CITATION: Aganeh v Aganeh, 2017 ONSC 6386
COURT FILE NO.: 01-0929/10
DATE: 20171024
ONTARIO SUPERIOR COURT OF JUSTICE
B E T W E E N:
UBAH AGANEH
-and-
TIMORO HUSSEIN AGANEH, in her capacity as Estate Trustee of the Estate of Kulmiye Hussein Aganeh
BEFORE: F.L. Myers J.
COUNSEL: Richard K. Watson, counsel for the applicant
Richard Macklin and Malini Vijaykumar, counsel for the Falconers LLP
READ: October 24, 2017
ENDORSEMENT
[1] By endorsement dated September 27, 2017, reported at 2017 ONSC 5733, the court dismissed a motion brought by the applicant to recuse the court for bias.
[2] The responding party seeks its costs of the motion on a full indemnity basis of $5,274.84 all-inclusive or, alternatively, two-thirds of that amount as partial indemnification for its costs.
[3] On the motion, the applicant relied upon a complaint that she made to the Canadian Judicial Council as a basis to argue that there was a reasonable apprehension that the court was biased and could not conduct a hearing with integrity.
[4] The applicant submitted no evidence in support of her claim for recusal other than a copy of her complaint filed through a law clerk’s affidavit. The applicant did not attest to the truth of the contents of her complaint.
[5] The complaint was not known to the court prior to the applicant filing it in support of her motion. The apprehension of bias on which Ms. Aganeh relied, purportedly caused by the court’s knowledge of her having made a complaint, could not have existed until she chose to bring her complaint to the court’s attention.
[6] In her letter of complaint Ms. Aganeh alleged that the court had made a number of objectionable statements at prior hearings. At the time of the hearing of the recusal motion only the recording of one hearing was available. It did not contain most of the statements that Ms. Aganeh attributed to the court in her complaint. It also established that the context of the statement that was made was not at all as propounded by Ms. Aganeh.
[7] Ms. Aganeh made her most pointed allegation concerning a March 7, 2017 hearing. At the time of the recusal motion it was believed that there was no recording made of the March 7th hearing. The Transcriptionists’ Office subsequently located a digital recording of that hearing too. The recording also makes it clear that the allegations made by Ms. Aganeh respecting things said by the court during that hearing were not, in fact, said. Believing there was no recording available to challenge her complaint, Ms. Aganeh made allegations that were not truthful.
[8] Ms. Aganeh alleged that the court espoused racist, sexist, and Islamophobic views among other discriminatory misconduct. The allegations were of the most serious nature.
[9] Ms. Aganeh made her allegations in the context of an ongoing proceeding to assess her entitlement to costs thrown away by an adjournment against her former counsel Falconers LLP who appeared as counsel for the respondent on the motion. After a number of scheduling appearances, on May 23, 2017 the court held Ms. Aganeh liable for costs of $500 for a hearing in which she had failed to move forward with the proceeding. Falconers was entitled to costs of that day for having counsel attend the hearing at which nothing was accomplished due to Ms. Aganeh’s conduct. In the endorsement that day, the court wrote:
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.
[10] The underlying costs issue also involves just the costs thrown away by a single attendance. The proceeding for which that attendance was required has settled. So the costs at issue are modest. They involve a few hours of wasted preparation and attendance fees. Proportionality demanded that the issue be dealt with finally to prevent the costs of the dispute from overwhelming the amount in issue. It is too late for that now it appears.
[11] Instead of bringing on the outstanding costs matter in accordance with the schedule set on consent on August 25, 2017, Ms. Aganeh returned with the motion to recuse. She did so, once again, with unsworn allegations in circumstances in which the law calls for clear evidence. As noted by Falconers in its costs submissions:
This recusal motion is just another attempt to make a "mountain" out of a $500 "molehill". This is evident from the lack of evidence adduced by the moving party.
[12] Falconers seeks its costs on the basis that it was reasonable for it to appear at the recusal motion to argue against recusal so as to keep the costs application against it moving forward toward an efficient conclusion. It says that costs of the recusal motion should follow the event.
[13] Ms. Aganeh submits that recusal motions are a specific type of motion that have their own costs rules. She relies on a case from Alberta and one from BC for the proposition that costs should not be ordered on a recusal motion except where it is brought for an improper purpose.
[14] The Alberta case, Edmonton Flying Club v Edmonton Regional Airports Authority, 2013 ABQB 108 does accept the analysis that recusal motions ought to be treated differently. At the same time, the court awarded costs in favour of the respondent in that case. The court held that costs should be awarded in favour of a successful party opposite if the moving party should reasonably have expected the other party to appear.
[15] Of greater significance, the court referred to two Ontario cases, Direk v Attorney General of Ontario, 2011 ONSC 7353 and Schreiber v Mulroney, 2007 CanLII 34441 (ON SC), that do not accept the gloss adopted in the Western Canadian cases.
[16] In Direk, Stinson J. of this court ruled that costs follow the normal rule even when accompanied by allegations that could lead to the removal of the judge from further involvement in the proceedings. In Schreiber, Newbould J. applied the ordinary costs rules as well in a motion to recuse. Both judges awarded costs against the unsuccessful moving party in favour of the responding party on a partial indemnity basis.
[17] Ms. Aganeh argues that she had a positive ethical obligation to make her complaint and to bring the recusal motion. She says that the trigger of her conduct was the behaviour of the court “as she experienced it and reacted to it.” That can be said of every case in which the parties make allegations of fact that are not ultimately sustained by the court. Here however, more than Ms. Aganeh’s subjective reaction was at play. She alleged facts that are not supported by the recordings. Moreover, she did not adduce any evidence to support counsel’s submission that her allegations reflected her true belief or her actual experience and reaction. The recordings suggest otherwise.
[18] Ms. Aganeh argues that the motion was “clearly arguable and certainly not matters that were foreseeable as free from doubt.” That could only be correct if Ms. Aganeh had adduced evidence that proved the allegations made. Absent evidence, the motion was not well-founded and could not have succeeded in face of the case law requiring clear evidence to surmount the presumption of integrity.
[19] Ms. Aganeh argues that she had no motive for delay or to frustrate the motion for costs thrown away against Falconers. This seems to be true on the surface of the statement. But it fails to explain why Ms. Aganeh has declined to proceed with the costs hearing since last March despite timetables designed to encourage a proportionate process.
[20] Ms. Aganeh argues that Falconers’ rights and interests were not engaged in the motion. The court rejected this argument in its endorsement previously. At para. 33 of the recusal motion endorsement, the court wrote:
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.
[21] At para. 36 the court held:
It is up to [Ms. Aganeh] 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.
[22] As noted by Master Albert in 4361814 Canada Inc. v Dalcor Inc., 2015 ONSC 2486 (Ont. Master) at opera. 63:
…[R]esponding parties should be encouraged to participate in recusal motions so that a complete record is before the court on the motion.
[23] Ms. Aganeh submits that there was no basis for Falconers to take a position on the motion and its appearance ought to be regarded as voluntary. She simply ignores the courts’ findings concerning the role of the party opposite who is entitled to move forward with its proceeding and end its costly jeopardy through a fair, efficient, proportional process.
[24] Falconers has responded to the court’s initial criticism of its role by attempting to bring on the costs hearing on its merits. It has attended multiple hearings arguing in favour of scheduling so as to have the matter heard. It has repeatedly argued against ongoing delays. Ms. Aganeh ought reasonably to have expected counsel to appear and attempt to protect the scheduling of the costs hearing and to try to contain her efforts to expand the process. That is what it has done throughout and that is what it did on the recusal motion.
[25] In my view, costs ought to follow the event. That is the normative approach in Ontario.
[26] The fixing of costs is a discretionary decision under section 131 of the Courts of Justice Act. That discretion is generally to be exercised in accordance with the factors listed in Rule 57.01 of the Rules of Civil Procedure. These include the principle of indemnity for the successful party (57.01(1)(0.a)), the expectations of the unsuccessful party (57.01(1)(0.b)), the amount claimed and recovered (57.01(1)(a)), and the complexity of the issues (57.01(1)(c)). Overall, the court is required to consider what is “fair and reasonable” in fixing costs, and is to do so with a view to balancing compensation of the successful party with the goal of fostering access to justice: Boucher v Public Accountants Council (Ontario), 2004 CanLII 14579 (ON CA), (2004), 71 O.R. (3d) 291, at paras 26, 37.
[27] Falconers argues that it ought to be entitled to full indemnity for its costs in light of Ms. Aganeh proceeding based on allegations rather than evidence. She has already been expressly warned by a costs award against such conduct. Here she not only repeated her impropriety but did so making serious allegations of misconduct without supporting them with any evidence whatsoever and, in fact, contrary to the recordings that evidence the actual events.
[28] I hesitate to lay the full costs of Ms. Aganeh’s mis-step at her feet. The motion should not have been brought without due diligence on the facts and, especially, without evidence. Moreover, the recordings were available had Ms. Aganeh taken advantage of the process set out in the relevant Practice Direction which ought to have been known to her through her counsel. But these issues also do not lie at Falconers’ feet. There is no basis for it to be burdened with the costs of Ms. Aganeh’s failure to proceed appropriately. As between the two litigants, any concerns as to the inappropriate process adopted lie with Ms. Aganeh and her counsel.
[29] In my view, the making of serious allegations against the court is different than making them against the opposite party. Making serious allegations against the opposite party and failing to prove them normally leads to an enhanced costs award to vindicate the innocent party and to compensate for damage done. The court does not need or engage in vindication and a costs award to a party does not compensate for any damage done.
[30] In my view, Ms. Aganeh ought to be responsible to indemnify Falconers LLP for its reasonably foreseeable partial indemnity costs. At 60% of fees plus HST, it is fair and reasonable for Ms. Aganeh to pay Falconers LLP costs of $3,165.00 all-inclusive. Falconers does not claim for any disbursements. Therefore, Ms. Aganeh shall pay costs of $3,165 to Falconers LLP within 60 days. Should Ms. Aganeh obtain a costs award against Falconers LLP within that time, she will be entitled to setoff any costs due to her against the costs ordered against her in this decision.
[31] Counsel should contact the Estates office forthwith to book a one-hour hearing before me of Ms. Aganeh’s claim for costs thrown away against Falconers LLP.
F.L. Myers J.
Date: October 24, 2017