COURT FILE NO.: 00-CV-192059 DATE: 201807 04

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

LARRY PHILIP FONTAINE in his personal capacity and in his capacity as the Executor of the estate of Agnes Mary Fontaine, deceased, MICHELLINE AMMAQ, PERCY ARCHIE, CHARLES BAXTER SR., ELIJAH BAXTER, EVELYN BAXTER, DONALD BELCOURT, NORA BERNARD, JOHN BOSUM, JANET BREWSTER, RHONDA BUFFALO, ERNESTINE CAIBAIOSAI-GIDMARK, MICHAEL CARPAN, BRENDA CYR, DEANNA CYR, MALCOLM DAWSON, ANN DENE, BENNY DOCTOR, LUCY DOCTOR, JAMES FONTAINE in his personal capacity and in his capacity as the Executor of the Estate of Agnes Mary Fontaine, deceased, VINCENT BRADLEY FONTAINE, DANA EVA MARIE FRANCEY, PEGGY GOOD, FRED KELLY, ROSEMARIE KUPTANA, ELIZABETH KUSIAK, THERESA LAROCQUE, JANE McCULLUM, CORNELIUS McCOMBER, VERONICA MARTEN, STANLEY THOMAS NEPETAYPO, FLORA NORTHWEST, NORMAN PAUCHEY, CAMBLE QUATELL, ALVIN BARNEY SAULTEAUX, CHRISTINE SEMPLE, DENNIS SMOKEYDAY, KENNETH SPARVIER, EDWARD TAPIATIC, HELEN WINDERMAN and ADRIAN YELLOWKNEE

Plaintiffs

• and -

THE ATTORNEY GENERAL OF CANADA, THE PRESBYTERIAN CHURCH IN CANADA, THE GENERAL SYNOD OF THE ANGLICAN CHURCH OF CANADA, THE UNITED CHURCH OF CANADA, THE BOARD OF HOME MISSIONS OF THE UNITED CHURCH OF CANADA, THE WOMEN’S MISSIONARY SOCIETY OF THE PRESBYTERIAN CHURCH, THE BAPTIST CHURCH IN CANADA, BOARD OF HOME MISSIONS AND SOCIAL SERVICES OF THE PRESBYTERIAN CHURCH IN BAY, THE CANADA IMPACT NORTH MINISTRIES OF THE COMPANY FOR THE PROPAGATION OF THE GOSPEL IN NEW ENGLAND (also known as THE NEW ENGLAND COMPANY), THE DIOCESE OF SASKATCHEWAN, THE DIOCESE OF THE SYNOD OF CARIBOO, THE FOREIGN MISSION OF THE PRESBYTERIAN CHURCH IN CANADA, THE INCORPORATED SYNOD OF THE DIOCESE OF HURON, THE METHODIST CHURCH OF CANADA, THE MISSIONARY SOCIETY OF THE ANGLICAN CHURCH OF CANADA, THE MISSIONARY SOCIETY OF THE METHODIST CHURCH OF CANADA (ALSO KNOWN AS THE METHODIST MISSIONARY SOCIETY OF CANADA), THE INCORPORATED SYNOD OF THE DIOCESE OF ALGOMA, THE SYNOD OF THE ANGLICAN CHURCH OF THE DIOCESE OF QUEBEC, THE SYNOD OF THE DIOCESE OF ATHABASCA, THE SYNOD OF THE DIOCESE OF BRANDON, THE ANGLICAN SYNOD OF THE DIOCESE OF BRITISH COLUMBIA, THE SYNOD OF THE DIOCESE OF CALGARY, THE SYNOD OF THE DIOCESE OF KEEWATIN, THE SYNOD OF THE DIOCESE OF QU’APPELLE, THE SYNOD OF THE DIOCESE OF NEW WESTMINSTER, THE SYNOD OF THE DIOCESE OF YUKON, THE TRUSTEE BOARD OF THE PRESBYTERIAN CHURCH IN CANADA, THE BOARD OF HOME MISSIONS AND SOCIAL SERVICE OF THE PRESBYTERIAN CHURCH OF CANADA, THE WOMEN’S MISSIONARY SOCIETY OF THE UNITED CHURCH OF CANADA, SISTERS OF CHARITY, A BODY CORPORATE ALSO KNOWN AS SISTERS OF CHARITY OF ST. VINCENT DE PAUL, HALIFAX, ALSO KNOWN AS SISTERS OF CHARITY HALIFAX, ROMAN CATHOLIC EPISCOPAL CORPORATION OF HALIFAX, LES SOEURS DE NOTRE DAME-AUXILIATRICE, LES SOEURS DE ST. FRANCOIS D’ASSISE, INSTITUT DES SOEURS DU BON CONSEIL, LES SOEURS DE SAINT-JOSEPH DE SAINT-HYACINTHE, LES SOEURS DE JESUS-MARIE, LES SOEURS DE L’ASSOMPTION DE LA SAINTE VIERGE, LES SOEURS DE L’ASSOMPTION DE LA SAINT VIERGE DE L’ALBERTA, LES SOEURS DE LA CHARITE DE ST.-HYACINTHE, LES OEUVRES OBLATES DE L’ONTARIO, LES RESIDENCES OBLATES DU QUEBEC, LA CORPORATION EPISCOPALE CATHOLIQUE ROMAINE DE LA BAIE JAMES (THE ROMAN CATHOLIC EPISCOPAL CORPORATION OF JAMES BAY), THE CATHOLIC DIOCESE OF MOOSONEE, SOEURS GRISES DE MONTR é AL/GREY NUNS OF MONTREAL, SISTERS OF CHARITY (GREY NUNS) OF ALBERTA, LES SOEURS DE LA CHARIT é DES T.N.O., HOTEL-DIEU DE NICOLET, THE GREY NUNS OF MANITOBA INC.-LES SOEURS GRISES DU MANITOBA INC., LA CORPORATION EPISCOPALE CATHOLIQUE ROMAINE DE LA BAIE D’HUDSON – THE ROMAN CATHOLIC EPISCOPAL CORPORATION OF HUDSON’S BAY, MISSIONARY OBLATES – GRANDIN PROVINCE, LES OBLATS DE MARIE IMMACULEE DU MANITOBA, THE ARCHIEPISCOPAL CORPORATION OF REGINA, THE SISTERS OF THE PRESENTATION, THE SISTERS OF ST. JOSEPH OF SAULT ST. MARIE, SISTERS OF CHARITY OF OTTAWA, OBLATES OF MARY IMMACULETE –ST. PETER’S PROVINCE, THE SISTERS OF SAINT ANN, SISTERS OF INSTRUCTION OF THE CHILD JESUS, THE BENEDICTINE SISTERS OF MT. ANGEL OREGON, LES PERES MONTFORTAINS, THE ROMAN CATHOLIC BISHOP OF KAMLOOPS CORPORATION SOLE, THE BISHOP OF VICTORIA, CORPORATION SOLE, THE ROMAN CATHOLIC BISHOP OF NELSON, CORPORATION SOLE, ORDER OF THE OBLATES OF MARY IMMACULATE IN THE PROVINCE OF BRITISH COLUMBIA, THE SISTERS OF CHARITY OF PROVIDENCE OF WESTERN CANADA, LA CORPORATION EPISCOPALE CATHOLIQUE ROMAINE DE GROUARD, ROMAN CATHOLIC EPISCOPAL CORPORATION OF KEEWATIN, LA CORPORATION ARCHI éPISCOPALE CATHOLIQUE ROMAINE DE ST. BONIFACE, LES MISSIONNAIRES OBLATES SISTERS DE ST. BONIFACE-THE MISSIONARY OBLATES SISTERS OF ST. BONIFACE, ROMAN CATHOLIC ARCHIEPISCOPAL CORPORATION OF WINNIPEG, LA CORPORATION EPISCOPALE CATHOLIQUE ROMAINE DE PRINCE ALBERT, THE ROMAN CATHOLIC BISHOP OF THUNDER BAY, IMMACULATE HEART COMMUNITY OF LOS ANGELES CA, ARCHDIOCESE OF VANCOUVER – THE ROMAN CATHOLIC ARCHBISHOP OF VANCOUVER, ROMAN CATHOLIC DIOCESE OF WHITEHORSE, THE CATHOLIC EPISCOPALE CORPORATION OF MACKENZIE-FORT SMITH, THE ROMAN CATHOLIC EPISCOPAL CORPORATION OF PRINCE RUPERT, EPISCOPAL CORPORATION OF SASKATOON, OMI LACOMBE CANADA INC. and MT. ANGEL ABBEY INC.

Defendants

Proceeding under the Class Proceedings Act, 1992

COUNSEL:

• Lawrence Greenspon, for Fay Brunning
• Catherine A. Coughlan and Brent Thompson, for the Attorney General of Canada

HEARD: June 4, 2018

PERELL, J.

REASONS FOR DECISION

A. Introduction

[1] Under the Indian Residential School Settlement Agreement (“IRSSA”), Claimants may make a claim for compensation for assaults suffered while they were students at an Indian Residential School. The claims are determined by an independent Adjudicator in what is known as the Independent Assessment Process (“IAP”).

[2] The IRSSA itself is administered by judges of the superior courts across Canada, and on January 4, 2018, as one of two Supervising Judges, I dismissed a Request for Directions (“RFD”) brought by IAP Claimant C-14114, and I granted, in part, a companion RFD brought on behalf of Angela Shisheesh, who wished to be a witness for Claimant C-14114 at her IAP hearing. [1] Canada was the opposing party on the two RFDs. Given the divided success on the RFDs, I invited the parties to make costs submissions.

[3] Fay Brunning, an Ontario lawyer, was counsel for both Claimant C-14114 and Ms. Shisheesh, and Canada was represented by Catherine Coughlan of the Department of Justice.

[4] The RFDs having been completed, Claimant C-14114’s hearing before the IAP Adjudicator was scheduled for January 19, 2018, but between January 10 and 12, 2018, I was advised by Ms. Brunning, that she had taken instructions not to attend her client’s, Claimant C-14114’s, IAP hearing because of the decision I had made on the RFDs.

[5] On January 15, 2018, as the Supervising Judge for Ontario, I issued a case management Direction ordering Ms. Brunning to appear at her client’s IAP hearing. [2] Ms. Brunning complied with the Direction and Claimant C-14114 ultimately recovered compensation of $86,436.

[6] Meanwhile, on February 2, 2018, Canada filed its costs submissions with respect to the RFDs, and it sought $25,000 of costs against Ms. Brunning personally.

[7] Ms. Brunning retained Lawrence Greenspon as counsel, and on March 15, 2018, he asked me to recuse myself from deciding the costs of the RFDs. He submitted that the January 15, 2018 Direction raised a reasonable apprehension that I was biased against Ms. Brunning in deciding the matter of costs.

[8] For the reasons set out below, I decline to recuse myself.

B. The Law of Recusal.

[9] Bias is a condition or state of mind that sways judgment and renders a judicial officer unable to exercise his or her functions impartially in a particular case. Judicial bias is a leaning, inclination, bent, or predisposition towards one side or another for a particular result, and 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. [3]

[10] The test for a reasonable apprehension of bias was set out by Justice de Grandpré in his dissenting judgment in Committee for Justice and Liberty v. National Energy Board, [4] and the test was approved and adopted by the Supreme Court of Canada in R. v. Valente [5] and in R. v. S.(R.D.). [6] The test is whether an informed person, viewing the matter realistically and practically and having thought the matter through, would think that it is more likely than not that the decision-maker consciously or unconsciously would not decide the matter fairly. In R. v. S.(R.D.), [7] Justice Cory stated: “Fairness and impartiality must be both subjectively present and objectively demonstrated to the informed and reasonable observer. If the words or actions of the presiding judge give rise to a reasonable apprehension of bias to the informed and reasonable observer, this will render the trial unfair.”

[11] The determination of whether there is a reasonable apprehension of bias is an objective, fact-specific inquiry in relation to the facts and circumstances of a particular matter. [8] The test for a reasonable apprehension of bias has two elements of objectivity: (1) the measure is that of the reasonable and informed person; and (2) his or her apprehension of bias must be reasonable. [9] The record must be assessed in its totality from the perspective of a reasonable observer who attended the whole hearing. [10] In determining whether a judge’s presumption of impartiality has been displaced, his or her individual comments or conduct during the hearing of a matter should not be considered in isolation but within the context of the entire proceedings. [11]

[12] The information of this hypothetical observer would include knowledge of the traditions of integrity and impartiality of the judiciary. [12] A judge swears an oath that he or she will be impartial, and there is a strong presumption that judges honour their oaths and do dispense justice without bias. [13] An allegation of bias or a reasonable apprehension of bias is a very serious allegation that calls into question the personal integrity of the judge and the integrity of the entire administration of justice. [14] The grounds for an apprehension of bias must be substantial, [15] but each case must be evaluated in its own particular circumstances and in light of the whole proceeding. [16] The party alleging bias has the onus of proving it, and the threshold of proof is a high one. [17]

C. Facts

[13] The IRSSA provides compensation to those who attended Indian Residential Schools in two ways. First, students who prove to the Claims Administrator that they attended an Indian Residential School receive a Common Experience Payment. Second, in the IAP, students who prove that they suffered sexual abuse, serious physical abuse, and other wrongful acts receive compensation for their injuries. IAP claims are adjudicated by Adjudicators appointed pursuant to the IRSSA and under the supervision of The Chief Adjudicator.

[14] Ms. Brunning has represented several IAP Claimants who had attended St. Anne’s Indian Residential School. One of her clients was Claimant C-14114.

[15] While Claimant C-14114’s claim for compensation was pending, she along with Ms. Shisheesh brought an RFD about the evidence for her hearing. Ms. Brunning also acted for Ms. Shisheesh.

[16] Claimant C-14114’s and Ms. Shisheesh’s RFD were part of a series of acrimonious RFD’s in which Ms. Brunning acted for the Requestors and Ms. Coughlan acted for Canada. These RFDs were about whether Canada had breached the IRSSA by failing to produce documents from criminal and civil proceedings in Cochrane, Ontario that predated the negotiation of the IRSSA. The RFDs were also about the extent to which superior courts could intervene in the adjudication of IAP claims, another contentious issue that had drawn the attention of appellate courts across the country.

[17] Claimant C-14114’s RFD and Ms. Shisheesh’s RFD were heard in December 2017. I released my decision on January 4, 2018. There was divided success, and I invited the parties to make submissions as to costs in writing.

[18] On January 10, 2018, Brian Gover, Court Counsel, a special officer of the Court under the IRSSA, received an email message and letter from Ms. Brunning. She indicated that she was dissatisfied with the January 4, 2018 decision. She alleged that the IAP was discriminatory. She alleged that the courts were biased in favour of Canada. She said that she had instructions to bring a contempt motion against the Minister of Justice/Attorney General of Canada and the Minister of Indigenous and Northern Affairs. She advised that she would not be attending the completion of Claimant C-14114’s IAP hearing.

[19] I directed Mr. Gover to arrange on an urgent basis the contempt hearing that Ms. Brunning had requested

[20] On January 12, 2018, Ms. Brunning sent an email to Mr. Gover and said that the schedule for the contempt motion was impossible for her to meet, but she would make herself available during the week of January 15 and that, in the meantime, she would seek an adjournment of Claimant C-14114’s IAP hearing.

[21] Ms. Brunning, however, did not seek an adjournment. Rather, later in the morning of January 12, 2018, she sent an email to the Chief Adjudicator, which was copied to Mr. Gover. Ms. Brunning advised the Chief Adjudicator that the Court had completely ignored her RFD request and that she was at risk of being found not to have standing to enforce a contempt order. Therefore, Claimant C-14114 had instructed her not to attend the IAP hearing scheduled for January 19, 2018.

[22] Next, in the afternoon of January 12, 2018, Ms. Brunning sent another email to Mr. Gover. She advised that she was no longer seeking a contempt motion. She invited the court to correct the January 4, 2018 decision because I had allegedly neglected to address Canada’s failure to revise the factual disclosure for St. Anne’s IAP claimants.

[23] On January 15, 2018, I issued a Direction. I indicated that the Direction was made: (a) pursuant to the Approval Orders made by the nine provincial and territorial superior courts that approved the IRSSA; (b) by the authority of the Courts’ Implementation Orders under the IRSSA; (c) under the Court’s jurisdiction with respect to the Class Proceedings Act, 1992, [18] to enforce and administer a class proceeding and to protect the interests of class members, including C-14114; and (d) because Ms. Brunning’s conduct was potentially contemptuous, as an incident of the court’s essential and inherent power to enable the orderly conduct of the court’s business and to prevent interference with the proceedings. [19] The operative part of the Direction stated:

I, therefore, direct Ms. Brunning to appear and participate in the closing submissions as directed by the IAP Adjudicator on Friday, January 19, 2018. I direct her to advise Court Counsel whether she will comply or will refuse to comply with this Direction by no later than Wednesday, January 17, 2018, 4:00 p.m.

[24] On January 16, 2018, Ms. Brunning wrote a letter addressed to me and to the Chief Adjudicator. She offered an unqualified apology and indicated that she would attend her client’s January 19, 2018 IAP hearing.

[25] On January 19, 2018, Ms. Brunning attended the IAP hearing.

[26] On February 2, 2018, Canada filed its costs submission. It sought $25,000 in costs to be paid personally by Ms. Brunning to a charity.

[27] On February 14, 2018, notwithstanding her apology and her compliance with the January 15, 2018 Direction, Ms. Brunning delivered a Notice of Appeal to the Ontario Court of Appeal.

[28] On March 15, 2018, on behalf of Ms. Brunning, Mr. Greenspon, whom she had retained for the appeal and for the costs matter, asked me to recuse myself from hearing the costs matter.

[29] On March 21, 2018, IAP Adjudicator Evelyn Baxter released her decision in IAP Claim C-14114, awarding her $86,436 in compensation.

[30] On May 22, 2018, the Court of Appeal permitted Ms. Brunning an extension of time to perfect her appeal from the Direction, which was perfected on May 31, 2018. I have not reviewed the Notice of Appeal or any of the material filed for the appeal.

[31] On June 4, 2018, the recusal motion was argued.

D. The Parties’ Submissions

1. Ms. Brunning’s Submissions

[32] On Ms. Brunning’s behalf, Mr. Greenspon invoked the maxim from R. v Sussex Justices; Ex parte McCarthy, [20] that “Not only must justice be done; it must also be seen to be done.” Mr. Greenspon contended that Ms. Brunning was denied procedural fairness in the issuance of the January 15, 2018 Direction. It was Mr. Greenspon’s submission that the court should have embarked on the forensic exercise of determining the truth of the allegations Ms. Brunning made before issuing the January 15, 2018 Direction.

[33] Alternatively, Mr. Greenspon contended that any concerns about Ms. Brunning’s conduct in representing C-14114, an IAP claimant, should have been referred to the Independent Special Advisor in accordance with the Administrative Protocol for Addressing and Managing Complaints related to the Integrity of the Independent Assessment Process that is appended to the Joint Direction issued by the Administrative Judges of the IRSSA.

[34] Mr. Greenspon went further, contending that the content of the Direction should itself lead to recusal. It was his submission that the Direction contained 14 comments that are so critical of Ms. Brunning that recusal should result. He described the effect of the January 15, 2018 Direction on Ms. Brunning as “immediate, powerful and damaging”. He said that some of the comments about Ms. Brunning were “so critical that the appearance of fairness, which must prevail throughout, has been irretrievably lost with respect to the outstanding issue before His Honour Justice Perell, namely whether costs should be awarded against the same counsel personally.”

[35] At oral argument, Mr. Greenspon also referred to the recent decision of the Supreme Court of Canada in Groia v. Law Society of Upper Canada. [21] In particular, he relied on the following passages from the judgment of Justice Moldaver writing for the majority:

[50] Unquestionably, lawyers are vital to the proper functioning of the administration of justice in our free and democratic society. As Major J. observed in R. v. McClure, 2001 SCC 14 [2001] 1 S.C.R. 445, at para. 2:

The law is a complex web of interests, relationships and rules. The integrity of the administration of justice depends upon the unique role of the solicitor who provides legal advice to clients within this complex system.

By guiding clients through this “complex web of interests”, lawyers uphold the rule of law. They provide those subject to our legal system a means to self-determination under and through the law and guard against arbitrary or unjustified state action: see A. Woolley, Understanding Lawyers’ Ethics in Canada, (2nd ed. 2016), at pp. 33-35.

[120] In contrast, sanctioning a lawyer for good faith, reasonably based allegations that are grounded in legal error does not reflect a proportionate balancing. Advancing good faith, reasonable allegations - even those based on legal error - helps maintain the integrity of the justice system by holding other participants accountable. Well-founded arguments exposing misconduct on the part of opposing counsel thus lie close to the core of the s.2(b) values underpinning a lawyer’s expressive freedom. Discouraging lawyers from bringing forward such allegations does nothing to further the Law Society’s statutory mandate of advancing the cause of justice and the rule of law. If anything, silencing lawyers in this manner undercuts the rule of law and the cause of justice by making it more likely that misconduct will go unchecked.

[36] Mr. Greenspon submitted that my recusal would not disrupt any of the pending matters before the court, and that the only remaining matter that has been delayed by the recusal motion is the costs issue. Overall, Mr. Greenspon submitted that the test established by the line of cases originating in the Committee for Justice and Liberty case [22] was met, that, as he put it, “This is one of the rare cases in which a reasonable and informed person would have a reasonable apprehension of bias.”

2. Canada’s Submissions

[37] Ms. Coughlan noted that there was nothing in the transcript of the hearing of Ms. Shisheesh’s and Claimant C-14114’s RFDs in December 2017 that evidenced any bias against Ms. Brunning, and that while the January 15, 2018 Direction, described a number of aspects of Ms. Brunning’s conduct, the operative part of the Direction ultimately dealt with only one matter; i.e., Ms. Brunning’s threat not to attend Claimant C-14114’s imminent IAP hearing.

[38] Ms. Coughlan also pointed out that Ms. Brunning did not point to any authority for the proposition that she was entitled to notice of and a right to respond to a Direction such as the January 15, 2018 Direction.

[39] Relying in part on the Alberta Court of Appeal’s decision in Alberta Health Services v. Wang, [23] which held that the presumption of a judicial officers’ impartiality can only be displaced by convincing evidence, she submitted that convincing evidence was lacking in the case at bar.

[40] Ms. Coughlan submitted that Ms. Brunning has failed to demonstrate any judicial conduct evidencing bias, and that no allegation of bias, actual or apprehended, can be made out. Referring to the Supreme Court of Canada’s decision in R. v. S (RD), supra, she submitted that there was no reason to suppose that the court has a closed mind on the costs issue.

E. Analysis

[41] The grounds for Ms. Brunning’s allegations of bias arise out of comments in the January 15, 2018 Direction relating to circumstances that arose between January 10, 2018 and January 15, 2018 when I responded to Ms. Brunning’s statement that she had instructions from Claimant C-14114 not to attend at the completion of his IAP hearing.

[42] As revealed by the transcript of the hearing of the RFDs in December 2017 and as revealed by my Reasons for Decision released on January 4, 2018, there was nothing that occurred up until the events between January 10, 2018 and January 15, 2015 that would give an objective and informed member of the public a reasonable apprehension that I was biased and could not fairly resolve the matter of costs, which had not yet even been claimed by Canada from Ms. Brunning. That claim was not made until February 2, 2018.

[43] When the January 15, 2018 Direction was issued, it was not issued against Ms. Brunning as a party to a dispute. She did not become a party to a dispute until costs were claimed against her personally on February 2, 2018. The January 15, 2018 Direction was not a determination of a dispute in which the principles of natural justice would apply. It was a Direction made in the administration of the IRSSA and made in circumstances that were of Ms. Brunning’s own making. I was told by her that unless I reversed the outcome of the December RFDs, which she did not respect, she was not going to attend her client’s IAP hearing. I responded because of my own responsibilities to administer the IRSSA by reminding her of her professional responsibilities in the IRSSA. I did not sanction her. I directed her to appear at her client’s hearing.

[44] I did not impose any sanctions on Ms. Brunning, and I certainly did not silence her. I simply directed her to not to abandon her advocacy for Claimant 14114. I warned her that her conduct was unprofessional. The purpose of the warning was not to punish her, but rather to uphold the administration of justice and prevent unprofessional conduct from harming Claimant C-14114.

[45] With respect to Mr. Greenspon’s reliance on the decision in the Groia case, I accept the important role that lawyers play in our justice system. This is all the more reason to ensure that their conduct meets professional standards. In the Groia case, Mr. Groia’s incivility came to an end after he was admonished by the trial judge. That consequence and the salutary outcome for Claimant C-14114 obtaining some access to justice demonstrates the importance of timely intervention by judges to uphold the integrity of the court’s process. There is nothing in the Groia case that suggests that courts do not have the jurisdiction to control their officers in the administration of justice or that I should have conducted a hearing before directing Ms. Brunning to attend Claimant C-14114’s IAP hearing.

[46] I directed Ms. Brunning to advise Court Counsel whether she would comply or would refuse to comply with the Direction by no later than Wednesday, January 17, 2018, 4:00 p.m. because Claimant’s C-14114 hearing was scheduled for January 19, 2018.

[47] A reasonably informed person would appreciate that between January 10, 2018 and January 15, 2018, I was not adjudicating the costs hearing and rather was acting in my capacity as a Supervising and Administrative Judge under the IRSSA tasked with supervising the IRSSA’s administration in Ontario. A reasonably informed person would understand that the primary concerns animating my Direction was protecting Claimant C-14114 and ensuring that Ms. Brunning fulfil her professional obligations to her client and to the administration of justice, which included her responsibilities as an advocate in the IAP and in the administration of the IRSSA.

[48] The primary purpose of the January 15, 2018 Direction was to ensure Ms. Brunning’s participation in the IAP submissions on behalf of her client. I am not aware of any authority that a lawyer is entitled to make submissions on the content of a case management direction. Judges must be able to control officers of the court. Given the urgency to ensuring Ms. Brunning’s attendance at the IAP submissions, there would not have been time to invite further submissions from her, even if I had been inclined to do so. I say further submissions because Ms. Brunning’s allegations about court bias had been repeatedly litigated.

[49] In her correspondence to Court Counsel beginning on January 10, 2018, Ms. Brunning submitted - not for the first time - that the Courts were biased in the administration of the IRSSA. In several RFDs, I have dealt at some considerable length addressing the substantive merits of that submission, and I did so again in my Reasons for Decision in the RFDs in December 2017. Mr. Greenspon contends, nevertheless, that I dealt with Ms. Brunning harshly in responding to a matter that she had raised again and again, and he submits that there should have been a hearing to determine the merits of her allegation and to allow Ms. Brunning to defend herself for having made the allegations.

[50] In my opinion, a reasonably informed person would see it differently, and he or she would appreciate that the merits of the allegation of the court’s bias in favour of Canada had already been addressed several times and that it was both necessary and appropriate that I point out why Ms. Brunning’s advocacy had crossed the line by threatening not to represent her client at an imminent IAP hearing.

[51] I shall not repeat what Mr. Greenspon tabulates as 14 critical comments, and I simply note that the Direction explains the factual background which is fully documented in court decisions and in the correspondence described above. In the Direction, I set out the law that explains why I had jurisdiction to make the Direction and that supports what I said in the Direction.

[52] In any event, the Direction deals with a matter that at the time it was made and even now is irrelevant to the issues on the costs motion, which concern Ms. Brunning’s conduct before and not after I released my RFD decision on January 4, 2018. A reasonably informed person would have no apprehension that I am biased in deciding the $25,000 claim for costs made against Ms. Brunning.

[53] A reasonably informed person would appreciate that Ms. Brunning is an officer of the court and subject to the court’s discipline and that the court was confronted with a situation where it was obliged to respond to Ms. Brunning’s allegations and to exercise its disciplinary function to ensure the integrity of the administration of justice and most importantly to ensure that Claimant C-14114 have access to justice.

[54] Judges have a variety of tools at their disposal to ensure the integrity of the administration of justice ranging from warnings and reprimands at the low end through to costs awards and contempt proceedings at the high end. Michael Code, before he became a judge of this court, has suggested that courts should begin with less drastic tools before moving on to more severe sanctions. [24] The informed person would take into account the fact that the January 15, 2018 Direction was toward the low end of the progression by which courts exercise control over their officers. The Direction imposed no sanctions at all and indicated judicial concern about Ms. Brunning’s conduct and prescribed action to be taken to ensure the orderly conduct of her client’s IAP claim.

[55] Apart from the circumstance that it was not a practical solution to dealing with the imminence of Claimant C-14114 being unrepresented in the IAP, I would not give effect to Mr. Greenspon’s submission that any concerns about Ms. Brunning’s conduct should have been referred to the Independent Special Advisor pursuant to the Administrative Protocol. That protocol was intended to address complaints about fraudulent IAP claims and about unprofessional conduct of IAP claimants’ counsel in relation to their clients. It was not intended to derogate from the Supervising Judges’ overall duty to oversee the administration of the IRSSA.

F. Conclusion

[56] I conclude that on the basis of the governing legal test, a reasonable apprehension of bias has not been shown to exist. I dismiss the recusal motion. Canada is entitled to costs, if requested.

Perell, J.

Released: July 4, 2018