Court File and Parties

COURT FILE NO.: CV-15-543545 DATE: 20180911 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Mohamed Abdullahi, Nuro Mohamud and Ahmed Ismail, Appellant AND: Her Majesty the Queen in Right of Ontario, as represented by the Ministry of Transportation for the Province of Ontario, The Corporation of the County of Dufferin, Integrated Maintenance & Operations Services Inc and Martin Tobler, Respondents

BEFORE: H. McArthur J.

COUNSEL: B. Sze, Counsel for the Appellant, Mohamed Abdullahi A. Brown, Counsel for the Respondent, Martin Tobler

HEARD: September 10, 2018

Endorsement

Introduction

[1] The Appellant, Mohamed Abdullahi, seeks leave to appeal the cost award of Master Graham dated July 3, 2018, in which he declined to award costs to either side. Mr. Abdullahi argues that the Master erred in principle and made an order on costs that was clearly wrong. He also seeks leave to tender fresh evidence, arguing that this evidence would substantially affect the assessment of what would amount to appropriate costs.

[2] Mr. Tobler argues that leave to appeal should not be granted, but that if it is, the appeal should be denied as the Master made no error. He also opposes the admission of the proposed fresh evidence.

[3] For the reasons that are set out below, I have determined that leave to adduce fresh evidence should be denied. I have also determined that leave to appeal should be denied. Thus, the appeal must be dismissed.

[4] At the outset, I will very briefly address the facts. I will then turn to my analysis of the issues raised.

Brief Outline of the Facts

[5] Mr. Abdullahi and Mr. Tobler were involved in a car accident. Mr. Abdullahi started an action against Mr. Tobler and others in the Superior Court of Justice in Toronto for injuries allegedly sustained in the accident.

[6] Mr. Tobler served and filed a Statement of Defence and Crossclaim in which he pleaded that Mr. Abdullahi’s action was statute barred pursuant to s. 28 of the Workplace Safety and Insurance Act, 1997, S.O. 1997, c. 16, Sched. A (WSIA).

[7] On May 10, 2017, Mr. Abdullahi participated in an Examination for Discovery. A transcript of his evidence was prepared.

[8] On February 1, 2018, Mr. Tobler served Mr. Abdullahi with a copy of his Section 31(1) Application to the Workplace Safety and Insurance Appeals Tribunal (WSIAT), which sought a declaration that, pursuant to s. 28 of the WSIA, Mr. Abdullahi‘s right to commence an action in respect of the accident was not taken away.

[9] A copy of the transcript was included as an exhibit to the s. 31(1) application. The transcript contained information about Mr. Abdullahi’s employment and what he understood he was doing on the day of his accident. The transcript also contained personal and sensitive information. Mr Abdullahi was opposed to the transcript being used on the grounds that its use would violate the deemed undertaking rule.

[10] Pursuant to s. 6.2 of the WSIAT Practice Direction: Right to Sue Applications, an applicant is required to provide relevant portions of transcripts from Examinations for Discovery. Section 6.1 provides that materials must be served on all interested parties to the application.

[11] Correspondence from WSIAT dated June 13, 2018 noted that the materials had been served on Mr. Abdullahi’s employer, Hertz Canada. This letter also stated that RBC Insurance may be considered an interested party and requested that RBC be served. This letter was cc’d to counsel for Mr. Abdullahi.

[12] On June 22, 2018, WSIAT sent a letter to counsel for Mr. Abdullahi that noted that counsel objected to the transcript being served on RBC Insurance. The letter went on to explain, however, the import of sections 6.1 and 6.2 of the WSIAT Practice Direction: Right to Sue Applications. The letter also included a copy of Decision No, 350/101, which explained that the deemed undertaking rule does not preclude the use of evidence obtained through the discovery process in a right to sue application pertaining to the same civil case.

[13] On July 3, 2018, Mr. Tobler brought a motion before Master Graham seeking an order that Rule 30.01(3) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, also known as the deemed undertaking rule, does not apply to the evidence given by Mr. Abdullahi for the purposes of Mr. Tobler’s Right to Sue Application before the WSIAT.

[14] During submissions, Master Graham was made aware that the transcript may have been provided to Hertz and RBC Insurance. Despite that, it was never clarified with precision either Hertz or RBC Insurance had the transcripts. As discovered by Mr. Abdullahi after the motion, the transcripts had been provided to Hertz and RBC Insurance.

[15] Ultimately on July 3 the parties reached an agreement that was endorsed by the Master. The agreement was that Mr. Abdullahi would consent to the use of an agreed statement of fact for the purpose of the s. 31(1) application, or be amenable to consent to the use of excerpts from the transcript for the purpose of the s. 31(1) application. Master Graham further held that if the parties could not resolve the details of the agreement between themselves, they were to re-appear before him for a ruling.

[16] On the issue of costs, Master Graham ruled as follows:

The defendant brought this motion as a result of an objection raised by plaintiff’s counsel to the use of the plaintiff’s discovery transcript for the WSIAT application. However, part of the objection was well-founded; as acknowledged by the defendant today, there was no need for the entire transcript to have been filed where it was only a limited portion of it that contained evidence relevant to the WSIAT issue. Further, although there was some justification for the defendant bringing the motion, the plaintiff did propose a resolution on June 19, 2018 which is one possible basis for the resolution agreed to, i.e. an agreed statement of facts.

The defendant’s costs for preparing the materials are offset by the plaintiff’s legitimate opposition to the filing of the entire transcript and by the defendant’s failure to respond to the proposal of a resolution based on an agreed statement of facts. In these circumstances, there shall be no costs payable on their motion to date.

Analysis

Issue One: Should Mr. Abdullahi be permitted to tender fresh evidence?

[17] Mr. Abdullahi wishes to tender fresh evidence establishing that his transcript was also provided to RBC Insurance and Hertz. He argues that if this information had been before Master Graham, then he would have ruled differently on the costs.

[18] The test for the admission of fresh evidence has been articulated in two ways. The first was set out in R. v. Palmer, [1980] 1 S.C.R. 759. The Palmer test has four parts:

1. The evidence could not, through due diligence, have been adduced at trial;
2. The evidence is relevant in that it bears on a decisive or potentially decisive issue;
3. The evidence is credible; and
4. The evidence, if believed and taken with the other evidence, could be expected to affect the result.

[19] The second was set out in Sengmueller v. Sengmueller (1994), 17 O.R. (3d) 208 (C.A.). Under this test, the party seeking to introduce the fresh evidence must show:

(1) The evidence is credible; (2) The evidence could not have been obtained by the exercise of reasonable diligence before the trial; and (3) The evidence, if admitted, will likely be conclusive of an issue in the appeal.

[20] In Korea Data Systems Co. v. Chiang, 2009 ONCA 3, at para. 77, the court noted that the two tests were quite similar, although the last branch of the Sengmueller test may be more stringent than the last branch of the Palmer test.

[21] In my view, on either test, Mr. Abdullahi’s application to introduce fresh evidence must fail for two reasons. First, there was ample information at the time that the motion was heard to suggest that the transcripts had been provided to RBC Insurance and Hertz because they were parties of interest. The WSIAT letters dated June 13 and June 22 suggested that the transcript had been forwarded to both. To the extent that there was any uncertainty about this on the part of counsel for Mr. Abdullahi, it could have been easily cleared up with a few simple questions. Thus, in my view the appellant has failed to establish that he was duly diligent.

[22] Second, applying the Sengmueller test, in my view the evidence if admitted will not likely be conclusive of an issue in the appeal. The Master did not ultimately rule on the issue of whether the deemed undertaking rule applied. If he had, Decision No, 350/101, suggests that Mr. Tobler had a strong argument in support of his position that Rule 30.1.01(3) did not preclude the use of evidence obtained through the discovery process in a right to sue application pertaining to the same civil case.

[23] Moreover, the letters from WSIAT dated June 13 and June 22, in conjunction with ss. 6.1 and 6.2 of the WSIAT Practice Direction: Right to Sue Applications, explained why the transcript had been provided to Hertz and RBC Insurance. In light of this, and given the issues that were before the Master, the fact that the transcript had also been sent to RBC Insurance and Hertz would not likely be conclusive on the issue of costs.

[24] Moreover, even applying the less stringent Palmer test, in my view the same result flows. That is, if Master Graham had learned that at the request of WSIAT the transcripts had been forwarded to RBC Insurance and Hertz, that could not be expected to have affected the result; he would have reached the same conclusion on costs.

Issue Two: Should Mr. Abdullahi be granted leave to appeal the cost order of Master Graham?

[25] Pursuant to s. 133(b) of the Courts of Justice Act, R.S.O. 1990, C. C-43, appeals in which the sole issue is costs may only proceed with leave of the court.

[26] The test for leave is not an easy one to meet. As noted in McNaughton Automotive Ltd. v. Co-operators General Insurance Co., 2008 ONCA 597, at para. 24 and 25, leave should be granted “sparingly” and only in cases where the court finds “strong grounds” of appeal.

[27] In my view, Mr. Abdullahi has failed to establish that he has strong grounds of appeal.

[28] As noted by Arbour J, in Hamilton v. Open Window Bakery Ltd, 2004 SCC 9, [2004] 1 S.C.R. 303, at para, 27:

A court should set aside a costs award on appeal only if the trial judge has made an error in principle or if the costs award is plainly wrong.

[29] Here, the reasons of Master Graham reveal no error in principle. The issue before him was whether Mr. Tobler was correct in asserting that since the transcripts were being used in a Right to Sue Application at WSIAT, that the deemed undertaking rule did not apply. An agreement was reached, such that the Master never ruled on this point.

[30] That said, the agreement reached suggests that to some extent that the Master accepted Mr. Tobler’s argument. The agreement stipulated that Mr. Tobler would be permitted to file excerpts from the transcripts, or, an agreed statement of fact in relation to aspects of the transcripts. If the deemed undertaking rule applied to the WSIAT hearing, it is difficult to see why this agreement would be reached.

[31] On the other hand, the Master also seemed to agree that there were parts of the transcript that were irrelevant and should not be included. The agreement reached dealt with that issue.

[32] Looking at the reasons of the Master, it seems clear that he found that neither side had fully prevailed on the motion. That finding was reasonably open to him and it is not clearly wrong. Nor does it display any error in principle.

[33] Mr. Abdullahi argues that the Master erred by not properly applying the decision of Gleadow v. Nomura Canada Inc., [1996] O.J. No. 668 (Gen.Div.). I agree with the Respondent, however, that Gleadow is highly distinguishable from the present case. There is nothing in that case which militates towards a finding that Master Graham erred in principle or was clearly wrong in refusing to make a cost order against either party.

[34] Master Graham found that that neither side was fully successful. Mr. Tobler was justified in bringing the motion, but Mr. Abdullahi had valid concerns with all parts of the transcript being used. A compromise was reached so that the interests of both parties were met. Despite the deemed undertaking rule, Mr. Tobler was able to use the transcript, but only certain parts.

[35] Given this, the decision to not award costs to either side is reasonable. I cannot find that there are strong grounds of appeal. As a result, leave to appeal is denied.

Conclusion

[36] The application to adduce fresh evidence is denied for two reasons. First, Mr. Abdullahi has not shown that he was duly diligent. Second, the evidence would not affect the result on the cost order.

[37] Further, the application for leave to appeal is denied as there are not strong grounds of appeal. The Master’s decision not to award costs to either side was reasonable. It displayed no error in principle and was not clearly wrong in law.

Costs

[38] Mr. Tobler was entirely successful in this appeal. He is seeking costs of $8,784.71 inclusive of disbursements and HST.

[39] Pursuant to the s. 131(1) of the Courts of Justice Act, the Court has a broad discretion when determining the issue of costs. Rule 57.01(1) sets out the factors to be considered by the Court when determining the issue of costs.

[40] The overall objective of fixing costs is to fix an amount that is fair and reasonable for the unsuccessful party to pay in the particular circumstances, rather than an amount fixed by actual costs incurred by the successful litigant: Boucher v. Public Accountants Counsel for Ontario, [2004] O.J. No. 2634 (Ont. C.A.).

[41] In determining the costs issue in this matter, I have considered the factors set out in Rule 57.01(1), as well as the principle of proportionality set out in Rule 1.04(1.1). I keep in mind that the Court should seek to balance the indemnity principle with the fundamental objective of access to justice.

[42] In my view, the costs being sought are fair and reasonable. The hours and rates seem reasonable having regard the complexity of the matter and the issues involved. I note that the costs are less than those claimed by Mr. Abdullahi, which amounted to $12,033.12 for the appeal. This is some support for the view that the costs sought by Mr. Tobler are reasonable and would have been anticipated by Mr. Abdullahi.

[43] Thus, Mr. Abdullahi is ordered to pay costs to Mr. Tobler in the amount of $8,784.71, inclusive of disbursements and HST, within 60 days of today’s date.

Justice Heather McArthur Date: September 11, 2018