Court File and Parties

COURT FILE NO.: CV-19-4625 DATE: 2021 02 19 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: JULIE DALY, Applicant/Respondent on Motion AND: NYX TANNERY LTD. and CORPORATION OF THE CITY OF MISSISSAUGA, Respondents/Moving Party

BEFORE: TRIMBLE J.

COUNSEL: Julie Daly, self-represented G. Grenier and Jeremy Rankin, for the Respondents/Moving Party Glenn.Grenier@mcmillan.ca; jeremy.rankin@mcmillan.ca

HEARD: Zoom Video Conference on 11 February 2021

Endorsement

The Motion

1The respondent to this application, NYX Tannery Ltd. (“NYX”), seeks an order to amend the Title of Proceedings to change the applicant’s name from “Julie Daly” to “Julie Daly, also known as Julie Samantha Lawrence”.

2Ms. Daly opposed the motion.

3The City of Mississauga did not participate in the motion.

4I heard submissions by both parties. Notwithstanding that this motion was confirmed for 50 minutes, the hearing took approximately 2 hours and 40 minutes (aside from breaks and a short lunch) in order to accommodate Ms. Daly’s requirements.

5At the hearing, I dismissed Ms. Daly’s request that I recuse myself and Ms. Daly’s request for an adjournment, with written reasons to follow. I then heard and reserved on the merits of NYX’s motion.

6These are my reasons on Ms. Daly’s request for recusal, her request for an adjournment, and on NYX’s motion on its merits.

Result

7As indicated orally, and for the reasons which follow, I declined to recuse myself and dismiss the request for an adjournment. I also allow NYX’s motion.

Background

8This motion comes at the end of an Application with a long history. The aspects which are germane to this motion are as follows:

(a) On 12 November 2019, Ms. Daly commenced this Application against only the City of Mississauga, challenging its demolition permits issued to NYX. Upon learning of the Application, NYX brought a to add itself as a party to that Application as Ms. Daly was attacking its interests.

(b) On 20 December 2019, both the Application and NYX’s motions came before Doi J.. Ms. Daly sought an adjournment. Doi J. granted the adjournment but fixed the Application for a long motion date of 12 August 2020, and NYX’s motion for 14 January 2020.

(c) NYX’s motion came before Coroza J. (as he then was) on 14 January 2020, four days after Ms. Daly amended the Notice of Application. Again, Ms. Daly sought an adjournment which was denied. There was discussion before Coroza J. about abandoning her application. Coroza J. cautioned her about the cost consequences of her doing so. He added NYX to the Application.

(d) On 15 January 2020, Ms. Daly abandoned her Application. NYX brought a motion for its costs returnable 13 February 2020.

(e) On 13 February 2020, Emery J. set the costs motion for a long motion date of 25 November 2020 (a delay of nine months) and set a generous timetable which reflected a balance of interests of the parties. In addition, Emery J. set 4 September 2020 (a delay of seven months) as the date by which Ms. Daly had to bring any motion heard under rule 38.08(3) of the Rules of Civil Procedure for “the court to order otherwise” with respect to Ms. Daly’s obligation to pay costs to NYX.

(f) On 29 July 2020, 5 ½ months into the delay Emery, J., set for the rule 38.08(3) motion, Ms. Daly sought NYX’s consent to bring her rule 38.08(3) motion on the long motion date. No consent was given. Ms. Daly then sought and obtained an urgent motion date from the Court to set a date for her rule 38.08 motion.

(g) On 21 August 2020, I heard Ms. Daly’s urgent motion to set aside the timetable set by Emery J. By reasons released 25 August 2020 (2020 ONSC 5097) I denied the request.

(h) On 25 November 2020 I made a cost order in favour of NYX with respect to Ms. Daly’s motion which I heard in August 2020, of $11,639.00.

(i) On 25 November 2020, Chown J. heard NYX’s motion for costs of the Application. A few days before this motion, Ms. Daly served an anti-SLAPP motion which Chown J. dismissed from the bench. He has yet to deliver his reasons with respect to the anti-SLAPP motion and the costs issue.

9NYX seeks to enforce my costs order. NYX has discovered since the release of my costs endorsement, however, that Ms. Daly has used, and still uses another name: Julie Samantha Lawrence.

10NYX brings this motion to amend the Title of Proceedings of the Application, nunc pro tunc, to add Ms. Daly’s other name so that it can enforce the cost order.

11I accept Ms. Daly’s objection to referring to her “other name” as an alias because of the nefarious connotation the word “alias” carries. There is no dispute, however, that at least from 2014 onward, Ms. Daly has used two names: Julie Daly, and Julie Samantha Lawrence. I have no evidence as to which is her legal name.

Analysis

Recusal

12At the outset of the hearing, Ms. Daly asked that I recuse myself from this motion on the basis that I may be biased. Much of Ms. Daly’s concern appears to relate to the motion I heard in this matter on 25 August 2020. She submitted that a reasonable observer would have the reasonable apprehension that I was biased because:

(a) I have been involved in the “historical proceedings”. She defines the “historical proceedings” as the proceedings involving NYX, and any other proceedings against anyone else which, in her mind, is or are related to these proceedings. I have been involved in the “historical proceedings” since, on 9 September 2014, while sitting as a single judge in Divisional Court in an appeal from two Landlord and Tenant matters, I ordered that the two Landlord and Tenant Board files should be traversed to Brampton as they were the subject of the appeal and should be before the judge hearing the appeal.

(b) I have found against her in the motion on 21 August 2020 which will influence me now.

(c) In the 21 August 2020 motion, I denied that she had psycho-social conditions that required accommodation.

(d) I was biased against her in the past.

(e) I was unwittingly insensitive in the 21 August 2020 motion that triggered her PTSD by telling her to take a deep breath. This amounted to unintentional discrimination. She interpreted my comment “take a deep breath” as a forewarning of imminent negative consequences.

(f) I was very angry with her in August 2020.

13In support of the above submissions, Ms. Daly referred to several paragraphs of my 25 August 2020 Endorsement that she said supported her argument that I am biased.

14In addition, Ms. Daly complained of systemic barriers that prevented her from making her full argument. These included time limits imposed by the Court, and size limitations on the documents submitted electronically.

Background (Recusal)

15From the Order that I was shown, on 9 September 2014, it appears that I was sitting in Brampton as a single judge of Divisional Court hearing appeals from Small Claims matters and Tribunals. One of the appeals arose from Landlord Tenant Board hearings involving Ms. Daly as complainant and Mr. Smith her then landlord.

16I have no memory of this event.

17I infer from that order that the appeal could not go forward because the Landlord and Tenant Board’s files were necessary for the appeal, but not in the file.

18Turning to the current proceedings, Ms. Daly’s Application against the City of Mississauga challenges demolition permits the City gave to NYX. At the time Ms. Daly brought her Application, she was involved in a number of disputes with her landlord at the Landlord and Tenant Board, and other matters I canvassed in my 25 August 2020 Endorsement.

19My only involvement in the current proceedings before this motion was to hear Ms. Daly’s motion to adjourn or strike Emery J.’s order setting a timetable, and fix the costs of that motion.

Law Re Recusal

20In R. v. S. (R.D.), 1997 CanLII 324 (SCC), [1997] 3 S.C.R. 484 the Supreme Court of Canada set out the principles applicable to the determination of a recusal motion based on the reasonable apprehension of bias. The applicable principals from R. v. S. (R.D.), and other related cases are:

(a) The test is: would an informed person, viewing the matter realistically and practically, with a knowledge of the case, and having thought the matter through, have the apprehension that the judge had a bias? That apprehension must be a reasonable one, held by a reasonable and right-minded person (see also: Committee for Justice and Liberty v. National Energy Board, 1976 CanLII 2 (SCC), [1978] 1 S.C.R. 369, at p. 394)

(b) This test contains two aspects: a) the person considering the alleged bias must be reasonable, and b) the apprehension of bias itself must also be reasonable in the circumstances of the case.

(c) Further, the reasonable person must be an informed person, with knowledge of all the relevant circumstances, including “the traditions of integrity and impartiality that form a part of the background and apprised also of the fact that impartiality is one of the duties the judges swear to uphold” (See also: R. v. Elrick, [1983] O.J. No. 515 (H.C.), at para. 14; R. v. Lin, [1995] B.C.J. No. 982 (S.C.), at para. 34.

(d) The reasonable person should also be taken to be aware of the social reality that forms the background to a particular case such as societal awareness and acknowledgement of the prevalence of racism or gender bias in a particular community.

(e) Bias is defined as 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).

(f) Bias has also been described as a predisposition to decide an issue or cause in a certain way that does not leave the judicial mind open and impartial (see also: Roberts v. R., 2003 SCC 45, [2003] 2 S.C.R. 259 (S.C.C.) at para 58, and Martin v. Samsone, 2014 ONCA 14, at para 31).

(g) Not every favourable or unfavourable disposition attracts the label of bias or prejudice.

(h) Recusal must be seen in light of the presumption of judicial integrity which encompasses the expectation that judges will strive to overcome personal bias and partiality and carry out the oath of their office to the best of their ability. Judges are disinterested in the outcome, and are open to persuasion by the evidence and submissions (see also: R. v. Teskey, 2007 SCC 25, [2007] 2 S.C.R. 267, at para 20).

(i) The “reasonable person” component of the test is described as a reasonable, informed, practical and realistic person who considers the matter in some detail (Committee for Justice & Liberty, supra). The person postulated is not a “very sensitive or scrupulous” person, but rather a right-minded person familiar with the circumstances of the case. It follows that one must consider the reasonable person’s knowledge and understanding of the judicial process and the nature of judging as well as of the community in which the alleged crime occurred.

(j) The party seeking recusal of a judge on the basis of perceived bias has a very high threshold to meet. A finding of real or perceived bias is a finding that must be carefully considered since it calls into question both the personal integrity of the judge, and the integrity of the entire administration of justice (see Stark, supra, at paras. 19-20). Where reasonable grounds to make such an allegation arise, counsel must be free to fearlessly raise such allegations. Yet, this is a serious step that should not be undertaken lightly (see also: R. v. Nero, 2016 ONCA 160, at paras 30 – 33).

(k) The onus of demonstrating bias lies with the party who alleges its existence and the standard of proof is the balance of probabilities (see: Marchand (Litigation Guardian of) v. Public General Hospital Society of Chatham (2000), 2000 CanLII 16946 (ON CA), 51 O.R. (3d) 97 (Ont. C.A.), at para. 131).

(l) Finally, at least as a general rule, allegations of bias or a reasonable apprehension of bias should be advanced as soon as it is reasonably possibly to do so: R. v. Curragh Inc., 1997 CanLII 381 (SCC), [1997] 1 S.C.R. 537 (S.C.C.), at para. 11.

21The approach to reasonable apprehension of bias was best summarized by Laskin J.A. in R. v. Grant, 2016 ONCA 639:

The appellants’ submission must be assessed in the light of the high threshold for showing bias. We presume judges will be impartial. We presume they will carry out their oath of office and act fairly to litigants. This high threshold requires cogent evidence to make out a claim of bias. The test to meet, which has stood for many years, is would an informed person, viewing the matter realistically, and having thought the matter through, conclude that the trial judge would not decide the matter fairly: Committee for Justice & Liberty v. Canada (National Energy Board) (1976), 1976 CanLII 2 (SCC), [1978] 1 S.C.R. 369 (S.C.C.) at p. 394.

22In Beard Winter v. Shekdor, 2016 ONCA 493, Doherty J.A. wrote at para 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. 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.

23As to the presumption of judicial impartiality, the Court of Appeal in R. v. Montoya, 2015 ONCA 786 held at para 9:

… An allegation of reasonable apprehension of bias should not be made lightly. That is because, as McLachlin C.J. said in Cojocaru (Guardian ad litem of) v. British Columbia Women’s Hospital & Health Center, 2013 SCC 30 (S.C.C.), at para. 22:

There is a presumption of judicial integrity and impartiality. It is a high presumption, not easily displaced. The onus is on the person challenging the judgment to rebut the presumption with cogent evidence showing that a reasonable person apprised of all the relevant circumstances would conclude that the judge failed to come to grips with the issues and decide them impartially and independently.

24Corbett J. in Peoples Trust Company v. Atas, 2018 ONSC 58 came to similar conclusions and stated at para 172: “…a litigant does not get to select her judge or decide that a certain judge will not preside in her matter”.

Analysis (Recusal)

25Ms. Daly has not met the high onus imposed on her.

26Based on all of the evidence I do not conclude that a reasonable person informed about the nature of the proceedings, would have the reasonable apprehension that I am. Ms. Daly’s objections are either overreaching, specious, or matters of opinion.

The 2014 Hearing

27With respect to the 2014 hearing, Ms. Daly submits that the 2014 proceeding is part of “historical proceedings” that cannot be divorced from the current proceeding, and having been involved in the “historical proceedings” I am now precluded from hearing this motion. My earlier involvement means that I am biased.

28As indicated, Ms. Daly believes that the “historical proceedings” are any proceedings which, in her mind, are related in any way. She argues that because of her fight with her then landlord, Smith, she left her then apartment and moved into the premises that she currently occupies and about which she and NYX are now in a dispute.

29The 2014 and 2020 matters were unrelated. Even if the two events were related, I heard nothing substantive on the earlier matter.

30In any event, the time to raise the reasonable apprehension of bias arising from the 2014 hearing was in August 2020. Not now.

I was Angry with Ms. Daly in August of Failed to Accommodate

31I reviewed the 103 page transcript of the 21 August 2020 hearing included in the Record.

32Ms. Daly’s suggestion that in August 2020 I was angry with her, unsympathetic or mean to her, or that I failed to accommodate her, does not withstand scrutiny.

33The transcript reveals that whenever Ms. Daly asked for an accommodation, it was provided. When she wished a short break to think, it was granted. When she wished water, she had it. When she wished time to consider her arguments or review her notes, she was afforded the time. When she asked to pass up further information and have it treated as evidence, it was taken. What should have been a 45 minute motion, took over three hours in order to accommodate Ms. Daly and permit her time to make full argument and reply.

34With respect to my demeanor in court, Ms. Daly’s allegations are subjective, self-serving, and without any direct evidence in support. They represent her objections to my attempts at keeping her argument focussed on the relevant issues and ensuring that the motion proceeded as efficiently as possible.

35That a judge loses patience, raises his voice or reprimands a litigant with respect to conduct does not give rise to a reasonable apprehension of bias: 4361814 Canada Inc. v. Dalcor, 2015 ONSC 1481 at para 58; Authorson (Litigation Guardian of) v. Canada (Attorney General), 2002 CarswellOnt 1724 (Div.Ct.), at para 68; Beard Winter v. Shekdor, (supra) at para 12.

Insensitive Remarks

36Ms. Daly submits that my telling her to “take a deep breath” triggered her Post Traumatic Stress Disorder. She received that comment as a signal to steel herself to an unfavourable event or outcome.

37The transcript reveals that I made the comment at a time when she appeared to be flustered and was having difficulty expressing herself. It was an attempt to accommodate her.

38IN any event, as Ms. Daly submitted, she accepted that I was unaware of her PTSD. Given that submission, this issue cannot be the subject of a claim for bias.

Denial of Ms. Daly’s Psychosocial Conditions

39Ms. Daly submits that I denied that she suffered from psychosocial conditions that required accommodation. On the contrary, the transcript reveals that I recognized and accommodated them.

Systemic Bias

40Ms. Daly complained that “systemic” biases prevented her from responding appropriately to the motions against her. These included size limitations on electronic documents to be filed, that she was unable to file some things, she did not have some things with her to give to me at the heard, and compressed timelines limited her ability to respond.

41This is not the case.

42Ms. Daly filed a significant record which appeared to address the issues that she wanted to address.

43Further, the motion in August 2020 was Ms. Daly’s motion. She insisted that it be heard on an urgent basis. It was only urgent because she allowed it to become urgent having waited 5 ½ months into the seven months Emery, J. gave her to bring her motion under R. 28.03. It is incumbent on her to move her motions forward efficiently.

44The basis of much of Ms. Daly’s position is the impact of her physical and psychosocial issues and how they reduced her ability to prepare for and appear on matters before the court. She advanced this argument before Doi J., Coroza J., Emery J., and me. She received adjournments from Doi J. and Emery J. Every judge that she appeared before has accommodated her conditions by giving her significant time within which to make her submissions.

45Simply finding against a party on a previous appearance is not evidence of bias.

46I do not find that a reasonable person informed about the case and looking at it objectively, would have a reasonable apprehension that I was biased because of my conduct at the hearing. Rather, Ms. Daly wishes to pick her judge. More specifically, she wants a judge that will allow her the time she determines that she needs to prepare and argue her proceedings.

The Adjournment Request

47Ms. Daly sought an adjournment of this motion on the following bases:

(a) She intends to appeal from Chown J.’s 25 November 2020 dismissal of her anti SLAPP motion under section 137.1(3) of the Courts of Justice Act. Chown J. dismissed Ms. Daly’s motion from the bench but has not yet delivered his reasons for that dismissal or on the costs of the Application. Accordingly, she cannot launch her appeal until she receives his written reasons.

(b) Any step in her Application cannot proceed because of section 137.1(5) which provides that once a motion is made under section 137.1 and until the conclusion of any appeal therefrom, no further steps can be taken in that proceeding by any party.

(c) NYX, in bringing this motion, is attempting to take advantage of Ms. Daly’s disabilities and her right to be heard, in order silence Ms. Daly or evade complying with the Courts of Justice Act. This is part of what Ms. Daly says is NYX’s larger plan to harass her, to not make “Code accommodations” to which she is entitled, and to evict her from her home.

(d) Finally, she argues that because of her disabilities she requires accommodations and time to prepare a proper response to NYX’s motion.

The Need to Prepare

48In this case no adjournment was necessary so that Ms. Daly could prepare for the hearing.

49The issue of this motion was simple and straightforward: can the Respondents amend the Title of Proceedings nunc pro tunc, to add Ms. Daly’s other name?

50Ms. Daly unnecessarily complicated this motion by filing a significant and large record on this motion, including a responding Motion Record, Factum, and Book of Authorities. She also referred the court to two of the six volumes she filed for the 25 November anti-SLAPP motion before Chown J., as well as volumes containing transcripts, and her Book of Authorities on the anti-SLAPP motion.

The Anti-SLAPP Motion and Appeal

51Two days before her appearance before Chown J. on 25 November 2020 to address the issue of NYX’s costs on Ms. Daly’s withdrawn application, Ms. Daly served a 1,400 page, six or seven volume motion, arguing that the costs assessment should be dismissed under section 137.1 of the Courts of Justice Act as being an interference with her expression of opinion about it, and participation in debates on matters of public interest. Chown J. dismissed the section 137.1 motion, from the bench, and then heard and reserved on the costs question.

52What transpired before Chown J. is unrelated to anything on this motion. This motion deals with the simple, straightforward question of whether Ms. Daly should be named in the Title of Proceedings in the Application by both of the names she uses, so that NYX will not have to amend the Title of Proceedings after it attempts to execute it against Ms. Daly.

53Ms. Daly also argued that this court could not take any further step in this matter because section 137.1(5) bars NYX from bringing any further steps.

54This argument is flawed.

55I accept that Ms. Daly’s Application was a “proceeding” within the meaning of s. 137.1. Any motion brought under section 137.1(3), however, is not a motion to which s. 137.1 applies. Further, NYX’s entitlement to costs following her abandonment or withdrawal of her Application is not a “proceeding” to which s. 137.1 applies.

56“Proceeding” is not defined in the Courts of Justice Act. “Action” is defined as a civil proceeding that is commenced by a Statement of Claim or other form of claim by which a party advances a cause of action against another. “Application” is defined as a civil proceeding that is commenced by Notice of Application or an application. In other words, the intention of the CJA is to define a “proceeding” as an originating process.

57By the time Ms. Daly brought her anti-SLAPP motion she had withdrawn her Application. It ceased to exist. All that remained was the question of whether NYX was entitle to its costs on the application under Rule 38.08(3).

58The purpose of s. 137.1 is to prevent litigation from being used as a tool to unduly limit a member of the public’s ability to express an opinion on matters of public interest.

59Section 137.1(3) refers to motions brought by a person against whom a proceeding has been brought. Section 137.1(5) says that until a motion under this section is determined, including any appeals, no step in the proceeding shall take place.

60This section does not apply since Ms. Daly brought the Application. NYX brought no proceeding to inhibit or limit Ms. Daly’s right to express any opinion, it merely responded to the Application.

61Further, Ms. Daly terminated that proceeding by withdrawing her Application. Once the Application was withdrawn, the proceeding in which the motion was brought ceased to exist.

62Section 137.1, either on its face or by inference, does not prevent a Respondent from seeking its costs where an Applicant abandons an Application.

63The cost consequences of abandoning an Application flow from operation of Rule 38.08(3), which provides that where an Application is abandoned or withdrawn, the Respondent to the Application “….is entitled to the costs of the Application, unless the court orders otherwise.” The last 5 words of subsection 3 give the court discretion in awarding costs and fixing the amount. Included in that discretion is the discretion to not award the Respondent costs or award a lower amount if the court determines that it was reasonable to have brought the Application and awarding costs would offend the principles of s. 137.1.

64Assuming that s. 137.1 does apply, Ms. Daly argues that Rule 137.1(5) applies and prevents the costs assessment from proceeding as it is a “step in the proceeding”. She says that she intends to appeal from Chown, J.’s dismissal from the bench of her s. 137.1 motion, but cannot do so until she receives the reasons.

65Ms. Daly argues that the appeal period referred to under Section 137.1(5) does not begin to run until Chown J. releases his reasons.

66Ms. Daly is mistaken. An appeal period begins to run from the date the judgement is pronounced, not the date the reasons are delivered (see: Fontaine v. Canada (Attorney General) 2012 ONCA 206 at paras. 58 – 61).

67The proceeding before Chown J. with respect to Ms. Daly’s anti-SLAPP motion completed on 25 November 2020 when Chown, J. pronounced the result. The 30 day appeal period expired on 28 December 2020. To this day, Ms. Daly has not appealed from Chown J.’s ruling with respect to her anti-SLAPP motion. Even if s. 137.1(5) applied, the stay it imposed on further steps expired with the end of the appeal period.

68Based on the foregoing analysis there is no reason to adjourn this motion to await Chown J.’s reasons in support of his decision to dismiss Ms. Daly’s anti-SLAPP motion or his decision on the costs of abandoning or withdrawing the Application.

Amendment of the Title Proceedings

69I allow NYX’s motion.

70Rule 5.04(2) provides that at any stage of a proceeding the court may add, delete, or substitute a party or correct the name of a party incorrectly named, on such terms as are just, unless prejudice would result that could not be compensated for by costs or an adjournment.

71Usually, the party moving to amend the title of proceedings is the Applicant or Plaintiff, seeking to properly name a defendant. In this case, it is the converse.

72In circumstances where a party moves to correctly name an opposing party in the proceeding, the Ontario Court of Appeal, in Kitcher v. Queensway General Hospital, 1997 CarswellOnt 2913 at paras. 2-3 held that the applicable test is whether the amendment would result in prejudice to the opposing party that could not be compensated for by costs. “Prejudice” in this sense cannot mean holding a party accountable for costs that party might be ordered to pay.

73Where there is no dispute as to the known alias of the party, the Court has granted the motion to amend the style of proceedings summarily.

74In Jacobs v. Hill, 2016 ONSC 4637, at para. 5, Broad J. granted the applicant’s oral motion to amend the Title of Proceedings, nunc pro tunc, to add an alias of the respondent that the respondent had revealed in an affidavit.

75In this case, the respondents discovered that from 2014 through at least until December 18, 2020, Ms. Daly used another name. In several documents Ms. Daly produced to NYX, Ms. Daly redacted the record to obscure or obliterate her last name as used on the document. In most instances, she handwrote the name “Daly” above the redaction. As it turns out, she produced an electronic copy of her registration with the Law Society of Ontario as a paralegal.

76NYX discovered that Ms. Daly also used the name of Julie Samantha Lawrence when it looked at the electronic copy of her LSO registration attached as Exhibit Z86 to her Affidavit which was contained in volume 6 to her anti-SLAPP motion.

77That document, too, was heavily redacted. It did not reveal Ms. Daly’s other name of Lawrence. When NYX looked at it electronically, it realized that the blank part of the page was redacted. Ms. Daly had not removed the metadata from the electronic document. Accordingly, NYX’s law firm was able to review the whole of the document which showed, for the first time, Ms. Daly’s full other name.

78Ms. Daly objects to the Respondent’s use of the unredacted document. She says that it is privileged, and in any event NYX’s looking at it is a violation of her right of privacy. She says that the firm ought to have warned her that they were going to use this private, privileged information. She relies on Autosurvey Inc. v. Prevost, 2005 CanLII 36255 (ON SC), in support of her position.

79Ms. Daly also accused respondent’s counsel of introducing a document into evidence that had been modified or altered and therefore was not a true document. I warned her that she was accusing the lawyers, who are officers of this court, of violating their oaths and their position before the court by putting before the court a fraudulent document. I told her that this was a very serious allegation, and asked her several times to take me to that or those altered documents that the lawyers were accused of putting before the court. We spent a great deal of time in the motion on this question. There was only one document – Exhibit Z86.

80I dismissed Ms. Daly’s objection on this point for several reasons:

(a) Exhibit Z86 was not privileged. The document was an email that was sent by the LSO to Ms. Daly and others who are strangers to this litigation.

(b) Exhibit Z86 was not misused. Ms. Daly sent it in its electronic form to the respondents. She failed to clean up the metadata. The Respondents were entitled to look at any document that they are sent and, if that document is electronic, to look at anything in the document.

(c) There was nothing contained in the redacted material that was privileged or otherwise would have, on its face, triggered an ethical obligation on the lawyers to stop reading the document and return it to Ms. Daly.

(d) Finally, Ms. Daly’s reliance on Autosurvey is misplaced. There, the court was concerned about protecting privileged information that one party had retrieved from another by hacking into its computer systems.

81Ms. Daly has raised no evidence of any prejudice she faces because of the disclosure of Exhibit Z86. The fact that disclosing her other name exposes her to the cost award that she might have escaped to the extent that she held assets as Julie Samantha Lawrence is not the kind of prejudice that the rule or the case law demands.

82NYX’s motion to amend the Title of Proceedings is allowed. Formal approval of the order is dispensed with.

Costs

83NYX is successful on this motion and is presumed entitled to its costs. I will decide the question of who pays costs to whom and in what amount, based on written submissions. NYX will serve and file its costs submissions by 4 PM, 26 February 2021. Ms. Daly will serve and file her cost submissions by 4 PM 26 March 2021. This should give Ms. Daly ample time to respond. There will be no right of reply.

84Written submissions shall not exceed 3 double-spaced, typed pages, excluding Offers to Settle, Bills of Costs, and cases. Where possible, case references in the submissions should be hyperlinked to the decision (not in the CanLII database) to obviate the need of case books.