Court File and Parties

COURT FILE NO.: CV-17-569102 DATE: 20230307 ONTARIO SUPERIOR COURT OF JUSTICE

RE: Tanya Rebello, Plaintiff -and- His Majesty The King in Right of Ontario as represented by the Ministry of Community Safety and Correctional Services (Ontario Provincial Police), defendant

BEFORE: Robert Centa J.

COUNSEL: Tanya Rebello, self-represented plaintiff Bhavini Lekhi and Adam Mortimer, for the defendant

HEARD: March 2, 2023

Endorsement

[1] The plaintiff, Tanya Rebello, moves for an order that I recuse myself from hearing a motion for summary judgment brought by the defendant, His Majesty the King in right of Ontario, and her cross-motion for various forms of relief.

[2] The motion is dismissed. Ms. Rebello has not demonstrated a reasonable apprehension of bias.

Background

[3] Litigants are entitled to have their proceedings determined in a proceeding free from a reasonable apprehension of bias. However, as the Court of Appeal for Ontario has observed, unfounded claims of bias cause delay and impose added cost to other litigants and the court system. [1] Previously, Ms. Rebello has claimed that at least seven judicial officers have demonstrated a reasonable apprehension of bias toward her. None of the allegations has been substantiated.

[4] In Rebello v. The Bank of Nova Scotia, 2018 ONSC 7127 (CV-17-583206), Ms. Rebello noted the defendant bank in default despite being told that the bank was moving to strike out her claim. The bank moved to set aside the noting in default and, on November 14, 2017, Master Short set December 20, 2017, as the hearing date for the bank’s motion. On December 15, 2017, Ms. Rebello asked that Master Short recuse himself. Master Short declined to do so and set aside the noting in default. Ms. Rebello then moved to set aside Master Short’s order because, among other reasons, Master Short erred by failing to recuse himself. Justice Faieta dismissed Ms. Rebello’s motion and held that a reasonable and right-minded observer would not have concluded that Master Short was biased:

The plaintiff also alleges that Master Short erred in refusing to recuse himself. She contends that Master Short did not permit Mr. Curtis to speak to her motion on December 20, 2017. She also contends that Master Short was aware of the complaints that she sent to Chief Justice H. Smith, Associate Chief Justice F. Marrocco and Regional Senior Justice G. Morawetz. ….

The plaintiff has not provided sufficient grounds to establish that Master Short committed a reviewable error in failing to recuse himself. He was correct in refusing to permit Mr. Curtis to represent the plaintiff at the hearing of the motion. Further, I am not satisfied that a reasonable and right-minded person would have concluded that Master Short was biased merely because he was aware that the plaintiff had filed a complaint. Much more is required to meet the high threshold of establishing judicial bias. [2]

[5] The bank then moved to strike out Ms. Rebello’s claim as disclosing no reasonable cause of action. The motion to strike came before Dow J. on August 29, 2018. New counsel for Ms. Rebello requested an adjournment of the motion to get up to speed on the case. Justice Dow granted that adjournment and ordered Ms. Rebello to pay costs thrown away of $2,000. Ms. Rebello sought leave to appeal the decision of Dow J. to the Divisional Court. On November 20, 2018, Ms. Rebello delivered a notice of motion seeking an order that Dow J. be recused from hearing any further motions in the action because of a reasonable apprehension of bias. [3]

[6] In Rebello v. Del Property Management (CV-18-00607758), Ms. Rebello submitted that Myers J. could not preside over a case conference because she had complained about him to the Canadian Judicial Council and the Federal Court, accusing him of having a conflict of interest. [4] The case was then to proceed before Papageorgiou J. on December 17, 2020, but it was adjourned to February 1, 2021. On that date, Ms. Rebello asked Papageorgiou J. to recuse herself for bias, citing a 2016 case that she had heard in small claims court about which Ms. Rebello was unhappy. Justice Papageorgiou declined to recuse herself. [5]

[7] In the course of that proceeding, Master Sugunasiri (as she then was) ordered Ms. Rebello to post security for costs and to pay costs of the motion for security for costs. Ms. Rebello appealed both decisions. In her appeal, Ms. Rebello submitted that Master Sugunasiri’s conduct raised a reasonable apprehension of bias. Justice Dunphy dismissed the appeal and found no reasonable apprehension of bias. In his reasons, Dunphy J. noted that Ms. Rebello frequently accused judicial officers of bias:

The plaintiff has failed to demonstrate bias or partiality on the part of the Learned Master, a charge that she has apparently levied against substantially every judicial official that she has appeared before in this case as an apparent tactic to procure delay in hearings when other tactics fail. The conduct of the proceeding in question has not resulted in any procedural unfairness nor any denial of fundamental justice. I found both appeals to be utterly devoid of merit. …

Mr. Rebello’s factum focused in significant measure upon allegations of bias on the part of the Learned Master. Substantially all of the evidence cited by her in support of that allegation amounts to little more than disagreement with decisions reached by the Learned Master whether in declining to grant precisely the adjournment sought by Ms. Rebello initially, in making the new return date peremptory on the plaintiff, in taking a different view of the evidence filed by the moving parties or in failing to agree with the evidence of Mr. Curtis filed by her. None of this is reasonably capable of being construed by an objective observer as evidence of “bias” or lack of procedural fairness. …

The mere fact that a litigant is unhappy with the outcome of one proceeding does not mark the judicial official who made that decision as biased or unable fairly to decide a controversy involving the same litigant thereafter. The gist of Ms. Rebello’s complaints about the conduct of the Learned Master amounts to little more than this. The existence of an unsubstantiated claim to the Human Rights Tribunal or the Chief Justice similarly cannot meet the standard of suggesting to a reasonable informed person that the named judicial official is by that reason unable fairly to decide a matter involving the complainant. This is particularly so where the texts of the two complaints are reviewed and considered in the context of the systematic filing of such complaints against almost every judicial official who touched her file. [6]

[8] In this proceeding, as explained in more detail below, on October 21, 2022, Ms. Rebello delivered an amended notice of cross-motion. The defendant’s motion for summary judgment and Ms. Rebello’s cross-motion matter came before me on October 27, 2022. In her amended notice of cross-motion, Ms. Rebello sought orders that Myers, Dunphy, Sugunasiri, and Pinto JJ. be recused from hearing the motions. Ms. Rebello listed the following grounds in her amended notice of cross-motion:

8. Justice Myer [sic] showed reasonable apprehension of bias and was in a conflict of interest with Laura Fric [counsel for the bank in the case described above] at Osler, as he worked for Osler Hopkins [sic] for 17 years, and worked with Laura Fric for 6 years and never mentioned this in court or in his endorsement in CV-17583206, He went on to make numerous blatant wrong orders in this case and dismissed the action without leave to amend and granted $40,000 to BNS when they only asked for $30,000, Justice Myers deliberately charged additional costs against the self-litigant and is not impartial at all and cannot decide any more of the plaintiff actions going forward ever again.

9. Justice Myers showed reasonable apprehension of bias in his prejudicial endorsements on March 30, 2022, and May 3, 2022, in this matter. He did not book the plaintiff her request for a cross motion in this matter without reasons causing severe prejudice to the plaintiff by denying the plaintiff her right to have a cross motion and then refused to adjust the timelines for the motion which 2 other judges had to correct his unfair and unjust procedural endorsement.

10. Justice Sugunasiri showed no procedural fairness to a self-represented party associated with the plaintiff, by ordering a peremptory adjournment date for the plaintiff knowing that Paragon Security did not serve any motion materials and allowing them to serve their motion materials one week before the motion hearing, leaving the self-represented party plaintiff no time to prepare responding motion materials, causing the self-representing party to be severely prejudiced.

11. Justice Sugunasiri showed reasonable apprehension of bias towards the plaintiff in her orders of April 27, 2020, and June 4, 2020, and granted costs for substantial indemnity when the general rule is only partial indemnity, which clearly shows she is not impartial, towards the plaintiff and should not decide any other matter of this plaintiff in any of her actions going forward.

12. Justice Dunphy showed reasonable apprehension of bias towards the plaintiff in his order of December 14, 2021 and allowed the defendant to argue their bill of costs without serving any copy to the plaintiff and granted costs for substantial indemnity when the general rule is only partial indemnity, which clearly shows he is not impartial and should decide any other matters of this plaintiff in any of her actions going forward,

13. Justice Dunphy showed reasonable apprehension of bias for dismissing an MTO action which they admitted to performing the action that another judge had to correct his actions and send it to trial.

14. Justice Pinto agreed to release my personal financial information and my family's information in public records in that matter and allowed BNS to use my personal information, without my knowledge or consent for the matter mentioned above that I was not a party to, causing me severe damages and injuries. This matter is still ongoing before the Divisional Court and he knows this, and he know he cannot hear any other matters of mine at all and especially since it remains outstanding; as there is a reasonable apprehension of bias, that he will not be an impartial decision maker in my matters.

[9] On November 2, 2022, Ms. Rebello delivered a further amended notice of cross motion, which deleted her request for this relief.

[10] Based only on reported decisions and the documents Ms. Rebello filed in this proceeding, Ms. Rebello has previously raised allegations of bias against Masters Short and Sugunasiri (as she then was) and Dow, Myers, Dunphy, Papageorgiou, and Pinto JJ. I attempted to ask Ms. Rebello about these proceedings but she declined to answer questions about them because they were “under appeal.”

[11] I repeat: unfounded claims of bias cause delay and impose added cost to other litigants and the court system. [7]

History of this proceeding

[12] On February 6, 2017, Ms. Rebello issued the claim in this proceeding. She issued a fresh as amended statement of claim on April 20, 2022. Ms. Rebello succinctly summarized her $17 million claim in paragraphs 3 to 6 of her fresh as amended statement of claim:

The plaintiff Ms. Tanya Rebello filed numerous complaints and police reports with the defendant The Ontario Provincial Police (OPP) to which the OPP failed to prevent crimes from being committed against the plaintiff who was a victim of crimes of stalking, trespassing, intimidation, threatening and voyeurisms. The OPP failed to assist and the plaintiff's who was a victim of crimes against her, by failing to laid [sic] charges and stop this person from terrorizing almost every night as per their duty and responsibility.

The defendant (OPP) allowed the person driving the white Mitsubishi with licence plate [omitted], to stalk harass and terrorize the plaintiff numerous times at irregular hours at night (12:00am-5:00am), for a number of years, and did not even charge this person for these criminal actions.

The plaintiff Ms. Tanya Rebello was and still is continually being stalked, harassed and violated by this person driving the white Mitsubishi with licence plate [omitted], on her street and property at [omitted] making it impossible for her to live there on her property for no justifiable reason, to which the OPP did nothing to protect her and was negligent in their actions and inactions.

The plaintiff was and is still being denied her Charter of rights and freedom section 7 by the defendant.

[13] In its defence, the Crown pleads that the OPP investigated Ms. Rebello’s complaints and concluded that the occupant of the white car observed by Ms. Rebello was delivering a newspaper each day to Ms. Rebello’s neighbour. The OPP concluded, therefore, that the reports of a suspicious vehicle were unfounded because they did not involve any unlawful conduct.

The motion for summary judgment to be heard October 27, 2022

[14] In early 2022, the Crown moved for summary judgment to dismiss the action. The motion was scheduled to be heard on October 27, 2022.

[15] Ms. Rebello brought a cross-motion seeking to strike the Crown’s defence or for an order for a summary trial of her action. She then delivered an amended notice of motion seeking, among other relief, leave to file a further fresh as amended statement of claim “to include the cause of action breach of privacy, intrusion upon seclusion, defamation, negligent investigation, and negligent supervision.” She delivered her proposed draft pleading to the Crown one week before the motion for summary judgment was to be heard.

[16] Ms. Rebello’s late delivery of another proposed version of her statement of claim jeopardized the hearing of the Crown’s motion for summary judgment. The Crown’s materials, filed long before Ms. Rebello’s latest pleading, did not address several of the new causes of action she wished to assert. After discussing how the parties wished to proceed, I adjourned the matter so that the Crown could seek instructions on whether or not to consent to Ms. Rebello’s further amended claim. If the Crown could obtain that consent, and with an adjournment to prepare supplementary material, the motion for summary judgment could address all of the causes of action Ms. Rebello wished to assert. To facilitate the Crown’s review of the proposed amendments to the claim, I directed Ms. Rebello to underline the text that she had added to her new claim. I adjourned the motions returnable to me and issued the following endorsement:

The Crown brings this motion for summary judgment to dismiss Ms. Rebello’s action. Ms. Rebello brings a cross-motion for various forms of relief including leave to file a “Further Fresh As Amended Statement of Claim.” Ms. Rebello provided this document to the Crown seven days ago, despite the fact that the Crown delivered its motion for summary judgment on March 7, 2022.

Counsel for the Crown fairly protests that he has not had time to consider fully the implication of the proposed pleading, which may raise new causes of action.

Given the mandatory language of rule 26.01, and the absence of prejudice to the Crown that could not be compensated for by costs and an adjournment, I invited the Crown to consider whether or not it would be most efficient to consent to the Ms. Rebello’s request for leave to amend the pleading and to set terms that would lead to an efficient consideration of the Crown’s motion for summary judgment at a convenient date in the future.

Crown counsel indicated that he needed time to obtain instructions on how to proceed. Therefore, I adjourn this motion to a case conference before me on November 25, 2022, at a time to be confirmed. The case conference will proceed by Zoom.

In addition, on or before November 3, 2022, Ms. Rebello is to deliver a copy of her proposed Further Fresh As Amended Statement of Claim that complies with rule 26.03. Ms. Rebello is not to add any additional words to the pleading, only to use underlining to distinguish the amended wording from the Fresh As Amended Claim that was issued on April 20, 2022.

On or before November 3, 2022, the Crown is to deliver a copy of its Amended Statement of Defence that complies with rule 26.03.

Both parties are to upload their pleadings to CaseLines.

I am seized of this matter and neither party is to take any further interlocutory steps in this proceeding, including attendances at CPC, before the case conference on November 25, 2022.

[17] To be clear, the cause of the adjournment was Ms. Rebello’s late delivery of her proposed amended claim, not the Crown’s inability to respond to it in a timely way.

Case conference held on November 25, 2022

[18] I conducted the case conference on November 25, 2022. The Crown advised that Ms. Rebello had not followed my direction, had delivered several additional versions of her proposed claim, and had further altered the text of the claim instead of just marking what she had changed before the motion date of October 27, 2022. In any event, the Crown consented to the amendments to the claim and I set a schedule for the exchange of material and scheduled the motions to be heard in June 2023, over seven months after the motions were originally scheduled to be heard. Ms. Rebello advised that she wished to conduct rule 39.03 examinations of certain persons. I indicated that she could not do so without leave of the court and set a timetable for her motion for leave to be heard in writing. I note that Ms. Rebello did not proceed with that motion. At the conclusion of that case conference, I released the following endorsement:

On October 27, 2022, I adjourned the Crown’s motion for summary judgment to dismiss Ms. Rebello’s action and Ms. Rebello’s cross-motion for various forms of relief including leave to file a “Further Fresh As Amended Statement of Claim.”

The Crown was to obtain instructions on my suggestion that it consent to the Ms. Rebello’s request for leave to amend the pleading and to set terms that would lead to an efficient consideration of the Crown’s motion for summary judgment at a convenient date in the future. The Crown obtained those instructions.

I also ordered that, on or before November 3, 2022, Ms. Rebello was to deliver a copy of her proposed Further Fresh As Amended Statement of Claim that complies with rule 26.03. I specifically directed that “Ms. Rebello is not to add any additional words to the pleading, only to use underlining to distinguish the amended wording from the Fresh As Amended Claim that was issued on April 20, 2022.”

Ms. Rebello did not follow my direction. It appears that she delivered more than one new version of the claim, that she added text to the claim, and that she did not mark all changes in the manner required by the Rules of Civil Procedure, R.R.O. 1990, Reg. 194. The Crown advised that Ms. Rebello delivered her most recent version of the claim on November 24, 2022. Ms. Rebello stated that she only changed “clerical errors.” Her description of the changes is not consistent with the changes described by the Crown.

In any event, I direct Ms. Rebello that she is to make no further changes to the text of the version of the claim she delivered on November 24, 2022. She is not to add any further words, delete any words, correct any typographical or clerical errors. The only thing she is to do is to compare the November 24, 2022, version of her claim to the Fresh as Amended Claim that was issued on April 20, 2022, and to ensure that all additions are underlined and all deletions are shown as struck out from the November 24 version of the claim.

The Crown advised that it will consent to the November 24 version of the claim being filed without prejudice to the Crown’s ability to argue that the claims are not viable and that they do not reflect a reasonable cause of action. I order that Ms. Rebello may file a claim that accords with my directions above.

I set the following timetable for this motion:

• Ms. Rebello shall deliver the claim that I have described above on or before December 31, 2022
• The Crown shall deliver its amended statement of defence and its amended notice of motion for summary judgment on or before January 31, 2023 ….

Ms. Rebello indicates that she wished to examine persons in addition to the Crown affiants on this motion. Given the names she listed, the history of this motion, and the prior endorsements, I held that she could only do so if I grant leave. Ms. Rebello shall deliver her materials in support of her request on or before January 31, 2023. The Crown shall deliver its responding materials by February 3, 2023. There will be no reply submissions. I will determine the motion in writing.

[19] On November 28, 2022, I released a brief endorsement fixing the hearing date for the motion for summary judgment on June 9, 2023.

Case conference held on January 27, 2023

[20] The Crown requested a case conference to deal with what it considered to be Ms. Rebello’s failure to follow my directions. I convened the case conference on January 27, 2023. Late on the night before the case conference, Ms. Rebello delivered a case conference request form asking that I recuse myself. After the case conference, I released an endorsement that read, in part:

At 10:47 p.m. last night, January 26, 2023, Ms. Rebello delivered a case conference request form. She requested a case conference on January 27, 2023, “before Justice Centa to request that Justice Centa recuse himself from hearing the summary motion….” At the case conference this morning, I indicated that she would need to bring this motion before me and that I was prepared to hear her submissions. Ms. Rebello indicated that she wished to file additional information for use on the motion. I will hear the recusal motion on March 2, 2023, at 9:00 am for one hour, on the following timetable:

• All moving party’s materials to be delivered on or before February 14, 2023
• All responding party’s materials to be delivered on or before February 24, 2023
• All materials to be uploaded to Caselines “Recusal Motion” bundle on or before February 24, 2023

[21] I note that Ms. Rebello did not comply with this seemingly clear direction. Instead, Ms. Rebello uploaded a supplementary motion record and reply factum on February 27, 2023. On March 1, 2023, at 9:47 p.m. and 11:33 p.m., she sent updated versions of her factum for the motion that was to be heard on March 2, at 9:00 a.m.

Legal principles

[22] The test for reasonable apprehension of bias is as follows:

what would an informed person, viewing the matter realistically and practically—and having thought the matter through— conclude. Would she think that it is more likely than not that [the judge], whether consciously or unconsciously, would not decide fairly ? [8]

[23] The test for bias contains a twofold objective standard: the person considering the alleged bias must be reasonable and informed; and the apprehension of bias must itself be reasonable. [9] The reasonable observer is not a person with a very sensitive or scrupulous conscience. [10] She is the sort of person who always reserves judgment on every point until she has seen and fully understood both sides of the argument and “who takes the trouble to read the text of an article as well as the headlines.” [11]

[24] As the Supreme Court of Canada has held, an allegation of a reasonable apprehension of bias must overcome the strong presumption of judicial impartiality:

The basic framework for assessing a claim that the judge failed to decide the case independently and impartially may be summarized as follows. The claim is procedural, focussing on whether the litigant’s right to an impartial and independent trial of the issues has been violated. 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]

[25] That presumption reflects the long history of judicial independence and integrity in this country. [13] Impatience or even rudeness, while regrettable, is not enough to displace the presumption. [14]

[26] Ms. Rebello’s allegations about me concern my exercise of case management functions. My interactions with Ms. Rebello did not take place during a trial. I have not heard or rendered a decision on a substantive motion in this proceeding. The case management phase is different from the trial phase of an action. It is less formal, and the judicial officer participates in the discussion:

Case management, because of the close interaction between the judicial officer and the parties and the informality of many case conferences, can create situations where the judicial officer will make comments with respect to the conduct of the case. The jurisprudence suggests that in the context of case management, the test of reasonable apprehension of bias is even more stringent. In Control & Metering Ltd. v Karpowicz, [1994] O.J. No. 345 (Ont. Gen. Div.), Justice MacDonald said this with respect to the reasonable apprehension of bias within a case management context at paragraph 38:

In the case at bar, given the purpose of the case management rules, the public interests they address and the discretionary powers they give to the case management judge, 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. [15]

[27] The process in case management is designed to create an expeditious and cost-effective way to resolve aspects of disputes. This requires what has been described as a certain amount of “judicial squeezing.” Justice Brown (as he then was) put it this way:

I wish to make one final comment concerning the reasonable and proper expectations of parties about the case management of these proceedings in light of section 33 of the Commercial List Practice Direction which enunciates the policy that one judge should hear the whole of a matter on the Commercial List. In Abrams v. Abrams I offered the following observations about how case management inevitably operates under such a system:

It is apparent that Mr. Abrams has challenged my jurisdiction to make such directions because they do not accord with the way he wishes to litigate this proceeding. Judicial management of high-conflict cases, such as this one, involves, at times, a certain amount of “judicial squeezing” in order to advance the case to a hearing in a timely and proportionate manner. Not all parties take kindly to such squeezing. But, it is worth recalling the comments made by Master Haberman in her decision in Mother of God Church v. Balolis where one party sought the recusal of a case management master with whose directions it did not agree:

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 is 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.

In other words, some amount of judicial squeezing accompanies litigation management. If some pinching occurs, that does not signal a lack of jurisdiction or bias, but simply a necessary degree of judicial hammering to bang a case back into proper procedural shape. The recent adoption of the principle of proportionality signals that the sound of the judicial hammer will only get louder. [16]

[28] While judges should recuse themselves when there is a reasonable apprehension of bias, they should not recuse themselves in response to a specious claim:

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. [17]

No merit to the allegations of a reasonable apprehension of bias

[29] I find that an informed person, viewing the matter realistically and practically, and having thought the matter through, would not think that it is more likely than not that I, whether consciously or unconsciously, would not decide this case fairly.

[30] I will address Ms. Rebello’s primary submissions below.

My decision in a different case does demonstrate a reasonable apprehension of bias

[31] Ms. Rebello submits that a reasonable apprehension of bias is demonstrated by my decision in Ibrahim v. Ontario, 2022 ONSC 6339. [18] I disagree.

[32] In Ibrahim, I dismissed an application by Mr. Ibrahim for leave to proceed with three existing actions after Bloom J. declared him to be a vexatious litigant pursuant to s. 140(1) of the Courts of Justice Act, R.S.O. 1990, c. C.43. There is no overlap between the parties or the issues at play in Ibrahim and this case.

[33] The application in Ibrahim proceeded in writing and Adam Mortimer of the Crown Law Office – Civil was counsel for Penny Leach and the Victim Assistance Program, who were one of the sets of respondents on the application (and were defendants in one of the three actions Mr. Ibrahim wished to continue). Mr. Mortimer is also one of the counsel from the Crown Law Office – Civil representing the Crown in this action.

[34] In her factum, Ms. Rebello submits as follows:

Justice Centa ruled in another case in favour of Adam Mortimer for Ontario (Guelph Police Service Board) [19] against a self represented litigant, recently in November 2022, which can explain the vested interest of Justice Centa has in assisting Adam Mortimer again in this matter before the self represented plaintiff. Therefore, there is reasonable apprehension of bias that Justice Centa will not be an impartial decisions maker and will assist Ontario and the Crown Adam Mortimer again in this very serious motion for summary judgment and should recuse himself from hearing this matter.

[35] Ms. Rebello elaborated on her submissions in her reply factum:

The Court has approx. 100 judge and the Crown has over 100 Lawyers. There is no way that Justice Centa and Adam Mortimer would be in the same court with two (2) similar matters at the exact same time back-to-back a few days apart, unless it previously arranged. This explains why Justice Centa has been ruling for the Crown on every single procedural request on every case conference call against the plaintiff, causing a significant advantage for the Crown and severely prejudice to the self litigant, for this very serious summary judgment motion to strike the plaintiff action.

[36] In oral submissions, Ms. Rebello explained that she believed that I “unfairly” ruled for the respondents in the Ibrahim decision. Unless and until that decision is set aside on appeal, I will proceed on the basis that my decision was correct.

[37] I asked Ms. Rebello what she meant when she said that Mr. Mortimer ended up before me on this case in a manner that was “previously arranged.” Ms. Rebello named a court staff member and stated that she had arranged it to Ms. Rebello’s prejudice “like she normally does.” Ms. Rebello provided no evidence in support of her claim.

[38] Ms. Rebello’s subjective beliefs are not evidence of a reasonable apprehension of bias. Not surprisingly, the Crown in right of Ontario is a frequent litigant in the Toronto Region of the Ontario Superior Court of Justice. Not surprisingly, counsel from the Crown Law Office – Civil appear frequently before me. Not surprisingly, even with the size of the litigation bar in Toronto, several lawyers have appeared before me more than once on different matters in the ten months since my appointment to the bench. Indeed, one lawyer in private practice recently appeared before me on two different cases for two different clients on two consecutive days. Sanders v. Canada’s Choice Investments Inc., 2023 ONSC 195; The Toronto-Dominion Bank v. 2275518 Ontario Inc., 2023 ONSC 1050. [20] That, too, was a coincidence.

[39] There is no evidence to support Ms. Rebello’s submission that someone, somehow deliberately “arranged” for Mr. Mortimer and me to be involved both in this case and the Ibrahim case. There is similarly no evidence that I have a “vested interest” in assisting Mr. Mortimer or his clients.

[40] I do not accept Ms. Rebello’s submissions that my prior decision in Ibrahim or Mr. Mortimer’s involvement in both cases demonstrates a reasonable apprehension of bias.

Ms. Rebello’s complaint about me to the Canadian Judicial Council does not create a reasonable apprehension of bias

[41] On February 13, 2023, Ms. Rebello filed a complaint about me to the Canadian Judicial Council. I did not know about this complaint until she told me of it. She submits that because she has filed this complaint, I must recuse myself from hearing any further steps in this proceeding.

[42] Litigants have the right to file complaints with the Canadian Judicial Council over the conduct of a federally-appointed judge. [21] In this case, Ms. Rebello first indicated that she wished to bring a recusal motion on January 26, 2023. She filed her complaint to the CJC over two weeks later. Presumably, filing a complaint to the CJC demonstrates that the litigant has a subjective belief that they have been treated unfairly or that the judge is biased. It is not evidence, however, that the litigant’s allegations meet the twofold objective standard to establish a reasonable apprehension of bias.

[43] Given the presumption of judicial impartiality, there is no basis to infer that a judge will treat a litigant unfairly because the litigant has filed a complaint about that judge to the CJC. [22] If it were otherwise, a litigant could effectively judge-shop simply by filing one or more complaints to the CJC until they obtained a hearing before a judge of their liking.

[44] I note that this is not the first time that Ms. Rebello has made a complaint about a judicial officer and then expected that officer to recuse themselves because of her complaints. She made similar arguments about Master Short, Master Sugunasiri, and Myers J. None of those arguments was successful. [23]

[45] I do not accept Ms. Rebello’s submissions that her complaint about me to the CJC creates a reasonable apprehension of bias.

Not permitting Ms. Rebello to file a reply factum is not evidence of a reasonable apprehension of bias

[46] At the case conference on November 27, 2022, Ms. Rebello indicated that she wished to conduct rule 39.03 examinations of, among other people, the Commissioner of the Ontario Provincial Police, Premier Doug Ford, and Prime Minister Justin Trudeau.

[47] Given the names she listed, and that she had already cross-examined on an affidavit delivered by the defendant (see rule 39.02(2)), I indicated that she could only conduct such examinations with leave. I indicated that I would hear Ms. Rebello’s motion in writing and set a timetable for submissions.

[48] Ms. Rebello submitted that she had the right to file a reply factum. I disagreed with her. The Rules of Civil Procedure, expressly permit reply factums only on motions for leave to appeal to the Court of Appeal. Rule 61.0301(11), R.R.O. 1990, Reg. 194. [24] As I indicated during the case conference, I find that reply factums are frequently unnecessary, they are often duplicative, and they delay the proceeding unnecessarily. This is equally true of reply factums from counsel and self-represented litigants. I did not anticipate that a reply factum would be helpful to me on Ms. Rebello’s motion for leave to conduct a rule 39.03 examination of the Commissioner of the OPP, the Premier, or the Prime Minister.

[49] In any event, Ms. Rebello did not proceed with her motion for leave to conduct the rule 39.03 examinations of the persons she named, or anyone else. In the result, I declined to exercise my discretion to permit Ms. Rebello to file a reply factum on a motion that she abandoned without filing any material.

[50] I do not accept Ms. Rebello’s submissions that not permitting her to file a reply factum on a motion she abandoned creates a reasonable apprehension of bias.

Scheduling the case conference on November 25, 2022, did not create a reasonable apprehension of bias

[51] Ms. Rebello complains that I directed the case conference to proceed on November 25, 2022, instead of rescheduling it to a later date.

[52] The date for the November 25, 2022, case conference was fixed in my endorsement of October 27, 2022. I expected parties to be able attend in person or through their representatives on that date. Subsequently, I was scheduled to preside over a nine-day trial that included November 25, 2022.

[53] To avoid the parties losing the date, my judicial assistant proposed a 9:30 case conference that day. Ms. Rebello stated that she had a meeting on the morning of November 25, 2022, and asked if the time could be set for 11:30 am or noon. My judicial assistant responded that those times would not work because I was in a trial and proposed 8:00 or 8:30 a.m. or 4:45 p.m. Ms. Rebello was not available at those times, so my judicial assistant asked her to provide all her available times on November 25, 2022, and I would adjourn my trial to conduct the case conference at a time that she was available that day. The case conference was then booked for 12:45 p.m. on November 25, 2022. Ms. Rebello participated in the case conference.

[54] There is no unfairness in the process and nothing that creates an appearance of bias. One important aspect of case management is keeping a case moving forward and avoiding the delays that result from postponed case conferences. The court and the parties were able to find a mutually convenient time and did not lose the date. That is a good thing, not evidence that would support the finding of a reasonable apprehension of bias.

[55] Ms. Rebello also submits that there is a reasonable apprehension of bias arising from the fact that Mr. Mortimer did not attend the case conference. I do not accept this submission. The Crown is represented on this matter by Mr. Mortimer and Ms. Lekhi. The court expects the Crown to be represented by counsel at each attendance but is indifferent as to which lawyer attends, provided that lawyer is authorized to do so by the Ministry of the Attorney General. Ms. Lekhi attended with instructions and authority to proceed. With respect, Ms. Rebello cannot dictate which lawyer from Crown Law Office – Civil appears on behalf of its clients.

[56] Justice Myers explained this point to Ms. Rebello in an endorsement dated May 25, 2021:

In her responding letter, also dated May 3, 2021, Ms. Rebello raised a preliminary concern that Mr. Sinnadurai is not counsel of record for the defendants in the three actions. Ms. Rebello submits that Ms. Yousefian is the lawyer of record and only she is entitled to represent the defendants in these actions.

Under s. 5 (h) of the Ministry of the Attorney General Act, RSO 1990, c M.17 the government, whether sued in the name of Her Majesty the Queen in right of Ontario or through a Minister of the Crown, is represented before the court by the Attorney General of Ontario. The Minister, through the Ministry, is the lawyer of record. Any lawyer authorized by the Ministry of the Attorney General may appear on the Minister’s behalf. This is no different than how any private law firm that is lawyer of record for a party can be represented by any lawyer authorized by the firm to do so.

Therefore, I find that Mr. Sinnadurai is entitled to be heard on behalf of the defendants on this motion. [25]

[57] I do not accept Ms. Rebello’s submission that anything about the scheduling or hearing of the case conference held on November 25, 2022, raised a reasonable apprehension of bias.

Giving Ms. Rebello one week to underline the added words in her proposed statement of claim does not raise a reasonable apprehension of bias

[58] Ms. Rebello submits that, on October 27, 2022, I treated her unequally or placed unreasonable burdens on her regarding her proposed amended claim.

[59] By way of background, Ms. Rebello delivered a Fresh as Amended Claim on April 20, 2022. In late October 2022, one week before the Crown’s motion for summary judgment was to be heard, she delivered a further document titled “Further Fresh As Amended Claim.” The October draft did not comply with rule 26.03 because Ms. Rebello had not marked the additions and deletions on its face. To make it easier for the Crown and the court to identify what Ms. Rebello had added to her proposed new claim, I directed Ms. Rebello simply to underline the text that she had added to the claim. I gave her a week to complete this task. The endorsement read as follows:

In addition, on or before November 3, 2022, Ms. Rebello is to deliver a copy of her proposed Further Fresh As Amended Statement of Claim that complies with rule 26.03. Ms. Rebello is not to add any additional words to the pleading, only to use underlining to distinguish the amended wording from the Fresh As Amended Claim that was issued on April 20, 2022.

[60] It was important that Ms. Rebello complete this task in a timely way so that the Crown could, in turn, obtain instructions on whether or not to consent to her proposed amendments. The assignment I gave to Ms. Rebello was not difficult or time consuming. There was nothing unfair about giving her seven days to complete it, especially because she was not to make any further substantive changes to her claim. This placed no undue burden on her, even as a self-represented litigant. Setting this type of micro-schedule is a case management function that lies at the heart of a judge’s ability to keep a case moving forward efficiently.

[61] The same issue arose at the case conference held on November 25, 2022. Ms. Rebello had failed to comply with my previous directions. She continued to revise her claim by adding and deleting words from it, instead of simply marking the changes she had made in October. Initially, I was inclined to require Ms. Rebello to comply with my earlier direction by November 29, 2022. Again, this would not have been a difficult task. In any event, after further consultation, the deadline for her to deliver a further claim was set for December 31, 2022. There was and could be no prejudice to Ms. Rebello arising from that deadline.

[62] I do not accept Ms. Rebello’s submissions that requiring her to mark the changes to her proposed claim in a timely way raised a reasonable apprehension of bias.

The issue of the redactions to the OPP officers’ notes does not raise a reasonable apprehension of bias

[63] Ms. Rebello submits that my directions on the issue of her request to obtain unredacted OPP notes created a reasonable apprehension of bias. I disagree.

[64] Ms. Rebello raised the issue of the access to the unredacted OPP notes in scheduling appearances on March 30, 2022, May 3, 2022, May 10, 2022, and September 6, 2022. On September 6, 2022, the parties appeared in Civil Practice Court. At that time, Ms. Rebello asked Myers J. to order the Crown to produce unredacted copies of the notebooks of the OPP officers involved in this matter. Justice Myers’ endorsement, which was before me on October 27, 2022, read as follows:

Officer Hlavacek was cross-examined. Therefore, under Rule 39.02 (2), Ms. Rebello needs leave of the court to deliver further evidence whether by affidavit or a summons to witness. Mr. Mortimer submits that it is an abuse of process to serve summonses to witnesses to try to obtain unredacted notes that the OPP refuses to produce. He represented to me clearly and plainly that the redactions made to officers' field notes are the standard redactions to remove unrelated investigations and to protect private third party information. I asked if anything was redacted in relation to the notes of Ms. Rebello's complaints. Mr. Mortimer said that neighbours' dates of birth (but not their names) were redacted and, perhaps by overkill, Ms. Rebello's telephone number was redacted. Otherwise, he said, all the entries regarding Ms. Rebello and her issues were produced. Mr. Mortimer also said that Officer Ms. Hlavacek provided his sources of information and he disagreed with Mr. Rebello as to whether anything of note remains outstanding in relation to the other four officers. The OPP would move to quash summonses if Ms. Rebello were to try to serve them.

[65] Ms. Rebello submitted to me that the Crown’s materials were “almost completely redacted” and “completely not legible.” In advance of the motion, I reviewed the entirety of the record filed by the parties including the notes of Cst. Van Tillaart, PC Hlavacek, PC Keating, PC Christie, and PC Eitzen, and the occurrence and supplementary reports. The notebooks are typical police notebooks that are organized chronologically and cover all the matters touched by an officer during that period of time. There is no doubt that some entries in each notebook are redacted. The unredacted parts of the notebooks do, however, contain a great deal of information about the police officer’s dealings with Ms. Rebello. The handwritten notes were legible. Ms. Rebello’s submissions were not an accurate characterization of the evidence.

[66] Moreover, there is no basis in the evidence to believe that the Crown or the officers have withheld any relevant information. First, Mr. Mortimer, an officer of the court, advised Myers J. that no relevant information had been withheld. Second, I also reviewed the transcript of the cross-examination of PC Hlavacek. Ms. Rebello asked him under oath about the redactions in the notebooks. He testified as follows:

Q. So the first question is: Did you bring the unredacted, typed notes and sworn, written statements for all of the OPP officers' written notes for the investigation? A. I have a copy from the Crown, which is redacted, on me. Q. No. The unredacted version. A. No. I did not. Q. And why not? A. The redacted portion of the notes is not relevant to what we are speaking about here, and it involves private information from other investigations that are not related to this matter. Q. Why did you not get the typed notes from the other officers that was unredacted? A. Once again because they are not relevant to what we are discussing here. It is the private information of other people, in incidents that are not related to you. Q. I will state it again. Why did you not get the typed notes from the other officers, so it is legible? MS. LEKHI: Ms. Rebello, this is Bhavini, counsel for the Crown. I am going to object here. We have addressed your concerns before. These notes were provided to you in the form that they were. They are legible, and they were provided to you in that manner.

[67] Third, I reviewed the officers’ notes. In my view, the notes were legible and the redactions were consistent with PC Hlavacek’s evidence and the representations of Mr. Mortimer to Myers J. There was, and is, nothing in the record to suggest that any of the redactions were inappropriate or overly broad. There was, and is, no reason to believe that the Crown redacted any relevant information from the notes.

[68] Moreover, since the nature of the Crown’s summary judgment motion turns largely on questions of law, there is no reason to believe that the production of any other notes, particularly irrelevant notes, would be of assistance or do anything other than further delay this motion for summary judgment.

[69] I do not accept Ms. Rebello’s submissions that my handling of the redacted OPP notes raised a reasonable apprehension of bias.

The tone of the case conferences was not disrespectful and does not raise a reasonable apprehension of bias

[70] Ms. Rebello submits that I was rude to her during the case conferences. I disagree. First, I do not agree that I was disrespectful to her. It is true that I did not accept her submissions on some matters, decided some points against her, and asked her to move along to her next issue after I made a decision. There is nothing inappropriate in that, especially in a case conference.

[71] Second, a perceived slight or discourtesy is insufficient to dispel the strong presumption of impartiality. As Vermette J. observed:

It takes much more than a demonstration of judicial impatience or even downright rudeness to dispel the strong presumption of impartiality. The moving party’s subjective opinion about the tone of the judge’s voice, or the judge’s appearance and attentiveness during the proceedings cannot, standing alone, overcome the strong presumption in favour of judicial impartiality. Baseless allegations of bias or of a reasonable apprehension of bias founded on a perceived slight or discourtesy that occurred during a proceeding do a disservice to the administration of justice. [26]

[72] I do not accept Ms. Rebello’s submissions that I was disrespectful toward her or that my tone raised a reasonable apprehension of bias.

Conclusion and costs

[73] I find that an informed person, viewing the matter realistically and practically, and having thought the matter through, would not think that it is more likely than not that I, whether consciously or unconsciously, would not decide this case fairly. Therefore, I dismiss Ms. Rebello’s motion.

[74] If the parties are not able to resolve costs of this motion, the Crown may email its costs submission of no more than two double-spaced pages to my judicial assistant on or before March 14, 2023. Ms. Rebello may deliver her responding submission of no more than two double-spaced pages on or before March 28, 2023. No reply submissions are to be delivered without leave.

Robert Centa J. Date: March 07, 2023

[1] Miracle v. Maracle III, 2017 ONCA 195, at para. 6. [2] Rebello v. The Bank of Nova Scotia, 2018 ONSC 4776, at paras. 1, 43 to 45. [3] Rebello v. The Bank of Nova Scotia, 2018 ONSC 7127, at paras. 36 to 44. [4] Rebello v. Del Property Management, 2021 ONSC 7888, at para. 20, appeal quashed for want of jurisdiction and cross-motion dismissed 2022 ONCA 720. [5] Rebello v. Del Property Management, 2021 ONSC 7888, at para 21. [6] Ibid at paras. 9, 63, 65. [7] Miracle v. Maracle III, 2017 ONCA 195, at para. 6. [8] Yukon Francophone School Board, Education Area No. 23 v. Yukon Territory (Attorney General), 2015 SCC 25, [2015] 2 S.C.R. 282, at paras. 20-21; Miracle v. Maracle III, 2017 ONCA 195, at para. 2. [9] Marchand (Litigation guardian of) v. Public General Hospital of Chatham (2000), 51 O.R. (3d) 97 (C.A.), at para. 131. [10] R. v. S. (R.D.), [1997] 3 S.C.R. 484, at para. 31. [11] Helow v. Secretary of State for the Home Department, [2008] UKHL 62, [2008] 1 W.L.R. 2416, at para. 3. [12] Cojocaru (Guardian ad litem of) v. British Columbia Women’s Hospital & Health Centre, 2013 SCC 30, [2013] 2 S.C.R. 357, at para. 22; Haudenosaunee Development Institute v. Metrolinx, 2023 ONCA 144 at para. 23. [13] Peart v. Peel Regional Police Services, (2006), O.A.C. 269 (C.A.), at paras. 36-39. [14] Lee v. Magna International Inc., 2021 ONSC 6764 at para. 46. [15] Gaultieri v. Canada (Attorney General), 2007 CarswellOnt 1480, at para. 15. [16] Canadian National Railway v. Holmes, 2011 ONSC 4837, at para. 59. [17] Miracle v. Maracle III, 2017 ONCA 195 at para. 7; Beard Winter LLP v. Shekhdar, 2016 ONCA 493 at para. 10. [18] That motion was heard in writing on October 31, 2022, with reasons for decision released on November 9, 2022. [19] Mr. Mortimer was not acting for the Guelph Polices Services Board in the Ibrahim matter. Tara Pollitt was counsel for the board in Ibrahim. [20] Sanders v. Canada’s Choice Investments Inc., 2023 ONSC 195; The Toronto-Dominion Bank v. 2275518 Ontario Inc., 2023 ONSC 1050. [21] Lee v. Magna International Inc., 2021 ONSC 6764 at para. 48; Aganeh v. Aganeh, 2017 ONSC 5733 at para. 36; Doncaster v. Chignecto-Central Regional School Board, 2013 NSCA 59 at para. 13; Jayaraj v. Metcap Living Management Inc., 2021 ONSC 503 at para. 9; and R. v. J.L.A., 2009 ABCA 344, 464 A.R. 289 at para. 30. [22] Peoples Trust Company v. Atas, 2018 ONSC 58 at para. 172. [23] Rebello v. The Bank of Nova Scotia, 2018 ONSC 4776 at para. 45; Rebello v. Del Property Management, 2021 ONSC 7888 at para. 65. [24] Rule 61.0301(11), R.R.O. 1990, Reg. 194. [25] Rebello v. Her Majesty the Queen in Right of Ontario, 2021 ONSC 3752, paras. 3 to 5. [26] Lee v. Magna International Inc., 2021 ONSC 6764, at para. 46.