COURT FILE NO.: CV-20-4114-000
DATE: 2021 05 03
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
SANDRA GAIL GRIER
Gabriella V. Deokaran, for the Applicant
Plaintiff
- and -
THE CANADA TRUST COMPANY
Defendant
Jonathan F. Lancaster, for the Defendant
HEARD February 12, 2021 by video conference
REASONS FOR JUDGMENT
(Recusal Motion)
Fowler Byrne J.
[1] The Plaintiff Sandra Grier brought a motion that this Justice be recused from this proceeding on the basis that she has raised a reasonable apprehension of bias. On February 12, 2021, I dismissed this motion, with reasons to follow. These are those reasons.
Background
[2] The Plaintiff Sandra Grier (“Grier”), David Grier (“David”) and Janet Grier (“Janet”) are the three children of the late James William Grier. There is currently other litigation ongoing as between David and Janet with respect to the estate itself, identified as court file no. CV-13-1222-ES (“Estate Matter”). Sandra is not a party to the Estate Matter and had not taken any part in it for approximately 6 years until the summer of 2020.
[3] The Defendant, the Canada Trust Company (“CT”), was appointed the Estate Trustee During Litigation with respect to the estate of the late James William Grier, by way of the Order for Directions of Trimble J. dated June 3, 2014, made within the Estate Matter. In the summer of 2020, David and Janet settled the Estate Matter. Given that they were both parties under a disability at that time, both brought motions for approval of the settlement. As required by the Order of Trimble J., Grier was notified of this settlement. Grier opposes the approval of this settlement.
[4] Grier commenced this action as against CT on October 29, 2020. In this action, Grier seeks damages as against CT in the sum of $1,000,000 plus specific damages in the sum of $500,000 and punitive damages in the sum of $100,000.
[5] Grier has alleged inter alia, that CT failed in its duty to protect the interests of the beneficiaries, and allowed David to use a power of attorney in an illegal manner so as to deplete the estate. She has also alleged that CT showed a bias towards David and Janet.
Motion for My Recusal
[6] Grier now seeks an order that I recuse myself from this action. It is helpful to understand the background to this motion.
[7] After commencing this action, Grier brought an urgent motion, returnable on November 13, 2020. In this motion, Grier sought (1) the replacement of CT as the Estate Trustee, (2) in the alternative, that the motions for approval in the Estate Matter not be “accepted” until CT investigates concerns raised by Sandra in the accounting of the Estate, or (3) in the further alternative, an order that CT be ordered to send an affidavit to this court, with respect to the Estate Matter, no later than November 11, 2020, setting forth the Plaintiff’s concerns and requesting 30 days to investigate these concerns. Only CT was served with this motion, and not Janet nor David, despite that relief was sought with respect to the Estate Matter.
[8] This motion was scheduled to be returnable before Kumaranayake J. on November 20, 2020, along with a motion in the Estate Matter. Seeing that I was seized of the motion within the Estate Matter, Kumaranayake J. ordered that this motion be scheduled before me along with the motion in the Estate Matter.
[9] By way of my endorsement of November 23, 2020, both these motions were eventually scheduled to be heard by me on December 18, 2020 with a timetable set for the service and filing of materials.
[10] When the parties appeared before me, counsel for CT advised the court that it wished to address the motion for my recusal first. This took the court by surprise as it was unaware that any such motion was brought, and no materials with respect to a recusal motion were before this Justice to consider, although Grier indicated that they were filed. It appears that this motion seeking my recusal was brought by way of an amendment of the Notice of Motion for the removal of CT, which added this additional request for relief. No Amended Notice of Motion or affidavit of service of this Amended Notice of Motion was provided to this Justice.
[11] I do note that on December 14, 2020, counsel for Grier did confirm the motion scheduled for December 18, 2020, by indicating on her confirmation form that the matter would proceed “on all issues”, without specifying the issues themselves. She also advises that the judge should refer to the Amended Notice of Motion.
[12] Given that I did not have the materials before me, the matter of my recusal, and the other motions I was scheduled to hear that day were adjourned. Janet and David requested to be served with Grier’s motion for my recusal, which was brought within this action.
[13] On January 7, 2021, a comprehensive endorsement was sent out to the parties with a return date of all the motions, including this recusal motion, and a timetable for the service and filing of materials. The return date was set for February 12, 2021.
[14] In this endorsement, with respect to this recusal motion, I ordered:
- The schedule for the service and filing of the materials for the Recusal Motion will be as follows:
a. Sandra is to serve her full Recusal Motion, by email on Janet, David and the Canada Trust Company, no later than January 11, 2021, and immediately file an affidavit of service;
b. If Janet, David or Canada Trust do not receive a full copy of the Recusal Motion by 5:00 p.m. on January 11, 2021, they shall immediately notify counsel for Sandra Gail Grier (“Sandra”), who will forthwith serve a printed copy by courier of the Recusal Motion on counsel for Janet, David or Canada Trust, to be served no later than January 14, 2021 at 5:00 p.m. An affidavit of service shall be filed by Sandra immediately thereafter;
c. If Sandra does not serve the Recusal Motion by this deadline, the Recusal Motion shall not be heard;
d. Janet, David and Canada Trust shall have until January 29, 2021 to serve by email and file their responding materials to the Recusal Motion;
e. Sandra may serve by email and file any reply materials no later than February 4, 2021. If Janet, David or Canada Trust do not receive a full copy of the Sandra’s reply materials by 5:00 p.m. on February 4, 2021, they shall immediately notify counsel for Sandra who will forthwith serve by courier a printed copy of her reply materials on counsel for Janet, David or Canada Trust, to be served no later than February 5, 2021. An affidavit of service shall be filed by Sandra immediately thereafter.
- The parties will confirm all five of these motions in the normal course and will list each document on which they intend to rely in the argument of these four motions. Counsel are to review these confirmations as soon as they are received to ensure they have all the documents listed by each party. If not, they will immediately request a copy from the other party.
[15] On February 12, 2021, a review of the court file showed that the recusal motion, brought in this action, was not served on the parties as ordered. There is no affidavit of service showing such. In fact, there is no record of any recusal motion in this action ever being filed with the court, by way of an amendment of Sandra’s motion to remove CT as ETDL, or otherwise. The only affidavit evidence received by Sandra on this motion was a supplementary affidavit sworn November 18, 2020, which is irregular and unacceptable for a number of reasons. Although sworn November 18, 2020, the exhibits attached are made with reference to an affidavit sworn February 10, 2021. The paragraph numbering is off, and it was served after the deadline for service as set out in my January 7, 2021 endorsement. It appears that CT was served with the recusal motion, as it is addressed in their factum, but it was never filed, even after this court indicated on December 18, 2021 that there was no record of it being so.
[16] Instead, what was served and filed was a new motion, brought within the Estate Matter, seeking my recusal. Neither this motion, nor the recusal motion supposedly brought in this action were confirmed with the court, as required by my endorsement of January 7, 2021. Had Grier confirmed this motion, and listed the materials to be relied on as is required, this omission could have been highlighted by the court and perhaps remedied before the date of the hearing. More importantly, CT may have obtained notice that the motion was not even filed and therefore would have saved the time and expense of preparation.
[17] On February 12, 2021, Grier argued both motions for recusal. When asked specifically whether she wished for an order for my recusal in both this action and in the Estate Matter, she answered in the affirmative. The factum filed by Grier for February 12, 2021 was in the Estate Matter and relied on affidavit materials she filed in the recusal motion filed in the Estate Matter. Her allegation of bias focused on an endorsement dated September 25, 2020, an appearance on October 2, 2020, her letter of complaint to the Regional Senior Justice on October 5, 2020 and a decision I released on October 5, 2020 on a motion, all with respect to the Estate Matter.
Analysis
[18] The grounds cited by Grier in support of a finding that there is a reasonable apprehension of bias in this action, all pre-date the issuing of this claim. It is difficult to understand how this Justice demonstrated a bias with respect to this litigation before it had been commenced and before this Justice was even aware that it existed.
[19] Irrespective of whether such bias can be shown, this motion must be dismissed on procedural grounds.
[20] Although advised that her materials were not received by the court on December 18, 2020, Sandra did not file her motion materials for the recusal motion within this action.
[21] Although ordered on January 7, 2021 to serve Janet Grier and David Grier with her motion for recusal within this action, she did not do so. Instead, she brought a new motion seeking my recusal in the Estate Matter.
[22] Although ordered to properly confirm this motion, and other motions, which would alert this court to the materials on which she intended to rely, Sandra failed to do so.
[23] In essence, her motion to recuse this Justice in this action was brought orally, without a Notice of Motion and and with an irregular supplementary affidavit.
[24] Paragraph 4(c) of my endorsement of January 18, 2021 was clear. If Sandra did not serve the Recusal Motion by the deadline set, the Recusal Motion shall not be heard. At that time, the only recusal motion before the court was the recusal motion in this action. This recusal motion was not served as ordered, nor was it filed.
[25] Rule 37.07(5)(a) of the Ontario Rules of Civil Procedure, R.R.O. 1990, Reg 194, states that when a motion was to be served on a party, and that person was not served, I may dismiss the motion.
[26] Rule 37.08(1) states that any motion that is made on notice, must be filed with proof of service at least 7 days prior to the hearing date.
[27] Rule 37.10(4) states that if a party fails to confirm a motion in accordance with the Rules, the court can decline to hear the motion and deem it abandoned unless ordered otherwise.
[28] I am mindful of the fact that CT was aware that this motion was going to be argued, and that it was served with a motion seeking this relief. It could be argued that there is no prejudice to CT by ruling on this motion. I do have the discretion under rule 2.01 to find Grier’s failure to serve and file her motion with the court to be an irregularity and make an order to remedy the situation.
[29] This is not the appropriate situation in which to remedy any such irregularity. I do not consider Sandra’s failure to serve and file her motion record on this motion to be an irregularity. It is a clear disregard for the orders of this court and the Rules to which all parties are required to adhere. Parties are entitled to notice of the motions that are sought and in which they have an interest. Although this action is only against CT, it does affect David and Janet as they are the potential beneficiaries of the monies being managed by CT. That is the reason I ordered that they be served.
[30] Rule 60.12 states that if a party fails to comply with an interlocutory order, the court may, in addition to any other sanction under the rules, dismiss the party’s proceeding, or make any such other order that is just. In these instances, the rules of procedure fairness mandate that I dismiss this motion.
[31] Accordingly, for the foregoing reasons, I make the following order:
a) The Plaintiff’s motion that I recuse myself from this action on the basis of bias is dismissed; and
b) The CT may serve and file written submissions on costs, limited to two pages, single sided, and double spaced, exclusive of costs outline and case law, no later than 4:30 p.m. on May 14, 2021; Grier may serve and file written submissions on costs, with the same size restrictions, no later than 4:30 p.m. on May 28, 2014; the CT may serve and file rely submissions, with the same restrictions, no later than 4:30 p.m. on June 4, 2021.
Fowler Byrne J.
Released: May 3, 2021
COURT FILE NO.: CV-20-4114-000
DATE: 2021 05 03
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
SANDRA GAIL GRIER
Plaintiff
- and –
THE CANADA TRUST COMPANY
Defendant
REASONS FOR JUDGMENT
Fowler Byrne J.
Released: May 3, 2021