CITATION: Blake v. Blake, 2019 ONSC 5724
COURT FILE NO.: 515/19
DATE: 20191003
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
B E T W E E N :
BRUCE HOWARD BLAKE, KATHRYN JOAN HOMES AND PATRICIA GEDDES
Applicants
(Respondents on the motion)
– and –
KENNETH GEORGE BLAKE AND KENNETH GEORGE BLAKE, IN HIS CAPACITY AS THE ESTATE TRUSTEE OF THE ESTATE OF AINSLEE ELIZABETH BLAKE
Respondents
(Moving Party on the motion)
Fred Leitch
for Bruce Howard Blake and Kathryn Joan Homes
Edwin G. Upenieks
for Patricia Ruth Geddes
Bradley Phillips
for the Moving Party
HEARD: September 26, 2019
FAVREAU j:
[1] The moving party, Kenneth George Blake, brings a motion to extend the time for filing notices of motion for leave to appeal from two interlocutory decisions of the Superior Court.
[2] The parties to this proceeding are all siblings. In the underlying application, the respondents on this motion challenge the moving party's passing of accounts in respect of their mother's estate. The respondents claim that the moving party improperly transferred a number of their mother's properties to himself prior to her death, and that the properties should have been included as assets of the estate.
[3] In a decision dated March 18, 2019, Regional Senior Justice Daley dismissed the moving party's motion for summary judgment. The motion judge found that the moving party did not establish that the issues between the parties were res judicata or that they were barred by the limitation periods in the Trustee Act, R.S.O. 1990, c. T.23 or the Limitations Act, 2002, S.O. 2002, c. 24. He also found that there were numerous factual and legal questions that could not be decided on the record before him. At the conclusion of his decision, the motion judge indicated that he would remain seized of the matter in accordance with Rule 20.05(2) of the Rules of Civil Procedure for the purpose of giving directions on the conduct of the application.
[4] Following the issuance of the summary judgment decision, on June 26, 2019, the parties participated in a case conference with the motion judge. On June 27, 2019, the motion judge released his endorsement from the case conference in which he made a number of procedural orders, including setting a schedule for the disclosure of documents and examinations for discovery. Noting the “protracted history of this application”, he also directed that the matter be placed on the January 2020 civil trial list in Brampton.
[5] On July 8, 2019, the motion judge released an endorsement addressing the costs of the motion for summary judgment. The motion judge awarded costs to the respondents payable by the moving party on a substantial indemnity basis. In support of his finding that substantial indemnity costs were appropriate, the motion judge found that the lawyer representing the moving party on the motion intentionally failed to bring to the Court’s attention a recent Court of Appeal decision, which the motion judge viewed as determinative on the issue of the limitation period.
[6] The moving party has initiated a motion for leave to appeal the costs decision to the Divisional Court. That motion was brought within the requisite timelines under the Rules of Civil Procedure and is not the subject of this motion.
[7] On this motion, the moving party seeks to extend the time for bringing motions for leave to appeal from the motion judge's decision dismissing the motion for summary judgment and the case management endorsement. The moving party argues that the costs decision demonstrates a reasonable apprehension of bias on the part of the motion judge, and that the alleged bias tainted the motion judge's summary judgment and case management decisions. He also argues that the receipt of the costs decision on July 8, 2019 provides an explanation for the delay in seeking leave to appeal beyond the time prescribed in the Rules because this is when he became aware of the alleged bias.
Test on a motion to extend the time for bringing a motion for leave to appeal
[8] Rule 61.03(1) of the Rules of Civil Procedure provides that a notice of motion for leave to appeal to the Divisional Court is to be served within 15 days after the date of the decision or order from which an appeal is being sought.
[9] Rule 3.02(1) of the Rules provides that "the court may by order extend or abridge any time prescribed by these rules … on such terms as are just".
[10] In Enbridge Gas Distribution Inc. v. Froese, 2013 ONCA 131, at para. 15, the Court of Appeal set out the circumstances in which a court may extend the deadline for an appeal:
The test on a motion to extend time is well settled. The overarching principle is whether the "justice of the case" requires that an extension be given. Each case depends on its own circumstances, but the court is to take into account all relevant considerations, including
(a) whether the moving party formed a bona fide intention to appeal within the relevant time period;
(b) the length of, and explanation for, the delay in filing;
(c) any prejudice to the responding parties caused, perpetuated or exacerbated by the delay; and
(d) the merits of the proposed appeal.
[11] On a motion to extend the deadline to file a motion for leave to appeal, the same test applies, but, as held at para. 16 of the decision in Enbridge, "lack of merit alone can be a sufficient basis on which to deny an extension of time, particularly in cases such as this where the moving party seeks an extension to a notice of leave to appeal…"
[12] Ultimately, all of the factors listed by the Court of Appeal in Enbridge are to be considered together, and the overarching consideration is what the justice of the case requires.
[13] As set out below, balancing all of the factors together, I find that the justice of the case does not favour extending the deadline for bringing a motion for leave to appeal.
Whether there was a bona fide intention to seek leave to appeal
[14] It is clear from the moving party's own evidence that he did not intend to seek leave to appeal from these decisions until after he received the motion judge's costs decision. In his affidavit, the moving party's lawyer who argued the motion for summary judgment explains that it was only when he received the costs endorsement that he became concerned that the motion judge may have made the earlier decisions with bias or animus towards him or his client.
[15] The respondents argue that the fact that the moving party did not form the intention to seek leave to appeal within the 15 days provided by the Rules is fatal.
[16] The moving party relies on decisions of this Court to argue that, in some exceptional cases, the justice of the case allows for parties seeking leave to appeal to form their intentionto appeal after the expiry of the 15 day deadline. For example, in Eustace v. Eustace, 2017 ONSC 4814 (Div. Ct.), this Court extended the time for seeking leave to appeal in circumstances where the decision was issued just before a holiday period, and the Office of the Children's Lawyer was not able to confirm instructions to seek leave to appeal until three days after the expiry of the deadline. In Berg v. Canadian Hockey League, 2017 ONSC 6719 (Div. Ct.), the motion judge granted an extension for seeking leave to appeal in circumstances where a decision certifying an almost identical class proceeding was released several weeks after the judge in that case rejected a certification motion. These decisions are consistent with the statement of the Court of Appeal in Frey v. MacDonald, [1989] O.J. No. 236 (C.A.), at para. 3, to the effect that:
Usually, time for an appeal or taking any steps within an appeal is not extended unless the appellant has maintained a firm intention from the beginning of the appeal and the failure to observe the time limits is reasonably explained. This, however, is subject to a broader rule that extensions should be granted if the "justice of the case requires".
[17] Based on these cases, I agree with the moving party that the fact that the moving party did not intend to seek leave to appeal within the prescribed 15 days is not fatal. However, as reviewed below, this is not sufficient for me to find that the justice of the case requires extending the deadline for seeking leave to appeal.
The length and explanation for the delay
[18] The summary judgment decision was issued on March 18, 2019, and the case management endorsement was issued on June 27, 2019. The moving party’s lawyer communicated his client’s instructions to seek leave to appeal the decisions to the respondents’ lawyers on July 30, 2019, and this motion was served on them on September 13, 2019. This is almost 6 months after the summary judgment decision was issued and 2½ months after the case management endorsement was released.
[19] These are lengthy delays, especially in respect of the motion for summary judgment.
[20] The moving party's explanation for the delay is that he did not become aware of the alleged reasonable apprehension of bias issue until the release of the costs decision on July 8, 2019. While the moving party’s lawyer was able to issue a notice of motion for leave to appeal almost immediately upon receiving the costs decision, he was on vacation out of the country at that time and needed additional time to consider the advisability of appealing the summary judgment and case management decisions. He argues that the additional delay between the receipt of the costs decision and the issuance of the notice of motion was therefore reasonable.
[21] To some extent, the validity of the explanation for not bringing the motion for leave to appeal until after the release of the costs decision depends on the strength of the argument that the costs decision gives rise to a reasonable apprehension of bias. Indeed, if information came to light after the release of a decision that genuinely raises concerns that the motion judge was biased, then this could provide a reasonable explanation for the delay.
[22] However, I am troubled by the explanation for the delay between the receipt of the costs decision and the initiation of this motion. All of the necessary information was known by July 8, 2019, and a challenge to the costs decision was commenced almost immediately. The motion to challenge the two decisions at issue here was initiated almost two months later. In my view, the need to consider the matter is an insufficient explanation for this length delay, especially given that the litigation remained active and the parties are under a case management timetable leading to a January 2020 trial.
[23] If this was my only concern with he moving party’s motion, it may have been overcome by other considerations. But as reviewed below, prejudice and lack of merit clearly weigh against granting the requested extension.
The prejudice caused by the delay
[24] In my view, the prejudice to the respondents weighs heavily against granting the motion to extend.
[25] This application was commenced in 2011. The parties are siblings involved in acrimonious litigation over their mother's estate. There are serious allegations of wrongdoing on the part of the moving party.
[26] As part of his case management order, the motion judge set a schedule for the completion of steps leading to a trial in January 2020. At trial, the parties will have an opportunity to fully address the merits of the case. Under the circumstances, it is hard to understand how it would be beneficial to the respondents, and even the moving party, to proceed with an appeal of the summary judgment decision. At this point, a trial in January 2020 is a far more expeditious way of resolving the issues between the parties than a protracted leave to appeal and appeal of a motion for summary judge, which may ultimately not resolve the litigation.
[27] In addition, if I were to grant the motion to extend the time to appeal the summary judgment decision and the case conference order, this would inevitably bring the litigation to a halt. The trial date would have to be vacated in order to allow the motion to proceed.
[28] I also note that the motion judge is no longer case managing the case. Therefore, even if there was merit to the argument that the costs decision evidences a reasonable apprehension of bias, that concern has no impact on the litigation as it goes forward.
[29] Under the circumstances, I find that, if the time for seeking leave to appeal is extended, the prejudice to the respondents will be significant.
The merits of the proposed motion for leave to appeal
[30] In addition to prejudice to the respondents, I see little merit to the motion for leave to appeal.
[31] What must be assessed are the merits of the motion for leave to appeal and not the merits of the proposed appeal.
[32] The test on a motion for leave to appeal set out in Rule 62.02(4) is as follows:
(4) Leave to appeal from an interlocutory order shall not be granted unless,
(a) there is a conflicting decision by another judge or court in Ontario or elsewhere on the matter involved in the proposed appeal and it is, in the opinion of the panel hearing the motion, desirable that leave to appeal be granted; or
(b) there appears to the panel hearing the motion good reason to doubt the correctness of the order in question and the proposed appeal involves matters of such importance that, in the panel's opinion, leave to appeal should be granted.
[33] This Court has held that leave to appeal should not be easily granted and the test is to be applied strictly: King Line Investments Inc. v. 973976 Ontario Ltd., [2008] O.J. No. 2592 (Div. Ct.). at para. 3. Each branch of rule 62.02(4)(b) involves a two-part test, and, in order for leave to be granted, both parts must be met on at least one branch of the test.
[34] In this case, the moving party relies on the second branch of Rule 62.02(4), arguing that there is serious reason to doubt the correctness of the motion judge’s decision. Under Rule 62.02(4)(b), the moving party does not have to convince the court that the decision was wrong, but that the decision is open to “very serious debate”. In addition, the moving party must demonstrate “matters of importance that go beyond the interests of the immediate parties and involve questions of general or public importance relevant to the development of the law and administration of justice”: Samuels v. Canada (Attorney General), 2016 ONSC 6706 (Div. Ct.), at para. 23.
[35] In his factum, the moving party argues that the proposed motion for leave to appeal is meritorious because the summary judgment and case management decisions are tainted by a reasonable apprehension of bias. He also argues that there is reason to doubt the correctness of the motion judge's findings that the limitation periods and res judicata do not apply.
[36] The question of whether there is reason to doubt the correctness of the motion judge's summary judgment decision as it relates to the issues of res judicata and the limitation period are issues that would have been known to the moving party at the time the decision was released. Yet, no motion for leave to appeal was brought at that time Therefore, during the argument of the motion before me, counsel for the moving party quite properly conceded that the primary ground upon which he takes the position that the proposed appeal has merit at this juncture is that the costs decision demonstrates a reasonable apprehension of bias that taints the motion judge's earlier decisions.
[37] In support of his argument that there is merit to the proposed motion for leave to appeal, the moving party relies on the Supreme Court's decision in R. v. S. (R.D.), 1997 324 (SCC), [1997] S.C.J. No. 84, at para. 100, where the Court held that "[i]f a reasonable apprehension of bias arises, it colours the entire trial proceedings and it cannot be cured by the correctness of the subsequent decision". While this may provide support for the argument that a finding of bias could taint the whole proceedings, it does not assist in determining whether there is any merit to the moving party's argument that the costs decision itself gives rise to a reasonable apprehension of bias.
[38] In St. Lewis v. Rancourt, 2012 ONSC 6768 (Sup. Ct.), at para. 39, Annis J. emphasized that there “is a strong presumption in favour of the impartiality of the trier of fact”.
[39] In S. (R.D.), at para. 113, the Supreme Court explained that there is a high threshold for establishing a reasonable apprehension of bias:
Regardless of the precise words used to describe the test, the object of the different formulations is to emphasize that the threshold for a finding of real or perceived bias is high. It is a finding that must be carefully considered since it calls into question an element of judicial integrity. Indeed an allegation of reasonable apprehension of bias calls into question not simply the personal integrity of the judge, but the integrity of the entire administration of justice. See Stark, supra, at paras. 19-20. Where reasonable grounds to make such an allegation arise, counsel must be free to fearlessly raise such allegations. Yet, this is a serious step that should not be undertaken lightly.
[40] The Court also emphasized, at para. 141, that, in assessing a claim of reasonable apprehension of bias, a court must look at the totality of the circumstances:
These examples demonstrate that allegations of perceived judicial bias will generally not succeed unless the impugned conduct, taken in context, truly demonstrates a sound basis for perceiving that a particular determination has been made on the basis of prejudice or generalizations. One overriding principle that arises from these cases is that the impugned comments or other conduct must not be looked at in isolation. Rather it must be considered in the context of the circumstances, and in light of the whole proceeding.
[41] In this case, the moving party only focused on the costs decision in support of his allegation that there is a reasonable apprehension of bias that taints the motion judge's previous decisions. He has not provided any authority in support of the argument that a judge's finding that a lawyer breached the Rules of Professional Conduct on its own can form the basis for a finding of reasonable apprehension of bias. There is no evidence about the conduct of the hearing on the motion for summary judgment or anything else that suggests that the motion judge had an animus toward the moving party or his lawyer during the hearing or thereafter. With respect to the Case Conference, the moving party complains that the motion judge refused to reconsider his decision that he pay for the costs of his mother's medical records, but points to nothing more to suggest that there was anything untoward in the conduct of the case conference or the case conference decision.
[42] Accordingly, I am not satisfied that the moving party can show that the impartiality of the motion judge in deciding the summary judgment motion and in making the case management endorsement is open to serious debate.
[43] In any event, I do not see how this proposed motion for leave to appeal raises issues of general importance beyond the interests of the parties. There may be cases where claims of alleged bias raise issues of general importance because they may affect the “reputation of the court”, as was held in St. Lewis, at para. 32. This is not such a case.
The overall justice of the case
[44] The moving party’s primary concern on this motion is evidently the motion judge's finding of professional misconduct against his lawyer in the costs decision. Whether there is any merit to the arguments the moving party will make on the motion for leave to appeal the costs decision and, if leave is granted, the appeal itself, are issues that can be and that will be addressed independently. There is no need for leave to be granted from the summary judgment decision or the case management endorsement for those issues to be addressed.
[45] This is acrimonious and hard-fought litigation. It involves serious allegations of impropriety. The parties are working toward a January 2020 trial date, where the merits of the case can be fully addressed. When the motion judge's summary judgment decision was initially released, the moving party did not seek leave to appeal the decision. The only intervening event is the costs endorsement, which, in my view, is far from sufficient to support a finding of reasonable apprehension of bias with respect to the motion judge's decisions on the summary judgment motion and the case conference.
[46] In all of these circumstances, I find that the justice of the case does not favour extending the time for seeking leave to appeal.
Costs
[47] Following the hearing of the motion, I received the respondents’ costs outlines. The respondents Bruce Howard Blake and Kathryn Joan Homes are represented by one lawyer, who seeks $8,436.83 on a partial indemnity basis. The respondent Patricia Geddes is represented separately and seeks $12,000 on a partial indemnity basis.
[48] The costs outline provided by the moving party shows that he would have sought $19,156.22 on a partial indemnity basis if he had been successful on the motion.
[49] In all of the circumstances, I am awarding costs in the total amount of $16,000 to the respondents. This amount is fair and reasonable given the complexity of the issues on the motion. It also reflects what the moving party could have reasonably expected to pay.
Conclusion
[50] The motion to extend the time to bring a motion for leave to appeal the summary judgment decision and case management endorsement is dismissed. Under the circumstances, there is no need to address the moving party's motion for a stay pending the motion for leave to appeal.
[51] The respondent is to pay $8,000 in costs to Bruce Howard Blake and Kathryn Joan Homes, and $8,000 to Patricia Ruth Geddes. Costs are to be paid within 30 days of today’s date.
FAVREAU J.
RELEASED: October 3, 2019
CITATION: Blake v. Blake, 2019 ONSC 5724
COURT FILE NO.: 515/19
DATE: 20191003
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
B E T W E E N :
BRUCE HOWARD BLAKE, KATHRYN JOAN HOMES AND PATRICIA GEDDES
Applicants
(Respondents on the motion)
– and –
KENNETH GEORGE BLAKE AND KENNETH GEORGE BLAKE, IN HIS CAPACITY AS THE ESTATE TRUSTEE OF THE ESTATE OF AINSLEE ELIZABETH BLAKE
Respondent
(Moving Party on the motion)
REASONS FOR JUDGMENT
FAVREAU J.
RELEASED: October 3, 2019