Court File and Parties

COURT FILE NO.: CV-13-4228-00 DATE: 2017 04 19

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Dean Heffernan v. Van Mechanical Contractors Inc., Peter Lisena, Deni Di Tullio

BEFORE: EMERY J.

COUNSEL: Dean Heffernan, Self-represented Plaintiff Bhupinder Nagra, counsel for the Defendants, Van Mechanical Contractors Inc. and Deni Di Tullio

HEARD: April 11, 2017

ENDORSEMENT

[1] The plaintiff, Dean Heffernan, has commenced this action against Deni Di Tullio and his employer, Van Mechanical Contractors Inc. for defamation. Mr. Heffernan was employed for 12 days between November 24 and December 10, 2010, after which he was terminated by Mr. Di Tullio.

[2] In the amended statement of claim, Mr. Heffernan alleges that Mr. Di Tullio slandered him by the answers he gave when he was interviewed by an investigator for WSIB. That interview was conducted some 10 months later in September 2011 with respect to an application for benefits made by Mr. Heffernan.

[3] On August 15 and 25, 2016, I heard the motion for summary judgment of the defendants seeking the dismissal of the action. At the same time, I heard the cross-motion Mr. Heffernan had brought seeking summary judgment on part of his claim. In that cross-motion, Mr. Heffernan was seeking $500,000 for special damages and injury to his reputation as a competent plumber.

[4] In my Endorsement released on November 28, 2016, I concluded that I was not confident I could make the findings of fact from the written record that would allow me to apply the law to reach a just result. I therefore made an order that oral evidence be presented by the parties under Rule 20.04 (2.2).

[5] On January 13, 2017, I convened a case conference to address various scheduling issues encountered by the parties. In an Organizing Endorsement dated January 30, 2017, I set a timetable for the “mini-trial” I had ordered in my first Endorsement. Pursuant to that timetable, a full day on April 11, 2017 was set aside to hear evidence, and a further half day was set aside on April 18, 2017 to hear the closing submissions of the parties.

[6] At the case conference on January 13, 2017, Mr. Heffernan raised the prospect of bringing a motion that I recuse myself from hearing these motions. He submitted that there were grounds to believe that a reasonable and informed observer would conclude that there was a reasonable apprehension of bias on my part. He made submissions that those grounds were based on questions I had asked on the hearing of the motions for summary judgment to date, and on the language found in my initial Endorsement.

[7] After receiving my Organizing Endorsement, Mr. Heffernan made known his intention to bring a motion for an order that I recuse myself. The full day set aside on April 11, 2017 to hear oral evidence on the motions for summary judgment was therefore designated as the day I would hear Mr. Heffernan’s motion for recusal.

[8] At the hearing, Mr. Heffernan did not allege any actual bias or lack of impartiality. His motion proceeded on the basis that a reasonable and informed observer would have a reasonable apprehension of bias, based on the record of the previous attendances and endorsements issued in this action.

[9] Ms. Nagra, counsel for the defendants, opposed the motion.

Mr. Heffernan’s Grounds

[10] Mr. Heffernan seeks an order that I recuse myself from the motions for summary judgment before me on the following grounds:

a) I failed to dismiss the motion of the defendants for an order seeking security for costs against him on the basis of res judicata after Justice Edwards had declined to hear that part of the defendants motion on November 25, 2015;

b) in the Endorsement dated November 28, 2016, I described Mr. Heffernan’s motion for summary judgment as seeking damages for defamation in the amount of $500,000, as opposed to seeking that amount only for special damages and injury to reputation;

c) during Mr. Heffernan’s submissions, I had interjected to ask questions repeatedly, thereby disrupting the flow of his presentation;

d) some of the questions I had asked were irrelevant to the issues before me on the competing motions for summary judgment;

e) certain language was used in my first Endorsement that suggested a pre-disposition to making credibility findings in favor of the defendants, including but not limited to continuous references to Mr. Di Tullio’s cross examination as an examination for discovery;

f) that I had misapprehended the evidence to the extent that a reasonable and well informed observer would have the opinion that I had formed a preconceived view of the evidence or that I may have pre-judged the issues, even on a subconscious level; and

g) as a judge who has presided over criminal trials in which police officers have given evidence, I would have a bias against Mr. Heffernan as a person who volunteered on the motions that he has been harassed by Peel Regional Police in the past.

Relevant Principles

[11] The law has been clear for many years that a motion for recusal shall be heard and determined by the judge who has been asked to recuse him or herself: Arsenault-Cameron v. Prince Edward Island, (1999) 641 (SCC). This introduces an interesting dynamic that requires scrupulous attention by the judge. The first part requires the judge to examine the grounds on which the motion has been brought to determine if the request for recusal has any merit. The second part is to engage in that exercise with the same diligence to ensure a just determination is made on the motion.

[12] The test for finding whether a reasonable apprehension of bias exists was described by the Supreme Court of Canada in Committee for Justice and Liberty v. Canada (National Energy Board), [1978] 1 S.C.R. 369 at pages 394 and 395:

The proper test to be applied in a matter of this type was correctly expressed by the Court of Appeal. As already seen by the quotation above, the 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. In the words of the Court of Appeal, that 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 Mr. Crowe, whether consciously or unconsciously, would not decide fairly.”

[13] Justice Kristjanson, in Duca Financial Services Credit Union Ltd. v. Smith, 2016 ONSC 6289 set out a concise statement of relevant factors that are helpful to keep in mind when applying the test at paragraph 18:

[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 and117). 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 [Authorson], 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).

[14] The starting point on a motion for recusal is the strong presumption of judicial integrity and impartiality. The onus is on the party challenging that presumption. As this court noted in Morse Shannon LLP v. Fancy Barristers LLP, 2016 ONSC 7574:

[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 be 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), 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…

[15] The presumption of judicial impartiality is therefore a high threshold to overcome. Any challenge to it is treated as a serious matter. The grounds for an apprehension of bias must be substantial. These values were discussed at length by the Supreme Court in the Wewaykum case and are part of our law.

[16] There is no question that a judge must approach the task of deciding a case with an open mind. The judge should be free of any pre-conceived notions or any predisposition toward a given result, open to the logic and force of the evidence and submissions that put law and fact together in a persuasive way to decide a case on the merits.

[17] Mr. Heffernan relies on the decision of the Court of Appeal in Stuart Budd & Sons Limited v. IFS Vehicle Distributors ULC, 2016 ONCA 60 in particular. He relies on this case for authority that the cumulative effect of alleged improprieties is more relevant than any single transgression.

[18] Mr. Heffernan also relies on Hazelton Lanes Inc. v. 1707590 Ontario Limited, 2014 ONCA 793 for the principle that the appearance of judicial impartiality is as important as the reality of judicial impartiality for maintaining public confidence in the administration of justice.

Application of the Principles on this Motion

[19] The inquiry into whether a reasonable apprehension of bias exists is highly fact-specific: Wewaykum Indian Band v. Canada at paragraph 77.

[20] When looking at the grounds raised by Mr. Heffernan on his motion to recuse, it is also important to keep in mind that the standard for finding there to be a reasonable apprehension of bias is not the viewpoint of the moving party, or even of the responding party. The apprehension of bias must be a reasonable one, held by reasonable and right minded persons. The reasonable person must be an informed person, having knowledge of all the relevant circumstances: R.v.S.(R.D.), [1997] 3 S.C.R. 484. This has been held to include an understanding of the judicial process, and the nature of judging: Ontario Provincial Police v. MacDonald, 2009 ONCA 805 (Ont. C.A.). It is the viewpoint of an objective observer who is mindful of the circumstances of the case and the process of the court hearing it. To the legal mind, it is a question of whether the proverbial man from the Clapham omnibus, if a regular observer in the courts, was asked if the circumstances raise a reasonable apprehension that the judge holds a predisposition or bias one way or another with respect to the case.

Res Judicata

[21] In their initial notice of motion, the defendants asked for an order that Mr. Heffernan post security for costs under Rule 56.01 as alternative relief to obtaining summary judgment dismissing the action. This notice of motion was before Justice Edwards on November 25, 2015. In his endorsement, Justice Edwards noted that counsel for the defendants acknowledged in her factum that the defendants motion seeking security for costs relied upon section 18(1) of the Libel and Slander Act, and not Rule 56.01. Accordingly, Justice Edwards declined to grant security for costs in the absence of a proper notice of motion setting out the appropriate grounds for the relief sought.

[22] Elsewhere, Justice Edwards stated that the defendants were free to bring a motion for security for costs if they wished.

[23] Mr. Heffernan takes issue with how the preliminary matter raised in paragraph 7 of my first Endorsement was addressed. He disputes my statement that the defendants are not estopped from seeking this alternative relief. The Endorsement reads that Justice Edwards did not refuse that relief on the merits. Justice Edwards required the defendants to bring a proper motion to seek that relief instead of requesting such relief as a term of another order. The sentence “This is that motion” appears at the end of paragraph 7.

[24] Mr. Heffernan argues that the paragraph is internally inconsistent. He submits that Justice Edwards dealt with the motion that was before him and that the defendants have not brought a new motion for this court to consider.

[25] I do not propose to interpret what I have already stated in the first Endorsement. The reasons given by judges in reasons for judgment, including endorsements, speak for themselves. The conclusion on the preliminary matter discussed in paragraph 7 of the Endorsement is consistent with the previous ruling made by Justice Edwards.

[26] The reasonable and informed observer would have known from the amended notice of motion that the defendants relied upon section 18 (1) of the Libel and Slander Act as a basis for seeking an order for security for costs on August 15, 2016. The notice of motion had been amended to specifically plead that statutory authority. The amended notice of motion was dated May 11, 2016 and was served on Mr. Heffernan on May 18, 2016.

[27] The defendants’ motion seeking security for costs under section 18 (1) of the Libel and Slander Act was properly before the court on August 15, 2016 on the amended notice of motion. It matters not whether the defendants amended the notice of motion to expressly plead and rely upon section 18(1), or whether they brought a separate motion under section 18(1) to seek that relief.

[28] It would be difficult for Mr. Heffernan to argue that the defendants were not entitled to amend their initial notice of motion. There is nothing in the Rules of Civil Procedure that prevents the amendment of a notice of motion. It would be even more difficult for Mr. Heffernan to argue unfairness; Mr. Heffernan also served and filed an amended notice of cross motion dated August 4, 2016 that was before the court on August 15, 2016.

[29] Mr. Heffernan’s complaint is by its nature an appeal by a different name. My ruling cannot be appealed because leave has not been requested or granted. In any event, I have made no decision with respect to security for costs on the defendants motion. This ground for recusal does not show any reasonable apprehension of bias.

Questions and Interjections

[30] Mr. Heffernan submits that questions were asked from the bench repeatedly during his submissions on August 15 and 25, 2016. He argues that questions about whether there was any evidence in the record that his union had knowledge of the impugned words used by Mr. Di Tullio were irrelevant to the issues before the court. Similarly, he objects to questions that were asked about whether any privilege attached to the answers given by Mr. Di Tullio to the WSIB investigator during the interview. Mr. Heffernan submits that these questions relate to issues that are not before the court, and which wasted time.

[31] Privilege was neither pleaded in the statement of defense, or argued on the motion for summary judgment. Mr. Heffernan refers to paragraph 33 of the first Endorsement where it is stated that no consideration has been given to whether a statement made by Mr. Di Tullio to Mr. Materman was protected by privilege.

[32] An informed observer would know that it is within the purview of a trial judge, and by extension the judge hearing a motion for summary judgment, to question a party on the evidence or on their position with respect to a claim or defence. This ability to question is not, of itself, sufficient to raise a reasonable apprehension of bias: R. v. Trang, 2002 ABQB 1130 at paragraphs 96 and 99.

[33] It is important here to comment on the convention of the court when dealing with a claim or defence the court would reasonably expect a party to raise, but has not been addressed on the motion. Such issues here include the jurisdiction of the court over the subject matter in the first place, and those issues the court identifies as potentially relevant but not presented for consideration.

[34] First, in matters of jurisdiction, where there is a want of jurisdiction for the court to hear a matter in dispute, consent or acquiescence of the parties cannot confer jurisdiction the court does not have: Cornwall (Township) v. Ottawa and New York Railway Co.. Where an employee who is a member of a union bound by a collective agreement has brought a civil action against an employer, jurisdiction of the court can be a primary concern.

[35] Second, reasons for decision, including endorsements issued on motions, are sometimes read by a wider audience. This wider audience, including parties in other proceedings with similar facts, may not understand why a seemingly obvious issue was not considered. The court will generally identify that issue and explain why consideration was not given to it in the course of the decision.

[36] Questions relating to evidence of causation are also important. As in other tort claims that require proof of a causal link, questions such as what evidence there may be that the union had knowledge of the words spoken by Mr. Di Tullio are relevant to establish the link between the wrong alleged, and the damage done.

[37] An informed person would conclude that the questions asked during the hearing of the motions for summary judgment were reasonable questions having regard to the case and the circumstances, and not indicia of any reasonable apprehension of bias.

Language used in Endorsements suggestive of a pre-disposition

[38] Mr. Heffernan also raises the ground that language used on the hearing of the motions and in the Endorsements would suggest to a reasonable and informed person that I was predisposed to a particular result favoring the defendants. He submits that it is therefore open for the court to find a reasonable apprehension of bias on this ground.

[39] The language captured on the record each time the parties attended before the court, and the words used in each endorsement speak for themselves. This is no ground for Mr. Heffernan’s motion for recusal as that language, and the words in those endorsements do not, in my view, show a conscious or subconscious disposition. Therefore, I do not see how the language used or employed on those occasions can serve as a basis for any informed observer to conclude a reasonable apprehension of bias is either exhibited or exists.

Criminal law jurisdiction

[40] Mr. Heffernan’s final ground for his recusal motion is based on the execution of my duties as a judge who hears criminal cases in which police officers in Peel Region are often witnesses. Mr. Heffernan argues I cannot execute my judicial duties dispassionately and impartially in this action because Mr. Heffernan has made it known to this court that he has a history of encounters with Peel Regional police. He is of the view that I would somehow disbelieve his evidence or find him less credible as a witness than another party for that reason.

[41] Mr. Heffernan has made it clear that he does not allege or attribute expressions to me like those made by the judge who was the subject of the decision in Laver v. Swjeski, 2014 ONCA 294. Mr. Heffernan’s concern is more of a general nature about how I will perceive his evidence given the work of the court I have done in the criminal law area.

[42] I do not consider this to be an appropriate ground on which to base a motion for recusal. The (Ontario) Superior Court of Justice is a court of general jurisdiction. The court hears cases of all kinds, including criminal, civil and family matters. If this were a general ground for recusal, every Superior Court judge in Central West Region would be subject to a motion of this nature.

Order

[43] Mr. Heffernan’s motion for recusal is therefore dismissed.

Emery J DATE: April 19, 2017