Court File and Parties

COURT FILE NO.: CV-09-1026-00 03-BN-8145 CV-13-1173-00 CV-13-5319-ES CV-13-5389-00 CV-15-4565-00 CV-16-5670-00

DATE: 20180628

SUPERIOR COURT OF JUSTICE – ONTARIO

RE: SAM COSENTINO on his own behalf and on behalf of all creditors of DOMINACO DEVELOPMENTS INC. Anna Cosentino, Caesar Cosentino and Mary Alilovic, the Estate Trustees of the ESTATE OF DOMENIC COSENTINO, Deceased, CAESAR COSENTINO, ANTHONY COSENTINO, MARIA COSENTINO, 1183082 ONTARIO INC., 1331722 ONTARIO INC., 1347482 ONTARIO INC. and PIT-ON CONSTRUCTION CO. LIMITED

Plaintiffs

v.

DOMINACO DEVELOPMENTS INC., Caesar Cosentino and Mary Alilovic, the Estate Trustees of the ESTATE OF DOMENIC COSENTINTO, Deceased, ANNA COSENTINO, CAESAR COSENTINO, MARY ALILOVIC, ANTHONY COSENTINO, MARIA COSENTINO, 1183082 ONTARIO INC., 1331722 ONTARIO INC., 1347482 ONTARIO INC., PIT-ON CONSTRUCTION CO. LIMITED and JAMES ARTHUR MACCOLL

Defendants

BEFORE: Daley, RSJ.

COUNSEL: Antoniou, A., Counsel for Arthur MacColl Handler, M. and Evangelista, E., Counsel for Anthony Cosentino; Mary Alilovic; Maria Cosentino; Stefanie-Anne Cosentino; Anna Cosentino; Mary Alilovic in her capacity as Estate Trustee; 1183 Ontario Inc.; 1331 Ontario Inc.; Pit-On Constructions Co.; Dominaco Developments Inc. Singer, E., Counsel for Defendant Scolieri Turk, S., Counsel for May Alilovic and Domenic Cosentino and Co. Sam Cosentino, in person Concetta Cosentino and Cesare Cosentino, in person

HEARD: May 23, 2018

REASONS FOR DECISION ON RECUSAL MOTION

INTRODUCTION:

[1] The moving parties, Sam Cosentino (“Sam”), Concetta Cosentino (“Concetta”) and Cesare Cosentino (“Cesare”), (all moving parties hereinafter collectively referred to as the “Moving Parties”) brought motions that I recuse myself as case management judge in the following actions:

(a) 03-BN-8145 ( herein “Sam’s Fees Action”); (b) CV-09-1026-00 (herein “Sam’s 1st Fraud Action”); (c) CV-13-1173-00 ( herein the “Application to Compel Mary to Pass Accounts”); (d) CV-13-5319-ES ( herein “Mary’s Application to Pass Accounts”); (e) CV-13-5389-00 ( herein the “Oppression Action”); (f) CV-15-4565-00 ( herein “Cesare’s Debt Recovery Action”); and, (g) CV-16-5670-00 ( herein “Cesare’s Fraud Action”).

[2] As the Regional Senior Judge for Central West Region, I appointed myself as the case management judge in all of the above referenced actions (the “Actions”) in accordance with rule 37.15 of the Rules of Civil Procedure.

[3] All of the Moving Parties are self-represented, including the plaintiff Sam, who is a barrister and solicitor, licensed to practice law by the Law Society of Ontario.

[4] The Actions all involve high conflict family litigation which has been outstanding for many years.

[5] These actions initially came before me as a result of an appearance by counsel in action 03–BN–8145 on May 8, 2017 at which time Sam and counsel for the defendants in that action appeared in court with regard to a request by Sam that the trial in that action be adjourned as a result of his health. As he was uncertain when the trial would be ready to proceed and given that the plaintiff wished to bring certain pretrial motions, the case was struck from the trial list.

[6] Following that court appearance and my appointment as case management judge in the Actions, counsel and the parties appeared in court on several case management conferences. Following those conferences, I released case management endorsements outlining the discussions that occurred at the conferences and setting out case management orders made. Several endorsements were also released following receipt of unsolicited correspondence and emails from the Moving Parties delivered contrary to rule 1.09.

[7] As set out above, the Moving Parties seek an order that I recuse myself as the case management judge in all of the Actions and alternatively that the Actions be transferred from Brampton to Toronto, or that if I declined to recuse myself, that I not engage in any of the duties of case assignment or scheduling in respect of the Actions, as is my duty as the Regional Senior Judge for this region.

[8] As to the request that the Actions be transferred from Brampton to Toronto, there is no evidentiary nor legal basis whatsoever for such an order. Further, a transfer request of this type falls within the jurisdiction of the Regional Senior Judge in the proposed receiving jurisdiction and as such that claim for relief in the motions must be dismissed. Rule 13.1.02 provides jurisdiction to the Regional Senior Judge to transfer an action from one judicial centre to another within the region where he or she presides, however a transfer from one region to another may only be sought upon the bringing of a motion before the Regional Senior Judge or their designate in the region to which the transfer is sought.

[9] As I have concluded that the Moving Parties’ request for an order that I not exercise my duties of case management and scheduling, in the event I declined to recuse myself, is tied up in the first relief sought, namely my recusal, I will consider this claim for relief with the general recusal request.

Chronology of Events and Grounds Asserted for Recusal:

Case Management Conference of October 27, 2017:

[10] As it was determined at this case conference that if there were several related actions involving similar parties, I concluded that it was appropriate that a case management judge be appointed pursuant to rule 37.15 and given my familiarity with the matters I appointed myself as case management judge in respect of all actions other than action CV–18–1011, which had not been commenced at that time.

[11] At this case conference, the plaintiff Cesare was not represented by counsel. Sam offered to represent him, in spite of the obvious conflict arising from the fact that in action CV–09–1026 Sam had named Cesare as a defendant. No order was made regarding the representation of Cesare at this case management conference, as he advised that he was in the process of retaining counsel other than Sam.

[12] It was also determined at this case conference that there was a deadlock as between the remaining estate trustees of the estate involved. A further case management conference was scheduled for January 5, 2018.

Case Management Conference of January 5, 2018:

[13] This conference was attended by all parties including counsel for the defendant MacColl’s trustee in bankruptcy.

[14] It was urged by the Moving Parties that Ricchetti, J. by an order made in the Oppression Action (CV–13–5389) had seized himself of the action. Counsel for other parties disputed that and I determined that Ricchetti, J. in fact had not seized himself of that action.

[15] During this case conference, Sam proposed to submit to me a Pleadings Brief and I requested that counsel opposite advise as to whether they consented to the filing of this brief, at which time I was advised that the brief contained proposed amendments to a pleading that it not been yet granted and as such I declined to receive the so-called Pleadings Brief.

[16] At the close of this case management conference, counsel were required by me to file a proposed or agreed upon timeline for the completion of discoveries and motions in various of the case managed actions, including the scheduling of motions before me through my administrative assistant.

[17] In concluding the January 5, 2018 case management conference, counsel Levine, who at that time represented some of the Cosentino defendants, extended his legal assistant’s personal regards to me.

[18] Following that case conference, the Moving Parties Cesare and Concetta sent an unsolicited email to my office dated January 16, 2015 alleging a “personal relationship of friendship” between me and counsel Levine. These parties requested that I disclose “all direct or indirect personal connections, relationships or involvement” that I have had with Levine or any lawyer representing any of the parties in the lawsuits under case management.

[19] By endorsement of January 19, 2018 I responded to the allegations made by the Moving Parties where I stated in part: “(3) It is not without some reluctance that I am responding to the issue raised… as the plaintiffs’ allegations are absolutely baseless. (4) To be clear, Mr. Larry Levine and I have no personal relationship whatsoever. More than 30 years ago Mr. Levine and I practiced in the same law firm but have had no association since then. (5) ….. Mr. Levine’s legal assistant worked in a law firm where I was a partner at approximately 25 years ago.”

[20] In my endorsement of January 19, 2018, I also advised the litigants in the Actions that if parties to the actions under case management directed any communication to me other than in accordance with rule 1.09, that correspondence would simply be filed and not acknowledged. This endorsement was made given the numerous and frequent unsolicited communications sent directly to me via my administrative assistant primarily by the Moving Parties.

Private Correspondence from Sam Dated January 22, 2018:

[21] In spite of my admonitions to the Moving Parties and counsel, Sam directed to me a letter dated January 22, 2018, which was not shared with any other party. He indicated that he did not consider his letter as being out-of-court communication governed by rule 1.09 and as such it was not shared with other parties.

[22] In his letter he stated in part: “Please accept this note as my personal apology for causing offence to you. You deserved to be treated with the utmost respect and professionalism at all times and I failed to do so. I’m very sorry and apologize for that, sir. And I am resolved to conduct myself better in the future.”

[23] Again, viewing this communication as being in breach of rule 1.09, a copy of Sam’s correspondence addressed to me dated January 22, 2018, was shared with all other parties and counsel by way of my endorsement dated January 28, 2018.

February 26, 2018 – Appointment to Settle Orders:

[24] This appointment was scheduled to settle the terms of orders made, as the parties could not agree on same and during this attendance Sam also made submissions with respect to the scheduling of a motion to amend his pleadings. After initially declining the scheduling of such a motion before me, I released an endorsement of February 26, 2018 proposing motion dates for such a motion on either March 28 or 29, 2018.

[25] Upon the return of Sam’s motion to amend his pleadings in the Fraudulent Conveyance Action, Sam submitted that he would not proceed with a motion before me as I must recuse myself. This submission was made without any motion served and filed and during his submissions Sam stated that unless I recused myself from the hearing at that time, a formal motion would be brought and a complaint filed with the Canadian Judicial Council seeking my removal “from the bench based on your demonstrated bias towards me and the other plaintiffs.”

[26] On this date, otherwise scheduled for Sam’s motion to amend his pleading, a timetable was established for the return date of the recusal motion and the filing timelines.

[27] Through inadvertence, my endorsement dated April 3, 2018, following the court attendance of March 28, 2018, which provided for a hearing date of April 11, 2018, for Sam’s motion to amend his statement of claim was not emailed to Sam or the other Moving Parties. This resulted from an error on the part of my temporary administrative assistant, who was assisting in my administrative assistant’s absence while she was on vacation.

[28] Ultimately, the endorsement of April 3 came to the attention of the Moving Parties and Sam’s motion seeking an order allowing the amendment of his statement of claim in action CV–09–1026 was argued before LeMay, J. Although Sam submitted that he had not received the April 3, 2018 endorsement at the same time as the other parties, he did not seek an adjournment of the motion when it came before LeMay, J.

[29] The April 3 endorsement also provided for the timetable set for the delivery of materials on this recusal motion and the scheduled return date.

[30] On April 19, 2018 Sam wrote to the Executive Legal Officer to the Chief Justice of the Ontario Superior Court of Justice requesting information on cases decided by me.

Applicable Legal Framework as to Recusal Motion:

[31] The principles applicable to the determination of the recusal motion based on bias or the reasonable apprehension of bias have been clearly stated in several cases including by the Supreme Court of Canada in R. v. S. (R.D.), [1997] 3 S.C.R. 484.

[32] Recently, in the decision in R. v. Singh, 2018 ONSC 1534, Durno, J. thoroughly reviewed the jurisprudence as to the applicable test to be considered on a recusal motion.

[33] In S. (R.D.), (supra) at para 111 the Supreme Court set out the applicable test and stated as follows:

111 The manner in which the test for bias should be applied was set out with great clarity by de Grandpré J. in his dissenting reasons in Committee for Justice and Liberty v. National Energy Board, [1978] 1 S.C.R. 369, at p. 394:

[T]he 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. . . . [The] test is “what would an informed person, viewing the matter realistically and practically -- and having thought the matter through -- conclude. . . .”

This test has been adopted and applied for the past two decades. It contains a two-fold objective element: the person considering the alleged bias must be reasonable, and the apprehension of bias itself must also be reasonable in the circumstances of the case. See Bertram, supra, at pp. 54-55; Gushman, supra, at para. 31. Further the reasonable person must be an informed person, with knowledge of all the relevant circumstances, including “the traditions of integrity and impartiality that form a part of the background and apprised also of the fact that impartiality is one of the duties the judges swear to uphold”: R. v. Elrick, [1983] O.J. No. 515 (H.C.), at para. 14. See also Stark, supra, at para. 74; R. v. Lin, [1995] B.C.J. No. 982 (S.C.), at para. 34. To that I would add that the reasonable person should also be taken to be aware of the social reality that forms the background to a particular case, such as societal awareness and acknowledgement of the prevalence of racism or gender bias in a particular community.

[34] As to what constitutes bias, the court in S. (R.D.) held at para 105:

105 In contrast, bias denotes a state of mind that is in some way predisposed to a particular result, or that is closed with regard to particular issues. A helpful explanation of this concept was provided by Scalia J. in Liteky v. U.S., 114 S.Ct. 1147 (1994), at p. 1155:

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). [Emphasis in original.]

Scalia J. was careful to stress that not every favourable or unfavourable disposition attracts the label of bias or prejudice. For example, it cannot be said that those who condemn Hitler are biased or prejudiced. This unfavourable disposition is objectively justifiable -- in other words, it is not “wrongful or inappropriate”: Liteky, supra, at p. 1155.

[35] The Supreme Court of Canada also examined a bias allegation in R. v. Teskey, 2007 SCC 25, [2007] 2 S.C.R. 267 and stated at para 20:

20. The notion of judicial integrity was discussed at length by this Court in R. v. S. (R.D.), [1997] 3 S.C.R. 484 (S.C.C.). It encompasses the expectation that judges will strive to overcome personal bias and partiality and carry out the oath of their office to the best of their ability. Impartiality was described as follows by Cory J. (at paras. 104-5):

…impartiality can be described – perhaps somewhat inexactly – as a state of mind in which the adjudicator is disinterested in the outcome, and is open to persuasion by the evidence and submissions.

[36] The Court of Appeal in Martin v. Samsone, 2014 ONCA 14 held at para 31:

31. Bias is a predisposition to decide an issue or cause in a certain way that does not leave the judicial mind open and impartial: Roberts v. R., 2003 SCC 45, [2003] 2 S.C.R. 259 (S.C.C.) at para 58 …

[37] As to the “reasonable person” component of the test for bias or reasonable apprehension of bias, the Supreme Court in S. (R.D.) addressed this at paras 36 and 37:

The presence or absence of an apprehension of bias is evaluated through the eyes of the reasonable, informed, practical and realistic person who considers the matter in some detail (Committee for Justice & Liberty, supra.) The person postulated is not a “very sensitive or scrupulous” person, but rather a right-minded person familiar with the circumstances of the case.

It follows that one must consider the reasonable person’s knowledge and understanding of the judicial process and the nature of judging as well as of the community in which the alleged crime occurred.

[38] As to the high threshold on a motion for recusal, the court in S. (R.D.) held at para 113 as follows:

113 Regardless of the precise words used to describe the test, the object of the different formulations is to emphasize that the threshold for a finding of real or perceived bias is high. It is a finding that must be carefully considered since it calls into question an element of judicial integrity. Indeed an allegation of reasonable apprehension of bias calls into question not simply the personal integrity of the judge, but the integrity of the entire administration of justice. See Stark, supra, at paras. 19-20. Where reasonable grounds to make such an allegation arise, counsel must be free to fearlessly raise such allegations. Yet, this is a serious step that should not be undertaken lightly.

[39] In R. v. Nero, 2016 ONCA 160, Watt, J. A. stated as follows at paras 30 – 33:

30 … the standard refers to an apprehension of bias that rests on serious grounds in light of the strong presumption of judicial impartiality: Committee for Justice and Liberty, at p. 395; Wewaykum, at para 76. The grounds for the apprehension must be substantial: S. (R.D.), at para. 112.

31 … as a necessary consequence of the presumption of judicial impartiality, the onus of demonstrating bias lies with the party who alleges its existence: S. (R.D.), at para. 114. That party must prove bias on a balance of probabilities: Marchand (Litigation Guardian of) v. Public General Hospital Society of Chatham (2000), 51 O.R. (3d) 97 (Ont. C.A.), at para. 131.

33. Finally, at least as a general rule, allegations of bias or a reasonable apprehension of bias should be advanced as soon as it is reasonably possibly to do so: R. v. Curragh Inc., [1997] 1 S.C.R. 537 (S.C.C.), at para. 11.

[40] Further, in considering the high threshold on a recusal motion, Laskin, J.A. made the following comments at para 128 in R. v. Grant, 2016 ONCA 639:

The appellants’ submission must be assessed in the light of the high threshold for showing bias. We presume judges will be impartial. We presume they will carry out their oath of office and act fairly to litigants. This high threshold requires cogent evidence to make out a claim of bias. The test to meet, which has stood for many years, is would an informed person, viewing the matter realistically, and having thought the matter through, conclude that the trial judge would not decide the matter fairly: Committee for Justice & Liberty v. Canada (National Energy Board) (1976), [1978] 1 S.C.R. 369 (S.C.C.) at p. 394.

[41] In the decision in Beard Winter v. Shekdor, 2016 ONCA 493, the appellant moved to have Doherty, J.A. recuse himself on the appeal and he wrote at para 10 as follows:

It is important that justice be administered impartially. A judge must give careful consideration to any claim that he should disqualify himself on account of bias or a reasonable apprehension of bias. In my view, a judge is best advised to remove himself if there is any air of reality to a bias claim. That said, judges do the administration of justice a disservice by simply yielding to entirely unreasonable and unsubstantiated recusal demands. Litigants are not entitled to pick their judge. They are not entitled to effectively eliminate judges randomly assigned to their case by raising specious partiality claims against those judges. To step aside in the face of a specious bias claim is to give credence to a most objectionable tactic.

[42] As to the presumption of judicial impartiality, the Court of Appeal in R. v. Montoya, 2015 ONCA 786 held as follows at para 9:

… An allegation of reasonable apprehension of bias should not be made lightly. That is because, as McLachlin C.J. said in Cojocaru (Guardian ad litem of) v. British Columbia Women’s Hospital & Health Center, 2013 SCC 30, at para. 22:

There is a presumption of judicial integrity and impartiality. It is a high presumption, not easily displaced. The onus is on the person challenging the judgment to rebut the presumption with cogent evidence showing that a reasonable person apprised of all the relevant circumstances would conclude that the judge failed to come to grips with the issues and decide them impartially and independently.

[43] On several occasions both in affidavit material and in written submissions, as well as during oral submissions Sam has indicated his intention to file a complaint regarding my judicial conduct with the Canadian Judicial Council.

[44] In its decision in Doncaster v. Chignecto – Central Regional School Board, 2013 NSCA 59, the Nova Scotia Court of Appeal made the following observation at para 13: “Obviously the mere filing of a complaint with the Canadian Judicial Council does not pull the trigger for recusal”.

[45] Corbett, J. in Peoples Trust Company v. Atas, 2018 ONSC 58 came to similar conclusions and stated at para 172: “…a litigant does not get to select her judge or decide that a certain judge will not preside in her matter” and “the fact of the complaint to the Canadian Judicial Council [is not a basis] for recusal.”

[46] Finally, it is very important to note that the allegations of bias in these Actions have been made within the context of my role as a case management judge.

[47] The interaction between judicial officers, counsel and parties in case management requires close interaction. This can lead to some informality and as such the test for reasonable apprehension of bias is more stringent: Blich v. Buick, 2015 ONSC 3398.

[48] In Rogers Wireless Inc. v. Celluland Canada Inc., 2010 ONSC 2301, Master Haberman stated that when addressing reasonable apprehension of bias in the case management context, the question is whether the judicial officer has decided the matter to the extent that he or she is no longer capable of being persuaded by the evidence. The issue was one of an open or closed mind.

[49] The test upon which Master Haberman appears to rely originates with the decision of MacDonald, J. in Control & Metering Limited v. Karpowicz at p. 14 where he states as follows:

… I am of the opinion that the applicant must establish an apprehension, reasonable in the circumstances, that the case management judge’s views are such that she is no longer capable of being persuaded by evidence to be filed (if any) and legal arguments to be raised in subsequent motions, in order for her to be disqualified. The apprehension that she may well take into account in subsequent motions the views of the facts and legal issues which she formed in prior motions is well founded. That is what the case management rules mandate. That cannot, however, give rise to an apprehension of bias sufficient to disqualify the judge because that is precisely what the rules mandate.

I therefore conclude that when a person, informed about the case management rules, the public interests served by them and the actions of this case management judge, considers all matters reasonably, including the right to a trial before a different judge, there can be no apprehension of bias.

[50] In his decision in Abrams v. Abrams, 2010 ONSC 2703 at para 65, in discussing the scope of judicial case management D.M. Brown, J. (as he then was) cites with approval the decision of Master Haberman in Mother of God Church v. Bakolis, [2005] O.J. No. 1638 and her comments at para 30 regarding a recusal motion brought against the Master in the case management environment in which the motion was brought.

[51] Master Haberman stated as follows at para 30:

It is understood that, in a case managed environment, there will be times when the master forms an impression about how one party or the other has been conducting itself as a result of this repeated exposure. If the view if unfavourable, that, in and of itself, does not give rise to a basis for recusal. One must still meet the test that has been articulated by the Supreme Court of Canada. Similarly, if the master’s repeated dealings with the parties and the issues gives rise to a sense that there is more merit to one side than the other, that, too, will not suffice to prevent further handling of the case. That is precisely what case management was intended to do – create an expeditious and cost effective way to resolve all aspects of the disputes that come before the courts, by allowing judges/masters to become familiar with the case through repeated exposure.

Analysis:

[52] The Actions which are the subject of this recusal motion are clearly high conflict involving a series of financial disputes between family members which have been outstanding for many years. Sam and the other Moving Parties have demonstrated in their appearances before me a high degree of emotion and anger with respect to not only the outstanding litigation and the conduct of the defendants, but as well with various procedural case management orders made by me.

[53] It must be noted that under the terms of rule 37.15 I will not be the trial judge. My role in accordance with that rule is to oversee the procedural conduct of the actions under case management, including the hearing of motions. During the course of the case management of these actions thus far, I have not made any substantive orders, but have simply endeavored to case manage the actions in the most cost-effective, efficient and most practical way possible.

[54] The high degree of emotion and anger clearly evident among the parties is best demonstrated by Sam’s letter of apology relating to his in-court conduct, which was sent to me following one of the case conference attendances.

[55] It is within this challenging context that I have attempted to carry out my duties as a case management judge.

[56] I have concluded that the recusal motions brought by the Moving Parties must be dismissed for the reasons that follow.

[57] The analysis of the Moving Parties motions must begin with a determination as to whether or not there is cogent evidence adduced that would overcome the presumption of impartiality and not simply unsubstantiated allegations or speculation.

[58] A reasonable person must be one who is informed with reasonable knowledge of all the relevant circumstances and an understanding of the judicial process and the nature of judging in case management.

[59] I have concluded that a reasonable person observing the case management conferences held in the Actions would not conclude that I was predisposed against the Moving Parties. Such reasonable persons would know that it is my duty and responsibility to ensure the fair and efficient conduct of litigation over which I have been assigned case management.

[60] No evidence at all has been adduced by the Moving Parties which would cause a reasonably informed member of the public to conclude that I am biased against the Moving Parties or favour any other party in these Actions over the interests of the Moving Parties.

[61] An allegation of bias on the part of a judicial officer or the assertion of a reasonable apprehension of bias must rest on substantial and serious grounds, in light of the strong presumption of judicial impartiality.

[62] The Moving Parties have made numerous bald and unsubstantiated allegations that I am biased against them or that my conduct would give a reasonably informed person a reasonable apprehension of bias.

[63] The plaintiff Sam indicated at one point in his submissions that he had hired an investigator to look into the background of the allegations of bias that he was asserting. Ultimately, no evidence was adduced by the Moving Parties as had been suggested in his submissions.

[64] In a similar vein, Sam has threatened to report my judicial conduct to the Canadian Judicial Council for the obvious purpose of intimidating me into recusing myself.

[65] I have done my utmost to ensure fairness and transparency in the conduct of this very acrimonious litigation and especially have been mindful of the animosity between the parties and how that could adversely affect the fair conduct of these Actions.

[66] The Moving Parties may not have been pleased with some of the procedural rulings I have made, however I have concluded that a reasonably informed person, familiar with the Actions and the conduct of case management would not conclude that I am biased against the Moving Parties or have treated the parties opposite with any favour.

[67] On several occasions the Moving Parties, based on submissions from Sam, sought that I disapprove alleged bias by producing evidence related to any past association with counsel Larry Levine or with his secretary. Absolutely no evidence whatsoever has been adduced that would support the Moving Parties allegation that I have a friendship or personal association with either of these persons which would impair my ability to act impartially in the case management of these Actions.

[68] With regard to the late emailing of my case management endorsement of April 3, 2018, which was inadvertently not sent to the Moving Parties, the record more than adequately explains that my temporary administrative assistant made an error in not emailing the endorsement to those parties and she has acknowledged such in her email communication with the Moving Parties. Although not expressly stated in an affidavit, Sam suggested that I purposefully directed my temporary administrative assistant not to send the email to the Moving Parties.

[69] In spite of the fact that I am designated as the case management judge assigned to deal with all motions, given the allegation of potential prejudice that might have followed a delay in Sam bringing a motion to amend his statement of claim, I assigned LeMay, J. to preside on that motion at the earliest date available with any judge sitting in Brampton. That motion was argued on the date scheduled.

[70] On considering the submissions contained in the factum filed by Sam, which are relied upon by the other Moving Parties, a substantial portion of the submissions relates to the merits of the substantive claims in the litigation and without any cogent evidence supporting the allegation of bias. All of the factual statements made purportedly in support of an allegation of bias are at their highest speculation only.

[71] The allegations of bias, as set out in the motion records filed by the Moving Parties may, as submitted by counsel for the defendants opposing the recusal motion, be grouped into four general categories. I adopt their categorization of the allegations as set forth in their facta.

[72] The four groupings of the allegations, as categorized by counsel for the defendants, are as follows:

A) allegations in which the Moving Parties infer bias from RSJ Daley’s comments, demeanour or actions in court; B) allegations in which the Moving Parties infer bias from RSJ Daley’s procedural decisions and/or actions in the context of case-managing the Case Managed Proceedings; C) allegations in which the Moving Parties infer bias from RSJ Daley’s refusal to respond to demands for disclosure; D) allegations in which the Moving Parties infer bias from actions of parties other than RSJ Daley.

[73] The last two categories of allegations are of no probative value and no evidence has been adduced in support of those categories.

[74] With respect to the assertion that I refused to produce disclosure information, as stated by the Court of Queen’s Bench of Alberta, “… a judge cannot be obliged to in effect testify and provide evidence to address the presumption (whether to demonstrate impartiality or evidence to rebut it) without seriously undermining the judicial process”: Al-Ghamdi v. Alberta, 2016 ABQB 424 at paras. 31 and 78.

[75] As to the last category of allegations related to the conduct of counsel, these allegations are seemingly for the purpose of trying to infer bias based on the conduct of other parties and counsel. To a reasonably informed observer familiar with these cases, I have concluded that the unfounded allegations have no probative value.

[76] As to my actions and demeanor in court when involved in case management of the Actions, the allegations asserted are entirely subjective and self-serving, without any direct evidence in support. The assertions made are not supported by cogent evidence. Similarly, judicial reprimands as to conduct of a party or counsel do not give rise to a reasonable apprehension of bias: 4361814 Canada Inc. v. Dalcor, 2015 ONSC 1481 at para 58; Authorson (Litigation Guardian of) v. Canada (Attorney General), 2002 CarswellOnt 1724 (Div.Ct.), at para 68; Beard Winter v. Shekdor, (supra) at para 12.

[77] As to the Moving Parties’ assertion that my reprimand of Sam gives rise to a reasonable apprehension of bias when he proposed to file a ”Pleadings Brief”, when in fact it included proposed amended pleadings and not simply pleadings which had been filed in the court record on consent or by order of the court, that reprimand was based on the clear misrepresentation by Sam as to the nature of the material contained in the brief.

[78] The procedural decisions complained of represent simply an example of the dissatisfaction of the Moving Parties with the procedural orders made and do not constitute any evidence whatsoever, upon which a reasonably informed person could conclude that I acted with bias or that there was a reasonable apprehension of same.

[79] With respect to the assertion that Cesare was denied legal representation improperly by Sam’s professional corporation, it was represented by him at the October 27, 2017 case conference that he intended on hiring a lawyer and was in the process of retaining one. Sam, on several occasions, attempted to distinguish between himself in his personal capacity from his professional corporation through which he practices law so as to allow him to provide representation to Cesare. Regardless of his motive, there was a clear and equivocal conflict in Sam providing any representation to Cesare, given that he had named him as a defendant in one of the actions under case management.

[80] The defendant MacColl, being a bankrupt had counsel for his trustee in bankruptcy in attendance on one of the case management conferences. The Moving Parties assert that I demonstrated bias or a reasonable apprehension of bias against them based on the fact that counsel for the trustee in bankruptcy was allowed to attend the conference and make representations on behalf of the trustee. There is no specific and cogent evidence supporting the allegations of bias relating to this attendance by the trustee’s counsel.

[81] As to whether Ricchetti, J. was seized of any matters in the outstanding Actions, that determination was made by me based on the review of the wording of his order which clearly did not indicate that he intended on being seized of all matters in that action or for that matter the other related actions which were not before him.

[82] As to the procedure to be followed in determining who has authority to act on behalf of the estate, no procedural determination made would give rise to an actual or reasonable apprehension of bias: Re Kaptyn Estate, 2011 ONSC 2212.

[83] In regard to costs awarded and the assertions made by the Moving Parties, no specific impropriety is asserted that could possibly sustain an allegation of judicial bias.

[84] Regarding the enforcement of the terms of rule 1.09, the Moving Parties assert that the enforcement of this rule was unfair. In my view, it is clearly within my discretion as to how that rule is to be enforced and it is without question that the Moving Parties sent numerous and regular emails and other correspondence to me as well they were in regular contact by telephone with my administrative assistant. And these contacts were far beyond any communication authorized or called for and as such it was entirely within my discretion to contain and limit out-of-court communication with me. No reasonably informed person could conclude that my conduct in the enforcement of this rule would give rise to a determination that there was actual bias or a reasonable apprehension of same.

[85] With respect to the assertion by the Moving Parties that my endorsement of April 3, 2018 improperly impeded procedural rights, my endorsement provided that pending the determination of the recusal motion, no other steps were to be taken or material filed under these actions under case management. This order applied to all parties in the Actions and not specifically to the Moving Parties only. Further, at the request of the Plaintiff Sam, as already noted, leave was granted for him to proceed with his motion to amend the statement of claim, which motion was heard by LeMay, J., while the recusal motion was pending.

[86] Having regard to the more stringent test for the finding of bias or a reasonable apprehension of bias within the case management context, and considering the mandate of case management judges to provide expeditious and cost-effective ways to resolve all aspects of the disputes during repeated exposure to the issues in close interaction with the parties and counsel, I have concluded that a reasonably informed person would not conclude that I was actually biased or that there was a reasonable apprehension of bias and as such the Moving Parties have failed to meet the onus resting upon them.

[87] For these reasons, the recusal motions are dismissed.

[88] As to costs of the recusal motions, parties and counsel who participated in these motions shall file submissions as to costs within 20 days from the date of release of these reasons.

[89] No reply submissions shall be filed.

[90] In terms of next steps in these actions, each party shall file a memorandum within 20 days as to case management and scheduling issues outstanding, following which a further case management conference will be scheduled.

Daley, RSJ.

DATE: June 28, 2018