Court File and Parties

COURT FILE NO.: 4067/18 DATE: 2018-10-03 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

LEGAL AID ONTARIO (Assignee of Patti Bellerive) Appellant – and – KEVIN HAMMOND Respondent

COUNSEL: J. Stanley Jenkins, for the Appellant Self-Represented, for the Respondent

HEARD: July 6, 2018

Varpio J.

Reasons on Appeal

[1] This is an appeal of an Order flowing from a procedurally tangled court proceeding that, at the end of the day, has a simple resolution.

[2] On July 4, 2012, Kukurin J. of the Ontario Court of Justice released reasons from a trial he had heard over the course of the previous year. Significant submissions were made regarding costs in August 2012, December 2012 and January 2013. After a significant delay by Kukurin J., the justice requested further costs submissions on October 2, 2014.

[3] On October 24, 2014, the respondent Mr. Hammond moved to stay costs proceedings based on section 7 of the Charter of Rights and Freedoms. No relief was sought under section 106 of the Courts of Justice Act. On December 9, 2014, Kukurin J. released his costs reasons but, in view of the pending Charter motion, he sealed same pending direction of the Court. On May 25, 2015, the parties consented and the reasons were released. Mr. Hammond owed $81,046 (plus GST) as a result of Kukurin J.’s costs decision.

[4] In December 2017, the Charter motion was heard by Kwolek J. of the Ontario Court of Justice. On March 2, 2018, Kwolek J. held the Charter to be inapplicable but stayed the costs Order under s. 106 of the Courts of Justice Act.

[5] Legal Aid Ontario (“LAO”) appealed the Kwolek J.’s ruling and subsequent Order. At the hearing, I asked both parties for written submissions regarding whether or not Kwolek J. had jurisdiction to hear the motion. I am also lead to believe that Mr. Hammond appealed Kukurin J.’s underlying costs award.

[6] In its written submissions, LAO averred to the fact that all parties agreed at a case conference to allow the Charter motion to proceed before another judge.

Analysis

[7] It is trite law to state that a trial judge is seized of the trial matters that appear before her or him. In Abrams and McGuinness, Canadian Civil Procedure Law, 1st ed. (Markham: LexisNexis Inc., 2008) the authors state at Section 1.165:

While the jurisdiction conferred upon a court belongs to the court rather than to the individual judges who comprise it, ordinarily once a judge becomes seized of a matter no other judicial officer may act in regard to the matter…

[8] In Wessel v. Wessel, 1978 O.J. No. 3454 (C.A.), the Court dealt with a situation whereby the parties asked Justice Rutherford to deal with a matter that was being considered by a separate justice. This separate justice had presided over a trial and matters remained outstanding. In finding that Justice Rutherford had no jurisdiction to hear the matter, the Court stated at para. 4:

We are all of the opinion that this appeal must succeed. There is no provision in the Rules by which the parties had the right to ask Mr. Justice Rutherford to interpret some provisions of a transcript of proceedings before another trial Judge before whom an action has been called for trial, and there is no judgment, but the matter has been adjourned sine die. In the circumstances, he had no jurisdiction to make the order that he made resolving the rights of this plaintiff and in particular the future right to claim for maintenance in other proceedings. We are of the opinion that the proper order for him to have made in the circumstances was to quash the motion before him.

[9] It is thus clear that parties may not have a justice deal with matters where a separate justice remains seized of those matters, absent exceptional circumstances. [1]

[10] It is also clear that costs is a part of the trial process. [2]

[11] It is thus clear that Kwolek J. had no jurisdiction to hear a Charter motion or a motion under section 106 of the Courts of Justice Act since Kukurin J. was seized of the matter.

[12] Accordingly, Kwolek J.’s Order is hereby quashed.

[13] I make no comment as to the propriety of entertaining any of the arguments raised before Kwolek J. at the appeal of Kukurin J.’s cost order.

Costs

[14] Should LAO wish to seek costs in this matter, it will file written submissions of no more than two pages with 15 days of the release of these reasons. Mr. Hammond will have 15 days to respond (in a similar length).

Varpio J.

Released: October 3, 2018

Footnotes

[1] There was no application made under section 123 of the Courts of Justice Act to have the matter adjudicated by someone other than Kukurin J. Such an application would, of course, need to be made to the Chief Justice of the Ontario Court of Justice.

[2] Coniagas Reduction Co. v. H.E.P. Com’n., [1932] O.R. 463.