ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: 13-DV-1920
DATE: 20131108
BETWEEN:
FARIS HAZIM ABDUL-RAHEEM SAIYEGH
Applicant
– and –
INFORMATION AND PRIVACY COMMISSIONER / ONTARIO,
ATTORNEY GENERAL OF ONTARIO
UNIVERSITY OF OTTAWA
Respondents
Appearing in Person
Dustin Kenall, Counsel for the Respondent, Information and Privacy Commissioner /Ontario
Meagan Williams and Sunil Mathai, Counsel for the Respondent, Attorney General of Ontario
Julie Sicotte, Counsel for the Respondent, University of Ottawa
HEARD: November 8, 2013 (Ottawa)
endorsement
QUIGLEY J.
[1] This is an application by Faris Hazim Abdul-Raheem Saiyegh, seeking, among other relief, an order setting aside Order PO-3172 made by adjudicator, Stella Ball, under the Freedom and Protection Act.
[2] Further, this is a motion by the applicant to:
(i) vary the endorsement of Kane J. dated September 10, 2013 in his finding that the applicant had not demonstrated urgency required in the hearing to be conducted on that date. Kane, J. concluded the issue of urgency could be determined at a later date following the filing of the respective application records pursuant to a timetable, which he set that day.
(ii) set aside the $1,750 costs award ordered by Kane J., in his endorsement in favour of the Respondent, Information and Privacy Commissioner/Ontario (“Commissioner”).
(iii) revise Kane J.’s endorsement in that the applicant’s pending application for leave to appeal to the Supreme Court of Canada in another proceeding is sufficient basis, requiring that the matter should be heard on an urgent basis by a judge of the Superior Court of Justice rather than the Divisional Court.
(iv) declare that the motion by the Information and Privacy Commissioner/Ontario was abusive, vexatious and improper and included fraud and perjury.
[3] The issue of urgency is also before the court today on the same grounds that the applicant proceeded on for the September 10th motion before Kane J.
[4] In support of the application to vary, the applicant filed a transcript of the motion before Kane J. on September 10th, 2013 and, again, made a similar argument with respect to the urgency of the proceeding as he argued before Kane J.
[5] In support of his motion to set aside the costs order in favour of the Commissioner, the applicant is primarily relying on the fact that the Commissioner agreed to delete the 30 day payment requirement in support of his contention that costs should not have been awarded.
[6] The applicant agrees that the Offer to Settle by counsel for the Commissioner, on August 13, 2013 was rejected.
[7] Counsel for the Commissioner is seeking a dismissal of the applicant’s motion to vary Kane J.’s endorsement, as well as his costs endorsement of September 10th. In addition, the Commissioner is asking that the matter be transferred to the Divisional Court pursuant to Section 6(3) of the Judicial Review Procedure Act and asking the Registrar to list the matter for trial under Section 68.05(2) of the Rules of Civil Procedure. Counsel for the Commissioner is seeking costs of the applicant’s motion on a substantial indemnity basis in the amount of $4,938.66, inclusive of disbursements and H.S.T.
[8] Counsel for Attorney General of Ontario takes no position with respect to the costs order and agrees with the submissions of the Commissioner that the application for judicial review is not urgent and consequently seeking a transfer of the application to the Divisional Court. Counsel for the Attorney General is asking that the cost for today’s motion be reserved to the Divisional Court.
[9] Counsel for the respondent, University of Ottawa, similarly submits that there is no urgency to the applicant’s motion and is requesting that costs for today be reserved to the Divisional Court.
[10] The respondents were prepared to argue the merits of the judicial review application today. However, none of the respondents agree that the applicant has demonstrated an urgency.
[11] A consent of the parties however, cannot confer jurisdiction on the Superior Court of Justice to hear a judicial review application unless the Court finds that the matter is urgent. See Re Taller and Assessment Commr (1974, 1974 631 (ON SC), 7 O.R. (2d) 501 (H.C.) at page 3.
Analysis and Decision
[12] The applicant’s motion is denied for the following reasons.
[13] It is clear from a review of the transcript of proceedings on September 10th that Kane J.’s decision is supported by the facts and law that was placed before him that day. He was entitled to adjourn the issue of urgency based on his articulated reasons and his costs order was based on the fact that the Commissioner was at least as successful on the motion, as his offer to settle contained in the August 13th email to the applicant.
[14] Even today, the applicant takes no issue with the fact that he received the August 13th email from counsel for the Commission and rejected it.
[15] I find no merit in the applicant’s submission that the Commissioner’s decision to not enforce the 30 day payment period somehow supports the applicant’s position with respect to costs.
[16] Therefore, an order shall go finding that the applicant’s application for judicial review is not urgent, and transfer the applicant to the Divisional Court. The Registrar shall, pursuant to Rule 68.05(2) of Rules of Civil Procedure, place the matter on the list for hearing and give notice of listing for hearing by mail to the parties.
[17] A further order shall go granting the Commissioner costs for this motion in the amount of $4,000, inclusive of disbursements and H.S.T. payable by the applicant within 30 days.
[18] A further order shall go reserving costs of the application of all respondents with respect to issue of urgency, to the Divisional Court for determination.
Quigley J.
Released: November 8, 2013
COURT FILE NO.: 13-DV-1920
DATE: 20131108
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
FARIS HAZIM ABDUL-RAHEEM SAIYEGH
Applicant
– and –
INFORMATION AND PRIVACY COMMISSIONER / ONTARIO,
ATTORNEY GENERAL OF ONTARIO
UNIVERSITY OF OTTAWA
Respondents
endorsement
Quigley J.
Released: November 8, 2013