Labourers' International Union of North America, Local 1115 v. Dexter Construction Company

Labourers' International Union of North America, Local 1115 v. Dexter Construction Company Court Court of Appeal Date 1999-11-02 Citation 1999 NSCA 132 Docket CA 159144 Judge/Registrar/Adjudicator Pugsley, Ronald N. (Honourable Justice) Document Type Decision Relations Library Sheet - Labourers' International Union of North America, Local 1115 v. Dexter Construction Company - 1999 NSCA 132 - 1999-11-02 - Library Sheet Decision Content Docket: CA159144 Date: 19991102 NOVA SCOTIA COURT OF APPEAL [Cite as: Labourers’ International Union of North America, Local 1115 v. Dexter Construction Company, 1999 NSCA 132] BETWEEN: LABOURERS’ INTERNATIONAL UNION ) OF NORTH AMERICA, LOCAL 1115 ) (hereinafter referred to as the “Union”) ) ) Applicant ) ) - and - ) ) Blaise MacDonald PERSONS UNNAMED ) for The Union ) Intended Defendant(s)) ) - and - ) Eric Durnford ) for the respondent ) DEXTER CONSTRUCTION COMPANY ) LTD. ) Intended Plaintiff/ ) Respondent ) Application Heard: ) October 21, 1999 ) ) Decision Delivered: ) November 2, 1999 ) ) BEFORE THE HONOURABLE JUSTICE RONALD N. PUGSLEY IN CHAMBERS Pugsley, J.A. (In Chambers): [1] Labourers’ International Union of North America, Local 1115, (hereinafter called the Union) applies for leave to obtain intervener status as a party, or as amicus curiae, or alternatively as an intervener, and to bring an appeal from orders made on September 23 and October 1, 1999, by Justice Tidman of the Supreme Court, in proceedings brought by Dexter Construction Co. Limited (Dexter), Intended Plaintiff, against Persons Unnamed, Intended Defendant(s). [2] The leave to obtain intervener status as a party is made pursuant to Civil Procedure Rules 5.02, and 5.04, and 8.01(1). The application to be joined as an amicus curiae, or friend of the court, is made pursuant to Rule 8.02. The application to be added as an intervener is made pursuant to Rule 62.35. [3] Application is also made for extensions of time and variation in the manner and time and place of service on Dexter, pursuant to Rules 3.03, 37.05, and 62.31. Background [4] On Wednesday, September 23, 1999, Dexter, the Intended Plaintiff, filed an interlocutory notice ex parte application against "Persons Unnamed Intended Defendant(s)", seeking an interim injunction to restrain the Intended, Defendant(s) "and each of their servants, agents, representatives and employees, and any person or persons acting under the instructions of them, or any of them, and any person having notice of this order", from picketing or otherwise impeding or preventing Dexter, its employees and suppliers, from entering premises located in the Cape Breton Regional Municipality where Dexter was carrying on work. [5] No other party was named as an Intended Defendant(s). [6] In support of the application, the affidavits of Kevin MacDonald, President of Dexter, and Daniel Clifton, General Superintendent, were filed. [7] An order ex parte was granted on September 23, 1999, by Justice Tidman of the Supreme Court. It provided, inter alia, that "this matter be returnable on the 30th day of September, 1999 at 12:00 noon, at such time the Unnamed Defendant(s) shall be afforded an opportunity to be heard in relation to the continuation of this Injunction Order." [8] I am advised by counsel for the Union that he was instructed by his client, on Friday, September 24, 1999, of the existence of the ex parte order, a copy which was apparently delivered to him on that day. Over the next few days, copies of one, or more, of the supporting affidavits were also obtained by him. [9] On Thursday, September 30, 1999, Dexter filed a supplementary affidavit deposed by Mr. Clifton on the 29th of September. Dexter also filed a memorandum in support of its submission for the continuation of the ex parte injunction. Mr. MacDonald, counsel for the Union, advised he was not aware of the existence of these documents before the hearing on September 30th. [10] On the return date, counsel for the Union was present in court for his client on an application to continue another unrelated injunction proceeding (Cape Breton Regional Municipality, Intended Plaintiffs v. Labourers’ International Union of North America, Local 1115 and Persons Unnamed, Intended Defendants, SN No. 111895, a proceeding which was the subject of another Chambers application before me). [11] Upon counsel for Dexter requiring clarification of Mr. MacDonald's status respecting the Dexter application, the following exchange occurred: Mr. MacDonald: My Lord, I am not here representing any unnamed persons, ...local 1115, who is a client, a client of mine, is not named in the application, as I understand and I've got copies of it faxed to me from the Court...I can tell you this My Lord, and this is one of the things that concerns me and I offer this as a friend of the, a friend of the Court. And, of course, in the interest of my client as well. And in the interest of the operating engineers in the I.B.E.W. who are not my clients. But it affects all of those. And that is one of the problems with respect to labor injunctions and the caveat provision in the Judicature Act to...the Court avoid them as, as much as possible. Certainly none without notice. ... The Court I don't want to hear your argument on the issuance of the injunction. I want to hear your response to Mr. Sampson's opposition to you having status before the Court. Mr. MacDonald ...I do not represent any unnamed parties, I have no idea who the unnamed persons are and if I knew who they were it may well be that my client, [the Union] would instruct me to assist or defend them or whatever. But we have no idea who they are. The Court ...this is against unnamed persons, there is nothing anywhere in the material to indicate that the unnamed persons have anything to do with your client. And the action is not against your client. ... as far as the Court is aware there is no labor/management dispute. And in view of the fact that you had told the Court that you don't represent the unnamed, unnamed parties, the persons unnamed, as a party to the action, then you have no status to appear before the Court, because your client is not a party to the action. [12] No viva voce evidence was called by Dexter in support of its submission for the continuation of the injunction. Submissions were made to Justice Tidman by counsel for Dexter, as well as counsel for the Union. [13] On October 1, 1999, Justice Tidman issued an order substantially in the form of the order granted on September 23, with the following amendments: - AND IT IS FURTHER ORDERED that the Intended Plaintiff shall file an Originating Notice and Statement of Claim upon further direction being given by this Honourable Court . . . - AND IT IS FURTHER ORDERED that the Intended Defendants are at liberty to make an Application to this Court to have a hearing on this application by providing forty-eight (48) hours’ notice to the Intended Plaintiff of its intention to make such application; - THIS ORDER is subject to and in no way restricts the lawful right of the Intended Defendants and its representatives and members and their lawful right solely to communicate and disseminate information to the public; - THIS ORDER is to continue until a further Order of this Honourable Court. [14] The Union has filed two affidavits in support of its position on the present applications, one by Bernie MacMaster, Secretary Treasurer and Dispatcher of Local 1115, deposed on October 8, 1999, and the other by Doug Serroul, Business Manager of Local 1115, deposed on October 12, 1999. [15] Mr. MacMaster deposes in part: 2. THAT attached to this my Affidavit as Exhibit "A", is a true copy of a draft of an application which LIUNA 1115 is making to the Construction Industry Panel of the Nova Scotia Labour Relations Board under the Nova Scotia TRADE UNION ACT. The said draft application is an application for successors rights. It is a claim to successor rights by LIUNA 1115 for the balance of the work on the Provincial Highway #125 Twinning Project. The latter project was formally contracted to Municipal Ready Mix Ltd. and now the balance of or the last one-third (1/3 approximately) of the work is being performed by Dexter Construction Ltd. without compliance with the collective agreement which was in effect in operation for the first two thirds of the project. 3. THAT I am informed by LIUNA 1115 solicitor, Blaise MacDonald, and I believe him that there is an arguable issue that the matter put before the Supreme Court of Nova Scotia on September 23rd, 1999, in the initial Ex-Parte Interim Application, and placed again on the return date of September 30th, 1999, was a “labor-management dispute” within the meaning of s. 44 of the JUDICATURE ACT.. 4. THAT no notice of these September 23 and September 30th, 1999, proceedings, except a copy of the September 23rd, 1999, Order of the Supreme Court, was served upon the LIUNAl 1115 up to the time of my swearing this Affidavit. 5. THAT members of LIUNA 1115, and members of other road building unions such as the International Union of Operating Engineers (“I.U.O.E.”) and the International Brotherhood of Electrical Workers were employed on the road building project in question and would be, if successful at the Labour Relations Board, be employed there in the future until its completion. . . . 7. THAT I am told by Blaise MacDonald, solicitor for LIUNA 1115, and do verily believe him, that the transcript will reflect that he attempted without notice from the applicant, to make submissions to the Court and was not permitted to do so on September 30, 1999. [16] Doug Serroul deposes in part: 4. THAT I have read the affidavit of Bernie MacMaster sworn the 8th day of October, A.D. 1999, and he is mistaken in that LIUNA 1115 was never formerly served with any Order, Notice or Affidavits in this proceeding . . . Although a copy of an order dated September 23rd, 1999, ... was served by fax upon LIUNA 1115 on the afternoon of September 24th, 1999. 5. THAT I am told by Blaise MacDonald, .... and do verily believe him, that he obtained copies of documents from the file at the Prothonotary’s Office prior to the hearing on Thursday, the 30th day of September, 1999, but copies of an affidavit of Daniel Clifton, sworn September 30th, 1999, and a letter to the Court from Dexter’s Solicitor, Robert Sampson, dated September 30th, 1999, were not made available to him prior to or during the Court Proceedings before Mr. Justice Gordon Tidman. 6. THAT I instructed Blaise MacDonald, solicitor for LIUNA 1115, to attend the application on Thursday, the 30th day of September, 1999, and attempt to make representations to the Court that LIUNA 1115 and its members were in the midst of a labour dispute with Dexter Construction Company Limited and its predecessor contractor on that project, Municipal Ready Mix Limited. ... 12. THAT LIUNA1115 instructed its Solicitor to attend because it was desirous of seeing the lawful rights protected for those who are members of LIUNA 1115 and who lost their employment, their opportunity for employment, all LIUNA 1115 members, and indeed any members who were in sympathy or empathy with the plight of Local 1115 and its members. 18. THAT LIUNA 1115 especially in the absence of any other party who oppose the intended Plaintiff, will instruct its Solicitor to make submissions to this Honourable Court, which include the following: (a) That there was a denial of natural justice and a fair hearing by the learned trial judge by allowing the intended Plaintiff to proceed against “Unnamed Persons”, as sole defendants, without further description, in the manner in which the learned Justice did, including purporting to hold an Inter Partes Interlocutory hearing in the manner in which it was noticed and held. (b) That there was denial of natural justice and a fair hearing, as well as jurisdictional error, by the failure of the learned Trial Judge to hear the LIUNA 1115’s Solicitor on the arguable issue of the existence of a “labour dispute” within the meaning of s. 44(1)(b) of the Judicature Act, RSNS, 1989, Ch. 240, as amended. (c) That the trial judge committed errors of law and jurisdiction when he permitted “Unnamed Persons”, simpliciter, without more, to be the defendants, indeed the sole defendants, in an interim and interlocutory proceeding. (d) That the learned trial judge erred in proceeding with an uncontested Interlocutory hearing continuing the injunction till trial, particularly in the circumstances of this case. (e) Whether other submissions may advance the interests of LIUNA 1115, its members and or oppose the position of the Intended Plaintiff after examining and studying the transcript and determining what occurred at all the proceedings before the learned Trial Judge and may allow for additional grounds. (f) THAT “Unnamed Persons”, without more, should rarely, if ever, be used as defendants, and rarely, if not never, be used as sole defendants. [19] THAT I understand that there is no other opposition to the intended action by the Intended Plaintiff and I would hope that LIUNA 1115’s submissions would be helpful to this Honourable Court. [17] No evidence was adduced that the Union was directly affected by the provisions of the order of October 1, 1999. [18] The grounds of the proposed appeal are stated as follows: 1. The Justice herein erred at law in that he denied the natural justice and a fair hearing by: (a) By permitting the Intended Plaintiffs to proceed in an interlocutory proceeding against “Unnamed Persons” as the sole Defendant(s). (b) By failing to require notice in pleadings to be served in the usual manner, or through substituted service, upon unnamed persons. (c) By prohibiting and refusing submissions by the counsel for [the Union] that there was an arguable issue that there was a “labour dispute” within the meaning of the Civil Procedure Rules and the Judicature Act, R.S.N.S., 1989, Ch. 240, as amended, s. 44(1)(b). (d) Wrongfully denying [the Union] to complete its submission before denying status. 2. THAT the Learned Justice erred in law by allowing the sole defendant(s) “Unnamed Persons” to stand as the sole defendant(s) in the proceeding, or purported proceeding. 3. THAT the learned Justice erred in law in any other way that may become apparent from examination of the transcript of these proceedings. 4. THAT the learned Justice erred in law in denying status to [the Union]. [19] The Union requests the judgment appealed from be varied: ...by deleting “Unnamed Persons” as defendants or intended defendants in these proceedings. [20] No one was served on behalf of the Intended Defendant(s), Persons Unnamed, and no one appeared on behalf of that Intended Defendant(s) at the hearing of these applications. [21] Dexter opposes all of the applications advanced by the Union. Analysis [22] An appeal to this Court may only be filed by a party to a proceeding, or by an intervener added pursuant to the Civil Procedure Rules, (see McMahon, J. A., sitting in Chambers, in Johnston et al v. Prince Edward Island [1989] 73 Nfld. & PEI, 219 (C.A.)). The Union was not joined as a party by Dexter, and was not joined as a party or as an intervener by order of the Supreme Court. The Union, therefore, does not have the status to file an appeal, unless it is first joined in either of these two capacities as a result of the applications presently before me. . [23] It is convenient to deal with these applications by first considering the Union’s request to be joined as an intervener, pursuant to Rule 62.35; secondly, as a party or amicus curiae, pursuant to Rule 8; and finally as a party pursuant to Rule 5. At the hearing of these applications, counsel for the Union advised that he would not make any oral submissions respecting the applicability of Rule 5.02, as he concluded the provisions of Rule 5.04 were more pertinent. [24] Justice Hallett, in 1874000 Nova Scotia Limited et al. v. Adams et al. (1996), 156 N.S.R. (2d) 208, determined that a judge of this Court, sitting in Chambers: ...does not have the jurisdiction to grant intervener status as there is nothing in Rule 62 or any other Rule or enactment that authorizes such an application to be made to the Chambers judge rather than to the Court. (at p. 215) (See also Hallett, J.A. in Future Inns Canada Inc. v. Nova Scotia Labour Relations Board (1996), 154 N.S.R. (2d) 358). [25] Prior to the decision in Adams, applications for intervention at the appeal level, in civil cases, were made under Rule 8 in combination with Rule 62.31(1). (See Arnoldin Construction and Forms Limited v. Alta Surety Company (unreported, C.A. No. 106122, filed October 31, 1994); Arrow Construction Products Ltd. v. Nova Scotia (Attorney General) (1996), 148 N.S.R. (2d) 392.) [26] The decision in Adams led to the introduction of a new rule entitled “Intervention on Appeal” providing for intervention in civil appeals. The rule came into effect in June of 1997. It was made a rule of this Court by virtue of the authority granted to the judges of the Court of Appeal by s. 46 of the Judicature Act, RSNS, 1989 C.240. It is the rule governing interventions to this Court by persons who are interested in an appeal. It is the rule that should govern the consideration of applications for intervention to this Court. [27] The new rule is significantly different from the provisions of Rule 8. [28] I am satisfied that the Union’s application to be joined as an intervener pursuant to Rule 62.35 should not be granted, as there is no appeal outstanding to this Court. [29] The provisions of Rule 62.35(1), in my opinion, make the existence of an appeal an imperative. The section reads: Any person, including any person who intervened in a proceeding pursuant to Rule 8, interested in an appeal, may, by application in accordance with Rule 62.31 apply to a Judge in Chambers for leave to intervene upon such terms and conditions as the Judge may determine. (emphasis added) [30] This interpretation is supported by an examination of the provisions of Rule 62.35(2) and (3). [31] Rule 62.35(2) requires an intervention to be filed and served within 20 days after the filing of the notice of appeal. [32] Rule 62.35(3) sets out the test to be employed by the Chambers judge requiring the applicant to describe its interest in the appeal, to identify the position to be taken by it, on the appeal, and finally, to set out the submissions it wishes to advance on the appeal, and the reasons for believing that the submissions would be useful to the Court and different from those of other parties. [33] I would dismiss the application of the Union to be joined as an intervener pursuant to Rule 62.35. [34] The alternative application that the Union be joined as an amicus curiae, or an interested person, pursuant to Rule 8, should be dismissed as well, for the reasons set forth by Justice Hallett in Adams. [35] The Union also relies upon Rule 5.04(2). [36] Rule 5.04 under the heading “Misjoinder and Nonjoinder of Parties”, provides: (2) At any stage of a proceeding the court may, on such terms as it thinks just and either of its own motion or on application, ... (b) order any person, who ought to have been joined as a party or whose participation in the proceeding is necessary to ensure that all matters in the proceeding may be effectively adjudicated upon, be added as a party . . . [37] Counsel for the Union relies upon the definition of the word “court” as it is found in Rule 1.05(e)(i) as granting sufficient authority to a Chambers judge in this Court to entertain an application for joinder under Rule 5.04(2). [38] Rule 1.05(e)(i) provides: Definitions 1.05 In these Rules, unless the context otherwise requires, (e) “court” means, (i) in the Nova Scotia Court of Appeal, the court or a judge or the judges thereof, whether sitting in court or Chambers. ... (emphasis added) [39] Rule 1.05(e)(i) was apparently not relied upon by counsel in Adams. [40] In my view, however, the limits on the jurisdiction of a Chambers judge in this Court, as stipulated in Rule 62, constitute a “context” restricting the broad definition expressed in Rule 1.05(e)(i). [41] I would, accordingly, dismiss the application to join the Union pursuant to Rule 5.04 for the reasons expressed in Adams. [42] There are, however, additional cogent reasons that influence me to refuse the relief requested. [43] There are, to the best of my knowledge, no reported decisions in this jurisdiction dealing with an application by a non-party to be added to a proceeding as a defendant, or as an Intended Defendant pursuant to Rule 5.04. The cases arising under this section are usually concerned with an application by an existing plaintiff to add an additional party as plaintiff, or as defendant (see P. A. Wournell Contracting Ltd. v. Allen (1980), 37 N.S.R. (2d) 125, (C.A.); Blair v. Alderney Consultants 1987 Ltd. (1995), 149 N.S.R. (2d) 184 (S.C.)). [44] Rule 5.04 was derived from Order 15, Rule 6 of the Supreme Court Practice. While amendments were made to Rule 6 in 1971, they are not relevant to the following comments which appear in the 1999 Supreme Court Practice. (Sweet & Maxwell, Vol. I, 1998). The authors write in part: Generally in common law and Chancery matters a plaintiff who conceives that he has a cause of action against a defendant is entitled to pursue his remedy against that defendant alone. He cannot be compelled to proceed against other persons whom he has no desire to sue (quoted with approval by Wynn-Parry J. in Dollfus Mieg, etc. v. Bank of England [1951] Ch. 33). Under this rule, however, a person who is not a party may be added as defendant against the wishes of the plaintiff either on the application of the defendant or on his own intervention, or in rare cases by the Court of its own motion. The jurisdiction of the court under this rule is entirely discretionary. (emphasis added) [45] Even if I had jurisdiction to grant the relief requested under Rules 5.04, or Rule 8, I would not exercise it in the circumstances of this case. [46] I reach this decision because I am of the view that the issues - namely the joinder of the Union, and the continuation of the injunction order against the Intended Defendant(s), Persons Unnamed - are issues that should be initiated at the level of the Supreme Court, and determined, by a judge of that court. [47] Justice Tidman, in an interim application, determined on the basis of evidence adduced by affidavit, to continue an injunction “until further order of the Court”. The appropriate forum to consider the further continuation of that order is the Supreme Court. [48] The Union still has an opportunity to apply to a judge of the Supreme Court for joinder, and if joined to make representations concerning the further continuation of the injunction. [49] Counsel on the hearing before me takes the position that on the afternoon of September 30th, 1999, he: ...attempted to intervene and make submissions to the Court on several aspects of the injunction application . . . including attempting to gain intervener status in the intended action . . . but that he was denied status and access to the hearing. [50] My examination of the transcript leads me to conclude that counsel for the Union confined his submissions to attempt to convince the Court to permit him to make representations: ...as a friend of the Court, and of course, in the interests of my client as well, and in the interests of the operating engineers and the IBEW, who are not my clients. [51] This conclusion is supported by the absence of any affidavits filed on behalf of the Union before Justice Tidman supporting any submission to join the Union pursuant to Rule 5.04 or Rule 8. [52] In addition, the transcript does not disclose that counsel for the Union requested an adjournment in order to prepare the documents that are usually filed in support of an application under either of these Rules. [53] The order of October 1st simply continued the interim injunction “until further order of the Court”. These words were used, presumably, because the Court anticipated that Dexter would commence an action in the Supreme Court, as counsel had advised. That action, one would expect, would include a request for injunctive relief for a specific time limit. [54] All of the issues set forth in the proposed notice of appeal are issues that can properly be addressed by the Union if it is joined by application to a Supreme Court judge. The forum of the Supreme Court is the proper forum to enable both parties to adduce evidence in support of their respective opposed submissions. [55] The Union further submits that if its submissions to grant intervener status pursuant to Rule 8 and joinder pursuant to Rule 5.04 are rejected, then a request is made to refer the issue of joinder as a party to a panel of this Court. This was the practice followed by Angers, J. A., of the Court of Appeal of New Brunswick, sitting in Chambers, in la Societe des Acadiens du Nouveau-Brunswick Inc., et al, v. Minority Language School Board No. 50 (1984) 53 N.B.R. (2d) 158. [56] In that case, an association of parents applied to Justice Angers to be added as a party for leave to appeal the decision of Chief Justice Richard, rendered in an action brought by the Society against the School Board. The association of parents was not a party to the action. [57] Justice Angers stated at p. 161: Since there is nothing in the Judicature Act nor in the Rules of Court which provides that such an application can be heard by a single judge, it is my opinion that the application should be dealt with by the Court of Appeal. Accordingly, I am adjourning these applications into the Court of Appeal to be heard by the Court on March 1st, 1984, at 2:00 p.m. [58] The Court of Appeal of New Brunswick subsequently determined [1984] 8 D.L.R. (4th) 238, that an order should issue granting the association of parents leave to appeal as the defendant in the case. Rather than relying on Rule 15 of the New Brunswick Rules of Court dealing with intervention, the Court concluded that it had jurisdiction to add a party for the purpose of launching an appeal, such authority arising from the provisions of the Judicature Act which incorporated the ancient practice of the High Court of Chancery in England. An appeal to the Supreme Court of Canada was dismissed [1986] 1 S.C.R. 549. [59] I decline the request to refer this matter to a panel. [60] The history of the proceedings in the present case, is not comparable to the history of the proceedings in the Association case. [61] Chief Justice Richard presided over a trial that lasted in excess of ten days. The parties had agreed on a statement of facts and extensive viva voce evidence, expert and otherwise, was called. Voluminous exhibits were introduced. A final determination of the issues was made by Chief Justice Richard in a lengthy judgment. At the time the association of parents applied for joinder before Justice Angers, the decision of Chief Justice Richard determining the issues in the case had been rendered. The opportunity for participation at the trial level had, unlike the opportunity available to the Union here, long since passed. [62] The present proceeding is still at the stage of interlocutory proceedings. No viva voce evidence has yet been adduced. No final determination has been made by a trial judge. The only order issued is one that provides for the continuation of an interim injunction until further order of the Court. Indeed, an action has not yet been commenced. This is in marked contrast to the situation that was before Mr. Justice Angers. Conclusion [63] Rule 5.04 and Rule 8, are primarily designed for adding parties, or for intervention at the trial level. (See comments of Hallett, J.A. in Adams, at pp. 214-215, respecting Rule 8). [64] Rule 62.35 governs interventions to the Court of Appeal in an existing appeal. [65] A judge of this Court sitting in Chambers does not have the jurisdiction to grant intervener status pursuant to Rule 8 or to join a person as a party to a proceeding pursuant to Rule 5.04. [66] As the Union was not a party to the original proceeding commenced by Dexter, and has not been joined as an intervener, or as a party defendant, by order of a judge of the Supreme Court, the Union does not, in my opinion, have any standing to file an appeal. [67] I do not accept the Union’s submission that it applied to Justice Tidman to be joined as an intervener, or as a party, pursuant to Rule 5.04 or Rule 8. [68] Even if I had the jurisdiction to add the Union as a party pursuant to Rule 5.04, or as an intervener pursuant to Rule 8, I would decline to exercise such a discretion in view of the remedies available to the Union at the level of the Supreme Court. [69] I would further decline to exercise my discretion to refer this matter to a panel of the Court in view of the remedies available to the Union at the Supreme Court level. [70] Accordingly, I reject the applications for leave to obtain intervener status as a party, or as amicus curiae, or alternatively as an intervener, and I further reject the application to set down this matter for hearing before a panel of this Court. [71] In the circumstances, I decline to award costs. Pugsley, J.A.