DATE: 2001-05-04

DOCKET: C33436

COURT OF APPEAL FOR ONTARIO

RE: ERMA BADER (Plaintiff/Appellant) v. NATHAN WALDMAN, BERNARD WALDMAN, HARRY WALDMAN, SAMUEL WALDMAN and MURRAY WALDMAN (Defendants/Respondents)

BEFORE: LABROSSE, DOHERTY and FELDMAN JJ.A.

COUNSEL: Robert C. Taylor and Russell Hatch for the appellant Mark Adilman and Jane Southern for the respondents

HEARD: April 26, 2001

On appeal from the judgment of Justice Blenus Wright dated November 26, 1999.

E N D O R S E M E N T

[1] Assuming without deciding that the appellant’s action was not foreclosed by the res judicata doctrine, we are satisfied that the action was properly dismissed on its merits.

[2] The finding in the Quebec proceedings that the respondents (plaintiffs in the Quebec action) did not have standing to challenge the will did not constitute a finding that those proceedings were brought for an improper purpose. The Quebec court did not address the purpose for which the proceedings were brought. In the Ontario action, the appellant had to establish that the respondents had brought the Quebec proceedings for an improper purpose. There was conflicting evidence on this point. The trial judge ultimately decided that the Quebec action was not commenced for an improper purpose. That factual finding is entitled to deference. The appellant has not demonstrated any ground upon which we could interfere with that finding of fact.

[3] The trial judge’s determination that the Quebec proceedings were not brought for an improper purpose was determinative of the abuse of process claim and the other claims advanced by the appellant.

[4] The appellant also contends that certain comments made by the trial judge at the outset of the trial demonstrated a reasonable apprehension of bias. After reviewing the pleadings, the trial judge outlined several difficulties which he saw with the appellant’s claim.

[5] Some of the trial judge’s comments are troubling. They suggest that he had formed rather firm views on the issues even though he had not heard any evidence or counsels’ submissions. Considering the trial judge’s comments in their totality, however, we are not satisfied that they display a reasonable apprehension of bias. In reaching this conclusion, we have considered not only the comments relied on by the appellant but also later statements by the trial judge. Those statements contraindicate any predetermination of the issues.

[6] The appeal is dismissed with costs.