SUPERIOR COURT OF JUSTICE - ONTARIO

RE: JOSEPH WOJDAT and 1414037 ONTARIO LTD., Plaintiffs

AND:

VENTAWOOD MANAGEMENT INC., Defendant

BEFORE: F.L. Myers J.

COUNSEL: D. Buntsma and D. Alli, for the Plaintiffs

J. Jakubiak, for the Defendant

HEARD: March 6, 2014

ENDORSEMENT

[1] This morning before court, I invited counsel into chambers. I advised counsel that I had reviewed the motion materials, as is the practice, and that the materials made a first impression on me. I quite clearly said that I was speaking of a first impression only and that, of course, I would hear from them if required and resolve the motion on all the evidence and submissions. I inquired if the plaintiffs remained willing to enter into a schedule for the remaining steps of the action as set out in Mr. Buntsma’s email dated November 5, 2013, that is exhibit “D” to the affidavit of Carrie Atkinson, and he advised that he was willing to discuss this with the defendant’s counsel. Thereupon I suggested to the defendant’s counsel that he should meet Mr. Buntsma and try to settle bringing an objective view to the facts.

[2] Later in the morning, Mr. Jakubiak advised me in court that the parties had not settled and the motion was to be heard. I told him that in his submissions he should consider addressing Rule 57.07 (2). I said that I would not apply it today, but I could seek submissions on the process of how the rule is to be applied.

[3] At the opening of the hearing this afternoon, Mr. Jakubiak moved for me to recuse myself since by raising rule 57.07 (2) I have created a reasonable apprehension that I am biased against his client or incapable of deciding the matter fairly.

[4] I plainly hold no bias against the defendant. I also plainly have, on reading the materials, articulated a view that the first impression left with me by the materials is that the position being advanced by the defendant’s counsel may be significantly problematic.

[5] The issue is not one of pre-conceived bias or animus to the defendant as I have never heard of him. The issue is whether a judge who reads motion materials and raises a potential of serious issues then is biased. Is there a real likelihood that a right thinking person would think there is a likelihood of bias or lack of partiality? I do not think so. Judges decide cases and the Rules invite judges to raise cost issues on their own motion in appropriate cases. I have not decided the motion as yet. I gave notice to counsel that among the issues that occurred to me on first review of the motion materials was whether the defendant’s counsel (not Mr. Jakubiak) who has sworn an affidavit could be responsible in costs if the motion succeeds. I invited counsel to be ready to provide submissions as to how the rule might apply if I later rule against the defendant’s position. It is fair to suggest that by raising rule 57.07 I have shown that I have a real concern as to the conduct of counsel on this motion. That is not because of a preconceived bias or any predisposition, but rather, the impression left with me on embarking on the review of the materials as part of the motion process. I remain fully able to hear Mr. Jakubiak’s submissions on the merits (after hearing from the moving party) and resolving the matter on the merits without bias or predisposition, but in light of the education I have received on the facts and issues in the written motion materials.

[6] There is no basis to suggest that a reasonable person would think me biased or predisposed against a party or counsel. I am disturbed by the impression created in me by the motion material and told counsel so. Armed with that information, counsel can now address the merits.

[7] Motion dismissed.

F.L. MYERS J.

Date: March 10, 2014