COURT FILE NO.: CV-17-570060
DATE: January 14, 2021
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: New Generation Woodworking Corp. v. Adam Arviv and Canadian Imperial Bank of Commerce;
BEFORE: MASTER C. WIEBE
COUNSEL: Charles Skipper for New Generation Woodworking Corp. (“New Generation”);
Mark Wiffen, former counsel for Adam Arviv;
PARTIES: Adam Arviv, one of the defendants;
HEARD: January 13, 2021.
REASONS FOR DECISION
[1] On the first day of the videoconference trial hearing, January 13, 2021, Mr. Arviv appeared along with Mr. Skipper and Mr. Wiffen. Mr. Arviv made two motions: a motion asking me to overturn my order of January 7, 2021 refusing an adjournment of the trial hearing; and a motion that I recuse myself on the grounds that Mr. Arviv has a reasonable apprehension of bias concerning me. I heard oral argument over the course of that day and adjourned the trial until January 14, 2021.
[2] Concerning the motion to adjourn the trial, Mr. Arviv reiterated his argument that he is without counsel and that he needs time to retain and instruct counsel. I reject this argument again. I find that this representation issue is a part of Mr. Arviv’s delay strategy.
[3] There is no doubt that Mr. Arviv has always had more than enough resources to hire and instruct counsel. The question is his attention to this case and his desire to deal with it properly. Mr. Arviv has hired and let go five lawyers in this reference, the last one being Mr. Wiffen. Mr. Arviv admitted on January 7, 2021 to “being too busy on other matters” to prepare his trial evidence in November and December, 2020 as I had ordered. He did not blame Mr. Wiffen for this failure. He accepted Mr. Wiffen’s resignation on December 18, 2020, less than one month before the trial hearing and after my deadline for the delivery of Mr. Arviv’s trial evidence had passed.
[4] Mr. Arviv then hired the Groia & Company firm just to appear on his behalf at the December 23, 2020 teleconference convened to deal with the consequences of Mr. Wiffen’s removal so near to trial. Dawit Debssou, the Groia lawyer, said that Mr. Arviv did not oppose Mr. Wiffen’ removal. Mr. Debssou also said that his firm was considering being retained by Mr. Arviv and was just “clearing conflicts.” However, later that same day, December 23, 2020, Groia refused the retainer citing “scheduling conflicts.” There was no evidence as to what Mr. Arviv did to get a lawyer in the 15 days between December 23, 2020 and January 7, 2021, the date of the Wiffen removal motion and the New Generation motion for an order striking the Arviv statement of defence and counterclaim. This is a telling absence given the immediacy of the trial hearing.
[5] On January 7, 2021, Mr. Arviv appeared. Again, he did not oppose the Wiffen removal motion. But he said he wanted a trial adjournment to get and instruct a new lawyer. All he said about what he was doing to get a new lawyer was that he would be approaching two lawyers “in the next 48 hours.” He refused to give their names. I refused this request for an adjournment as I saw Mr. Arviv’s legal representation issue as a part of a strategy to delay the trial hearing, a strategy that included a gross breach of my directions to deliver his affidavit trial evidence and conveniently being without counsel on the eve of trial. I found that an adjournment would significantly prejudice New Generation, as its trial evidence was already on the record as I had ordered.
[6] Then on Monday, January 11, 2021 I learned of an email exchange between Julian Binavince, a well-known construction lawyer, and Mr. Skipper wherein Mr. Binavince advised that he would be retained by Mr. Arviv if the trial was adjourned. Mr. Binavince was unaware of my reasons for my January 7, 2021 ruling. Mr. Skipper sent these reasons to Mr. Binavince. I note that Mr. Binavince was not in attendance on January 13, 2021.
[7] Then at the commencement of the trial hearing on January 13, 2021, Mr. Arviv, faced with the prospect of the trial proceeding as scheduled, suddenly reversed his lack of opposition to the Wiffen removal order I made on January 7, 2021 and that Mr. Arviv had not opposed at that time.
[8] Then today, January 14, 2021, another lawyer appeared, Alex Fidler-Wener. Ms. Fidler-Wener said that she was retained by Mr. Arviv last night just to appear today to seek a trial adjournment at least until February 4, 2021. She said that, if I granted the adjournment, she would go on the record for Mr. Arviv. She said she had read my reasons for my January 7, 2021 rulings, and was aware that an adjournment would be for at least eight months. She gave me no assurance that Mr. Arviv would abide by future court directions with her representation. When I asked her whether she was prepared to go on the record if I adjourned the trial to start on another date in the existing trial schedule, she said no.
[9] In the end, therefore, there was nothing at the hearing on January 13, 201 and today that caused me to change my ruling denying the trial adjournment due to Mr. Arviv’s lack of legal representation. I remain of the view that this issue is of Mr. Arviv’s own doing and continues to be a part of his delay strategy.
[10] Concerning the recusal motion, Mr. Arviv alleged that on January 7, 2021 I made a statement that gave him a reasonable apprehension that I am biased against him. He said that I had said that “you’re one of those people.” He said that I made this statement in the context of a discussion of his present residence in Miami, Florida. He stated that he is an Israeli Jew, that his name, “Arviv,” is a well-known Jewish name, that it is well-known that many Jews live in Miami, and that my statement gave him a reasonable apprehension that I have an anti-Semitic bias against him. At one point, Mr. Arviv added that I am also “anti-elitist.” Neither I nor Mr. Skipper could remember me making such a statement on January 7, 2021 or at any time. Mr. Wiffen did not comment. I received written submissions and case authority from Mr. Skipper and adjourned the trial hearing to January 14, 2021.
[11] During the break, I found the time to listen to most of the audio recording of the proceedings of January 7, 2021. What I found out was the following. At one point, I discussed with Mr. Arviv his failure to attend before me at the teleconference of December 23, 2020. I had ordered that he do so. Instead, as I stated earlier, he sent a representative who was not his lawyer of record. I wanted to discuss this as it was part of the larger issue of Mr. Arviv’s pattern of non-compliance with court directions. Mr. Arviv said that, while he resided in Miami, he was vacating on the island of St. Bart’s on December 23, 2020 and that there was no audio connection on the island that allowed him to join the teleconference. At this point, I said in passing: “so you were one of those people who were travelling abroad.” I recall that I was referring to the recent controversy involving people who traveled abroad contrary to government recommendations against unnecessary foreign travel due to the COVID-19 pandemic. It was an unnecessary statement I should not have made. However, I note that Mr. Arviv took no exception to this statement at the time. The conversation just carried on.
[12] The transcript of this proceeding is being generated at my request and should be available by January 15, 2021. I intend to make the transcript available to the parties, if they so wish.
[13] The test about whether I should recuse myself due to a reasonable apprehension of bias is outlined by the Supreme Court of Canada in R v. S (R.D.) 1997 CanLII 324 (SCC), [1997] 3 S.C.R. 484 at paragraph 111 as follows: “the apprehension must be a reasonable one, held by reasonable and right-minded persons, applying themselves to the question and obtaining thereon the required information. . . . [The] test is “what would an informed person, viewing the matter realistically and practically – having thought the matter through – conclude.”” The Court of Appeal in R v. Richards, 2017 ONCA 424 at paragraphs 43-50 gave more particularity to the test as follows: there is a presumption of judicial integrity; judges have a sworn duty to act impartially; the threshold for the moving party is high, but not insurmountable; the onus of meeting the test rests with the party alleging the reasonable apprehension of bias; the motion is determined by the facts in the case at bar; the apprehension of bias must be a reasonable one, held be reasonable and right-minded persons, applying themselves to the question and obtaining the right information about it. The Court noted that stereotyping reasoning may give rise to a reasonable apprehension of bias.
[14] Applying this test, I find that Mr. Arviv has not met the test for a reasonable apprehension of bias that would cause me to recuse myself. The statement that Mr. Arviv alleges I made is in fact not the statement I made. The statement I made concerned people traveling abroad in contravention of government recommendations. It has nothing to do with Mr. Arviv’s name, origin and ethnicity, and, in my view, would not cause a reasonable person to conclude that I harbor an anti-Semitic bias against Mr. Arviv.
[15] I also do not accept Mr. Arviv’s characterization of the statement as showing an “anti-elitist” bias against a wealthy person such as Mr. Arviv. My statement is on its face a statement of fact, namely that Mr. Arviv was one of the persons who were travelling abroad. It does not denote a value judgment. A reasonable person would not know from the statement whether I approved or disapproved of Mr. Arviv’s trip to St. Bart’s. On the other hand, if it can be viewed as denoting a value judgment, which I find not to be case, I note that many people from all walks of life have been embroiled in the controversy concerning travelling abroad, not just the “elites.” Therefore, a reasonable person reviewing the statement would not necessarily conclude that it shows an “anti-elitist” bias against Mr. Arviv. I also fail to see how travel abroad from Miami to St. Bart’s relates in any way to the issues in this case, which is after all a case about a construction project concerning Mr. Arviv’s condominium in Toronto.
[16] Mr. Skipper relied upon the decision in Jewish Family and Child Service of Toronto v. J. Z., 2014 ONCJ 165. Concerning the issue of recusal due to a reasonable apprehension of bias, the court quoted from Justice Hardman in Children’s Aid Society of Waterloo Region v. B. (L.A.) 2004 ONCJ 235. In that case, the judge knew the foster mother of the child in issue and got both parties to agree to allow the judge to hear the trial. Then, well into the trial, the mother objected to the trial judge. In denying the motion, Justice Hardman reviewed the authorities on recusal motions and had this to say:
[at paragraph 28] recusal is not warranted merely by the trial judge’s raising the possibility of an apprehension of bias. For a [judge] to disqualify himself on trifling or invalid grounds obviously raises concerns about wasted resources and delay with the attendant risk of injustice. . .
[at paragraph 55] Further, it has been noted by a number of courts . . . that often the trial judge is drawn towards recusing himself or herself out of an abundance of caution. However, the law is clear that to do so without having the onus met may result in prejudice to other parties or the system in general.
[17] The most that can be said about Mr. Arviv’s recusal motion is it raises issues that are, to use Justice Hardman’s words, “trifling.” But I prefer her other word as being more apt, namely that the issues are “invalid.” To recuse myself on these grounds would indeed be a waste of resources and an unnecessary delay.
[18] For these reasons, I deny Mr. Arviv’s recusal motion as well.
DATE: January 14, 2021 __________________________
MASTER C. WIEBE