ENDORSEMENT

COURT FILE NO.: CV-06-323670

DATE: 2015/05/27

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: ROBERT BILICH, Plaintiff/Moving Party

AND:

MALCOLM K. BUCK, WIRELESS MINING TECHNOLOGIES et al. Defendants/Responding Parties

BEFORE: MASTER RONNA M. BROTT

COUNSEL: Robert Bilich, Self-represented plaintiff

Evan Tingley, for the Defendants

HEARD: March 16, 2015

ENDORSEMENT

[1] In this action, the plaintiff seeks damages of $1,500,000.00 from the defendants for wrongful dismissal and unjust enrichment.

[2] The plaintiff was initially self-represented. The first Statement of Claim was struck as being too vague. The re-issued claim was also the subject of a motion to strike. Pleadings were ultimately finalized and examinations for discovery were conducted in October 2008 and June 2009. The parties attended a mediation in January 2010. The plaintiff was represented by counsel at the examinations for discovery and the first mediation. The plaintiff filed a Notice of Intention to Act in Person on March 31, 2011.

[3] On July 6, 2011, on a motion by the plaintiff to compel answers to undertakings made by the defendants, and an additional motion for contempt, Mr. Justice Stinson found that the proceeding had “become mired in procedural issues and has experienced inordinate delay in proceeding to trial.” He directed that the action be placed into case management. I have been the case management Master since then.

[4] At the first case management conference on August 2, 2011 both parties agreed that the emotional and financial burden was heavy and they agreed to direct their efforts towards resolution. A timetable was agreed to, including a mediation with a retired Judge of the parties’ choice, to be conducted during the week of November 28, 2011. The Order set out a procedure for the parties to reach agreement on a mediator.

[5] A further case conference was convened on November 22, 2011 when the parties were unable to reach agreement on a mediator and/or a mutually convenient date. The mediation was ordered to proceed on January 9, 2012 but did not, because at the eleventh hour, the Judge/mediator refused to conduct the mediation. Acrimony and distrust between the plaintiff and defence counsel continued to escalate. Ultimately Justice Bastarache mediated the dispute on June 29, 2012. It did not settle.

[6] The parties’ motions to compel answers to questions undertaken/refused at examinations for discovery were scheduled to be heard on January 17, 2013 but were adjourned as the plaintiff wished to cross-examine the defendant on two affidavits filed. As well, the parties had failed to comply with the Practice Direction requiring them to complete charts including responses. Having received correspondence outlining further difficulties between the parties, including that the plaintiff had sent 33 emails to defence counsel between April 5 – 18 and that the plaintiff was not content with defence counsel’s requests to have ‘security’ present whenever they appeared in court, I directed that the parties attend an in-person case conference on April 22, 2013 with a list of the motions they each intended to bring together with a comprehensive list of the evidence to be relied upon in support to each motion. At the case conference the plaintiff and defence counsel both submitted that their charts and evidence had been prepared yet they both denied that the other had properly complied. With respect to the undertakings motion, the plaintiff was given a further 30 days to deliver supplementary evidence. The defendants were given 15 days to respond. The plaintiff reiterated his desire to cross-examine the defendant and was reminded of previous orders that he would only be permitted to do so after all evidence had been exchanged. The plaintiff advised that he also wished to bring a motion to examine non-parties and it was ordered that he deliver those materials within 60 days. The motions were ordered returnable December 11, 2013, peremptory on all parties, without the right for further adjournments.

[7] The defendants retained new counsel on July 9, 2013. On December 5, 2013 the plaintiff’s motion for contempt was dismissed by Justice Whitaker, and on December 11, 2013 the parties’ motions for compliance with undertakings and refusals were completed. On June 19, 2014 the parties appeared before Justice Belobaba who adjourned the plaintiff’s motion for further production directing that it be heard by the case management Master, upon receipt of the entire court file.

[8] At the defendants’ motion to dismiss the plaintiff’s action, heard on September 9, 2014 the plaintiff was ordered to answer outstanding undertakings and to pay outstanding costs. On November 17, 2014, the defendants brought a motion to dismiss the action for failure to comply with the outstanding court orders, including costs orders. The plaintiff also brought a motion seeking inter alia, to compel the defendants to deliver a further and better affidavit of documents, to produce additional documents, to answer questions that may arise from the documents and for an order that a claim for privilege previously made by the defendants is improper.

[9] At the commencement of the hearing of that motion counsel for the defendants advised that the plaintiff was still in breach of the September 9, 2014 Order and accordingly he intended to move to dismiss the plaintiff’s action if the plaintiff did not cure the breach. Mr. Bilich then rose and requested that I refrain from hearing the motion (or any other motions, if brought) and asked that I recuse myself as the case management Master on the basis that I have acquiesced throughout the course of these proceedings to the requests of the defendants while taking a more rigid approach to the plaintiff’s requests. In other words, he suggested that I have exhibited systemic bias. In his words, “There is no balance. It has all been slanted to one side, especially when the result is unfairness.” The plaintiff was instructed to bring a recusal motion which is the subject matter of this hearing.

[10] On December 14, 2014 Justice Himel adjourned trial scheduling court to allow the three Masters motions to proceed; namely – Mr. Bilich’s motions for further documents and to recuse the Case Management Master and the defendants’ motion to strike the claim.

THE TEST

[11] The test for disqualification of a judicial officer from hearing a case is set out in the Supreme Court of Canada decision of Committee for Justice and Liberty v National Energy Board, 19786 2 (SCC), 1976 CanLII 2 (SCC), [1978] 1 S.C.R. 369:

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.

[12] Master Beaudoin, in Gualtieri v Canada (Attorney General), 2007 CanLII 7406 (ONSC) set out components of the test. He stated at paragraphs [14] and [15]:

[14] In Authorson v Canada [2002] O.J. No. 2050, the Divisional Court held that a real likelihood or probability of bias must be demonstrated. It also held that the threshold for finding a reasonable apprehension of bias is high. The party alleging an apprehension of bias has the onus of proof. Allegations are not enough At paragraph 6, that court described the test the following way:

This test 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 tradition of integrity and impartiality that form a part of the background of the judicial system, and also be aware of the fact that impartiality is one of the duties judges swear to uphold. The jurisprudence indicates that a real likelihood, or probability of bias, must be demonstrated and that a mere suspicion is not enough. The existence of a reasonable apprehension of bias depends entirely on the facts. The threshold for such a finding is high, and the onus of demonstrating bias lies with the person who is alleging its existence.

[15] Case management, because of the close interaction between the judicial officer and the parties and the informality of many case conference, can create situations where the judicial officer will make comments with respect to the conduct of the case. The jurisprudence suggests that in the context of case management, the test of reasonable apprehension of bias is even more stringent.

[13] The motion material filed by the plaintiff for this recusal motion consists of a 110-page motion record including an affidavit consisting of 521 paragraphs. While the majority of the plaintiff’s concerns relate to the defendants’ and their previous counsel’s “pattern of callous and insensitive conduct intended to delay and stonewall the action”, the plaintiff asserts that I “sent clear signals that there will be plenty of tolerance for playing relentless hardball…and allowed a pattern of virtually uncontrollable conduct to flourish in the judicial system.” As well, the plaintiff submits that I have “not only precipitated an escalation of the “inordinate delay” in this case, and [I] have also materially contributed to wasted resources.” Mr. Bilich submits that I made a “stream of court orders that have not been complied with by the defendants yet I am threatening to dismiss his action.”

[14] The timing of this recusal request is to be taken into account. Over the years that I have been managing this case, Mr. Bilich complained time and again about the conduct of the defendants and the conduct of the defendants’ first counsel. He never alleged judicial bias until November 17, 2014 when the defendants moved to dismiss the plaintiff’s action for failure to comply with the following Court Orders:

a. December 5, 2013 - On the plaintiff’s motion for an Order declaring the defendant in contempt, Justice Whitaker dismissed the plaintiff’s motion and ordered the plaintiff to pay to the defendants costs of $5000.00;

b. December 11, 2013 – I ordered the plaintiff to answer a number of undertakings and refusals given at his examination for discovery;

c. March 24, 2014 – Justice Aston dismissed the plaintiff’s motion for leave to dismiss the decision of Justice Whitaker and the plaintiff was ordered to pay costs of $3500.00

d. September 9, 2014 – On the defendants’ motion to dismiss the plaintiff’s action or to compel the plaintiff to comply with previous court orders, the plaintiff was ordered to answer the undertakings ordered to be answered on December 11, 2013, by November 28, 2014 and to pay outstanding costs orders in the amount of $8500.00 by November 3, 2014. Costs of the motion were ordered payable by the plaintiff fixed at $500.00. This Order was not appealed.

[15] The only evidence on this motion is the plaintiff’s affidavit. There are no transcripts from prior court attendances evidencing the plaintiff’s allegations that I displayed animus towards him. None of my endorsements were put before the court but they were reviewed prior to writing these Reasons. Their review illustrates the court’s continued attempts to keep the matter moving towards the next step in the litigation. They evidence the continued involvement on the part of the court to attempt to assist the parties when the proceedings stalled.

[16] On December 11, 2013, after hearing both the plaintiff and the defendants’ motions to compel answers to undertakings, I ordered questions from all parties to be answered. I ordered costs against the plaintiff after an evaluation of the parties’ success on the two motions. The costs were ordered payable in any event of the cause (not forthwith).

[17] In September 2014, the plaintiff was given additional time to comply with outstanding court orders. The action was not dismissed. The plaintiff did not appeal this order.

[18] The defendants have brought a further motion to dismiss the plaintiff’s action which was returnable May 25, 2015 and which has been adjourned to August 18, 2015. To date, the previous court orders have not been complied with.

[19] Master Albert in Mazumder v Bell Canada [2005] O.J. No. 3571 states:

To have a case management judicial officer disqualified for bias, an application must demonstrate that the judicial officer is no longer capable of being persuaded by evidence and arguments in subsequent motions.

[20] Asking a judicial officer to recuse himself/herself and/or alleging that a judicial officer is biased, is an extremely serious allegation. It is my duty to apply this objective test to determine whether Mr. Bilich’s apprehension of bias is reasonable. I conclude that it is not. The plaintiff, in my view, applied a subjective test upon realizing that he is potentially at the end of his litigation. He is clearly upset about the costs orders outstanding. Further, he is concerned about the ‘fairness’ of a possibly imminent dismissal order. He failed to appeal the Order of this Court of September 9, 2014. He was given a specified time to comply with outstanding orders and costs order and he has not done so. His continued failure to do so could result in the dismissal of his claim despite having been given numerous extensions. As well, he continues to try to seek production of documentation which was ordered non-producible on December 11, 2013 at the undertakings motion. In my view the plaintiff has failed to establish that my conduct would lead a reasonable observer (as opposed to the plaintiff himself) to conclude bias on my part. The moving party has failed to put before this court cogent evidence to satisfy me that I am incapable of acting impartially. Similarly, there is no evidence to demonstrate that I am not open to adjudicating based on the submissions of the parties and the evidence before the court.

[21] It has been my responsibility as case management master to attempt to move the action towards settlement or trial while narrowing issues, reducing delays and keeping litigation costs in check. My accumulated knowledge of this action has, in my view, assisted in encouraging the parties to resolve the action. While the plaintiff wants to resolve the action on terms that he deems are appropriate, the defendants do not agree. It has been my determined and continued goal, at this late stage of the litigation, to move this action to a pre-trial. Obviously that is not possible if the plaintiff fails to comply with the outstanding court orders and if the defendants are ultimately successful in dismissing the action. In my view, I have tried and will continue throughout my continued involvement, to ensure fairness and balance in the management of this action. The plaintiff’s request that I recuse myself is dismissed.

[22] Costs generally follow the event. If the parties cannot within thirty (30) days agree on the issue of costs, and if they intend to make submissions on costs of this motion, they shall contact my Registrar, Christine Meditskos, to request an in-person case conference.

MASTER RONNA M. BROTT

Date: May 27, 2015