Brunning and Fontaine v. AGC, 2020 ONSC 1003

Court File and Parties

CITATION: Brunning and Fontaine v. AGC, 2020 ONSC 1003

DIVISIONAL COURT FILE NO.: 084/19,110/19 and 111/19

DATE: 20200213

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

Backhouse Lococo and Penny JJ

BETWEEN:

Fay Brunning

Appellant

– and –

Larry Philip Fontaine et al. Plaintiffs

and

Attorney General of Canada

Respondent/Defendant

Lawrence Greenspon and Tina Hill for Appellant

Catherine Coughlan and Brent Thompson for Attorney General of Canada

Proceedings under the Class Proceedings Act, 1992, S.O.1992, C.6

Backhouse J.

HEARD at Toronto February 11, 2020

Reasons for Decision

1The appellant appeals the July 4, 2018 decision of Justice Perell, the Eastern Administrative Judge for the Indian Residential Schools Settlement Agreement (the “IRSSA”), in which he declined to recuse himself from deciding a request to award costs personally against the appellant, Faye Brunning, counsel for the plaintiffs. In two separate appeals, the appellant also seeks to have two consequent costs orders set aside.

2The appellant represents persons involved in proceedings conducted under the auspices of the IRSSA. On January 4, 2018, the Eastern Administrative Judge for the IRSSA released reasons addressing various issues raised in two Requests for Directions (“RFDs”) brought by the appellant on behalf of her clients. The decision went largely, but not entirely, against the appellant’s clients: Fontaine v. Canada (Attorney General), 2018 ONSC 103.

3The appellant sent several emails to court counsel on January 11 and 12, 2018. In one of those emails she indicated that her client would not participate in the further scheduled proceedings before the Independent Assessment Process Adjudicator (the “IAP Adjudicator”) unless appropriate disclosure was made before the scheduled hearing date. The appellant was scheduled to make closing submissions on behalf of her client before the IAP Adjudicator on January 19, 2018.

4In her emails, the appellant also complained about the conduct of the Attorney General and failures in the adjudicative process. She also challenged the correctness of the Eastern Administrative Judge’s January 4, 2018 reasons.

5The Eastern Administrative Judge issued a direction on January 15, 2018, in which he addressed the contents of the various emails sent by the appellant: Fontaine v Canada (Attorney General), 2018 ONSC 357. The Eastern Administrative Judge issued the January 15, 2018 direction on his own initiative and without requesting or receiving any input from counsel for any of the affected parties.

6In the January 15, 2018 direction, the Eastern Administrative Judge made it clear that the appellant could not unilaterally decide that they would not appear as scheduled before the IAP Adjudicator. He said at paras. 3-5:

In her correspondence, Ms. Brunning also threatened to not attend the resumption of [her client’s] Independent Assessment Process (“IAP) claim under the IRSSA. I regard that threat as disrespectful to IAP Adjudicators and to be a derogation of Ms. Brunning’s duties to her client and as an officer of the court.

I direct Ms. Brunning to participate in the closing submission of [her client’s] hearing as directed by the IAP Adjudicator on Friday, January 19, 2019.

7The appellant and her client appeared before the IAP Adjudicator as scheduled and the matter proceeded to completion.

8In the January 15, 2018 direction, the Eastern Administrative Judge went beyond ordering the appellant to appear as required before the IAP Adjudicator. He commented at some length, and in a negative manner, about the appellant’s conduct and statements she had made, both in her submissions in the proceeding that led to his January 4, 2018 decision and more particularly in her correspondence with court counsel on January 11 and 12, 2018.

9The appellant submits that comments made by the Eastern Administrative Judge in the January 15, 2018 direction created a reasonable apprehension of bias.

10In rejecting the claim of reasonable apprehension of bias, the Eastern Administrative Judge found that when the January 15, 2018 direction was issued, it was not issued against the appellant as a party to a dispute, costs not having yet been claimed against her by the respondent. He found that the claim for costs was not made until February 2, 2018 and that the January 15, 2018 direction dealt with a matter that was irrelevant to the issues on the costs motion.

11The respondent first raised its claim for costs against the appellant personally when it filed its November 17, 2017 factum relating to the two RFDs which came on for preliminary hearing before the Eastern Administrative Judge on December 13, 2017. In his January 4, 2018 decision disposing of the RFDs, the Eastern Administrative Judge invited counsel to make submissions on costs, noting that Canada was seeking costs against the appellant personally and that the issue of costs “is really a settling of scores between Canada and Ms. Brunning”. February 2, 2018 was the date the respondent filed their costs submissions and bill of costs.

Analysis

12It was an error for the Eastern Administrative Judge to find that when he issued the January 15, 2018 direction, costs sought personally against the appellant were not in play and to rely upon that as a basis for finding there was no reasonable apprehension of bias. As set out above, the claim for costs against the appellant personally was first made in November, 2017.

13Without expressing on this appeal any opinion on whether or not the comments made about the appellant were justified, the appellant had no notice that the direction was going to be issued and no opportunity to make submissions in that regard. The comments are critical of the appellant, including findings that she slandered the court, committed possible contempt and committed several instances of professional misconduct. The Eastern Administrative Judge found on the recusal motion that the January 15, 2018 direction deals with a matter that is irrelevant to the issues on the costs motion. That finding cannot be sustained, given his comments in the direction about the appellant’s conduct and about statements she had made in her submissions in the proceeding that led to his January 4, 2018 decision when, at the same time, the request for costs against her personally, arising out of the same proceeding, was pending.

14The parties to these appeals agree on the test for recusal. The Eastern Administrative Judge correctly noted that the grounds for an apprehension of bias must be substantial and the threshold of proof is a high one. There was no allegation of actual bias on the recusal motion. The motion for recusal did not seek to have the Eastern Administrative Judge recuse himself on all matters arising in the future relating to these parties. It was limited to seeking to have him recuse himself from hearing the very unusual remedy of costs sought personally against counsel.

15Given the contents and substantive findings against the appellant contained in the January 15, 2018 direction (which was made without notice and, therefore, with no ability to respond), I am of the view that a reasonable, right minded, fully informed person would conclude that this is one of the rare instances where the author of that direction should not be the one to determine a claim for costs sought personally against the appellant.

Conclusion

16In the result, the appeal of the July 4, 2018 decision of the Eastern Administrative Judge refusing to recuse himself from rendering a determination on costs to be paid personally by the appellant as counsel is allowed. Having concluded that the motion for recusal should have been granted, it follows that the Eastern Administrative Judge’s July 4, 2018 order for costs and the January 21, 2019 costs award on the recusal motion should be set aside. The costs of the proceeding leading to the July 4, 2018 order are remanded to be determined by a different judge.

17In accordance with counsel’s agreement, the respondent shall pay to the appellant’s costs of the appeals in the amount of $53,000 inclusive of costs on the leave application and disbursements.

Backhouse J.

I agree

Lococo J.

I agree

Date: February 13, 2020

Penny J.

CITATION: Brunning and Fontaine v. AGC 2020 ONSC 1003

DIVISIONAL COURT FILE NOs.: 084/19,110/19 and 111/19