Court of Appeal for Ontario

Citation: Brummell v. Ontario (Attorney General), 2014 ONCA 828 Date: 2014-11-21 Docket: C58354

Before: Hoy A.C.J.O., Epstein and Hourigan JJ.A.

Between:

Gerald Guy Brummell Appellant

and

The Attorney General for Ontario, Andrew Beatty, Darryl Foulkes, Commissioner Julian Fantino, Superintendent Ken Smith, Inspector George Miller, Inspector Pat Finnigan, Inspector Earl Johns, Inspector Carson Pardy, Mark Zulinski, Mike Smith, Paul Beesley, Chris Newton, Baldassare Nuccio, Brian Hollenbeck, Jayne Pellerin, Christina Reive, Vern Crowley, Al Doubrough, Dennis Desjardins, Brad Robson, Jon Bakelaar, Bernie Gaw, Kevin Knowack, Al O’Byrne, Conner Durkin, Jeff McKinnon, Brad Burkholder, Mark Allison, Don Davies, Troy Bellehumeur, Terry Penlington, Andrew Goad, Kevin Conner, Matt Casie, Tom Whittaker, Dan McAuley, The City of Quinte West Police Services Board, Her Majesty the Queen in Right of Ontario Respondents

Counsel: Gerald Guy Brummell, appearing in person Darrell Kloeze and Judith Parker, for the respondents

Heard: November 7, 2014

On appeal from the order of Justice Hugh K. O’Connell of the Superior Court of Justice, dated January 20, 2014.

Endorsement

[1] The appellant seeks to adjourn his appeal of the January 20, 2014 order of the motion judge striking out his claim without leave to amend and dismissing the action in its entirety. He also brings an application to have a CPIC statement that shows that certain charges against him were withdrawn before his criminal trial, admitted as fresh evidence.

[2] The appellant argues – on the basis of the CPIC statement – that this appeal should be adjourned until this court reviews Rosenberg J.A.’s December 12, 2013 decision. In his decision, Rosenberg J.A. denied the appellant an extension of time to appeal his September 30, 2008 conviction on two charges of making false statements for the purpose of procuring a passport for other persons contrary to s. 57(2) of the Criminal Code, two charges of uttering forged documents in relation to the passports contrary to s. 368(1)(b), one charge of obtaining credit by fraud contrary to s. 362(1)(b), and four charges of fraud contrary to s. 380(1).

[3] The request for an adjournment and the application to have the CPIC statement admitted as fresh evidence are both dismissed. The CPIC statement is not relevant to the issues that were before the motion judge.

[4] We therefore turn to the appeal.

[5] As the respondents assert in their factum, the motion judge found that the appellant’s “claim was fatally flawed, making allegations of malicious prosecution when the criminal proceedings had not been resolved in the appellant’s favour, raising allegations which were plainly and obviously beyond the limitation period, and seeking damages for causes of action which either do not exist or for which the material facts were, and could not be pleaded”.

[6] On appeal, the appellant argues that the motion judge’s order should be overturned because the respondents did not bring their rule 21 motion soon enough, two unissued draft amended Statements of Claim superseded the last issued claim, the motion judge made errors of fact, and the motion judge was biased against him.

[7] In our view, this appeal is without merit.

[8] There is no basis to interfere with the exercise of the motion judge’s discretion to hear and grant the rule 21 motion. Delay was understandable. The appellant continued to amend his claim. Further, it would be antithetical to the aim of litigation efficiency to insist that a claim that has no chance of success cannot be the subject of a rule 21 motion because of delay, and must be brought to trial.

[9] The motion judge considered both the most recent claim filed by the appellant (the Second Amended Statement of Claim), a draft amended claim called the “Fresh as Amended Statement of Claim”, and the most recent draft claim, served only the week before the rule 21 motion, and after the close of pleadings. The procedure the motion judge adopted was appropriate given the last-minute nature of the amendments and given that the appellant had not brought a motion to amend his claim after the close of pleadings or obtained the parties’ consent.

[10] To the extent that the motion judge made any factual errors, they are clearly not overriding. As indicated above, the motion judge found that the claim was fatally flawed, no matter the form of pleading.

[11] Finally, there is strong presumption of judicial impartiality. The appellant has not shown that, objectively, there was a reasonable apprehension of bias.

[12] The appeal is accordingly dismissed. The appellant shall pay costs to the respondents in the amount of $4500, inclusive of disbursements and HST.

“Alexandra Hoy A.C.J.O.”

“Gloria Epstein J.A.”

“C.W. Hourigan J.A.”