ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: 842/12 (Perth)
DATE: 2014 Sep 05
BETWEEN:
2145850 ONTARIO LIMITED o/a Highland Bus Services, BARR BUS LINES LIMITED, CLARK BUS & MARINA LIMITED, HEALEY TRANSPORTATION LIMITED, PREMIER BUS LINES INC., VALLEY BUS LINES LIMITED, and WHITTEKER BUS LINES LIMITED
Plaintiffs/Respondents on Motion
– and –
STUDENT TRANSPORTATION OF EASTERN ONTARIO (STEO)
Defendant
– and –
HER MAJESTY THE QUEEN as represented by the MINISTER OF EDUCATION
Defendant/Moving Party
Jonathan C. Lisus and Daniel A. Schwartz, for the Plaintiffs/Respondents on Motion
Ms. P. Harper, for the Defendant (STEO)
Ronald E. Carr, for the Defendant/Moving Party, Her Majesty the Queen
HEARD: September 3, 2014 at Kingston
Hackland, J.
DECISION ON MOTION FOR LEAVE TO APPEAL
[1] The Moving Party, the Attorney General for Ontario, seeks leave to appeal, under both branches of the applicable Rule (Rule 62.02(4)), from the Order of Belch J. granting the Respondents/Plaintiffs leave to amend their Amended Statement of Claim in this action and adding Her Majesty the Queen in right of Ontario as a party defendant. The Appellant argues that the motion judge’s decision conflicts with certain appellate jurisprudence and that there is good reason to doubt the correctness of the decision which pertains to matters of broad public importance.
[2] The motion judge, after accurately reciting the parties’ submissions, concluded that “whether the resultant RFP is discriminatory is not for me to decide and is best left for trial.” He also noted that there are a total of five actions currently proceeding in Ontario which raise similar if not identical issues, and in two of these actions, the government is already a party defendant. He acknowledged that the present case was in the nature of a test case which would constitute a precedent for the other actions.
[3] The motion judge did not elaborate on why he was of the view that the issue of whether the RFP was discriminatory was best left for trial. However, upon hearing argument of this leave motion and on reviewing three previous decisions[^1] of this court involving this and the companion cases, I am persuaded that his decision was reasonable and that any comprehensive and meaningful adjudication of the issues raised by the Plaintiffs will indeed require a full factual record which can only be developed at trial. It may be that some aspects of the duty of care alleged to be owed by the Crown to the Plaintiffs could be addressed at the appellate level at this point, but inevitably a trial would be required to determine the scope and application of any such duties. Moreover, there will, in any event, be a trial of the Plaintiffs’ claims against the other defendant, Student Transportation of Eastern Ontario (STEO) which is an entity taking direction from the Ministry of Education and therefore, the Ministry will be involved in a trial process involving these issues.
[4] Two recent decisions of the Supreme Court of Canada have made it clear that courts must endeavour to adjudicate disputes in an expeditious and cost effective manner and avoid unnecessary and circuitous procedures that increase costs and discourage access to justice. In Canada (Attorney General) v. Telezone Inc., 2010 SCC 62, [2010] 3 SCR 585, Justice Binnie rejected, based on access to justice considerations, the Crown’s arguments that those injured by administrative action had to seek judicial review followed by a separate action in the Superior Court for redress:
….People who claim to be injured by government action should have whatever redress the legal system permits through procedures that minimize unnecessary cost and complexity. The Court’s approach should be practical and pragmatic with that objective in mind… Access to justice requires that the claimant be permitted to pursue its chosen remedy directly and, to the greatest extent possible, without procedural detours. [Emphasis added.]
[5] Further, in Hryniak v. Mauldin, 2014 SCC 7, Justice Karakatsanis found that “…except where government funding is available, ordinary Canadians cannot afford to access the adjudication of civil disputes.” Our civil justice system, she found, is premised upon the principle that “the process of adjudication must be fair and just.” This principle “cannot be compromised” and undue and unnecessary processes and inflexible procedures – such as the added costs and delay of an unnecessary interlocutory appeal sought by the Crown – can prevent the fair and just resolution of disputes.
[6] In the absence of detailed reasons for the motion judge’s conclusion that a trial of the issues raised by Plaintiffs is necessary, it is somewhat difficult to apply the criteria for leave to appeal set out in Rule 62.02(4). On the other hand, in Silver v. IMAX, 2011 ONSC 1034 (Corbett J.), it was held on a leave application that the focus is on the correctness of the order or decision sought to be appealed from and not the reasons. If the decision is correct, even if there are concerns about aspects of the reasons, leave will not be granted. I propose to follow that approach in the present case.
[7] For reasons that I will briefly outline below, I agree with the motion judge’s determination that the essential arguments of the Plaintiffs advanced against the Crown are not plainly or obviously untenable and that they are of such a nature that a trial of the action is required for the purpose of creating a full factual record (including the resolution of key disputed factual and credibility issues) to adjudicate the Plaintiffs’ claims.
[8] The allegations in the claim in part concern the interpretation and effect of the requirements of the Broader Public Sector Accountability Act, S.O. 2010 (the “Act”), and the Broader Public Sector Procurement Directive of the Management Board of Cabinet (the “Directive”). The Act and Directive require that contracts for services in excess of $100,000 be determined through a process of open, transparent competitive procurement. Requests for Proposals (RFPs) are one of the several modalities of procurement recognized under the Directive.
[9] The Plaintiffs are small and medium size firms who, for many years, have contracted with local school boards for the busing of students. The RFP process has been recognized as very disadvantageous for these companies as against large competitors, for a variety of economic reasons. The Plaintiffs allege that they will be wiped out if competitive procurement is only to be implemented through an RFP process.
[10] In particular, the Plaintiffs argue that the Ministry is unlawfully discriminating against them by directly involving itself in the School Boards’ implementation of the competitive procurement process by insisting on the RFP approach and in designing RFP bid documentation and generally excluding, or forcing the School Boards to exclude other modalities of procurement. In doing so, it is alleged that the Crown is breaching or encouraging the School Boards to breach their statutory duties under the Act and the Directive. The Ministry denies that it is doing this, thus creating an important factual issue requiring necessary findings of fact. As noted, the Directive allows school boards and their agents, such as STEO, to utilize procurement modalities, other than RFPs. Evidence in the motion record suggests an air of reality to the Plaintiffs’ claim that this is not being permitted by the Ministry, in apparent contravention of the Act and the Directive.
[11] I adopt the observations of O’Marra J. at paragraphs 22, 23 and 24 of his decision in one of the related actions (Upper Grand District School Board et al). I note that his decision was not appealed.
[22] It is not plain and obvious that the claim is bound to fail for want of a private law duty of care in the relationship between the plaintiffs and the Ministry as pleaded and the direct involvement of the Ministry in the design and implementation of the RFP process. The Ministry, in recognition of the potential harm, the procurement process could occasion to small and rural operators, representations were made that the new procurement process would be fair to all operators, large and small and that the small operators would be given training and support to be involved in the competitive process. Further, the Ministry was involved directly in the design and implementation of the pilot RFP and made representations to correct its deficiencies in consultation with the operators. It declared a moratorium to do so. In this instance it is alleged prior to the 2nd RFP the ministry and consortium altered the maximum route allocation in any region from 50 to 100% in secret consultation with unidentified operators.
[23] A private law duty of care may arise at the implementation stage of a policy decision. It is with respect to the Ministry's involvement in the implementation stage of the policy decision and involvement and its representations with the operators that creates a sufficient degree of proximity required to establish a prima facie duty of care. As noted in Taylor v. Canada (Attorney General), 2012 ONCA 479, at 69:
"While the authorities are careful to deny that any one factor or combination of factors is necessary to establish proximity certain factors will take a central role in the proximity analysis," specifically representations made to the plaintiff and reliance on those representations. There are such representations alleged in the pleadings in this instance.
[24] It is not plain and obvious that the defendant enjoys immunity because its actions were "core policy decisions" based on social, economic or political considerations.” This is a circumstance that requires a full factual record to be before the Court in order to distinguish between the true policy and execution or operation of the policy.
[12] The Crown also argues that the motion judge erred in joining the Crown as a Defendant in view of the broad immunity provisions in sections 23 and 23 of the Act. For interlocutory purposes, however, that issue has already been decided in an earlier ruling in the present case by Tranmer J. who was of the view that the application of the immunity provisions must be determined at trial on a full factual record. This ruling was not appealed. I appreciate that at the time of that ruling (December 2012), the Crown was an intervenor in this action and not yet a party. In any event, the motions judge obviously had Tranmer J.’s ruling in mind when he permitted the pleading amendments and allowed the Crown to be made a party Defendant.
[13] The Crown argues that some of the amendments permitted by the motions judge claim prerogative relief only available by way of a judicial review application to the Divisional Court. In my view, that argument may well be correct, but the point can be raised before the trial judge. This issue, in itself, does not justify granting leave to appeal and in any event, the remedial aspects of the Plaintiffs’ claims will also be significantly dependant on the factual record.
[14] Certain of the Plaintiffs’ claims against the Crown are framed in the tort of negligent misrepresentation. The central issue of reasonable reliance in this cause of action is always fact specific and the relevant facts are disputed in this case. Factual findings are required for any meaningful adjudication of these negligent misrepresentation claims.
[15] In summary, I am of the opinion that the motions judge was correct in concluding that the Plaintiffs’ proposed amendments to its Amended Statement of Claim were not plainly and obviously untenable and that their proper adjudication of such claims was best left to a trial judge on a full factual record.
[16] Accordingly, the Crown’s motion for leave to appeal is dismissed.
[17] The Plaintiffs may provide a concise submission on costs of this motion within 30 days of the release of this endorsement. The Crown may respond within 30 days of receiving the Plaintiffs’ submission. The submissions shall be addressed to me in Ottawa.
[18] Counsel are requested to continue to deal with any procedural issues through Tranmer J., the case management judge in this action.
Mr. Justice Charles T. Hackland
Released: September 5, 2014
COURT FILE NO.: 842/12 (Perth)
DATE: 2014 Sep 05
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
2145850 ONTARIO LIMITED o/a Highland Bus Services, BARR BUS LINES LIMITED, CLARK BUS & MARINA LIMITED, HEALEY TRANSPORTATION LIMITED, PREMIER BUS LINES INC., VALLEY BUS LINES LIMITED, and WHITTEKER BUS LINES LIMITED
Plaintiffs/Respondents on Motion
– and –
STUDENT TRANSPORTATION OF EASTERN ONTARIO (STEO)
Defendant
– and –
HER MAJESTY THE QUEEN as represented by the MINISTER OF EDUCATION
Defendant/Moving Party
decision on MOTION FOR LEAVE TO APPEAL
Hackland, J.
Released: September 5, 2014
[^1]:
Epoch’s Garage Limited et al. v. Upper Grand District School Board et al., 2013 ONSC 667
214580 Ontario Limited v. Student Transportation, 2014 ONSC 4093
R.L. Ravin Limited v. Southwestern, 2013 ONSC 5268