Court File and Parties

COURT FILE NO.: CV-13-493452 DATE: 20160413 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: AE Hospitality Ltd., Applause Catering Inc. and Encore Food with Elegance, Plaintiffs – AND – Irene George, Anne Bolotin, Eugene George, the Canadian Imperial Bank of Commerce, Bank of Nova Scotia, Bank of Montreal, HSBC Bank Canada and TD Canada Trust, Defendants

BEFORE: Justice E.M. Morgan

COUNSEL: Shawn Tock, for the Plaintiffs David Altshuller and Lara Di Genova, for the Defendants, Irene George, Anne Bolotin and Eugene George

HEARD: April 13, 2016

Endorsement

[1] Counsel for the Defendants, Irene George, Gene George and Annie Bolotin (the “George Defendants”) has requested that I recuse myself from hearing this pair of motions because of my former association with Keith Landy, the senior partner of the law firm representing the Plaintiffs. He submits that as Mr. Landy and I are both past presidents and past board members of the Canadian Jewish Congress (“CJC”), there is an apprehension of bias in my presiding over this motion.

[2] Mr Landy was president of CJC from 2001 to 2004, and I was the Ontario chair for the organization during those years. I was president of CJC from 2004 to 2007, and Mr. Landy was then immediate past president. That is now 9 years ago.

[3] As I explained to counsel for the George Defendants, that is so long ago that there would be no bar to my sitting on a case brought by my former law firm, where I had an actual financial interest. CJC, by contrast, was a voluntary community and public interest advocacy organization, where neither Mr. Landy nor I (nor, for that matter, anyone else) had a financial interest. Although I am cognizant that a judge’s association with a non-profit, voluntary public interest organization can lead to apprehensions of bias, this generally occurs where that organization is an actual party or intervener in the litigation in issue: see Lord Hoffmann’s disqualification due to his association with Amnesty International in R v Bow Street Metropolitan Stipendiary Magistrate, Ex Parte Pinochet Ugarte (No 2) [1999] UKHL 52. That is not the case here.

[4] The Court of Appeal has been explicit in stating that in assessing the question of reasonable apprehension of bias of a judge, it is the viewpoint of the legal community, and not the subjective view of the parties themselves, that must be taken into consideration. As LaForme JA said in Ontario Provincial Police v Mac, 2009 ONCA 805, at para 42, “the reasonable person is vested with knowledge and understanding of the judicial process and the nature of judging.” For its part, the Supreme Court of Canada has observed that, “[t]he grounds for this apprehension must … be substantial… and the test [will not] be related to the very sensitive… conscience.” R v S (RD), [1997] 3 SCR 484 at paras. 31 and 37.

[5] Having held senior positions with the CJC is, under the circumstances, no different than being having held senior positions with the Canadian Civil Liberties Association, the Canadian Bar Association, LEAF, Egale, Amnesty International, etc., where those advocacy organizations are not involved in the case at hand. The matter before me has nothing whatsoever to do with the work of CJC, and there is nothing in the history of Mr. Landy’s and my association with CJC that would disqualify me from hearing this case where his firm is on record for the Plaintiffs.

[6] This has been a hard fought piece of litigation, and the present motion is only the latest in a lengthy list of procedural battles. Each side accuses the other of obfuscation. The Plaintiffs have obtained a number of orders from a series of motion judges, and here they seek an order that the statement of defence of the George Defendants be dismissed for failure to pay outstanding cost awards. The George Defendants submit that the orders in issue, one of which is a Mareva injunction, should not have been obtained due to material non-disclosure. They have brought a substantial number of leaves to appeal, appeals, and motions to vary, along the way.

[7] With that background in mind, I feel obliged to point out that, separate from our previous public interest and community advocacy activities, Mr. Landy and I are friends. Having been a member of the bar for nearly 30 years, I have many friends who are lawyers and would not ordinarily recuse myself from hearing one of them as counsel. However, I would not want to hear a matter where Mr. Landy’s personal credibility is an issue. Counsel for the George Defendants points out that Mr. Landy has sworn one of the affidavits in the present motion, and he says that this affidavit may give rise to credibility issues. I understand that counsel for the Plaintiffs is of the view that Mr. Landy’s affidavit is strictly an administrative one that introduces parts of the record without any substantive comment. I stress that I have not heard the motion and so do not know whether Mr. Landy’s credibility will turn out to be an issue.

[8] I would not, however, want my participation as judge to be the next ground of someone’s appeal. I therefore prefer to err on the side of caution. Although it is unfortunate to have to adjourn a 3 hour scheduled set of motions, under the circumstances it is incumbent on me to not only be kosher, but to be strictly glatt kosher.

[9] I therefore will recuse myself and send this matter back to civil practice court to obtain a new date before a new judge.

Morgan J. Date: April 13, 2016