Court File and Parties

Court File No.: FS-15-83320-00 Date: 20190610

Superior Court of Justice – Ontario

Re: Sara Fatahi-Ghanderhari v. Stewart Wilson

Before: Daley, RSJ.

Counsel: Applicant Fatahi-Ghanderhari, counsel assisting but not on record, Shahzad Siddiqui and Amar Mohammed Respondent Wilson, counsel Paul Robson

Heard: May 24, 2019

Reasons for Decision on Recusal Motion

Background and Evidentiary Record:

[1] I appointed myself as a case management judge with respect to this Brampton action and collaterally related actions proceeding in Milton involving the same parties along with others.

[2] I convened the case management meeting on April 25, 2019 with the self-represented applicant, assisted by counsel in court only, along with counsel for the respondent, Mr. Robson and representatives of a bailiff and purported owner of disputed assets.

[3] Counsel Mr. Robson, on behalf of the respondent delivered a Case Management Brief and, in that brief, asserted that I had “made decisions that do not reflect an unbiased and objective viewpoint”.

[4] As indicated in the endorsement I released relating to this case management meeting, which is dated April 26, 2019, I had requested that counsel advise as to the respondent’s position as to whether he was maintaining those allegations essentially asserting that I was both biased and partial. He responded to my question by indicating that he was maintaining those allegations as they were “true”. I offered him an opportunity to withdraw the allegations made on behalf of his client, however he refused to do so.

[5] Given the extraordinary, protracted and complex set of proceedings to date, I was of the view that the allegations being made by the respondent were made for the sole purpose of clouding the case management proceedings so as to delegitimize the process entirely based on alleged bias. Similar tactics were utilized by the respondent with respect to Justice Price who had previously been dealing with these actions and a motion for recusal was brought by Mr. Robson, which was dismissed.

[6] As the respondent maintained the allegations that I was partial and biased, in order to remove any cloud over the proceedings I directed that the respondent bringing the recusal motion to present all proper and admissible evidence so that a determination could be made at the outset as to whether or not I needed to recuse myself as a case management judge.

[7] The respondent maintains that it was improper for the court to order him to bring such a recusal motion. I concluded that it was necessary for proper case management of these actions, including any possible orders made during that process, that the assertions of bias and lack of impartiality should be considered and determined before proceeding down a potentially lengthy and complex case management process, involving the within family action in Brampton as well as the other civil actions involving these parties proceeding in Milton.

[8] The respondent filed a brief affidavit in his own name simply including bald allegations of bias which are detailed in an exhibit appended to his affidavit, namely an email from Mr. Robson to my administrative assistant dated February 26, 2019. For a complete understanding of the assertions made, the email is fully set out in Appendix “A” to these reasons.

[9] Although there is an evidentiary vacuum, in that the respondent’s motion record lacks any cogent evidence of bias or lack of impartiality, in responding to this motion, the applicant submitted a lengthy and detailed motion record as to the history of the proceedings now under case management. Much of the evidence in the responding affidavit is not directly relevant to the issues to be determined on a recusal motion.

[10] The applicant opposed the respondent’s recusal motion.

Applicable Legal Framework as to Recusal Motions & Analysis:

[11] In my reasons for decision in the matter of Cosentino v. Dominaco Developments Inc., 2018 ONSC 4092 I set out the principles in the jurisprudence to be considered by a court on a recusal motion in paragraphs [31] – [42], which for the completeness of these reasons read as follows:

[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 (S.C.C.), 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.

[12] In Cosentino I also reviewed the jurisprudence with respect to recusal motions specifically within the context of case management at paragraph [49] which reads as follows:

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.

[13] The moving respondent has offered no relevant or cogent evidence whatsoever in support of his motion for recusal.

[14] 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 determined 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 respondent has failed to meet the onus resting upon him and the recusal motion is therefore dismissed.

[15] Counsel shall file submissions as to costs within 15 days of no longer than 2 pages plus a costs outline. No reply submissions shall be filed.

Daley, RSJ. DATE: June 10, 2019