SUPERIOR COURT OF JUSTICE - ONTARIO

Court File and Parties

COURT FILE NO.: CV-18-00603145-0000

DATE: 20200124

RE: Qun Zheng, Plaintiff

AND: G4S Secure Solutions (Canada) Ltd., Janet Pudan, Monique Buitron, Ketheesan Packiyanathan, Joe Caccamo, Defendants

BEFORE: Kimmel J.

COUNSEL: Qun Zheng, Plaintiff (self-represented)

Brian Wasyliw, for the Defendants

HEARD: January 6, 2020

ENDORSEMENT and reasons for decision

(APPeal from Master’s Decision)

[1] This is an appeal from the order of Master Josefo made September 13, 2019, dismissing the plaintiff’s/appellant’s motion for further and better particulars of certain allegations contained in the Statement of Defence dated March 7, 2019.

The Particulars Sought and Provided

[2] The appellant delivered a demand for particulars dated March 8, 2019 seeking detailed particulars in respect of 24 of the 37 paragraphs contained in the Statement of Defence. In his Notice of Motion dated May 4, 2019, the appellant narrowed down the particulars sought to the following six categories of allegations against him:

a. Alleged insubordinate behaviour;

b. Alleged breaches of the Occupational Health and Safety Act (OHSA) and G4S’s Workplace and Discrimination Policy;

c. Alleged complaints made by the individual defendants and other co-workers about the plaintiff in the context of the investigation;

d. The specific individuals who made each of the eight listed accusations in paragraph 15 of the Statement of Defence arising from the Group Complaint, and for further details of each of those accusations;

e. Alleged refusal to perform assigned floater shifts; and

f. Alleged attempts to undermine his manager, Ms. Rarnbaran, on a repeated basis.

[3] The initial response of the defendants was that no responses were required to the plaintiff’s demand for particulars. However, without prejudice to their initial position, before the motion was argued the defendants provided some further particulars by letter dated April 5, 2019 in the stated hope that this would satisfy the plaintiff and avoid the expense and delay of a motion. These responses, among other things:

a. identified the other co-workers who were said to be on the receiving end of the plaintiff’s conduct and those who were said to be the ones who complained or made accusations against him, either by name or by references to them contained in documents that had been provided to or received from the plaintiff in the course of the workplace investigation;

b. identified the plaintiff’s supervisors who provided him with instructions and requests that he is said to have disregarded and provided some further examples to supplement what was pleaded in the Statement of Defence;

c. made it clear that the conduct relied upon in support of the allegations for which particulars were sought was the conduct detailed in the Statement of Defence and the documents referenced in it, as supplemented by the particulars provided;

d. indicated that, at the time of the response, the details of the specific assigned floater shifts that the plaintiff is alleged to have refused to perform were not available.

[4] The pleadings disclose that there was both an internal and external investigation of the plaintiff’s complaints and of the complaints against him. The documents relating to these investigations and the factual details contained in them will be central to the case. At the motion before the master, the defendants advised that the defendants’ productions (to be exchanged after the close of pleadings) would include an outside investigation report, the contents of which had been previously communicated to the appellant, that, in the words of the master: “will put meat on the skeletal bones of a pleading”.

The Master’s Decision

[5] In an oral endorsement given on the day of the hearing of the motion (a transcript of which was later produced), the master found that:

a. Rule 25.06 and 25.07 govern;

b. Having read the Statement of Defence, I find it clear and with good specific detail;

c. In contrast with the pleadings in the cases of Mezin v. HMQ, 2016 ONSC 5171 relied on by the plaintiff, the Statement of Defence in this case is not vague;

d. The Statement of Defence complied with Rule 25.07(3) by setting forth the defendants’ own version of the facts of the defence with sufficient specificity, [including about his alleged insubordination and breaches of the OHSA and internal policies], in response to which the plaintiff may put in a reply;

e. Before discovery, the parties will also exchange productions, which for the defendants will include the outside investigation report. This will all put meat on the skeletal bones of a pleading;

f. Pleadings frame the case. They are a beginning, not an ending;

g. In this case, in context, I find the Statement of Defence meets the requirements of the rules; and

h. I thus do not grant particulars and I dismiss the motion.

[6] The master ordered the plaintiff to pay $500.00 in costs of the motion within 90 days.

The Issues Raised on Appeal and Analysis

[7] The appellant raises eight issues on this appeal. I will deal with each in turn, adopting the description of each used in the headings in the appellant’s factum.

Issue #1: What is the appropriate standard of review?

[8] The parties rely on different cases but agree on the standard of review for an appeal to a judge from a master’s interlocutory order. A reviewing judge will only interfere with a master’s decision if the master made an error of law (on a standard of “correctness”), misapprehended the evidence and made a “palpable and overriding error” (one that is plainly seen) on a question of fact or mixed fact and law, or exercised his or her discretion on the wrong principles. See Lin v. Rock, 2015 ONSC 1929 (SCJ), at para. 8, and Zeitoun et al v. The Economic Insurance Group, (2008) 2008 20996 (ON SCDC), 91 O.R. (3d) 131 (Div. Ct), at para. 40.

[9] The cases cited by both parties emphasize the importance of deference being afforded to the master’s findings in the interests of certainty, and that the onus is on the appellant. See Lin at paras. 9 and 10 and Zeitoun at para 26.

[10] An appeal is not an opportunity for the appellant to re-argue the case on the merits as it was presented to the master. See Lin, at para. 11.

[11] It is important to understand the nature of the decision under review on appeal when considering the standard of review to apply. On the motion under review in this case, determinations of law, fact and mixed fact and law had to be made before the court exercised its discretion about whether or not to order any of the requested particulars.

[12] The pleading for which particulars are sought must first be found to be in compliance with the rules, failing which it will be struck. In the case of Copland v. Commodore Business Machines Ltd., 1985 2190 (ON SC), 52 O.R. (2d) 586 (master) relied upon by the appellant, the court concluded that:

In my view, the minimum level of material fact disclosure for a statement of defence in a wrongful dismissal action, where the defendant employer relies on cause for the dismissal, is very high, and the pleading must contain sufficient detail so that the employee and the court can ascertain the exact nature of the questions to be tried, and so that the employee can meet the charge and respond in his reply accordingly.

[13] The court observed in the Copland case that:

Rule 25.06(1) mandates a minimum level of material fact disclosure and if this level is not reached, the remedy is not a motion for "particulars", but rather, a motion to strike out the pleading as irregular. It is only where the minimum level of material fact disclosure has been reached, that the pleading becomes regular. Thereafter, the discretionary remedy of "particulars" under rule 25.10 becomes available, if the party seeking particulars can qualify for the relief under the provisions of that rule.

Thus it becomes necessary, in any specific type of action, to determine the minimum level of material fact disclosure required for any particular pleading, in order to determine if the pleading is or is not regular. This is not an easy task by any means, and much common sense must be brought to bear in this endeavour. As well, the purpose and function of pleadings in modern litigation must be kept constantly in mind. It is often difficult to differentiate between, and articulate the difference between material facts, particulars, and evidence.

[14] A motion for particulars brought under Rule 25.10 is based on the moving party’s need for the requested particulars. The moving party must demonstrate the particulars are not within their knowledge. The moving party must require those particulars to respond to the pleading they allege is too general. See Mezin v. HMQ, 2016 ONSC 5171 at para. 38 (master) citing Reichmann v. Koplowitz, 2012 ONSC 5063 at para. 9 (master). Reichmann relies on Obonsawin v. Canada, 2001 28431 (ON SC), [2001] G.S.T.C. 26 (SCJ). The decision of whether or not to order particulars under Rule 25.10 is a discretionary one. See Mezin at para. 39.

Issue #2: Did the Master err in factual findings in light of all of the evidence presented and fail to give proper weight to the evidence before him?

[15] The appellant raises two criticisms of the master under this heading.

a) Failure to provide reasons for the conclusion that each of the six identified areas of deficiency were clearly pleaded in accordance with the governing Rules 25.06 and 25.07

[16] The appellant relies on the case of Barbieri v. Mastronardi, 2014 ONCA 416, at paras. 4, 22 and 23. He contends that the master’s reasons fail to provide the minimum insight into how the legal conclusion was reached that the Statement of Defence met the requirements of Rules 25.06 and 25.07. The appellant also complains that the master’s reasons do not identify which of the facts pleaded in the Statement of Defence relate to each of the narrowed down six issues on the motion. The appellant contents that the absence of these necessary findings and analysis from the master’s ruling impedes meaningful appellate review.

[17] I disagree. On a pleadings motion before a master it is not reasonable to expect the master to undertake a line by line review of the pleading in his or her reasons to support a conclusion that the pleading is not deficient. The master in this case indicated that he considered the relevant rules. His conclusion that the requirements of those rules were satisfied does not disclose any palpable or overriding errors.

[18] In his reasons pertaining to Rule 25.07, the master focused on the requirements under Rule 25.07 relevant to this pleading. First, under Rule 25.07(3) that the defendants must plead their own version of the facts in their Statement of Defence. Second, under Rule 25.07(4) that affirmative defences must be pleaded to avoid surprise. The master indicated that he had reviewed the pleading and was satisfied that these requirements had been met and that the defence was pleaded clearly and specifically. This finding of mixed fact and law by a master on a pleadings motion is deserving of deference by this court. There is no apparent palpable and overriding error in his conclusion.

[19] The master also indicated that he considered Rule 25.06 and that its requirements were met, although he did not analyze each of the sub-rules. The relevant considerations under that rule reflect the important balance between what should, and should not, be included in a pleading, summarized below:

(1) The requirement to plead material facts relied upon, but not evidence to prove them;

(2) The requirement to plead material facts supporting any conclusion of law;

(7) The requirement to plead as briefly as possible the effect of a document or purport of a conversation, if material, but not necessarily the precise words unless they are material;

(8) Where intent is alleged, the pleading shall contain full particulars, but knowledge may be alleged as a fact without pleading the circumstances from which it is to be inferred.

[20] The respondents contend that much of what the appellant seeks would offend these rules, in that he seeks evidence and positions or explanations that go beyond the material facts. The appellant specifically complains about the pleading of a conclusion of law (insubordination) and the lack of particulars of the intent that such a claim implicitly alleges under sub-rules 25.06(2) and (8). The respondents argued that these particulars are apparent from the rest of the pleading. For example, particulars of the allegation of insubordination can be found in paragraphs 12 to 14 of the Statement of Defence which were supplemented by the April 5, 2019 letter with further particulars.

[21] The same is said for the particulars of the alleged breaches of the Occupational Health and Safety Act and the G4S Workplace Harassment and Discrimination Policy, the details of which are outlined in the Statement of Defence as supplemented by the April 5, 2019 letter with further particulars. The appellant complains that the specific allegations made by each individual who complained are not broken down, but that begins to transcend into the evidence. The Statement of Defence is far from “bald”.

[22] The finding of mixed fact and law by the master that the Statement of Defence complies with the requirements of Rule 25.06 on a pleadings motion is deserving of deference by this court. There is no apparent palpable and overriding error in his conclusion.

(b) The master’s finding that defence counsel failed to provide particulars as promised

[23] Much time was spent on this issue on the motion and on the appeal. The master reviewed the March 8 and 25, 2019 correspondence from defence counsel alleged by the plaintiff to have contained the promise to provide the requested particulars. That correspondence indicates that counsel will respond. The master found that, by this correspondence, defence counsel did not promise to provide the particulars but only to respond, which he did do.

[24] Having reviewed the correspondence in the appeal record, I see no palpable or overriding error in the master’s finding that there was no promise by defence counsel to provide the particulars demanded and that defence counsel had only promised to respond.

[25] The appellant argues that he was confused by the distinction drawn between a promise to respond and a promise to provide particulars. In civil litigation, responses can take many forms, including a denial, refusal to do that which is asked or even an affirmative attack such as a motion to strike or counter-demand. It is unfortunate that the appellant misunderstood what was meant by a promise to respond but that does not justify interfering with the master’s finding, which is consistent with a plain reading of the correspondence.

Issue #3: Did the master err in his application of sub-rule 25.07(3) that is irrelevant to the particulars request, while ignoring all the other relevant sub-rules and failing to give reasons?

[26] The arguments raised by the appellant in connection with this issue are covered in the analysis of Issue #2(a), discussed above. Rule 25.07(3) is clearly relevant to the threshold consideration of whether or not the pleading is sufficient, which must be determined before the court considers whether or not to exercise its discretion and order particulars under Rule 25.10. See Copland passages noted above. The fact that the master did not provide detailed reasons in his oral endorsement for how each of the paragraphs of the Statement of Defence met the other requirements of Rules 25.06 and 25.07 does not mean he ignored them. He stated in his reasons that he had considered these rules.

[27] A further contention relied upon by the appellant is that the master hastily pre-judged the matter by focusing on the allegedly irrelevant sub-rule 25.07(3). This is alleged to have distracted him from considering the other requirements of Rules 25.06 and 25.07 and to overlook the bare and vague allegations about the narrowed down six issues that the appellant says are not within his knowledge and he needs particulars of in order to reply.

[28] This contention that the master pre-judged the motion is speculative and not consistent with the transcript of the hearing of the motion, which I have reviewed. The master indicated that he had read the pre-filed motion materials before coming into court. The transcript discloses that he listened to the plaintiff’s oral submissions, most of which repeated what was in his factum filed, before making his final ruling.

[29] There is no apparent palpable and overriding error in the master’s consideration of Rule 25.07(3) or his conclusion that the other requirements of the pleading rules had been met.

Issue #4: Did the Master err in his interpretation and application of part of sub-rule 25.07(4) as it relates to the surprise at the unspecifically pleaded bald allegations?

[30] Rule 25.07(4) requires a party to plead in their Statement of Defence any matter on which they intend to rely to defeat the claim which, if not specifically pleaded, might take the opposite party by surprise or raise an issue that has not been raised in the opposite party’s pleading. The plaintiff emphasized at the hearing of the motion and in his affidavit his surprise to learn of new causes for dismissal that were being relied upon by the defendants in their defence that had not been specified in his termination letter.

[31] This underscores the importance of this sub-rule and why these new allegations must be pleaded to avoid surprise later. I understand that to be what the master was referring to when he commented that the plaintiff’s surprise is not the issue on the motion for particulars. The master did not err in his interpretation and application of Rule 25.07(4).

Issue #5: Did the master surprisingly depart from well entrenched case law relating to the high level of material fact disclosure and the early stage at which particulars are required to be provided in a wrongful dismissal action, especially under the simplified procedure?

[32] The appellant contends that the “new” grounds for his dismissal, not specified in his termination letter, are lacking in specificity. These include allegations of insubordination and failure to perform assigned work as a floater. The starting point for the analysis of this issue is covered under Issue #2(a) above.

[33] The case law that the appellant relies on to support the need for a high level of material fact disclosure at the early stage of a wrongful dismissal case is summarized in Mezin, at para. 37 (relying on Copland). The appellant contends that the master failed to see the similarities between this case and the Mezin case, and that if anything, this was a more extreme case deserving of particulars than Mezin was.

[34] As already reviewed under issues 2(a) and 3 above, the master was satisfied that the pleadings met the requirements of Rules 25.06 and 25.07. He indicated that he had considered the Copland and Mezin[^1] cases. I have already found that there was no apparent palpable and overriding error in the master’s conclusion that the Statement of Defence meets the requirements of Rules 25.06 and 25.07. He considered the heightened pleadings requirements for wrongful dismissal cases in reaching this conclusion and it is deserving of deference. This is not a case of bald conclusions or allegations devoid of any material facts to support them.

[35] With the minimum level of fact disclosure having been satisfied, the court can then turn the question of whether particulars should be ordered under Rule 25.10. The appellant relies on his affidavit stating that he needs the particulars to formulate a meaningful reply to the statement of defence and that the requested particulars are beyond his knowledge. He contends the pleading is so bald that the need for particulars should be apparent (see Mezin, at para. 38). The master is not bound to accept the appellant’s assertions, even if contained in an affidavit, that the particulars requested are necessary for him to plead and are not within his knowledge.

[36] I have myself now reviewed the pleadings, the appellant’s narrowed down requests on the motion and the April 5, 2019 response of the defendants. It is apparent that, on the six narrowed down issues that were argued on the motion, the defendants have limited their allegations to matters that were disclosed to the plaintiff or that the plaintiff was directly involved in at the relevant times and would thus be within his knowledge, with two exceptions (discussed below).

[37] The master’s exercise of his discretion in his determination that particulars are not warranted in respect of the allegations that were demonstrated to be limited to matters that the plaintiff was made aware of at the relevant times is deserving of deference. There is nothing to indicate that he exercised his discretion on any wrong principles. He did not rely upon discoveries to substitute for particulars. This case is not akin to the cases of Metz v. Tremblay-Hall, 2006 34443 (Ont. S.C.), at paras. 10, 12, 33, 36, and 47 and Steiner v. Lindzon et al, (1977) 1976 760 (ON SC), 14 O.R. (2d) 122 (Ont. H.C.J.) relied upon by the appellant, in which the court was critical of deferring particulars found to be outside of the plaintiff’s knowledge to discoveries.

[38] The appellant also contends that because this is a simplified procedure case, there is a greater need for particulars, relying on Duncan v. Carrington Homes Ltd., 2007 17189 (Ont. S.C.), at paras. 5 and 15. This contention is misplaced. The Big Green Property case (relied upon by the appellant in his appeal of the costs award) makes the obvious point that Rule 76 does not specify a different standard for pleadings or particulars, even though there may be no (or in this case, limited) discoveries in which to gain further insight into the allegations.

[39] There were two exceptions identified before the master, of matters potentially outside of the appellant’s knowledge:

a. The details of the assigned floater shifts that the appellant is alleged to have refused to perform, which the respondents indicated were not available at the time of the response (although theoretically within the knowledge of the appellant, if the respondents cannot identify them it is not fair to assume that he can); and

b. The outside workplace investigation report, the results of which the respondents allege were communicated to the appellant at the time and a copy of which they have promised to provide as part of their productions.

[40] With respect to the first of these noted exceptions, the respondents have not refused to provide particulars about the specific floater shifts refused by the appellant but have simply indicated that they have nothing further available to provide at this time. The respondents will be obliged to provide this information if and when it becomes available, or they will suffer the consequence of not providing it if the particulars never become available or are not provided.

[41] With respect to the second of these exceptions concerning the outside workplace investigation report, this can be reasonably viewed as the evidence supporting the information previously communicated to the appellant about it that is the foundation for some of the allegations in the Statement of Defence. As was observed in the Copland case: “It is often difficult to differentiate between, and articulate the difference between material facts, particulars, and evidence.” The master determined that this was not a matter of particulars and there is no palpable and overriding error in the master’s decision.

[42] That said, given the defendants’ reliance upon the outside investigation report which is referred to in the particulars provided in the April 5, 2019 letter, and even though no request to inspect was formally made under Rule 30.04, I am going to order the defendants to produce that outside investigation report pursuant to Rule 30.04(5), now at the pleadings stage. That document may contain further particulars that would inform the plaintiff’s reply to the Statement of Defence that he might not remember even if he was told about them previously. The plaintiff should have it for completeness and clarity (see Mezin, at para. 22). It is a document forming part of the Statement of Defence, as supplemented by the particulars provided, that he is not in possession of and that is in the possession, control or power of the defendants.

Issue #6: Did the master err in law in failing to grant the particulars demanded under Rule 25.10 and in [not -sic] providing reasons for not making a Rule 25.10 order?

[43] A Rule 25.10 order is a discretionary order. The standard of review on appeal is not an error of law, but whether the master exercised his discretion on a wrong principle.

[44] The appellant contends that the master’s reasons fail to provide the minimum insight into the principles upon which the master exercised his discretion in reaching the conclusion, as he did, that no further particulars should be ordered. The absence of these necessary findings and analysis from his ruling is alleged to impede meaningful appellate review. See Barbieri at paras. 22-23.

[45] The respondents emphasize that parties are directed by Rule 25.06(1) not to plead the evidence that will prove a material fact. “Pleadings are the framework for the trial and they do not do the work of the trial.” See Parker v. Pfizer Canada Inc., 2011 ONSC 5169, at paras. 31, 32 and 38. They contend that the particulars sought are comprised of evidence and argument and go well beyond the material facts needed at this pleadings stage. This is consistent with the master’s reasons wherein he indicated that: “Pleadings frame the case. They are a beginning not an ending.”

[46] While the master’s reasons in his oral endorsement are not detailed, the appellant’s contentions in respect of this issue have been canvassed and rejected under the previous issues and need not be repeated. There is nothing to indicate that the master exercised his discretion on any wrong principle in declining to order the requested particulars.

Issue #7: Did the master err in law in making his concurrent costs order?

[47] Prior to the hearing of the motion, the plaintiff had delivered a costs outline dated June 3, 2019[^2] seeking costs of his motion in the amount of $22,695.99 inclusive of all fees and disbursements. He also delivered an offer to settle dated May 24, 2019 offering to settle (withdraw) the motion if the defendants provided the narrowed particulars requested in his notice of motion.

[48] The defendants’ costs outline dated September 13, 2019 detailed fees, disbursements and taxes on a partial indemnity scale of $6,045.00 (full indemnity costs of $8,400.00). They indicated that they were seeking $500.00 in costs of the motion. Counsel for the defendants argued that some costs should be awarded to reinforce that there are costs consequences in litigation, as he had explained to the plaintiff in earlier correspondence.

[49] The master found that counsel for the defendants did not ever promise to provide particulars, but rather promised an answer to the demand that was provided on April 5, 2019. The master found the forbearance of the defendants to be generous and fixed the defendants’ costs of the motion at the amount they requested of $500.00. He allowed the plaintiff 90 (instead of the usual 30) days in which to pay those costs.

[50] The appellant relies on three primary arguments in his effort to have the master’s costs award of $500.00 against him overturned.

[51] First, the appellant relies upon his earlier contention that defence counsel promised to provide the particulars and then refused to do so and only provided some of them, “without prejudice” to the position that no particulars were required. The appellant relies upon the case of Big Green Property Services Ltd. v. Guelph Campus Co-Operative, 2005 34577, 78 O.R. (3d) 775 (SCJ), in which the court declined to order costs in favour of a party who successfully resisted a motion for particulars after promising to provide them. The master’s finding in this case that there was no promise to provide the particulars but just a promise to respond (which has been analyzed earlier in respect of Issue #2(b)), is a full answer to this ground of the costs appeal.

[52] Second, the appellant contends that the master made an error in principle and was plainly wrong in awarding costs under Rule 57 because the costs outline of the defendants had not been delivered to the plaintiff in advance of the hearing of the motion and exceeded the three-page limit. The appellant relies upon Rule 57.01(6) and the practice direction that gives the court a discretion not to entertain cost submissions unless the parties have complied with this Rule. He also relies upon the allowance in the rule for written cost submissions following the hearing under Rule 57.01(7).

[53] While Rule 57.01(7) allows for written cost submissions following a hearing, it is not required.[^3] Further, Rule 57.01(6) does not specify that costs outlines must be delivered before the hearing, even though that is considered to be a good practice. The master’s decision to consider both sides’ costs outlines, hear their submissions and fix and order the payment of costs at the hearing of the motion is consistent with Rules 57.01 and 57.03 and the practice of the court. There is no apparent error in law or principle in the master’s decision to award modest costs and allow the plaintiff more than the usual 30 days within which to pay them.

[54] Third, the appellant argues that the master failed to take into account his Rule 49 offer to settle. The master had that offer before him and, after reviewing it, determined that it was not an “offer” of compromise because it sought the same narrowed down particulars that the plaintiff sought on his motion. That is a fair characterization of the offer. It might have been a compromise from the particulars requested originally but it offered no compromise from what was sought by the plaintiff on the motion. Further, the plaintiff did not obtain on the motion a judgment more favourable than the terms of his offer – to the contrary, the plaintiff did not obtain any of the relief he offered.

[55] I see no grounds upon which this court should interfere with the master’s discretionary costs award in favour of the defendants who were successful on the motion.

Issue #8: Did the master deny the plaintiff/appellant the benefit of the rules of natural justice and procedural fairness and did this raise a reasonable apprehension of bias?

[56] The appellant contends that the master pre-judged the motion, did not listen to his submissions during oral argument, accepted unreasonable arguments made by defence counsel, took adversarial positions favouring the defendants, and arbitrarily exercised his discretion in bad faith, and thus failed to give him an impartial hearing. During oral argument on the appeal the appellant also suggested that he was not given a fair hearing due to his accent. He contends that the master took advantage of him because he was self-represented. Allegations of this nature are very serious.

[57] Most of the specific examples of the alleged bias that the appellant has provided relate back to arguments made on this appeal which have been analyzed and rejected earlier in these reasons. The mere fact that the master accepted the submissions and positions of the respondents and their counsel over those of the appellant is not an indication of bias.

[58] I have reviewed the transcript of the oral hearing on the motion before the master and there is no indication of any denial of natural justice or procedural unfairness, nor of any reasonable apprehension of bias on the part of the master. Unlike in the cases that the appellant relies upon, there were no unwarranted negative comments made by the master or curtailment of the appellant’s arguments (see, for example, Stuart Budd & Sons Limited v. IFS Vehicle Distributors ULC, 2016 ONCA 60).

[59] Allegations of a reasonable apprehension of bias must be based on evidence and there is no evidence of such. I do not give effect to any of these arguments. There is nothing that leads me to conclude that the appellant did not receive a fair hearing on the motion.

Disposition of Appeal

[60] The appeal is dismissed.

[61] Pursuant to my authority under Rule 30.04(5), the defendants are directed to provide to the plaintiff within 15 days a copy of the outside investigation report of JMJ Workplace Investigation Law LLP. The plaintiff is directed to deliver his Reply within 20 days of receipt of that report.

[62] I have attempted to expedite my decision on this appeal to allow the parties to move forward with the adjudication of the issues raised in this action on its merits.

Costs of the Appeal

[63] The appellant seeks his costs of the appeal and the motion in an appropriate amount, to be determined by the court. He did not provide a costs outline on the appeal.

[64] The respondents provided a costs outline indicating their partial indemnity costs of the appeal, inclusive of all fees, disbursements and taxes, to be $3,630.90. They seek the same modest award of $500.00 in costs of the appeal from the appellant that they sought on the motion. They want the plaintiff to be reminded that there will continue to be cost consequences of his unsuccessful pursuit of motions and positions in this litigation. I believe that the plaintiff has learned from the costs award on the motion (which I decline to interfere with) that there are and will continue to be cost consequences for the court appearances and other steps in this litigation.

[65] The dismissal of the appeal would ordinarily entitle the defendants to some costs. However, I have on my own initiative, ordered the defendants to produce the outside investigation report of JMJ Workplace Investigation Law LLP so that the plaintiff can take it into account in his reply. In these circumstances, and in the exercise of my discretion under s. 131 of the Courts of Justice Act and Rule 57.01 of the Rules of Civil Procedure, I am not awarding either party any costs of this appeal.

Kimmel J.

Date: January 24, 2020

[^1]: His handwritten endorsement referred to in the case of Metz v. Tremblay-Hall, 2006 760 (SCJ), but he corrected this reference to be to Mezin in the transcript of his oral ruling before it was finalized.

[^2]: The motion was originally returnable on June 4, 2019 but not heard until September 13, 2019.

[^3]: The appellant made reference to Rule 57.01(5) during the appeal but that rule, and the requirement for delivery of a bill of costs, does not apply to an interlocutory proceeding.