Court File and Parties

COURT FILE NO.: CV-19-366-000 DATE: 2020-01-07

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

Walter Zanewycz Self-Represented Plaintiff

• and -

Cheadles LLP and William G. Shanks Defendants

COUNSEL: M. Moktar, for the Defendants

HEARD: December 13, 2019, at Thunder Bay, Ontario

BEFORE: Mr. Justice W. D. Newton

Reasons on Motion for Recusal

Overview

[1] Mr. Zanewycz represents himself in this action against his former lawyer. Counsel for that former lawyer has brought a motion to strike Mr. Zanewycz’s claim on the basis that, among other issues, the claim is “frivolous, vexatious, and an abuse of the court’s process.”

[2] Although the motion was originally returnable November 28, 2019, because a special date was required, the parties agreed that the timetable for the hearing of the motion would be set on that date. In advance of that appearance, Mr. Zanewycz wrote to Regional Senior Justice Warkentin on November 25, 2019 asking that “the proceeding be heard by a Judge not from the Thunder Bay Jurisdiction.” Citing the prior involvement of other judges of this region, including the Regional Senior Justice, Mr. Zanewycz stated that, “to have a Judge from the Thunder Bay jurisdiction would give the impression of [bias] and also add to this difficult situation and to the already miscarriage of justice.”

[3] I presided on November 28, 2019 and asked Mr. Zanewycz to explain why a judge from outside this region was required. After hearing from Mr. Zanewycz, I made the following endorsement and adjourned the motion to December 13, 2019:

Mr. Zanewycz appears in person. Ms. Moktar via court call. This is a motion under Rule 21. A long motion is required. The parties seek a return date of December 13, 2019 at 10:00 a.m. for 3 hours. I am available to hear that motion that day.

Mr. Zanewycz has written directly to Warkentin RSJ. and I have admonished him that this is inappropriate. He raises issues that no Judge from the Northwest region should hear this case.

He alleges that, I, and others, have knowledge of certain facts, without providing particulars, that raise a reasonable apprehension of bias. Based on Mr. Zanewycz’s submissions, I find no realistic basis for acceding to his submission that I, or any justice within the Northwest region are not capable of adjudicating this motion fairly and impartially.

This motion will proceed before me on December 13, 2019 at 10:00 a.m.

On consent, any reply to be received by email by 4:00 p.m. December 9, 2019. Reply Material to be filed by 11:00 a.m. December 10, 2019.

[4] Rather than delivering his reply material, Mr. Zanewycz delivered three document briefs with respect to my recusal. Volume one consisted of motion material that was before me on December 14, 2017 involving an action brought by the former lawyers against Mr. Zanewycz. Volume two consisted of authority on recusal including Ethical Principles for Judges prepared by the Canadian Judicial Council, some excerpts from the Internet and a copy of the Supreme Court of Canada decision Wewaykum Indian Band v. Canada, 2003 SCC 45. Volume three, entitled confirmation of motion, included a copy of a letter from Mr. Zanewycz dated December 4, 2019 to the trial coordinator, the Regional Senior Justice, Fitzpatrick J., me, the Attorney General, and the Judicial Council of Canada. That letter sought “intervention” for my recusal and for an “out of jurisdiction” judge. With that letter were various endorsements, other correspondence from Mr. Zanewycz and emails with opposing counsel.

[5] Although Mr. Zanewycz, in his submissions to me on December 13, 2019, indicated that this material was filed for my consideration only, I proceeded as if this was a formal motion for recusal and heard submissions from Mr. Zanewycz and counsel for the former lawyers. I then made the following endorsement:

Mr. Zanewycz has raised again the issue of bias and I have treated the material he has filed as a formal motion for recusal which was argued this morning. For written reasons to follow, motion for recusal denied.

Mr. Zanewycz seeks an adjournment to file material despite his consent to the filing deadlines imposed November 28, 2019. Adjournment granted on the following terms:

1. Motion adjourned to January 27, 2020 at 10:00 a.m. Preemptory on Mr. Zanewycz. This was explained to Mr. Zanewycz. No further adjournments will be allowed.
2. Mr. Zanewycz to serve responding material by January 6, 2020 at 4:00 p.m. and file forthwith.
3. Any necessary reply material to be filed by the defendant by January 20, 2020.
4. Costs of November 28, 2019 and today to be determined by me.
5. Ms. Moktar may appear by court call at her discretion.
6. An issue will be whether Mr. Zanewycz is entitled to file amended statement of claim on the motion.

[6] These are my reasons on the motion for recusal. To provide context to the motion for recusal and the concerns of Mr. Zanewycz it is necessary to set out, in some detail, the nature of this motion to strike Mr. Zanewycz’s claim against his former lawyers, the prior proceedings that form the basis of the motion to strike and my involvement with a procedural motion on December 14, 2017.

The Current Claim and the Motion to Strike

[7] In this statement of claim, issued on July 22, 2019, Mr. Zanewycz sues the law firm for in excess of $3 million. The allegations giving rise to the claim relate primarily to accounts which the law firm rendered to Mr. Zanewycz and attempts at collection on those accounts. Allegations are also made that Mr. Shanks conspired with opposing counsel to change court orders and that Mr. Shanks made misrepresentations to Mr. Zanewycz.

[8] The motion to strike this statement of claim is brought because, according to the law firm, the statement of claim does not disclose a valid cause of action and the claim is frivolous, vexatious, and an abuse of process. It is asserted that this action represents a collateral attack on prior court orders.

[9] The motion record on the motion to strike sets out the history of the litigation between the former lawyers and Mr. Zanewycz.

Assessment of Accounts (CV-09-0328)

[10] In 2006, Mr. Zanewycz retained William Shanks of the Cheadles law firm to represent him in matrimonial proceedings. The solicitor and client relationship ended in 2009. The law firm assessed some accounts owed by Mr. Zanewycz on July 21, 2009. By reasons dated November 5, 2009, the assessment officer determined that Mr. Zanewycz owed the law firm $27,887.51 plus interest.

Creditor Relief Actions (CV-09-0467 & CV- 10-0131)

[11] In 2015, the law firm brought a motion for an order that a writ of seizure and sale be issued against Mr. Zanewycz for $64,241.74. By reasons dated November 18, 2015, Cheadles LLP v. Zanewycz, 2015 ONSC 7166, Shaw J. reduced the amount owing from other accounts but denied Mr. Zanewycz’s request that the 2009 accounts be reassessed. As a result, the sheriff was directed to enforce execution against Mr. Zanewycz in the amount of $49,715.

[12] Mr. Zanewycz appealed Justice Shaw’s decision to the Divisional Court. That appeal was dismissed on December 21, 2016, Cheadles v. Zanewycz, 2016 ONSC 7909.

2015 Application by Mr. Zanewycz (CV- 15-0091)

[13] Mr. Zanewycz commenced an application against the law firm in 2015, before the motion before Shaw J. was heard. That application sought an order dismissing the action that was before Shaw J. and an order that the accounts assessed in 2009 be reassessed. On the motion before Fitzpatrick J., heard on May 18, 2017, that application was stayed (Zanewycz v. Cheadles LLP, 2017 ONSC 3521) pending the completion of certain steps by Mr. Zanewycz with the further direction that other motions be rescheduled after a further case conference. In accordance with those directions, Mr. Zanewycz served a draft amended Notice of Application which, in addition to other amendments that relate to the amounts owing on the prior accounts, raised allegations of negligence against the lawyer and sought a jury trial or, in the alternative, an order that a “Justice that does not sit in Thunder Bay … hear the trial.”

[14] Mr. Zanewycz appealed the stay order of the application to the Divisional Court and, on October 20, 2017, the Divisional Court dismissed Mr. Zanewycz’s motion for leave to appeal.

Motion re: Assessment Action (CV-09-0328)

[15] This is the motion I heard on December 14, 2017 which forms the basis of one of Mr. Zanewycz’s reasons requesting my recusal. The endorsement, made that day, sets out why Mr. Reason, on behalf of the law firm, sought an order allowing this action to continue. The endorsement states:

This action deals with the assessment of a solicitor’s account. An order was made by the assessment officer that Mr. Zanewycz pay to the Cheadles firm approximately $30,000. That amount remains unpaid. Over the years, there have been multiple proceedings seeking to enforce payment (09-0467), seeking payment of other fees (10-0131) and an application by Mr. Zanewycz seeking other relief (15-0091) where the sale of real property is sought to realize this judgment (08-0328).

By endorsement dated October 19, 2017 Warkentin RSJ., having conduct a review of this file (0328) deemed this action abandoned unless within 30 days the claimant shows cause why this action should not be deemed abandoned.

I heard submissions from Mr. Reason and Mr. Zanewycz. I am satisfied that because of the “parallel” proceedings this action has not been abandoned and that, further, to effect enforcement, this action should continue. Accordingly, I set aside the order of Warkentin RSJ.

Related to this is action number CV-15-0091 pending already before Fitzpatrick J.

I direct that any further motions in this action be heard by Fitzpatrick J. as set out in paragraph 19 and 20 of his endorsement in CV-15-0091 dated 7 June 2017.

Mr. Reason does not seek costs.

Case Conference (CV-09-0328, 09-0467, 10-0131 & 15-0091)

[16] On February 16, 2018, Fitzpatrick J. conducted a case conference in these actions (Cheadles LLP v. Zanewycz, 2018 ONSC 1235). The focus of the case conference was what to do about Mr. Zanewycz’s motion and attempts to amend his “dormant” application in court file CV-15-0091. Justice Fitzpatrick noted, at paragraph 8, that “Mr. Zanewycz has no valid complaint against the Cheadles’ accounts in the face of the decision of Shaw J. dated November 18, 2019.” With respect to the proposed amendments to the application Fitzpatrick J. stated:

[15] I find the amendments proposed by Mr. Zanewycz are not proper pleadings. They are in large part statements of evidence, with quotes of judicial decisions sprinkled in. Also, the allegations arise from a solicitor client relationship that ended in 2009 with the accounts of the firm being assessed. There are serious allegations of fraud, misrepresentation, professional negligence, breach of contract and failure to account for trust funds. However, there is nothing in the text of the amendments which indicate Mr. Zanewycz only recently discovered the facts, or discovered them on or after November 10, 2015, which form the basis for why he has waited so long to attempt to incorporate these matters into his pleading. It seems to me the allegations are simply a “counter punch” to the process being brought against Mr. Zanewycz now, and are not legitimate or realistic claims which should burden both the court and the Cheadles firm as a responding defendant any longer.

[16] If the proposed amendments had been made in time as I ordered in June, 2017, I would have anticipated that a further motion by the Cheadles firm would have been made to strike the amendments on the basis of a limitation defence or that they represent an abuse of process or at a very minimum that they do not represent a proper pleading. To date, this matter has taken up a good deal of the court’s time. The court does have the right to control its own process.

[17] As I set out in the decision of June 7, 2017 at paragraph 17, the “un-amended” application appeared to me to be a collateral attack on the decision of Shaw J. of November 18, 2015. The proposed amendments make it clear to me that what Mr. Zanewycz is attempting to do is assert new causes of action, which are untimely, improperly pleaded and vexatious. The proposed amendments do not show that somehow additional accounts are available to be assessed. Rather, it shows Mr. Zanewycz wishes to tie up the Cheadles firm with these very serious allegations which have no business being asserted by way of application.

[18] Accordingly, I am not going to allow Mr. Zanewycz to file his amendments or to continue with the application. The amendments were filed out of time. They represent an abuse of process. The original application is a collateral attack on a decision that has been upheld by the Divisional Court. It too is an abuse of process.

[17] For these reasons, Fitzpatrick J. dismissed the application brought by Mr. Zanewycz in CV-15-0091. The outstanding motions were scheduled to continue before Fitzpatrick J. on a date to be scheduled.

[18] Mr. Zanewycz’s appeal of this order was dismissed for delay by the Divisional Court on April 26, 2019. The other motions in the other actions have not proceeded. Three months later, Mr. Zanewycz commenced this action.

Positions of the Parties

[19] Mr. Zanewycz argues that I have made findings in prior proceedings that preclude me from hearing this motion. He argues that my reiteration of the findings of the assessment officer amounted to making the same findings. He also argues that I have received information during these prior proceedings which would preclude me from hearing this motion. He was not able to direct me to what other information I might have received which would give rise to a reasonable apprehension of bias. His position is that prior decisions made in this case by other judges are erroneous because those judges did not have all of the information that Mr. Zanewycz says is relevant.

[20] Counsel for the former law firm argues that there is no reasonable apprehension of bias here since what I am being asked to do is review prior decisions of this court to determine, among other things, whether the plaintiff is trying to relitigate issues already decided. Counsel confirms that all I will be referred to is the record of proceedings in these various actions and prior decisions of this court and the Divisional Court.

The Law

[21] Both parties rely upon Wewaykum Indian Band v Canada, 2003 SCC 45, [2003] 2 S.C.R. 259, and agree that the appropriate test is set out in that case:

60 In Canadian law, one standard has now emerged as the criterion for disqualification. The criterion, as expressed by de Grandpré J. in Committee for Justice and Liberty v. National Energy Board, supra, at p. 394, is the reasonable apprehension of bias:

... the apprehension of bias must be a reasonable one, held by reasonable and right minded persons, applying themselves to the question and obtaining thereon the required information. In the words of the Court of Appeal, that test is "what would an informed person, viewing the matter realistically and practically -- and having thought the matter through -- conclude. Would he think that it is more likely than not that [the decision-maker], whether consciously or unconsciously, would not decide fairly."

[22] As Justice Doherty stated more recently in Beard Winter LLP v Shekhdar, 2016 ONCA 493, [2016] O.J. No. 3257.

10 It is important that justice be administered impartially. A judge must give careful consideration to any claim that he should disqualify himself on account of bias or a reasonable apprehension of bias. In my view, a judge is best advised to remove himself if there is any air of reality to a bias claim. That said, judges do the administration of justice a disservice by simply yielding to entirely unreasonable and unsubstantiated recusal demands.

Analysis and Disposition

[23] The issue is whether there is a reasonable apprehension of bias in this case. What would an informed person, “viewing the matter realistically and practically,” conclude?

[24] Contrary to Mr. Zanewycz’s assertion, an informed person would not conclude that I had made any findings on the December 14, 2017 motion. An informed person, viewing the matter realistically and practically, would conclude that I simply re-iterated the decision reached by the assessment officer.

[25] Mr. Zanewycz also asserted that I had received other information that could preclude me from acting fairly and impartially, therefore raising a reasonable apprehension of bias. However, Mr. Zanewycz was unable to identify what that other information may be.

[26] Mr. Zanewycz’s submits that the prior orders are wrong. He has asked, since 2015, for a hearing before a judge from outside this region. Mr. Zanewycz has not articulated any reason to support a reasonable apprehension of bias against any judge of this region except that the prior decisions are wrong. Standing alone, ruling against a party, does not raise a reasonable apprehension of bias. As Justice Doherty noted, “judges do the administration of justice a disservice by simply yielding to entirely unreasonable and unsubstantiated recusal demands.” I find Mr. Zanewycz’s recusal request unreasonable and unsubstantiated.

[27] The motion for recusal is dismissed.

“Original signed by”

The Hon. Mr. Justice W.D. Newton

Released: January 7, 2020