Court of Appeal for Ontario

Citation: Matutschovsky v. Singer, 2009 ONCA 406

Date: 20090514

Docket: C49531

Before: Winkler C.J.O., MacFarland and LaForme JJ.A.

Between

Ekaterina Matutschovsky

Plaintiff (Appellant)

and

Isaac Singer and Gregory W. Bowden

Defendant (Respondents)

Counsel:

Ekaterina Matutschovsky, in person

Gavin J. Tighe, for the respondent Isaac Singer

Daniel Iny, for the respondent Gregory W. Bowden

Heard and released orally: May 1, 2009

On appeal from the order of Justice Andra Pollak of the Superior Court of Justice dated September 24, 2008.

ENDORSEMENT

[1] Each of the respondents brought motions for an order dismissing or permanently staying the appellant’s claim against them on grounds that first, the action was frivolous, vexatious and an abuse of process, and second, that there was no genuine issue for trial. On the same day, the appellant sought an order compelling both respondents to attend examinations for discovery. The respondents’ motions were both granted, with costs payable to each of them on a substantial indemnity basis in light of the serious nature of the allegations against them. The appellant’s motion to compel the respondents’ attendance at examinations for discovery was rendered moot.

[2] The appellant, who is self-represented, appeals the decision of the motion judge and submits that the motion judge erred in three respects. First, she contends that the motion judge incorrectly dismissed her action against each of the respondents. Second, she argues that she was denied natural justice, primarily because all the motions were heard in her absence. And third, she says that substantial indemnity costs ordered by the motion judge should not be awarded to the respondents.

[3] Dealing first with the appellant’s claim of a denial of natural justice, we would reject this submission. The appellant — having been informed by the motion judge that the respondents’ motions would proceed before her cross-motion to compel the respondents to attend for discoveries — refused to participate and left the court. The motion judge heard the respondents’ motions in her absence. The appellant now says that in doing so, and in all the circumstances, the motion judge demonstrated bias in favour of the respondents.

[4] The threshold for an allegation of bias on the part of a judge is high. In our view, the appellant has failed entirely to meet this threshold.

[5] In all of the circumstances of this case, it simply cannot be said that an informed person, viewing this matter realistically and practically — and having thought the matter through — could conclude there was an apprehension of bias in the proceedings: see Committee for Justice and Liberty v. Canada (National Energy Board), 1976 2 (SCC), [1978] 1 S.C.R. 369, at p. 394. There was no denial of natural justice and this ground of appeal must be dismissed.

[6] Second, as to the merits of the appeal and the alleged errors by the motion judge in granting the respondents’ motions, we would dismiss this ground of appeal as well. Simply stated, the motion judge correctly decided that in order for the appellant to succeed in the action, she would need to prove that the guarantees at issue were forged. In a previous and related action, both a trial court and an appellate court concluded that this was not the case. Accordingly, that legal issue has already been fully adjudicated and decided upon.

[7] As the motion judge correctly held, the action is therefore an abuse of process, and there is no genuine issue for trial. The motion judge, in so concluding, committed no errors.

[8] Finally, we turn to the issue of costs. Although this issue was not argued before us, it was raised in the ­­­­­­appellant’s notice of appeal. We would not, in any event, interfere with the decision of the motion judge.

[9] The foundation of the appellant’s allegations against the respondents in the within action was an attack on their honesty and moral turpitude. The motion judge, in the proper exercise of her discretion, awarded substantial indemnity costs given these circumstances. The appellant has not demonstrated that the motion judge made any errors in principle in doing so.

[10] For all of these reasons, the appeal is dismissed. Costs of the appeal are awarded to each of the respondents in the amount of $4,000 inclusive of disbursements and GST.

“W. Winkler C.J.O.”

“J. MacFarland J.A.”

“H.S. LaForme J.A.”