Court File and Parties

COURT FILE NO.: 142-13 DATE: 2016/08/15 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: ALBERT E. POWELL, MONICA J. POWELL (Plaintiffs) And: SAMUEL JOHN SHIRLEY SENIOR, SAMUEL JOHN SHIRLEY JUNIOR, CATHY SHIRLEY, ST. PIERRE CONSTRUCTION (2000) INC., THOMSON MAHONEY DELOREY BARRISTER, SOLICITOR (Defendants)

BEFORE: Justice I. F. Leach

COUNSEL: The plaintiffs, self-representing Michael Saelhof, for the defendant Thomson Mahoney Delorey Barrister, Solicitor Michael Odumodu and James Spiroff, for the defendants Samuel John Shirley Senior, Samuel John Shirley Junior, Cathy Shirley and St. Pierre Construction (2000) Inc.

HEARD: In writing

COST ENDORSEMENT

Introduction

[1] My decision in relation to a motion to strike pleadings and/or summary judgment, brought herein by the defendant law firm, (Thomson Mahoney Delorey or “TMD”), was released on June 7, 2016. It has since been reported as Shirley v. Powell, [2016] O.J. No. 2964 (S.C.J.).

[2] At paragraphs 86 and 87 of my endorsement, I made provision for the tendering of written cost submissions if the parties were unable to reach an agreement on costs.

[3] I then initially received and considered the following material, relating to cost issues stemming from the motion:

• a brief containing the “Joint Submissions of the Plaintiffs and the Defendant, Thomson Mahoney Delorey Barrister, Solicitor”, (including an attached written consent executed by those parties), delivered on or about June 17, 2016;
• the joint written cost submissions of the remaining defendants, (the self-described “Shirley defendants”), attaching a bill of costs, all delivered on or about June 21, 2016;
• a brief of further written cost submissions from the plaintiffs, responding to those filed by the Shirley defendants, (and for some reason attaching copies of all the material described in the preceding two sub-paragraphs), delivered on or about June 23, 2016; and
• a short (one page) letter from counsel for the Shirley defendants, delivered on or about June 28, 2016, replying to the aforesaid responding cost submissions tendered by the plaintiffs.

[4] Before I was able to complete my review of those written submissions, and render a decision in relation to costs, there were further developments.

[5] In particular, on or about July 1, 2016, Mr Powell sent an email to the Woodstock trial co-ordinator, suggesting that I might have a conflict of interest preventing me from dealing with any further issues in this litigation. In that regard, the substantive portion of Mr Powell’s email read, (with all original punctuation, grammar and text), as follows:

I must advise your office, that I believe, Honourable Justice Leach, may be a conflict of interest, if hearing additional arguments in the matter Powell v. Shirleys, St. Pierre Construction (2000) Inc., et al., the remaining litigants may be prejudiced. Therefore, I would appreciate mindful consideration of the possibility of a conflict of interest, when scheduling hearing(s) in the above matter.

[6] The Woodstock trial co-ordinator brought the above email to my attention on July 5, 2016.

[7] In my view, the suggestion of a conflict of interest, (raised for the first time in Mr Powell’s email), needed to be clarified and addressed as a threshold matter, in case it had a bearing on my ability to deal with the outstanding cost ruling.

[8] That same day, (July 5, 2016), I therefore issued further written directions, conveyed to the parties through the trial co-ordinator, providing for the delivery of further written submissions focused on the alleged conflict of interest. I will not replicate my directions in detail here. However, they included:

• provision for Mr Powell’s delivery of a further written submission specifying precisely the nature of the alleged conflict of interest, as well as the suggested facts relied upon in that regard; and
• responding written submissions from the other parties.

[9] In an effort to avoid prolonging the matter further, my further directions specifically precluded the making of any further reply submissions regarding the conflict of interest issue.

[10] In the wake of those further directions, I now have received and reviewed the following additional material, relating to what Mr Powell initially characterized as a conflict of interest concern:

• a brief of written submissions and authorities, tendered by the plaintiffs through Mr Powell on or about July 7, 2016;
• responding written submissions from counsel for TMD, submitted on or about July 18, 2016; and
• responding written submissions from counsel for “the Shirley defendants”, also submitted on or about July 18, 2016.

[11] For the sake of completeness, I note that the further submissions outlined above did not constitute the entirety of further party communications with the court, following release of my substantive ruling on the summary judgment motion.

[12] In particular, on July 13, 2006, (following delivery of the plaintiff’s “conflict of interest” submissions, but prior to expiration of the time I had set for responding submissions from the defendants in that regard), Mr Powell sent a further email to the Woodstock trial co-ordinator, asking whether I was considering variations to my earlier ruling based on Mr Powell’s subsequent submissions “regarding conflict of interest”. That in turn prompted email correspondence to the court from counsel for TMD, expressing concern about Mr Powell sending his further email and inquiry before I had heard from the defendants in that regard.

[13] Through the Woodstock trial co-ordinator, I then conveyed a reminder about the provisions of Rule 1.09 of the Rules of Civil Procedure, which dictates that no party to a proceeding should be communicating out of court, directly or indirectly, with a judge unless all parties consent in advance to the out-of-court communication, or the court directs otherwise. I also indicated my view that Mr Powell’s further email was such an indirect communication, asking for my intentions about certain matters, in circumstances where there was no court direction permitting the communication or any apparent consent from all parties. In the circumstances, I therefore indicated that there would be no other response from me to the email.

Suggestions of conflict of interest and bias

[14] With that extended introduction, I turn next to what Mr Powell initially characterized, in his email of July 1, 2016, as a “conflict of interest” concern.

[15] However, the plaintiffs’ own written submission indicates that their relevant concern actually relates to something else. In particular, their submission states that the plaintiffs “may have mischaracterized, misused, or flippantly used the Term ‘Conflict’ whereas the proper term ought to have been Prejudice, Apprehension of Bias, bias, and….” (sic) [1] .

[16] The clarified nature of the plaintiffs’ concern underscores the necessity of my addressing it as a threshold concern. This is because bias or a reasonable apprehension of bias raises a jurisdictional issue, which may disqualify a judge from dealing with a matter. [2]

[17] Where any party takes the position that a reasonable apprehension of bias exists, the judge accordingly must carefully weigh the submission, and when in doubt should disqualify himself or herself. [3]

[18] Further applicable principles include the following:

• When it is alleged that a decision-maker is not impartial, the test that must be applied is whether the particular conduct gives rise to a reasonable apprehension of bias. Actual bias need not be demonstrated. [4]
• The applicable test contains a two-fold objective element: the person considering the alleged bias must be reasonable, and the apprehension of bias itself must also be reasonable in the circumstances of the case. Further, the reasonable person must be an informed person, with knowledge of all the relevant circumstances, including the traditions of integrity and impartiality that form a part of the background, and apprised also of the fact that impartiality is one of the duties the judges swear to uphold. [5]
• A real likelihood or probability of bias must be demonstrated. Mere suspicion is not enough. [6]
• A party raising such a concern has an obligation to provide the court with a record of the evidence they rely on in support of this serious allegation. [7]
• Moreover, the party alleging actual or apprehended bias has the onus of proving it on the balance of probabilities. It is presumed that judges will carry out their oath of impartiality. A high threshold of proof therefore is required, because a finding of bias calls into question not just the personal integrity of the judge but also the integrity of the entire administration of justice. [8]

[19] In support of their suggestion that the circumstances give rise to bias or a reasonable apprehension of bias, the plaintiffs seem to identify and rely upon the following six specified concerns:

i. They say that, during the course of my decision on the summary judgment motion, I improperly took notice of facts that came to my attention through another court proceeding, and/or information and issues that came before the court during one or more earlier hearings that have taken place in relation to this same litigation. ii. They say that a statement in paragraph 8 of my earlier endorsement, (noting that, by the time of the summary judgment motion’s return before me on November 19, 2016, the plaintiffs had failed to prepare, serve and file any material whatsoever responding to the moving party’s motion), “is a complete falsehood”. iii. They take issue with my characterization of certain plaintiff communications as “threats”. They say that is a “very strong term”, which I “liberally used” in my endorsement. iv. They say that, on their reading of legal authorities, it was wrong of me to dismiss the plaintiffs’ allegations of conspiracy prior to the completion of the discovery process. v. They take issue with my reference to the manner in which the defendant law firm was identified in the plaintiffs’ pleading, when there were no oral submissions made in that regard. vi. They assert that “no judge who previously heard the same matter or a related matter in another court may sit as one of the judges hearing the matter”.

[20] I will address these six concerns in turn.

[21] First, in the course of my decision on the summary judgment motion, I did indeed make reference to this court’s earlier decision in Top Lift Terminal Services Inc. v. Albert Powell et al., 2013 ONSC 1286 (S.C.J.), and to earlier events in the history of this current litigation, including an earlier motion before me on December 6, 2013, and the hearing which led to Justice Templeton’s case management order on October 1, 2015. In my view, however, no reasonable and informed person, familiar with the practices, procedures and traditions of our court, reasonably would regard my doing so as any indication of prejudice or bias. In particular:

• While I think the court generally is entitled to be cognizant of its own earlier decisions, I also think it should be emphasized that, in this particular case, it was not the findings of fact in the Top Lift litigation which had any immediate relevance to the motion for summary judgment. Rather, it was the existence of that reported decision, its discovery by Mr Delorey, and the role of that discovery in prompting further efforts to investigate the plaintiffs’ financial ability to close the underlying real estate transaction in preparation of a defence to anticipated litigation, which collectively formed a very relevant part of the factual matrix to be considered in determining certain aspects of the moving defendant’s motion for summary judgment. In particular, for the reasons outlined in my decision, those were relevant matters of fact, properly put forward through affidavit evidence filed in this litigation, which supported the moving defendant’s assertion of a competing claim or interest to be weighed against any relevant privacy interest of the plaintiffs, in assessing whether or not the plaintiffs’ “intrusion upon seclusion” claims presented any genuine issue requiring a trial.
• With some obvious exceptions, (such as earlier court filings sealed by order of the court, or confidential pre-trial discussions), the prior litigation history of a particular matter generally is not regarded as some kind of “black box” to be ignored by each judge who may be called upon to deal with one of many successive motions or hearings in advance of trial. To the contrary, the court is clearly entitled to monitor and control its own process, and to make decisions having proper regard to context. That clearly would not be possible, (particularly in a circuiting judicial region such as the southwest, where different judges regularly and necessarily are called upon to deal with incremental steps and issues that progressively arise in ongoing litigation), if each judge approaching a motion was obliged to approach each motion in a vacuum, deliberately blinding himself or herself to the contents of the court file, as well as all preceding steps taken and earlier court rulings made in the very same litigation. Without limiting the generality of the foregoing, ensuring compliance with Justice Templeton’s case management order self-evidently required reference to that earlier order and its provisions.

[22] Second, having regard to the particular facts and circumstances outlined at length in my decision, I believe I was accurate in stating that, at the time of the hearing before me on November 19, 2015, the plaintiffs had failed “to prepare, serve and file any material responding to TMD’s motion ”. [Emphasis added.] As noted in my decision, the plaintiffs apparently had prepared and served material in relation to an intended appeal of Justice Templeton’s case management order , although that material had never been filed with the court. Similarly, I noted that the plaintiffs apparently had prepared further material, focused on responding to TMD’s motion, which Mr Powell brought to the hearing before me. However, as Mr Powell acknowledged during that hearing, that particular material admittedly had never been served or filed with the court [9] , which was one of my expressed reasons for not allowing the plaintiffs to tender and rely upon it belatedly when the motion was being argued. For present purposes, I believed and still believe that the statements made in paragraph 8 of my earlier endorsement were accurate, and I think the making of an accurate statement self-evidently can and should not give rise to any reasonable apprehension of bias.

[23] Third, during the course of my earlier endorsement, I unquestionably characterized a number of plaintiff communications as “threats”. [10] The Concise Oxford English Dictionary defines “threat” as including “a statement of an intention to inflict injury, damage or other hostile action as retribution”, and “threaten” as including “make or express a threat to (someone) or to do (something)”. In the relevant instances identified in my earlier endorsement, Mr Powell repeatedly communicated, against the simultaneous backdrop of ongoing plaintiff assertions that the underlying real estate transaction required completion and/or that TMD needed to cease its involvement in the matter, express or implicit indications of an intention to initiate and pursue adversarial claims for compensatory damages if the defendants persisted in maintaining a contrary view or approach to the situation. In my view, having regard to the aforesaid dictionary definitions, characterization of those relevant plaintiff communications as “threats” and/or “threatening” was accurate and fair in the circumstances. In my view, it accordingly was not something that a reasonable and informed person could regard as something giving to any reasonable apprehension of bias or lack of impartiality.

[24] Fourth, in my view the plaintiffs’ stated concern about my decision to strike their conspiracy claim, (for the reasons set forth in my earlier endorsement), reflects disagreement with the substantive outcome of the motion rather than any meaningful independent suggestion that the outcome was tainted by any bias or reasonable apprehension of bias. In our judicial system, decisions regularly and necessarily have to be made in favour of one party or the other, based on a judge’s view of the facts and law. By itself, an adverse decision accordingly is not something capable of giving rise to a reasonable apprehension of bias.

[25] Fifth, in the course of my earlier endorsement [11] , I did indeed make incidental reference to the manner in which the moving defendant had been identified in the plaintiffs’ pleading, as well as the fact that the moving defendant formally had taken issue with the manner of that identification. I also readily agree that these were not matters addressed by the parties’ oral submissions during the hearing before me. However, I was made aware of the issue because of the parties’ respective pleadings, (and the moving defendant’s pleading in particular). The moving defendant obviously had to be referenced in some fashion during the course of my reasons, and I simply mentioned in passing that the method of identification used in my reasons was not intended to address or resolve that particular underlying substantive issue. I frankly fail to understand how my express confirmation that my necessary use of a particular mode of identification was not deciding an associated underlying issue “one way or the other”, (since it was not expressly raised or argued by the parties), could possibly instil any reasonable apprehension of bias in any reasonable and informed person.

[26] As for the sixth and last specified bias concern identified by the plaintiffs, they assert that “No judge who previously heard the same matter or a related matter in another court may sit as one of the judges hearing the matter”. [12] To my knowledge and recollection, before hearing and determining TMD’s motion pursuant to Rules 21 and 20 of the Rules of Civil Procedure, I had no prior involvement with the parties or their dispute apart from dealing with the plaintiffs’ earlier request for injunctive relief, which came before me on December 6, 2013. [13] That earlier hearing may have involved some of the same parties, but it was not the “same matter”, at least insofar as it raised and addressed quite different issues than the hearing before me on November 19, 2015. To the extent that the plaintiffs effectively are suggesting that the words “same matter” in the above quotation should be construed so as to prevent any judge from hearing and determining successive and different issues progressively raised in ongoing litigation between parties, on the basis that somehow inherently gives rise to conflict of interest concerns and/or a reasonable apprehension of bias, I respectfully disagree. Taken to its logical conclusion, acceptance of such a suggestion effectively would require a separate and different judge being made available to determine each and every interlocutory motion in an extended proceeding. As a practical matter, such an approach would quickly overwhelm available judicial resources, and frustrate the timely progress of litigation. Moreover, rejection of such a proposition is inherent in legislation such as Rule 37.15 of the Rules of Civil Procedure and s.34(1) of the Class Proceedings Act, 1992, S.O. 1992, c.6. In my view, such provisions reflect an understanding, (which a reasonable and informed person familiar with our judicial system similarly would understand), that judges generally are presumed to be capable of approaching successive and different issues between the same parties in an impartial manner. [14]

[27] For the reasons outlined above, I accordingly find that the plaintiffs have not discharged their burden of establishing a real likelihood or probability of bias, according to the two-fold test set forth in R. v. S.(R.D.), supra. In my view, a reasonable and informed person would not have a reasonable apprehension of bias in the circumstances.

[28] I therefore decline to recuse myself, as far as determination of the remaining cost issues is concerned. More generally, I find there is no basis for the suggestion, expressly or implicitly made by Mr Powell to the Woodstock trial co-ordinator, that I somehow am precluded or disqualified from hearing and deciding any further and different issues between the parties in this ongoing litigation. That should not be a relevant consideration when the Woodstock trial co-ordinator is scheduling hearings in this proceeding.

Cost issues

[29] In the absence of any demonstrated conflict of interest or reasonable apprehension of bias concern, I move on to consideration and determination of the remaining cost issues.

[30] In that regard, I begin with costs stemming from TMD’s motion.

[31] As between TMD and the plaintiffs, their joint submission indicates an agreement that the plaintiffs are to pay TMD the total sum of $25,000.00, for “all costs incurred by TMD in the defence of this matter, up to June 7, 2016, including all costs related to TMD’s motion to dismiss the Plaintiffs’ claims, heard on November 19, 2015 and decided in favour of TMD on June 7, 2016”.

[32] My endorsement expressly provided for party agreement in relation to costs, and I see no basis for departing from the agreement presented to me. An order therefore shall go directing the plaintiffs to pay the defendant identified in the pleadings as “Thomson Mahoney Delorey Barrister, Solicitor” its costs of the motion argued on November 19, 2015, and its costs of the action, fixed in the all-inclusive sum of $25,000.00.

[33] There was no similar agreement reached between the plaintiffs and remaining defendants, concerning costs associated with TMD’s motion.

[34] In that regard, the Shirley defendants request an order requiring the plaintiffs to pay them costs of that motion in the amount of $3,000.00. They rely on their bill of costs, (indicating actual fees, disbursements and taxes totaling $4,135.80), as well as considerations that include the following:

• They say that their cost request is proportionate to the cost resolution reached by agreement as between the plaintiffs and TMD.
• They emphasize that the plaintiffs were completely unsuccessful on the motion, and that the Shirley defendants should be viewed as successful in that regard, insofar as their pleading is consistent with the facts provided by TMD, which in turn were consistent with my ruling.
• They say that the plaintiffs’ decision to involve TMD in these proceedings has complicated and lengthened the proceeding from the perspective of the Shirley defendants, such that they should be entitled to reimbursement for their added expense.
• They say that they were required to prepare for the motion by reviewing the material filed, and to attend at the hearing, because a Rule 20 summary judgment motion of the Rules of Civil Procedure is akin to a trial, raising the possibility that they might have been adversely affected by adverse factual findings made in the course of my ruling. They emphasize that the unpredictable risk of such a possibility was accentuated in this case by the plaintiffs’ unsuccessful requests at the hearing to file previously unserved written material and present viva voce testimony.

[35] For their part, the plaintiffs say the Shirley defendants should receive no costs, in relation to the motion. In that regard, they rely on considerations that include the following:

• They say formal defects in the written submissions, (such as the absence of a back sheet), should suffice to preclude cost recovery.
• They rely upon statements about much more modest cost expectations, said to have been made by counsel for the Shirley defendants, during a conference call discussion between defence counsel and Mr Powell that took place on or about June 9, 2016, to address the matter of costs.
• They take issue with counsel for the Shirley defendants being permitted to file a brief of material at the hearing, without any prior service upon the plaintiffs.
• They emphasize that Justice Templeton’s case management order did not compel the Shirley defendants to participate in relation to TMD’s motion, and that counsel for the Shirley defendants attended at the hearing of that motion on a watching brief, formally taking no position and making no substantive submissions in that regard. They accordingly deny the suggestion that the Shirley defendants were “successful”, in relation to the motion.

[36] Pursuant to section 131 of the Courts of Justice Act, R.S.O. 1990, c.C.43, as amended, and subject to the provisions of an Act or rules of court, “the costs of and incidental to a proceeding or a step in a proceeding are in the discretion of the court, and the court may determine by whom and to what extent the costs shall be paid”.

[37] This is supplemented by the provisions of Rule 57.01 of the Rules of Civil Procedure, subsection (1) of which lists a broad range of factors the court may consider when exercising its discretion to award costs pursuant to section 131.

[38] Our courts repeatedly have emphasized that cost awards must not be a simple mechanical or mathematical calculation; e.g., focused merely on details of time spent multiplied by hourly rates, or a tabulation of disbursements actually incurred.

[39] Rather, all cost claims are subject to the “overriding principle of reasonableness”, as applied to the factual matrix of the case, pursuant to the ultimate “cross check” required by such authorities as Boucher, Moon and Coldmatic Refrigeration of Canada Ltd. v. Leveltek Processing LLC (2005), 75 O.R. (3d) 638 (C.A.), and Anderson v. St Jude Medical Inc. (2006), 264 D.L.R. (4th) 557 (Ont.Div.Ct.).

[40] The overall goal is to award costs in an amount that is “fair and reasonable for the unsuccessful party to pay in a particular proceeding”, rather than a sum tailored to an exact measure of the actual costs of a successful litigant. See Boucher v. Public Accountants Council for the Province of Ontario, [2004] O.J. No. 2634 (C.A.), at paragraph 26, and Zesta Engineering Ltd. v. Cloutier, [2002] O.J. no. 4495 (C.A.), at paragraph 4.

[41] In arriving at a determination of a cost award that is “fair and reasonable” in this particular case, as between the plaintiffs and the Shirley defendants, my considerations include but are not limited to the following:

• I place no weight on comparisons between the Shirley defendants’ cost request and the costs agreed upon between the plaintiffs and TMD. Parties reach negotiated agreements and resolutions for all manner of reasons, and such outcomes have no necessary correlation with what a court might objectively have determined to be appropriate in the absence of party agreement.
• I also place no weight whatsoever on what the plaintiffs perceive to be formal defects in the written cost submissions filed by the Shirley defendants.
• I similarly place no weight whatsoever on the statements relating to cost expectations said to have been made by counsel for the Shirley defendants during the aforesaid conference call. It seems to me that the conference call discussions inherently were of a without prejudice nature, and the evidence in that regard falls far short of confirming any formal or final cost agreement reached between the plaintiffs and the Shirley defendants. In the circumstances, the plaintiffs should not have made reference to the discussions in their cost submissions.
• In my view, the “late” filing of the brief tendered by counsel for the Shirley defendants at the hearing of the motion, without prior service upon the plaintiffs, is of no relevance to this cost determination. As noted in the sixth footnote to my endorsement of June 7, 2016, the brief in question contained nothing but an organized compilation of pleadings, endorsements, orders and notices already in the court file.
• I nevertheless do place considerable weight on the fact that the Shirley defendants attended at the motion on a watching brief, taking no formal position in relation to the motion, and making no substantive submissions in that regard. In my view, that has a bearing on numerous factors outlined in Rule 57.01 of the Rules of Civil Procedure. For example:
  • I find it difficult to accept that the Shirley defendants were “successful” in relation to a motion in which they formally did not participate and took no position. In my view, a disposition consistent with their pleading and passive position is not sufficient to constitute “success” on the motion, in the sense required. In that regard, it also must be remembered that the focus of the motion was whether the claims against TMD had been properly pleaded, and whether or not there were genuine issues requiring trial in relation to the claims against TMD . Determination of the fundamental issues at the heart of the motion involved no real success on the part of the Shirley defendants, and the plaintiffs similarly were not “unsuccessful” vis-à-vis the Shirley defendants as far as the issues determined by the motion were concerned.
  • I similarly find it difficult to accept that a party should be entitled to indemnification for the costs of a motion in which it formally indicated non-participation. In my view, this is tied to the matter of reasonable expectations, highlighted by Rule 57.01(0.b). In that regard, I do not think an unsuccessful party on a summary judgment motion generally would have any reasonable expectation of paying costs to a party that formally took no position in relation to the motion, and which accordingly and understandably was not perceived as an adversary in relation to the issues raised by the motion when it was being argued. Certainly, the Shirley defendants served and filed no material putting the plaintiffs on notice that the Shirley defendants would be seeking costs of the motion if the plaintiffs were unsuccessful. Moreover, had the plaintiffs been successful in resisting TMD’s motion pursuant to Rule 21 and Rule 20 of the Rules of Civil Procedure, I have little doubt that the Shirley defendants would have resisted any claim for costs against them by the plaintiffs; e.g., by relying on their formal indication that they were taking no position in relation to the motion. Exposure to adverse costs associated with a motion should not be a one way street.
  • More broadly, and under the rubric of “any other matter relevant to the question of costs” to be considered pursuant to Rule 57.01(i), I generally think the courts should be wary of awarding costs to non-participating parties on a summary judgment motion, on the basis suggested by the Shirley defendants; i.e., that the process is akin to a trial, in respect of which the court may make findings of fact somehow detrimental to the non-participating party. In my view, such an approach pays insufficient regard to the subtle but important distinction between the substantive matters to be resolved at a trial, and the more narrow question of whether or not there are genuine issues requiring a trial vis-à-vis a certain claim or defence. It also has the potential to discourage legitimate resort to Rule 20 of the Rules of Civil Procedure in multi-party litigation, in situations where a plaintiff or defendant may have reasonable grounds to ask for the court for a determination as to whether there are genuine issues requiring a trial vis-à-vis one particular opponent, but faces the inhibiting prospect of adverse cost claims from numerous supposedly non-participating other parties if the motion is unsuccessful. Such a development would seem to run counter to the general thrust of the Supreme Court of Canada’s decision in Hyrniak v. Mauldin, 2014 SCC 7, [2014] 1 S.C.R. 87, which encouraged the use of Ontario’s summary judgment rule to resolve cases in an expeditious manner, provided that can achieve a fair and just resolution. I also question whether a party, having chosen to maintain a watching brief and file no evidentiary material in relation to a motion, realistically could hope to have much bearing in any event on any incidental factual observations or findings made by a court during the course of a summary judgment motion, should it decide to “weigh in” at the last moment. While having the possible benefit of additional counsel submissions in that regard, the court still would be obliged to make any necessary factual determinations based on the fixed evidence before it.
• Finally, to the extent that the plaintiffs’ decision to involve TMD in this litigation may have complicated and extended the proceeding, with corresponding additional expense to the Shirley defendants, that is an argument still capable of being pursued by those defendants in the event they ultimately are successful in the litigation, and seek costs of the action.

[42] On the whole, I take the view that no costs of the TMD motion should be awarded to the Shirley defendants, in the particular circumstances of this case.

[43] That leaves, for consideration, the request made by counsel for TMD for an additional $1,000.00 cost award, payable to it by the plaintiffs, for having to deal with the plaintiffs’ suggestion of conflict of interest and/or bias. (No similar request for costs was advanced by the Shirley defendants.)

[44] I have no doubt that TMD incurred additional legal expense to address the further concerns raised by the plaintiffs. Moreover, my ruling herein, addressing those concerns, is certainly consistent with the position expressed by TMD.

[45] However, my further directions did not invite or request further cost submissions in that regard, and expressly precluded a right of reply by the plaintiffs. In the result, the plaintiffs effectively have had no opportunity to consider or address any suggestion of adverse cost awards relating to this additional step in the proceeding.

[46] In the circumstances, while I have some sympathy for TMD’s request, I think it would be unfair to award costs without hearing from the plaintiffs, but also think it undesirable to prolong this already extended and costly exercise any further.

[47] Pursuant to my discretion pursuant to s.131 of the Courts of Justice Act, supra, I accordingly decline to award any costs in relation to resolution of the plaintiffs’ suggestions of conflict of interest and/or a reasonable apprehension of bias.

“Justice I. F. Leach” Justice I F. Leach Date: August 15, 2016

Footnotes

[1] The quoted passage, in its original form, ends mid-sentence with an ellipsis. As the plaintiffs themselves fail to identify anything whatsoever as a suggested conflict of interest, I henceforth will focus on their bias-related concerns.

[2] See Fuerst and Sanderson, Ontario Courtroom Procedure (3d ed.), at p.431.

[3] See Benedict v. Ontario, [2000] O.J. No. 3760 (C.A.), at paragraph 35.

[4] See R. v. S.(R.D.), [1997] S.C.J. No. 84, at paragraph 109.

[5] Ibid., at paragraph 111.

[6] Ibid., at paragraph 112.

[7] R. v. Fell, 2009 ONCA 551, [2009] O.J. No. 2828 (C.A.).

[8] Marchand v. Public General Hospital Society of Chatham, [2000] O.J. No. 4428 (C.A.), leave to appeal refused [2001] S.C.C.A. No. 66.

[9] This is capable of confirmation through reference to the court file, and any transcript of the hearing before me.

[10] See, for example, the third sub-paragraph starting on page 9, the third sub-paragraph starting on page 10, the first sub-paragraph starting on page 11, the first paragraph starting on page 12, the third paragraph starting on page 13, and the first paragraph starting on page 14.

[11] See paragraph one of my endorsement of June 6, 2016, and its corresponding footnote.

[12] As authority for the proposition, the plaintiffs cite “Halsbury Law of Canada, First Edition ‘Judges and Courts’ Page 163, HJC-37(6), (Informal Procedure) HJC-49 Conflicts of Interest”.

[13] I expressly mentioned this in footnote 10 of my endorsement released on June 7, 2016.

[14] The present situation is far removed from ones where a judge is asked to retry a case he or she previously decided prior to a successful appeal, or to deal with appellate proceedings stemming from his or her own underlying decision. In such cases, (which seem the more likely focus of the Halsbury quotation cited by the plaintiffs), there clearly would be grounds for a reasonable apprehension of bias.