Metrolinx seeks an order striking all or part of the affidavit of Leon Hui sworn on May 25, 2015 and filed in support of the judicial review application.

[2] Metrolinx owns certain land in Toronto. It entered into a general contract with the applicant, Unimac-United Management Corp (“Unimac”), for construction on the land of a project called the "Willowbrook Rail Maintenance Facility Fuel Rehabilitation Project" ("the Project").

[3] On February 23, 2012, Unimac moved to preserve a lien in relation to the Project in the amount of $5,563,766.96. On May 25, 2012, Unimac commenced an action in the Superior Court purporting to perfect that lien and added a claim for damages and restitution in the amount of $1,500,000, which increased the claim to $7,063,766.96 ("Unimac Lien Action”). On July 23, 2012, Metrolinx defended this action and made a counterclaim for damages for breach of contract in the amount of $3,900,000.

[4] Metrolinx brought a motion before Master Wiebe for an order requiring Unimac to post security for costs for Metrolinx for the entirety of the Unimac Lien Action in the partial indemnity amount of $407,250.34. Unimac opposed this motion. On February 2, 2015, Master Wiebe ordered Unimac to post security for costs for Metrolinx in the amount of $264,712.73.

[5] On April 14, 2015, Unimac issued this judicial review application of the security for costs order.

[6] Metrolinx argues that the judicial review application should be quashed for the following reasons:

• part of the application is properly framed as judicial review, but is devoid of any merit and bound to fail;

• the other part of the application is an appeal, labeled as a judicial review, to avoid the prohibition of appeals from interlocutory orders under s. 71(3)(b) of the Construction Lien Act, R.S.O. 1990, c. C.30 (“CLA”);

• the application seeks relief (a mistrial) that is not available; and

• the application is an abuse of process.

Legal Framework

[7] A single judge of the Divisional Court may quash or dismiss an application for judicial review (see Simanek v. Health Disciplines Board (1994), 76 O.A.C. 300 (Div. Ct.), at para. 39).

[8] The test on a motion to quash an application for judicial review asks whether it is “plain and obvious that the judicial review application would fail” or it is “beyond doubt” that the application will fail (see Certified General Accountants Assn. of Canada v. Canadian Public Accountability Board (2008), 233 O.A.C. 129 (Div. Ct.), at para. 39; Adams v. Canada (Attorney General), 2011 ONSC 325, [2011] O.J. No. 207 (Div. Ct.), at para. 19).

[9] Dismissing an action on the basis that it is an abuse of process should only be done in the clearest of cases, where it is obvious that it cannot succeed (see Sussman v. Ottawa Sun, [1997] O.J. No. 181 (Gen. Div.), at para. 21).

[10] The doctrine of abuse of process engages the inherent power of the court to prevent the misuse of its procedure in a way that would be manifestly unfair to a party to the litigation before it or would in some other way bring the administration of justice into disrepute (see Toronto (City) v. Canadian Union of Public Employees (C.U.P.E.), Local 79, 2003 SCC 63, [2003] 3 S.C.R. 77, at para. 37).

[11] The doctrine of abuse of process is characterized by its flexibility (see Behn v. Moulton Contracting Ltd., 2013 SCC 26, [2013] 2 S.C.R. 227, at paras. 40-41).

Overview- Judicial Review application

[12] The starting point on this motion to quash is an overview of the judicial review application. In this application, Unimac seeks the following relief:

(i) an order for a mistrial of Superior Court action CV-12-454429 (the Unimac Lien Action);

(ii) an order quashing the security for costs order of Master Wiebe; and

(iii) an order quashing the costs order made against Unimac on the security for costs motion; or

(iv) alternatively, an order remitting the security for costs motion for reconsideration by another judicial official.

[13] The grounds for judicial review as set out in Unimac’s application can be divided into two categories: (i) communications between Metrolinx’s counsel and Master Wiebe and (ii) various evidentiary issues. Unimac argues that both caused it procedural unfairness.

[14] A further allegation flows from these communications that is not clearly advanced as ground in the judicial review application. In an affidavit that Unimac filed in support of its judicial review application, it alleges that there is a personal relationship between the Master and Unimac’s counsel, Mr. Hersen. Unimac alleges that because of this relationship, the communications in issue between the Master and Metrolinx occurred. Such communications have allegedly tainted and fundamentally flawed the process. Finally, it is alleged in this affidavit that “the appearance of fairness towards Unimac in Master Wiebe’s courtroom has been compromised”. Of note, Unimac does not allege an apprehension of bias.

[15] As I will explain below, it is plain and obvious that the communications did not result in any procedural unfairness. Further, the evidentiary issues that Unimac seeks to characterize as procedural fairness are in fact questions of law, mixed fact and law or fact alone. They are properly the subject of an appeal, not judicial review. The court will not exercise its judicial review jurisdiction where the judicial review application is an appeal by a different name. The entire judicial review application is quashed.

Communications with Master Wiebe

[16] Unimac complains about two separate chains of communication between counsel for Metrolinx and Master Wiebe: communications about a motion to transfer a Newmarket action to Toronto and scheduling communications for the security for costs motion. These communications are documented in various letters and emails.

[17] In the judicial review application, Unimac alleges that these “improper communications … created a fundamental flaw in the adjudicative process, thereby causing a breach of fairness and natural justice” to Unimac.

[18] While such allegations fall within the purview of a judicial review application, they are devoid of all merit and it is plain and obvious that they will fail.

[19] Before I consider these communications, it is necessary to provide some further background to this motion about the multiplicity of actions that Unimac commenced against Metrolinx and others.

[20] In addition to commencing the Unimac Lien Action against Metrolinx in Toronto, Unimac issued eight other actions against Metrolinx and others in relation to the Project. These actions are described below.

[21] Unimac commenced a second action in Newmarket on November 23, 2012 against Metrolinx and its consultant on the Project (the "Unimac Damages Action"). In the Unimac Damages Action, Unimac claims $10,000,000 plus further sums.

[22] In the security for costs motion, Master Wiebe found that Unimac makes the same central claims against Metrolinx in the Unimac Damages Action as it does in the Unimac Lien Action in relation to the Project.

[23] In addition to the Unimac Lien Action and the Unimac Damages Action, Unimac commenced seven other proceedings against Metrolinx in relation to the Project (the "Other Actions").

[24] Unimac also commenced an action in Newmarket against one of its subtrades, Cobra Power Inc. ("Cobra Power"), in relation to the Project (the "Cobra Power Action"). Metrolinx is not a party to the Cobra Power Action.

[25] A judgment of reference in relation to the Unimac Lien Action and the Other Actions was obtained from Justice Himel on March 19, 2013. An Order for trial was obtained from Master Albert on April 9, 2013. Master Wiebe was assigned. Numerous trial management conferences have taken place before Master Wiebe in relation to these proceedings since June 24, 2013. Master Wiebe is case managing the Unimac Lien Action together with 13 other actions commenced by Unimac's subtrades, including breach of trust and bond actions. The Unimac Damages Action has not been referred to Master Wiebe.

[26] The basis for the security for costs order was twofold: the Unimac Lien Action and the Unimac Damages Action constitute an "unjustified multiplicity of proceedings" and there is "good reason to believe that Unimac has insufficient assets in Ontario to pay the costs of Metrolinx". Master Wiebe also ordered that Unimac could take no steps in the Unimac Lien Action until the required security was paid into court.

[27] Unimac did not pay the security for costs into court. As a result, Metrolinx brought motions in the other Unimac actions against it and obtained eight additional security for costs orders from Master Wiebe on September 21, 2015 (the "Second Security for Costs Motion"). In the Second Security for Costs Motion, Master Wiebe ordered Unimac to pay the same $264,712.73 into court as security for costs in the Unimac Damages Action and in each of the Other Actions on the basis that (i) the Unimac Lien Action and the Unimac Damages Action were duplicative in relation to Unimac's claims against Metrolinx, (ii) all of the Other Actions are duplicated in the Unimac Lien Action and (iii) there were outstanding costs orders against Unimac that it had not paid.

[28] Master Wiebe further ordered that (i) if Unimac paid the original Security for Costs in the Unimac Lien Action into Court, that amount would stand as the Security for Costs for Metrolinx for both the Unimac Damages Action and the Other Actions and (ii) Unimac cannot take any step in any of these proceedings until the required security is given. Unimac has not paid any security for costs into court.

Communications during the Transfer Motion

[29] On November 18, 2015, there were two motions scheduled before Master Wiebe. Cobra Power brought a motion in the Cobra Power Action to have that action transferred from Newmarket to Toronto and referred to Master Wiebe for trial together with, or immediately following, the Unimac Lien Action (the "Cobra Power Motion"). The second motion was brought by Metrolinx. It asked Master Wiebe to have the Unimac Damages Action transferred from Newmarket to Toronto (the "Transfer Motion"). Metrolinx did not request that this action be referred to Master Wiebe. Counsel for Unimac, Mr. Justin Baichoo, consented in writing to the Metrolinx Transfer Motion.

[30] The above two motions were heard together. Counsel with carriage of the matter for Metrolinx (Mr. Hersen) was called to trial on another matter the day of the Transfer Motion. Since the Metrolinx Transfer Motion was on consent, his office sent an articling student to speak to the consent order.

[31] On the day of the Transfer Motion, and without prior notice to Metrolinx, Mr. Baichoo objected to Master Wiebe's jurisdiction to order the transfer and referral of the Cobra Power Action. As a result, Master Wiebe deferred the granting of the consent order in the Transfer Motion pending his decision regarding his jurisdiction to transfer in the Cobra Power Motion.

[32] When Mr. Hersen learned what had happened at the motion, he felt that Metrolinx had been “blindsided” by Unimac’s argument about Master’s Wiebe’s jurisdiction in the face of the consent that had been given. Metrolinx felt that it had been prejudiced and denied the opportunity to properly argue the issue before the court.

[33] As a result, on November 19, 2013, counsel for Metrolinx wrote to Master Wiebe through his Registrar to provide case law supporting Metrolinx's position that a Master has the jurisdiction to order a change of venue.

[34] Mr. Baichoo wrote directly to Master Wiebe on November 20, 2013 and advised that the Transfer Motion was on consent and that Unimac did not withdraw its consent. In this letter, Mr. Baichoo objected to Metrolinx's counsel sending correspondence to Master Wiebe without his consent. Mr. Baichoo raised no objection in relation to the relief sought in the Transfer Motion. His only complaint related to Master Wiebe's possible consideration of the case law in the Cobra Power Motion, to which Metrolinx is not a party. Mr. Baichoo stated in the letter that the communication should not be accepted because “it may affect the Court’s consideration on a parallel, contested motion” (the Cobra Power Motion).

[35] By letter dated November 20, 2013, Metrolinx’s counsel wrote to Master Wiebe through his Registrar and advised that he had not anticipated the need to submit case law or to argue the issue of a Master's jurisdiction to make a change of venue order as the Transfer Motion was on consent and the issue had not been previously raised. He stated that his earlier letter was meant to clarify a point of law in relation to the Transfer Motion and not, as suggested by Mr. Baichoo, to improperly attempt to persuade the court in the Cobra Power Motion.

[36] Out of an express desire "to be fair to all parties" and to ensure that Master Wiebe had all relevant authorities, the Master provided Mr. Baichoo with the opportunity to make written responding submissions.

[37] Unimac made written submissions and Master Wiebe released his Reasons for Decision for the Transfer Motion on December 20, 2013 (the "Transfer Motion Reasons for Decision"). In his Transfer Motion Reasons for Decision, Master Wiebe held that: (i) Unimac consented to the Transfer Motion; (ii) to be fair to all parties, Unimac had been invited to respond to Metrolinx's submissions; (iii) Unimac did not request a further attendance after being invited to do so; (iv) Unimac's conduct at the hearing of the Transfer Motion "deprived Metrolinx of a proper opportunity to argue the issue of the jurisdiction for its motion, a procedural unfairness that had to be redressed"; (v) Rule 1.09(b) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 authorizes the court to permit out-of-court communications; and (vi) this same sense of fairness had caused him to give Mr. Baichoo the opportunity to respond to Metrolinx’s submissions.

[38] In his February 10, 2014 Costs Decision on the Transfer Motion, Master Wiebe awarded costs to Metrolinx on a substantial indemnity scale in the amount of $4,862.11. In the reasons for the costs award, the Master stated that Unimac had “unnecessarily complicated” the Transfer Motion by raising the issue of jurisdiction in the way it did. Further, Unimac's conduct denied Metrolinx its right to make submissions on the issue of jurisdiction and led to the written submissions. Finally, Unimac's attacks on the alleged impropriety of Metrolinx's post-argument written submissions to the court "were entirely inappropriate given what transpired, and again betrayed a profound lack of appreciation of the issues and due process".

[39] Unimac appealed the December 20, 2013 Transfer Motion decision (even though it consented to the order as against Metrolinx). It seeks to set the Master’s order aside because of Metrolinx’s communication with Master Wiebe. This appeal has not been heard.

[40] It is plain and obvious and beyond doubt that the part of the judicial review application that is based on communications during the Transfer Motion will fail and should be quashed.

[41] It was Mr. Baichoo’s own conduct that triggered the need for Metrolinx’s counsel to correspond with the Master. Even if Metrolinx’s counsel’s communication with the Master was in some way improper (and I do not accept that it was), any unfairness or prejudice that resulted was cured when the Master provided Unimac with the full opportunity to respond to the November 19 communication.

[42] Furthermore, Unimac is not even complaining about communications within the security for costs motion. It is seeking to rely on communications in the Transfer Motion of the Unimac Damages Action for its judicial review application of the security for costs order in a separate action.

[43] As a result, Unimac’s allegation that such communication was “improper” and “created a fundamental flaw in the adjudicative process, thereby causing a breach of fairness and natural justice” to Unimac is utterly devoid of any merit.

Scheduling Communications – Security for Costs Motion

[44] On September 16, 2014, Mr. Hersen advised Mr. Baichoo in writing that he had instructions from Metrolinx to bring the security for costs motion. In this letter, counsel stated that he would advise Mr. Baichoo of the court's availability to hear the motion.

[45] On October 17, Mr. Hersen’s assistant contacted Master Wiebe’s Registrar to obtain dates for the security for costs motion. The Registrar told the assistant to have Mr. Hersen request a conference call with Master Wiebe to schedule a date for this motion.

[46] After this call, Mr. Hersen’s assistant emailed the Registrar on October 21, 2014 and asked for “a few time options” for the conference call. The same day, Mr. Hersen sent a letter to Mr. Baichoo informing him that he had requested a time for a conference call with Master Wiebe to schedule the security for costs motion. He told Mr. Baichoo that he would advise him of the dates as soon as they were received from the Master’s office.

[47] On October 24, 2014, Registrar Noronha contacted Mr. Hersen’s assistant and told her that Master Wiebe required the parties to attend a telephone case conference on October 27, 2014 at 9:30 a.m. to schedule the Security for Costs Motion. The same day, Mr. Hersen faxed a letter to Mr. Baichoo setting out the date and time and access code for the telephone case conference with Master Wiebe. A copy of this letter was sent to Master Wiebe. The date and time of the telephone case conference was chosen by Master Wiebe without confirming counsel’s availability.

[48] On October 26, 2014 at 7:18 p.m., Mr. Baichoo sent an email to Mr. Hersen and copied Registrar Noronha. In this email he stated that he was not available on October 27, 2014 and that Mr. Hersen knew he was unavailable the week of October 27, 2014. He goes on to state that the date was not canvassed with him in advance and was “unilaterally selected”. Mr. Baichoo asked Mr. Hersen to contact him in advance for any scheduling so that a mutually convenient date could be set.

[49] Mr. Hersen replied by email at 8:04 a.m. on October 27, 2014. In this email, he told Mr. Baichoo that he did not unilaterally schedule the conference call; but had requested dates from the Master’s registrar and the Master chose the date in question. Mr. Hersen also stated that he was not aware that Mr. Baichoo was unavailable the week of October 27. Lastly, he told Mr. Baichoo that he would attend the telephone conference call at 9:30 a.m. as ordered by Master Wiebe. He added that attempts would be made to accommodate Mr. Baichoo's schedule if he provided his availability for the motion prior to the case conference, failing which, the security for costs motion would be scheduled and Mr. Baichoo could seek an adjournment, if required.

[50] After attending the telephone case conference, Mr. Hersen immediately emailed Mr. Baichoo to advise him of the proposed schedule that the Master set for the security for costs motion. This schedule set February 2, 2015 as the date for the hearing of the motion and a timeline for the exchange of materials. In particular, the email informed Mr. Baichoo that if he was unavailable on February 2, the date of February 9 was available for the motion if counsel advised the Master quickly of the need to book this alternative date. Lastly, Mr. Baichoo was advised that the Master had set a further conference call for November 3, 2014 at 9:30 a.m. The telephone number and access code for the call were provided. Mr. Hersen received no response from Mr. Baichoo.

[51] The November 3 conference call proceeded. Mr. Hersen and Master Weibe called in and Mr. Baichoo did not. They waited for Mr. Baichoo to call in. At 9:37 a.m., Mr. Hersen sent Mr. Baichoo an email to tell him that they were waiting for him on the call. He included the telephone access dial-in information. There was no response from Mr. Baichoo, and the conference call proceeded in his absence.

[52] On November 3, after the conference call, the Master’s Registrar sent an email to Messrs. Hersen and Baichoo setting out what had transpired during the two conference calls. This email confirmed the motion date of February 2, 2015 and the schedule for delivering materials. If Mr. Baichoo had any difficulty with the schedule, he was requested to schedule another conference call with the Master.

[53] On November 27, 2014, Mr. Baichoo sent an email to the Master in care of the Registrar. He explained that his absence was due to his mother’s hospitalization and death and requested a new conference call.

[54] On December 4, 2014, the Master’s Registrar emailed counsel and advised that the Master had reviewed Mr. Baichoo’s November 27 email and set a further conference call for December 9 at 2:30 p.m. Mr. Baichoo was directed to set up the call.

[55] The December 9 conference call proceeded, and both counsel participated on the call with Master Wiebe. The timetable was modified on consent at the request of Mr. Baichoo. This was confirmed the same day in the Registrar’s email.

[56] Mr. Baichoo did not complain about any of the above communications until the judicial review application was issued. Unimac now alleges in the judicial review application that this scheduling communication was a breach of Rule 1.09 and, as a result, the security for costs motion is “fundamentally flawed” and “the appearance of fairness in Master’s Wiebe’s courtroom has been compromised”.

[57] Rule 1.09 of the Rules of Civil Procedure states:

1.09 When a proceeding is pending before the court, no party to the proceeding and no party’s lawyer shall communicate about the proceeding with a judge, master or case management master out of court, directly or indirectly, unless,

(a) all the parties consent, in advance, to the out-of-court communication; or

(b) the court directs otherwise.

[58] It is inconceivable how this communication about the scheduling of a motion could be the basis for the judicial review application. Mr. Baichoo was told that Metrolinx was bringing a motion for security for costs. He was told that Mr. Hersen’s office would be requesting dates from the Master’s registrar. Obviously, the party seeking to bring the motion is the one to obtain a date. Mr. Hersen simply followed the process for seeking a date that the Master’s Registrar directed. In the context of this construction lien matter that is actively case managed, the contact with the Master’s Registrar to obtain a date for the motion is not a breach of rule 1.09(b). Mr. Hersen kept Mr. Baichoo informed of his communications. The Master scheduled further telephone case conferences to accommodate Mr. Baichoo and ultimately amended the schedule for the security for costs motion at Mr. Baichoo’s request. Mr. Baichoo never complained about this communication until the judicial review application was served.

[59] This part of the judicial review application is utterly devoid of any merit. It is plain and obvious that it will fail. The Master accommodated Unimac’s counsel during this scheduling communication and amended the schedule as Unimac requested. To be blunt, it is absurd to suggest that this routine scheduling communication “fundamentally flawed” the security for costs motion or that “the appearance of fairness in Master’s Wiebe’s courtroom has been compromised”.

[60] This part of the judicial review application is quashed.

Alleged Relationship between master and metrolinx counsel

[61] Unimac alleges that the above communications were procedurally unfair and that the Master tolerated the improper communication. As explained, these allegations are utterly devoid of any merit. Likewise, the suggestion that such communication took place because of a “personal relationship” between the Master and Mr. Hersen is equally without merit. The communications were proper, necessary and procedurally fair.

[62] Leon Hui, the president of Unimac, swore an affidavit that was filed in support of the judicial review application. It is this affidavit that Metrolinx seeks to strike in whole or part.

[63] Mr. Hui states that he is concerned about the “procedural unfairness that Unimac has suffered” and the Master’s “continuing tolerance for Metrolinx’s counsel’s improper conduct.” The alleged procedural unfairness relates to the issues of fact and law discussed below and the alleged improper conduct refers to the communications already considered. The conduct was not improper.

[64] The so called “personal relationship” consists of Mr. Hui’s belief that the Master and Mr. Hersen have a “long standing relationship” because they were both Executive Members of the Construction Law section of the Ontario Bar Association at the same time. In essence, Mr. Hui states that the Master ruled against Unimac and allowed communications between him and Mr. Hersen because they have a personal relationship. I reject this position.

[65] Mr. Hersen and Master Wiebe have not been Executive Members of the Construction Law section of the Ontario Bar Association since 2012. Furthermore, there were 51 other lawyers who were also Executive Members during that period of time. There is absolutely no basis for suggesting that their professional association as Executive Members on this committee has tainted the process and compromised the appearance of fairness. If this argument had any merit, and it does not, it would mean that the other 51 lawyers who were Executive Members also have a personal relationship with Master Wiebe. Such a result would be unreasonable.

Mistrial

[66] The request for a mistrial is only referred to in paragraph 36 of the judicial review application. It states as follows:

Furthermore, Unimac is seeking a mistrial of the within action based on the numerous breaches of Rule 1.09 and the subsequent injustice caused to [Unimac]. Metrolinx has repeatedly been in direct contact with Master Wiebe, either by way of without consent communication or by way of telephone conference call for which Unimac was not present. Such unfairness to [Unimac] requires that a mistrial be ordered by this Honourable Court.

[67] I quash this part of the judicial review application for the following three reasons.

[68] First, there is no trial that has occurred. The concept of a mistrial arises during a trial when a party seeks to strike the trial that is underway because of some irreparable harm that has occurred that cannot be cured without ordering a mistrial. A party cannot ask for a mistrial of a trial that has not started.

[69] Second, assuming this relief was available, the alleged foundation for the mistrial is the same communication complaint that I have found to be devoid of any merit. If it is plain and obvious that a judicial review application founded on this communication will fail, then the same applies to a mistrial request.

[70] Third, Unimac has provided no authority to show that this court has the jurisdiction on a judicial review application of a security for costs order to order a mistrial.

[71] Section 2(1) of the Judicial Review Procedure Act, R.S.O. 1990, c. J.1 sets out the remedies the Divisional Court can grant on an application for judicial review. A mistrial is not included:

2(1) On an application [for judicial review]… 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:

1. Proceedings by way of application for an order in the nature of mandamus, prohibition or certiorari.

2. Proceedings by way of an action for a declaration or for an injunction, or both, in relation to the exercise, refusal to exercise or proposed or purported exercise of a statutory power.

Issues of Fact and Law

[72] The rest of the judicial review application falls into the category of errors of law, errors of mixed fact and law or errors of fact. These are matters for an appeal and not a judicial review application.

[73] The security for costs order is an interim order (see I.C.I. Construction Ltd. v. Altavista Properties Inc. 2008 CarswellOnt 613). Appeals from interlocutory orders are expressly prohibited by s. 71(3)(b) of the CLA. Pursuant to s. 71(1) of the CLA, Unimac has a full right of appeal on the merits of the final reference decision.

[74] This part of Unimac’s judicial review application seeks to circumvent s. 71(3)(b) of the CLA by labelling errors of law, mixed fact and law or fact as a breach of procedural fairness. For this reason, Metrolinx argues that the judicial review application is an abuse of process. I agree.

[75] The court will not exercise its judicial review jurisdiction where, as in this case, the judicial review application is in essence an appeal by a different name (see Mazinani (c.o.b. Mazinani Law Offices) v. Clark, 2014 ONSC 7100, [2014] O.J. No. 5886 (Div. Ct.); Millard v. Di Carlo, 2014 ONSC 1218, [2014] O.J. No. 917; Peck v. Residential Property Management Inc., [2009] O.J. No. 3064 (Div. Ct.); Pardar v. McKoy, 2011 ONSC 2549, [2011] O.J. No. 2092 (Div. Ct.)).

[76] In the judicial review application, Unimac makes numerous allegations that the Master “erred” in various ways in his treatment of the evidence. For example, the Master erred in various findings of fact, in his exclusion of evidence and in his treatment of evidence. Unimac also alleges that the Master acted contrary to “binding jurisprudential authorities” and basically arrived at the wrong result. It also uses the language that the Master “erred in law” in paragraph 21 of its factum.

[77] It is plain and obvious that this is the language of an appeal and not judicial review. A closer examination of the judicial review application supports this conclusion.

Master Relied on Irrelevant and/or Unreliable Evidence or Disregarded Evidence

[78] Unimac alleges throughout the judicial review application that the Master erred in his treatment of evidence. Specifically, it is alleged that the Master relied on irrelevant and/or unreliable evidence (paras. 19 and 20), disregarded or excluded evidence (paras. 8, 12, 14, 23 and 24) and speculated about evidence (paras. 15 and 22). Decisions concerning evidence or treatment of evidence are not the subject of a judicial review application. They are properly characterized as matters of law or mixed fact and law and should be pursued on appeal.

Findings of Fact

[79] Unimac also alleges that the Master erred in making various findings of fact that did not support the security for costs order (paras. 18, 19, 25, 26, 27 and 28). Once again, a complaint about a court’s finding of fact cannot be the basis for a judicial review application.

Exclusion of Evidence

[80] Paragraphs 3 to 7, 16 and 17 deal with the Master’s decision to exclude what Unimac describes as “relevant and proper evidence”. This part of the judicial review application requires some background, as follows.

[81] Unimac filed an affidavit from Mr. Hui in response to the security for costs motion. Metrolinx cross-examined Mr. Hui on his affidavit on January 8, 2015. During this cross-examination, Unimac refused to answer 128 questions, no undertakings were given and three questions were taken under advisement.

[82] Unimac sent Metrolinx a letter dated January 13, 2015 that enclosed various documents. These documents provided financial information about Unimac. The documentation had not previously been provided to Metrolinx. The letter states that the information was being sent “[f]urther to the cross-examination of Mr. Leon Hui”. The letter does not state that such information is being given in answer to one of the many refusals or a question taken under advisement and, if so, which refusal or question.

[83] Unimac filed a factum for the security for costs motion. It attached the January 13 letter with enclosures as a schedule to its factum.

[84] At the security for costs motion, counsel for Metrolinx objected to the letter and attachments being filed with the court as a schedule to Unimac’s factum. The letter and attachments had not been previously produced in any of the proceedings before the court or marked as exhibits at any cross-examination. The letter did not present the information as an answer to a specific refused question. Finally, the letter and attachments were not tendered as evidence with a sworn affidavit.

[85] Master Wiebe explained in his Costs Decision after the motion that he “made a preliminary ruling at the beginning of the argument of the motion that denied Unimac’s attempt to file answers to undertakings by way of a letter”. In the Costs Decision, the Master stated as follows, at para. 18:

Mr. Baichoo also complained that Mr. Hersen did not give advance notice of his complaint about the Unimac failure to submit answers to undertakings to the court by way of affidavit. I made a preliminary ruling at the beginning of the argument of the motion that denied Unimac's attempt to file answers to undertakings by way of a letter. I did so as I found that a court can only consider evidence on a motion in the form of affidavits, viva voce or transcripts of cross-examinations. Again, I reiterate that lawyers are expected to know the rules that pertain to the submission of evidence on motions. I do not criticize Metrolinx for failing to give notice of its position on these points.

[86] Unimac argues that answers to undertakings can be provided without an affidavit and that the Master’s decision to deny the evidence resulted in procedural unfairness to it.

[87] The correctness of the Master’s decision is not the issue on this motion to quash. The Master clearly ruled on a question of law pertaining to the admissibility of the evidence that Unimac attached to its factum. Unimac’s complaint is properly characterized as a matter of law and should be the subject of an appeal, not judicial review.

There is no basis for a judicial review

[88] In summary, it is clear from an examination of the judicial review application that these allegations are properly the subject of an appeal and not a judicial review.

[89] The security for costs order is an interim order, and there is no right to appeal an interim order. Unimac has a full right of appeal on the merits of the final reference decision. The CLA expressly prohibits appeals from interlocutory orders.

[90] While Unimac alleges that these complaints have denied it fair process and natural justice, such allegations cannot convert what is actually an appeal into a judicial review application.

[91] The entirety of the judicial review application is quashed for reasons set out above.

Abuse of Process

[92] Metrolinx also argues that this judicial review application is an abuse of process. It argues that this is yet another reason to quash the judicial review application.

[93] I have already articulated reasons why the entire judicial review application is quashed. In the context of this motion, it is important to add that abuse of process is another reason to quash the judicial review application.

[94] The court has the inherent power to prevent the misuse of its procedure in a way that would be manifestly unfair to a party. This application is a misuse of the judicial review process. I say this because Unimac makes allegations of procedural unfairness that are obviously matters for an appeal. Unimac cannot be allowed to misuse the judicial review process as a way to get around the prohibition on appeals of interim orders. Further, the part of the judicial review application that is grounded in the communication complaints is so utterly devoid of merit it would never succeed.

[95] The security for costs has not been paid and the Master has found that Unimac has insufficient assets. It would be manifestly unfair to Metrolinx to allow the continuation of this judicial review application when it is devoid of all merit and is being used to try and avoid the appeal prohibition.

[96] I find that this judicial review application is an abuse of the court’s process.

The Hui affidavit

[97] Metrolinx seeks an order striking all or part of the affidavit of Leon Hui sworn on May 25, 2015 and filed in support of the judicial review application. Since I have quashed the entire judicial review application, it is not necessary to consider this relief. However, if I had not quashed the judicial review application, I would have accepted Metrolinx’s characterization of Mr. Hui’s affidavit as set out in detail in schedule A to its notice of motion and would strike the paragraphs noted in schedule A.

Conclusion

[98] For the reasons set out above, I order that Unimac’s judicial review application is quashed.

Costs

[99] At the conclusion of the hearing of the motion, counsel made submissions on costs. Counsel cannot agree on a quantum for costs for the successful party.

[100] If Unimac had been successful it was seeking cost of $5,000 all inclusive. It did not provide a Costs Outline.

[101] Metrolinx was successful on this motion and is entitled to costs. It provided a detailed Costs Outline. On a substantial indemnity basis, its costs total $90,996.76. Metrolinx asks the court to award partial indemnity costs that total $71,789.13. The latter includes fees of $58,945, HST on fees of $7,662.85 and $5,181.28 for disbursements. Unimac states that the amount is excessive and asks that Metrolinx be awarded no more than $6,500 all inclusive.

[102] Rule 57.01(1) sets out the factors the court may consider when determining costs. The rule states:

57.01 (1) In exercising its discretion under section 131 of the Courts of Justice Act to award costs, the court may consider, in addition to the result in the proceeding and any offer to settle or to contribute made in writing,

(0.a) the principle of indemnity, including, where applicable, the experience of the lawyer for the party entitled to the costs as well as the rates charged and the hours spent by that lawyer;

(0.b) the amount of costs that an unsuccessful party could reasonably expect to pay in relation to the step in the proceeding for which costs are being fixed;

(a) the amount claimed and the amount recovered in the proceeding;

(b) the apportionment of liability;

(c) the complexity of the proceeding;

(d) the importance of the issues;

(e) the conduct of any party that tended to shorten or to lengthen unnecessarily the duration of the proceeding;

(f) whether any step in the proceeding was,

(i) improper, vexatious or unnecessary, or

(ii) taken through negligence, mistake or excessive caution;

(g) a party’s denial of or refusal to admit anything that should have been admitted;

(h) whether it is appropriate to award any costs or more than one set of costs where a party,

(i) commenced separate proceedings for claims that should have been made in one proceeding, or

(ii) in defending a proceeding separated unnecessarily from another party in the same interest or defended by a different lawyer; and

(i) any other matter relevant to the question of costs.

[103] This motion was of average complexity. It was important to Metrolinx because Unimac made serious allegations against it and the Master. Further, the motion to quash the judicial review application was very important given the security for costs order that Unimac has never paid. This judicial review application was so obviously devoid of merit that I conclude Unimac was using the application to delay or avoid payment of the security.

[104] The application was an attempt to get around the fact that Unimac has no right to appeal the interim security for costs order under the CLA. It was an abuse of the court’s process. In these circumstances, Metrolinx is entitled to a meaningful costs order.

[105] I do not accept that Unimac’s own proposed costs of $5,000 is reflective of what it could reasonably expect to pay in costs as the losing party. This amount was proposed without offering any support. Unimac did not produce a Costs Outline.

[106] Work done on behalf of Metrolinx was shared between three lawyers with various years of experience and a law clerk. Their partial indemnity hourly rates are fair, given their expertise in the construction litigation field. The rates range from $300 to $350 an hour and $90 for the law clerk. A breakdown of disbursements was not provided.

[107] While Unimac’s conduct merits a significant cost award, I find the quantum of fees requested by Metrolinx to be excessive, even on a partial indemnity scale.

[108] Costs must be reasonable and fair in the circumstances: see Boucher v. Public Accountants Council for the Province of Ontario (2004), 71 O.R. (3d) 291(C.A.) and Moon v. Sher, [2004] O.J. No. 3942 (C.A.).

[109] I fix the costs of Metrolinx at $18,000 all inclusive. Unimac is ordered to pay these costs. In my view this is reasonable and fair in the circumstances.

C. Horkins J.

Date: March 23, 2016