COURT FILE NO.: CV-13-1222-00ES
DATE: 2021 05 03
ONTARIO
SUPERIOR COURT OF JUSTICE
IN THE ESTATE OF JAMES WILLIAM GRIER, Deceased
B E T W E E N:
DAVID JAMES GRIER, by his litigation guardian Tammy Grier
Douglas G. Loucks, for the Applicant
Applicant
- and -
JANET LYNN GRIER, by her litigation guardian, the Public Guardian and Trustee
Respondent
Frances M. Wood, for the Respondent
Gabriella V. Deokaran, for the non-party Sandra Gail Grier
HEARD February 12, 2021, by videoconference
REASONS FOR JUDGMENT
Fowler Byrne J.
[1] The non-party Sandra Grier (“Sandra”) seeks an order that this Justice be recused from this proceeding alleging that my conduct has raised a reasonable apprehension of bias. The grounds alleged, as set out in the Notice of Motion, are as follows:
a) this Justice disclosed to opposing counsel that Sandra had brought an ex parte motion seeking a Mareva injunction (“Mareva Motion”) before reading the entire Mareva Motion, which is a breach of natural justice;
b) this Justice decided the Mareva Motion without considering the evidence of whether it should be heard on an ex parte basis, which is a breach of procedural justice;
c) this Justice dismissed the Mareva Motion because Sandra’s counsel complained to the Regional Senior Justice about this Justice’s conduct; and
d) this Justice made a number of errors in her decision to deny the Mareva Motion; in support of this allegation, Sandra argued, inter alia, that the Applicant David Grier (“David”) had a history of dissipating the assets of the late James William Grier and that this Justice did not consider the evidence properly.
I. Background
[2] While this motion was not brought until January 2021, the history of this court proceeding is necessary to understand the context of this request for my recusal.
[3] On July 3, 2020, I was considering two motions, brought in writing, in which David, and the Respondent Janet Grier (“Janet”) both sought the court’s approval of a settlement reached as between them in this matter. Both David and Janet were under disabilities and thus required this court’s approval (“Approval Motions”). Sandra was not a party to these proceedings. By virtue of an Order for Directions, made by Trimble J. on June 3, 2014, Sandra was entitled to notice of any settlement reached.
[4] Before filing any responding materials to these motions, Sandra’s counsel contacted the court indicating her objection. Sandra then brought a motion seeking an order that she be served with the entirety of the Approval Motions, as certain affidavit evidence in these motions was omitted in her copy. After receiving responding materials on this motion, I released my decision on August 10, 2020 and ruled in favour of Sandra. I ordered that Sandra was entitled to a complete copy of the Approval Motions and gave David and Janet seven days to serve them. I also ordered that Sandra would then have 14 days from the receipt of these affidavits to file any responding materials to the Approval Motions, and also gave David and Janet a further seven days to file reply materials. If followed, this would have resulted in Sandra filing her responding materials by the end of August 2020 or early September 2020. I remained seized of the Approval Motions.
[5] David and Janet served the entirety of the Approval Motions as ordered. Instead of filing responding materials, on or about September 1, 2021, Sandra Grier brought two motions. One motion was the Mareva Motion in which she sought ex parte relief. In the other motion, she sought more substantive relief as against Janet and David, including that she be added as a party (“Substantive Motion”).
[6] Both these motions came before this Justice in a piecemeal and disorganized manner. The first email forwarded by the filing office for my consideration, which was forwarded to them by Ms. Deokaran, enclosed only a copy of my endorsement from July 2020, and “Part 4” of a motion record, which was 74 pages in length starting with exhibit “N” to an affidavit sworn on August 25, 2020.
[7] Noticing the deficiencies, I advised the trial office of what I received and asked them to verify what material were filed. They followed up with Ms. Deokaran on Sept 8, 2020. On September 8, 2020 I was sent 8 separate attachments, being parts of various motions records. On September 9, 2020, Ms. Deokaran purported to send her materials again, but arranged differently “in Motion Record Volume Format”. On September 11, 2020, the trial office forwarded to me 4 different attachments, which overlapped in some manner with what was already received. On September 14, 2020, I was sent again copies of some of the materials already provided. There appeared to be significant duplication and overlap in the materials filed between September 1, 2020 and September 14, 2020. Indexes in the Motion Records were lacking in detail. There appeared to be more than one affidavit sworn on a particular day. It is unknown whether this was a difficulty with the initial filing by Ms. Deokaran, or some confusion in the filing office.
[8] Given the nature of the materials and the manner in which I was receiving them, I issued an endorsement on September 25, 2020, wherein I scheduled a “speak to” attendance for all parties to determine the issues to be decided and the scheduling of same. In that endorsement, I indicated that Sandra Grier had brought two motions, one of which sought injunctive relief and the freezing of assets. No further details were provided. I ordered that all parties were to provide a summary of all issues they believe were outstanding and a list of all documents on which they intended to rely, in anticipation of an attendance on October 2, 2020. It was hoped that with this direction from counsel, the voluminous and disorganized materials could be sorted out.
[9] In responding to my request, Sandra Grier advised the court, in writing, that one of the issues to be determined was the Mareva Motion. She did not copy other counsel with this letter. The nature of the injunctive relief was not disclosed.
[10] As indicated, the purpose of the October 2, 2020 attendance was to determine the issues to be decided and the scheduling of same. It was not to decide the matters. As of the speak to date of October 2, 2020, no decision had been made. At that attendance, counsel for David and Janet advised the court that they had not been served with any motion by Sandra and did not know what relief was being sought. From the perspective of their clients, Sandra had missed the deadline to file her responding materials to the Approval Motions and they were waiting for my decision on those motions.
[11] Following that attendance, after hearing submissions, and with the assistance of Sandra’s correspondence to the court further to my endorsement of September 25, 2020, additional efforts were made to sort through the numerous affidavits, often overlapping, on the two motions brought by Sandra. After reviewing all the materials filed by Sandra Grier in these two motions, and after seeing that she sought to be heard in writing, I released my decision on both motions on October 5, 2020. The Substantive Motion was dismissed, but with leave to refile after being properly served on the other parties. The Mareva Motion was dismissed, and reasons were provided. In essence, I found that the evidence filed did not meet the test required to grant injunctive relief.
[12] Prior to this decision being released on October 5, 2020, Sandra’s counsel wrote a letter of complaint to the Senior Regional Justice Ricchetti regarding this Justice, which she states was sent at 8:35 a.m. that morning. She asked the Senior Regional Justice to have her Mareva Motion considered by another Justice.
[13] Sandra received my decision on the Mareva Motion at 11:35 a.m that morning. Justice Ricchetti responded to her later that day that a decision on the Mareva Motion was already released and that he would not send it to another judge for consideration. A further letter of complaint was sent to the Senior Regional Justice the next day.
[14] While it is not clear, it appears that Sandra is alleging some type of subterfuge between myself, the Regional Senior Justice and his assistant, whereby after the Regional Senior Justice received a written complaint from Ms. Deokaran about this Justice, he passed the Mareva Motion to myself for a decision in the early hours of October 5, 2020 so that I could make the decision that I did. Sandra alleges that I could not possibly have reviewed her materials in just a few hours. She also alleges that because I was so angry that she wrote a letter to the Regional Senior Justice, that I “demonstrated” my anger by ruling against her and hoped that she would not appeal.
[15] Following the release of my decision on the Mareva Motion, I gave Sandra until October 13, 2020 to file responding materials to the Approval Motions and to obtain an extension to do so.
[16] Sandra did bring a motion to seek an extension, but brought it as an urgent motion, on an ex parte basis. This motion came before Petersen J. on October 23, 2020, who ordered that Sandra serve her motion record on the other parties. After service, this extension motion was scheduled to be heard by Kumaranayake J. on November 20, 2020 along with another motion in a matter commenced by Sandra seeking the removal of the Estate Trustee During Litigation, who was administering the estate of her late father (“ETDL Litigation”). Seeing that I was seized of the Approval Motions, Kumaranayake J. issued an endorsement on November 19, 2020 that both motions were adjourned to be returnable before me. These two motions were then scheduled to be heard before me on December 18, 2020.
[17] On December 18, 2020, counsel for David and Janet advised that they had still not been served with Sandra’s motion for an extension to file her responding materials, nor her motion to remove the ETDL in the ETDL Litigation. The court also heard for the first time that Sandra Grier had also brought a motion for my recusal in the ETDL Litigation, although no record of it was forwarded to me for my consideration.
[18] In order to give Sandra another chance to provide a substantive response to the Approval Motions, which had been outstanding for 6 months, I gave her a further opportunity to serve and file her materials so I could hear the matter on the merits. A hearing was convened on January 7, 2021 to schedule all the outstanding motions and provide a timetable for the delivery of materials. All outstanding motions, including the Approval Motions, and the motion for my recusal in the ETDL Litigation, were scheduled to proceed on February 12, 2021.
[19] When this court convened on February 12, 2021, this motion for my recusal in this matter was before me for the first time. Although it was not provided for in my scheduling endorsement of January 7, 2021, the materials were before me. Counsel for CT was prepared to argue the recusal motion they thought was before the court. In the interest of saving costs, Janet took no position on the recusal motion in this action, although her client agreed with the facts and law as presented by David and CT.
[20] David opposed the hearing of this recusal motion on several procedural grounds:
a) Sandra did not comply with the scheduling endorsement of January 7, 2021, in that he was not served with the recusal motion in the ETDL Litigation, although Sandra was ordered to do so;
b) This court did not provide for the hearing of a recusal motion in this action on February 12, 2021;
c) In her Notice of Motion, the only evidence cited by Sandra in support of her motion for my recusal is her factum; no evidence was listed;
d) Despite not listing her evidence, Sandra did include an affidavit with this motion, which was sworn January 11, 2021; nonetheless, all the exhibits attached to her affidavit indicated that they were in reference to an affidavit sworn on November 2, 2020, which was not included; and
e) The motion for my recusal was approximately 500 pages, with extensive exhibits (although referring to the wrong affidavit), some exhibits containing entire affidavits with exhibits, none of which was identified or listed in the table of contents to the motion.
[21] I also note that the Notice of Motion on this recusal motion states that it is returnable on January 11, 2021, although nothing had been scheduled for this day. Despite that error, counsel for Sandra indicated that she wanted this court to hear this motion.
[22] Sandra, David and CT filed facta on this motion. In the interests of moving this matter forward, I allowed both motions for my recusal to be argued. Fulsome arguments were made by all parties, except for Janet who elected to not take part. As indicated, I dismissed both motions, with reasons to follow.
II. Analysis
[23] Sandra’s main arguments in this motion are twofold. First, she alleges bias on my part because of the manner in which the Mareva Motion was handled. Secondly, she alleges a number of errors in my decision.
[24] With respect to the second argument, the proper forum in which to dispute my decision would be through an appeal. In that forum, she would have the opportunity to show errors in law or fact and seek that my decision be overturned. It is not known for sure whether she has done so. The mere fact that I did not rule in her favour does not in and of itself show that I am biased against her.
[25] With respect to her first argument, she argues that her rights to natural justice or procedural fairness were violated because the opposing party was advised of the motion for injunctive relief, despite this motion being made on an ex parte basis, and based on the assumption that her materials were not read when the decision on the Mareva Motion was made. This, she argues, raises a reasonable apprehension of bias on my part.
i. Natural Justice and Procedural Fairness
[26] In her factum, Sandra cited jurisprudence that support a party’s right to natural justice and procedural fairness. The court takes no issue with these concepts. The right to be heard is built into the Ontario Rules of Civil Procedure, R.R.O. 1990, Reg 194. The difficulty with this submission is Sandra’s assumption that her materials were not considered and that she did not have an opportunity to be heard. She has failed to provide any evidence on that point.
[27] First, Sandra requested that her Mareva Motion and the Substantive Motion were to be heard in writing. She cannot now argue that she was denied natural justice by not granting her an opportunity to make oral arguments, when she never requested the opportunity to provide them.
[28] Secondly, Sandra has provided evidence that her two motions – both the Mareva Motion and the Substantive Motion — were filed with the court. In fact, her materials were filed a number of times, in different formats. It is also clear from my endorsement of September 25, 2020 that I had before me Sandra’s two motions. Despite that, she alleges that this Justice never had her materials until Sandra’s counsel e-mailed them to the Senior Regional Justice on the morning of October 5, 2021. While it is conceded that this Justice had not reviewed both motions in their entirety at the attendance on October 2, 2021, no decision was made on that day.
[29] After the October 2, 2021 attendance, the materials were reviewed and were to be decided by motion in writing. When I did release my endorsement of October 5, 2021, on page 4 of my endorsement I state,
“I have reviewed the affidavit filed by Sandra. Even untested, it fails to satisfy the requirement that a real risk be shown that the assets will be moved out of the jurisdiction or disposed of within the jurisdiction or otherwise dealt with so that Sandra …will be unable to satisfy a judgment awarded.
[30] I then go on to point to particular pieces of evidence, which were part of Sandra’s motion, in support of my conclusion.
[31] Sandra’s allegation that this Justice failed to read her materials, or give her an opportunity to make her case, is clearly not substantiated. Her allegation is based on the suspicion of nefarious and ego-centric conduct on the part of the judiciary, which is a serious allegation that has no foundation and has not been made out.
[32] With respect to the fact that the existence of a Mareva Motion was disclosed to the other parties, Sandra does not address the fact that any document filed with the court, whether made on an ex parte basis or otherwise, is a public document and therefore was discoverable by the other parties had they wished to make an inquiry.
ii. Apprehension of Bias
[33] The right to a hearing before an impartial judge is of fundamental importance to our system of justice. If the words or actions of a judge exhibit bias or demonstrate a reasonable apprehension of bias, then this basic right has been breached and renders the hearing unfair.
[34] The law in this area is straightforward. The onus of demonstrating bias lies with the party alleging bias: R. v. S. (R.D.), 1997 324 (SCC), [1997] 3 SCR 484, at paras. 117 and 141. The standard of proof is on the balance of probabilities: Marchand (Litigation Guardian of) v. Public General Hospital Society of Chatham, (2000), 2000 16946 (ON CA), 51 O.R. (3d) 97 (Ont. C.A.), at para. 131.
[35] The threshold for finding a reasonable apprehension of bias is extremely high. There is a strong presumption in favour of the judge’s impartiality. As recently stated by the Court of Appeal for Ontario in Aurora (Town) v. Lepp, 2020 ONCA 528, at para. 21.
Allegations of judicial bias should not be made lightly. The application judge, like all judges, benefits from a strong presumption of judicial fairness, impartiality, and integrity that is not easily displaced: Neufeld v. Neufeld, 2020 ONCA 395, citing R. v. S.(R.D.), 1997 324 (SCC), [1997] 3 S.C.R. 484, at paras. 31-32.
[36] This presumption of impartiality can be overcome by cogent evidence that demonstrates that a properly informed, practical and realistic person, with knowledge of all the relevant circumstances, would conclude that the judge would not decide the case fairly. The test is objective. The law was recently set out by the Ontario Court of Appeal in R. v. Mills, 2019 ONCA 940:
[226] The test for establishing a reasonable apprehension of bias was recently summarized by this court in R. v. Ibrahim, 2019 ONCA 631, 147 O.R. (3d) 272, at paras. 83-84:
The test for establishing a reasonable apprehension of bias is well known – would a reasonable person, properly informed and viewing the matter realistically and practically conclude that the decision-maker could decide the case fairly: Committee for Justice and Liberty v. National Energy Board, 1976 2 (SCC), [1978] 1 S.C.R. 369, at p. 394, per de Grandpré J. (dissenting); Yukon Francophone School Board, Education Area #23 v. Yukon (Attorney General), 2015 SCC 25, [2015] 2 S.C.R. 282, at paras. 20-21.
In Canadian law, judges are presumed to be impartial. As this court said in R. v. Dowholis, 2016 ONCA 801, 133 O.R. (3d) 1, at para. 18: “There is a strong presumption of judicial impartiality and a heavy burden on a party who seeks to rebut this presumption.” See also Wewaykum Indian Band v. Canada, 2003 SCC 45, [2003] 2 S.C.R. 259, at para. 59; R. v. S.(R.D.), 1997 324 (SCC), [1997] 3 S.C.R. 484, at para. 117, per Cory J.; R. v. Ruthowsky, 2018 ONCA 552, at para. 21.
[37] The applicant must present “cogent evidence” that demonstrates bias or reasonable apprehension of bias: see R. v. S. (R.D.), at paras. 117 and 141.
[38] The court should be alive to such motions being brought for tactical reasons. As stated by the Court of Appeal for Ontario, Beard Winter LLP v. Shekhdar, 2016 ONCA 493,
[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.
[39] Keeping in mind this legal test, I see no basis for a finding that a person properly informed, objective, practical and realistic, with knowledge of all the relevant circumstances, would conclude that this Justice would not decide the case fairly. Viewed within the entire context of this proceeding,
a) Sandra has failed to provide cogent evidence that this Justice did not review the evidence in the Sandra’s Mareva Motion before deciding the matter on its merits; the reasons for judgment show that her materials were considered;
b) Sandra has failed to provide cogent evidence that this Justice failed to give written reasons for her decision; in fact, detailed reasons were released that include an analysis of the evidence in support of Sandra’s request for injunctive relief;
c) Sandra’s allegation that this Justice was motivated by anger in her decision is speculative at best and is based on subjective suspicion of inappropriate behaviour on the part of members of the judiciary; there is no air of realty to this allegation;
d) In a greater context, Sandra has alleged an error on my part in my perception of the alleged fraudulent conduct of David. This alleged fraudulent conduct forms the basis of her objection to the Approval Motions. I would be remiss if I did not point out that this Justice has yet to make a decision on the merits of the Approval Motions. Despite Sandra’s responding materials in the Approval Motions being due by early September 2020, they were not received until February 2021, and the Court is still waiting for her written submissions. Sandra’s allegation of bias fails to have an air of realty when the fundamental issue before this court has yet to be decided; and
e) No prejudice was suffered by Sandra as a result of David and Janet being advised that Sandra bought a motion seeking to freeze assets; as of October 2, 2020, counsel for David and Janet advised they had not been served and still did not know what relief Sandra was seeking; in addition, the existence of a motion is public information, available to anyone who wished to review the court file; the information set out in the Sept. 25, 2020 endorsement discloses less than what any member of the public was entitled to see.
III. Conclusion
[40] Accordingly, based on the foregoing reasons, I make the following orders:
a) Sandra’s motion that I recuse myself from this file is dismissed; and
b) The costs of this motion are reserved to when the decision on the Approval Motions is made.
Fowler Byrne J.
Released: May 3, 2021
COURT FILE NO.: CV-13-1222-00ES
DATE: 2021 05 03
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
DAVID JAMES GRIER, by his litigation guardian Tammy Grier
Applicant
- and -
JANET LYNN GRIER, by her litigation guardian, the Public Guardian and Trustee
Respondent
REASONS FOR JUDGMENT
Fowler Byrne J.
Released: May 3, 2021