COURT FILE NO.: CV-18-5326 DATE: 20200218

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

THE REGIONAL MUNICIPALITY OF PEEL POLICE SERVICES BOARD Rafal Szymanski, counsel for the applicant Applicant

• and -

DARREN JOHN In person Respondent

RECUSAL MOTION

ENDORSEMENT

Daley, RSJ.

Introduction:

[1] The applicant, The Regional Municipality of Peel Police Services Board (the “Board”) brought an application seeking an order declaring the respondent, Darren John, a vexatious litigant pursuant to s. 140 of the Courts of Justice Act, R.S.O. 1990, c. C.43.

[2] Upon the return of the application for hearing before the court, the respondent made an oral motion that I recuse myself from hearing the Board’s application on the basis of an alleged bias or a reasonable apprehension of bias.

[3] Following the viva voce evidence offered by the respondent, and having heard the submissions on behalf of both the respondent and the Board, the respondent’s recusal motion was dismissed with detailed reasons to follow. These are my reasons.

[4] The respondent did not file any affidavit material in support of his recusal motion and relied solely upon his viva voce evidence in support of the motion.

[5] In the past, I have considered several requests submitted pursuant to Rule 2.1.01(1) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 by counsel on behalf of defendants in the actions brought by the respondent.

[6] Essentially it was the respondent’s evidence that the decisions I reached regarding the requests made pursuant to Rule 2.1.01(1) demonstrated a bias or reasonable apprehension of bias on my part against the respondent such that I should recuse myself from hearing this application.

[7] The record shows that in the circumstances of one action, namely John v. The Peel Regional Police Services Board et al., CV-15-2631 (Brampton), by an order of July 27, 2015, I dismissed the respondent’s action pursuant to Rule 2.1.01(1) and awarded costs payable by him in the sum of $3,323.44.

[8] In two other requests under Rule 2.1.01(1) in the actions John v. Wright, CV-15–5223 (Brampton), and John v. Cooper, CV-13-4165 (Brampton), I denied requests seeking to have the respondent’s actions dismissed as frivolous, vexatious and an abuse of the court process for the reasons released.

[9] The essence of the respondent’s evidence in support of his motion that I recuse myself is that I have made findings against him in the past and awarded costs payable by him. The respondent argues that this evidence demonstrates bias or reasonable apprehension of bias.

Legal Framework and Analysis:

The principles applicable to the determination of a recusal motion based on alleged bias or the reasonable apprehension of bias have been clearly stated in several cases, including the Supreme Court of Canada decision in R. v. S. (R.D.), [1997] 3 S.C.R. 484.

[10] As to what constitutes bias, the Court in S. (R. D.) held at para. 105:

In contrast, bias denotes a state of mind that is in some way predisposed to a particular result, or that is closed with regard to particular issues. A helpful explanation of this concept was provided by Scalia J. in Liteky v. U.S., 114 S.Ct. 1147 (1994), at p. 1155:

The words [bias or prejudice] connote a favorable or unfavorable disposition or opinion that is somehow wrongful or inappropriate, either because it is undeserved, or because it rests upon knowledge that the subject ought not to possess (for example, a criminal juror who has been biased or prejudiced by receipt of inadmissible evidence concerning the defendant’s prior criminal activities), or because it is excessive in degree (for example, a criminal juror who is so inflamed by properly admitted evidence of a defendant’s prior criminal activities that he will vote guilty regardless of the facts). [Emphasis in original.]

Scalia J. was careful to stress that not every favourable or unfavourable disposition attracts the label of bias or prejudice. For example, it cannot be said that those who condemn Hitler are biased or prejudiced. This unfavourable disposition is objectively justifiable -- in other words, it is not “wrongful or inappropriate”: Liteky, supra, at p. 1155.

[11] Impartiality was described by Cory J. in S. (R. D.) at para. 104 as:

……. “impartiality can be described – perhaps somewhat inexactly – as a state of mind in which the adjudicator is disinterested in the outcome, and is open to persuasion by the evidence and submissions.”

[12] There is a high threshold on a motion for recusal as such a motion calls into question an element of judicial integrity. Such an allegation of bias or reasonable apprehension of bias not only calls into question the personal integrity of the judge, but the integrity of the entire administration of justice: S. (R. D.), at para. 113.

[13] In light of the presumption of judicial impartiality, the onus of demonstrating bias lies with the party who alleges its existence and bias must be proved on a balance of probabilities: R. v. Nero, 2016 ONCA 160, at paras. 30-32.

[14] As was stated by Doherty J.A. in Beard Winter v. Shekdor, 2016 ONCA 493, at para. 10:

“.. judges do the administration of justice a disservice by simply yielding to entirely unreasonable and unsubstantiated recusal demands. Litigants are not entitled to pick their judge. They are not entitled to effectively eliminate judges randomly assigned to their case by raising specious partiality claims against those judges. To step aside in the face of a specious bias claim is to give credence to a most objectionable tactic.”

[15] As to the respondent’s recusal motion, there is no evidence whatsoever which, evaluated through the eyes of the reasonable, informed, practical and realistic person, would support the respondent’s allegation of the presence of an actual bias or the reasonable apprehension of bias: S. (R. D.), at paras. 36-37.

[16] The respondent’s evidence and his submissions simply amount to his disagreement with determinations made by me in previous cases in the absence of any cogent evidence that could form the basis of a claim of bias or for the reasonable apprehension of bias.

[17] For these reasons the respondent’s recusal motion is dismissed.

Dated: February 18, 2020

Daley, RSJ. Released: February 18, 2020