CITATION: Morse Shannon v. Fancy, 2016 ONSC 7574

COURT FILE NO.: CV-15-523815

CV-14-516312

DATE: 20161206

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Morse Shannon LLP, Plaintiff

AND:

Fancy Barristers P.C., Hassan A. Fancy, Defendants

BEFORE: Madam Justice Darla A. Wilson

COUNSEL: Jerome R. Morse and David Trafford, Counsel for the Plaintiff

No-one appearing for the Defendants

HEARD: 30 November 2016

ENDORSEMENT

[1] The Defendants brought a motion seeking that I recuse myself as Case Management judge on these two actions. Initially, there were four matters: two applications seeking charging orders in personal injury actions; and these two actions seeking determination of the quantum of fees and disbursements the Plaintiff alleges it is owed pursuant to agency agreements between Morse Shannon and the Defendant Hassan Fancy [“Fancy”].

Background

[2] In order to put the recusal motion in context, it is necessary to understand the history of these matters. Briefly put, Mr. Fancy is a lawyer who practises in the area of personal injury on behalf of plaintiffs. He was retained in two matters on behalf of minors: an action arising from a motor vehicle accident; and a claim in medical negligence. Pursuant to an agency agreement, Mr. Fancy retained the Plaintiff law firm Morse Shannon [“MS”] and specifically Jerome Morse [“Morse”] to assist him with the management of the cases. These agency agreements were eventually terminated by Mr. Fancy. Morse claims he did work on these files, incurred both time and disbursements and was not paid by Mr. Fancy and that no undertaking was made to pay the accounts out of any settlement proceeds.

[3] As a result, MS brought two applications seeking charging orders. Two actions were brought as well seeking payment of the disbursements and declarations of entitlement to certain amounts of fees.

[4] Mr. Morse wrote to Regional Senior Justice Morawetz on November 26, 2015 requesting the matters be case managed. Counsel for Mr. Fancy objected to the request and consequently, Justice McEwen appointed me to convene a teleconference to determine if case management was appropriate. I conducted a case conference on January 8, 2016 and determined that there had been delay in moving forward and that the matters were properly placed in case management and I released an endorsement to that effect.

[5] I set a timetable for the applications, with the return date set for May 31, 2016. I also set a timetable for the steps in the two actions. I conducted a further case conference on February 22, 2016 dealing with the timing of cross examinations and the objection of Mr. Fancy to Mr. Morse acting for MS.

[6] I heard the applications on May 31 and by way of written reasons released June 27, 2016, I granted MS a charging order on the proceeds of any settlement or judgment in the underlying actions, subject to any order made by a judge approving the settlement pursuant to Rule 7, as there are minor plaintiffs. Mr. Fancy delivered a notice of appeal of my decision and I am advised the return date for that is January 23, 2017.

[7] I convened a further teleconference on August 17, 2016 as counsel could not agree on the form of the order arising from my reasons. I delivered an endorsement on that day dealing with the form of the order. In particular, I noted that my decision granted a charging order on future settlement funds paid but did not determine quantum because that relief was not sought in the applications.

[8] Following the August teleconference, I had no further contact with Mr. Fancy’s counsel. On September 1, 2016, Mr. Fancy sent a letter to me with a copy to Regional Senior Justice Morawetz in which he criticized my reasons on the Applications and he stated that in his view I was biased and he requested that I recuse myself as the case management judge on the actions. He also indicated that the actions were an abuse of process because of the duplicity of proceedings. I convened another case conference on September 12 in which I ordered that if Mr. Fancy wished me to recuse myself, a motion must be brought on a proper record before me.

[9] Initially, Mr. Fancy took the position that it was improper for me to hear the recusal motion. The case law, however, is settled that a motion for recusal of a judge is to be made to the judge being asked to recuse himself or herself: Arsenault-Cameron v. Prince Edward Island, 1999 CanLII 641 (SCC), [1999] 3 S.C.R. 851. Thus, the date of November 30, 2016 was fixed for the recusal motion at the case conference conducted on September 12, 2016 and a timetable was set for delivery of materials. Mr. Fancy served his motion record and Mr. Morse delivered his responding motion materials.

[10] Following the September 12 case conference, Mr. Fancy sent a letter to me confirming his view that I was biased, that the actions brought by MS were an abuse of process, and setting out various reasons he believed my decision on the Applications was wrong. In that letter, he stated he would tender evidence concerning a break and enter that allegedly occurred involving a client of his when I was a lawyer.

[11] On October 3, I sent a letter to both Mr. Morse and Mr. Fancy confirming the motion for recusal was set for November 30 and I requested that counsel agree on a date for the Defendants’ motion to strike for the alleged abuse of process. Mr. Fancy sent a number of letters to me after that which repeated his allegations of bias and impropriety on my part.

[12] In a letter dated October 7, Mr. Fancy confirmed he would be proceeding with the recusal motion. On October 25, Mr. Fancy wrote to Justice McEwen making a number of complaints about me, including that I was biased and that my decision on the applications was incorrect. Further, he repeated his allegations that when I was a lawyer, I was “connected to the aggressive surveillance” of Mr. Fancy’s client through a break-in. Mr. Fancy also expressed the view that I did not have authority to case manage the two applications and the two actions.

[13] Justice McEwen responded to Mr. Fancy’s letter confirming I was appointed as the case management judge and he asked that Mr. Fancy not contact him again in violation of Rule 1.09 of the Rules. Mr. Fancy sent a variety of other correspondence to my attention expressing the same allegations.

[14] By letter dated November 8, I confirmed that the recusal motion would be proceeding before me on November 30. In correspondence dated November 25, Mr. Fancy advised that he would not attend to argue the recusal motion, asserting it was not properly scheduled and he advised that the issues he raised would be addressed by the Court of Appeal and the Judicial Council. Mr. Fancy stated that I should not be a judge on the Superior Court of Justice.

[15] I wrote to counsel on November 28 to confirm that the motion date was in the schedule and would be proceeding November 30. On November 29, Mr. Fancy wrote to advise that he believed the recusal motion ought not to proceed but alternatively, he requested the motion be adjourned sine die pending the Court of Appeal disposition of his appeal of my reasons on the applications. Later that same day, Mr. Fancy wrote to advise he would not attend the hearing of his motion to recuse on November 30.

[16] Mr. Morse, the solicitor for the Plaintiff, was in attendance and wished to proceed. I therefore heard submissions from Mr. Morse. These are my reasons on the recusal motion brought by the Defendants.

Analysis

[17] In his written material contained in the Defendants’ motion record, Mr. Fancy argues that I ought to recuse myself from continuing to be the case management judge because of bias and he cites three main reasons: that my decision on the applications was wrong; that I failed to deal with the fact that MS has launched both applications and claims for the same relief; and that when I was a lawyer more than ten years ago, I was connected with a crime, specifically, a break and enter involving Mr. Fancy’s client.

[18] The test for bias was considered in Authorson (Litigation Guardian of) v. Canada (Attorney General), 2002 CarwsellOnt 1724 (Div. Ct.). Following the reasoning of the Supreme Court of Canada in Committee for Justice & Liberty v. Canada (National Energy Board) 1976 CanLII 2 (SCC), [1978] 1 S.C.R. 369, the Divisional Court stated,

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. …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.

[19] The law is clear that there is a strong presumption of judicial integrity and impartiality. An accusation of bias against a judge is a serious allegation and must be treated accordingly. The test is a stringent one. As Lord Denning M.R. noted in R. v. London Rent Assessment Panel Committee [1969] 1 Q.B. 577 (Eng. C.A.),

…there must appear to b e a real likelihood of bias. Surmise or conjecture is not enough…There must be circumstances from which a reasonable man would think it likely or probable that the justice…would, or did, favour one side unfairly at the expense of the other.

[20] In Marchand (Litigation Guardian of) v. Public General Hospital Society of Chatham (2000), 2000 CanLII 16946 (ON CA), 51 O.R. (3d) 97 (C.A.) the Court stated,

The threshold for a finding of actual or apprehended bias is high. Courts presume that judges will carry out their oath of office. Thus, to make out an allegation of judicial bias requires cogent evidence. Suspicion is not enough. The threshold is high because a finding of bias calls into question not just the personal integrity of the judge but the integrity of the entire administration of justice.

[21] In Beard Winter LLP v. Shekdar, 2016 ONCA 493, Justice Doherty dealt with a claim of bias and offered some instruction into how a judge ought to approach a request for recusal. He stated,

A judge must give careful consideration to any claim that he should disqualify himself on account of bias or a reasonable apprehension of bias. In my view, a judge is best advised to remove himself if there is any air of reality to a bias claim …the personal opinion of the losing litigant as to the quality and correctness of the court’s decision counts for little when assessing a partiality claim…

[22] I will deal with each allegation in turn.

Incorrectness of Decision

[23] It is significant, in my view, that Mr. Fancy did not raise the issue of my alleged bias when I was appointed Case Management judge in December 2015. It was only after the hearing of the applications and the delivery of my reasons that Mr. Fancy alleged I ought to recuse myself from these cases. He has authored numerous letters in which he has set out his views of the incorrectness of my decision and he has advised me that the Court of Appeal will hear his appeal in January, 2017. Mr. Fancy of course is entitled to have an appeal court rule on the decision I delivered and the law is clear that the fact that a judge’s decision might be overturned is not sufficient grounds for the removal of the judge.

[24] I am the case management judge and in that capacity, I am tasked with dealing with motions and other interlocutory procedural steps to ensure these matters move along in an efficient fashion towards resolution or trial. As a necessary result, I am familiar with the history of the litigation which generally is perceived to be a benefit to the parties. The fact that I granted charging orders on the two applications and did not accept the position advanced by Mr. Fancy is of no particular moment. As was noted by the court in Mother of God v. Bakolis [2005] O.J. No. 1638 (S.C.J.),

parties must be discouraged from seeking to recuse members of the Bench from hearing matters on the basis that they fear they will lose, unless there is a real and supportable basis for asserting that they have a reasonable apprehension of bias. To approach these issues differently would only encourage judge and master shopping.

[25] As I have noted earlier in these reasons, Mr. Fancy has sent lengthy correspondence setting out his views of the incorrectness of my decision on the applications. He will have the opportunity to make those submissions in the Court of Appeal, which is the proper forum for the airing and consideration of his submissions. It is not a ground for me to recuse myself as case management judge.

Duplicity of Proceedings Allegation

[26] Mr. Fancy complains that it is an abuse of process for MS to bring two applications as well as two claims for essentially the same relief. The record is clear that at no point did Mr. Fancy bring a motion to strike the actions as an abuse of process nor did he advise that it was his intention to do so, even when I was setting a timetable for the various steps in the proceeding. At no time did he request that the timetables include a motion to strike the claims because of duplicity of proceedings. At the hearing of the Applications, there was no submission made by Mr. Fancy’s counsel that the actions were an abuse of process.

[27] The first time Mr. Fancy indicated that he viewed the actions as duplicative was in his letter to me of September 1, 2016, when he mentioned for the first time as well that he wished me to recuse myself as case management judge. In subsequent correspondence, Mr. Fancy indicated that he never sought to schedule a motion to strike the actions as being duplicative because he did not expect that charging orders would be granted in the applications. A failure to rule on a motion that was never brought cannot support an allegation of judicial bias.

Allegation of Involvement in Criminal Activity

[28] In his letter of September 12, 2016, Mr. Fancy accused me of being involved in criminal activity when I was a lawyer. Specifically, he advised that he had evidence which he would tender to the court that I was involved in a break and enter involving his client prior to my appointment to the Bench. Mr. Fancy repeated these allegations in his October 25, 2016 letter to Justice McEwen in which he took the position that I had never been properly appointed the case management judge of these matters. Mr. Fancy stated, “Before Justice Wilson’s appointment, she was linked to a crime (a break and enter) under the Criminal Code by our firm in respect of our client Avi Sharma and his proceeding in which Justice Wilson was an insurance defense lawyer. Her Honor [sic] was connected to the aggressive surveillance of our client through a break-in….” This is a serious allegation to make and must be addressed.

[29] The affidavit of Todd McCarthy sworn November 4, 2016 makes it clear that the allegation made by Mr. Fancy of my involvement in a break and enter at his client’s premises arose from a letter Mr. Fancy sent inquiring whether I or the solicitor for the co-defendant (Mr. McCarthy) had retained an investigator to conduct surveillance on his client who was the plaintiff in a personal injury action. In his affidavit, Mr. McCarthy deposes that both he and I responded to Mr. Fancy’s letter by confirming that neither of us had retained anyone to conduct surveillance. As a result, there is absolutely no evidence in the motion record to substantiate Mr. Fancy’s serious allegations. At best, in 2005, Mr. Fancy inquired whether a client I represented at that time had undertaken surveillance on his client which might have resulted in a trespass to his client’s property. However, that suggestion was fully answered in the negative at that time and for Mr. Fancy to now raise this issue as evidence of criminal activity on my part which requires my recusing myself from these actions is as Justice Doherty indicated “to give credence to a most objectionable tactic”. To accede to Mr. Fancy’s request that I recuse myself would bring the administration of justice into disrepute. There is no evidence put forth by the Defendants that supports a finding of a reasonable apprehension of bias or actual bias.

[30] One wonders why, given that Mr. Fancy was aware of my involvement in the case dating back to 2005, if he honestly believed I was biased and ought not to preside over these matters, the request for recusal was not made at the outset when Justice McEwen requested I case manage these matters.

[31] In my view, there is no evidence in the record to support a finding of bias; there is no air of reality to Mr. Fancy’s accusations. A reasonable person would not conclude on a balance of probabilities that I am biased, unable to act impartially and ought to be removed as case management judge. I agree with the sentiments expressed by Justice Doherty in the Beard Winter case where he stated,

Judges do the administration of justice a disservice by simply yielding to entirely unreasonable and unsubstantiated recusal demands. Litigants are not entitled to pick their judge. They are not entitled to effectively eliminate judges randomly assigned to their case by raising specious partiality claims against those judges. To step aside in the face of a specious bias claim is to give credence to a most objectionable tactic.

The allegations made by Mr. Fancy are indeed specious; they are devoid of merit and only arose after an unfavourable decision on the applications. To allow him to end my involvement as case management judge would be to acknowledge there is some merit to the allegations when there is none. As a result, the motion brought by Mr. Fancy for recusal in actions CV-15-523815 and CV-14-516312 is dismissed.

Costs

[32] Mr. Morse asks for costs on a full indemnity scale in light of the baseless accusations made by Mr. Fancy. He requests fees of $26,277.50 plus disbursements of $1,565.50 and taxes for a total sum of $32,681.83. Alternatively, on a substantial indemnity scale he asks for fees of $23,649.75 plus disbursements and taxes for a total amount of $29,586.40.

[33] In my view, this motion was devoid of merit and ought not to have been brought. It is clear to me the motion was launched as a result of Mr. Fancy’s dissatisfaction with my decision on the applications, not because there was a genuine concern about my ability to deal with the matters on an impartial basis. To allege that a member of the judiciary was involved in criminal activity is a very serious allegation, as is the suggestion that a judge is biased. Motions to recuse a judge ought to be brought in only the rarest of cases on a strong evidentiary record. In the case before me, there is not a scintilla of evidence to support any of the allegations Mr. Fancy has made. Rather, the genesis of this motion lies in Mr. Fancy’s dissatisfaction with the decision rendered by me on the applications.

[34] Costs are in the discretion of the court. Rule 57.01 provides a number of factors that can be considered when fixing costs. One of the factors is the conduct of any party that tended to lengthen unnecessarily the proceeding. The motion was ill conceived and ought not to have been brought. Fancy sent a deluge of letters to my attention without consent and in contravention of Rule 1.09 of the Rules of Civil Procedure, which Mr. Morse had to respond to. Furthermore, after confirmation that it was proceeding November 30, Mr. Fancy failed to attend the hearing of his own motion.

[35] Given the nature of the relief sought, Mr. Morse had to prepare materials including supplementary affidavits and he attended to argue the motion. Mr. Fancy is an officer of the court and has been certified as a specialist in civil litigation; he ought to know better than to engage in such behaviour. In these circumstances, in my view, this is a case where a higher scale of costs than the usual partial indemnity scale is warranted. Mr. Morse is a senior member of the Bar, having been called in 1981. His hourly rate is reasonable, as is that of his associate Mr. Trafford who was called in 2015. The number of hours is reasonable as are the disbursements. I fix the costs of the motion in the sum of $32,681.83 payable by the Defendant Mr. Fancy to MS within 30 days of the date of the release of these reasons.

D.A. Wilson J.

Date: December 6, 2016