ONTARIO

SUPERIOR COURT OF JUSTICE

Court File No.: 390/08
Date: 20140908

B E T W E E N:

ROBERT STOCKEY

Ian K. Latimer, for the plaintiff

Plaintiff

• and -

GARY GRANT and DIANA KOPP GRANT

Gary Grant, on his own behalf
No one appearing for the defendant, Diana Kopp Grant

Defendants

HEARD: July 29, 2014 in Orangeville

ENDORSEMENT

André J.

[1] Mr. Gary Grant brings a motion to set aside two orders made by Daley J. in December 2009, and June 2010, on the basis of a reasonable apprehension of bias. Specifically, he contends that in as much as Daley J. was an Administrative Judge who supervised Mr. Ian Latimer, counsel for the plaintiff, Mr. Robert Stockey, when he made the orders in question, he should have recused himself from the matter because of a reasonable apprehension of bias. Mr. Stockey maintains that this court lacks the jurisdiction to set aside the orders and that, even if it did have jurisdiction, there was no reasonable apprehension of bias that justifies doing so.

[2] Mr. Grant’s motion therefore raises the following questions:

(1) Do I have the jurisdiction to set aside Daley J.’s orders?

(2) If I do, should Daley J. have recused himself from hearing the motions based on a reasonable apprehension of bias?

[3] For the reasons indicated below, Mr. Grant’s motion is denied.

FACTS

(1) On January 5, 2009, Mr. Grant and Mr. Robert Stockey brought motions before the court. Mr. Stockey sought possession of premises known as R.R. #7, Orangeville (the Property) and for arrears of rent. Mr. Grant’s motion was for a certificate of pending litigation with respect to the same property.

(2) The issues involved in both motions were resolved by way of written minutes of settlement signed by both Mr. Grant and Mr. Stockey.

(3) Unfortunately, the matter was not resolved in a fashion contemplated by the parties. Mr. Grant then brought a motion to rescind the minutes of settlement and for relief from forfeiture of the Property. Mr. Stockey brought a motion for possession of the Property and for payment of arrears.

(4) Daley J. heard submissions on both motions on June 1, 2009, and on November 23, 2009. He concluded on December 23, 2009, that a proper determination of the issues at stake in both motions could not be made on “untested and conflicting affidavit material and where specific findings of fact must be made”. He concluded that the issues in both motions should be determined by a trial, which would be focused on four issues.

(5) Mr. Grant brought a new motion on June 29, 2010, seeking the same relief that he had earlier sought. Daley J. concluded that “there is no basis to add to the issues to be tried”. He declined “to have the issues for trial expanded by the addition of new issues he proposed”. Daley J. then dismissed Mr. Grant’s motion to add new issues for determination at trial.

(6) On October 5, 2010, Lemon J. dismissed Mr. Grant’s motion for an extension of time to appeal Daley J.’s orders.

(7) The matter came up for trial before Justice Daley in April 2011. Mr. Latimer was called by the defendant as a witness at the start of the trial. Daley J. recused himself from hearing the trial on the ground that as Administrative Judge in the region, he supervised Mr. Latimer who is a Deputy Judge in his jurisdiction.

(8) In December 2011, Mr. Grant brought an application for judicial review of Daley J.’s orders. The relief he sought included an order that “under issues for trial be allowed especially the right to substantiate that it was the respondents who were in breach of the settlement agreement by refusing to accept the certified cheque for the full agreed on purchase price when tendered to them.”

(9) On May 24, 2013, Mr. Grant sought leave to appeal the Divisional Court’s decision to the Court of Appeal. Mr. Grant raised the issue of Daley J.’s partiality based on the fact that Mr. Latimer was a judge in the same judicial region as Daley J. He also requested the Court of Appeal to set aside Daley J.’s orders “and a declaration of the applicant’s rights and issues that he wants to be determined at trial”.

(10) The Court of Appeal dismissed Mr. Grant’s motion on September 11, 2013.

(11) On May 20, 2014, Mr. Grant brought this motion, once again seeking an order that Daley J. should have recused himself from hearing the motions in 2009 and 2010 because of a reasonable apprehension of bias.

SUBMISSIONS

[4] Mr. Grant submits that:

(1) Neither the Divisional Court or the Court of Appeal dealt with the issue which he has raised.

(2) Non-disclosure of Daley J.’s relationship with Mr. Latimer results in a reasonable apprehension of bias.

(3) He cannot get a fair trial of the issues unless Daley J.’s orders are set aside.

[5] The plaintiff submits that:

(1) This court has no jurisdiction to review Daley J.’s orders.

(2) There was no reasonable apprehension of bias stemming from Daley J.’s decision to hear the motions in question.

ANALYSIS

Issue No. 1 – Do I have the jurisdiction to set aside Daley J.’s orders in this matter?

[6] In my view, I do not. Mr. Grant raised the issue of reasonable apprehension of bias in his application for judicial review. The Divisional Court dismissed Mr. Grant’s application.

[7] Additionally, in his motion seeking leave to appeal the Divisional Court’s decision to the Court of Appeal, Mr. Grant again raised the question of reasonable apprehension of bias given the professional relationship between Daley J. and Mr. Latimer. The Court of Appeal dismissed Mr. Grant’s motion for leave.

[8] In my view, the doctrine of issue estoppel precludes Mr. Grant from relitigating the issue of reasonable apprehension of bias, where that issue has been dealt with by both the Divisional Court and Court of Appeal in this matter. As noted by the Supreme Court of Canada in Penner v. Niagara Regional Police Services Board, 2013 CarswellOnt 3743 (S.C.C.), at paragraph 28: “Relitigation of an issue wastes resources, makes it risky for parties to rely on the results of their prior litigation, unfairly exposes parties to additional costs, [and] raises the spectre of inconsistent adjudicative determinations…”

[9] Mr. Grant also seeks, pursuant to s. 26(6) of the Rules of Civil Procedure, “that the trial court accept any amended pleadings from the applicant”. Granting this request would be contrary to Daley J.’s order regarding the issues to be litigated at trial. In my view, I have no jurisdiction to grant this relief. Accordingly, Mr. Grant’s request to amend his statement of claim is denied.

CONCLUSION

[10] I therefore conclude that I have no jurisdiction to hear Mr. Grant’s motion for an order based on a reasonable apprehension of bias on an amendment of his statement of claim.

[11] It is therefore not necessary for me to decide whether there was a reasonable apprehension of bias arising from Daley J.’s decision to deal with the motions in this case.

COSTS

[12] This court orders that counsel for Mr. Stockey shall deliver costs submissions of two pages and a costs outline within fifteen (15) days. Mr. Grant shall deliver reply submissions within fifteen (15) days thereafter of a similar length.

André J.

Released: September 8, 2014