Court File and Parties

COURT FILE NO.: CV-17-568667 DATE: 20180528

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Andrew Faas and The Faas Foundation, Applicants – AND – Centre for Addiction and Mental Health Foundation and Centre for Addiction and Mental Health, Respondents

COUNSEL: Ronald Lachmansingh, for the Applicants Thomas Curry, Rebecca Jones, and Kelly Hayden, for the Respondents

BEFORE: E.M. Morgan J. HEARD: May 28, 2018

ENDORSEMENT – RECUSAL request

[1] Mr. Lachmansingh has asked me to recuse myself on the basis that an endorsement that I made in a motion four years ago shows that I had formed a bias – or, at least, suggests an apprehension of bias – against Mr. Faas. In that endorsement, reported as Faas v Coloroso, 2014 ONSC 4494, I had to consider Mr. Faas’ request for costs of a motion that was brought against him and that was abandoned by the opposing side. I deferred the request for costs to the trial judge.

[2] It is not the result of that motion for costs that concerns Mr. Lachmansingh, but rather it is a finding that I made along the way that he characterizes as adverse to Mr. Faas. The present case is an altogether different case, and Mr. Faas is litigating against an altogether different party. Both counsel indicate, however, that the credibility issues that were at stake in Faas v Coloroso have been replayed here, at least in the cross-examinations leading up to the present application.

[3] The Faas v Coloroso case involved allegations of copyright infringement against Mr. Faas. Ms. Coloroso had seen a manuscript of his book and alleged that he copied from her own writing. Mr. Faas denied wrongdoing – Mr. Lachmansingh explains that it was his position that the passages in issue were not original to Ms. Coloroso – but in any case he conceded the similarity of some of the passages in issue. He then produced a revised draft that resolved the issues to both sides’ satisfaction. Ms. Coloroso did not pursue her motion any further. Mr. Faas then moved for costs thrown away.

[4] In the process of analyzing Mr. Faas’ costs request, I indicated that it was necessary to first of all determine whether Ms. Coloroso at least had some reasonable grounds for bringing the motion. In that context, I had to review her grounds as set out in her Motion Record. I determined that she was not unreasonable in bringing a motion, even though she might ultimately have lost or won; I was making no judgment on its actual merits.

[5] The Supreme Court of Canada has stated that “The grounds for this apprehension [of bias] must…be substantial…and the test [will not] be related to the very sensitive…conscience”: R v S (RD), 1997 CanLII 324 (SCC), [1997] 3 SCR 484, at paras 31, 37. The Court of Appeal has offered further guidance on the issue, stating that it is the viewpoint of the reasonably informed person, and not the subjective view of the parties themselves, that define apprehension of bias. “The reasonable person is vested with knowledge and understanding of the judicial process and the nature of judging”: Ontario Provincial Police v Mac, 2009 ONCA 805, at para 42. That means, at the very least, a person who has read my 2014 endorsement in Faas v Coloroso all the way through. For that person, it will be apparent that at the time I was impressed with Mr. Faas’ reasonableness. Indeed, I expressly said so twice, at paras 24 and 26 of my endorsement.

[6] My endorsement makes it clear that I did not have the full adjudication to review, only the Motion Record. On the basis of that record – specifically the Schedule which apparently put Mr. Faas’ manuscript and Ms. Coloroso’s writing side by side – I said at para 6 of my endorsement that there was an appearance of extensive and flagrant copying. But I was also entirely aware that I had not heard Mr. Faas’ response to the abandoned motion, and that there was bound to be another side to the story (which Mr. Lachmansingh advises there certainly was). Thus, at para 24 of my endorsement, I specifically said that I do not blame either side for the way this motion and its abandonment has transpired.

[7] I do not see how a reasonably informed reader of my endorsement could conclude that I had formed an adverse view of one side when I specifically said that I did not form any such adverse view. That is, I made a point of stating that I found no fault with either side for the matter that was before me.

[8] I therefore do not view this as a reason to recuse myself from the present case. I come to the present matter with no pre-formed view of Mr. Faas or the controversy before me, and I am convinced that the reasonably informed reader would come to the same conclusion.

Morgan J.

Date: May 28, 2018