Kim v. McIntosh, 2022 ONSC 685

CITATION: Kim v. McIntosh, 2022 ONSC 685

DIVISIONAL COURT FILE NO.: 56/20, 71/20, 390/21 and TBA

DATE: 20220131

SUPERIOR COURT OF JUSTICE – ONTARIO

DIVISIONAL COURT

RE: Anita Kim, Responding Party

AND:

Adan McIntosh, Moving Party

BEFORE: D.L. Corbett J.

COUNSEL: Mr. McIntosh, self-represented Moving Party

Oriana Pollitt, for the Responding Party

In writing, In Chambers: January 31, 2022

ENDORSEMENT

1Mr McIntosh now has four matters pending in this court. This endorsement addresses all of these matters and a motion that Mr McIntosh has indicated he intends to bring to seek an order that I recuse myself from all of his matters.

2The underlying family law proceedings were tried before Steele J. in an undefended trial in September 2021, and Steele J. decided that case on a final basis on October 1, 2021. As a result, all of the interlocutory orders in the family law proceedings are now spent. Mr McIntosh’s recourse in the case, at this point, is an appeal to the Court of Appeal from the decision of Steele J. I review the matters currently outstanding in this court through that lens and give directions, all of which are summarized at the end of this endorsement.

File 56/20

3File 56/20 in this court is a motion to review before a panel of this court the order of Favreau J. (as she then was), quashing Mr McIntosh’s appeal proceedings in respect to interim orders of Paisley J.

4In my view the interim orders of Paisley J. were long “spent” by the time the issue was considered by Favreau J. However, that was, implicitly, one of the issues Mr McIntosh wished to contest on his review motion before a panel, and I did not exercise my discretion to dismiss the review motion under R.2.1 on that basis. One judge of this court had already determined that the appeal proceedings were unworthy of the litigation process. Mr McIntosh was entitled to have that decision considered by a panel of this court (Courts of Justice Act, s.20(5)), or, if I had dismissed the review motion pursuant to R.2.1, by a panel of three judges of the Court of Appeal on a motion for leave to appeal (Courts of Justice Act, s.6(1)). I left the issue to be decided by a panel of our court.

5Now, however, the situation has changed. There appears to be no argument now that the order of Paisley J. has any continuing force. Any appeal from his order is apparently now moot, given the final judgment rendered by Steele J.

6I will give Mr McIntosh an opportunity to address this issue before disposing of it. The Registrar is directed to issue a notice pursuant to R.2.1 that the court is considering dismissing the motion to review the order of Favreau J. on the basis that the review motion is now moot as a result of the final order of Steele J.

File 71/20

7This file is a motion for leave to appeal a costs order made by Nakonechny J. The substantive order of Nakonechny J. is now merged in the trial judgment of Steele J., but the same cannot be said of the costs order.

8By para. 14 of my endorsement dated September 20, 2021 (2021 ONSC 6216), I directed as follows in respect to this file:

Mr McIntosh may still pursue his motions for leave to appeal, on the following terms:

(a) Mr McIntosh will serve and upload to CaseLines his motion materials for the motion for leave to appeal the order of Nakonechny J. by October 1, 2021 and shall send the court an email when he has done this.

(b) ….

(c) If Mr McIntosh fails to serve and upload to CaseLines his motion materials pursuant to either (a) and/or (b), the motion for which he has failed to serve and upload materials shall be dismissed as abandoned without costs.

9I have reviewed the materials in CaseLines but have been unable to find motion materials for leave to appeal the order of Nakonechny J. served and uploaded in accordance with this direction. However, there are a lot of materials in CaseLines, Mr McIntosh is self-represented, and I wish to give him an opportunity to address this issue before disposing of it. Mr McIntosh shall advise the court if he takes the position that he served and uploaded to CaseLines materials in compliance with para. 14(a) of my direction of September 21, 2021, and shall direct the court to where, in CaseLines, these materials may be found. If Mr McIntosh did not comply with the direction, he may explain, briefly, why this court should not dismiss his motion for leave to appeal the costs order of Nakonechny J. for failure to follow the court’s case management directions.

File 390/21

10In this file, Mr McIntosh seeks leave to appeal interlocutory orders made by Shore J. Those orders have now apparently merged in the trial judgment of Steele J. Mr McIntosh’s recourse, now, appears to be to the Court of Appeal by way of appeal from the judgment of Steele J.

11Again, I will give Mr McIntosh an opportunity to address this issue before disposing of it. The Registrar is directed to issue a notice pursuant to R.2.1 that the court is considering dismissing the motion for leave to appeal the order of Shore J. on the basis that the review motion is now moot as a result of the final order of Steele J.

File TBA

12Mr McIntosh provided this court with a notice of motion for leave to appeal from an order of Hood J. made in early December. Among other things, Hood J. ordered that Mr McIntosh not bring any further motions without prior leave from the court.

13This court issued a triage direction that Mr McIntosh serve and upload to CaseLines his motion materials for the motion for leave to appeal from the order of Hood J. by January 21, 2022, after which the court would provide further directions.

14The court has reviewed the materials currently in CaseLines, and they include materials for a motion for leave to appeal that were uploaded in January 2022. The court was unable to view the motion record – it is not clear what the technical problem is with those materials, and the court has directed court staff to reach out to Mr McIntosh so that the problem may be resolved and the court may review the motion materials. The court was able, however, to review the factum and amended factum that appear to have been uploaded in connection with this motion for leave to appeal, and the factum appears to be directed to a potential appeal of the order of Shore J., and not the order of Hood J. Court staff has been directed to reach out to Mr McIntosh to clarify this point and to determine whether there are other materials that have been served and uploaded seeking leave to appeal from the order of Hood J. Once these points are clarified, the court will provide further directions respecting the motion for leave to appeal from the order of Hood J.

Proposed Recusal Motion

15Mr McIntosh has advised the court that he seeks an order that I not be involved in any of his matters. Mr McIntosh has been advised about the proper process for him to pursue this issue. I summarize that information here:

(i) a jurist is not disqualified from presiding in a matter because a party has said he will move for recusal.

(ii) a recusal motion is to be brought before the jurist said to be biased or in respect to whom there is said to be a reasonable apprehension.

(iii) if and when Mr McIntosh serves and provides the court with motion materials seeking my recusal from his matters, I will give further directions about completing the exchange of materials for that motion and scheduling a hearing of the motion.

(iv) until that motion is heard and decided, I will continue to case manage all of Mr McIntosh’s matters in the Divisional Court, unless I subsequently direct otherwise.

16Mr McIntosh is directed to this court’s recent decision in Kivisto v. Law Society of Ontario, 2021 ONSC 6394, and the authorities cited in that case, which set out basic principles that apply to an allegation of bias or reasonable apprehension of bias against a judge.

Summary

17The Registrar is directed to issue separate notices pursuant to R.2.1 that the court is considering dismissing the proceedings in Files 56/20 and 119/21 because the appeals have been rendered moot by the final judgment of Steele J., as explained above.

18Mr McIntosh is directed to explain to the court, by email, by February 15, 2022, whether he has complied with the directions given on September 21, 2021 in respect to File 71/20.

19Mr McIntosh shall cooperate with court staff in respect to the materials he has filed on CaseLines that may not be viewed, and in respect to identifying any materials he has served and uploaded to CaseLines respecting his motion for leave to appeal from the order of Hood J.

20Mr McIntosh is under no deadline to bring his proposed recusal motion. However, the court will only entertain such a motion in ongoing litigation before this court. For the purposes of this statement, the motion for leave to appeal from the order of Hood J. is currently an “ongoing proceeding” in this court.