COURT OF APPEAL FOR ONTARIO

CITATION: Beard Winter LLP v. Shekhdar, 2016 ONCA 493

DATE: 20160620

DOCKET: M46520

Doherty J.A. (In Chambers)

BETWEEN

Beard Winter LLP

Plaintiff (Responding Party)

and

Kersasp Shekhdar

Defendant (Moving Party)

No one appear for the defendant (moving party)

Gavin Tighe and Robert Winterstein, for the plaintiff (responding party)

Heard: June 15, 2016

ENDORSEMENT

Background

[1] This motion for an extension of time to bring an application for leave to appeal from the Divisional Court was adjourned from a previous date to June 15th.

[2] A few days before the return date, I was told by the motions clerk that I was on a list of nine or ten other judges of this court who the moving party claimed should not sit on any of the matters he had before this court. I was told that I had presided over an appeal brought by the moving party in another proceeding at some earlier date. The appeal had been dismissed.

[3] I instructed the motions clerk to advise the moving party that I would not recuse myself simply because he took the position that I should not sit on the motion. I told the motions clerk to advise the moving party that he could make submissions at the start of his motion in support of the claim that I should recuse myself. I advised the clerk to tell the moving party that he would have 10 minutes to make those submissions.

[4] A few days before the motion was to be heard, the moving party sent a 61-page document to the court. The document purported to substantiate the moving party’s claim that I should not sit on his motion. Most of the information in the document, while perhaps of some background relevance, had nothing to do with the issue of whether I should disqualify myself. Some parts of the material were, however, germane to that issue.

[5] In the 61-page document, the moving party indicates that I presided over two panels, one in 2010 and one in 2013, that dismissed his appeals (one was actually a motion to review a decision of a single judge of this court). The moving party asserts that in both cases the reasons of the panel for dismissing his appeal/review are so lacking in substance and so clearly wrong in law as to be explainable only by “racism, corruption and/or criminal case fixing”. The moving party does not suggest any substantive overlap in the issues involved in those two proceedings and the issues raised in this proceeding.

[6] In addition to attacking the reasons, the moving party alleges that my tone of voice in delivering those reasons on behalf of the panel and my “scowling visage” when I read the reasons demonstrated my contempt for him. He writes that he “suspects” that my “contempt” reflects my racism and distain for anyone who is not a “white Canadian”. Finally, the moving party asserts that I did not pay attention during the proceedings and fell asleep at one point.

[7] The motion was to be heard by teleconference. The moving party lives in Pakistan. Shortly before the motion was to commence, the moving party indicated that he would not take part in the motion if I was presiding. According to his email:

I am not going to be so unwise as to attorn before a judge (Mr. Doherty) whose intentions I know in advance…. The motion cannot proceed today and I shall not call in.

[8] The court commenced at 10:00 a.m. As of 10:15 a.m., the moving party had not called in to the scheduled conference call.

[9] Counsel for the respondent, who filed material on the motion, including a factum, took the position that I should not disqualify myself, should proceed with the motion in the absence of the moving party and dismiss the motion. I accepted that submission and indicated the motion would be dismissed with reasons to follow. I indicated that those reasons would address both the moving party’s claim that I should not sit on the motion, and the merits of the motion.

The Bias Claim

[10] It is important that justice be administered impartially. A judge must give careful consideration to any claim that he should disqualify himself on account of bias or a reasonable apprehension of bias. In my view, a judge is best advised to remove himself if there is any air of reality to a bias claim. That said, judges do the administration of justice a disservice by simply yielding to entirely unreasonable and unsubstantiated recusal demands. Litigants are not entitled to pick their judge. They are not entitled to effectively eliminate judges randomly assigned to their case by raising specious partiality claims against those judges. To step aside in the face of a specious bias claim is to give credence to a most objectionable tactic.

[11] In my view, a reasonably objective observer would give no weight to the claims of partiality advanced by the moving party in his 61-page document. The challenged decisions were made by a unanimous three-judge panel. To my knowledge, none were appealed. The moving party is certainly entitled to his own opinion about the adequacy of the reasons and the correctness of those decisions. However, the personal opinion of the losing litigant as to the quality and correctness of the court’s decision counts for little when assessing a partiality claim. It is understandable that losing litigants sometimes firmly believe that the court got it all wrong. To jump from that conclusion to allegations of racism and corruption is irresponsible and irrational.

[12] The moving party’s subjective opinion about the tone of my voice, my appearance and attentiveness during the proceedings cannot, standing alone, overcome the strong presumption in favour of judicial impartiality. His assessments are necessarily subjective. It is perhaps not surprising that a losing litigant takes offence with the tone or appearance of the judge delivering the decision against the losing litigant.

[13] A reasonable observer, in considering the allegations made by the moving party, would also take into account that this moving party has made similar allegations of serious misconduct against a great many people involved in the judicial process, including many judges. The moving party offers no evidence that any of the many allegations he has made have ever been made out to the satisfaction of anyone other than himself.

[14] There is no air of reality to the moving party’s allegations of bias. I did not recuse myself.

The Merits of the Motion

[15] The criteria to be considered in determining whether to grant leave to appeal from a decision of the Divisional Court are well known and need not be repeated here. Only one is in dispute. The respondent argues that the moving party cannot demonstrate that there is any realistic chance that he would obtain leave to appeal on the issues raised by him. Counsel submits that if there is no realistic chance of obtaining leave, it would be a waste of time to grant an extension to seek leave.

[16] I agree with the respondent’s submission. The issue raised by the moving party has no significance beyond the specifics of this case. The proposed appeal would address the specific question of whether the order made by the Divisional Court in November 2015 is an accurate reflection of the reasons of the court delivered in August 2015. As I understand it, the moving party argues that the November order approved by the judge of the Divisional Court effectively alters orders other than the order that was subject of the appeal to the Divisional Court. This argument was made to the Divisional Court judge when she settled the order. She addressed the moving party’s submissions that the proposed order went beyond the terms of the August 2015 reasons in her careful reasons.

[17] On my reading of the reasons of the Divisional Court, the merits of this argument are dubious at best. In any event, there is nothing in the argument that would raise the proposed appeal to the level of generality or public importance meriting leave to appeal to this court from a decision of the Divisional Court.

[18] The absence of any issue that could realistically be expected to justify a further appeal to this court leads me to conclude that there is no realistic possibility that the moving party would obtain leave to appeal. Consequently, there is no basis upon which an extension of time to seek leave to appeal should be granted.

[19] Although the absence of any basis upon which leave could be granted is sufficient to determine the motion for an extension, I make one further point. An extension of time is a discretionary order. The respondent claims, correctly in my view, that it has suffered significant and ongoing prejudice because of the manner in which the moving party has conducted this litigation. The respondents have faced what they describe as “a never-ending stream of vexatious motions and appeals”. The moving party’s tactics have no doubt extracted a significant personal and economic toll on those targeted by those tactics. This court should be very reluctant to allow the moving party to pursue yet a further motion in the “never-ending stream” of motions launched by the moving party. For the reasons set out above, the motion for an extension of time is dismissed.

Costs of this Motion

[20] Counsel for the respondent request costs in the amount of $4,000, inclusive of disbursements and relevant taxes. Given the amount of material the respondent had to go through to prepare the response, and the helpful responding material filed, I think the respondent’s request is reasonable. Costs to the respondent fixed at $4,000, inclusive of disbursements and relevant taxes.

“Doherty J.A.”