Rourke v. City of Toronto, 2012 ONSCDC 2563

CITATION: Rourke v. City of Toronto, 2012 ONSCDC 2563

DIVISIONAL COURT FILE NO.: 288/11

DATE: 2012/04/27

SUPERIOR COURT OF JUSTICE - ONTARIO

DIVISIONAL COURT

RE: Tim Rourke, Plaintiff

v.

THE CITY OF TORONTO, Defendant

BEFORE: Justice Moore

COUNSEL: Tim Rourke, In Person Timothy Carre, for the Respondent

HEARD: 26 April 2012

E N D O R S E M E N T

Moore J.

[1] Mr. Rourke brings two appeals to this court arising from two orders made by judges in an action in the Small Claims Court. He appeals from the order of Kilian DJ, dated 16 March 2011, and he appeals from the order subsequently made by Ashby DJ, dated 19 May 2011. The former order dismissed Mr. Rourke’s action against the City of Toronto and the latter dismissed his request for a new trial. I begin these reasons with my review of the latter order.

[2] Ashby DJ was asked to order a new trial for Mr. Rourke and his authority to do that arose from the provisions of Rule 17.04(1) of the Small Claims Court Rules.[^1] The rule is restrictive and specific. It provides that a party may make a motion for a new trial within 30 days after a final order is made. There is no doubt but that the order made by Kilian DJ dismissing Mr. Rourke’s action was a final order.

[3] The Rule permits the motions judge to grant a new trial only if the moving party demonstrates that there was a purely mathematical error in the determination of the amount of damages awarded, a criterion that does not apply in this case, or that there is relevant evidence that was not available to the party at the time of the original trial and could not reasonably have been expected to be available at that time.

[4] The focus of the appeal before Ashby DJ was upon the second criterion and upon the evidence Mr. Rourke adduced on the motion. Ashby DJ determined that Mr. Rourke had not submitted the evidence necessary to allow him to order a new trial and observed that Mr. Rourke’s right was to appeal to the Divisional Court from the order dismissing his action. The motion was therefore dismissed.

[5] In reaching his conclusion, Ashby DJ necessarily made findings of mixed fact and law. On appeal, findings of fact made by the judge below are afforded deference but there can be cases where questions of fact and law can be so intertwined that the appeal court will choose to apply a standard of review of correctness, a standard that typically applies only to matters of law.[^2]

[6] In my view, Ashby DJ correctly determined both matters of fact and law and the appeal on that basis must be dismissed.

[7] Returning now to a consideration of the appeal from the order of Kilian DJ, Mr. Rourke’s stated grounds for appeal[^3] are that the trial judge conducted himself in an outrageous manner, making several intolerable statements. He refused repeated demands to remove himself from the case. The appellant had no choice but to walk out of the court because of the abuse, Mr. Rourke asserted.

[8] In his Factum, Mr. Rourke argued that Kilian DJ was so bizarre and abusive that he had to leave.[^4] He added that it should be possible to simply go to the local judge, describe the problem clearly, show all relevant evidence and get a judgment that solves the problem. It should not be necessary to know anything beyond the basic principles of common law, of natural justice and of logic. The judge is the person educated in law, let him figure out what tort is involved or what rule applies, then produce written decisions which make ordinary sense.[^5]

[9] In submissions before me, Mr. Rourke complained generally about judges who don't seem to know how to conduct a trial properly and more specifically that Kilian DJ had predetermined the case before hearing evidence, declined to let Mr. Rourke present his evidence as he wished to and interrupted him unnecessarily, all of which Mr. Rourke insists constitutes an apprehension of bias.

[10] Mr. Rourke stated that he is a person who has difficulty organizing and voicing his thoughts, who loses his train of thought and who needs to write things down. As to these limitations, Mr. Rourke tendered no expert or other evidence on this appeal or at the trial. There is no indication in materials I have reviewed, including the transcript of the trial proceedings held on March 16, 2011, of such concerns or of a request to the court to accommodate special circumstances.

[11] A judge presiding at a trial in the Small Claims Court must hear and determine in a summary way all questions of law and fact and may make such order as is considered just and agreeable to good conscience.[^6] This means that the trial judge is afforded a wide discretion to conduct the trial process in an efficient, effective and fair manner. A trial is not an open forum for debate and nor does it afford litigants an opportunity to speak freely on topics of their choice. Put another way, a litigant is not entitled to say whatever she/he wishes to from the witness box or in submissions during the course of a trial.

[12] The trial judge is the gatekeeper and, as such, is charged with the responsibility of admitting evidence, including oral testimony that is relevant to the matters in issue and not unduly repetitious.[^7] The trial judge must determine what evidence is admissible and what is not.

[13] A party has the right to be represented at trial or to present the case without representation. A party wishing to appear at a trial in person in Small Claims Court must understand the process and procedure that the trial judge controls and must understand that a litigant cannot dictate the manner by which evidence is led nor what constitutes relevant and admissible evidence at trial. To the extent that Mr. Rourke may have hoped or expected that he could control the trial process,[^8] he mis-understood his role and that of the trial judge as his trial unfolded on 16 March 2011.

[14] I note in the trial transcript indications that Mr. Rourke intended to dictate the trial process. He opened by stating: “this case is about what happened at Metro Hall on May 29th, 30th last year. If you read through my submissions, I’ve had problems with corrupted judges refusing to hear what I tell them, you’ll do better”.[^9]

[15] Mr. Rourke read from a prepared script, despite repeated requests from the trial judge to provide his evidence orally, from memory and to use his notes for purposes of dates, et cetera, to refresh his memory.[^10] Mr. Rourke read on, stating: “I require this court take a stern view…”[^11]

[16] Mr. Rourke repeatedly demanded that the trial judge recuse himself when Kilian DJ declined to rule in Mr. Rourke’s favour.

[17] Upon being advised that if he refused to follow instructions, Kilian DJ would dismiss the claim immediately, Mr. Rourke stated: “Go ahead. Go ahead and dismiss it.”[^12] Kilian DJ offered Mr. Rourke another chance, even after this exchange but Mr. Rourke refused to listen to the trial judge’s direction “to give his evidence in a cordial manner or in a manner instructed by the court.”[^13]

[18] In the context of this description of the respective role of litigant and judge at a trial, I turn now to the matter of bias. This case presents a rare instance of a concern about judicial bias alleged to be demonstrated not in the decision rendered or the reasons for decision and nor is it alleged to be shown by a lengthy and repeated course of conduct throughout the course of a trial. Here, the trial had just begun and Mr. Rourke stayed but moments in the witness stand before he chose to leave and invited the trial judge to dismiss the case. But even over a short span of time a judge can show bias in a given case and so it is appropriate to consider what bias is and how it appears.

[19] Justice Cory, then of the Supreme Court of Canada, discussed the matter of bias in the context of a criminal case before the court. He quoted from American jurisprudence and adopted this as a helpful explanation of the concept:

The words [bias or prejudice] connote a favorable or unfavorable disposition or opinion that is somehow wrongful or inappropriate, either because it is undeserved, or because it rests upon knowledge that the subject ought not to possess (for example, a criminal juror who has been biased or prejudiced by receipt of inadmissible evidence concerning the defendant’s prior criminal activities), or because it is excessive in degree (for example, a criminal juror who is so inflamed by properly admitted evidence of a defendant's prior criminal activities that he will vote guilty regardless of the facts).

Scalia J. was careful to stress that not every favorable or unfavorable disposition attracts the label of bias or prejudice…

[20] Justice Cory also quoted from Watt J, as he then was:

In common usage bias describes a leaning, inclination, bent or predisposition towards one side or another or a particular result. In its application to legal proceedings, it represents a predisposition to decide an issue or cause in a certain way which does not leave the judicial mind perfectly open to conviction. Bias is a condition or state of mind which sways judgment and renders a judicial officer unable to exercise his or her functions impartially in a particular case.

[21] And Justice Cory endorsed the words of Doherty JA who addressed the matter of potential partiality or bias of jurors saying:

Partiality has both an attitudinal and behavioral component. It refers to one who has certain preconceived biases and who will allow those biases to affect his or her verdict despite the trial safeguards designed to prevent reliance on those biases.[^14]

[22] L’Heureux-Dube and McLachlin JJ, writing in the same case, endorsed this description of the test for reasonable apprehension of bias:

… the apprehension of bias must be a reasonable one, held by reasonable and right minded persons, applying themselves to the question and obtaining thereon the required information….[T]hat test is “what would an informed person, viewing the matter realistically and practically -- and having thought the matter through -- conclude. Would he think that it is more likely than not that [the decision maker], whether consciously or unconsciously, would not decide fairly."

The grounds for this apprehension must, however, be substantial and I… refus[e] to accept the suggestion that the test be related to the "very sensitive or scrupulous conscience".[^15]

[23] They went on to adopt this statement:

The presumption of impartiality carries considerable weight… the law will not suppose a possibility of bias or favour in a judge, who is already sworn to administer impartial justice, and whose authority greatly depends upon that presumption and idea. Thus, reviewing courts have been hesitant to make a finding of bias or to perceive a reasonable apprehension of bias on the part of the judge in the absence of convincing evidence to that effect.[^16]

[24] More recently, the Ontario Court of Appeal discussed the test for reasonable apprehension of bias in a case before it,[^17] saying:

The test contains a two-fold objective element: first, the person considering the alleged bias must be reasonable; and second, the apprehension of bias itself must be reasonable. The jurisprudence in Canada has, over the years, defined and fleshed out these two elements. For example, the reasonable person is vested with knowledge and understanding of the judicial process and the nature of judging. Further"[t]he grounds for this apprehension must… be substantial… and the test [will not] be related to the very sensitive… conscience.

The reasonable person also knows and considers the context surrounding the impugned behavior, including the length and difficulty of the proceedings…

There is one final, essential element that informs the analysis: the strong presumption of judicial impartiality and integrity. The onus rests on the applicant to demonstrate a reasonable apprehension of bias and the threshold is a high one…

[25] Having considered Mr. Rourke's description of his firmly held apprehension of bias in this case, I cannot conclude that it is a belief reasonably held or one that a reasonable person vested with knowledge and understanding of the judicial process and the nature of judging would hold. Nor do I find that the grounds for Mr. Rourke's apprehension are substantial within the meaning of the case law cited above.

[26] In my view, Mr. Rourke has not met the onus upon him to demonstrate a reasonable apprehension of bias having infected the manner by which Kilian DJ approached the trial of the action or conducted himself during the short, difficult but necessary interchange that he had on the record with Mr. Rourke and that led to the latter's invitation to dismiss the action.

[27] I accept the Respondent's submission that the requests made by Kilian DJ of Mr. Rourke to introduce his evidence in a cordial manner as instructed by the court were fair and necessary in order to allow the determination of the case before the court.

[28] I also accept the Respondent's submission that the intervention by the trial judge during Mr. Rourke's testimony was made necessary by the fact that Mr. Rourke insisted on providing his testimony from a prepared speech addressing issues that the judge had deemed to be irrelevant. The text and its delivery were inflammatory and addressed matters that had been struck from the pleadings and constituted argument rather than oral evidence.

[29] In the result, the appeals are dismissed. The respondent shall have costs of these appeals, if demanded. If costs are demanded and cannot be agreed upon, the parties may, by delivering them to the office of the Divisional Court, deliver brief submissions of no more than three pages each on costs issues within 15 days.

Moore J.

DATE: 27 April 2012

[^1]: O. Reg. 78/06, s. 35 [^2]: Housen v. Nikolaisen, 2002 SCC 33 at para 27 [^3]: Notice of Appeal dated 6 June 2011 [^4]: Allellant’s Factum, page 1 at para. 2 [^5]: Appellant’s Factum, page8 at para.6 [^6]: Courts of Justice Act, R.S.O. 1990, c. C.43, Section 25. [^7]: Ibid, at Section 27 [^8]: As suggested in para. 8, above. [^9]: Trial Transcript, at page 11. [^10]: Ibid, at page 12. [^11]: Ibid, at page 12. [^12]: Ibid, at page 12 [^13]: Ibid, at page 13 [^14]: R. v. R.D.S., 1997 324 (SCC), [1997 3 S.C.R. 484 at paras. 105 to 107. [^15]: Ibid, at para. 31. [^16]: Ibid, at para. 32 [^17]: Ontario (Commissioner, Provincial Police) v. MacDonald, 2009 ONCA 805 at paras 42-44.