CITATION: Unimac – United Management Corp. v. Metrolinx 2015 ONSC 558
COURT FILE NO.: CV-12-454429
DATE: January 21, 2016
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Unimac-United Management Corp. (plaintiff) v. Canadian National Railway Company and Metrolinx;
BEFORE: MASTER C. WIEBE
COUNSEL: Baichoo, J. P., and Barnwell, O., for Unimac-United Management Corp.(the moving party);
Hersen, G. D. for Metrolinx (the responding party);
HEARD: January 11, 2016 at Toronto, Ontario.
REASONS FOR DECISION
(Motion to vary)
I. INTRODUCTION
[1] Unimac-United Management Corp. (“Unimac”) brings a motion to vary several orders I made requiring Unimac to post $264,712.73 as security for the costs of Metrolinx in this and eight other actions. Unimac alleges that my orders were “based on false and misleading evidence” and that there is new evidence, all of which justifies having my orders set aside. Unimac also seeks the costs of these earlier motions as well as the costs of this motion.
[2] Having heard the submissions of counsel and reviewed the written material filed, I have decided to dismiss the motion in its entirety.
II. BACKGROUND
[3] There are several lien actions that have been referred to me concerning a project in Toronto named the “Willowbrook Rail Maintenance Facility Fuel Rehabilitation Project” (“the Project”). The owner of the Project is Metrolinx. Unimac is a general contractor. One of the lien actions is this one, namely a lien action commenced on May 25, 2012 by Unimac (the “Unimac Lien Action”). Metrolinx is a defendant in this action.
[4] On November 23, 2012 Unimac also commenced a non-lien action in Newmarket against Metrolinx and its consultant, Hatch Mott MacDonald Ltd. (“Hatch”). It concerns the Project. This action will be called the “Newmarket Action.” The issues in this action are similar to the ones raised in the Unimac Lien Action. Metolinx brought a motion before me on November 18, 2013 for an order moving the venue of the Newmarket Action to Toronto so that it could be referred to me to be managed and tried along with the other actions that have been referred to me concerning the Project. I granted the order. Unimac, I understand, is appealing this decision, which appeal has not been heard.
[5] On July 29, 2014, counsel (including Mr. Baichoo) had a telephone conference with me in which the final form of my venue change order was agreed upon and signed. This order was not stayed.
[6] On July 29, 2014 Metrolinx requisitioned the transfer of the Newmarket Action to Toronto. On October 24, 2014, the transfer was effected, with the Newmarket Action being given at Toronto court file number, CV-14-517742.
[7] On February 2, 2015 Metrolinx moved before me in the Unimac Lien Action for an order requiring Unimac to post security for Metrolinx’s costs in this action. The grounds for the motion were twofold: (1) the Newmarket Action as against Metrolinx was an unjustified multiplicity of proceeding, pursuant to Rule 56.01(1)(b); and (2) Unimac is a corporation and there is good reason to believe it has insufficient assets in Ontario to pay the costs of Metrolinx, pursuant to Rule 56.01(1)(d).
[8] I rendered my decision on April 14, 2015. I found that Metrolinx met its initial onus under both tests and that Unimac had not met its subsequent onus of establishing its position under both tests, namely that the Newmarket Action as against Metrolinx was justified and that Unimac had sufficient assets in Ontario to pay Metrolinx’s costs. I ordered that Unimac pay $264,712.73 into court as security for Metrolinx’s costs. On July 6, 2015 I ordered that Unimac pay Metrolinx $25,000 in costs for this motion. I understand that Unimac commenced a judicial review of both decisions, which remains outstanding. Neither of my orders was stayed.
[9] On September 15, 2015, Metrolinx brought another motion for an order requiring the same security for costs I had ordered in the Unimac Lien Action apply to the Unimac crossclaims against Metrolinx in six subtrade lien actions that had been referred to me, the Unimac fourth party claim against Metrolinx in a non-lien action that had been referred to me, and the Unimac claim against Metrolinx in the Newmarket Action that had not been referred to me. These actions will be called the “Other Actions.” The grounds for this motion were the following: (1) the Other Actions were an unjustified multiplicity of proceedings, pursuant to Rule 56.01(1)(b); and (2) Unimac had not paid the $25,000 costs order, pursuant to Rule 56.01(1)(c). I granted the motion on that day, and issued written reasons on September 21, 2015.
[10] In the course of the September 15, 2015 motion, Mr. Baichoo raised the argument that I had no jurisdiction to hear that motion in relation the Newmarket Action as that action remained in Newmarket. At this point, Mr. Hersen responded that the Newmarket Action had in fact been transferred to Toronto pursuant to my venue change order. I, therefore, did not accept this point by Mr. Baichoo. Mr. Baichoo stated that Mr. Hersen’s information came as a surprise to him.
[11] Unimac now moves (under the Unimac Lien Action title of proceeding) for an order varying my April 14 and September 21, 2015 orders to orders denying Metrolinx security for costs. The grounds for the motion, as stated in Mr. Baichoo’s factum, are that my orders were based on “false and misleading evidence” from Metrolinx about the location of the Newmarket Action, and that new evidence has come to light that undermines the credibility of critical evidence at the February 2, 2015 motion, namely the affidavit of Charles Daley and the corporate filings of Unimac.
III. ISSUES
[12] Based on the argument and the motion material, the issues in this motion are the following:
a) Should Mr. Barnwell be allowed to act for Unimac in this motion?
b) Should Unimac be allowed to amend its motion to pertain to the Other Actions?
c) Does this motion meet the test for leave under the Construction Lien Act section 67(2)?
d) If leave is granted, what is the test for setting aside an order due to “false and misleading evidence”?
e) Does the alleged “false and misleading evidence” meet that test?
f) If leave is granted, what is the test for setting aside an order due to new evidence?
g) Does the proffered new evidence meet that test?
h) Should I grant the order because Metrolinx lacks “clean hands”?
IV. ANALYSIS
(a) Should Mr. Barnwell be allowed to act for Unimac on this motion?
[13] Mr. Hersen raised a preliminary point, namely whether Mr. Barnwell had standing to appear on the motion for Unimac. Mr. Hersen has raised this point on several occasions in the past. He did so at the time of the September 15, 2015 motion when Mr. Barnwell appeared for Unimac along with Mr. Baichoo. He did so when Mr. Barnwell appeared with Mr. Baichoo at the trial management conferences dated July 13, 2015 and December 14, 2015 and at the telephone conference call of November 5, 2015. On each occasion, Mr. Baichoo identified Mr. Barnwell as “co-counsel” for Unimac. On each occasion, including the within motion, I allowed Mr. Barnwell to make submissions on that basis and in order to save time, all without formal submissions or argument on the point.
[14] On this occasion, Mr. Hersen was also pressed for time, as the motion argument was strictly time limited. He did, however, present me with authority on the point, namely the decision of Master Brott in Michriky v. Hack [2005] O.J. 982 (Ont. Master). Mr. Baichoo again advised that Mr. Barnwell was his co-counsel. In addition, Mr. Baichoo purported to file a notice of appointment showing the appointment of Mr. Barnwell as co-counsel. However, in reviewing this filed material further after the argument, I notice that all I received was an affidavit of service with no notice of appointment. It is undisputed that Mr. Barnwell is not a member of Mr. Baichoo’s firm.
[15] In the interest of time, I allowed Mr. Barnwell to make submissions on the motion as I had allowed him to do in the earlier proceedings noted above, all without formal submissions on the point but with the proviso that I would review the issue later for the purpose of making directions in this regard going forward, if necessary. I frankly had been of the view that the court had no interest in determining whether a party uses more than one lawyer as long as there was no added cost to the other parties.
[16] In her Michriky decision, Master Brott dealt with the issue of whether a party can be represented by more than one lawyer. She stated in paragraph 18 that the basic rule is that a party is confined under Rule 15.01(1) to one lawyer and must obtain the leave of the court to use more than one lawyer, which leave will be granted if there is a reasonable explanation for the second lawyer. In the Michriky case Master Brott was given an explanation, namely that the two parties with the two lawyers had different interests in the case. In the decision of Master Haberman in Housley v. R.(Barrie) Police) (2002) 2002 CanLII 53247 (ON SC), 62 O.R. (3d) 139, on which Master Brott relied, the Master received neither a request for leave nor an explanation for the second lawyer. As a result, she did not allow the second lawyer to act.
[17] I have received no formal request from Unimac for leave to use a second lawyer or an explanation for such a second lawyer. Therefore, I herewith direct that if Unimac intends on using Mr. Barnwell (or any other second lawyer) going forward in this reference in any way, it must first seek my leave to do so, failing which I will not allow Mr. Barnwell to act as Unimac’s second lawyer.
(b) Should Unimac be allowed to amend its motion to pertain to the Other Actions?
[18] Unimac’s motion material contains only the title of proceeding of the Unimac Lien Action. Metrolinx took the position as a result that I had no jurisdiction to amend my September 15, 2015 order, which pertained to the Other Actions.
[19] In the Notice of Motion, there is an expressed request for an order that my September 15, 2015 order be set aside along with my April 14, 2015 order, which pertained only to the Unimac Lien Action. At the hearing of the motion, Mr. Baichoo also purported to serve and file an amended version of the motion material containing the titles of proceedings of the Unimac Lien Action and the Other Actions. Mr Hersen objected to this purported amendment.
[20] I view this issue as falling under Rule 2.01(1), namely the rule that states that any non-compliance with the Rules of Civil Procedure (such as the failure to include a proper title of proceeding) does not render a document a nullity. Rule 2.01(1)(a) authorizes the court to make any “amendment” on such terms as are just “to secure the just determination of the real matters in dispute.” Here it was clear from the outset that Unimac was moving to amend both orders.
[21] I, therefore, grant Unimac leave to amend its motion material to include the additional titles of proceedings.
(c) Does the motion meet the test for leave under the Construction Lien Act section 67(2)?
[22] As stated in my April 14, 2015 and September 15, 2015 decisions, motions for security for costs have to meet the test for leave under section 67(2) of the Construction Lien Act (“CLA”), namely that the motion has to be proven to be either “necessary” or one that “would expedite the resolution of the issues in dispute.”
[23] Metrolinx dwelt at some length on this issue in this motion. However, having granted leave under this section for the original Metrolinx motion for security for costs, I fail to see how I cannot grant leave under this section for the Unimac motion to vary my original orders for security for costs. If, as Unimac alleges, my orders for security for costs were based on “false and misleading evidence” or on evidence that is now found to be incredible, putting aside these original orders is as “necessary” for the purpose of CLA section 67(2) as were my original orders.
[24] I grant Unimac leave to bring this motion under CLA section 67(2).
(d) What is the test for setting aside an order due to “false and misleading evidence”?
[25] Mr. Baichoo confirmed in argument that the first part of his client’s motion was based on that part of Rule 59.06(2)(a) that authorized the court to set aside or vary an order “on the ground of fraud.” He argued that there had been such a fraud by Metrolinx.
[26] Counsel were in agreement that the decision of Master Albert in JV Mechanical Ltd. v. Steelcase Construction Inc. [2010] O.J. No. 1073 (Ont. Master) aptly articulated the test to be applied to set aside an order obtained by fraud. In that case, the issue was whether Master Albert’s earlier decision denying a contractor security for costs in a lien action by its mechanical subcontractor should be set aside due to in large part the failure by the subcontractor to make full and fair disclosure of its assets. In the end, she set aside her earlier order. At paragraphs 22 and 24 of the decision, Master Albert, referring to the decision of Justice Osborne in International Corona Resources Ltd. v. LAC Minerals Ltd. (1988), 1988 CanLII 4534 (ON SC), 66 O.R. (2d) 610 (H.C.) and the decision of Justice Cullity in Vale v. Sun Life Assurance Co. Canada 1998 CanLII 14823 (ON SC), [1998] O.J. No. 6465 (Ont. Gen. Div.), described the test to be applied as the following:
a. the fraud alleged must be proved on a reasonable balance of probability, with the fact of fraud turning on a finding of whether the representation was done knowing it was not truth or reckless or careless as to its truth;
b. the proved fraud must be material;
c. the evidence of fraud must not have been known to the moving party at the time of the original proceeding;
d. the moving party applied reasonable or due diligence at the original hearing;
e. the motion to set aside must be brought without delay;
f. relief under Rule 59.06 is discretionary, thereby rendering the conduct of the moving party to be relevant.
[27] This is the test that I will apply to this motion.
(e) Does the alleged “false and misleading evidence” meet that test?
[28] Going through each aspect of the test, I will start with the question of whether there was a fraud by Metrolinx in the first place. Mr. Baichoo argued that there was, as follows:
• Metrolinx, he alleged, had purposefully or recklessly or carelessly failed to advise Unimac and the court at the time of time of the original motion on February 2, 2015 and at the beginning of the September 15, 2015 motion that Metrolinx had requisitioned the transfer of the Newmarket Action to Toronto on July 29, 2014 and that the Newmarket Action had in fact been transferred to Toronto on October 24, 2014.
• Metrolinx, he alleged, had purposefully or recklessly or carelessly created the “false and misleading perception” that the Newmarket Action remained in Newmarket by referring to it consistently as the “Newmarket Action” and by using the old Newmarket Action file number in its motion material for the September 15, 2015 motion.
• These actions by Metrolinx, according to Mr. Baichoo, led me to wrongfully conclude that the Newmarket Action remained in Newmarket.
[29] Was there fraud? I agree with Mr. Baichoo that I assumed throughout both motions that the location of the Newmarket Action remained in Newmarket. My mistaken assumption existed until Mr. Hersen advised me orally on September 15, 2015 that the location of the Newmarket Action had changed to Toronto in 2014. My mistaken assumption came from Metrolinx’s failure to disclose the exact location of the file and its use of the outdated Newmarket court file number.
[30] As to whether Metrolinx knowingly or recklessly or carelessly misguided me on this point, the most I can say is that, if this issue was material, Metrolinx may have been careless in not disclosing the location of the file to me. It did not disclose the location when it knew where the court file was, and in fact used the wrong court file number at the second motion when it knew that number was no longer being used. I will not, however, say more due to the issue of materiality, which I will now discuss.
[31] Was this arguably careless Metrolinx conduct material? This is the biggest issue, in my view. I do not find the location of the Newmarket Action to have been material to the outcome of either of my two orders for security for costs. There is no doubt that I found the existence of the Newmarket Action to be a factor in granting Metrolinx security for costs. As I pointed out to Mr. Baichoo, this is because the existence of a pending Unimac action “in Ontario” as against Metrolinx for the same relief is an expressed factor to be considered under Rule 56.01(1)(b). However, the exact location of this second action in Ontario was not material to that consideration.
[32] Mr. Baichoo relied upon the decision of the Divisional Court in Forestwood Co-operative Homes Inc. v. Pritz [2002] O.J. No. 550 (Div. Ct.). At paragraph 26 the Court stated that the moving party at first instance must disclose all facts “that would have been weighed or considered by the motions judge in deciding the issues, regardless of whether its disclosure would have changed the outcome.” Mr. Barnwell made the point that, because I “considered” the location of the Newmarket Action in my decisions, the location was material.
[33] I do not agree. First, I distinguish the Forestwood decision on the basis that the motion under appeal in that case was a motion without notice, to which a special, higher standard of disclosure applies; see Rule 39.01(6). The Metrolinx motions were on notice.
[34] Second, in reviewing my April 14, 2015 decision, I note that I did not “weigh or consider” the issue of the location of the Newmarket Action because I did not view that issue to be material. What I did weigh and consider were two things: whether there was in fact an unjustified second Unimac action against Metrolinx for the same relief, which I found there was; and whether Metrolinx should be faulted for not following the course of action followed by Colbra Power Inc. (“Cobra”) in implementing my change of venue order and taking the additional step of referring the Newmarket Action to me for management with the lien claims (including the Unimac Lien Action) in the face of Unimac’s appeal of the venue change order. Cobra is a subcontractor of Unimac on the Project, was sued by Unimac in Newmarket, obtained a venue change order from me transferring that action to Toronto, implemented that order in the face of a Unimac appeal of the venue change order, and obtained a reference of that action to me for management with the lien claims. What I found worthy of being “weighed” was whether Metrolinx should be faulted for not taking the additional step of getting a reference of the Newmarket Action to me as Cobra had done. This was important because of the decision of Master Birnbaum in Ingle v. Co-operators Group Ltd. [2007] O.J. No. 982 (Ont. Master) where she found that an earlier decision by her transferring an action to Toronto to be heard together with a duplicate action nullified the court’s concern about a multiplicity of proceedings under Rule 56.01(1)(b). This decision would have benefited Unimac on the motion if there had been evidence that either Unimac or Metrolinx had obtained a reference of the Newmarket Action to me for management and trial together with the Unimac Lien Action and the other lien actions. There was no such evidence, and I did not fault Metrolinx for not following Cobra’s course of action due to the Unimac appeal of my venue change order.
[35] Third, I note that this issue of multiplicity of proceeding was but one factor I considered in granting security for costs. What I considered to be at least as important, if not more important, in my April 14, 2015 decision was the evidence as to the insufficiency of Unimac’s assets in Ontario to pay Metrolinx’s costs. In my September 15, 2015 decision, there was the undisputed additional fact of an unpaid costs award in favour of Metrolinx. If Unimac had succeeded in addressing the court’s concern about an unjustified multiplicity of proceedings, the outcome of the motions would not have been different, in my view.
[36] I move on the issue of Unimac’s conduct. Did Unimac know or should it reasonably have known of Metrolinx’s impugned conduct at the time of the motions? I am prepared to concede that Unimac did not know about the transfer of the Newmarket Action before the motions. However, I agree with Metrolinx that Unimac should reasonably have known of the transfer of the Newmarket Action. Mr. Baichoo was present during the phone call with me and Metrolinx counsel on July 29, 2014 when the form of my venue change order was settled, on consent. He received a copy of the issued and entered order on November 11, 2014. He appears to have made no effort to determine whether my change of venue was implemented. No stay order was obtained. I do not find Unimac’s alleged reliance on the Metrolinx representations as to the location of the Newmarket Action to be reasonable in these circumstances.
[37] Mr. Baichoo relied upon the decision of Justice DiTomaso in Perdue v. Myers [2005] O.J. No. 3637 (S.C.J.). But that case concerned an alleged misrepresentation by silence in an agreement of purchase and sale and a mortgage as to the existence of a flooding condition on real estate. His Honour held in paragraph 30 that an opportunity to investigate was not sufficient to deprive a party of the right to rely upon such a representation. I do not find this reliance to be in any way comparable to the reliance Unimac alleges it had on Metrolinx as to the location of the Newmarket Action. Unimac knew of my venue change order, knew it had been finalized and was in effect, did not move to stay it, could have confirmed whether my order had been implemented with minimal effort (if that issue was in fact important to Unimac), and did not do so.
[38] As to the remainder of the factors to be considered, suffice it to say that I find that Unimac brought its motion in a timely way, and that its conduct was not otherwise impugned.
[39] In conclusion, for the reasons stated above, I do not find that Unimac has established that my security for costs orders should be set aside due to Metrolinx’s alleged “false and misleading evidence.”
(f) What is the test for setting aside an order due to new evidence?
[40] Mr. Baichoo referred me to the other aspect of Rule 59.06(2)(a) concerning two other pieces of evidence that he described as “new evidence.” This aspect of the rule authorizes the court to set aside an order where there are “facts arising or discovered after it [the order] was made.”
[41] As to the test for setting aside an order due to “new evidence,” Mr. Hersen pointed me to the decision of Justice O’Driscoll in Watts, Griffis and McQuat Ltd. v. Harrison Group of Companies, [2001] O.J. No. 3775 (S.C.J.) and in particular paragraph 19 where His Honour stated that the test was as follows:
i. the evidence must be such as to have an important influence on the decision;
ii. it must be apparently credible; and
iii. it must be demonstrated that the evidence could not have been obtained by reasonable diligence by the moving party prior to the original motion.
[42] Mr. Baichoo did not dispute that this was the test. In his factum, he simply added that there should be an added consideration concerning the challenged evidence of Charles Daley, namely that my assessment of the evidence of Mr. Daley in my August 17, 2015 decision on the Cobra motion for security for costs (Unimac – Management Corp. v. Cobra Power Inc., 2015 ONSC 5167) bound me as a matter of precedent to reverse my April 14, 2015 ruling that Mr. Daley’s evidence was credible. I denied Cobra’s motion for security for costs.
(g) Does the proffered new evidence meet this test?
[43] Mr. Baichoo argued in oral argument that the following amounted to the “new evidence”:
• In my April 14, 2015 decision, I found that the affidavit evidence of Charles Daley concerning a document entitled “ICBK Bank register” that he said he found in an on-line Unimac Dropbox Account was a significant factor in favour of my ruling that Metrolinx had met its onus to showing that there was “good reason to believe” that Unimac did not have sufficient assets in Ontario to pay Metrolinx’s costs. Mr. Daley stated in his affidavit that Unimac had granted him “access” to the Dropbox Account.
• In his responding affidavit in that motion, Leon Hui, the principal of Unimac, stated that Mr. Daley could not be believed and that Unimac had not posted any financial documents, such as the bank register, in the Dropbox Account. He implied that the register was a fabricated document. I found in my decision that I accepted the evidence of Mr. Daley on this point over that of Mr. Hui, particularly as Unimac chose not to cross-examine Mr. Daley.
• In this present motion, Unimac produced the portion of the transcript of the examination for discovery of the representative of Trenchline Construction Inc. (one of the lien claimants in the reference before me), John Romanovich, which concerned a document in Trenchline’s productions. This discovery happened on March 5, 2015, namely about a month after the Metrolinx motion for security for costs was argued. The document that Mr. Romanovich discussed was a July 12, 2010 email from Mr. Daley to Trenchline attaching an email that one, Keith Ly, sent to him, Charles Daley, on July 8, 2010 wherein there were seven “links” to specific aspects of the Dropbox Account. Mr. Romanovich confirmed that he got the tender form from these documents, that he used the construction drawings for the mechanical work to prepare the Trenchline tender, and that there were no other documents in “this Dropbox account.”
• Mr. Baichoo argued that this evidence from Mr. Romanovich, obtained after the motion, confirmed that the Dropbox Account contained only construction drawings and specifications, and not financial records, such as the ICBK bank register. Therefore, so the argument went, it confirmed the credibility of Mr. Hui, discounted the credibility of Mr. Daley on this point, and therefore amounted to “new evidence” justifying having my orders set aside.
[44] Would this evidence have been an important influence on my decision? As I pointed out to Mr. Baichoo in argument, the evidence of Mr. Romanovich does not necessarily contradict that of Mr. Daley. Mr. Romanovich was given access to seven links or aspects of the Dropbox Account through the Ly July 8, 2010 email. In his affidavit Mr. Daley makes no reference to the Ly July 8, 2010 email. He states that he was given “access” to the Dropbox Account. Mr. Hui in his responding affidavit also makes no reference to the Ly July 8, 2010 email. There could well have been many documents in the Dropbox Account, including financial documents, that Mr. Romanovich was not given access to but that Mr. Daley was given access to. Therefore, I do not find that this evidence would have been an important influence on my decision.
[45] Was Mr. Romanovick credible? I have no reason to doubt the sincerity and forthrightness of Mr. Romanvich. All I would say here, again, is that his evidence as it pertains to the existence or non-existence of the ICBK bank register is not what Unimac alleges.
[46] Could Unimac have obtained this evidence for the motion with due diligence? Mr. Hersen argued that Unimac could have obtained this evidence with due diligence since the document in question was in the Trenchline productions which were received by Unimac well before the motion on February 2, 2015. I do not have to make a determination of this point, given my ruling on the lack of significance of this evidence.
[47] I have determined that this is not “new evidence” that should overturn my ruling as to security for costs.
[48] In his factum, but not in his oral argument, Mr. Baichoo referred me to another item of “new evidence.” His factum refers to the evidence at the original motion on February 2, 2015 concerning the absence of Unimac corporate filings under the Corporate Information Act for six years prior to the motion. Mr. Hui asserted in cross-examination on his affidavit in that motion that these filings were current, but there was nothing to corroborate his statement. I gave significance to this lack of corroboration in my April 14, 2015 decision. In the present motion, Unimac proffers a “Corporation Document List” showing the present state of the Unimac filings under the Corporate Information Act. It shows that these prior six years of filings was brought current on February 25, 2015, namely after the hearing of the motion. Since this corroborating evidence came into existence after the hearing of the motion, it cannot be relevant to this issue.
[49] Finally, in his factum Mr. Baichoo raised my ruling dated August 17, 2015 in the motion by Cobra for security for costs as against Unimac. I denied the motion. A major reason for my denial of the motion was Cobra’s decision to file the same affidavit of Charles Daley that was filed by Metrolinx in its original security for costs motion. However, Cobra did so, not directly, but as an exhibit to the affidavit Cobra proffered in support of its motion. I found that the Daley affidavit amounted, therefore, to hearsay evidence on an important point and had to be discounted as a result. Mr. Baichoo now argued in his factum that I am constrained by the doctrine of stare decisis to overturn my original security for costs decisions concerning Metrolinx on account of my decision to discount the Daley affidavit in the Cobra motion. I do not agree. What transpired in relation to the Daley affidavit in the Cobra motion resulted from circumstances that were unique to that motion. I am not constrained as Mr. Baichoo suggests.
[50] I, therefore, do not find that there is “new evidence” to overturn my decisions on security for costs in favour of Metrolinx.
(h) Should I grant the motion because Metrolinx lacks “clean hands”?
[51] Unimac argues that, as motions for security for costs involve the exercise of judicial discretion, the original moving party, Metrolinx, had to come before the court with “clean hands,” and that it did not do so because of its alleged misrepresentations and its use of the allegedly incredible affidavit of Charles Daley. The issue of “clean hands” was raised by Unimac at the time of the original motion on February 2, 2015, and I dismissed it in my April 14, 2015 decision.
[52] I agree that the conduct of Metrolinx is a relevant issue for consideration. However, given my rulings on the other issues, I am not prepared to change my decision concerning “clean hands.” The most that I am prepared to state at this point is that Metrolinx may have been careless in its disclosure to Unimac and the court as to the location of the Newmarket Action file. While this is unfortunate, it does not merit the penalization urged by Unimac, as I have found that the issue of the file location was immaterial to the original motions and that Unimac could have in any event uncovered the issue with due diligence. I deny this submission as a result.
[53] I will, however, consider the conduct of Metrolinx in awarding costs.
V. CONCLUSION
[54] I, therefore, dismiss the Unimac motion in its entirety, subject to the issue of costs.
[55] At the end of the argument, I gave the parties three additional days to serve and file costs outlines. They have done so.
[56] Metrolinx submitted two costs outlines, one for this motion and one for the other motion that was brought on January 11, 2016 by Metrolinx before me for orders dismissing the Unimac Lien Action and the Other Actions due to the failure by Unimac to pay the ordered security for costs. Concerning this motion, the Unimac motion to vary, Metrolinx’s costs outline shows $48,539 for substantial indemnity costs, and $37,479.92 for partial indemnity costs.
[57] Unimac submitted one costs outline concerning not only these two motions, but also the costs of the original two Metrolinx motions for security for costs. Concerning the Unimac motion to vary and the Metrolinx motion to dismiss, Unimac costs outline shows globals figures, namely $19,791.72 in partial indemnity costs, $25,593.47 in substantial indemnity costs and $25,697.30 for actual costs.
[58] If costs cannot be agreed upon, those parties seeking costs of this motion must serve and file a written submission of no more than two pages concerning same on or before February 4, 2016. Any responding submissions must be in writing, cannot be longer than two pages and must be served and filed on or before February 18, 2016.
DATE: January 21, 2016 __________________________
MASTER C. WIEBE