Aganeh v. Aganeh, 2017 ONSC 5733
CITATION: Aganeh v. Aganeh, 2017 ONSC 5733
COURT FILE NO.: 01-0929/10
DATE: 20170927
ONTARIO SUPERIOR COURT OF JUSTICE
IN THE MATTER OF THE ESTATE OF KULMIYE HUSSEIN AGANEH, deceased
BETWEEN:
UBAH AGANEH Applicant
– and –
TIMORO HUSSEIN AGANEH Respondent
BEFORE: F.L. Myers J.
COUNSEL: Richard K. Watson, for the applicant Richard Macklin, for Falconers LLP
HEARD: September 25, 2016
Endorsement
The Motion
[1] The applicant asks the court to recuse itself from this costs hearing on the basis of the existence of a reasonable apprehension of bias. For the reasons that follow the motion is dismissed.
The Facts
[2] This application came before me for hearing on January 12, 2017. In the application, Ubah Aganeh asked to replace her sister Timoro Aganeh as the estate trustee of the estate of their late brother Kulmiye Aganeh. Mr. Aganeh had died in 2009 while in provincial custody. Timoro Aganeh was appointed estate trustee in 2010. Since then she had been instructing Falconers LLP in a civil action and a human rights complaint against the government on behalf of the estate.
[3] Ubah Aganeh was also a client of the Falconers firm as a Family Law Act plaintiff in the civil action at least.
[4] In late 2016, Falconers was proposing a settlement of the civil action and human rights complaint. Ubah Aganeh had a falling out with her mother and sister who were leaning toward accepting the settlement personally and on behalf of the brother’s estate. Ubah Aganeh opposed the settlement and moved to replace her sister Timoro as the estate trustee so as to prevent the law firm from entering into the settlement on behalf of the estate. The matter was time sensitive as the status of the settlement or outstanding offers to settle in the civil action and human rights complaint was not known by Ubah Aganeh.
[5] Although Falconers LLP confirmed that it had been counsel for both Ubah Aganeh and Timoro Aganeh when they shared an interest in moving forward with the litigation concerning their brother’s death, the firm appeared on the motion before me for Timoro Aganeh in order to oppose Ubah Aganeh’s application to replace Timoro as the estate trustee. The firm was helping Timoro Aganeh to try to move forward with the settlement that Ubah Aganeh now opposed. That is, the law firm was acting against the interests of its former client in the same matter or one that was directly related to the matter for which it had acted for both sisters.
[6] Ubah Aganeh was represented by counsel, Mr. Deverett, on January 12, 2017. Mr. Deverett confirmed that Ubah Aganeh did not consent to her former lawyer acting against her in the same or related matter. Therefore, the motion could not proceed that day. In addition to requesting an adjournment, Mr .Deverett advised that Ubah Aganeh was seeking costs of the day against Falconers LLP personally under Rule 57.07.
[7] The matters were adjourned to a scheduling appointment on February 9, 2017 to schedule the return of the application to replace the estate trustee and to schedule the costs hearing against Falconers LLP if the parties could not settle on a costs number in the interim. My endorsement makes it clear that the costs issue was limited to the costs thrown away by the adjournment.
[8] On February 9, 2017 both matters were scheduled for hearing on March 7, 2017. I directed Timoro Aganeh to deliver responding material on the estate trustee matter by February 24, 2017. Ubah Aganeh was ordered to deliver a Notice of Motion and a Costs Outline for her Rule 57.07 claim by February 21, 2017 and any final reply to the respondents’ new material by March 3, 2017. The hearing date was noted to be peremptory to the parties. The settlement of the civil litigation was awaiting the outcome of the application on the merits.
[9] On March 7, 2017 Mr. Levesque, a second lawyer, appeared for Ubah Aganeh. I was provided with a flurry of late affidavits including one from the parties’ father who lives in Africa. There was an issue as to the authenticity of the affidavit. Both sides claimed to speak for the father. He was attending in Canada and cross-examinations were sought. I adjourned the matters to March 17, 2017 to allow for cross-examinations on the various affidavits. I ordered that no further affidavits were to be delivered without leave. At the end of the hearing, I told the family who were present in court, divided and glaring across the aisle at each other, that civil litigation tends to be an expensive, stressful, divisive activity and that there is typically a far better outcome for families if they can surmount their legal issues, speak to one another, and settle.
[10] On March 17, 2017, Mr. Levesque appeared for Ubah Aganeh. He advised that the family had left court and taken my words to heart. They had spoken and settled the underlying dispute concerning the proposed settlement of the claims against the government. He characterized this as a “happy news.” The family had reached a common understanding as to how they wished to proceed. In addition, Mr. Levesque advised that the family had concerns about the representation provided by Falconers LLP and they had yet to determine whether they wished to take proceedings and, if so, in which form any such proceedings might take. The status of the settlement of the civil litigation and human rights complaint was not clear.
[11] Counsel for Falconers LLP submitted that the costs hearing should proceed against it that day and leave any future proceedings to be brought later. I disagreed and adjourned the matter briefly for the following reasons that I endorsed on the record that day:
Order to go on consent settling estate trustee issue.
The issue of costs of the Jan. 12/17 hearing & whether a R.57.07 order for costs against Falconers is appropriate remains. It is a small issue regarding some prep. time thrown away. But the family has now reconciled and Timoro Aganeh has found common cause with her sister against Falconers. They have not yet determined the appropriate manner for airing their complaints – whether by expanded costs for Ubah, a separate action, or both or neither. In my view, avoiding multiplicity & the risk of inconsistent verdicts is paramount. This minor tail should not wag the dog if there a [sic] larger claim is brought (if any). Adjourned to a 9:30 hearing to be brought before me on May 3, 2017.
[12] When setting the return of the motion in court that morning for May 3, 2017, I did not realize that the court’s semi-annual education programme had already been set for that day in Ottawa. I then had time off scheduled including a vacation down south. Once these scheduling matters were discovered, my office moved the date for the hearing to May 23, 2017. This was done well in advance of the hearing.
[13] On May 23, 2017, Ubah Aganeh appeared with her sister Timoro Aganeh. Ubah Aganeh did not have a lawyer for this appearance. She advised that she had exhausted her resources but she added that she had received legal advice from her former counsel. Although the matter was set for a 10 minute scheduling hearing, Ubah Aganeh advised that she requested scheduling directions, an endorsement, and a ruling. First, she asked for a schedule to file further documents. I asked how much time she needed. She said that she wanted until mid-July, a further seven weeks, to file her final material. She submitted that Holy Ramadan was about to begin. It is a 30 day holiday in which she fasts during each day. I asked her if she went to work those days. She responded that she does not work and is on maternity leave. I asked if she was home all day. I was questioning the basis for her claim that she needed such a lengthy adjournment to schedule the costs motion that had previously been scheduled on a peremptory basis months earlier.
[14] I should pause to make clear that I did not and would not have raised a religious holiday observance. Ubah Aganeh raised her need to fast during the day as a reason for needing a lengthy period of time to file further evidence. I asked if she worked during those days not as an issue relating to her gender or her family status. Rather, I tried to understand the basis for the submission that the arrival of Holy Ramadan required that Ubah Aganeh be provided with substantial additional time to participate in the proceeding. She would not be the first litigant who trotted out a religious observance inaptly as a basis to seek an adjournment of a legal proceeding.
[15] Ubah Aganeh then advised that she was of the view that Mr. Macklin, counsel for Falconers LLP, had a conflict of interest and could not act against her because he had acted for the estate previously. She said that she and her sister have decided to make a claim against Falconers related costs or losses that they claim to have incurred as a result of wrongdoing committed by Falconers LLP as their counsel. She asked for an endorsement removing Mr. Macklin from the record. Then she asked for a ruling that the civil action had not been settled by Falconers.
[16] I wrote the following handwritten endorsement that day:
I adjourned an application on January 12, 2017. In my Endorsement that day I made it clear that I was dealing only with Ubah Aganeh’s application to replace her sister Timoro as estate trustee and not the underlying civil action(s) brought by the Estate. I also adjourned a request by Ubah Aganeh for costs of the adjournment against Falconers LLP. As I have twice noted since then, the costs wasted on the adjournment were quite modest. The main application has now settled. Costs have not yet settled.
Ubah Aganeh is now co-estate trustee with her sister Timoro. They object to Mr. Macklin acting for Falconers in this matter because Timoro and the Estate were his former clients. But neither Timoro nor the estate are involved in the ongoing costs matter before me.
If they have issues about how much they paid their former estate counsel or allegations of damages to make against anyone, those are separate proceedings that have not been brought and are not before me today.
I also have no involvement in any proposed settlement of the estate’s civil case. The estate can bring whatever proceedings it wishes to challenge a settlement or to claim it suffered losses due to an improper settlement etc. It has not done so.
Order to go that Ubah Aganeh provide all further evidence on which she will rely to seek costs wasted by Falconers attending court on Jan. 12/17 and precipitating an adjournment that day only, by June 9, 2017.
Falconers may respond with material if it chooses to do so by June 30, 2017.
The motion will be heard before me for up to one hour on August 21, 2017.
To be clear:
(1) only the costs of a wasted trip to court are in issue;
(2) the civil action is not for me;
(3) Timoro Aganeh was not awarded costs and does not seek costs against Ubah for this application. If she wishes to claim against her counsel, this is not the appropriate proceeding to do so;
(4) Ubah Aganeh may seek leave to schedule a motion to remove Mr. Macklin’s firm in this proceeding with the evidence that she will file on June 9, 2017. It is difficult to see how the firm has a conflict acting on this distinct dispute between Ubah and Falconers. But I will consider evidence if leave is sought;
(5) Finally, the amount of costs thrown away by a wasted trip to court is small. I urge the parties to focus on positive efforts to deal with important issues to the estate and not to let litigation overwhelm economic reason.
[17] I then spoke to the parties. I told Ubah Aganeh that she was expanding a small issue of costs into a much broader issue. I said that if she made serious allegations of wrongdoing against the lawyers, she can expect a very full response and that could involve claims for significant costs. I told her that if she wanted to make those kinds of allegations, they require serious preparation for which she needs a lawyer. I told her that I understood that affording a lawyer may be a problem for her and she could consider obtaining some advice from a legal clinic. I told her that she was free to go ahead but that she was taking a very small matter, worth perhaps a few hundred dollars, and greatly expanding it. But I said that if she wishes to do that she can go ahead as there may be many things that I did not know.
[18] I made no reference at all to the underlying civil action and the important issues between the estate and the government concerning the death of Kulmiye Aganeh. That was never before me. As I tried to impress on Ubah Aganeh, all that was before me in estates court was the costs thrown away by the adjournment of the January 12, 2017 appearance on her application to replace her sister as estate trustee that had since settled on the merits.
[19] At that point, Mr. Macklin, for Falconers, asked for costs of the day. I heard argument from both sides. During her submissions, Ubah Aganeh said that she was very confident in her desire to proceed against Falconers and Mr. Macklin because she had obtained “legal advice on the side.” She also mentioned that I had “a nice tan” and that she hoped that I had enjoyed my vacation. I added the following to my handwritten endorsement:
Costs of today were wasted because although over two months have transpired, Ubah Aganeh was not ready to proceed usefully today. She discussed again bringing the same proceedings that she discussed last time. Although Ms. Aganeh is representing herself, she needs to understand that the process must move forward efficiently. It is not enough to come to court and repeat allegations. I expected any proceedings that she or the estate intended to bring to have been brought or at least formulated to the extent to allow scheduling of the main events (if any) and the R. 57.07 matter today.
Falconers has been required to send counsel today for no real purpose. Ubah Aganeh shall therefore pay costs to Falconers LLP of $500 (a partial indemnity basis) before June 30, 2017.
[20] Ubah Aganeh is now represented by her third lawyer, Mr. Watson. He asks me to recuse myself based on there being a reasonable apprehension of bias in my continuing as the judge hearing this matter. The evidence in support of the motion is solely an affidavit of Mr. Watson’s law clerk that exhibits a letter that Ubah Aganeh has apparently sent to the Canadian Judicial Council dated July 5, 2017 that complains about my conduct.
[21] There is no evidence from the law clerk or Ubah Aganeh attesting to the truth of any of the allegations contained in the letter of complaint. Nor has Ms. Aganeh been cross-examined on the allegations that she makes. Mr. Macklin argued that absent evidence, the letter is just a number of allegations. He submits that he has a colleague who has been present throughout who is prepared to deny the facts alleged which he referred to as “garbage.” That too is an allegation. Neither side has presented any evidence on the merits of the recusal motion.
[22] Mr. Watson submits that the merits are for the CJC and are not before me today. Rather, he argues that the fact that the letter has been sent and that I am aware of it provides a reasonable apprehension of bias to a reasonable and informed member of the public.
[23] Interestingly, despite Mr. Watson’s unsworn submission to the contrary, I was not aware of the letter or the allegations it contains prior to reading it in the material filed on this motion. Had counsel not chosen to advise me of the letter and put the letter before the court, I might never have known of it depending on what the CJC may choose to do with it under its own processes in due course.
[24] Among other thing, the letter alleges that:
a. I took original forms with the file and kept them locked in my office while I was away on vacation. This prevented the formalization of the appointment of Ubah Aganeh as estate trustee;
b. On May 23, 2017, I made derogatory and sexist remarks and conducted the proceeding in a manner that suggests bias toward Ms. Aganeh’s sex, race, class, and creed;
c. I belittled her role as a woman on maternity leave and made remarks that she found to be sexist in nature in that:
i. I asked if she had a job;
ii. I said she has a lot of time on her hands;
iii. I said “oh, so you sit home all day;”
iv. I said that she was wasting the court’s time, delaying the proceedings, that she was redundant and kept repeating herself;
v. I suggested that she should seek a lawyer and if she could not afford one I could not understand how she was continuing the proceeding;
vi. I suggested that she seek advice from a community legal clinic:
vii. I suggested that she could suffer costs consequences “from me” if she did not get a lawyer;
viii. She said I was sarcastic and harsh so that she could not receive fair or equitable treatment given my remarks that were “sexist, prejudicial and biased at best.”
[25] There is nothing untoward or suspicious about a case management judge keeping a file in his or her chambers during successive hearings. I was trying to manage the costs motion to an early hearing to protect whatever rights Ms. Aganeh had to deal with the underlying settlement quickly. Staff have complete access to my office in my absence in any event. All court staff have keys. I did nothing with the file to impair Ms. Aganeh’s rights. To the contrary, I held it to try to vindicate her rights, such as they were, on a timely basis.
[26] I will deal below with the remaining allegations listed above. First, I need to deal with a further allegation Ms. Aganeh makes to the CJC that on an earlier hearing I told her father “to have a few cups of Cuba Libre” as “he was going to need it.” She says that I knew that he was a Muslim due to his attire and this remark was extremely offensive and a blatant disregard of their religious identity. None of this is true. The father did attend court. He wore attire that I associate with people from Africa. If it was religious attire, I did not know it. Nor could I have known, nor would I have inquired as to his devoutness or drinking habits. In any event, I did not mention Cubra Libres or tell him to drink at all. I also do not even use the phrase “Cuba Libre” to refer to rum and Coke cocktails. I do not and did not tell him to have a drink. I do not know what Ms. Aganeh thinks she heard, but I did not say those things.
[27] Unfortunately there does not appear to be a digital recording from that appearance. That is not unusual since all parties were represented by counsel in motions court that day. But there is a digital recording of the May 23, 2017 hearing and having listened to it, I can say very resolutely that I did not say the things that Ubah Aganeh attributes to me on that day. The digital recording bears this out.
[28] I did not ask if Ubah has a job. I did not say that she has time on her hands or a lot of time. I did not say “oh you sit home all day.” She does not mention in her complaint letter that it was she who raised her Holy days of Ramadan as the purported basis for requesting a lengthy adjournment and I asked if she worked on those days to explore whether the religious period actually required extra time for an adjournment as discussed above. She reminded me that she was at home. I repeated that she was home all day. That is the sum and substance of the exchange. I made no demeaning reference to her religion or to her role as a mother.
[29] As to delays and Ms. Aganeh repeating herself, my costs endorsement set out above records the full extent of my comments on those points.
[30] I did advise Ubah Aganeh to try to retain a lawyer and if that was not possible to consider going to a legal clinic. In my view, this was required of me in light of Ms. Aganeh proposing to bring very substantial pieces of litigation against professional litigators who will be represented by yet more professional litigators. I was not expressing disrespect for self-represented parties. To the contrary, I was fulfilling my role to try to aid Ms. Aganeh as a self-represented party who might not have realized the very substantial legal undertaking and risks that she was taking on in the very serious types of allegations that she was proposing to make.
[31] Ubah Aganeh also complains to the CJC that in stating that her issues are minor ones I am being disrespectful to the memory of her deceased brother and that I am effectively stating that the life of a black man on disability is not worth much. Nothing could be further from the truth. The issues concerning the civil action concerning Kulmiye Aganeh’s death and the human rights complaint that are possibly subject to a contested settlement are extremely important. I am trying to help Ubah Aganeh understand that the issue that remains before me in the estate proceeding that she has brought relates only to the costs claimed against Falconers for an adjourned hearing last January. I do not see how I could have been clearer in my May 23 endorsement that the important civil issues and what proceedings Ms. Aganeh and her family may decide to take to deal with those issues, if any, are not before me. What is before me has become a distraction from those important issues. As I said in March, the tail should not wag the dog. These civil proceedings are bounded by the issues of efficiency, affordability, and especially proportionality. The minor issue of costs thrown away by an adjournment should not be the focus of the parties when there are far more important matters in the underlying proceedings. But by May 23, despite many months of oral complaints, Ubah Aganeh had continued to focus disproportionately on the costs issue and had done nothing to move forward with the civil case, the human rights complaint, or with her bald, oral allegations concerning counsel. For example, there is nothing in the evidence on the questions of whether there actually have been settlements purportedly entered into by or on behalf of the estate; whether settlement funds have been paid; whether the human rights complaint or the civil action has been dismissed; whether releases have been sought or perhaps signed by or on behalf of anyone. These seemed to be time-sensitive issues that have been allowed to go by the wayside by Ms. Aganeh’s focus on the costs thrown away by the adjournment in January. The costs issue apparently is now scheduled to be heard in December of this year. That is not an efficient procedural outcome in my view.
[32] I refer only to one last complaint raised by Ubah Aganeh. She has alleged to the CJC that I prevented her from appealing my costs award on May 23, 2017 by refusing to provide her with the transcript of the hearing. This is also not correct or true. Under the Rules of Civil Procedure, Ms. Aganeh did not need the transcript of the motion hearing to seek leave to appeal from the costs order. She had a copy of my endorsement of course. The transcript of a motion hearing is not required as part of the appeal record or a leave to appeal motion record. Moreover, under s. 74 of the Consolidated Provincial Practice Direction applicable to these proceedings, as a party litigant, Ms. Aganeh has a right to obtain digital recordings made of hearings upon signing the appropriate undertaking and paying the prescribed fee to a counter clerk. No order of a judge is required. I do recall a member of court staff asking me if I would authorize release of the recording of one proceeding or another to Ms. Aganeh. It is my practice to decline to make specific orders where none is required and where no motion for directions has been brought. I am not involved in the over-the-counter mechanics of releasing digital recordings to litigants or their counsel. If Mr. Watson wants the recordings, he must be taken to know how to obtain them under the Practice Direction.
[33] Finally, and of great importance, Mr. Watson argues that Falconers has no say in this process. He ignores the role of the competing litigant and the public interest in this process. While Ms. Aganeh makes sweeping allegations to the CJC about sexism, racism, gender bias, islamophobia, and my holding “wrong” cultural systemic ideologies, she ignores that she is suing Falconers and that it is entitled to its day in court too.
Analysis
[34] The case law on recusing judges starts with the need for “cogent evidence” to demonstrate that a judge has done something to give rise to a reasonable apprehension of bias. Judges are assumed to obey their oaths of office and the question of apprehension of bias is a matter of proof. Baseless allegations founded on perceived slights do a disservice to the administration of justice. Kelly v Palazzo, 2008 ONCA 82 at para 21.
[35] The only evidence presented on this motion is that Ms. Aganeh has delivered a letter to the CJC. In Doncaster v Chignecto-Central Regional School Board, 2013 NSCA 59, the Nova Scotia Court of Appeal wrote the following about just such a circumstance:
The law in such matters is clear. I need not recite it in detail. Obviously the mere filing of a complaint with the Canadian Judicial Council does not pull the trigger for recusal. If that were the case, one could simply file a complaint and “pick off” a judge, one by one until the complainant either found one to his liking (“judge shopping”) or there were no judges left to hear the case. Such a result is neither the law nor in the public interest.
[36] The mere making of a complaint, by itself, cannot amount to cogent or any evidence to displace the presumption of propriety. The test is what an informed person, viewing the matter realistically and practically – having thought the matter through – would conclude. R. v S. (R.D.), 1997 CanLII 324 (SCC), [1997] SCJ No. 84 (SCC) at para. 31. Mr. Watson is incorrect in his submission that the issue of evidence is solely for the CJC. The applicant has chosen to bring a motion to ask the court to recuse itself from the costs hearing based on a reasonable apprehension of bias. It is up to her to adduce cogent evidence to support her entitlement to that relief. Otherwise, Falconers is entitled to get through its legal proceeding with efficiency and proportionality just as Ms. Aganeh is. The interests of justice require civil matters to be conducted efficiently and with proportionality. Access to justice, the single greatest issue faced by the civil process today, demands efficient, affordable, proportionate, fair resolution of civil cases. Hyrniak v Mauldin, 2014 SCC 7 at para 1.
[37] As the judge who heard the January 12, 2017 motion, I was critical of Falconers in my endorsement that day. I ruled in favour of Ms. Aganeh on March 7, 2017. On March 17, 2017 Ms. Aganeh’s counsel expressed appreciation for my role in helping the family resolve their substantive issues. I did not engage in “personal banter” with Ms. Aganeh. In fact, she commented on my physical appearance after my vacation. I did not raise anyone’s religion. Ms. Aganeh raised her religion as a specious basis to request an adjournment and then was held liable in costs for her unsuccessful attempts to obtain multiple heads of substantive, injunctive relief, raised ostensibly with independent legal advice, but also with no evidence that day. Yet now she criticizes the court for granting costs on a 9:30 scheduling motion on which she sought substantive relief. She could have appealed or sought leave to appeal had she wished to do so. The digital recording of the hearing (which was always available to her) has no part in a motion for leave to appeal. Even if she felt that she needed it to bring her motion, she could have sought it over-the-counter or moved for directions. Instead, with her third counsel (despite claiming she cannot afford a lawyer and being offended at being offered the possibility of obtaining free legal advice) she moves for serious relief once again with no evidence.
[38] In my view, given the absence of any admissible evidence to support her allegations and in light of the utter lack of context and outright errors in her allegations, as the digital recording establishes, a well-informed member of the public would view this motion as an insufficient basis to displace the presumption that I will uphold my oath and deal with the parties fairly, equitably, and responsibly as I have done to this point. The issues of sexism, racism, gender bias and the like raised by Ms. Aganeh are far too important and sensitive to be left to a scatter-gun of allegations with inaccurate facts and over-broad political bromides. It is incumbent on an applicant to present detailed, clear, and strong evidence before blithely casting such allegations about.
[39] Ms. Aganeh has intentionally declined to adduce any evidence to support the allegations that she has made. That alone is a basis to decline the relief that she seeks.
[40] Motion dismissed. Falconers may deliver no more than three pages of costs submissions supported by a costs outline by October 6, 2017. Ubah Aganeh may deliver no more than three pages of costs submissions also supported by a costs outline by October 20 2017. Costs submissions shall be delivered to my Assistant as searchable PDF formatted attachments to an email. No copies of case law or statutory materials shall be delivered to me. Rather, references to cases or statutory material, if any, shall be made by hyperlinks embedded in the submissions.
F.L. Myers J.
Date: September 27, 2017