Court File and Parties

CITATION: GlycoBioSciences Inc. v. Herrero and Associates, 2023 ONSC 4143

DIVISIONAL COURT FILE NO.: 23-00000032-0000

DATE: 2023-07-14

SUPERIOR COURT OF JUSTICE – ONTARIO

DIVISIONAL COURT

RE: GLYCOBIOSCIENCES INC., Applicant AND: HERRERO AND ASSOCIATES, Respondent

BEFORE: Matheson J.

COUNSEL: Appellant, represented by Kevin Drizen[^1] Ryan Evans, for the Respondent

HEARD: In writing.

Endorsement

[1] The Applicant has commenced this Application for Judicial Review to challenge the quantum of a costs order of G. M. Miller J. dated October 6, 2022 (the “Costs Order”)[^2]. The Applicant was the unsuccessful party on a jurisdiction motion brought by the Respondent and was ordered to pay $50,000 in costs.

[2] The Applicant has already appealed the jurisdiction decision to the Court of Appeal.[^3] The Court of Appeal dismissed the appeal orally on May 5, 2023. The Court rejected grounds for appeal that included allegations of bias against the motion judge.[^4] The Appellant, now the Applicant, had relied on the conduct of the motion and an alleged lack of consideration of the Appellant as a self-represented party. The Court of Appeal also considered materials from the Applicant that the Court described as a motion to file fresh evidence that was in effect a motion for leave to appeal the Costs Order.[^5] The Court of Appeal ruled that there was no merit to the proposed request for leave to appeal, and dismissed it.[^6] The Court of Appeal awarded substantial indemnity costs against the Appellant (now the Applicant) in the amount of $26,000 for the Appellant’s reckless allegations against counsel and the motion judge and the improperly voluminous record in the appeal, among other reasons.[^7]

[3] After losing in the Court of Appeal, this Application was commenced. The Applicant seeks an order setting aside or reducing the amount of the Costs Order. Again, the Applicant alleges that the motion judge was biased, quoting extensively from the factum put forward to the Court of Appeal. The Notice of Application also relies on the three-month delay between the decision on the motion and the decision on costs, suggesting that the delay complicated matters and made it difficult to oppose the quantum. The Notice of Application further submits that the Application is timely because it was commenced within 30 days from the decision of the Court of Appeal.

[4] After this Application was commenced, the Respondent requested that this Court initiate the process under r. 2.1.01 of the Rules of Civil Procedure because it is a frivolous, vexatious and abusive proceeding, given the above appeal proceedings.

[5] As set out in the directions of Emery J., this Court directed the Registrar to issue a notice to the Applicant pursuant to r. 2.1. The Applicant has made submissions in response to the notice.

[6] The Applicant submits that this matter should not be quashed under r. 2.1.01, relying on the following:

(i) the submission that the Respondent was not permitted to write to the court requesting that r. 2.1.01 be invoked because the letter included argument, case law and correspondence with Court of Appeal staff on another matter;

(ii) the submission that the quantum of the costs order was not challenged in the appeal, relying on a transcript of the hearing before the Court of Appeal and endorsements and orders of the Court of Appeal; and,

(iii) the submission that there ought to be full court materials and argument before a decision is made on this Application for Judicial Review.

[7] I first address the submission that the Respondent’s letter to the Court was improper because it included argument and some materials that ought not to have been put forward.

[8] There is nothing improper about a party making a request of the Court to initiate the process under r. 2.1. This is expressly permitted under r. 2.1.01(6). Nor is there anything improper about providing the decision of the Court of Appeal in support of such a request. I agree, however, that such a letter should be brief and not include argument or extraneous material. I have not seen the letter. To the extent that it may have crossed the line, any such material will not be taken into account. Nor have I seen any other submissions that may have been put forward by the Respondent in relation to this r. 2.1 proceeding. I proceed based solely on the Notice of Application, the decision of the Court of Appeal and the materials put forward by the Applicant.

[9] I then move to the submission that the quantum of the costs order was not at issue before the Court of Appeal. For the purposes of this r. 2.1 decision, I am prepared to assume that the Applicant did not expressly seek to challenge the quantum of the Costs Order before the Court of Appeal. It remains the case that the costs decision and submissions about it regarding bias were before that Court. As set out in Nordheimer J.A.’s case management endorsement, the then Appellant was given leave to file a supplementary appeal book to put the reasons for decision on costs before the Court of Appeal and was given permission to file a supplementary factum to address how the costs decision related to the bias argument being advanced in the appeal.

[10] Lastly, the Applicant submits that the Application does not fall within r. 2.1 and should be permitted to proceed on its merits.

[11] Subrule 2.1.01(1) authorizes the court to dismiss an application as frivolous or vexatious or otherwise an abuse of the process of the court. However, r. 2.1 should only be used for “the clearest of cases”: Scaduto v. The Law Society of Upper Canada, 2015 ONCA 733, at para. 8. This is a clear case.

[12] I begin with the available appeal rights that the Applicant did not pursue. Under s. 133 of the Courts of Justice Act, R.S.O. 1990. c. C.43, the Applicant could have sought leave to appeal the Costs Order in order to challenge the quantum of costs. The Applicant did not do so. That motion for leave to appeal should have been brought long ago. The Notice of Application questions whether such a motion would have been accepted by the court because of its timing in relation to the appeal that was already underway. That submission is without merit. There is a process to follow under the Rules of Civil Procedure and it was not pursued.

[13] Applications for judicial review in the face of a statutory right of appeal will only be heard in rare or unusual circumstances that are not present here. The failure to pursue available appeal rights in this case stands against the Applicant’s position under r. 2.1.

[14] Further, this Application is late. And the position of the Applicant does not suggest that an extension of time would be warranted. If the appeal did not include the quantum issue, as submitted by the Applicant, there is no basis to suggest that the commencement of this Application needed to await the decision of the Court of Appeal.

[15] Most significantly, this Application is grounded on the allegations of bias that have been dismissed by the Court of Appeal. The Notice of Application expressly quotes numerous paragraphs from the Applicant’s factum on the appeal, and shows that the arguments about bias, including the conduct of the motion and the role of a self-represented party, were advanced at the Court of Appeal. The then Appellant was given permission to file supplementary materials to address how the costs decision related to the bias argument being advanced in the appeal. The allegations of bias and related matters that also ground the Application for Judicial Review have been canvased and finally determined against the Applicant by the Court of Appeal.

[16] This Application is an attempt to re-litigate issues already decided by the Court of Appeal and an attempt to avoid the consequences of not pursuing the available appeal process. It is an abuse of process.

[17] The Application for Judicial Review is therefore dismissed.

Matheson J.

Date: July 14, 2023

[^1]: Rule 15.01(2) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, requires that corporations be represented by counsel, except with leave of the court. No leave has been sought in this court. However, because the Court of Appeal permitted Mr. Drizen to represent the corporate party, I too will do so. [^2]: 2022 ONSC 5746 [^3]: 2023 ONCA 331 [^4]: 2023 ONCA 331, at para. 11. [^5]: 2023 ONCA 331, at para. 12. [^6]: 2023 ONCA 331, at para. 12. [^7]: 2023 ONCA 331, at para. 13.