Court of Appeal for Ontario

Date: 2018-05-09 Docket: C63627

Judges: Hourigan, Benotto and Fairburn JJ.A.

Between

Aline J. Robert and David E. Guthrie Plaintiffs (Appellants)

and

Tania Assis and Richard Buitendyk Defendants (Respondents)

Counsel

J. Sebastian Winny, for the appellants

Sharon Ilavsky, for the respondents

Heard and released orally: May 3, 2018

On appeal from: the judgment of Justice J.W. Sloan of the Superior Court of Justice dated March 20, 2017.

Reasons for Decision

The Claims

[1] The appellants brought an action against their next door neighbour seeking injunctive relief and damages for:

(i) invasion of privacy arising from video and audio cameras which they say were trained on their property;

(ii) nuisance arising from outside speakers, floodlights and the occasional errant hockey puck;

(iii) trespass arising primarily from the construction of two fences; and

(iv) abuse of process arising from an application for a peace bond made by the respondents before a justice of the peace.

Trial Decision

[2] Following a nine day trial, the trial judge dismissed the action.

[3] The appellants allege that the trial judge failed to decide the case on the merits, provided inadequate reasons and demonstrated a reasonable apprehension of bias.

[4] We do not accept these submissions.

Analysis of Trial Judge's Reasons

[5] The trial judge carefully detailed the evidence of all parties and the claims made by the appellants. He concluded that the invasion of privacy alleged had not been proved. He found that there was no credible evidence to support the allegation. He also found that the claims by both parties were "hyperbolized". He found that the nuisance had not been established as the appellants never approached the respondents about such things as lights and music. The "couple of incidents" in which hockey pucks wound up in the appellants' yard did not rise to the level of nuisance. Although a great deal of time at trial was spent on trespasses, the trial judge was not satisfied that the trespass with respect to the construction of the fence took place. Also, there was no evidence from a surveyor to establish where the lot line was in connection with the alleged moving of the stakes. There was no evidence of abuse of process as the trial judge found no dishonesty in relation to the application for a peace bond.

[6] The reasons read as a whole, indicate that findings of credibility were essential to all of these determinations. Those findings are entitled to deference. Further, the reasons clearly provide the parties with the rationale for the trial judge's decision.

Bias Allegation

[7] The bias allegation appears to arise from the trial judge's question to counsel and subsequent comments about the fact that the parties did not take advantage of various mediation services.

[8] There is a strong presumption of judicial impartiality and a heavy burden on a party who seeks to rebut this presumption. The analysis contemplates a hypothetical observer who is informed of all the facts. It is not dependent upon views or conclusions of the litigant. In our view, no reasonable person informed of all the facts would conclude that the judge was biased. On the contrary, the judge's inquiry into mediation was eminently reasonable. The facts of this case before him cried out for the question to be asked. As the trial judge said at para. 447:

It is extremely unfortunate that a case of this nature could not be resolved without having a time consuming, emotionally draining and very expensive eight and half days Superior Court trial.

[9] We share that view.

Fresh Evidence

[10] The fresh evidence is not admissible. It consists of further information about security cameras and a suggestion that the trial judge wrote bullet point comments about his reasons to a legal publisher, reacted with anger at the conclusion of counsel's submissions, and asked about mediation.

[11] The first issue does not meet the Palmer test which requires the applicant to satisfy the court that the evidence could not have been adduced at trial and if believed, it could reasonably, when taken with the other evidence adduced at trial, be expected to have affected the result. The evidence could have been adduced at trial, and it is clear that the proposed evidence is more of the same evidence already rejected by the trial judge.

[12] The second issue has no factual foundation or relevance. We have already addressed the mediation issue.

Disposition

[13] The appeal is therefore dismissed with costs to the respondents in the amount of $20,312 inclusive of disbursements and taxes.

"C.W. Hourigan J.A."

"M.L. Benotto J.A."

"Fairburn J.A."