Court File and Parties

COURT FILE NO.: CV-09-387686 DATE: 20161007 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

DUCA FINANCIAL SERVICES CREDIT UNION LTD. Appellant (Defendant) – and – STEVE SMITH and TNT.CA INC. Respondents (Plaintiffs)

Counsel: Anthony E. Bak and David Alli for the Appellant (Defendant) R. Trent Morris for the Respondents (Plaintiffs)

HEARD: September 20, 2016

REASONS FOR DECISION

KRISTJANSON J.

[1] This is an appeal from the Order of Master Short dated July 20, 2016. The Master declined to recuse himself from hearing a motion brought by the respondents Steve Smith and TNT.CA Inc. (collectively, “TNT.CA”) to set aside the Registrar’s administrative dismissal of an action. The appellant, Duca Financial Services Credit Ltd. (“Duca Financial”) alleges a reasonable apprehension of bias based on the actions or rulings of the Master during the course of case managing the matter, as well as comments made by the Master during the argument of the recusal motion. I find that no reasonable apprehension of bias is established. Master Short is not disqualified from hearing the motion to set aside the Registrar’s dismissal order. The appeal is dismissed.

Background Facts

[2] The litigation which led to the involvement of Master Short related to an action commenced by TNT.CA against Duca Financial in September 2009 seeking damages for an alleged improvident sale on a power of sale, an accounting of monies paid to Duca Financial out of the proceeds of sale under the power of sale, and a payment of funds due to TNT.CA out of the proceeds of sale. TNT.CA’s action was administratively dismissed by the Registrar in February 2013 (the “Dismissal Order”).

[3] TNT.CA did not take steps to set aside the Dismissal Order, but instead commenced an action in Small Claims Court in Richmond Hill in July 2015, to recover their costs of the Superior Court action. TNT.CA obtained judgment on September 22, 2015. Duca Financial then took two further steps. Duca Financial brought a separate application to the Superior Court of Justice in Newmarket seeking to stay the Small Claims Court action on the grounds of abuse of process. By reasons dated July 7, 2016, Healey, J. granted the application, noting that the remedy was to move to set aside the Dismissal Order.

[4] Master Short first dealt with the matter when Duca Financial brought a motion to the Superior Court of Justice in Toronto, returnable December 16, 2015, for its costs in the Superior Court action connected with the Dismissal Order. TNT.CA filed no materials in response to the motion. Master Short adjourned the motion returnable on December 16, 2015 to his list on February 22, 2016, with costs to Duca Financial. That order was never appealed.

[5] In a teleconference with Master Short on January 14, 2016, Mr. Smith informed the Master that he would be bringing a motion to set aside the Registrar’s Dismissal Order. Counsel for Duca Financial informed the Master that Duca Financial was in the process of putting together an accounting. The Master ordered Duca Financial to provide a full accounting by February 8, 2016, and that TNT.CA respond by February 17, 2016. No appeal was taken from the Master’s January 14, 2016 order. Duca Financial did not provide an accounting by February 8, 2016 as ordered, and has not provided an accounting to date.

[6] The Master set a case conference for March 10, 2016 to set a timetable for the motion to set aside the Dismissal Order. On March 9, 2016 Duca Financial served a notice of abandonment of its motion for costs. On March 10, 2016 the Master set the timetable for TNT.CA’s motion to set aside the Dismissal Order. The entirety of the March 10 Order reads: “Moving Party April 1, Responding by April 22”. The March 10 order was not appealed. On April 1, TNT.CA served their materials on the motion to set aside the 2013 Dismissal Order. Responding materials were filed.

[7] On April 19, 2016 Duca Financial proposed a timetable for argument of TNT.CA’s motion to set aside the Dismissal Order. The timetable was consented to by all parties; it proposed a full day motion before the Master July 20, 2016. No appeal was taken from that order.

[8] Although the July 20 motion date was set in April, the recusal motion, which relied solely on actions taken March 10 and earlier, was not brought until July 14, 2016.

Recusal Motion before the Master

[9] Duca Financial essentially raised five issues regarding reasonable apprehension of bias. The key allegations raised before Master Short were that (1) on December 16, 2015, Master Short permitted Steve Smith to “provide an unchallenged narrative connected to the dismissed action”; (2) he subsequently inquired into the merits of the dismissed action in case conferences; (3) he made orders for Duca Financial to produce an accounting connected to the power of sale rather than Duca Financial’s motion for costs; (4) after Duca Financial abandoned its motion on March 9, 2016, the parties were required to attend a teleconference on March 10, 2016 setting a timetable for TNT.CA’s upcoming motion to set aside the Dismissal Order at a time when the Master was functus as Duca Financial had abandoned its costs motion, and TNT.CA had not yet commenced its motion to set aside, and (5) the Master referred to Standard Charge Terms of the Duca Financial mortgage, although those terms were not filed in evidence before him.

[10] The Master dismissed the recusal motion. The Master held that he undertook case management of this matter under Rule 77.05 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 and over the course of seven months had made a number of procedural orders and established a timetable, none of which were appealed.

[11] The Master considered the principles set out by the Supreme Court in Hryniak v. Mauldin, 2014 SCC 7, [2014] 1 S.C.R. 87 [Hryniak], including proportionality and access to justice, and the Court’s obligation under Rules 1.04 to construe the Rules “liberally”, “to secure the just, most expeditious and least expensive determination” of this civil proceeding “on its merits.” He considered it reasonable to take a similar approach on the motion to set aside the Registrar’s Dismissal Order. On the issue of the production order directing the accounting, he stated that “the contextual factors in this case justified ordering production of that information.” He held:

I feel as a result my approach to date has been entirely consistent with the Supreme Court’s directions and the usual manner of case management in Toronto. For these reasons I directed an accounting of the cash flows with respect to the Duca mortgages in order to allow them to demonstrate support for their pleaded position that nothing was owed to the plaintiffs.

Despite a variety of assurances that details were being investigated, that information from a large financial institution appears to have yet to be produced. In my view, seeking that information in this context is not an indication of any bias whatsoever on my part. I sought to have the parties on a level playing field to what, at least at some point, may have been acknowledged as a potential liability by Duca to the plaintiffs.

[12] He found that his reading of the affidavit filed “does not find an assertion of a belief of bias on my part, which would oblige me to recuse myself.” The Master adopted the test for evaluating reasonable apprehension of bias as set out in Master Albert’s decision in Mazumder v. Bell Canada [Mazumder] at paras. 7-12, 15-17 and 23-25.

Issues

[13] There are five issues on this appeal:

(1) What is the appropriate standard of review? (2) What is the appropriate test for reasonable apprehension of bias on this recusal motion? (3) Did Duca Financial, by delay, waive its right to bring the recusal motion? (4) Did the Master’s actions or rulings prior to the hearing of the recusal motion give rise to a reasonable apprehension of bias? (5) Did the Master’s comments during the recusal motion create a reasonable apprehension of bias?

Issue #1: Standard of Review

[14] The standard of review of correctness is to be applied where the issue is one of fairness of the process (Thyssenkrupp Elevator (Canada) Ltd. v. 1147335 Ontario Inc., 2012 ONSC 4139 (Ont. Div. Ct.), at para. 18).

[15] Impartiality of the decision-maker and reasonable apprehension of bias are essential aspects of fairness. As such, this court must be satisfied that the Master is correct in his conclusion that there is no reasonable apprehension of bias requiring him to recuse himself.

Issue #2: Test for Reasonable Apprehension of Bias on the Recusal Motion

[16] Impartiality is a state of mind or attitude in which the adjudicator is disinterested in the outcome, and open to persuasion by the evidence and submissions. In contrast, “bias denotes a state of mind that is in some way predisposed to a particular result, or that is closed with regard to particular issues,” in a wrongful or inappropriate manner. (R. v. S. (R.D.), 1997 SCC 324, [1997] 3 S.C.R. 484 at paras. 104-105, per Cory, J. for the majority).

[17] The test for ascertaining reasonable apprehension of bias is described by the Supreme Court of Canada in Committee for Justice and Liberty v. Canada (National Energy Board), 1976 SCC 2, [1978] 1 S.C.R. 369, at p. 394:

[T]he apprehension of bias must be a reasonable one, held by reasonable and right minded persons, applying themselves to the question, and obtaining thereon the required information…[The] test is, “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?”

[18] In applying the test, attention must be paid to the following:

(1) The test has two objective elements. The person considering the alleged bias must be reasonable, and the apprehension of bias itself must be reasonable in the circumstances of the case (R. v. S. (R.D.), at para. 111). (2) The reasonable person “must be an informed person, with knowledge of all the relevant circumstances, including ‘the traditions of integrity and impartiality that form a part of the background and apprised also of the fact that impartiality is one of the duties the judges swear to uphold.’” (R. v. S. (R.D.), para. 111). The reasonable person is “vested with knowledge and understanding of the judicial process and the nature of judging.” (Ontario Provincial Police v. MacDonald, 2009 ONCA 805, at para 42). (3) The apprehension of bias must rest on substantial and serious grounds, in light of the strong presumption of judicial impartiality. (Wewaykum Indian Band v. Canada, 2003 SCC 45, [2003] 2 S.C.R. 259, at para. 76). The threshold is high. The burden of proof rests on the party alleging that the conduct of a judicial officer raises a reasonable apprehension of bias, on the basis of “cogent evidence.” (R. v. S. (R.D.), at paras. 114 and 117). Allegations alone, or suspicions, are insufficient. The inquiry is “highly fact-specific” and the context and particular circumstances are of “supreme importance.” The facts “must be addressed carefully in light of the entire context. There are no shortcuts.” (Wewaykum, at para. 77) A careful examination of the facts must reveal a “real likelihood” or “probability” of bias. (Authorson (Litigation Guardian of) v. Canada (Attorney General), 32 C.P.C. (5th) 357, at para. 6). (4) If the evidence shows that there is a reasonable apprehension of bias, then a judge ought to be disqualified. (Authorson, at para. 4). (5) However, if it does not, then a judge ought not to be disqualified (nor shrink from his judicial obligations). It would be inappropriate for a party to bring a disqualification motion if the essential purpose of that step were to be a form of reverse “judge shopping” because of a subjective dissatisfaction either with the judge drawn or with previous decisions or directions of that judge. (Authorson, at para. 4).

The Informed Person and Case Management

[19] The informed reasonable person is aware of the legal context relevant to the bias inquiry. In addition to the presumption of impartiality, the informed person will be aware of the importance of the Supreme Court’s direction in Hryniak, which emphasizes a “culture shift” in the civil justice system, where judges and masters must seek ways to provide access to justice through timely and efficient resolution of court proceedings. As Karakatsanis, J. held for the Court at para. 2:

Increasingly, there is recognition that a culture shift is required in order to create an environment promoting timely and affordable access to the civil justice system. This shift entails simplifying pretrial procedures and moving the emphasis away from the conventional trial in favour of proportional procedures tailored to the needs of the particular case. The balance between procedure and access struck by our justice system must come to reflect modern reality and recognize that new models of adjudication can be fair and just.

Case management, whether formal or informal, is an essential part of the culture shift. Masters and judges are expected to actively manage litigation to ensure that it is efficiently and fairly dealt with. As was stated in Hryniak at para. 32: “This culture shift requires judges to actively manage the legal process in line with the principle of proportionality.”

[20] The informed reasonable person would also be informed of the proportionality principle set out in Rules 1.04(1) and 1.04(1.1) of the Rules of Civil Procedure. The objective of case management or pre-hearing management, as set out in Rule 1.04(1), is to “secure the just, most expeditious and least expensive determination of every civil proceeding on its merits.” In order to achieve this objective, Rule 1.04(1.1) directs courts to ensure that their orders “are proportionate to the importance and complexity of the issues, and to the amount involved, in the proceeding.” This is the framework within which the exercise of powers by the Master must be considered.

[21] The informed reasonable person would be aware that in Toronto, a case management master hears all interlocutory motions in an action within a master’s jurisdiction prior to trial. As Master Albert held in Mazumder at paras. 23-25:

[23] A case management judge or master’s accumulated knowledge of a case is a central feature of the case management system and furthers its goals of facilitating settlement, narrowing the issues, reducing delays and minimizing litigation costs. As such, under case management, a judicial officer’s previous involvement in the action and the ability of that judicial officer to have a more thorough understanding of the context of any particular proceeding is a benefit of, and not a detriment to, case management.

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

[25] Case management contemplates that a case management master or judge may take into account in subsequent motions decisions and reasons on factual and legal issues decided during the course of managing the proceeding. Doing so cannot give rise to an apprehension of bias sufficient to disqualify the judge.

Thus the context within which this recusal motion takes place presumes a reasonable person informed of the presumption of judicial impartiality, the goals of our civil justice system, the role of case management in effecting the culture shift directed by Hryniak, and the role of a case management master.

This is essentially the test applied by Master Short on the recusal motion, and he was correct in applying this test.

Issue #3: Did Duca Financial, by delay, waive the right to bring a recusal motion?

[22] TNT.CA submits that Duca Financial waived its right to bring the recusal motion through delay. As held by the Divisional Court in Sos-Save Our St. Clair Inc. v. Toronto (City), at para. 35:

The principle of waiver has been expressed as follows:

. . . a party may waive his objections to a decision-maker who would otherwise be disqualified on grounds of bias. Objection is generally deemed to have been waived if the party or his legal representative knew of the disqualification and acquiesced in the proceedings by failing to take objection at the earliest practicable opportunity. [Citations omitted.]

[23] TNT.CA notes that the question of recusal had originally been raised by Duca Financial on March 10, and the master refused. None of the grounds for recusal raised here occurred after that date. Moreover, TNT.CA argues that by entering a consent timetable on April 22, 2016 which scheduled the motion to set aside the Dismissal Order before Master Short on July 20, Duca Financial waived any right to seek recusal for events prior to April 22, 2016.

[24] I do not agree that this appeal should be dismissed on the grounds of waiver or delay alone. Given the seriousness of such an allegation, “the delay principle should not be developed in a fashion that would require a party to immediately bring on such an application after the first occasion when a decision is made that is counter to their interests,” and “[i]t may be that only after a sufficient length of time passes, and a series of decisions are made, that the foundation for a reasonable apprehension of bias will become evident.”(Thyssenkrupp Elevator (Canada) Ltd. v. 1147335 Ontario Inc., 2012 ONSC 4139 (Ont. Div. Ct.), at paras. 20-21).

[25] Although I do not give effect to this ground, I am concerned that Duca Financial chose not to bring the recusal motion until July 14, when the full day motion to set aside the Dismissal Order was set for July 20, and the events cited in support of recusal all happened by March 10.

Issue #4: Did the Master’s actions or rulings prior to the hearing of the recusal motion give rise to a reasonable apprehension of bias?

[26] I turn now to address the key allegations of reasonable apprehension of bias advanced in the Notice of Motion, Notice of Appeal, factum and oral argument.

(6) Allegation #1: The “Unsworn Narrative”

[27] The first allegation is that by inviting the self-represented party, Mr. Smith, to make comments on the December 16, 2015 attendance where the motion was adjourned, that the Master “seems to have accepted and relied on an unsworn narrative proffered by the Respondent Smith, in the absence of any proper evidence before the Court, in making interim orders.” Duca Financial relies on the affidavit evidence of its employee, Mr. Sergiu Cosmin, which is entirely based on information and belief. Mr. Cosmin, based on information provided by his counsel Mr. Alli, provided evidence that at the motion date on December 16, “Master Short permitted Steve Smith, the individual Plaintiff and owner of the Plaintiff Company, to address the court at length, providing his own unsworn narrative connected to his dismissed action and the 2008 power of sale, and in the absence of any actual admissible evidence filed with the Court.” The direct affidavit evidence of Steve Smith, which I accept, is that he represented himself at this appearance, and contrary to the assertion of Mr. Cosmin, he was invited by Master Short to make brief submissions, and did so.

[28] Parties make submissions during case conferences and attendances; self-represented parties may make statements. There is no more detail in the evidence as to the content of the “unsworn narrative”. Mr. Cosmin’s affidavit states “we cannot know for certain the weight any evidence or the unsworn statements of Mr. Smith will have with the Court.” Given the absence of details as to exactly what was said, and the strong presumption of judicial impartiality, the evidence upon which Duca Financial relies amounts to little more than an “allegation” or “suspicion”.

[29] There is no decision to which Duca Financial can point to that demonstrates, on a balance of probabilities, the content of the “unsworn narrative” and how the “unsworn narrative” was then or later used as evidence. There is no evidence that on the basis of brief submissions by Mr. Smith on December 16, 2015, or later comments, that the Master’s mind would be closed, or that he would not be capable of being persuaded on the evidence on the motion to set aside the Dismissal Order. Duca Financial has not met the evidentiary burden and onus of proof to establish a real likelihood or probability of bias on the basis of this allegation.

[30] Reasonable apprehension of bias must be decided in context. Master Short was case managing the proceedings, commencing on December 16, whether in a formal or informal sense. It was clear that there were a number of matters being heard in Newmarket, Richmond Hill and Toronto, with possible appeals, all involving or relating to the same alleged improvident sale and alleged failure to account. In the context of the costs motion then before him, allegations of monies withheld may well have been relevant. By January, 2016, Master Short was informed that TNT.CA would be bringing a motion to set aside the registrar’s Dismissal Order, and he was then faced with case managing the two proceedings involving similar facts and issues including an alleged failure to account.

(7) Allegation #2: Production Order

[31] It is in the context of this case management function that the other allegations of bias must be evaluated. The Master made a production order for an accounting in January 2016. That order was not appealed, nor was it complied with. The affidavit of Mr. Cosmin states:

Master Short has taken a very inquisitorial approach, asking specific questions and making orders for the production of documents related to the Plaintiffs’ dismissed 2009 action. The directions and orders provided by Master Short had nothing to do with determining the cost award and the Duca motion before him.

[32] I note that this paragraph in the affidavit again lacks detail as to the “inquisitorial approach”. Moreover, the affidavit evidence on this point draws legal conclusions relating to the relevance of the production order. Duca Financial is speculating, without an adequate evidentiary foundation to establish a reasonable apprehension of bias claim. If Duca Financial is now asserting a lack of relevance or lack of jurisdiction, that matter should have been the subject of an appeal. There was no appeal from the production order.

[33] This allegation must be assessed from the perspective of the reasonable person, cognizant of case management functions and approaches. The Master was entitled to consider what would be the most efficient use of the court’s time to effect the just, most expeditious and least expensive determination of the matter on its merits, as he noted in his reasons. TNT.CA submits that in making the production order, the Master was entitled to consider, in the context of Duca Financial’s costs motion and TNT.CA’s intended motion to set aside the Registrar’s Dismissal Order:

[W]hether any possible entitlement by [TNT.CA] to money from [Duca Financial] at some time in the future could affect the quantum or timing of payment of any award of costs, whether any motion to set aside should proceed before any motion respecting costs of the action, and what documentation might have to be provided by either party in order to have a meaningful hearing of those matters.

[34] The evidence also establishes that in the conference call, Mr. Bak, one of Duca Financial’s lawyers, volunteered that Duca Financial was putting together an accounting. In this context, the production order is entirely consistent with the Master’s case management functions, and the two motions he anticipated managing. Duca Financial has not met the burden of establishing a real likelihood or probability of reasonable apprehension of bias from an informed person on the basis of this allegation.

(8) Allegation #3: Master Short “essentially ordered” TNT.CA to bring the motion to set aside the Dismissal Order

[35] In the Notice of Appeal, Duca Financial alleges that “[t]he learned Master essentially ordered the Respondents to bring their motion to set aside the Dismissal Order.” The affidavit of Mr. Cosmin states, on information provided by the lawyer Mr. Alli, that Master Short had consistently indicated a motion to set aside the dismissal order may be forthcoming; that TNT.CA had not indicated that it would bring the motion to set aside the Dismissal Order until February 26, “and it was still prompted by Master Short.” The direct evidence of Mr. Smith in his affidavit, which I accept, contradicts this assertion. He states that:

Mr. Cosmin and Mr. Alli have suggested that Master Short was the impetus for a motion to set aside the Registrar’s dismissal order. This is simply not true. During the conference telephone call on January 14, 2016, I asserted that in the face of the Defendant’s motion, I would be seeking to set aside the Registrar’s dismissal order.

[36] The evidence indicates that on February 26, the Master set a timetable for TNT.CA to bring its motion, failing which TNT.CA would not be allowed to bring the motion.

[37] There is no evidentiary basis for the allegation that Master Short “effectively ordered” TNT.CA to bring the motion to set aside the Dismissal Order, and no basis for a finding of a reasonable apprehension of bias in an informed reasonable person.

(9) Allegation #4: Master Short functus as of March 9th

[38] Another ground for a reasonable apprehension of bias advanced by Duca Financial is that on March 10 in a teleconference, Master Short made a further order setting a timetable for TNT.CA’s motion to set aside the Dismissal Order, notwithstanding that Duca Financial abandoned its costs motion on March 9th. Of note, the March 10th case conference was scheduled on February 26, and the purpose was to schedule the TNT.CA motion to set aside the Registrar’s Dismissal Order. The sole order resulting from the March 10, 2016 case conference was to set dates for TNT.CA to bring its motion to set aside the Registrar’s Dismissal Order. Related allegations about the Master’s inquiries “into a dismissed action on the back of a motion properly before the Court” fall into this same category.

[39] Duca Financial argued at length that the Master was functus since its motion had been withdrawn, and no other motion was before the Court on March 10. This falls far short of creating a reasonable apprehension of bias as evaluated from the objective perspective of an informed reasonable person with an understanding of case management and principles of proportionality. Case management is a fluid thing; parties advance and abandon motions, reconstitute proceedings, and a good case manager helps keep matters moving. The concept that the Master could not set a schedule for TNT.CA’s motion because the master was functus simply does not respond to real world realities. In setting a schedule for a motion that TNT.CA had been discussing since January, the Master was simply exercising good case management over parties which up to this point had been engaging many court resources.

[40] On this appeal, Duca Financial sought to argue that the Master lacked jurisdiction to make the March 10 order setting a timetable for the TNT.CA motion, and erred as a matter of law. However, Duca Financial did not appeal the interlocutory order setting the timetable within the seven days required in the time set out in Rule 62.01(2). It was raised for the first time in the July 14 motion, and then only as an allegation relating to reasonable apprehension of bias on the recusal motion, rather than a legal error of jurisdiction. As such, the matter is not properly raised on this appeal and I give no effect to the argument.

(10) Allegation #5: Standard Charge Terms and concerns regarding evidence relied on by Duca Financial

[41] As noted in paragraph 18 above, the evidence upon which the moving party relies is critical in a judicial recusal motion:

• The burden of proof rests on the party alleging that the conduct of a judicial officer raises a reasonable apprehension of bias, on the basis of “cogent evidence”;
• Allegations alone, or suspicions, are insufficient; and
• The inquiry is “highly fact-specific”, and the context and particular circumstances are of “supreme importance.”

[42] Duca Financial relies on the affidavit of Mr. Cosmin, Manager of Special Accounts with Duca Financial. Mr. Cosmin’s affidavit states that it is based on information and belief as to the details of the proceedings before Master Short provided by Duca Financial’s two lawyers, David Alli and Anthony Bak. The relevant paragraph states:

Further, during a teleconference on March 10, 2016, Master Short made reference to a Standard Charge Term document that was not provided as part of any Record before the Court as it was not contained in our Motion Record and the opposing party failed to file any Responding Record. Attached hereto….is a copy of Mr. Alli’s redacted typed notes from the teleconference.

[43] The affidavit does not set out information, or belief, as to the accuracy of the notes, nor any evidence as to when the notes were taken, whether they were verbatim or not, or whether changes had been made since the time of the teleconference and their production in the affidavit. The notes are double hearsay, and fall far short of the type of cogent evidence that is required on a recusal motion. Despite the fact that Mr. Alli swore an affidavit in an earlier motion, and was cross-examined on that motion, he did not swear an affidavit on the recusal motion. There was no evidence that he was not available to provide an affidavit for the recusal motion.

[44] It is important to note that Duca Financial, in its Statement of Defence contained in its Motion Record on its December 16 costs motion, had specifically pleaded paragraph 9 of the Standard Charge Terms as follows:

Duca further relies on paragraph 9 of Standard Charge Terms No. 200033 incorporated by reference in the Mortgage. Until the original mortgage debt is paid in full, Duca is not obligated to provide any funds or to further account for same to the plaintiffs. Duca is not obliged to pay out money to the plaintiffs that have not been paid to Duca.

[45] Given my concerns with the reliability of the appended double hearsay notes, and the lack of specificity in the affidavit beyond the statement that Master Short made reference to a document that was specifically pleaded by Duca Financial, there is no evidence that could establish on a balance of probabilities that the Master obtained or was relying on a document not filed before him as evidence in making his decisions. There is thus no basis for a finding that a reference to the Standard Charge Terms would raise a reasonable apprehension of bias in an informed reasonable person.

[46] Given the seriousness of the allegations, the clear requirement for cogent evidence, and the burden on the moving party, I caution counsel that relying on affidavit evidence based on information and belief on contentious issues, while allowed on motions under the Rules, may not be sufficient to support a reasonable apprehension of bias claim.

(11) Other Allegations

[47] There are other comments which are raised as indicative of bias, relating to the “inquisitorial” nature of the proceedings before Master Short, and questions he posed in relation to the dismissed proceeding. Counsel should be aware that effective case management often requires “inquisitorial” proceedings. Good case management requires active participation, probing questions, and other tools to move clients and counsel forward. I have reviewed all the objections raised, both individually and collectively, from the perspective of the informed reasonable person with a knowledge of judicial impartiality, case management and proportionality, considering all the evidence, and conclude that the evidence falls far short of establishing a reasonable apprehension of bias.

Issue #5: Allegations Regarding Comments by Master Short at the Hearing

[48] Duca Financial raises additional issues for the first time on appeal, based on allegations relating to comments or questions made by Master Short at the motion itself. I will dispose of these briefly. The comments or questions relied on as evidence of reasonable apprehension of bias by Duca Financial are all comments or questions of the type judges and masters ask during oral argument, to clarify, challenge or explain. That is the role of a judge or master hearing a motion. I find no reasonable apprehension of bias based on the Master’s comments at the hearing of the recusal motion. Duca Financial has not met the burden of establishing that any of these comments, or the comments taken together, would raise a reasonable apprehension of bias in an informed reasonable person.

Disposition and Costs

[49] The appeal is dismissed.

[50] The fixing of costs is a discretionary decision under s.131 of the Courts of Justice Act. That discretion is generally to be exercised in accordance with the factors listed in Rule 57.01 of the Rules of Civil Procedure. Overall, the court is required to consider what is “fair and reasonable” in fixing costs with a view to balancing compensation of the successful party with the goal of fostering access to justice: Boucher v. Public Accountants Council (Ontario), (2004), 71 O.R. (3d) 291 (Ont. C.A.), at paras 26, 37.

[51] The TNT.CA parties were successful on the motion and on the appeal. They note in their costs outline that the appeal is in respect of a master’s decision to not recuse himself and as such, the costs may be characterized as thrown away. The TNT.CA costs outline is substantially lower than the Duca Financial bill of costs, and thus well within the expectations of the losing party.

[52] Having considered the relevant principles and factors outlined in Rule 57.01, I order that costs in the amount of $5,000.00 on a partial indemnity basis, $2,500 for the motion and $2,500 for the appeal, be fixed and payable by Duca Financial to the TNT.CA parties within 30 days.

Kristjanson J. Released: October 7, 2016