Court File and Parties

COURT FILE NO.: CV-19-629398 DATE: 20200408 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: ANDREW ROGERSON et al, Plaintiffs AND: HAVERGAL COLLEGE et al, Defendants

BEFORE: Kimmel J.

COUNSEL: Angela Salvatore, for the Plaintiffs Linda Rothstein, for the Defendants

HEARD: April 2, 2020

Endorsement - Motion for Recusal

[1] This action was assigned to me by Firestone RSJ for case management under Rule 77 on February 20, 2020, on the consent of the parties provided at a case conference held on February 19, 2020 and confirmed in writing on February 20, 2020.

[2] I have presided over a number of Rule 50 case conferences in this matter held on: February 19, February 27 and March 12, 2020. I also presided over a Rule 50 settlement conference on December 19, 2019.

[3] The defendants had submitted a motion that had been approved for urgent hearing by endorsements of Myers J. dated March 30, 2020. The plaintiffs sought leave on March 31, 2020 pursuant to the March 15, 2020 Notice to the Profession to bring an urgent motion for my recusal from hearing that motion or any other matter in this action. Justice Myers issued an endorsement on April 1, 2020 approving this recusal motion for an urgent hearing returnable at 11:15 a.m. that day, at the same time as the defendants’ motion (which was supported by the non-party family of Student Q).

[4] At the outset of the hearing on April 1, 2020 the defendants sought a brief adjournment of this recusal motion to allow them an opportunity to respond to it. The recusal motion was adjourned until 10:15 a.m. on April 2, 2020 to afford them this opportunity, with materials to be delivered by 5:00 p.m. that day. I also adjourned the other pending motion of the defendants to 2:00 p.m. on April 2, 2020 to allow me the opportunity to consider the written and oral submissions on the recusal motion before hearing the other motion, or to allow me time to provide directions about who would hear that other motion if I decided to recuse myself.

[5] The material filed on this recusal motion is extensive because existing materials delivered for other purposes have been incorporated into the record for this motion. This material cavasses many substantive issues in the action, as well as much of the procedural history. I understand that it was a function of the urgency of this matter that it was all attached rather than distilled for purposes of this motion.

[6] In the interests of expediency, I will only address the points and admissible evidence that I consider to be directly relevant to the request for me to recuse myself. I am very familiar with the issues and the procedural history and have not repeated them for the immediate purposes of this endorsement. Just because something from the record is not referred to in this endorsement does not mean that it has not been considered. The lack of reference in this endorsement to matters that go to the merits of issues raised in this action should also not be taken as a reflection of my having decided or dismissed them as unimportant to the eventual determination of those issues on their merits.

[7] After reading and considering the submissions of counsel for the parties and adjourning to consider them further and deliberate, in a brief oral ruling delivered to the parties on the afternoon of April 2, 2020 I dismissed the plaintiffs’ motion for my recusal, with written reasons to follow.

The Grounds for Plaintiffs’ Request for Recusal

[8] The plaintiffs asked me to recuse myself from case managing this matter because they say:

a. My objectivity and impartiality have been inherently compromised by a racist attack on the plaintiff Mr. Rogerson said to have been made by one of the lawyers for the defendants; and

b. I have displayed a pattern of behaviour exhibiting actual or perceived bias for several months, including displaying annoyance with the plaintiffs and plaintiffs’ counsel, making orders beyond my jurisdiction in favour of the defendants and non-parties, adopting an investigative role in the proceedings, and behaving in other respects in a manner that an objective person reasonably directing himself or herself would conclude that I am biased against the plaintiffs and am acting as an advocate for the defendants and the non-party.

[9] The plaintiffs contend that there exists in this case both: (i) perceived bias (either conscious or unconscious, having regard to what a reasonable person properly informed would apprehend); and (ii) rarely, and remarkably, actual bias.

a. Comments Said to Accuse Mr. Rogerson of Being Anti-Semitic

[10] Mr. Rogerson has, directly in two affidavits, one sworn on March 31, 2020 (re-sworn April 1, 2020) and one sworn on March 12, 2020, and through his counsel in various correspondence prior to this motion, indicated that he fears that I have not been, and cannot be, impartial towards him. This is because of a comment made by opposing counsel in a factum dated March 10, 2020 filed in response to the plaintiffs’ motion for a stay pending appeal of my February 28, 2020 endorsements. In that factum, counsel for the defendants submitted at paragraph 21 that:

In a letter dated December 5, 2019, Ms. Salvatore wrote to the court to request that the judge assigned to mediate the settlement conference scheduled on December 19, 2019 have “no professional, social or religious” connection to counsel for the defendants Ms. Rothstein. In other words, the plaintiffs wish to avoid appearing before a Jewish judge.

Mr. Rogerson feels this submission wrongfully and spitefully accused him of being Anti-Semitic.

[11] The plaintiffs say that the December 5, 2019 letter is being taken out of context. The letter written to the then Acting Regional Senior Justice for Toronto (ARSJ) expressly states that it was written in an effort to ensure transparency in the court process and, to that end, asks that the judicial member appointed to undertake the December 19, 2019 judicial mediation:

a. Not have any direct or indirect connections with the Defendant school, Havergal College; and

b. Not currently have or have had any professional (for instance, sitting on committees), social or religious connections with counsel in this matter.

[12] The plaintiffs contend that the interpretation of this letter put forward by defendants’ counsel places inappropriate emphasis on the words “religious connections”, which the plaintiffs say carries a different connotation than if the request had been with reference to “religious affiliations”. Mr. Rogerson says that he was not targeting any particular person by virtue of his or her religion. He expected the request that the appointed person have no religious connection to Ms. Rothstein would be read ejusdem generis with the request that the appointed person not be connected to her through committees, social clubs or the like. That is what he suggests would be an objectively reasonable interpretation of this request.

[13] Mr. Rogerson has gone to great lengths in his March 12 and March 31/April 1, 2020 affidavits to explain that he is not Anti-Semitic. He strongly protests the interpretation that has been placed by defendants’ counsel on the December 5, 2019 request made to the ARSJ.

[14] The plaintiffs contend that, irrespective of what they intended by this request and what they say an objectively reasonably interpretation of it would be, I am nonetheless compromised because I am Jewish and thus must objectively be assumed to have taken offence to this request upon reading the interpretation that was suggested in the March 10, 2020 factum of defendants’ counsel.

b. Conduct of Proceedings Said to Display Bias Against the Plaintiffs

[15] Mr. Rogerson (who is himself a barrister practicing in the area of civil litigation and who has included some argument and opinion evidence in his affidavits that the defendants object to) says in his affidavit sworn in support of this motion that the pattern of behaviour I have exhibited in this case is “somewhat akin to the horrendous case of Siahbazi v. Rastegar, 2012 ONSC 2384, in which the judge belittled and coerced “[y]ou don’t get to call the shots anymore. All you get to do sir, is write a cheque, straight up…”.

[16] The plaintiffs contend that I have displayed a pattern of behaviour exhibiting actual or perceived bias for several months, by:

a. displaying annoyance with the plaintiffs and plaintiffs’ counsel (in particular, at a March 12, 2020 case conference);

b. making orders beyond my jurisdiction in favour of the defendants and non-parties (in particular, by endorsements of February 28, 2020);

c. adopting an investigative role in the proceedings (in particular, in relation to communications about urgent hearings requested by the parties after March 15, 2020); and

d. behaving in other respects such that an objective person reasonably directing himself or herself would conclude that I am biased against the plaintiffs and am acting as an advocate for the defendants and the non-party (including the conduct of the December 19, 2019 settlement conference, in addition to the above).

[17] Each of these contentions are elaborated upon below.

a) Complaints About the Conduct of the March 12, 2020 Hearing Suggesting Annoyance with the Plaintiffs and Plaintiffs’ Counsel

[18] Mr. Rogerson in his affidavit claims that the allegation of racism that he attributes to defendants’ counsel in their March 10, 2020 factum had an immediate impact upon my behaviour that was displayed at the March 12, 2020 hearing two days later, in that:

a. according to his counsel’s notes of that appearance, and an affidavit from a law clerk from the plaintiffs’ office who was in attendance on March 12, 2020 [1], I gave them a stern look and unpleasant stare when they entered the courtroom and chastised them for Mr. Rogerson’s failure to appear in accordance with my March 4, 2020 direction;

b. according to a recording that Mr. Rogerson says was made in court that day, I was aggressive with his counsel in seeking confirmation that she had his instructions and would not take a different position after the hearing; and

c. in my endorsement of March 13, 2020, wherein I noted that Mr. Rogerson’s counsel had advised me after the hearing by letter that she had been incorrect when she told me that he had another court appearance that morning and that he had tried to join the hearing, there was an innuendo and inference that I did not accept that subsequent advice to be true. Mr. Rogerson and his law clerk have since provided further details in their affidavits on this motion about how his lawyer came to be mis-informed about his whereabouts on the morning of March 12, 2020 and that she had been mistaken when she advised the court on March 12, 2020 that he was at another hearing, when in fact he had been at a physiotherapy appointment and then tried to dial into the hearing but was unable to do so.

b) Orders Said to Have Been Made Beyond my Jurisdiction

[19] Mr. Rogerson complains about certain endorsements that I made on February 28, 2020, based on what occurred at case conferences held on February 19 and 27, 2020. The plaintiff says that disagreements between counsel about the drafting of the minutes from the February 19, 2020 case conference descended into turmoil. The endorsements were finalized by the court after being provided with the competing versions of the minutes.

[20] Insofar as the plaintiffs disagree with the substance of the February 28, 2020 endorsements and seek to challenge the court’s jurisdiction to make the orders and directions contained therein, they have brought a motion for leave to appeal to the Divisional Court, which is the plaintiffs’ right to pursue.

[21] It was at the February 19, 2020 case conference that the plaintiffs and defendants consented to my appointment as the Rule 77 case management judge. This consent was confirmed in writing the following day. That part of the endorsements was not challenged until this recusal motion.

c) Adopting an Investigative Role and Favouring of the Defendants and a Non-Party

[22] Mr. Rogerson complains in his affidavit about the communications between the court and the parties after the suspension of regular court operations due to the COVID-19 pandemic. The parties were directed to the March 15, 2020 Notice to the Profession and restrictions contained therein with respect to the court’s ability to assist in the resolution of concerns that they had raised, and the process for bringing forward any urgent matters so that they could be triaged.

[23] Mr. Rogerson says in his affidavit that he read the tone of these directions from the court to be aggressive and to have favoured the defendants and the non-party, who had raised confidentiality concerns about the potential identification of minor children in materials filed in the public court file by the plaintiffs. He interpreted the court’s directions to those parties provided on March 26, 2020 as an invitation to the defendants and the non-party to make an application to the triage judge based on urgency, which the court had already pre-determined by the giving of that direction.

[24] The defendants first notified the court on March 23, 2020 that they had concerns about whether materials had been publicly filed by the plaintiffs that the defendants believed made improper disclosure of confidential information about minors. This included information about Student Q that they considered to be in breach of a prior order of the court made on November 28, 2019 by Penny J. pertaining to the anonymization of Student Q. It was indicated that counsel for the defendants and the non-party family of Student Q had made prior unanswered inquiries of plaintiffs’ counsel about whether the March 13, 2020 in-chief affidavit of Mr. Rogerson (comprised of 735 pages with exhibits) and a subsequent March 22, 2020 affidavit of Mr. Rogerson (appending affidavits of two others) had been filed in the public court file.

[25] The plaintiffs complain about the following sequence of events:

a. The court made a direct inquiry of plaintiffs’ counsel, asking for confirmation of which affidavits had been publicly filed, on March 24, 2020 at 9:43 a.m.

b. Plaintiffs’ counsel responded on March 24, 2020 at 12:10 p.m. to advise that she was in the process of responding to this and other inquires that she had received from counsel for the defendants and the family of Student Q.

c. The following morning, no response having yet been received from plaintiffs’ counsel, I reviewed the index of court filings available to me and wrote at 10:45 a.m. to all counsel to advise that there appeared to be a 3-volume affidavit of Mr. Rogerson that had been filed in the public court file on March 20, 2020. I indicated in this email that the court expected something to be done immediately if anything had been included in the filed materials that offended the November 28, 2019 Order of Penny J. and that the court does not take lightly the potential infringement of confidentiality and sealing orders.

d. On March 25, 2020 at 11:10 a.m., plaintiffs’ counsel confirmed which affidavits had been filed and advised that it was the position of the plaintiffs that all filings were in compliance with the order of Penny J. [2]

e. The defendants and non-party family of Student Q again raised concerns about the plaintiffs’ court filings and sought directions from the court and sought the court’s assistance to obtain further information from the plaintiffs.

f. The parties were directed to the procedure for raising concerns about urgent matters under the March 15, 2020 Notice to the Profession if the responses sought from plaintiffs’ counsel were not forthcoming in a further email from the court later in the afternoon of March 25, 2020.

[26] Mr. Rogerson objects in his affidavits to my having checked the public court docket to see whether the affidavits of Mr. Rogerson in question had been publicly filed. The plaintiffs contend that the court should have waited for plaintiffs’ counsel to respond to the inquiries about the filing of these affidavits.

[27] In follow-up correspondence that afternoon and the following day, plaintiffs’ counsel raised concerns about the court having looked at the court file, thereby taking on an improper investigatory role. Plaintiffs’ counsel suggested that the court was not treating the parties in the same manner concerning the directions about urgent matters and filings. Plaintiffs’ counsel also expressed concern that the court had pre-determined that an infringement of the prior Order of Penny J. regarding Student Q had already taken place. Plaintiffs’ counsel based this concern on a perceived tone in the correspondence from the court and the suggested implication that the plaintiff would not respond to inquiries.

d) Complaints About the Conduct of the December 19, 2019 Settlement Conference

[28] Mr. Rogerson complains about various things that transpired during the December 19, 2020 Rule 50 settlement case conference. At the outset, that attendance was expressly stated to be a settlement conference that was without prejudice and confidential. The only thing that is not confidential about that attendance is the agreement signed by all parties and their counsel on the evening of December 19, 2020, after a full day of negotiations, that was attached to a brief written endorsement of that day.

[29] Until this motion, there had not been any concern raised about the conduct of that settlement conference or any suggestion that the agreement that was documented and attached to my endorsement of that day was coerced.

Law on Recusal

[30] The parties agree that the question I must consider and answer when deciding whether to recuse myself is: Would an informed person, viewing the matter realistically and practically, and having thought the matter through, think it is more likely than not that the decision-maker, whether unconsciously or consciously, would not decide the matter fairly? See Yukon Francophone School Board, Education Area No. 23 v. Yukon Territory (Attorney General), 2015 SCC 25, at paras. 20-21.

[31] The “informed” person considering the bias must be an objectively reasonable person, and the apprehension of bias must be objectively reasonable. A reasonable person is one who has knowledge of all of the relevant circumstances, including knowledge of the judicial process and the nature of judging. See Duca Financial Services Credit Union Ltd. v. Smith, 2016 ONSC 6289, at para. 18.

[32] The inquiry is fact specific. A judge may be recused where there is actual bias or a reasonable apprehension of bias. See Wewaykum Indian Band v. Canada, 2003 SCC 45, [2003] 2 S.C.R. 259, at paras. 60 and 77. Bias connotes a predisposition to decide a matter in a certain way that does not leave the judicial mind open and impartial (Wewaykum, at para. 58). The moving party must establish that the judge suffers from “a condition or state of mind which sways judgement and renders the judicial officer unable to exercise his or her functions impartially in a particular case.” See R. v. S (R.D.), [1997] 3 S.C.R. 484 at para. 106.

[33] There is a strong presumption that judges will carry out their oath of office by conducting themselves impartially. The apprehension of bias must rest on strong grounds and compelling and cogent evidence. The burden is high on the moving party to show a real likelihood or probability of bias (see Duca, at para. 18). They must show that the judge has conducted him or herself in such a way as to raise a real or perceived apprehension of bias (see Stephenson v. Corporation of the Town of Gravenhurst, 2012 ONSC 5368, at para. 11).

[34] The motion for recusal should be made to the judge being asked to recuse himself or herself. See Arsenault-Cameron v. Prince Edward Island, [1999] 3 S.C.R. 851.

Analysis of Request for Recusal

[35] As I indicated in my oral ruling on April 2, 2020, the plaintiffs had the onus to lead compelling evidence of my alleged bias and partiality, and to demonstrate that an informed person, viewing the matter realistically and practically – and having thought the matter through—would conclude:

a. That my ability to conduct myself in an unbiased and impartial manner has been compromised by allegations against Mr. Rogerson that he is racist; and/or

b. That I have conducted myself in a way that raises a real or perceived apprehension of bias or lack of objectivity.

[36] The plaintiffs’ foundation for their request for my recusal is primarily based on Mr. Rogerson’s (or those of his counsel or his other employee) subjective views and impressions, their interpretations of correspondence (including inferences and innuendos drawn by them) and their accounts and perceptions of what transpired at case conferences. Mr. Rogerson offers his speculation about why matters in this litigation have unfolded in the way they have, in a manner that he perceives to be unfavourable to the plaintiffs.

[37] The perceptions of the parties and their counsel, especially in a highly charged and emotional proceeding such as this one, are not the appropriate yardstick against which to assess what a right-minded person who is reasonably informed of the relevant facts would conclude.

[38] I fully appreciate the importance for justice to be administered impartially and I do not take this matter lightly. However, I do not consider there to be any air of reality to the plaintiffs’ claim that I have exhibited bias, actual or perceived. I find that no right-minded person who is reasonably informed of the relevant facts would conclude that I have conducted myself in a manner that raises a real or perceived apprehension of bias or lack of objectivity.

[39] I will review the plaintiffs’ various contentions of the indications of actual or perceived bias and why they do not establish grounds for my recusal. First, I will address the conduct of proceedings and then I will deal with the concerns about the allegation of racism.

a) Conduct of Proceedings Said to Display Bias Against the Plaintiffs

The Conduct of the December 19, 2019 Settlement Conference and February 28, 2020 Endorsements Exceeding the Court’s Jurisdiction [(b) and (d) above]

[40] The evidence about what transpired at the December 19, 2019 settlement conference from Mr. Rogerson is subject to settlement privilege and is inadmissible (and the defendants also challenge the accuracy of his account of what transpired). Furthermore, the plaintiffs consented to my continued involvement after December 19, 2019, including that I would preside over the next settlement conference that was to be scheduled in February 2020, and also consented to my appointment as the Rule 77 case management judge on February 19, 2020.

[41] The plaintiffs’ consent to my continued involvement belies any suggestion that there is a basis for even a perception (whether subjective or objective) of bias on my part in the manner in which the December 19, 2019 case conference was conducted. There is simply no evidence to support this contention.

[42] The February 28, 2020 endorsements, in which the plaintiffs allege that I exceeded my jurisdiction, are the subject of a motion for leave to appeal by the plaintiffs. The plaintiffs will have the opportunity to raise their displeasure with those endorsements on their motion for leave to appeal and on any appeal for which leave is granted. Displeasure with a ruling of a case management judge is not grounds for recusal. Judge shopping is not permitted or condoned. See Beard Winter LLP v. Shekhdar, 2016 ONCA 493, at para. 10.

[43] No cogent or compelling grounds have been identified upon which a person who is reasonably informed of the relevant facts, viewing the matter realistically and practically and having thought the matter through, would conclude that that manner in which I conducted myself at the December 19, 2019 settlement conference, or my issuance of the February 28, 2020 endorsements, raises a real or perceived apprehension of bias or lack of objectivity on my part towards the plaintiffs.

The March 12, 2020 Case Conference [(a) above]

[44] The concerns noted by the plaintiffs about my conduct of the March 12, 2020 hearing include: my tone of voice, a stern look or expression and chastisement, questioning about instructions in the absence of Mr. Rogerson, and my subsequent endorsement referencing the corrected explanation for his absence. By the plaintiffs’ own account these all relate to the fact that, despite my March 4, 2020 direction that a representative of each party attend this case conference, Mr. Rogerson was not present. No indication had been provided that he would not be in attendance in advance of the case conference, and the explanation that was offered at the time (which was subsequently corrected) was that he was busy in another court.

[45] A reasonably informed person, viewing the matter realistically and practically, and having thought the matter through, would not conclude that any displeasure about Mr. Rogerson’s failure to attend on March 12, 2020 was the result of any real or perceived apprehension of bias or lack of objectivity on my part towards the plaintiffs generally. Litigants and counsel are routinely admonished by the court when they do not do as directed.

[46] A reasonable person would take into account that, even if there was an irritated tone of voice or stern look from the court (which is not something that has to be “decided” in this context), there was an objectively good reason for the court to be displeased about a party not having attended a hearing when directed to do so and without prior notice and leave to be excused having been sought, or the offer of any apology. The cases are clear that these types of interactions with a judge are not indications of bias or an inability to adjudicate matters objectively and fairly, and do not rise to the level of grounds for recusal. A tone of voice or appearance of a judge during the proceedings cannot overcome the strong presumption in favour of judicial impartiality. See Beard Winter, at para. 12.

[47] Furthermore, there is no evidentiary basis for the plaintiffs’ subjective interpretation of the reference in the court’s endorsement following the March 12, 2020 appearance to the different explanation for Mr. Rogerson’s absence, subsequently provided, not having been believed or accepted by the court. The endorsement simply acknowledges that an explanation was provided for his absence after the fact.

The Post-March 15, 2020 Communications About Scheduling of Urgent Matters [(c) above]

[48] In her oral argument, plaintiffs’ counsel indicated that the primary concern of the plaintiffs with respect to behaviour suggesting bias was in relation to the post-March 15, 2020 communications. From Mr. Rogerson’s perspective, these communications suggested that the defendants’ concerns about the plaintiffs’ public court filings had been pre-judged by me in favour of the defendants.

[49] The specific correspondence that the plaintiffs point to reflects attempts to ensure that the proper procedures prescribed by the March 15, 2020 Notice to the Profession were being followed by all parties following the suspension of regular court operations due to the COVID-19 pandemic. It would be manifest to any reasonably informed person with knowledge of the relevant circumstances (which include knowledge of the judicial process and the nature of the judiciary; see Duca, at para. 18) that, in times such as this, it is even more important that the court exercise control over the administration of justice and the court’s process.

[50] Concerns had been raised by the defendants and a non-party about the potential breach of an existing court order that protected the privacy of a minor child. Their counsel had inquired about whether certain affidavits about which they held these concerns had been filed in the public court file. Counsel had indicated this would inform their decision about whether it was necessary to request a hearing for an urgent motion. When counsel for the plaintiffs did not respond to the court’s inquiry following up on counsel for the defendants’ requests for confirmation about whether the affidavits in question had been publicly filed, it was objectively reasonable for the court file to be consulted to determine the answer to that question so that the concerned parties could determine whether they wished to take any further steps.

[51] This was of particular importance because of the current operating conditions which restricted the ability of the defendants and the non-party family of Student Q to attend at the court office to inspect the court file to ascertain this for themselves. Their inquiries about what had been filed had not been answered as of March 25, 2020.

[52] A reasonably informed person, viewing the matter realistically and practically, and having thought the matter through, would not conclude that any of the court’s intervention to ascertain information that was within the plaintiffs’ knowledge but had not been provided in a timely manner was the result of any real or perceived bias or lack of objectivity on my part towards the plaintiffs generally. The innuendo that the plaintiffs seek to read into these communications, that the underlying issues had been pre-judged, is subjective and speculative.

[53] When viewed under an objective, rather than subjective, lens, this is more appropriately viewed as a reflection of judicial concern to protect the administration of justice and control the court’s process.

[54] Nothing about the court’s behaviour that the plaintiffs complain about approaches the level that Mr. Rogerson describes from the Siahbazi case.

b) The Perceived Racial Attack on Mr. Rogerson

[55] The second main area of concern identified by plaintiffs’ counsel during her oral submissions on this motion was in relation to the perceived accusation by defendants’ counsel that Mr. Rogerson is Anti-Semitic, which the plaintiffs contend renders me unable to impartially adjudicate matters involving him.

[56] The plaintiffs assume, based on speculation, that I will not be able to consider, fairly and objectively assess, and appropriately compartmentalize the submission by counsel for the defendants in their March 10, 2020 factum that the plaintiffs had requested, prior to my involvement, that a judge who was not Jewish be assigned to this case.

[57] Even though Mr. Rogerson proffers what he describes as a reasonable objective interpretation of the request made of the ARSJ in the December 5, 2019 letter of plaintiffs’ counsel, Mr. Rogerson assumes that I will accept and be influenced by the interpretation placed on this request by defence counsel. He does not allow for the possibility that the comment could and would be interpreted by me in the non-racist manner in which Mr. Rogerson says it was intended.

[58] The question I must decide is not whose subjective interpretation of the meaning or intent of the request is right (that of defence counsel or that of Mr. Rogerson), and not whether Mr. Rogerson is Anti-Semitic, but whether the fact that both interpretations have been aired before me gives rise to a reasonable apprehension of bias or actual bias on my part.

[59] A right-minded person who is reasonably informed of the relevant facts would not conclude, as Mr. Rogerson has done, that a judge of the Ontario Superior Court of Justice such as myself would immediately become biased against the plaintiffs because of a submission of counsel in a factum filed on a motion before me. A reasonably informed person with an understanding of the court process would understand that litigants routinely make submissions in which they accuse each other of unpleasant things, and it is the judge’s role to sort out what is overstated and what is not.

[60] The strong presumption of a presiding judge’s impartiality or objectivity cannot be overcome by a speculative assumption that the judge will be tainted by a lawyer’s submission about the opposing party. See Duca, at para. 18. The burden is high on the moving party to show a real likelihood or probability of bias. They must show that the judge has conducted him or herself in such a way as to raise a real or perceived apprehension of bias (see Stephenson, at para. 11).

[61] An informed person, viewing the matter realistically and practically, and having thought the matter through, would not think it is more likely than not that I, whether unconsciously or consciously, would not decide the matter fairly simply because of a submission made by opposing counsel about a party. See Yukon Francophone School Board, Education Area No. 23 at paras. 20-21.

[62] Nor is there any evidence of any actual bias. There is no objective credence to the plaintiffs’ suggestion that my behaviour towards the defendants changed after this factum was filed and it was pointed out by Mr. Rogerson in his March 12, 2020 affidavit that he considered it to be accusing him of being a racist against Jewish people or judges such as myself. The suggestion that this comment that the plaintiff subjectively perceived as an allegation of racism affected my conduct of the March 12, 2020 case conference does not have an air of reality to it when the circumstances of that attendance are taken in context (as reviewed above).

c) This is the Second Request by the Plaintiffs’ for the Recusal of a Case Management Judge in this Proceeding

[63] One of the themes in the plaintiffs’ written submissions and Mr. Rogerson’s affidavit is that he is unable to get a fair hearing because of the reputation and connections of counsel for the defendants. According to Mr. Rogerson, “each judge who has been required to adjudicate this matter has shown distinct deference to [Lead Counsel for the Defendants] and preference for her.” That is not a basis for seeking recusal of a case management judge, absent some established grounds for actual or perceived bias, that have not been demonstrated by the plaintiffs in this case.

[64] The plaintiffs brought a motion for the recusal of Koehnen J. who was case managing this action before I got involved. That motion was abandoned before it was argued. The defendants argue that the fact that the motion was brought is a relevant consideration in the reasonable apprehension of bias analysis (see Beard Winter, at para. 13):

A reasonable observer, in considering the allegations made by the moving party, would also take into account that this moving party has made similar allegations of serious misconduct against a great many people involved in the judicial process, including many judges. The moving party offers no evidence that any of the many allegations he has made have ever been made out to the satisfaction of anyone other than himself.

[65] Thus far, the record discloses allegations of serious misconduct in this case by Mr. Rogerson against the two judges who have been assigned to case manage it. “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.” (See Beard Winter, at para. 10).

[66] Mr. Rogerson’s subjective fears, assumptions, imputations, and interpretations of communications and interactions with the court are not the measure against which actual or perceived judicial bias is to be determined. There is no objectively reasonable apprehension of bias, or evidence of actual bias, and those are the relevant considerations. I remain completely impartial and I have no concern about my ability to continue as case management judge of this action.

Summary of Disposition and Costs

[67] The plaintiffs’ motion asking me to recuse myself from the case management of this action is dismissed. I will continue as case management judge and will assist the parties as this case moves forward, consistent with the assignment made by the RSJ for me to do so.

[68] At the conclusion of the oral submissions, counsel for both sides asked for the opportunity to make written submissions on costs. I indicated in my oral ruling that I would afford them that opportunity.

[69] The responding parties (defendants) may deliver written submissions on costs (not to exceed 5 pages double spaced) together with their costs outline by no later than close of business on April 7, 2020. The moving parties (plaintiffs) may deliver written submissions on costs (not to exceed 5 pages double spaced) together with their costs outline by no later than close of business on April 14, 2020. Reply cost submissions of the responding parties (defendants), if any, not to exceed 2.5 pages double spaced may be delivered by no later than close of business on April 17, 2020.

[70] My costs decision will be released in due course after my receipt and consideration of these further written submissions.

[71] Notwithstanding Rule 59.05, this endorsement and resulting order are effective from the date indicated below and are enforceable without any need for entry and filing. In accordance with Rule 1.04, no formal order need be entered and filed unless an appeal or a motion for leave to appeal is brought to an appellate court. Any party to this endorsement may nonetheless submit a formal order for original signing, entry and filing when the Court returns to regular operations.

Kimmel J. Date: April 8, 2020

[1] Leave was granted to allow this unsworn affidavit to be sworn viva voce by its affiant at the April 2, 2020 hearing.

[2] The version of Mr. Rogerson’s March 13, 2020 affidavit that the plaintiffs served on the defendants had different exhibits attached than the version filed in the public court file. The plaintiffs concede that there were exhibits attached to the version served on the defendants that were offside of the Order of Penny J. They maintain that those exhibits were never placed in the public court file. The substance of those and other concerns of the defendants and the non-party family of Student Q were heard by me at the April 3, 2020 motion that I have under reserve.