Court of Appeal for Ontario
Date: January 27, 2017
Docket: C60456
Judges: Laskin, Feldman and Hourigan JJ.A.
Between
Robert Joseph McGregor Respondent (Applicant)
and
Mary Angela McGregor Pitawanakwat Appellant (Respondent)
Counsel:
- Nicole Marcus, for the appellant
- Eric Hovius, for the respondent
Heard: September 6, 2016
On appeal from: The order of Justice R. Dan Cornell of the Superior Court of Justice, dated March 11, 2015 and from his costs award dated May 22, 2015, reported at 2015 ONSC 3263, 2015 CarswellOnt 7616.
Laskin J.A.:
A. Overview
[1] The appellant, Mary Pitawanakwat, and the respondent, Robert McGregor, are sister and brother. Both are members of the Whitefish River First Nation, located in the district of Manitoulin. Their underlying dispute is over possession of a parcel of land – Lot 15 – on the Whitefish reserve.
[2] The parties' parents owned Lot 15. In July 1988, they transferred possession of it to McGregor. A Certificate of Possession in his name was registered under the Indian Act, R.S.C., 1985, c. I-5.
[3] In April 2010, Pitawanakwat moved into a house on Lot 15. She claims she is entitled to possession, because in 2009 her parents orally gifted the lot and the house to her, a gift they later confirmed by an addition to their will in February 2011. The parties' father died in late 2011, and their mother died a few months later. After their deaths, Pitawanakwat continued to live on Lot 15. She claims to have made improvements to the property in the rough amount of $29,000. But she paid no occupation rent.[1]
[4] Then, in January 2014, McGregor brought an application to determine possession of Lot 15. He eventually also sought an order evicting Pitawanakwat from the property. After numerous adjournments, the application was heard in March 2015. Although Pitawanakwat had had a lawyer, she chose to represent herself at the hearing.
[5] The application judge found for McGregor and ordered Pitawanakwat's eviction. He held that the Certificate of Possession registered in 1988 was valid. He found as a fact that there was no evidence to support Pitawanakwat's allegation of an oral gift from her parents. And he noted that the addition to the will that Pitawanakwat relied on transferred Lot 14, not Lot 15. Finally, he concluded that neither the alleged gift nor the addition to the will could assist Pitawanakwat's claim, because by then, her parents no longer had an interest in Lot 15 – they had transferred their interest to McGregor. The application judge ordered substantial indemnity costs against Pitawanakwat of approximately $24,000.
[6] On appeal, Pitawanakwat does not challenge the correctness of the application judge's decision. She puts forward no argument to suggest that McGregor's Certificate of Possession is invalid. Instead, her main submission is that she was denied a fair hearing.
[7] She contends she was denied a fair hearing for two reasons: (1) the application judge unreasonably refused an adjournment to permit her to retain a lawyer, lead further evidence, and give notice of a constitutional question concerning the impact of Anishinaabe custom on the property provisions of the Indian Act; and (2) the application judge's conduct of the hearing gave rise to a reasonable apprehension of bias.
[8] Pitawanakwat's secondary submission is that the application judge's order for substantial indemnity costs was excessive and unfair. She seeks leave to appeal costs and an order setting aside the costs order.
B. Issues
(1) Was Pitawanakwat denied a fair hearing?
[9] As I said, Pitawanakwat's submission that she was denied a fair hearing rests on two planks: the application judge unreasonably refused an adjournment, and his conduct of the hearing gave rise to a reasonable apprehension of bias. I note a few preliminary points.
[10] In assessing Pitawanakwat's submission, I take into account that she did not have a lawyer at the hearing. The record shows that she did have a lawyer between November 2014 and February 2015, and apparently during this period, the parties had made progress toward settling their dispute. Why Pitawanakwat's relationship with her lawyer broke down so soon before the hearing is unclear from the record.
[11] But as well as taking into account Pitawanakwat's self-representation, I also take into account her level of sophistication. In his costs endorsement, the application judge characterized her as follows:
The respondent is an intelligent and educated person. She indicated that she had attended Osgoode Hall Law School and that she had taught as a university professor. It was clear during the course of the proceedings that the respondent is quite familiar with the legal system as evidenced by the articulate manner in which she presented her case.
Pitawanakwat does not dispute the application judge's characterization of her.
[12] A final preliminary point is that the denial of a fair hearing is a free-standing ground of review. A correct decision cannot cure an unfair hearing, because the unfairness would taint the entire proceedings: see R. v. S. (R.D.), [1997] 3 S.C.R. 484, at para. 100.
(a) The application judge's refusal to grant an adjournment
[13] An application judge's decision whether to grant or refuse an adjournment is discretionary and thus attracts a high degree of deference from this court. In exercising this discretion, an application judge should take into account the interest of the applicant, the interest of the respondent, and the interest of the administration of justice in the timely resolution of the dispute: Khimji v. Dhanani, 182 O.A.C. 142, at para. 14. The application judge in this case took these interests into account, and his refusal to grant an adjournment was a reasonable exercise of his discretion. In support of his refusal, I make the following four points.
[14] First, although in this court Pitawanakwat asserted she did not appreciate that the hearing would resolve entitlement to Lot 15, that assertion is at odds with the record. At no point during the hearing did she tell the application judge she did not understand he would be deciding the issue of possession of Lot 15. Moreover, early on in the hearing itself, she assured the application judge she could properly present her case.
[15] Second, the application judge's refusal to grant an adjournment has to be assessed in the context of the number of adjournments that had previously been granted. The application was brought in January 2014. In April 2014, it was adjourned to July to permit Pitawanakwat to retain counsel and file responding material. In July 2014, the application was adjourned to late September and then again to February 2015, before being finally heard on March 11, 2015. By then, almost 14 months had elapsed since McGregor initiated his application. Throughout this entire period, Pitawanakwat continued to live in a house on Lot 15 without paying rent. The interests of McGregor and the administration of justice supported the application judge's refusal.
[16] Third, Pitawanakwat's contention that she needed more time to raise constitutional issues does not withstand scrutiny. Soon after McGregor started his application, Pitawanakwat suggested there were constitutional issues that needed to be decided. These issues, she said, related to the interplay between the Indian Act and Anishinaabe custom. She discussed raising these constitutional issues in a case management conference with Del Frate J. on August 31, 2014. He gave her three weeks to serve a notice of constitutional question on the federal government. She did not do so. And she did not do so after the expiry of Del Frate J.'s order, in the three months when she had a lawyer. Even in this court, she did not file a draft notice or put forward any argument that her constitutional issue had merit.
[17] Finally, the application judge gave Pitawanakwat wide latitude to present her case, including allowing her to refer to certain documents that were not formally part of the record. In this court, though she had counsel, she did not seek to file fresh evidence or any further material that might have supported her position.
[18] For these reasons, I would not give effect to Pitawanakwat's submission that the application judge erred in refusing to adjourn the application.
(b) Reasonable apprehension of bias
[19] The threshold for showing bias is appropriately high. We presume judges will be impartial. We presume they will carry out their oath of office and act fairly to litigants. This high threshold requires cogent evidence to make out a claim of bias. The standard is objective. The test the party alleging bias must meet is whether an informed person, viewing the matter realistically, and having thought the matter through, would conclude that the trial or application judge would not decide the matter fairly: Committee for Justice and Liberty v. Canada (National Energy Board), [1978] 1 S.C.R. 369, at p. 394.
[20] This test recognizes that appearances count. Justice must not only be done, it must appear to be done. Thus, the test captures both actual bias, which is rarely alleged, and the appearance of bias, which is more commonly alleged and which is alleged on this appeal.
[21] In assessing a claim alleging an appearance of bias, a reviewing court has to examine the judge's conduct of the entire trial or hearing. Instances of alleged improper conduct must be considered cumulatively, but the odd inappropriate comment during the course of a long hearing will be unlikely to establish a reasonable apprehension of bias: S. (R.D.), at para. 134.
[22] In the present appeal, Pitawanakwat submits that the application judge made two sorts of comments that gave rise to a reasonable apprehension of bias: he made comments showing he had prejudged the case against her; and he made comments that were sarcastic and denigrated her and thus presumably showed his lack of impartiality. If made out, either sort of comment could give rise to a reasonable apprehension of bias. But my examination of the record leads me to conclude that the application judge neither prejudged the case nor treated Pitawanakwat unfairly. On the contrary, he conducted a fair hearing, and he gave Pitawanakwat a full opportunity to present her case, including trying to assist her in her presentation.
(i) Alleged prejudgment
[23] Pitawanakwat cites two examples to show that the application judge prejudged the case against her: early in the hearing, he commented "justice delayed is justice denied"; and later in the hearing, he had a lengthy dialogue with counsel for McGregor over the form of the order, should McGregor be successful on the application. Neither example supports Pitawanakwat's argument.
[24] The application judge made the comment "justice delayed is justice denied" in considering Pitawanakwat's adjournment request. The comment was an appropriate consideration in determining whether to grant an adjournment. Also, right after refusing an adjournment, the application judge explained why he made the comment and then assured Pitawanakwat he had not already decided the case:
Let me provide you with my absolute assurance, Ms. Pitawanakwat, that I have not made up my mind about this proceeding…I will put to you, you have completely misinterpreted my comment that justice delayed is justice denied. I simply put that forward as one of the competing considerations that I must take into consideration in assessing your request for an adjournment. So rest assured that I have not made up my mind in terms of the merits of this application.
[25] A trial or application judge commonly discusses with counsel the form of the order sought if the client is successful. That the application judge did so in this case did not show prejudgment. He especially wanted the assistance of McGregor's counsel, because Lot 15 was on an Indian reserve, and so the order, if granted, would have to take into account possession and ownership of reserve land.
[26] I conclude that nothing in the record shows that the application judge had prejudged the case.
(ii) Alleged sarcastic and denigrating comments
[27] Pitawanakwat cited several of the application judge's comments, which she maintains were sarcastic and denigrated her position. On appeal, we are reviewing the transcripts of the proceedings, so we cannot assess the tone of the application judge's comments. But on reading them, none of the comments Pitawanakwat relies on reflects sarcasm or denigration of her position. One or two may show the application judge's impatience, but nothing more. Cumulatively, they do not give rise to a reasonable apprehension of bias. Only a few require some explanation.
[28] Pitawanakwat introduced her argument speaking in her native language, Anishinaabemowin, which she claims is required of women of Anishinaabe heritage. Before she finished her introduction, the application judge interrupted her and said: "Ms. Pitawanakwat, let's not play games here, shall we". Still, the application judge let Pitawanakwat explain why she had begun her submissions in her native language. He was perhaps a little impatient and understandably frustrated, because, as he explained to Pitawanakwat, he did not understand her language, and she had not provided an interpreter. He asked her to make her submissions in English, and she did.
[29] During the hearing, the parties had a lengthy discussion with the application judge about the requirements of the Indian Act for a transfer of land in 1988. Pitawanakwat seemed to suggest that the transfer to McGregor in 1988 required a band resolution, and there had been none. McGregor's counsel pointed out that the requirement for a band resolution came into effect when the Indian Act was amended in 1994. Three of the application judge's comments that Pitawanakwat relies on to make out her claim of bias occurred during this discussion about the requirements of the Indian Act.
Early on in the discussion, the application judge commented to Pitawanakwat: "let's not beat around the bush, shall we. I mean there shouldn't be any room for argument in terms of what the statute required in 1988." In making this comment, the application judge was simply asking Pitawanakwat to directly address the point counsel for McGregor had made, that in 1988, no band resolution was required for a transfer of land under the Indian Act, as that requirement only came into effect in 1994.
Later during the discussion, Pitawanakwat referred to her copy of the Indian Act. The application judge repeatedly asked her whether the copy she had reflected the provisions in effect in 1988. When she did not give a straightforward answer, he commented: "I don't want to talk about should, if, would have, could have, it's a black or white question, it either was or it was not." Again, the application judge was doing nothing more than trying to clarify the Indian Act's requirements for a transfer of land in 1988, and specifically, whether the band had to agree by resolution to the transfer to McGregor.
Pitawanakwat continued to avoid directly answering the application judge's question as to whether a band resolution was required for a transfer in 1988. The application judge understandably commented: "you're making this very difficult on me."
[30] None of these comments, taken together, give rise to disqualifying bias. The hearing lasted nearly a full day. The application judge gave Pitawanakwat an opportunity to put forward all of her arguments. She was not denied a fair hearing. I would not give effect to her main ground of appeal.
(2) Was the award of substantial indemnity costs excessive and unfair?
[31] The application judge ordered substantial indemnity costs against Pitawanakwat in the amount of $24,383.82, inclusive of disbursements. Pitawanakwat contends that the award of substantial indemnity costs was excessive and unfair. She asks to set aside the costs award.
[32] Pitawanakwat does not have a right to appeal the costs award. She must obtain leave of this court to do so. This court rarely grants leave, because costs orders are discretionary, and we do not lightly interfere with them. A party seeking leave to appeal a costs order must show that the judge exercised this discretion unreasonably. In my view this is one of those rare cases in which leave should be granted and the application judge's cost award should be set aside.
[33] The application judge based his order of substantial indemnity costs on two factors: Pitawanakwat unreasonably delayed the proceedings against her; and her defence had no merit. He summarized his conclusion at para. 8 of his reasons on costs:
It is clear that the respondent acted in a most unreasonable manner by delaying the process as long as possible and presenting a defence that had no prospect of success. I find that the actions of the respondent rise to a level of reprehensible conduct and accordingly I award substantial indemnity costs.
[34] In his reasons, the application judge gave particulars for his conclusion:
Pitawanakwat repudiated a settlement of the litigation reached by her lawyer and the lawyer for McGregor;
She asked for a further adjournment to serve a notice of constitutional question after having failed to comply with the order of Del Frate J.;
The record shows she was going to delay the proceedings in any way she could, which increased McGregor's legal costs; and
Her position on the merits depended on a will under which she would inherit Lot 14, not Lot 15, which she claimed in this litigation.
[35] Reprehensible conduct is a proper basis for an award of substantial indemnity costs. But I do not consider Pitawanakwat's conduct to have been reprehensible, and the particulars relied on by the application judge do not support such a finding.
[36] First, the record does not show that the parties had previously reached a settlement. At most, as McGregor's counsel said during the hearing, "we were moving closer and closer to hopefully resolving this." Thus the application judge was wrong to say Pitawanakwat had repudiated a settlement.
[37] Second, asking for a further adjournment hardly amounts to reprehensible conduct. Pitawanakwat's adjournment request was refused so it did not cause further delay.
[38] Third, although the proceedings had been ongoing for 14 months, Pitawanakwat had done nothing to delay them beyond asking for adjournments, which the court had granted.
[39] Finally, though Pitawanakwat's claim appeared to have little or no merit, she nonetheless had been living on Lot 15 for nearly four years before McGregor started this application to evict her. Understandably, perhaps, she honestly believed she had a legal basis to remain there. That she opposed the application to evict her does not support the kind of reprehensible or outrageous conduct necessary to justify an award of substantial indemnity costs.
[40] I would grant leave to appeal costs, set aside the application judge's cost award and in its place substitute an award of partial indemnity costs for the application in the amount of $15,000, inclusive of disbursements.
C. Conclusion
[41] I would dismiss the main ground of appeal, that Pitawanakwat was denied a fair hearing. I would, however, grant leave to appeal costs, allow the costs appeal, and reduce the award for the costs of the application from $24,383.82 ($20,000 in fees and $4,383.82 in disbursements) to $15,000 inclusive of disbursements.
[42] As McGregor has been substantially successful on the appeal, I would award him the costs of the appeal in the amount of $6,000 inclusive of disbursements and applicable taxes.
Released: January 27, 2017 ("J.L.")
"John Laskin J.A."
"I agree. K. Feldman J.A."
"I agree. C.W. Hourigan J.A."
[1] The application judge did not resolve these competing claims as he held he had insufficient evidence to do so.
