Court of Appeal for Ontario

Date: March 6, 2017 Docket: C62656

Justices: Sharpe, Lauwers and Hourigan JJ.A.

Between

Andrew Clifford Miracle Appellant

and

Andrew Clifford Maracle III, Jasmine Johnson and The Canadian Imperial Bank of Commerce (CIBC) Respondents

Counsel

Glenn Bogue, for the appellant

Alannah Fotheringham, for the respondent, CIBC and for the proposed parties, Sherry Walker and Victor Dodig

Roger Horst and Rafal Szymanski, for the proposed party, Chief R. Donald Maracle

Heard: March 1, 2017

On appeal from: the order of Justice Wolfram Tausendfreund of the Superior Court of Justice, dated June 15, 2016.

By the Court:

A. Objection to the Panel Assigned to Hear This Appeal

[1] At the outset of oral argument, counsel for the appellant asked that this appeal be heard by a differently constituted panel. He objected to Sharpe J.A. sitting on the appeal because he was a member of the panel that decided Tyendinaga Mohawk Council v. Brant, 2014 ONCA 565, 121 O.R. (3d) 561, a case in which certain parties to the present appeal were involved. Counsel further objected to Hourigan J.A. sitting on the appeal because, prior to his appointment as a judge, he had been a senior member of the staff in the office of the Attorney General for Ontario. Counsel submitted that because of these prior associations, a reasonable apprehension of bias arises.

[2] The test for reasonable apprehension of bias laid down and consistently endorsed by the Supreme Court of Canada is:

what would an informed person, viewing the matter realistically and practically—and having thought the matter through—conclude. Would he think that it is more likely than not that [the decision-maker], whether consciously or unconsciously, would not decide fairly. (Yukon Francophone School Board, Education Area No. 23 v. Yukon Territory (Attorney General), 2015 SCC 25, [2015] 2 S.C.R. 282, at paras. 20-21)

[3] The reasonable observer is not a person with a "very sensitive or scrupulous conscience": R. v. S. (R.D.), [1997] 3 S.C.R. 484, at para. 31. Rather, it is the "sort of person who always reserves judgment on every point until she has seen and fully understood both sides of the argument" and "who takes the trouble to read the text of an article as well as the headlines": Helow v. Secretary of State for the Home Department, [2008] UKHL 62, [2008] 1 W.L.R. 2416 (U.K. H.L.), at para. 3.

[4] In our view, that test is not met in the circumstances of this appeal. The issues arising in Tyendinaga Mohawk Council v. Brant were strictly legal in nature and quite distinct from the issues posed on this appeal. A reasonable observer would not conclude that, because a judge has ruled against a party on a legal issue in one case, that judge, whether consciously or unconsciously, would likely be biased when deciding a different legal issue with respect to that same party in another case.

[5] Moreover, there is absolutely no connection between anything done in the course of Hourigan J.A.'s prior employment in the office of the Attorney General of Ontario and the issues raised on this appeal. There is no merit to the appellant's contention that Hourigan J.A.'s prior employment gives rise to a reasonable apprehension of bias.

[6] We further note that, when this appeal was listed for hearing last week, counsel for the appellant made similar allegations of bias against a differently constituted panel. That panel ruled that, while there was no substance to those allegations, the case would be adjourned to a different panel. The repetition of the same complaint today reveals a pattern of conduct on the part of counsel that cannot be condoned. Unfounded claims of bias and repeated requests for adjournments cause delay and impose added cost to other litigants and the court system. Judges have a duty to sit and hear cases to ensure proper and expeditious justice. They must not be dissuaded from fulfilling that duty by groundless allegations of bias.

[7] We adopt, for the purposes of this appeal, the following statement made by Doherty J.A. in Beard Winter LLP v. Shekhdar, 2016 ONCA 493, [2016] O.J. No. 3257, at para. 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.

B. The Appeal

[8] The appellant appeals the dismissal of his motion seeking to:

• add Chief R. Donald Maracle, Victor Dodig, Sherry Walker and Donald A Maracle as co-defendants, and seeking damages jointly and severally against those parties in the amount of $76 million;
• claim an order striking down the Indian Act, R.S.C. 1985, c. I-5, and declaring land north of the 49th parallel to be held communally;
• claim punitive damages in the amount of $24 million; and
• claim costs on a solicitor and client basis.

[9] This action, as presently constituted, is brought by the appellant against his son, his son's wife, and the Canadian Imperial Bank of Commerce ("CIBC"). It arises out of a partnership between father and son involving a tobacco and convenience store business and a dispute concerning an account the business had at the CIBC. None of the proposed defendants are parties to that dispute and there are no allegations made against those proposed defendants in the pleadings.

[10] The motion was brought without leave after the action had been set down for trial. Because the appellant failed to obtain leave to bring the motion, the motion judge dismissed it on the basis of rule 48.04(1). That rule provides that, subject to certain exceptions not relevant to this case, "any party who has set an action down for trial … shall not initiate or continue any motion or form of discovery without leave of the court."

[11] The appellant asks this court to reverse the decision of the motion judge and to proclaim "a decree of default judgment" against various parties. He raises a number of grounds of appeal, including the submission that the motion judge erred by failing to "move [the court] into its exclusive equitable jurisdiction". He submits that this case should be referred to a court of equity as it existed prior to 1881 and that this court lacks jurisdiction because of the appellant's alleged Métis status.

[12] There is no merit to those arguments or to any of the other arguments raised by the appellant. They are entirely lacking in any legal foundation.

[13] The appellant has brought his action in the Superior Court of Justice and he must abide by the Rules of Civil Procedure. His Aboriginal or Métis status does not exempt him from those rules. The appellant's motion to add additional parties after the action had been set down for trial without first obtaining leave is a plain breach of rule 48.04(1). The appellant has failed to demonstrate any error made by the motion judge in dismissing the motion.

[14] The appeal is dismissed, with costs to the respondents CIBC, Victor Dodig and Sherry Walker fixed at $7,500 and costs to the respondent Chief R. Donald Maracle fixed at $7,500. Both figures are inclusive of disbursements and applicable taxes.

[15] We order that the appellant shall not be permitted to take any further actions against any of these parties without leave of a judge of this court if those costs have not first been paid. The costs we have ordered may be enforced in the same manner as provided in paras. 7, 8, 9 and 10 of the order of Tranmer J. dated August 14, 2013. Approval of the formal order is dispensed with.

Released: March 6, 2017

"Robert J. Sharpe J.A."

"P. Lauwers J.A."

"C.W. Hourigan J.A."