DATE: 20040302

DOCKET: C39024 & M29692 (M29451)

COURT OF APPEAL FOR ONTARIO

RE:

SAM STABILE (Plaintiff) (Respondent) – and – LUCIA MILANI, RIZMI HOLDINGS LIMITED., MUCCAPINE INVESTMENTS LTD., L.C.T. HOLDINGS INC., and HIGHLAND BEACH REAL ESTATE HOLDINGS, INC. and MILANI & MILANI HOLDINGS LIMITED (Defendants) (Appellants)

BEFORE:

WEILER, SHARPE and BLAIR JJ.A.

COUNSEL:

Charles M. Campbell

for the appellant

Ronald E. Carr

for the respondent

HEARD & ENDORSED:

February 26, 2004

On appeal from the order of Justice Anne Marie Molloy of the Superior Court of Justice dated October 1, 2002.

A P P E A L B O O K E N D O R S E M E N T

[1] This was a motion under rule 59.06(2) or alternatively the inherent jurisdiction of the court was invoked to set aside a judgment. There is also a motion to review the decision of Gillese J.A. refusing an extension of time to appeal the judgment. In our view, where a judgment of the Superior Court is attacked on grounds of reasonable apprehension of bias, the appropriate procedural avenue is an appeal. It is common ground that in the unusual circumstances of this case, we are in position to set aside the order of Gillese J.A., grant an extension of time for the appeal, and entertain the appeal on the merits today.

[2] The test for reasonable apprehension of bias is one that is dependent for its application on the factual circumstances of the particular case. Here the impugned comments were made in the context of a proceeding that was no longer defended, there was no contest respecting credibility and the only evidence before the trial judge (not Molloy J.) was the evidence indicating that a debt was owed. Prior to commencing and at the trial judge’s direction defence counsel was called and told that the trial would be proceeding. She advised that she was under instructions not to attend and defend the matter. The appellant acknowledged that she knew that the only evidence that would be presented would be the evidence of the respondent. The trial judge’s comments were made after he had granted judgment and was dealing with the matter of costs. Costs were requested on a solicitor and client scale because of the difficulty the respondent had had in collecting on the debt that was the subject of the judgment. The trial judge’s comments were made in response to this request. While the comments were unfortunate, they tended to support rather than attack the interests of the defendant. There is no suggestion that the judgment would have been affected. Ultimately the trial judge did not accede to the request for solicitor and client costs. The test for reasonable apprehension of bias has not been met.

[3] Accordingly, we dismiss the appeals.