DATE: 20041018

DOCKET: 39821

COURT OF APPEAL FOR ONTARIO

RE:

THE TDL GROUP LTD. and 1326760 ONTARIO INC. (Plaintiffs/Respondents) – and – 1158631 ONTARIO LIMITED and ARSEN DABBAGHIAN (Defendants/Appellants)

BEFORE:

SIMMONS, GILLESE JJ.A. and HENNESSY J. (ad hoc)

COUNSEL:

Arsen Dabbaghian in person

for the appellant

Paul J. Bates and Susan Borsic-Drummond

for the respondent

HEARD:

October 13, 2004

On appeal from the judgment of Justice Blenus Wright of the Superior Court of Justice dated March 19, 2003.

E N D O R S E M E N T

[1] The appellants allege bias on the part on the trial judge in addition to a number of substantive errors.

Bias

[2] The appellants provided to the court a typed document setting out the factual basis for the bias allegation. Its essence is that the trial judge was biased against them due to the individual appellant having filed a formal complaint against the trial judge after being unhappy with a decision rendered by the trial judge in a different proceeding.

[3] At the oral hearing of the appeal, the appellants were self-represented. They provided several pages of typed material to the court. That part of the written material that summarised the appellants’ legal argument was properly before the court. However, much of the material was the appellants’ explanation of why the trial judge was biased against them. That material was not properly before the court as it amounted to presentation of evidence in contravention of the rules. The court could not and did not consider such “evidence”.

[4] In paragraphs 39 and 58 of their factum, the appellants’ assert that the trial judge “pre-judged” their defence and counterclaim. In essence, they allege bias although they do not use that term. The threshold for a successful allegation of judicial bias is high. A careful reading of the transcript does not come close to reaching such a threshold. The impugned comments were no more than a reasonable attempt to clarify and understand the evidence and to control the trial process. In any event, bias is to be raised at the earliest practical opportunity and that was not done here. The concerns were evident to the appellants’ trial counsel yet the first allegation of this sort was made approximately one year after the release of the trial judge’s reasons.

The Alleged Errors at Trial

[5] The trial judge held that TDL did not enter into a Side Agreement concerning Phase II, that TDL did not prejudice the landlord in its attempt to develop Phase II, that the landlord was not entitled to terminate TDL’s tenancy and that the appellants were liable to TDL and the franchisee for their extra-judicial efforts to shut down the restaurant. There is no basis for interfering with the trial judge’s determination of these matters. He articulated the appropriate legal standards and gave full reasons for the findings that he made, all of which are amply supported on the record.

Personal Liability of the Individual Appellant

[6] The individual appellant’s personal liability was not contested at trial. Indeed, the individual appellant undertook personal liability for the acts and omissions of Mr. Bailiff Inc. The individual appellant’s other misconduct falls within the realm of personal liability of that of corporate directors and officers for tortious acts even if the tortious acts were performed within the course of his duties to the corporation.

Result

[7] Accordingly, the appeal is dismissed with costs to the respondent fixed in the amount of $20,000, inclusive of disbursements and GST.

“Janet Simmons J.A.”

“E. E. Gillese J.A.”

“P. C. Hennessey J.A. (ad hoc)