Beaver v. Hill
Ontario Superior Court of Justice Pazaratz J. November 28, 2018 144 O.R. (3d) 46 | 2018 ONSC 7138
Case Summary
Family law — Practice — Case management — Respondent moving to have former case management judge recuse himself on ground of reasonable apprehension of bias — New case management judge dismissing motion — Motion premature and pointless as there was no indication that former case management judge would have any future involvement with case — Respondent having ulterior motive of revisiting prior rulings by former case management judge — Court having jurisdiction to dismiss or quash motion that was abuse of process or improperly brought.
The respondent in matrimonial litigation brought a motion to have the former case management judge recuse himself from hearing future matters on the basis of a reasonable apprehension of bias arising from some of the judge's prior comments. The motion was heard by the new case management judge.
Held, the motion should be dismissed.
The motion was premature and pointless, as there was no indication that the former case management judge would have any future involvement with this case. The respondent had an ulterior motive for bringing a recusal motion in that he hoped to revisit prior rulings by the former case management judge. The court has an inherent jurisdiction to dismiss or quash a motion that is an abuse of process or improperly brought. Moreover, the underlying principles of the Family Law Rules, O. Reg. 114/99 and the objectives of case management emphasize the need to save time and expense and to ensure procedural fairness for all parties.
Cases Referred To
Beaver v. Hill, [2018] O.J. No. 5262, 2018 ONCA 816
Rules and Regulations Referred To
Family Law Rules, O. Reg. 114/99, rule 2 [as am.], (5) (a)
Motion
MOTION for an order that the judge recuse himself.
Counsel
Harold Niman, Joanna Radbord, Scott Byers and Sarah Strathopolous, for applicant. Bryan Smith, Sarah Conlin, Chris Paliare, Andrew Lokan, Paul Davis, Charles Merovitz, Melvyn Solmon and Malliha Wilson, for respondent.
Endorsement
PAZARATZ J. : —
This case has developed into a procedural morass, to which both sides have contributed. A phalanx of lawyers appeared before us. The parties have made no effort to save expense or time as required by ss. 2(3) of the Family Law Rules: Titova v. Titov, 2012 ONCA 864, 299 O.A.C. 215, at para. 54. Their tactics have led to a proliferation of materials, skirmishes and arguments that the Rules seek to avoid. This must not be permitted to continue.
The case going forward requires active and determined case management, with a view, in particular, to avoiding the sort of free-ranging general inquiry Binnie J. deplored in Lax Kw'alaams Indian Band. We were told that this matter is now being case-managed. It will fall to the case management judge, in the first instance, to ensure that this objective is met.
[1] That was the Ontario Court of Appeal talking about this case -- these parties; these lawyers -- as recently as October 12, 2018: [2018] O.J. No. 5262, 2018 ONCA 816, at paras. 78 and 79.
[2] It is within that context that I must make a decision about a motion brought on behalf of the respondent on July 27, 2018 seeking the following relief:
(a) Judgment that the Honourable Mr. Justice Sloan recuse himself from presiding over any further matters in relation to the proceeding under Court File No. FS-963-15 in the Superior Court of Justice in Kitchener, Ontario.
(b) costs of this application, if opposed; and
(c) such further and other Relief as to this Honourable Court may seem just.
[3] That's what they say they're asking for. On paper, that's all they say they're asking for.
[4] But in reality, there's obviously more afoot.
[5] The background is enormously complicated, but today's issue is really quite simple.
[6] This is a file involving an unmarried relationship; parenting issues with respect to a nine-year-old child; child and spousal support claimed against a high-income payor; some extremely complicated constitutional issues; protracted disputes about amending pleadings; and complex disclosure issues. There are other issues as well, but that's a quick overview.
[7] There have already been numerous court attendances, and along the way Justice Sloan presided over at least one case conference and made a series of (mostly temporary) orders.
[8] The respondent has clearly identified that he is unhappy with a number of Justice Sloan's orders (some of which he has appealed). The respondent has also expressed concern about some of Justice Sloan's comments in court.
[9] As a result of the combination of these concerns, the respondent takes the position that there would be a reasonable apprehension of bias if Justice Sloan were to preside over any future matters on this file. Accordingly, the respondent has brought this motion requesting that Justice Sloan be recused from "presiding over any further matters" in this case.
[10] If the motion is to proceed, it will obviously have to be decided by Justice Sloan. I am not going to deal with the recusal motion on its merits. I make no substantive determinations. But there is a threshold procedural issue which I must address.
[11] As counsel for the applicant have stated (without filing any responding materials), at the very least this motion is premature. More to the point, there is a fundamental issue about whether this motion would ever need to be decided. Whether the motion deals with a moot point.
(a) Justice Sloan is not currently scheduled to preside over any further matter on this file.
(b) Insofar as Justice Sloan participated extensively in case management, he would in any event be precluded from presiding over any trial.
(c) Unrelated to the respondent's motion, I have now been assigned to be the case manager on this file, to deal with all conferences. So, there's no expectation that Justice Sloan -- or any judge other than me -- will be involved in ongoing case management.
(d) So the reality is that the respondent's motion seeks to recuse Justice Sloan from having any future involvement with this file -- even though Justice Sloan isn't going to have any future involvement with the file anyway.
[12] I suggested to the respondent's counsel that on a file which is already languishing with too much lawyering and too many interlocutory steps (not to mention various appeals), that it would be more sensible to focus on actually trying to settle this case, rather than bring motions to decide things that don't need to be decided. I suggested that perhaps the recusal motion would only need to be considered if there was any indication that Justice Sloan was going to be scheduled to preside over a future event. But the respondent's counsel insisted that even if it is clear that Justice Sloan will not be presiding over any future events, they still want to proceed with this motion -- seeking a court order that he not do something he isn't going to do anyway.
[13] That's not just overkill.
[14] That's not just acting out of an abundance of caution.
[15] If it sounds like there's some sort of hidden agenda here, it's because there is a hidden agenda.
(a) "Hidden" in the sense that it's not spelled out in the notice of motion.
(b) But during submissions, counsel were fairly candid about what they're really hoping to accomplish.
[16] The end game here is not just a request to have Justice Sloan recuse himself from future decisions. There are other motives and strategies.
[17] The respondent's counsel identified that they feel Justice Sloan made certain errors in previous orders, and they are hoping that during the course of dealing with a recusal motion he will also take it upon himself to reverse or change some of his previous determinations.
(a) That sounds a bit far-fetched. There was certainly no mention of "maybe he'll change his mind" in the respondent's notice of motion.
(b) There is no mechanism for a judge taking it upon himself to change a previous order once it is issued and entered.
(c) And the respondent is presuming that Justice Sloan made errors and that he should take it upon himself to correct those errors.
(d) That's not the way it works.
(e) Justice Sloan made some orders. The respondent is appealing some of those orders. A higher court will ultimately determine whether the orders need to be changed or set aside. There is no presumption that an appeal automatically has merit or will be successful.
(f) In any event, the purpose of a recusal motion is not to give a judge an opportunity to voluntarily reconsider past decisions.
[18] More to the point -- and quite candidly -- counsel for the respondent admitted that if they are successful in having Justice Sloan recused with respect to future cases, such a finding would create a further avenue for them to attack his past decisions.
(a) Again, we're talking about orders the respondent is already appealing. An appeal is the appropriate way to challenge the correctness of an order. The respondent has already initiated that process, and he will have his day in court.
(b) But the respondent wants to use a recusal order as the foundation for a second attack upon previous orders, in case the existing appeals are unsuccessful.
(c) Again, that's not the way it works.
(d) Either the appeals will be successful, or they won't. That's up to another court to decide. Not me. Not Justice Sloan.
(e) Presumably, however many arguments the respondent has in support of each appeal, the respondent's lawyers will fully outline every possible ground of appeal.
(f) They get one kick at the can.
[19] The pivotal issue in this case was summarized in the aforementioned Court of Appeal judgment [at para. 4]:
In December 2015, Ms. Beaver brought an application for B.'s custody under the Children's Law Reform Act and child and spousal support under the Family Law Act. Mr. Hill filed an answer and defence in the usual form in February 2016. However, in March 2016, he filed a notice of constitutional question challenging the jurisdiction of the Superior Court, as well as the applicability of the CLRA and FLA, on the basis that he had an Aboriginal and treaty right, protected by s. 35 of the Constitution Act, 1982, to have his family law disputes resolved pursuant to Haudenosaunee law. He claimed what might be characterized as a constitutional exemption from the application of Ontario family law and the jurisdiction of the Superior Court to determine the parties' dispute. Mr. Hill also gave notice of his constitutional claim to the Chief of the Six Nations and to the Haudenosaunee Confederacy Council but neither has taken steps to intervene or participate.
[20] In that context, the respondent's ultimate goal is not just to recuse this one Superior Court Judge. The unconcealed objective is to eventually eliminate all Superior Court Judges from dealing with his case. The respondent's sweeping criticism of the judiciary is evident in his motion documents which include the statement:
2(gg)(ii) there is a systemic issue and Judges of the Family Court are not experienced, nor do they understand life on the Reserve and the effect of the orders made[.]
[21] Related to this, the respondent's counsel confirmed that after the recusal motion is heard, the respondent will be bringing a motion to have this matter transferred from Kitchener to Toronto (even though nobody has any connection with Toronto except the lawyers).
(a) No explanation was given as to the rationale for a change in venue.
(b) No explanation was given as to why a motion to change venue is sequentially related to this recusal motion.
(c) First, they want to eliminate one judge in Kitchener.
(d) Next, they will try to eliminate all judges in Kitchener.
(e) It's just one more procedural motion being contemplated on a file that's already seen too many motions.
[22] Counsel for the respondent submit that even if ordinary scheduling considerations preclude Justice Sloan from being assigned to this file in the future, the respondent should still be able to proceed with this motion. They note that the respondent is a member of the Haudenosaunee community -- and the Haudenosaunee community feels aggrieved by past court decisions and they are entitled to a "perception" that justice is being done.
[23] I agree that perceptions are important. But if we bend or disregard the rules to allay the perceptions of one person or group, we run the risk of inflaming the perceptions of others who might validly question why the rules don't apply equally to everyone.
[24] As stated, I make no comment about the merit of any outstanding appeal of previous orders. That will be decided by others.
[25] I make no comment about the merit of the recusal motion. If there was any possibility that Justice Sloan would be assigned to a future event on this file, that would be the time for the recusal motion to proceed. I make no prediction as to the result.
[26] There are many other important issues on this file. And today it is not my place to decide any of those issues.
[27] The only issue before me is whether the respondent's motion to recuse Justice Sloan from future events should proceed.
[28] Counsel for the applicant submit the respondent's motion is a waste of the court's time because from a practical point of view Justice Sloan wouldn't have any more involvement on this file even if the recusal motion hadn't been brought. They call it an abuse of process, because the respondent's notice of motion says he's asking for one simple thing, but really his ulterior motive is to use this motion for other strategic advantage.
[29] The bottom line is that this court has an obligation to be sensible, even if the parties and lawyers aren't.
[30] Courts exist to resolve real disputes between parties. Not to provide opinions in response to hypothetical or academic problems. And certainly not to encourage or facilitate convoluted litigation strategies.
[31] If the reality is that Justice Sloan would not be assigned to future events on this file anyway, then a motion seeking his recusal is not only premature -- it's pointless and purely hypothetical.
[32] The court has a common law or inherent jurisdiction to quash or dismiss a motion that is an abuse of process or improperly brought.
[33] Beyond that, the underlying principles of the Family Law Rules, O. Reg. 114/99 and the objectives of case management emphasize the need to save time and expense and ensure a fair procedure to all parties.
[34] Apparently no one was listening when the Court of Appeal went out of its way to remind these parties about Rule 2:
Primary Objective
2(2) The primary objective of these rules is to enable the court to deal with cases justly.
Dealing with Cases Justly
(3) Dealing with a case justly includes,
(a) ensuring that the procedure is fair to all parties;
(b) saving expense and time;
(c) dealing with the case in ways that are appropriate to its importance and complexity; and
(d) giving appropriate court resources to the case while taking account of the need to give resources to other cases.
Duty to Promote Primary Objective
(4) The court is required to apply these rules to promote the primary objective, and parties and their lawyers are required to help the court to promote the primary objective.
Duty to Manage Cases
(5) The court shall promote the primary objective by active management of cases, which includes,
(a) at an early stage, identifying the issues, and separating and disposing of those that do not need full investigation and trial;
(b) encouraging and facilitating use of alternatives to the court process;
(c) helping the parties to settle all or part of the case;
(d) setting timetables or otherwise controlling the progress of the case;
(e) considering whether the likely benefits of taking a step justify the cost;
(f) dealing with as many aspects of the case as possible on the same occasion; and
(g) if appropriate, dealing with the case without parties and their lawyers needing to come to court, on the basis of written documents or by holding a telephone or video conference.
[35] I find that allowing the respondent to proceed at this time with a motion about a non-issue would be inconsistent with many important components of Rule 2:
(a) It would be inconsistent with the primary objective.
(b) It would waste time and money (including substantial cost to the taxpayer whenever judges spend time dealing with matters that shouldn't be in court).
(c) The recusal motion would require one full day to be heard. Our overburdened court system can't -- and shouldn't -- waste scarce resources on a needless motion, to the detriment of other families who desperately need court time to decide real issues.
[36] Some motions are merely misguided. Anyone can make a mistake.
[37] But this motion needs to be viewed in context.
[38] As the Court of Appeal noted, the respondent "can easily afford" this litigation. The applicant cannot.
[39] When you give a team of very talented and expensive lawyers a blank cheque to dredge up every conceivable argument and motion you can think of, this is what happens.
[40] It's not just financially wasteful.
[41] It's gamesmanship, which precludes honest settlement discussion.
[42] Whether you call it oppression or a war of attrition -- it's basically one side trying to avoid the real issues, by creating as many legal hurdles as possible.
[43] That's the real perception the respondent should worry about.
[44] I suggested to the respondent's counsel that this motion could simply be adjourned indefinitely, returnable only if there is any suggestion that Justice Sloan will be assigned to this file in the future.
(a) The respondent's counsel did not dispute that as the case management judge, I have the authority to control the court process and to "separate and dispose of those issues that do not need full investigation and trial" (rule 2(5)(a)).
(b) However, the respondent's counsel insisted that I don't have the jurisdiction to delay their motion indefinitely.
(c) They requested that I make a decision: Schedule the motion to be heard by Justice Sloan, or dismiss the motion.
[45] My order:
(a) The respondent's motion seeking an order that Justice Sloan be recused from presiding over any further matters in this proceeding is dismissed, without prejudice to the motion being returned in the event that Justice Sloan is assigned to a future event on this file.
(b) If counsel wish to address any other issue (including costs), they may do so when this matter returns before me for a continuation of a settlement conference on January 16, 2019 at 10:00 a.m.
Final Order
Motion dismissed.