Court File and Parties

COURT FILE NO.: CV-23-696356 DATE: 20241206 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Richard Grey and Tracy Grey Applicants/Responding Parties

AND:

Ontario Motor Vehicle Industry Council Respondent/Moving Party

BEFORE: Justice Pollak

COUNSEL: Walter Stasyshyn, for the Applicants/Responding Parties Jordan Glick and Sarah O’Neill, Respondent/Moving Party

HEARD: November 19, 2024

Endorsement

[1] The Moving Party, the Ontario Motor Vehicle Industry Council (“OMVIC”) is the regulator of the motor vehicle sales industry in Ontario. It has delegated authority to administer the Motor Vehicle Dealers Act, 2002, S.O. 2002, c. 30, Sched. B (“MVDA”). In March 2019, an OMVIC investigator was of the view that the Applicants/Responding Parties, Tracy Grey and Richard Grey (the “Greys”) bought cars from dealerships and transferred them to another dealership for a fee. They are not registered OMVIC motor vehicle dealers and were charged in September 2020 with four counts of acting as a motor vehicle dealer contrary to s. 4(1)(a) of the MVDA.

[2] They do not dispute the sale and transfer to another dealership for a fee. Their defence to the charges is that the MVDA does not apply to them because they acted as “an agent” for a licensed vehicle exporter.

[3] The Ontario Court of Justice (“OCJ”) trial for these charges was scheduled for March 3 and 10 and April 17, 24, and 27, 2023. On March 1, 2023, the Greys brought an Application in the Superior Court of Justice for an order of prohibition under section 140 of the Provincial Offences Act, R.S.O. 1990, c. P.33 (“POA”). On March 3, 2023, the Applicants requested an adjournment of the OCJ trial pending adjudication of the Application in this court. The Applicants submit that on April 6, 2023, the OCJ granted the adjournment request and agreed that there was merit to the Application and it should proceed in this Court. There is no evidence before the Court regarding the OCJ’s reasons for the granting of the adjournment. The trial dates are set in the OCJ for December 9-16, 2024.

[4] The Moving Party OMVIC brings this motion seeking that the Application be stayed, dismissed, or struck without leave to amend and that costs be ordered against the Applicant.

[5] Issues of jurisdiction and forum are raised on this motion. OMVIC’s position is that the Applicants’ defence to the charges should be raised before the OCJ at first instance. The Applicants will have an opportunity to present relevant evidence and make their submissions in the OCJ. They will have a right of appeal from the OCJ decision to this Court. To permit the Application to proceed would allow the Applicants to proceed directly to a judicial review before the OCJ has made a decision with respect to the charges. OMVIC’s main submission is that the Application is frivolous and an abuse of this Court’s processes. It brought this motion pursuant to rr. 21.01 and 25.11 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194.

[6] A frivolous proceeding is one that lacks a legal basis or merit. The abuse of process doctrine provides courts with broad discretion to address situations where the legal system is being used improperly, unfairly, or for a purpose other than for what it is intended. OMVIC submits that the Application is frivolous because the OCJ (a Court with proper jurisdiction) has not considered or rendered a decision on the Greys’ charges. The Application is an abuse of process because it is an attempt to circumvent and/or bypass the OCJ process. There is no OCJ decision for this Court to review.

[7] Rule 21.01(3)(c) and (d) provide:

A defendant may move before a judge to have an action stayed or dismissed on the ground that,

a) another proceeding is pending in Ontario or another jurisdiction between the same parties in respect of the same subject matter; or

b) the action is frivolous or vexatious or is otherwise an abuse of the process of the court, and the judge may make an order or grant judgment accordingly.

[8] Further, rule 25.11 provides:

The court may strike out or expunge all or part of a pleading or other document, with or without leave to amend, on the ground that the pleading or other document,

a) may prejudice or delay the fair trial of the action;

b) is scandalous, frivolous or vexatious; or

c) is an abuse of the process of the court.

[9] This relief applies to applications, pursuant to rr. 14.09 and 38.12.

[10] This Court also has the jurisdiction to stay a proceeding that is an abuse of process pursuant to s. 106 of the Courts of Justice Act, R.S.O. 1990, c. C.43 (“CJA”). Section 106 of the CJA provides that “[a] court, on its own initiative or on motion by any person, whether or not a party, may stay any proceeding in the court on such terms as are considered just.”

[11] The remedy of prohibition requested in the Application is an extraordinary and discretionary remedy. It prohibits a decision-maker from exceeding its powers or acting without jurisdiction. The OCJ should be permitted to decide whether it would be exceeding its jurisdiction by conducting a trial. Notably, the Applicants do not plead that OMVIC does not have jurisdiction to lay charges against them, or, that the OCJ does not have jurisdiction to adjudicate these charges. They allege that in laying the charges, the OMVIC acted “capriciously, arbitrarily or in furtherance of private interests.” The submission that OMVIC abused their powers raises factual allegations rather than legal issues, such as challenging jurisdiction and/or authority to lay charges.

[12] Further, it is submitted that even if it was alleged that OMVIC did not have jurisdiction to lay the charges, the Application still ought to be struck and the charges should be adjudicated before the OCJ at first instance. One of the most factually similar decisions of this court is Baron et al v. Halton Region Conservation Authority, 2023 ONSC 5568. The Applicant in Baron sought an order of prohibition against the Halton Region Conservation Authority on the basis that it did not have statutory authority to prosecute certain offences. In dismissing the Application, the Court in Baron held, at para. 33, that:

…[T]hese arguments that are the subject of the application for prohibition, is better dealt with not by this Court but by the trial court – the court that has jurisdiction over the alleged offences – the court that is to hear the proceeding involving the parties – the court that deals every day with the POA and its definitional provisions.

[13] As mentioned above, in this Application, there is no claim that OMVIC had no jurisdiction to charge the Applicants or that the OCJ has no jurisdiction to adjudicate the offences.

[14] In the Notice of Application it is alleged that there has been a contravention of the Rule of Law. The Applicants rely upon Trial Lawyers Association of British Columbia v. British Columbia (Attorney General) 2014 SCC 59, [2014] 3 S.C.R. 31, where the Court stated, at para. 32, 39:

[32] The historic task of the superior courts is to resolve disputes between individuals and decide questions of private and public law. Measures that prevent people from coming to the courts to have those issues resolved are at odds with this basic judicial function. The resolution of these disputes and resulting determination of issues of private and public law, viewed in the institutional context of the Canadian justice system, are central to what the superior courts do. Indeed, it is their very book of business. To prevent this business being done strikes at the core of the jurisdiction of the superior courts protected by s. 96 of the Constitution Act, 1867. As a result, hearing fees that deny people access to the courts infringe the core jurisdiction of the superior courts.

[39] The s. 96 judicial function and the Rule of Law are inextricably intertwined. As Lamer C.J. stated in MacMillan Bloedel, “[i]n the constitutional arrangements passed on to us by the British and recognized by the preamble to the Constitution Act, 1867, the provincial superior courts are the foundation of the Rule of Law itself” (para. 37). The very rationale for the provision is said to be “the maintenance of the Rule of Law through the protection of the judicial role”: Provincial Judges Reference, at para. 88. As access to justice is fundamental to the Rule of Law, and the Rule of Law is fostered by the continued existence of the s. 96 courts, it is only natural that s. 96 provide some degree of constitutional protection for access to justice.

[15] Further, the Greys submit that section 96 of the Constitution Act, 1867 vests in the Superior Courts of each province the jurisdiction to maintain the Rule of Law. When a party seeks redress that transcends the interests of the parties or impugns an institutional process based on a violation of the Rule of Law, s. 96 of the Constitution Act, 1867 requires that the matter be adjudicated in the Superior Court of Justice. This interpretation is consistent with the scope of s. 140 of the Provincial Offences Act. Section 140(2) of the POA imposes a procedural requirement to serve the Attorney General with the notice of application. There is also a procedure set out in rule 13 of the Rules of Civil Procedure that allows non-parties to intervene in the case. These requirements ensure that there is an opportunity for all affected interests to be represented before the Court. However, I am of the view that this is an issue for the OCJ to decide, with a right of Appeal to our Court.

[16] There has been no trial or consideration of the charges on their merits in the OCJ. The Application does not allege any jurisdictional error that would entitle them to the remedy of prohibition. This is a relevant concern in this Application.

[17] I agree that the Application has no legal merit and cannot succeed. It therefore ought to be dismissed on this basis alone.

[18] The other ground for the relief sought on this motion is that the Application is an abuse of process and should be dismissed. The OCJ has jurisdiction to hear and consider the Applicants’ submissions. This Court ought not intervene in an ongoing proceeding in the OCJ where the Applicants’ defence can be adjudicated with a full evidentiary record and where a full right of appeal exists.

[19] In R. v. Duvivier, 3 O.R. (3d) 49 (C.A.), the Court of Appeal for Ontario set out the policy concerns against granting applications for relief to the Superior Court during ongoing proceedings in the criminal context. Doherty J.A. stated in Duvivier, at p. 8:

Such applications can result in delay, the fragmentation of the criminal process, the determination of issues based on an inadequate record, and the expenditure of judicial time and effort on issues which may not have arisen had the process been left to run its normal course. The effective and efficient operation of our criminal justice system is not served by interlocutory challenges to rulings made during the process or by applications for rulings concerning issues which it is anticipated will arise at some point in the process. [Emphasis added.]

[20] This principle was confirmed in R. v. Arcand, 73 O.R. (3d) 758, at para. 14, wherein our Court of Appeal held that these policy concerns apply to proceedings under the POA. The accused brought an application for prohibition after the commencement of trial, seeking to prohibit his prosecution under the Ontario Water Resources Act. The Court of Appeal sent the case back to the OCJ for a new trial. This Court is bound by this jurisprudence from the Ontario Court of Appeal.

[21] Further, pursuant to r. 21.01(3)(d), a claim may also be found to be an abuse of process where it is commenced for an extraneous or collateral purpose.

[22] In this Application, the claims are that:

• Motor vehicle exportation is a legitimate and legal business activity recognized by Canada Revenue Agency (“CRA”) and OMVIC.
• The issue is the use of agents/nominees to acquire motor vehicles for export.
• Canada Revenue Agency accepts the use of agents/nominees to acquire motor vehicles for export.
• OMVIC has started to prosecute agents/nominees under the MVDA.
• The use of agents/nominees arose out of the fact that manufacturers forbid their franchised motor vehicle dealers from selling a motor vehicle to any person (individual or corporation) suspected of acquiring the vehicle for export.
• The principal mandate of OMVIC is to protect consumers in Ontario. Accordingly, OMVIC’s position against exporters and their agents/ nominees arises not from consumer protection; but from some ulterior purpose.
• It is this ulterior purpose that forms the basis of the Application on behalf of the Greys. At the same time the motor vehicle export industry is directly affected and seeks participation in the Application from an evidentiary point of view as well as participation.

[23] The Applicants advise that it is the intention of the Canadian Vehicle Exporters Association (“CVEA”) to seek Intervenor status in the Application pursuant to rule 13.01(1).

[24] The Applicants submit that the Provincial Offences Act contains no provisions allowing for intervenor status in proceedings before the Ontario Courts of Justice. Section 109 of the Courts of Justice Act confers intervenor status only upon the Attorneys General and only for specific provisions as set out therein. The CJA contains no provision authorizing the Ontario Courts of Justice to grant Intervenor status. All parties who may be affected by a decision of the Court must have an opportunity to appear before the Court. Failure to do so would amount to a contravention of the Rule of Law, natural justice, and procedural fairness. There has been no ruling or consideration of this submission at the OCJ.

[25] The Application asks this Court to make findings for the purpose of attacking the conduct of OMVIC and to invalidate the charges against the Applicants before the charges are litigated in the OCJ. The Applicants allege that OMVIC has acted in bad faith as its charges were “capricious, arbitrary, or in furtherance of a private interest.”

[26] Our Court of Appeal in Birdseye Security Inc. v. Milosevic, 2020 ONCA 355, reviewed the analytical framework to be applied in the Court’s exercise of its discretion when considering whether an action should be dismissed or stayed under r. 21.01(3)(c) as an abuse of process.

[27] In the exercise of my discretion to determine whether a stay or dismissal of proceedings should be granted, I must consider the circumstances of this case. OMVIC must demonstrate that continuation of the Application would cause it “substantial prejudice or injustice (beyond inconvenience and expense) because it would be oppressive or vexatious or would otherwise be an abuse of the process of the court”: Birdseye Security, at para. 15, citing Farris v. Staubach Ontario Inc., 32 C.C.E.L. (3d) 265 (Ont. S.C.), at para. 15. It must also persuade the court that the dismissal would not cause an injustice to the Greys: Birdseye Security, at para. 15, citing Farris, at para. 15. When assessing prejudice, the relevant factors include: “the likelihood and effect of the two matters proceeding in tandem, the possibility and effect of different results, the potential for double recovery, and the effect of possible delay”: Birdseye Security, at para. 15, citing Farris, at para. 16.

[28] The fact there is another proceeding pending between the same parties in the OCJ in respect of the same subject matter does not automatically justify an order dismissing or staying the Application.

[29] In Wernikowski v. Firm of Kirkland, Murphy & Ain, 50 O.R. (3d) 124 (C.A.), at para. 12, the Court of Appeal cautioned as follows:

[12] Like other rules (e.g., rule 21.01), this provision is designed to allow for an early and expeditious determination of claims that cannot succeed. As the exercise of the power set out in rule 25.11 denies a litigant a full trial of the merits of the claim, it must be exercised only in the clearest of cases. Claims that are doubtful in law or factually weak should not be foreclosed. Allowance must also be made for inadequacies in the drafting of pleadings: Nash v. Ontario (1995), 27 O.R. (3d) 1 at pp. 5-6 (C.A.); Temelini v. Ontario Provincial Police (Commissioner) (1990), 73 O.R. (2d) 664 at p. 668, 38 O.A.C. 270 (C.A.).

[30] In the exercise of my discretion, I am guided by these principles, but none of these considerations override my view that the Application is an abuse of process, as it ought to be adjudicated in the OCJ. The Application should be dismissed on that basis.

[31] The Applicants also allege that a combination of delay and the taking of intermediary steps should lead to a dismissal of this Motion. They rely on the undisputed fact that before commencing this Motion, OMVIC agreed to a timetable that included filing Responding Materials, examinations, and a hearing date to Strike the Affidavit of Damon Lyons, but not the Application. This was later changed at a case conference when the parties agreed to argue this motion on this hearing date.

[32] The Notice of Application was commenced on March 1, 2023.

[33] The Motion to Stay or Strike was delivered September 4, 2024 - but not the Responding Materials as OMVIC had agreed upon.

[34] The Rules require leave to bring this Motion and OMVIC has failed to make such a request. For the foregoing reasons, leave should not be granted.

[35] An initial Case Conference was set for July 4, 2024. A timetable was set for a Hearing on the merits, delivery of responding materials, dates for cross examinations and factums and setting a Hearing date of November 19, 2024.

[36] The Applicants emphasize that this Application explains the alleged, potentially devastating effect on an entire motor vehicle export industry. This would affect exporters and the agents and nominees that work with them, and constitutes hardship, prejudice and irreparable harm.

[37] The main submission of the Applicants is that the Notice of Application includes a lengthy and sufficient degree of particularity to set out the basis for the Application itself. The relief sought, while possibly novel, is plausible on the facts pleaded with respect to the issues relating to the Rule of Law and ultra vires.

[38] The relief requested on this motion should only be granted in the clearest of cases: Khan v. Krylov & Company LLP, 2017 ONCA 625, 138 OR (3d) 581, at para. 6. I find that this is one of the “clearest of cases”.

[39] With respect to the considerations of the exercise of this Court’s discretion under section 106 of the CJA, our court has held in Housser v. Savin Canada Inc., 77 O.R. (3d) 251 (S.C.), at para. 43, that:

To justify a stay, the defendant must satisfy the court that continuance of the action would work an injustice because it [page269] would be oppressive or vexatious or an abuse of the process of the court and that the stay would not cause an injustice to the plaintiff. [Citations omitted.]

[40] In Schellenberg v. International Brotherhood, the Court confirmed that a rule 21 Motion should be brought promptly and, if not, can lead to a dismissal of the Motion, particularly where a Motion is brought close to trial (or in this case, the Hearing date) in circumstances where the pleadings were available a significant period of time prior to bringing the Motion: 2014 ONSC 7305, at paras. 19-22, 26, citing Fleet Street Financial Corp. v. Levinson and Cetinalp v. Casino. Further, the lack of promptness requires a justifiable explanation to excuse the delay. There is no explanation for the delay. The Application was commenced on March 1, 2023. OMVIC did not serve its Motion to Strike and/or Stay the Application until September 4, 2024, a period of approximately 18 months from the commencement of the Application. In addition, OMVIC did not, at all relevant times, indicate that they would bring this Motion prior to the service of the Motion itself. Rather, OMVIC has proceeded on the basis that there would be a hearing on the merits of the Application. OMVIC’s failure to move promptly and bring its Motion to Strike the Application resulted in significant time and expense for the Applicants to prepare the supporting Affidavits of Richard Grey and Damon Lyons. The Damon Lyons Affidavit was amended on two occasions and a Motion was heard to strike that Affidavit. All of this work would not have been necessary if the Motion to Strike had been brought at the outset of the commencement of the Application and been successful.

[41] As well, it is the Applicants’ position that OMVIC has effectively attorned to the hearing of the Application on its merits. As such, OMVIC should be estopped from bringing the Motion to Strike.

[42] OMVIC relied on the recent case of The Dominion of Canada General Insurance Company v. Nelson, 2023 ONSC 386 (Div. Ct.). Although the Applicants were not provided with any notice that this case would be relied on, counsel advised the court that an adjournment of the motion was not required and that no extra time was required to review the case. The Divisional Court held in Nelson, at paras. 26-27, 42-43 and 45-47, that:

The principal argument advanced by the Appellant is that the motion judge erred in law in the interpretation and application of the provisions of Rules 21, 2.01(1) and 2.02 in declining to hear the motion on its merits and in summarily dismissing it for delay.

The Rule 21 motion was brought by the Appellant to determine the jurisdictional issue raised in its Statement of Defence before any party had incurred unnecessary expense in pre-trial discoveries or other proceedings.

Commencement of an action in a court that lacks jurisdiction over its subject matter cannot be overlooked or treated as a mere irregularity, even if one of the parties fails to immediately bring the issue to the attention of the court. If the court lacks jurisdiction to hear and determine the subject matter of the action, the action must be stayed or dismissed.

Rule 21.02 does not provide any express basis to refuse to hear a Rule 21 motion due to delay and to dismiss it instead. In my opinion, this motion ought to have been heard on its merits and the proceedings stayed on the basis of lack of jurisdiction.

Having said that, I also note that the interpretation in Schellenberg is at odds with the decision of the Divisional Court in Toronto-Dominion Bank v. Kopman in which the panel dealt with a Rule 21 motion that had not been brought until the first round of discoveries in the action had been completed. The majority of the panel interpreted the purpose of Rule 21.02 as being related solely to the disposition of costs following such a motion, contemplating that a successful moving party may be deprived of an order of costs or even be required to pay the other side’s costs if the motion is not brought in a suitably timely matter. The majority decision stated (at paras. 11 and 12):

“Rule 21.02 reads: “A motion under rule 21.02 [to strike out a pleading on the ground that it discloses no reasonable cause of action] shall be made promptly and a failure to do so may be taken into account by the court in awarding costs."

[11] Rule 21.02 seems to indicate that the penalty for failing to move promptly may in some cases be an award of costs to compensate for delay…

[13] It is in the interest of the court to avoid unnecessary time being spent by judges and masters on pleadings that are invalid, that is to say that raise no cause of action. Accordingly the matter of delay should not deter us from holding that the pleadings of abuse of process and intentional infliction of mental suffering disclose no cause of action.”

It remains arguable that Rule 21.02 may allow a court to dismiss a motion when the delay in bringing it has been egregious. In Toronto-Dominion Bank v. Kopman, Southey J. in dissent on the issue indicated that he would have dismissed the appeal on the merits, but stated as to effect of delay:

“While rule 21.02 provides that, where a motion is brought other than promptly, the court may take account of that fact in awarding costs, there may be merit in the proposition that, where the moving party's delay is egregious, the motion can be dismissed on that ground.”

However, there is a strong line of authority following the decision of Williams Beauty Products v. State Farm Fire and Casualty Co. (2001), 31 C.C.L.I. (3d) 126 wherein the issue of delay is limited to the question of costs only. The history of the jurisprudence was noted by MacDonnell, J. in Project 360 Investments Limited (Sound Emporium Nightclub) v. Toronto Police Services Board which involved a motion to strike a pleading… [Emphasis added.]

[43] Although the above noted principles relied on by the Applicants must be considered, I find that they do not alter my view that the Application is an abuse of the Court’s process, and the lack of legal merit of the Application.

[44] I find that the principles set out in Nelson case are applicable on this motion.

[45] The Applicants also rely on rule 187, which provides that an application to set aside a proceeding for irregularity shall not be allowed if the party applying has taken a fresh step. In Sharpe v. Reingold, [1946] O.W.N. 730, on a motion to strike out a statement of defence or a paragraph thereof, it was held that the plaintiff had taken a fresh step that would prevent him from succeeding. There, appointments for examination for discovery and a notice to produce had been served simultaneously with the notice of motion of the application to strike out the statement of defence. I also find that the reasoning of the court in Nelson is applicable on this motion.

[46] Rule 2.02 states:

Attacking Irregularity 2.02 A motion to attack a proceeding or a step, document or order in a proceeding for irregularity shall not be made, except with leave of the court,

(a) after the expiry of a reasonable time after the moving party knows or ought reasonably to have known of the irregularity; or

(b) if the moving party has taken any further step in the proceeding after obtaining knowledge of the irregularity.

[47] A failure to comply with the Rules is an irregularity for the purposes of rr. 2.1.01 and 2.02.

[48] Similarly, I do not accept the Greys’ position that OMVIC’s failure to obtain leave to bring this Motion is sufficient to dismiss it, in light of the guidance set out above in the Nelson case.

[49] As referred to above, in Baron v. Halton Region Conservation Authority, the court held, at paras. 31, 33-34 and 36, that:

To be frank, I do not see the merit in the argument because there is no dispute that Priddle laid the Informations on behalf of and as an employee of HRCA, just as, for example, a building code inspector would lay a charge on behalf of the municipality that she works for, and there is also no dispute that a prosecutor has the right to retain counsel to present the case in court, and there is also no dispute that Mr. Jull and his law firm have been retained by HRCA for that purpose.

In any event, locus standi, or “standing”, which is the moniker that Baron’s counsel attach to these arguments that are the subject of the application for prohibition, is better dealt with not by this Court but by the trial court – the court that has jurisdiction over the alleged offences – the court that is to hear the proceeding involving the parties – the court that deals every day with the POA and its definitional provisions, including that of “prosecutor” in section 1.

Given the extraordinary nature of the prerogative writ of prohibition, and the cautionary sentiments expressed in cases like Arcand, supra, and the fact that any ruling that might be made in the court below may be appealed on the basis of a full record of the evidence adduced, the arguments advanced, and the reasons given, there is no justification for this Court intervening on these issues.

The said amended amended application was served on counsel for the HRCA and calls into question whether the HRCA has any right to appear in the proceeding in the court below. Surely, therefore, HRCA had the right to respond to the amended amended application. Its right to respond is not the same thing as its authority to prosecute. [Emphasis added.]

[50] In addition to the above noted findings, I must consider the doctrine of prematurity. The trial has not commenced at the OCJ and the Application is made on the basis of the principles of ultra vires and Rule of Law. Even if the doctrine of prematurity applies, the Greys submit that “exceptional circumstances” exist to allow the Application to proceed.

[51] In Oberlander v. Canada (Public Safety and Emergency Preparedness), 2021 FC 294, 2021 F.C. 294, the court held “exceptional circumstances” include hardship, prejudice, and irreparable harm. The Applicants submit that their prosecution extends beyond the specific issues relating to them. Any decisions will have direct consequences to an entire industry; this includes motor vehicle exporters, and agents and nominees that work with them. I do not agree that this consideration renders this case exceptional. The charges in the OCJ are against the Greys, not the potential intervenors, who can independently seek their own appropriate remedies.

[52] To summarize, the Applicants submit that this motion should be dismissed because:

a. “There has been inordinate delay (approximately 18 months) in bringing this motion without any justifiable explanation.

b. OMVIC has initiated, participated and agreed to interim steps so as to disqualify its ability to bring this motion.

c. The case against the Greys (if convicted) extends to, affects, and effectively destroys an entire industry unless the Application proceeds to a Hearing on its merits.

d. Rules 2.1.01, 21 and 25.11 of the Rules of Civil Procedure, all necessitate the moving party to act promptly which did not happen. Section 106 of the Courts of Justice Act should not be used as a curative provision as against failure to comply with these principles. In any event, the Rules and Section 106 should be used rarely and only in clear and obvious cases.

e. The Applicants have been prejudiced by providing OMVIC with their sworn evidence (submitted in the Application record).

f. The Rule of Law requires the Application proceed in Superior Court.

g. Given the potential consequences, all parties having a legitimate interest should be allowed to participate and that can only occur in the Superior Court; and

h. Given the foregoing these constitute exceptional circumstances so as to preclude the application of the prematurity principle.”

[53] I am of the view that the Application should be dismissed as the issues raised ought to be advanced at first instance before the OCJ. There is no possibility of success in the Application in this Court at first instance. The remedy sought in the Application is premature, and therefore not available. The Application is also a collateral attack on the OCJ’s adjudicative authority and therefore an abuse of process. The application should therefore be dismissed.

[54] For the above noted reasons, I dismiss the Application on the ground that it is an abuse of process. The charges against the Greys should be dealt with by the OCJ, which has jurisdiction to adjudicate their charges. The Application has no legal merit because the prohibition remedy cannot be granted.

Costs

[55] The Moving Party Respondent is the successful party on this motion and the costs submitted at the hearing of the motion, of $20,000 are appropriate and reasonable. I order that the Applicants pay costs on a partial indemnity basis in the amount of $20,000. However, if the parties are unable to agree on costs that arise as any result of the rules of Offers to Settle, the Moving Party Respondents may make submissions of no more than two pages, double spaced sent to the Applicants. Written submissions must be uploaded to Case Centers with a copy sent to my assistant Roxanne Johnson at Roxanne.johnson@ontario.ca by 12 pm on December 16, 2024. The Applicants may make submissions of no more than two pages, double spaced sent to the Moving Party Respondents, uploaded to Case Centers with a copy sent to my assistant by 12 pm on January 2, 2025. No reply submissions will be accepted. If submissions are not received in accordance with those terms, costs will be deemed to be settled.

Pollak J. Date: December 6, 2024