Levy v. Levy, 2015 ONSC 899
COURT FILE NO.: CV-09-371181
DATE: 20150218
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Gladys Levy, Plaintiff
AND:
Sylvie Levy, Defendant
BEFORE: Carole J. Brown, J
COUNSEL: Jayson Thomas, for the Plaintiff
Sylvie Levy, representing herself
HEARD: February 6, 2015
ENDORSEMENT
[1] The defendant, Sylvie Levy, has brought a motion for recusal. She states that she wishes me to recuse myself as she feels that I am prejudiced and biased. She lists numerous reasons therefore, which will be elaborated upon below.
The Law
[2] The ground for disqualification for lack of impartiality is a reasonable apprehension of bias. The test for reasonable apprehension of bias has been summarized in the case of Vanderidder v Aviva Canada Inc., 2010 ONSC 6222, as follows:
The test for reasonable apprehension of bias, which is applicable to judges and administrative decision-makers, is found in Committee for Justice & Liberty Canada (National Energy Board) (1976), 1976 2 (SCC), [1978] 1 S.C.R. 369 (S.C.C.), and has been summarized by Jones and de Villars in Principles of Administrative Law, 5thed. (Toronto: Carswell, 2009),p. 402:
… In the wake of National Energy Board, the easiest part of the rule against bias has been stating the test. It is whether an informed person, viewing the matter realistically and practically – and having thought the matter through," would have "a reasonable apprehension of bias."
[3] Where it is alleged that a decision-maker is not impartial, the test that must be applied is whether the particular conduct of the decision-maker gives rise to a reasonable apprehension of bias; actual bias need not be established. This is so because it is usually impossible to determine whether the decision-maker approached the matter with a truly biased state of mind.
[4] The test contains a twofold 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: R. v S. (R. D.), 1997 324 (SCC), [1997] S. C. J. No. 84 [1997] 3 S. C. R. 484. While judges are subject to the same test of bias as other decision-makers, there is a strong presumption of impartiality. Courts presume that judges will carry out their oath of impartiality; therefore, there is a high threshold of proof because a finding of bias calls into question not just the personal integrity of the judge but also the integrity of the entire administration of justice: Marchand (Litigation Guardian of) v Public General Hospital Society of Chatham, 2000 16946 (ON CA), [2000] O.J. No. 4428, 51 O.R. (3d) 97.
The Defendant's Grounds for Recusal
[5] Of the five situations that may give rise to a reasonable apprehension of bias, enumerated in Vanderidder, supra, at paragraph 13, Ms. Levy relies on the fourth enumerated situation, namely "when a decision-maker has, through actions or words, provided a basis to challenge his or her impartiality".
[6] The defendant's concerns of bias fall into three broad categories: she cites the Court's mid-trial rulings, and most particularly, the Court’s failure to grant her requests for adjournment; bias and prejudice as regards her religious observances; a demonstrated preference for Mr. Thomas' positions; and trial management issues.
[7] Ms. Levy maintains that she sought and should have been granted an adjournment on the first day of trial in order to bring a change of venue motion and to retain a lawyer. She alleges that she was denied her right to bring her motion by court staff; that this Court did not, thereafter, grant her an adjournment in order to do so; and that, in any event, the action should have been brought in her own jurisdiction. She states that she is now, due to the fact that she was not able to bring this motion, inconvenienced and forced to travel to Toronto to defend this action. Further, she states that she had a lawyer in Niagara Falls, who had agreed to represent her if she obtained an order transferring the action to her own jurisdiction.
[8] She further maintains that she had submitted to the Court's on the first day of trial that she had lost her husband in 2013 and, thereafter in 2014, three other family members, including her father, uncle and sister-in-law, was mourning them and continues to mourn them, and accordingly could not proceed with the trial. Moreover, she argues that she had also explained on the first day of trial that she had 10 dogs she could not leave alone. Finally, she states that she had explained that she could not leave her two adult children who, while they live independently and not with her, had emotional problems.
[9] As well, she submitted that she was unwell, under stress and unable to proceed. This was an issue which has been raised regularly throughout the trial.
[10] For those reasons’ she sought an adjournment which was denied. I delivered oral reasons on that day, October 27, 2014, denying the request for another adjournment. I will not elaborate further on those reasons, as they are on the record, except to indicate the following background. This action was commenced in 2009, and had come up for trial and was adjourned on request seven times by one or the other party, or on consent of the parties. On June 30, 2014, the date for this trial was scheduled for October 27, 2014 at trial scheduling court. Further, the defendant has, on many occasions since 2011, indicated to the court that she wished to bring a change of venue motion and to retain counsel, which she again reiterated on the first day of trial. My decision of October 27, 2014 considered and commented upon all of the reasons that she raised. While Ms. Levy may not like or have agreed with the Court's Order, and may wish to appeal it, this does not give rise to a reasonable apprehension of bias.
[11] In the eighth day of the trial, Ms. Levy was permitted to bring a motion to amend her statement of defence and counterclaim. My written endorsement was delivered November 13, 2014. While I granted some of the amendments sought, I did not grant all. She now argues that I did not permit amendments to be made which she argues were crucial and, further, that I disallowed an amendment to her claim which I found to be statute-barred. She states that this demonstrates bias against her. Again, as above, while she may not have liked or agreed with this Court's Order, and may wish to appeal it, this does not give rise to a reasonable apprehension of bias.
[12] As a result of disruptive behavior on the part of Ms. Levy, such as constant recurring attempts to debate and argue all court orders and rulings despite being told that this was not proper procedure or process and that her remedy was to appeal, and a constant disregard for the other party and the court process, a security officer began attending the proceedings on a daily basis. Ms. Levy states that she is uncomfortable and raised concerns that she may be arrested by the security officer in the court room. She alleges that this Court threatened to arrest her and that she never did anything wrong, never used foul language or was rude. Throughout these proceedings, when I gave either oral or written rulings that were not to Ms. Levy's satisfaction or liking, she would attempt to re-argue them with the Court and not comply with Court Orders. It was explained to her that if she did not comply with Court Orders, the Court had the power to find her in contempt and explained the consequences thereof. On one occasion, the security guard in attendance at the trial, of his own accord, advised Ms. Levy to comply with the Court Order or she may risk arrest. She did, thereafter, comply with Court Orders.
[13] Ms. Levy argues that she was forced to proceed with the trial, although she was unwell, and was not permitted to see her doctor. This Court adjourned the action on two occasions, based on her indications that she was unwell, in order that she could attend at the Toronto General Hospital Emergency Department to determine whether she was or was not able to proceed with the trial, and further adjourned early one day to permit her to return to Niagara Falls to see a doctor. While this Court requested that she return with medical reports indicating the diagnosis and prognosis in the event that she was unable to proceed with the trial, there was little or no evidence of any condition that would prevent her from proceeding with the trial. Indeed, upon her return from the Emergency Department she produced a form letter, addressed to "To the Employer", indicating that no information could be divulged for reasons of confidentiality. On one occasion, nevertheless, as the standard form letter, addressed "To the Employer", indicated that she should rest for two days, this Court was adjourned in order to accommodate that recommendation. This Court ordered that in the event that she sought other adjournments for health reasons, she was required to produce a medical report indicating the reasons why she could not proceed, including diagnosis, prognosis and the amount of time that she would require to recover. On the numerous other occasions on which Ms. Levy requested adjournments for health reasons, she did not present any such medical letters or reports to substantiate her requests and, in the absence of any substantiating medical reports, further adjournments were not granted. This does not give rise to a reasonable apprehension of bias.
[14] Ms. Levy sought adjournments indicating that she was feeling unwell and/or stressed, on an ongoing basis throughout this trial, without producing medical records to substantiate her request. As stated in my ruling of January 2, 2015 when she again sought an adjournment for reasons of feeling unwell,
Based on the history of this case, such requests for adjournment have become a disturbing pattern of interruption and disruption of this trial, which is becoming an abuse of process of this Court. The constant daily attempts to re-litigate issues already decided by this Court is an abuse of process. This Court must ensure fairness to both sides, including the plaintiff who has brought this action. The defendant’s repeated requests for adjournment have impeded the progress of this trial.
[15] The same was stated in my oral reasons denying her request for an adjournment on the same grounds on December 29, 2014.
[16] No reasonable apprehension of bias or partiality arises from the foregoing.
[17] It is of note that on the occasions when Ms. Levy argued that she was unable to proceed with the trial, to cross-examine the plaintiff, or argue motions, because she was self- represented or because she was unwell, she nevertheless did a competent job as a self-represented party once she proceeded. This would occur following my rulings and her interventions in an attempt to re-argue her requests for adjournment, which she also argued cogently and with vigor.
[18] Ms. Levy argues that this Court has demonstrated prejudice, bias and discrimination as regards her religious observances. She had indicated during the first week of trial that she was required to leave Court early on Fridays in order to return to her home to prepare for religious observances. I ordered that, given her request, and the reason therefore, the Court would adjourn on Fridays at 1 PM. She thereafter began to request that the case not proceed for the entire day on Fridays. The Court continued to adjourned at 1 PM on Fridays, as originally indicated. In her argument today, she reiterates her previous arguments as regards the need for significant preparation for the religious observance on Friday. She argues that this Court has shown discrimination and bias by not permitting her to take the entire day on Friday to prepare for her religious observances, given that she must travel to and from Niagara Falls and, that given the season, the days are shorter and nightfall comes earlier. Bus schedules and religious schedules were consulted by the Court to determine the time of commencement of religious observances and the arrival of buses in Niagara Falls from Toronto. This Court respects religious observances and has attempted to grant all reasonable accommodation in this regard. I do not find this to give rise to a reasonable apprehension of bias.
[19] Ms. Levy raises numerous complaints as regards Mr. Thomas, counsel for the plaintiff, and argues that this Court demonstrated bias by allegedly giving preference to his arguments. She states that when scheduling continuation dates for the trial, she was never consulted about her availability, nor was she accommodated as regards her schedule, but only Mr. Thomas was consulted and accommodated. The transcripts record these scheduling discussions, and indicate that both parties' availabilities were canvassed. This, in the end, is a court scheduling matter and does not raise a reasonable apprehension of bias.
[20] Ms. Levy further maintains that this Court permitted the trial to commence although she had taken the position on the first day of trial that she had not been served with the plaintiff's documents. It appears that her lawyer of record at the time was served with the documentation, such that she is deemed to have been served. Further, the affidavit of service indicates that she was also served personally. Her lawyer subsequently removed himself from the record in 2010. At the time the trial commenced, all documentation was before her.
[21] Ms. Levy further maintains that she has not been accorded sufficient time to make her submissions, argue her positions or present her case, but has been made to feel rushed throughout. I note that this matter, which was originally scheduled for two weeks, has at this juncture, proceeded for 14 days, in addition to today's motion, with at least one more week to go in order that the defendant present her case. The plaintiff's case commenced on day four, with one witness, Gladys Levy who presented examination in chief over a period of three days, with cross-examination by Sylvie Levy proceeding for three days. Ms. Levy commenced her examination in chief on day 13. The rest of the time was taken up with preliminary matters, requests for adjournments by Ms. Levy, Ms. Levy arguing about court rulings made following the numerous requests for adjournment, and attempting to re-litigate each ruling, and argument of the motion to amend the statement of defence and counterclaim. I further note that the defendant originally had some 30 witnesses, which have now, after a scheduling attendance before me, been reduced in number and time estimated for examinations. I further note that, while Ms. Levy appears somewhat disorganized as regards her documents, she has been accorded significant time to locate documents, and also to take notes.
[22] Ms. Levy made other complaints related to court staff or the history of attendances before other judges, which do not raise a reasonable apprehension of bias as regards this Trial Court and the partiality or impartiality of its decision-making. Complaints regarding trial management aspects of the trial, again, do not give rise to a reasonable apprehension of bias. They are, indeed, powers which must be exercised by the court in the interest of the administration of justice.
[23] This Court has been lenient and accommodating, in light of the fact that Ms. Levy is a self-represented party, perhaps more lenient than other judges would have been in the same circumstances. This Court has taken into consideration her interests, concerns and requests throughout, as well as the interests of the plaintiff and of the administration of justice, which it must do in exercising its discretion as to whether to grant an adjournment. The Court has rendered rulings, in the form of oral endorsements, as well as a written endorsement as regards the motion to amend the statement of defence and counterclaim, all of which are in the transcripts and court record.
[24] Indeed, in the eyes of independent observers, it may be said, as it has been stated by the plaintiff, that the leniencies and accommodation afforded Ms. Levy may be seen to tip the balance in favour of Ms. Levy and away from the plaintiff. This Court is, nevertheless, mindful that it must always ensure that the proceedings are balanced and fair to both sides, and must consider each party, as well as the administration of justice.
[25] The issues raised by Ms. Levy do not establish partiality on the part of this Court. They do not give rise to a reasonable apprehension of bias. Nor do I find there to be anything to suggest that I would not decide this action fairly and impartially based on the evidence and the law before me. Accordingly, I dismiss the defendant's motion for recusal.
[26] The trial will continue before me the week of April 27 through May 1, commencing each day at 10:00 am. As usual, the Court will rise at 1 PM on Friday in order to accommodate Ms. Levy.
[27] When the trial recommences on April 27, I order the following: Ms. Levy is to continue her examination in chief for the balance of the day. On April 28, the cross-examination of Ms. Levy will commence. Ms. Levy will have her witnesses ready to proceed on April 29 through May 1.
[28] Given the amounts claimed in this action, I have urged the parties to attempt to settle this action between themselves. I saw in the first three weeks of trial little or no interest in settlement. However, Ms. Levy indicated at this motion that she would be amenable to attempt to settle. I do note that a pretrial settlement conference was held before Spiegel J, which was unsuccessful. Nevertheless, should both parties wish to convene a mid-trial settlement conference, they should contact one another in order to agree upon mutually convenient dates for such a settlement conference, to be held prior to the re-commencement of this trial on April 27, and should contact the trial office in order to attempt to find a judge who can preside over such a mid-trial settlement conference prior to be commencement of this trial.
Carole J. Brown, J
Date: February 18, 2015