DATE: 20040607

DOCKET: C41207

COURT OF APPEAL FOR ONTARIO

RE:

ROBERT CHARLES WATT (Appellant/Plaintiff) – and – BEALLOR BEALLOR BURNS INC., BEALLOR AND PARTNERS INC., EDWARD C. WHITE, HARRY MANDEL SILBERBERG (Respondents/Defendants)

BEFORE:

MOLDAVER, GILLESE and BLAIR JJ.A.

COUNSEL:

Richard H. Parker

for the appellant

Christopher Hluchen and

Sandy M. DiMartino

for the respondents

HEARD:

June 4, 2004

On appeal from the order of Justice James M. Farley of the Superior Court of Justice dated January 6, 2004.

E N D O R S E M E N T

Released Orally: June 4, 2004

[1] The appellant appeals from the order of Farley J. dated January 6, 2004 and asks this court to set aside that order.

[2] The respondents brought a motion to quash the appeal. This court determined that portions of the order were final and other portions were interlocutory. As a result, the appeal is now restricted to those portions of the order that were determined to be final, namely, the allegations in the appellant’s Amended Statement of Claim in paragraphs 1(1), (2), (8), (9), (10), (11) and (14).

[3] The appellant also seeks to overturn the costs order of the motions judge and alleges bias as against the motions judge.

[4] For the reasons that follow, we are of the opinion that the appeal should be dismissed.

[5] Before turning to the substantive matter raised on appeal, however, we would note that Farley J. found that Mr. Charles Mark appeared on the motion as special counsel for Beallor, having been retained by Fraser Milner Cosgrain LLP. That is a finding that was entirely open to the motions judge.

1) Striking out

[6] In our view, the impugned paragraphs are all properly struck out, as an exercise of discretion, on the basis of res judicata, abuse of process or vexatious proceedings.

[7] In so concluding, we are mindful that discretionary orders are to be overturned only where the discretion has been exercised on a wrong principle of law or where a clear error has been made.

[8] The motions judge articulated the correct legal principles, carefully considered the evidence before him (including the matter’s long history and multiple prior orders) and gave thorough reasons. On the record, we see no error in his reasoning or decision. We need not repeat the many determinations Farley J. made, rather, we make the following observations. In relation to the allegations of breach of fiduciary duty and negligence (the house claim being based on the negligence claim), these matters could have been raised before the Master in the various and numerous hearings before the Master.

[9] And, in relation to the appellant’s claims for lost income as a lawyer and loss of law practice, we agree with Farley J. that there is no air of reality to such claims given that the appellant had been disbarred by the Law Society of Upper Canada for misappropriation of client trust funds.

2) The Costs Order

[10] The appellant asserts that the motions judge lacked jurisdiction to make a costs order because the respondents did not provide a bill of costs to the motions judge at the end of the motion.

[11] The requirement to serve a bill of costs on a motion arises only when the motion disposes of a proceeding. See R. 57.01(5) of the Rules of Civil Procedure. The motion below did not dispose of the appellant’s proceeding as the appellant was granted leave to reconstitute his Amended Statement of Claim. There was, therefore, no requirement that the respondents serve a bill of costs.

[12] Costs is a matter within the discretion of the motions judge. In his reasons for decision, Farley J. noted that at the hearing of the motion, counsel for the various parties were asked for their views as to costs on a “win, lose or draw” basis. The appellant’s counsel submitted a bill for $16,741.69 albeit on the basis of a full day hearing whereas the motion took only a half-day. Counsel for the respondents submitted that costs should be on the basis of $15,000 to the successful party. We see no error in the costs order of $15,000 to the respondents.

3) The Allegation of Bias

[13] The appellant questions whether there was bias shown by the motions judge. In support, the appellant points to the fact that this court overturned a decision of the motions judge in a related matter and, thereafter, against the appellant’s wishes, the motions judge granted a further motion of the respondents to have the action transferred from the General List to the Commercial List. It is on these facts that the appellant raises the question of bias.

[14] The test for disqualification of a judge is that of a reasonable apprehension of bias. The facts argued in support of this ground do not come close to meeting the threshold.

[15] Accordingly, the appeal is dismissed. Costs to the respondents on a partial indemnity basis fixed at $11,000, inclusive of GST and disbursements.

“M. J. Moldaver J.A.”

“E. E. Gillese J.A.”

“R. A. Blair J.A.”