DATE: 20000328
DOCKET: C30618
COURT OF APPEAL FOR ONTARIO
RE: THEODORA MARIA JOHNSTON (Petitioner/Respondent) v.
ERIC MARTIN JOHNSTON (Respondent/Appellant) and
ERIC MARTIN JOHNSTON v. THEODORA MARIA JOHNSTON
(Petitioner by Counter-petition) and PHILLIP
HARRIS (Respondents by Counter-petition)
BEFORE: MORDEN and ABELLA JJ.A. and O’DRISCOLL J. (ad hoc)
COUNSEL: James B. Barnes
For the appellant
William R. Hunter
For the respondent
HEARD: March 15, 2000
On appeal from the judgment of Métivier J. dated August 25, 1998
E N D O R S E M E N T
[1] The trial under review took place in Ottawa and consumed
nine court days in August, 1998 ending on August 24, 1998. The
trial judge, Madam Justice Métivier, gave her oral reasons for
judgment (45 pages of transcript), the following day. Written
submissions relating to costs were filed in September and October
- On February 26, 1999, for written reasons given (19
pages), the trial judge awarded fixed costs of $90,000 on a party
and party scale to Ms. Johnston.
[2] Yesterday and today, over some three and one-half hours, we
have heard submissions from counsel on the appeal and the cross-
appeal.
[3] Unfortunately, these legal proceedings were infused with bad
feelings. That situation made the trial judge’s task more
difficult than usual.
[4] The trial was largely fact-driven. We are satisfied that
the trial judge’s findings on all issues raised before us are
supported by the evidence and that her reasons do not reflect any
palpable or overriding error.
[5] Before us, counsel for the appellant stressed two matters,
in particular. The first related to the ownership of the
triplex. At the end of the day, the trial judge held that the
triplex was 100% the property of Mr. Johnston and that Ms.
Johnston had no interest in that owned by Mr. Johnston. The
initial financial statement of Mr. Johnston, dated October 6,
1994, shows the triplex as being 100% his property. In our view,
that is extremely significant. Apparently, it was significant as
well for the trial judge. We see no basis for disturbing that
finding of the trial judge made on ample evidence.
[6] Counsel for Mr. Johnston also argued that there was a
reasonable apprehension of bias on the part of the trial judge.
We are far from being persuaded that the trial judge’s conduct of
this difficult trial was such that it could give rise to a
reasonable apprehension of bias in the mind of a person apprised
of all the facts. We find no basis for this ground of appeal.
[7] The cross-appeal is contingent except with regard to the
claim for pre-judgment interest. While the trial judge did not
state her reasons for not awarding pre-judgment interest, we
think that the circumstances of this case, which included a lack
of liquidity relating to the assets in Mr. Johnston’s hands,
justified her conclusion.
[8] Accordingly, we dismiss the appeal and the cross-appeal.
[9] We also dismiss the motion brought at the opening of the
hearing for the admission of fresh evidence. In our view, it
adds nothing to the appeal nor to the cross-appeal. Therefore,
we would dismiss that motion.
[10] We have considered the submissions of counsel regarding
fixing costs of the appeal. We fix the costs of the appeal in
the amount of $10,000 payable by Mr. Johnston to Ms. Johnston and
award no costs of the cross-appeal.
“J.W. Morden J.A.”
“R.S. Abella J.A.”
“J. O’Driscoll J.”