COURT FILE NO.: BK 31-347546
DATE: 20121224
SUPERIOR COURT OF JUSTICE – ONTARIO
(BANKRUPTCY AND INSOLVENCY)
RE: IN THE MATTER OF THE BANKRUPTCY OF THOMAS PIRNER,
OF THE CITY OF TORONTO IN THE PROVINCE OF ONTARIO
BEFORE: JUSTICE NEWBOULD
COUNSEL:
John Legge, for Diane Pirner
Thomas Pirner, in person
HEARD: December 21, 2012
E N D O R S E M E N T
[ 1 ] Diane Pirner moves for an order that I recuse myself on the basis of a reasonable apprehension of bias and for an order that I set aside an endorsement made on October 24, 2012.
[ 2 ] There is a presumption of impartiality that can be overcome if the party arguing for disqualification establishes circumstances that justify a finding that the judge must be disqualified. The test is what an informed person would conclude. This was articulated in Wewaykum Indian Band v. Canada 2003 SCC 45 , [2003] 2 S.C.R. 259 as follows:
… "[i]mpartiality is the fundamental qualification of a judge and the core attribute of the judiciary" (Canadian Judicial Council, Ethical Principles for Judges (1998), at p. 30). It is the key to our judicial process, and must be presumed. As was noted by L'Heureux-Dubé J. and McLachlin J. (as she then was) in S. (R.D .), supra , at para. 32, the presumption of impartiality carries considerable weight, and the law should not carelessly evoke the possibility of bias in a judge, whose authority depends upon that presumption. Thus, while the requirement of judicial impartiality is a stringent one, the burden is on the party arguing for disqualification to establish that the circumstances justify a finding that the judge must be disqualified.
In Canadian law, one standard has now emerged as the criterion for disqualification. The criterion, as expressed by de Grandpré J. in Committee for Justice and Liberty v. National Energy Board, supra , at p. 394, is the reasonable apprehension of bias:
... the apprehension of bias must be a reasonable one, held by reasonable and right minded persons, applying themselves to the question and obtaining thereon the required information. In the words of the Court of Appeal, that test 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." [Emphasis added]
[ 3 ] In R. v. S. (R.D.) 1997 324 (SCC) , [1997] 3 S.C.R. 484 Cory J. stated:
This test has been adopted and applied for the past two decades. It contains a two-fold objective element: the person considering the alleged bias must be reasonable, and the apprehension of bias itself must also be reasonable in the circumstances of the case…. Further the reasonable person must be an informed person, with knowledge of all the relevant circumstances, including "the traditions of integrity and impartiality that form a part of the background and apprised also of the fact that impartiality is one of the duties the judges swear to uphold" [Emphasis added]
[ 4 ] Thus the test is an objective test. The grounds for the apprehension must be substantial. See Committee for Justice and Liberty v. National Energy Board, supra , at p. 395. The enquiry must be fact specific and take into account all relevant circumstances. See Bailey v. Barbour (2012), 2012 ONCA 325 , 110 O.R. (3d) 161 (C.A.).
[ 5 ] Mr. Legge contends that a comment I made about Ms. Pirner in my decision of June 12, 2012 made on a motion by Ms. Pirner to annul the bankruptcy of Mr. Pirner indicated a reasonable apprehension of bias. The circumstances giving rise to the motion are contained in my endorsement of that date. I repeat some of it here.
[ 6 ] Mr. Pirner became bankrupt on May 12, 1998. He has not been discharged. He applied for a discharge but it was adjourned in 1999 by O’Connell J. pending matrimonial litigation proceedings. The matrimonial litigation in question was decided by O’Connell J. in a judgment dated December 1, 2000 in which he held that Mr. Pirner pay child support to his ex-wife, Ms. Pirner, and he dismissed Mr. Pirner’s application to vary earlier child support orders. He found that Mr. Pirner had diverted income to a third party and had engaged in a plan of deceit since 1995. An appeal from this judgment was dismissed by the Court of Appeal on November 30, 2005.
[ 7 ] The motion to annul the bankruptcy was brought by Ms Pirner by notice of motion dated February 18, 2012 after Mr. Pirner had applied to be discharged from bankruptcy which was scheduled for hearing on January 4, 2012 but had been adjourned at the request of Mr. Legge. I dismissed the motion to annul for several reasons, including delay.
[ 8 ] One of the grounds for dismissal argued by Mr. Klotz, who was acting for Mr. Pirner at the time, was that the motion to annul must have been brought for a collateral purpose. He pointed out that if the bankruptcy were annulled, $485,000 in debt claimed to be outstanding that had been discharged by the bankruptcy would become payable, and that Ms. Pirner’s claim accepted by the trustee in bankruptcy was 4 % of the accepted claims. He asserted that Ms. Pirner had provided no evidence on the motion that Mr. Pirner had any substantial assets. He submitted that the motion could not have been brought for a financial reason and it must have been brought out of malice.
[ 9 ] In my endorsement I stated the following:
[11] The motive for Ms. Pirner to be applying at this stage is questionable. No evidence has been filed indicating that Mr. Pirner has any assets of consequence that would be available to the creditors. Mr. Legge has asserted, without evidence, that they have located some intellectual property belonging to Mr. Pirner. Mr. Klotz says that he has already advised Mr. Legge that while the intellectual property may name Mr. Pirner as the inventor, it belongs to Mr. Pirner’s employer.
[12] On cross-examination of Ms. Pirner, when asked why this application was being brought, Mr. Legge said that it was because Mr. Pirner was seeking the discharge of interest on arrears on support payments of some $200,000 (which is not discharged by the bankrupt’s discharge) and some $40,000 interest on arrears of an equalization payment (which is discharged by the bankrupt’s discharge).
[13] One cannot but help to infer in these circumstances in which annulling the bankruptcy will have little practical effect for Ms. Pirner, and taking into account the timing of this application shortly after Mr. Pirner applied to be discharged, that the motive for the application is one of spite.
[10] Mr. Legge contends that I had no basis for stating that the motion was brought out of spite, and thus it gives rise to a reasonable apprehension of bias. I fail to see how any reasonably informed person could come to that conclusion. I drew an inference from the evidence before me. Fair comment on evidence raises no grounds for a reasonable apprehension of bias. See R. v. Perciballi (1991), 2001 13394 (ON CA) , 54 O.R. (3d) 346 (C.A.) at para. 24 per Charron J.A. (as she then was).
[ 11 ] Mr. Legge also contends that I made a finding that Ms. Pirner’s claim is for $20,000 rather than $30,000 plus interest as contended by Ms. Pirner. However, I made no finding of what was owed to Ms. Pirner and the issue was not before me. What I did was refer to the fact that the trustee in bankruptcy of Mr. Pirner had admitted Ms. Pirner’s claim at $20,000. I stated:
[10] …Distributions in this case were made to creditors, including distributions to Ms. Pirner, whose accepted proof of claim of $20,000 was a small fraction of the proven and accepted claims totalling $485,000 in unsecured debt.
[ 12 ] I fail to see how a reasonably informed person could conclude by my referring to what the trustee in bankruptcy had done many years before that there was any reasonable apprehension of bias on my part. What amount may be owed to Ms. Pirner will be the subject of Mr. Pirner’s motion to expunge her claim and of the discharge hearing. I have not at all dealt with this issue.
[ 13 ] Mr. Legge further contends that I made a statement regarding him at a 9:30 a.m. conference without giving him a chance to deal with it and without any motion, which gives rise to a reasonable apprehension of bias.
[ 14 ] The 9:30 a.m. case conference in question was on October 24, 2012. By that time, Mr. Pirner was a self-represented litigant. It was one of a series of conferences that had been held since at least early in 2012 to deal with outstanding motions and the ultimate discharge hearing on the application by Mr. Pirner to be discharged from bankruptcy.
[ 15 ] I had earlier made an order on June 8, 2012 that Mr. Legge produce documents requested by Mr. Klotz. I had also suggested to counsel that they consider mediating the entire matter because of the cost involved and they agreed to meet with Justice Campbell for that purpose. They met with Justice Campbell on September 26, 2012, who wrote in his endorsement:
The attendance today was set up as a case conference/mediation. It became quickly apparent that neither side attended with a realistic approach to mediation. This is not surprising given the protracted acrimonious dispute that has gone on for years.
Following a very quick determination was made that this matter is unlikely to settle absent further judicial determination, the question of further management and return to Newbould J. arose.
[ 16 ] Campbell J. then made a schedule of material to be filed in connection with the expungment motion of Mr. Pirner. Mr Pirner was to file a list of all material he relied on for his motion by October 25, 2012. Mr. Legge was to deliver his material by Nov. 14. Both were to be as much as possible in compendium form. Mr. Legge advised that he intended to request that the motion to expunge be heard together with Mr. Pirner’s motion for discharge.
[ 17 ] On October 6, 2012 Mr. Pirner e-mailed Mr. Legge asking him to choose one of three dates of October 24, 26 and 31 for a scheduling conference before me. Mr. Legge did not respond and on October 9 Mr. Pirner again e-mailed Mr. Legge and asked him which day was best for him. Again Mr. Legge did not respond. Mr. Pirner attended at the Commercial List office on October 12, 2012 with copies of the e-mails and he was advised he had followed the right process and a date for the 9:30 a.m. appointment was set for October 24, 2012 and the parties were advised.
[ 18 ] On October 22, 2012 Mr. Legge wrote to me and to the Commercial List office. He stated that he was to be at a hearing at the Law Society on October 24, 2012 at 9:30 a.m., that he had advised Mr. Pirner that he was not available and he requested a date that he could attend sometime after November 30, 2012. He stated that Mr. Pirner was in breach of Campbell J.’s orders and directions in that documents had to be delivered before further attendance before me, and that Mr. Pirner was obliged to return to Campbell J.
[ 19 ] On the same day, Mr. Pirner replied to Mr. Legge by e-mail to Mr. Legge and the Commercial List office, stating that Mr. Legge had not responded to his earlier e-mails and that the Commercial List office staff had set the date after seeing the unanswered requests. He stated that he was requesting an attendance because Ms. Pirner had not adhered to my direction that she respond to his request for documents. He stated that without the documents, he could not meet the timelines for his compendium as directed by Campbell J.
[ 20 ] Mr. Pirner attended at the 9:30 a.m. conference on October 24, 2012. Mr. Steeves, a lawyer in Mr. Legge’s office, attended as well on behalf of Ms. Pirner. I declined to adjourn the matter, as what was being dealt with was a timing matter for the delivery of documents, which is standard fare for 9:30 a.m. conferences in the Commercial List. I was also concerned that Mr. Legge was not co-operating as witnessed by his failure to answer Mr. Pirner’s e-mails, and his statement that Mr. Pirner was obliged to return to Campbell J. Mr. Justice Campbell was no longer dealing with the matter as no settlement could be achieved, and he had made it clear in his endorsement that what he was doing was to not fetter my discretion to make whatever order I deemed appropriate. I was also aware that this was not the first time that Mr. Legge had apparently not responded to Mr. Pirner regarding dates. The request form for an earlier 9:30 appointment held on May 23, 2012 stated that Mr. Pirner had twice tried to obtain convenient dates with Mr. Legge to no avail.
[ 21 ] In the circumstances I declined to act on Mr. Legge’s request in his letter that the matter be put over to sometime after November 30, 2012. In my endorsement, I set out a further schedule. At the outset, I stated:
- Mr. Legge has not responded to the request of Mr. Klotz for documents sent on June 15, 2012 pursuant to my order of June 8, 2012. Mr. Legge is acting in contempt of that order. He is to deliver to Mr. Pirner his response within 7 days in writing.
[ 22 ] Mr. Legge contends that my refusal to grant his request for an adjournment gives rise to a reasonable apprehension of bias. I must confess I am at a loss to understand this. Requests for adjournments are sometimes granted and sometimes not. I fail to think that a reasonably informed person aware of all of the circumstances could objectively conclude that the refusal for an adjournment could give rise to a reasonable apprehension of bias. It was based on the information before me at the time.
[ 23 ] Mr. Legge also contends that no order should have been made without a formal motion, and that such a failure also gives rise to a reasonable apprehension of bias. Again, I fail to think that a reasonably informed person aware of all of the circumstances could objectively conclude that the direction to deliver documents within 7 days without a formal motion could give rise to a reasonable apprehension of bias. Timing issues for delivery of documents are routinely dealt with in the Commercial List without any formal motion. That is one of the ways in which the Commercial List deals with matters in a less than formal way in order to cut costs for litigants and expedite matters. Moreover, there had earlier been an order made at a 9:30 a.m. conference that documents be produced, and I merely put a time limit on that.
[ 24 ] Mr. Legge contends that I found him in contempt without giving him an opportunity to be heard or to deal with it. I did not in any formal sense find him in contempt of court, which would have required a motion under rule 60.11, but rather effectively said that he was ignoring my earlier order. The sense was that he was acting contemptuously of that order, which on my view on the material that before me he was. As well, Mr. Legge was aware from Mr. Pirner’s e-mail of October 22, 2012 that Mr. Pirner was taking the position that Ms. Pirner had not provided a response to his request for documents. Mr. Legge could not have been taken by surprise. Perhaps I could have used language that Mr. Legge should have complied with the order much sooner, which was the idea I was trying to convey. My language reflected the fact that this case has unfortunately required strong case management. I see no basis, however, to set aside my endorsement of that day as requested by Ms. Pirner.
[ 25 ] Mr. Legge now says that he had caused Ms. Pirner to provide all documents to Mr. Klotz in affidavit form on June 15, 2012 and that Mr. Pirner failed to disclose that to me. It is unfortunate that Mr. Legge did not give those documents to Mr. Steeves or at least inform Mr. Steeves of the fact so that he could so inform me. I understand from the argument on this motion that Mr. Pirner takes the position that they were not complete, but that could have been discussed had Mr. Steeves raised the matter. I asked Mr. Steeves at the time if he could explain why document requests had not been responded to and he said that he could not.
[ 26 ] The three Cs, being co-operation, communication and common sense, are the principles of operation of the Commercial List. See para. 5 the Commercial List practice direction. It is distressing when these principles are not adhered to. More co-operation and communication in this case would go a long way to achieving things being done in an efficient and cost-effective way. Registrar Donaldson on January 6, 2012 made reference to the high level of tension and lapses of civility between counsel and urged greater civility and respect towards each other. Unfortunately, this does not seem to have been adhered to.
[ 27 ] In the circumstances, I do not think that a reasonably informed person aware of all of the circumstances could objectively conclude that what occurred at the October 24, 2012 9:30 a.m. conference could give rise to a reasonable apprehension of bias.
[ 28 ] Finally, Mr. Legge raises a point regarding an earlier order of Registrar Donaldson of January 6, 2012. Mr. Pirner’s trustee in bankruptcy, Irving Burton, was discharged as trustee in 2001. No replacement trustee has been appointed and thus there is no updated section 170 report under the BIA. The Registrar ordered that before the discharge application came on for hearing, Mr. Pirner was to retain the services of a licensed trustee to review the history of the matter and prepare a section 170 report, and in light of the extraordinary history of litigation between the bankrupt and Ms. Pirner, she gave directions clarifying what the trustee is to be asked to do. This order was made over the objections of Mr. Klotz who was concerned about the cost and delay given the large amount of litigation that had occurred. I understand that Mr. Pirner has not engaged a trustee pursuant to the order of the Registrar.
[ 29 ] On November 27, 2012, a 9:30 a.m. case conference was held attended by Mr. Legge and Mr. Pirner. It dealt with the scheduling of this motion that I recuse myself. I also raised a question about the scheduling of the discharge hearing, although nothing at all was discussed in a concrete way about that topic. Ms. Pirner in her affidavit states that she is advised by her solicitors that at the conference I suggested that I would not require compliance with Registrar Donaldson’s order. It is said that this indicates a predisposition without any motion to permit Mr. Pirner to ignore the order, and gives rise to a reasonable apprehension of bias as no consideration will be given to Mr. Pirner’s actions since his assignment in bankruptcy.
[ 30 ] I recall a brief discussion of Registrar Donaldson’s order, and it is possible that I made some suggestions regarding it. Often things are suggested in 9:30 case conferences by the parties or by the judge, and sometimes they are agreed to and sometimes not. In this case, it has been clear from what Mr. Legge has said that he intends to explore fully all of Mr. Pirner’s actions since the bankruptcy and he has stated that he thinks the discharge hearing will require at least five days of hearing. I have not given any consideration whatsoever to any evidence that may be raised at the discharge hearing. Any suggestion about the order of Registrar Donaldson and whether it was necessary would have been only that, i.e. a suggestion. It will be up to Mr. Pirner to decide what he wants to do about the order, which has not been appealed or the subject on a motion to vary. I have not in any way decided what to do about the order. The subject may come up when there is further discussion about scheduling the hearing of the discharge hearing, which will be heard together with Mr. Pirner’s motion to quash the claim of Ms. Pirner. Or it may come up during the discharge hearing itself or prior to that time when either side may make a motion regarding it. What I can say is that I have made no decision whatsoever regarding the matter and I will be guided on any motion or hearing by the evidence and argument put before me.
[ 31 ] I do not think that a reasonably informed person aware of all of the circumstances could objectively conclude from what I may have said regarding the order of Registrar Donaldson that there is a reasonable apprehension of bias that I will not give consideration to all evidence put before the court on the discharge application of Mr. Pirner, including any evidence regarding his actions since his bankruptcy, or not give consideration to the order of Registrar Donaldson.
[ 32 ] I realize that it would have been the easy thing to do and just pass this entire matter over to another judge. However, in my view, I have a responsibility to our system of justice and to the other judges of our court not to lightly do that, but rather give due consideration to the motion once raised. On the Commercial List, it is anticipated that if possible a judge is to hear a whole matter. See para. 34 of the Commercial List practice direction. Of course, if there are grounds to disqualify a judge from continuing, that would govern, but it is incumbent to determine if there are such grounds.
[ 33 ] In De Cotiis v. De Cotiis , 2004 BCSC 117 , [2004] B.C.J. No. 150 , Groberman J. made the following comments on a motion that he recuse himself. I agree with him comments:
- ... It is the duty of a judge to hear cases that come before him or her, and a party should not be able to unilaterally choose not to have a matter heard by a particular judge simply because that party would prefer that another judge hear the case. If one party, without sound reason, is able to unilaterally determine that a particular judge will not hear a case, it also tends to bring the administration of justice into disrepute.
[ 34 ] In all of the circumstances, the motion is dismissed. Mr. Pirner has requested costs of the motion. He may make short written submission no longer than three pages within 10 days supported by any relevant documents, and Mr. Legge shall have 10 days to respond in writing with written submissions no longer than three pages.
Newbould J.
DATE: December 24, 2012