Court File and Parties

COURT FILE NO.: CR-15-10000-249-0000 DATE: 2017-04-11

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN Applicant – and – John D’Souza and Peter D’Gama Respondents

Counsel: D. Boulet and M. Lockner, for the Applicant K. Sharma, for the Respondent D’Souza R. Paterson, for the Respondent D’Gama B. Gover for Justice M.A. Penny

HEARD at Toronto: March 30, 2017

REASONS ON APPLICATION

A.D. KURKE, J.

OVERVIEW

[1] The respondents face charges relating to an allegedly fake judgment dated June 19, 2012, and forged signature of Justice Michael A. Penny, a sitting judge of the Ontario Superior Court of Justice. This judgment was deployed in a civil suit between the respondents and various defendants until it was set aside by Justice Penny on July 31, 2012. On December 17, 2012, the parties argued costs for the motion to set aside. The defendants sought full indemnity costs on the basis that the judgment was a fake. Justice Penny ordered costs against the two accused in a costs endorsement released January 7, 2013.

[2] The applicant Crown applies to admit excerpts from that January 7, 2013 costs endorsement, Joseph v. Linton, [2013] O.J. No. 180, 2013 ONSC 70, as evidence of the facts stated therein, pursuant to the principled exception to the hearsay rule. According to the applicant, the facts found by Justice Penny in the endorsement are reliable. They are also necessary, as judges are neither compellable nor competent witnesses. The respondents resist the substantive use of the chosen paragraphs of the endorsement in the fashion proposed by the applicant, arguing that such evidence would render the trial unfair. Counsel to Justice Penny takes no position on the application, but argues that judges, though they may not be compellable, in some circumstances are competent, in Ontario at least.

[3] For the following reasons, the application is allowed in part. The Crown may put into evidence at the respondents’ trial portions of the January 7, 2013, endorsement. However, some of what the Crown seeks to introduce must remain inadmissible as insufficiently reliable or as overly prejudicial.

BACKGROUND

[4] The two accused persons, John D’Souza, a licensed paralegal, and Peter D’Gama, a real estate agent, as plaintiffs initiated a lawsuit in 2010 involving a real estate transaction. By 2012, there were various defendants, including Krystyna Woldanska and her daughter Agnieszka Woldanska, who had been noted in default.

[5] The Woldanskas had a motion pending to set aside their noting in default, when in July 2012 Marek Tufman, counsel to the two Woldanskas, received a demand letter from D’Gama. Appended to the letter was a supposed default judgment (the “Judgment”) of the Honourable Justice M.A. Penny, of the Superior Court of Justice, dated June 19, 2012 and purporting to award $108,000 under various headings of damages to the respondents, and $5,000 costs. The Judgment also made findings relating to the Woldanskas and four other defendants in the case, supporting a declaration that they conspired to defraud the respondents. The Judgment indicated that it had been made ex parte, on the basis of submissions on June 19, 2012.

[6] Another copy of the Judgment was sent to the Real Estate Commission of Ontario by D’Souza, attached to a complaint against Helena Pawlowska, a real estate agent and someone whose conduct was commented upon in the Judgment.

[7] Mr. Tufman brought a motion to set aside the Judgment, believing it to be fake. On July 31, 2012, on the motion brought by Mr. Tufman, and on consent of the accused, Justice Penny set aside the Judgment. Justice Penny remanded the matter to December 17, 2012, for costs submissions, for the two plaintiffs to consult counsel, and for the two plaintiffs to produce their original motion record and the original copy of the Judgment that they continued to maintain was genuine.

[8] On December 17, 2012, Mr. Tufman sought full indemnity for costs, asserting that the Judgment was a fake. All parties produced written materials. The original Judgment was never produced. The full costs endorsement of Justice Penny is reproduced in its published form (Joseph v. Linton, [2013] O.J. No. 180, 2013 ONSC 70) as Appendix “A” to this ruling. In the course of awarding full indemnity costs to various defendants, Justice Penny set out various observations and findings of his own, including:

a. A procedural background to the motion (paras. 1-5); b. Indications that the plaintiffs had been unable to locate the original motion record or Judgment, which, according to Penny J.’s usual practice, should have been signed in blue ink. The plaintiffs produced a “copy” of the motion record purportedly from copies of documents on their computer, including a 53-page affidavit of D’Gama and 50 exhibits (paras. 13-15); c. The contents of Penny J.’s endorsement from July 31, 2012, setting out various unusual circumstances surrounding the claim that the plaintiffs had secured the Judgment ex parte (para. 18); and d. Findings: that the matter had never been before him, in person or in writing; he had never seen the motion record before he saw the plaintiffs’ “reconstructed” copy; he had never seen the plaintiffs prior to July 31, 2012; that he would never have signed the Judgment that had been set aside, given objectionable form and content that he itemized; and that, although the signature appeared to be his, he did not sign the June 19, 2012 Judgment (paras. 22-27).

[9] Although the endorsement contains many other points and matters, it is these paragraphs that the Crown seeks to adduce as evidence at the trial of the two plaintiffs, now accused, who have been committed to stand trial on charges of obstruct justice, utter forged document, and fraud over $5,000.

[10] At the hearing of this application, counsel to Justice Penny indicated, without objection from any party, that Justice Penny would respectfully decline to testify, if this court found him competent, but not compellable, to testify.

ISSUES

[11] There are two central issues to be determined on this application:

a. Is Justice Penny a compellable and/or competent witness? b. Do the proposed paragraphs from the January 7, 2013 costs endorsement of Justice Penny satisfy the principled exception to the hearsay rule?

Issue 1: Compellability and Competence

The Law

[12] There is strong authority for the proposition that judges are immune from testifying about the exercise of the judicial function, the grounds for their decisions, or about judicial proceedings in which they have been involved: see MacKeigan v. Hickman, [1989] S.C.J. No. 99, [1989] 2 S.C.R. 796, 1989 SCC 40, at paras. 63-65; R. v. Parente, [2009] O.J. No. 1639 (Sup. Ct.), at paras. 12, 16. If the reasons for judicial decisions are to be examined, that scrutiny will be applied by appellate courts using appellate procedures: MacKeigan, at paras. 33-34.

[13] It has been said that judicial immunity “exists not to keep judges from testifying in court, but to keep judges from having to explain their actions anywhere”: Nova Scotia Barristers’ Society v. Lyle Howe, 2016 NSBS 4, at para. 13. A demand for explanation threatens judicial independence, and the right of litigants to an unbiased and impartial adjudicator: R. v. Hahn, 2013 SKQB 295, 428 Sask. R. 61, at para. 33.

[14] On the other hand, judges are competent to testify, and could be compelled to testify about “collateral matters” or “collateral incidents”, that is, matters that may occur during a trial that have “no bearing whatsoever upon the trial”, are not part of a trial, or matters that are unrelated to a matter before a court but that happen to be witnessed by a judge: Re Clendenning and Board of Police Commissioners for City of Belleville, 1976 ONSC 696, 15 O.R. (2d) 97 (Div. Ct.), p. 102; Edwards v. Canada (Attorney General), 1999 ONSC 15109, 46 O.R. (3d) 447, at paras. 23-27.

[15] However, a judge may not even be compelled to testify about collateral matters if those collateral matters are “inextricably intertwined” with matters involving the exercise of the judge’s adjudicative function: Re Clendenning, at para. 15; Edwards, at para. 26. Similar reasoning informed the case of Hamalengwa v. Duncan, 2005 ONCA 33575, 202 O.A.C. 233, in which the striking of an action launched by a lawyer against a judge who had complained about the lawyer in a letter to the Law Society was upheld on the basis, among others, that (at para. 11):

The respondent’s letter to the Law Society, while not itself an adjudicative act, was closely and directly connected to his adjudication of the summary conviction charge before him and flowed from the important judicial function of protecting the administration of justice and criminal defendants from potential misconduct by lawyers. Whatever limits there may be on judicial immunity, in the circumstances of this case the respondent is protected by judicial immunity from civil action.

[16] There is authority that a judge is neither compellable nor competent to testify at all with respect to cases in which they were involved. In Kosko v. Bijimine, [2006] Q.J. No. 5354 (C.A.), the Quebec Court of Appeal stated the following rule and justification for it (at paras. 43-44):

43 Judges may not voluntarily waive this immunity and agree to testify. Immunity belongs neither to judges nor to the parties before them. Rather, it exists to protect the institution of the judiciary and the public’s confidence in it. Consequently, it may not be waived by either the judges or the parties.

44 Imagine for a moment the consequences if judges were to testify on cases on which they had worked. How could a credible judicial system function if judges, those neutral arbiters, could testify voluntarily or be compelled to testify, or if their testimony could be used by one party against another? The judicial institution and the underlying principles of independence and impartiality cannot permit judges – arbiters who must be, and be perceived to be, independent and impartial – to set aside their judicial reserve and testify on an aspect of a specific case over which they presided.

[17] Those who would advance Quebec’s position on this issue to hegemony in Ontario refer to the obiter comments of Martin J.A. in R. v. Moran, 1987 ONCA 124, 36 C.C.C. (3d) 225, at p. 244:

Because of the view I have taken, assuming that the search was unreasonable, that the admission of the evidence … could not bring the administration of justice into disrepute, it is unnecessary in this case to decide the question as to the compellability or competence of the justice of the peace to testify as to his mental processes in granting the warrant. Furthermore, the question was not fully argued before us. Accordingly, I expressly refrain from finally deciding this question. I do not wish, however, to be thought in any way to accept the proposition that the justice of the peace was compellable, or even competent, to testify as to his mental processes in deciding to grant the warrant.

[18] There is some authority that this passage implies the possibility of the adoption of such a position in Ontario: Parente, at para. 10. However, I view this passage more as an invitation to bring the issue before the Court in another case, as on its face it represents a refusal to even opine on the principle involved. In such circumstances, Ontario authorities continue to represent a less restrictive position on competence.

Analysis

[19] Given the focus of the law, the central issue for determination is whether Justice Penny, were he to testify, would be compelled to speak about either the exercise of his judicial function, or about matters inextricably intertwined with the exercise of his judicial function.

[20] On the proposed evidence of Justice Penny, he was not engaged in any judicial function involving the allegedly false Judgment that purports to bear his signature. It could arguably be said not to call into question Justice Penny’s exercise of judicial function for him to testify that he had never seen that Judgment before it was brought to his attention on the motion to set aside, and that he did not affix his signature to it.

[21] Rather, his potential evidence would appear to be of similar tenor to what his evidence would be if, say, he were called upon to testify about a forged signature on a cheque that had been stolen from his home, and that was presented as genuine for satisfaction at Justice Penny’s bank by an accused person unknown to Justice Penny.

[22] In Edwards v. Canada (Attorney General), 1999 ONSC 15109, 46 O.R. (3d) 447, Lamer C.J.C. had an in-chambers conversation in the presence of lawyers from the Department of Justice with a fearful witness during the course of her testimony in the David Milgaard reference in the Supreme Court of Canada. The purpose of the meeting was to calm the witness’s fears so that she would continue her testimony. The witness alleged afterwards that she had been promised police protection, and did not get it. She brought suit, and sought to compel the Chief Justice to testify about what had been promised in chambers. The question for determination was whether the Chief Justice was immune from testifying.

[23] The answer to the question fell to be determined by assessing whether the Chief Justice was performing a judicial function in chambers, as opposed to in the courtroom on the public record. In the result, Lax J. held that the Chief Justice was engaged in a judicial function, as the chambers meeting was linked to the courtroom testimony, and at para. 32: “[a]ny attempt to inquire into the chambers meeting would, in effect, amount to an inquiry about the deliberative process underlying the entire course of events. They are inextricably intertwined.” The Chief Justice could not be compelled to testify and his subpoena was quashed.

[24] Even if the simple recognition by Justice Penny that the fake Judgment and illegitimate signature were not his need have nothing to do with the exercise of any judicial function, Justice Penny became involved in this matter in the exercise of a judicial function. Although he may have had nothing to do with the creation or signing of the allegedly forged Judgment, Justice Penny was certainly involved in its setting aside, and in ordering full indemnity costs as a result of egregious misconduct by the plaintiffs. As judge, he received written materials, he heard submissions, he directed that parties take certain steps between the setting aside and the costs hearing. He issued a written, published endorsement on costs. These things were all done in the exercise of Justice Penny’s judicial function.

[25] In my view, the circumstances here resemble those in Edwards in broad outline. Any evidence that Justice Penny could give about the authorship of the Judgment and whether he had signed it or not is now inextricably intertwined with his deliberative process and exercise of judicial function in setting aside the Judgment, and in his determinations in the costs endorsement. Were Justice Penny to testify, he could face cross-examination not only on the simple questions of his denial of authorship of the Judgment and whether he signed it, but also about his reasoning process and adjudication in his setting aside of the Judgment and in his determinations about costs.

[26] Justice Penny is not compellable to testify at this criminal trial.

Issue 2: The principled exception to the hearsay rule

The law

[27] In the event that Justice Penny is not available to testify – and my decision above coupled with Justice Penny’s respectful refusal to voluntarily testify determines that he is not available – the Crown applies to put passages from Justice Penny’s costs endorsement in Joseph v. Linton before the trial court as evidence of their truth, pursuant to the principled exception to the hearsay rule.

[28] On this principle, hearsay may be admitted for its truth, provided that its admission is necessary, and it has sufficient indicia of reliability to make up for the inability to cross-examine a present witness under oath: R. v. Badgerow, 2014 ONCA 272, 119 O.R. (3d) 399, at paras. 96-102. Indeed, it is on the score of the inability to cross-examine that the respondents express their greatest concern.

[29] Given my finding that Justice Penny is not available to testify, there remains no other direct means of getting before the court Justice Penny’s own denial that he signed the document that purported to be his Judgment, but which was not. Justice Penny’s would certainly be the best evidence of the fact, and, quite frankly, in the absence of witnesses to, or admissions of, forgery, virtually the only possible witness to evidence that must be put before the court: R. v. O’Connor, 2002 ONCA 3540, 62 O.R. (3d) 263, at para. 57. In my view, it is necessary to use passages from Justice Penny’s costs endorsement to put essential evidence before the criminal court at trial.

[30] The inability of an accused person to test the quality of the evidence that is put before the court can affect the fairness of trial, thereby giving the presumptive inadmissibility of hearsay evidence, and the principled exception to that rule, a constitutional dimension: R. v. Khelawon, 2006 SCC 57, [2006] 2 S.C.R. 787, at paras. 3, 47; Badgerow, at para. 97. The most powerful tool for that testing in the adversary system has been said to be cross-examination, which can be effective in assessing a witness’ perception, memory, narration, and sincerity, and which has been described as essential for making full answer and defence: R. v. Baldree, 2013 SCC 35, [2013] 2 S.C.R. 520, at paras. 32, 44; Duong v. R., 2007 ONCA 68, 84 O.R. (3d) 515, at para. 22.

[31] Respondent D’Gama is sufficiently concerned about the loss of the ability to test the trial evidence through cross-examination that he posits: “[a]dmitting this Hearsay evidence into the trial is tantamount to a guilty plea on the part of the Respondents. It would also violate the Respondent’s right to make full answer and defence and the Respondent’s right to cross-examine” (Respondent D’Gama’s factum, at para. 6).

[32] However, it has been recognized that to demand the ability to cross-examine as an absolute precondition for admissibility of evidence would risk hobbling the truth-finding function of the trial: Badgerow, at para. 99; Khelawon, at paras. 42(d), 48. The development of the principled exception to the hearsay rule has accordingly looked for other markers of reliability to foster the truth-finding function of a trial while not compromising trial fairness.

[33] The reliability issue before this court on the Crown’s application is threshold reliability. Ultimate reliability will be a matter for the trier of fact, but threshold admissibility looks to the readily apparent trustworthiness of the contents of the hearsay statement or a consideration of its ability to be meaningfully tested and assessed by the trier on the totality of the evidence before the court, even in the absence of contemporaneous cross-examination. The determination at this point involves an assessment of whether there are sufficient indicia of reliability for the hearsay to be put before the trier of fact: Khelawon, at para. 3.

[34] The inquiry into indicia of reliability can consider the way the hearsay statement came about as a guarantee of the trustworthiness of the contents, or if other circumstances exist, such circumstantial guarantees of reliability as would permit the ultimate trier of fact to sufficiently assess the worth of the statement: Badgerow, at para. 99; Khelawon, at paras. 2, 62-64, 105. Such circumstances can include things that give reason to believe that the declarant did not misperceive the facts to which the statement relates, or misremember them, or unintentionally or intentionally seek to mislead: R. v. Khan, 1990 SCC 77, [1990] 2 S.C.R. 531, at p. 548; Baldree, at para. 32. Evidence that will ultimately be used before the trier of fact can be used during the threshold analysis to demonstrate threshold reliability through corroboration of the hearsay: Khelawon, at paras. 93-100.

[35] Nor do necessity and reliability end the inquiry. Even if the hearsay evidence satisfies the necessity and reliability criteria, the trial (or here, the application) judge retains a residual discretion to exclude the evidence if its prejudice exceeds its probative value, in order to ensure the fairness of the trial, and take into account other factors beyond simply necessity and reliability: Badgerow, at para. 100; Khelawon, at paras. 3, 49.

Reliability analysis

[36] The following factors vouchsafe the reliability of the statements made by Justice Penny in his costs endorsement:

a. Justice Penny is a sitting judge of the Superior Court of Justice of Ontario, and is bound by the oath of his office. The endorsement was a core judicial function. The absence of an oath in such a context is of much reduced concern, as a purpose of the judicial oath, like the testimonial oath, is to underscore to its maker the solemnity of the duty being undertaken: R. v. B. (K.G.), 1993 SCC 116, [1993] 1 S.C.R. 740, at pp. 789-91; Cojocaru v. British Columbia Women’s Hospital and Health Centre, 2013 SCC 30, [2013] 2 S.C.R. 357, at paras. 17, 27; b. This endorsement was written in order to decide an important issue between the parties: the costs to be awarded to the defendants on the motion to set aside the Judgment. This is more than simply a hand-scrawled costs endorsement, but rather is a carefully reasoned decision, composed and published after a hearing at which parties made submissions. The possibility of Justice Penny misremembering the evidence, misinterpreting his perceptions or being unintentionally misleading is minimal; c. Appeal was taken to Divisional Court by the accused persons from the decision of Justice Penny. That Court dismissed the appeal June 12, 2013, providing a circumstantial guarantee that Justice Penny performed his judicial functions properly in this case; d. Many of the statements that the Crown seeks to put into evidence at trial are simple declarations of fact about things observed by Justice Penny or in which he took part, that give a necessary context to the findings that the Crown particularly requires: the background to the proceedings; procedural issues; events that transpired or details observed at the motion to set aside; and the findings concerning the Judgment that was set aside and the plaintiffs. Those background facts themselves will assist in giving the trier of fact assistance in assessing the reliability of Justice Penny’s denial about signing the Judgment; e. On its own terms, Justice Penny had no familiarity with the plaintiffs, and no reason to be biased against them. In paragraph 25, Justice Penny noted: “Prior to July 31, 2012 [the date of the motion to set aside], I had never seen the plaintiffs before.” Justice Penny would have had no motive to mislead; f. Corroborating evidence exists that can be put before the jury to assist them in assigning weight to Justice Penny’s Judgment, including: i. The docket of Justice Penny’s courtroom on the date of the purported Judgment (June 19, 2012) does not include the action for the Judgment; ii. Business records of the “Complete Case History Report” from the Superior Court of Justice’s computerized file maintenance system does not reflect that the matter was before Justice Penny on June 19, 2012; iii. No original copy of the Judgment has ever been seen – only photocopies; iv. The fact that Justice Penny gave parties from July 31, 2012 to December 12, 2012 to allow them to provide evidence or information about the Judgment indicates that Justice Penny was seeking confirmatory evidence to ensure the accuracy of his decision, and that he did not want to make findings without having the benefit of the fullest possible record.

[37] Concerns about the loss of the opportunity for cross-examination of Justice Penny in the circumstances of this case are reduced by other factors.

[38] The accused persons were significant participants in the process leading up to the costs endorsement. They submitted material on the motion to set aside, and made oral argument. This input into the proceedings ensures that their point of view and concerns were not excluded from Justice Penny’s consideration.

[39] While Justice Penny’s evidence cannot be tested by cross-examination, the evidence from Justice Penny will not include any finding that the accused persons forged the signature on the Judgment. That evidence, on the submission of the Crown, is to come from other witnesses, who will be subject to cross-examination. The respondents’ concern, that the admission of the evidence from Justice Penny’s endorsement would be tantamount to a plea of guilt, is an exaggeration of the actual circumstances of the case.

[40] However, among the paragraphs of Justice Penny’s endorsement that the Crown seeks to introduce, there is a sentence that I find does not meet the standard of threshold reliability. In paragraph 18, which sets out Justice Penny’s endorsement from the motion to set aside on July 31, 2012, there is the sentence: “There is apparently no copy to be found in the court file of what the plaintiffs filed on their motion for ex parte judgment.” The source of this information is not readily apparent, and, as it appears to be second hand hearsay, its reliability is uncertain.

[41] That sentence from paragraph 18 is not admissible.

Prejudice vs. probative value

[42] A concern about prejudicial effect is the major focus of respondent D’Souza, who seeks only the exclusion of para. 26 of the paragraphs sought for admission by the applicant Crown from Justice Penny’s endorsement. However, to ensure the fairness of the trial for the respondents, the analysis must apply generally to the passages that the applicant seeks to introduce at trial as the evidence of Justice Penny.

[43] The standard categories of prejudice implicated here must include a form of positive moral prejudice, that is, that the stature of a sitting judge of the Superior Court of Justice will inform any analysis by the trier of fact about the weight to be accorded his evidence. Therefore, concern about potential prejudice, given the inability to point out flaws, misremembered facts, or misstatements in the passages from the costs endorsement, must be confronted directly.

[44] This sort of prejudice, or its negative cousin, is regularly dealt with in applications to adduce past discreditable conduct. In those applications, the moral prejudice involves the effect of evidence of prior misconduct by the accused person on the proper assessment of the case by the jury, and a concern that they will convict simply because they see the accused as a bad person: see, e.g., R. v. Handy, 2002 SCC 56, [2002] 2 S.C.R. 908, at paras. 31, 72. Such prejudice is also a standard issue where expert evidence is adduced, and the concern is that the jury in the case will be overawed by the qualifications of a proposed expert such that they will abdicate their responsibility to use their own judgment, and simply follow the opinion of the expert: see, e.g., R. v. Abbey, 2009 ONCA 624, 97 O.R. (3d) 330, at para. 90.

[45] In my view, just as in cases of prior discreditable conduct and expert evidence, this kind of prejudice can be dealt with appropriately by an instruction in the final charge, and perhaps in a mid-trial instruction, to the effect that the evidence of Michael Penny must be accorded no greater weight than the other evidence in the case simply by reason of his position as judge. The jury is not obliged to accept the evidence of Michael Penny because of the position he holds. Rather, they are to assess it just as they would all the rest of the evidence in the case, and they may accept all of it, some of it, or none of it at all: see R. v. R.O., 2015 ONCA 814, 333 C.C.C. (3d) 367, at paras. 31-35; R. v. Klymchuk, 2005 ONCA 44167, 203 C.C.C. (3d) 341, at paras. 55, 62.

[46] Of some concern to me are the following passages, which I set out in full, so that my discussion can be better understood:

a. Para. 14: “As I indicated to the parties, my invariable practice on civil motions, whether ex parte, in writing, or otherwise, is to endorse the back of the motion record with my disposition in blue ink. It is also my invariable practice, when signing orders or judgments, to sign the form of order or judgment in blue ink.” b. Para. 18.4.: “It would be unusual for a civil ex parte motion to be put before a judge hearing family law motions.” c. Para. 18: “In the circumstances, I believe it is best to adjourn the issue of costs and any other matters arising out of this attendance today: (a) to enable the plaintiffs time to file additional material and to try to find the original motion record bearing my endorsement and the original order earing my signature; and (b) to retain counsel to represent them in the continuation of the hearing of this motion to set aside the ex parte order.” d. Para. 22: “Having now seen the motion record the plaintiffs purportedly put before me, and having regard to the evidence now available with the benefit of the adjournment and my directions of July 31, 2012, I make the following findings.” e. Para. 26: “If I had seen the plaintiffs’ June 18, 2012 motion record and the requested form of judgment, under no circumstances would I ever have signed it. It grants extraordinary relief, such as exemplary damages, which I do not grant on an ex parte basis. It also grants highly unusual and prejudicial declaratory relief against other defendants in the action, besides those against whom the motion for default judgment was brought, without justification or explanation.”

[47] In these passages, Justice Penny expresses views that indicate he is considering matters through a judicial lens. In the first, he speaks of his invariable practice as a judge, to sign motion records and orders or judgments in blue ink. In the second passage, he expresses his judicial view that it would be unusual for a civil ex parte motion to be put before a judge hearing family motions. In the third passage, he offers his judicial opinion that he believes it best to put the matter over for certain purposes. In the fourth passage, he makes findings. In the last passage, Justice Penny offers cogent reasons to support his assertion or belief that he did not sign the Judgment, but his reasons are judicial. These passages are appropriate in Reasons for Judgment, but are they appropriate as evidence?

[48] The jurisprudence on judicial immunity focuses on the exercise of judicial function as being precisely what a judicial officer may not be compelled to testify about, as such questioning would have the potential to threaten judicial independence and detract from the appearance of fair and unbiased adjudication. The statements set out above involve Justice Penny’s exercise of his judicial function.

[49] In normal circumstances, Justice Penny could not be compelled to testify about anything at all from his costs endorsement. Giving testimony about his judicial practice, views, opinions, making of findings, or reasoning would expose Justice Penny to cross-examination from which he is immune on policy grounds. Yet the Crown seeks to adduce passages from the costs endorsement to further a valid purpose in the administration of justice: to put before the jury what facts Justice Penny is aware of about the authorship of the Judgment, and the signature on it, in the context of his knowledge about other facts in the course of the proceeding in which he was involved.

[50] In my view, a balance must be struck. The jury can be told about the facts of which Justice Penny is aware, but they are not to be privy to the exercise of his judicial function qua evidence, as in paras. 14, 22, 26, and the noted portions of para. 18. It would be highly prejudicial to the accused if the evidence of Justice Penny were to include anything other than facts that he witnessed, took part in, or knows that he did not take part in. For such expressions of judicial function would reinforce the moral prejudice that any limiting instruction would seek to minimize. Further, the admission into evidence of judicial views and opinions, from a live witness, would demand cross-examination to test their validity, thereby risking the ills that the doctrine of judicial immunity prevents. The Crown may not gain an advantage by putting into evidence what it wants without risking its examination by cross-examination, simply by proffering the evidence in judgment form.

[51] Paragraphs 14, 22, 26, and those portions of paragraph 18 set out above are not admissible, on the basis that their prejudicial effect significantly exceeds their probative value.

Conclusions

[52] Justice M.A. Penny is not compellable to testify at this trial.

[53] From Justice Penny’s endorsement in Joseph v. Linton, [2013] O.J. No. 180, 2013 ONSC 70, the applicant Crown may adduce into evidence at this trial, as the evidence of Justice Michael A. Penny, paragraphs 1, 2, 3, 4, 5, 13, 15, 23, 24, 25, and 27. It may also adduce paragraph 18 except for:

a. The sentence: “There is apparently no copy to be found in the court file of what the plaintiffs filed on their motion for ex parte judgment.” b. Para. 18.4.: “It would be unusual for a civil ex parte motion to be put before a judge hearing family law motions.” c. The portion that reads: “In the circumstances, I believe it is best to adjourn the issue of costs and any other matters arising out of this attendance today: (a) to enable the plaintiffs time to file additional material and to try to find the original motion record bearing my endorsement and the original order earing my signature; and (b) to retain counsel to represent them in the continuation of the hearing of this motion to set aside the ex parte order.”

[54] The permitted portions from Joseph v. Linton are admissible pursuant to the principled exception to the hearsay rule.

A.D. KURKE J. Released: April 11, 2017

Appendix “A”

Joseph v. Linton

RE: John Joseph aka John D'Souza and Peter D'Gama, Plaintiffs, and Ritchie James Linton, Robert Jagielski, Krystyna Woldanska, Agnieszka Woldanska, Karolina Gill, Bobby Mukhtiar Gill, Polish Credit Union, Royal Bank of Canada, A. Farber & Partners Inc., the Law Society of Upper Canada and the Superintendent of Bankruptcy, Defendants

2013 ONSC 70, [2013] O.J. No. 180

Court File No.: CV-11-420829 Ontario Superior Court of Justice M.A. Penny J.

Heard: December 17, 2012. Judgment: January 7, 2013. (45 paras.)

Counsel: John D'Souza and Peter D'Gama on their own behalf. Evan Moore for the Defendants Karolina and Bobby Gill. David Silver for the Defendants Ritchie Linton and Robert Jagielski. Marek Tufman for the Defendants Krystyna Woldanska and Agnieszka Woldanska.

ENDORSEMENT

M.A. PENNY J.:--

Background

1 This matter came before me on July 31, 2012 as a motion to set aside an ex parte default judgment. The judgment, dated June 19, 2012, purports to bear my signature.

2 The recitals to this judgment indicate that the motion was made ex parte against the Woldanskas, who had been noted in default, and that judgment was, in part, granted on the basis of "submissions" made to the court on June 19, 2012. The evidence is now clear that, on June 19, 2012, the Woldanskas had a pending motion, on notice to the plaintiffs, to set aside the noting in default. This particular fact, among many others, was not disclosed in what has now been produced to me by the plaintiffs as the alleged "supporting material" filed by them on the June 19, 2012 motion.

3 The judgment itself purports to grant Judgment against the Woldanskas for damages of $60,000 and punitive and exemplary damages of $48,000. The judgment also purports to make various declaratory orders against not only the Woldanskas but the Gills and Linton and Jagielski as well. These declaratory orders include the finding that all six of these defendants, among other things, conspired to defraud the plaintiffs.

4 In my endorsement of July 31, 2012 setting aside the judgment purportedly signed by me on June 19, 2012, I put over to a future date the question of costs. I also extended to the plaintiffs, respondents on the motion, the opportunity to seek legal advice and representation and, among other things, to produce the original of the motion record containing my endorsement and the original of the June 19, 2012 judgment purporting to bear my signature.

5 Further material was filed by all parties. The matter came back before me on December 17, 2012 on notice to all parties. The defendants all seek their costs on a full indemnity basis.

6 The plaintiffs arrived late for the oral hearing on December 17, 2012 although they did make oral submissions. The plaintiffs proferred, as the reason for their lateness, that they thought the return of this motion was to be dealt with "in writing" and that it was unnecessary for them to attend. I note that there is utterly nothing in my July 31, 2012 endorsement, or in any of the defendants' material or communications to the plaintiffs, to support this belief. The plaintiffs filed a written brief on December 24, 2012, seven days after the argument of the motion. The brief purported to provide additional information on the reasons for their lateness. This was a highly inappropriate out of court communication with the judiciary, for which no leave was sought or granted. It was also an inappropriate means of trying to put new evidence before the court - evidence that was, in any event, available to the plaintiffs on December 17, 2012. The plaintiffs' excuse was, in my view, entirely disingenuous. In any event, neither in person on December 17, 2012 nor in their subsequent written submission did the plaintiffs seek an adjournment of the December 17, 2012 hearing.

The Action

7 John D'Souza and Peter D'Gama are plaintiffs in an action against the vendors and purchasers of a property known as 49 Lake Crescent in Toronto (the Property). They have also sued lawyers and other entities associated with the sale of the Property.

8 John D'Souza is apparently a paralegal licensed by the Law Society of Upper Canada. Peter D'Gama is apparently a licensed real estate agent.

9 In June of 2012 the defendants had pending motions for summary judgment seeking to dismiss the plaintiffs' action. The motions were returnable on June 14, 2012. Various defendants had previously been noted in default. Some of them had already obtained orders setting aside the default. As noted above, the Woldanskas had a pending motion to set aside their default, on notice to the plaintiffs.

10 On June 14, 2012, C. Brown J. adjourned the motions for summary judgment as a result of the fact that material filed on the motions was not in the court file delivered to her before the return of the motion. A new return date was set for April 2013.

11 There is no record in the Court's "Complete Case History Report" of any aspect of this matter ever having come before me at any time prior to July 31, 2012.

12 What the Complete Case History Report does show is that there was a motion brought by the plaintiffs, without notice, returnable before Master Glustein on June 19, 2012. The relief sought in the motion for default judgment appears, however, to be outside the jurisdiction of a Master. There is no record of any disposition of that motion by Master Glustein or, for that matter, by any other Master.

The Motion for Default Judgment

13 The plaintiffs were unable to locate or produce the original motion record bearing my endorsement or the original of the judgment purporting to bear my signature.

14 As I indicated to the parties, my invariable practice on civil motions, whether ex parte, in writing, or otherwise, is to endorse the back of the motion record with my disposition in blue ink. It is also my invariable practice, when signing orders or judgments, to sign the form of order or judgment in blue ink.

15 What the plaintiffs did produce is a "copy" of the motion record they say they filed which has been, apparently, re-created from Word documents on their computer. The motion record is dated June 18, 2012. The record contains a 53 page affidavit sworn by Peter D'Gama and 50 exhibits.

16 The plaintiffs also filed responding material for the December 17, 2012 return date, comprised of another affidavit of Peter D'Gama, sworn November 6, 2012, containing some 23 pages and another 50 exhibits.

17 Mr. D'Gama's November 6, 2012 affidavit does not address at all the questions posed by me in my endorsement of July 31, 2012, other than in paragraph 74 of the affidavit, which says:

It is therefore not surprising that the motion material before Justice Brown and Justice Penny went missing. I believe that the missing material and subsequent court adjournments only benefit the Gills and the other defendants. It appears that the Gills along with their Lawyers are successful in deceiving and manipulating both the Honourable Court and us.

No evidence whatsoever has been advanced in support of this proposition that the Gills, the other defendants and/or their lawyers, are responsible for material being "missing" from the Court's files.

18 In my July 31, 2012 Endorsement, I noted:

On June 19, 2012, there is an entry in the case history that a motion for judgment was on the list before Master Glustein. There is no record of the disposition of that attendance. I advised the parties that:

1. I was sitting in family law motions on June 19, 2012 and this matter did not appear on my door sheet;
2. I have no recollection of seeing any record or material from this case nor do I have any recollection of seeing the plaintiffs or of signing this order [judgment];
3. there is no record in the court system of this matter ever having been before me;
4. it would be unusual for a civil ex parte motion to be put before a judge hearing family law motions.

There is apparently no copy to be found in the court file of what the plaintiffs' filed on their motion for ex parte j. I asked the plaintiffs if they had a copy of the original of [the] signed June 19, 2012 order - they said they did not because it was left in the court file. I asked the plaintiffs if they had a copy of the motion record they filed to obtain the ex parte order. Again they said their copy was filed and they did not have it. In the circumstances, I believe it is best to adjourn the issue of costs and any other matters arising out of this attendance today:

(a) to enable the plaintiff's time to file additional material and to try to find the original motion record bearing my endorsement and the original order bearing my signature; and (b) to retain counsel to represent them in the continuation of the hearing of this motion to set aside the ex parte order.

19 Not only have the plaintiffs failed to produce the original motion record, my endorsement on the record or the original order signed by me; they have provided no explanation whatsoever for how the motion allegedly came before me or the circumstances under which I allegedly signed the judgment.

20 At first, they said the motion was in person (the judgment itself says it was). Then, they changed their story to say that it was in writing and therefore done over the counter.

21 The day prior to the return of the defendants' motion to set aside the June 19, 2012 judgment, the plaintiffs, without qualification, consented to set that judgment aside.

22 Having now seen the motion record the plaintiffs purportedly put before me, and having regard to the evidence now available with the benefit of the adjournment and my directions of July 31, 2012, I make the following findings.

23 This matter was never before me, in person or in writing.

24 I had never seen the plaintiffs' motion record of June 18, 2012 before it was delivered to my attention in November 2012.

25 Prior to July 31, 2012, I had never seen the plaintiffs before.

26 If I had seen the plaintiffs' June 18, 2012 motion record and the requested form of judgment, under no circumstances would I ever have signed it. It grants extraordinary relief, such as exemplary damages, which I do not grant on an ex parte basis. It also grants highly unusual and prejudicial declaratory relief against other defendants in the action, besides those against whom the motion for default judgment was brought, without justification or explanation.

27 Although the signature on the photocopy of the June 19, 2012 judgment appears to be my signature, I did not sign the June 19, 2012 judgment.

28 No signed original of the June 19, 2012 judgment has been produced because it does not exist.

29 No signed endorsement on the original motion record has been produced because it does not exist.

30 I find that the plaintiffs, or one of them acting in concert with the other, falsified my signature on the June 19, 2012 judgment by cutting and pasting a copy of my signature from another order or endorsement (unknown) onto this form of judgment.

Costs

31 The plaintiffs sent copies of the fake June 19, 2012 judgment to the defendants, representing it to be an authentic, valid judgment of the court. They used the judgment to threaten serious consequences, including criminal proceedings.

32 The plaintiffs also sent copies of the fake June 19, 2012 judgment to three regulatory bodies in support of professional complaints, again, in each case, representing the judgment to be an authentic, valid judgment of the court.

33 Copies of the fake judgment were sent by the plaintiffs to the Law Society of Upper Canada in respect of a complaint against Linton; to the Real Estate Commission of Ontario in respect of a complaint against Helena Pawlowska, Karolina Gill's mother; and to the Financial Services Commission of Ontario in respect of a complaint against Mr. Gill, who is a licensed mortgage broker subject to FSCO jurisdiction.

34 In the case of Mr. Gill, the plaintiffs' complaint was resubmitted in October 2012, after the plaintiffs had already consented to setting aside the June 19 judgment and after my order issued on July 31, 2012 in fact setting the June 19, 2012 judgment aside.

Law

35 In Schreiber v. Mulroney, 2007 ONSC 34441, Newbould J. summarized the law relating to awards of full indemnity costs:

Rule 57.01(4) makes clear that a judge has authority to award costs on a substantial indemnity basis or in an amount that represents full indemnity. It is this higher scale of full indemnity that Mr. Prehogan contends should be used in this case.

The test for awarding what was earlier in Ontario referred to as costs as between solicitor and client and now under our rules as costs on a substantial indemnity basis is succinctly stated in Orkin, The Law Of Costs, 2nd Edition at para. 219 as follows:

Costs on the solicitor and client scale should not be awarded unless special grounds exist to justify a departure from the usual scale

As the court said in Foulis v. Robinson, 1978 ONCA 1307, [1978] O.J. No. 3596:

Generally speaking an award of costs on a party and party scale to the successful party strikes a proper balance as to the burden of costs which should be borne by the winner without putting litigation beyond the reach of the loser. There are, of course, cases in which justice can only be done by complete indemnification for costs.

An award of costs on the solicitor and client scale, it has been said, is ordered only in rare and exceptional cases to mark the courts disapproval of the conduct of a party in the litigation. The principle guiding the decision to award solicitor and client costs has been enunciated thus:

Solicitor and client costs should not be awarded unless there is some form of reprehensible conduct, either in the circumstances giving rise to the cause of action, or in the proceedings, which makes such costs desirable as a form of chastisement.

The Supreme Court of Canada has approved the following statement of principle:

Solicitor and client costs are generally awarded only where there has been reprehensible, scandalous or outrageous conduct on the part of one of the parties.

I am not going to repeat all of the conduct of Mr. Anka taken on behalf of his client that I referred to in my reasons of August 3, 2007. That conduct elevated this case to one of the rare and exceptional cases that requires full indemnity costs to mark the disapproval of the conduct. It fully fits the meaning of the phrase "reprehensible, scandalous, or outrageous conduct" used by McLachlin J. (as she then was) in Young v. Young, 1993 SCC 34, [1993] 4 S.C.R. 3.

36 Hackland J. also reviewed the law in this area when dismissing a claim against three judicial officers in Barlyluk (Wyrd Sisters) v. Campbell, 2008 ONSC 55134. He said at para. 39:

The transcript of argument of this motion will show that Ms. Townley-Smith attempted to justify the allegations in this action by providing the Court, in the context of her oral submissions, with her first hand account of her perceived struggle with the Court system in Toronto, in the Harry Potter action. When questioned by the Court she said "me and my client" are making these allegations. Apart from the impropriety of attempting to be both witnessed and counsel, the allegations being advanced in this action against three respected members of this Court and indirectly against at least 15 other judges, constitute, in my view, a scurrilous attack on the administration of justice by a member of the bar. Counsel's documentation filed with the court and her oral submissions refer to conspiracy, skulduggery, lying, case fixing and criminality in reference to the defendants. There is no justification and no air of reality to any of these accusations.

37 In his subsequent ruling on costs, Hackland J. said ([2009] O.J. No. 2772, 2009 ONSC 3400, at paras. 9 and 10):

I am of the opinion that this is one of the rare cases in which costs should be awarded on a full indemnity basis. As noted, I found that this action constituted a scurrilous attack on the administration of justice. The conduct of the defendants, judges of this court, was characterized by the plaintiffs as case-fixing, abuse of public office, dishonesty and deceit in circumstances where there was no basis on the facts pleaded or submissions made to the court to support such outrageous allegations. Reckless attacks on the integrity of judicial officers must be recognized as conduct requiring chastisement and deterrence.

There is ample authority for an award of full indemnity costs where unsubstantiated allegations of dishonesty, illegality, and conspiracy are advanced without merit. While full indemnity and substantial indemnity costs are an exception to the general rule and awarded only under special circumstances, allegations made or conduct by a party that is "reprehensible, scandalous or outrageous" falls within the ambit of an award full indemnity costs.

Conclusion on Costs

38 I have no hesitation in concluding that an award of full indemnity costs is required in the circumstances of this case. I find that the plaintiffs' conduct, in faking a judgment of this court, constitutes a scurrilous and fraudulent attack on the administration of justice. The plaintiffs' actions amount to a contemptuous and reckless disregard for the judicial process and were calculated to obstruct or interfere with the due course of justice in these proceedings. The plaintiffs' behaviour was "reprehensible, scandalous and outrageous." Such reckless attacks on the administration of justice clearly constitute conduct requiring chastisement and deterrence.

39 I find that the defendants are entitled to full indemnity costs, payable by the plaintiffs D'Souza and D'Gama forthwith. Costs are awarded as follows:

Woldanskas $14,974.60 Linton/Jagielski $10,659.35 Gills $14,617.97

inclusive of disbursements and HST.

40 The plaintiffs are prohibited from taking any fresh step in these proceedings until these costs have been paid in full.

Master Dash Order

41 There is a subsidiary issue involving an order of Master Dash on April 26, 2011, obtained without notice, granting leave to the plaintiffs to register a certificate of pending litigation against the Property (the CPL order). No CPL has been registered as yet.

42 The plaintiffs have refused or been unable to produce the original of Master Dash's order. The court record apparently contains no original order or endorsed motion record.

43 It appears that the CPL order of Master Dash may also be a fake.

44 In any event, it was obtained without notice. The noting in default of the Gills was improper and constituted sharp practice.

45 In the circumstances, my order shall issue setting aside the CPL order of Master Dash dated April 26, 2011.

M.A. PENNY J.

COURT FILE NO.: CR-15-10000-249-0000 DATE: 2017-04-11 ONTARIO SUPERIOR COURT OF JUSTICE HER MAJESTY THE QUEEN – and – John D’Souza and Peter D’Gama Applicant REASONS ON APPLICATION Justice A.D. Kurke Released: April 11, 2017