Superior Court of Justice - Ontario

COURT FILE NO.: CV-14-518093

DATE: 20210917

RE: DIANA MICHELLE DANIELLA HORDO AND: STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY

BEFORE: VERMETTE J.

COUNSEL: Robert Besunder, lawyer for the Plaintiff Diana Michelle Daniella Hordo, Plaintiff, self-represented

HEARD: In writing

ENDORSEMENT

[1] Robert Besunder, the lawyer of record for the Plaintiff, Diana Michelle Daniella Hordo (“Ms. Hordo”), has brought a motion to be removed as lawyer of record.

[2] While this could and should have been a simple motion to determine in the circumstances of this case, Ms. Hordo filed more than 600 pages in response to the motion and is seeking various relief, not only against Mr. Besunder, but also against his wife, the Defendant, the Defendant’s lawyers and other non-parties. She also alleges apprehension of bias and bias on my part.

[3] In light of the issues raised by Ms. Hordo, it is necessary to review some of the procedural background of this case.

Factual and procedural background

[4] Ms. Hordo is a 35-year-old woman who was born in November 1985. This action arises from a motor vehicle accident in which she was involved that occurred on March 30, 2009.

[5] There is no evidence that Ms. Hordo is in any way mentally incapable or requires a litigation guardian. This action was commenced in 2014 and has proceeded without a litigation guardian.

[6] Despite the fact that the action was commenced in 2014, this action is still at a relatively early stage in that examinations for discovery have not been held.

[7] In 2020, the Defendant brought a motion to either dismiss the action or to compel Ms. Hordo’s attendance at an examination for discovery. Prior to the return of the motion, Ms. Hordo’s father, Michael Hordo (“Mr. Hordo”), who is a former lawyer, sent an e-mail to the attention of: (a) Justice Kristjanson who, at the time, was case managing this case; and (b) Master Short (now Associate Judge Short), who was going to hear the Defendant’s motion. While the e-mail was sent by Mr. Hordo, it purported to be sent on behalf of Ms. Hordo and her parents, and it requested an adjournment of the Defendant’s motion. The e-mail also contained allegations against Mr. Besunder, including that Mr. Besunder was “mentally sick”; he failed to do a number of things; he was a “danger to himself, to his clients, and to the Administration of Justice”; “[he] lied to us”; and he was incompetent and should not be practicing law.

[8] On February 28, 2020, Justice Myers sent the following e-mail to Mr. Hordo and the persons who were copied on his e-mail:

I am writing to you as co-Lead of the Civil Team and delegate of the Regional Senior Justice. The court has been copied on correspondence recently that did not comply with Rule 1.09 of the Rules of Civil Procedure, RRO 1990, Reg 194. This is improper and must stop immediately. I will be appointing a Case Management Judge to replace Kristjanson J. who is no longer hearing civil matters and therefore can no longer case manage these actions. Counsel will be contacted by the new Case Management Judge once appointed. The court will not communicate further with parties who are represented by counsel of record. [Emphasis added.]

[9] Mr. Hordo attended at the return of the Defendant’s motion on March 2, 2020. In light of the recent communication from Justice Myers, Master Short adjourned the motion to Justice Myers to be dealt with in case management. He noted in his endorsement that “[t]here are issues regarding progress of action and involvement of parents in this and companion matter […].”

[10] On March 2, 2020, Justice Myers advised the parties that Justice Pinto would replace Justice Kristjanson as case management judge in this matter. He asked that the parties contact Justice Pinto’s assistant to arrange a first case conference.

[11] A case conference was held before Justice Pinto on September 14, 2020. However, due to various reasons, Justice Pinto did not issue an endorsement until January 22, 2021.

[12] On December 17, 2020, Justice Pinto’s assistant sent to the parties an endorsement of Justice Myers advising that Justice Papageorgiou was replacing Justice Pinto to case manage this matter. On January 5, 2021, Mr. Hordo sent an e-mail to Justice Pinto’s assistant, copying various lawyers, in which he repeated derogatory allegations against Mr. Besunder. His e-mail also addressed the merits of the case and requested certain court orders, including an order allowing Mr. Hordo and his wife to prosecute this action “[u]ntil and if we manage to retain counsel”. Mr. Hordo asked that his e-mail be provided to Justice Myers and the new case management judge.

[13] As stated above, Justice Pinto issued his endorsement regarding the September 14, 2020 case conference on January 22, 2021. His endorsement read, in part:

1. A Case Conference was held before me on September 14, 2020 in respect of this matter. At the time, I was the Case Management Judge under Rule 77 dealing with this mater. As per a subsequent endorsement of Myers J. dated December 17, 2020, the parties were advised that, as I am no longer available to case manage this matter, Justice Papageorgiou is the new Rule 77 Case Management Judge. I am issuing this endorsement in respect of the September 14, 2020 case conference, however, further steps will be presided over by Papageorgiou J.

2. On February 28, 2020, Myers J., in his capacity as co-Lead of the Civil Team and delegate of the Regional Senior Justice of the Toronto Region wrote to Michael Hordo, copying the plaintiff, the plaintiff’s mother, and counsel, directing Mr. Hordo to immediately stop corresponding with the court as his correspondence did not comply with Rule 1.09 of the Rules of Civil Procedure. Myers J. also advised that I would be appointed as the Rule 77 Case Management Judge.

3. On March 2, 2020, State Farm brought a motion before Master Short to dismiss the action on the basis of the plaintiff’s failure to attend examinations for discovery. In light of Myers J.’s correspondence and the appointment of a Case Management judge, Master Short adjourned the motion.

4. Due to COVID-19 and its initial impact on the Superior Court and due to scheduling challenges, a Case Conference was not held before me until September 14, 2020.

5. The plaintiff has not been discovered by State Farm. She has resisted discovery on basis of alleged medical reasons and obtained a report from a medical doctor. State Farm does not agree that the plaintiff can avoid discovery and has brought a motion for dismissal of the action (for plaintiff’s failure to attend discovery) or, in the alternative, for an order compelling the plaintiff to attend at discovery.

6. The plaintiff is not a minor, nor a person under a disability as there has never been a finding of incapacity. As plaintiff, she is represented by a lawyer, Mr. Besunder. However, the plaintiff's father, Michael Hordo, a former lawyer, has continued to write directly to the court, copying others, criticizing Mr. Besunder’s representation of his daughter and conduct of the action. Mr. Besunder has stated, in light of Mr. Hordo’s criticisms, which the plaintiff did not disavow on the conference call or otherwise, that it is impossible or virtually impossible for him to continue to act for the plaintiff and either the plaintiff must file a notice to appear in person, or she must appoint new counsel, or he must bring a motion to remove himself as lawyer of record.

7. At the September 14, 2020 Case Conference, Mr. Besunder estimated that he could provide the plaintiff’s entire legal file to the plaintiff within 3 weeks which would provide the plaintiff with sufficient time to identify new counsel.

8. Counsel for the defendant insurer requested a quick time line by which it would be permitted to bring its motion to have the action dismissed, or to have the action move forward expeditiously including by way of the plaintiff’s mandated attendance at discovery.

9. Counsel for the defendant also requested that I issue directions so that the plaintiff, or anyone purporting to act on her behalf, including her father, cease writing directly to the court or, when corresponding with counsel, cease copying counsel who were formerly engaged on this file but who are no longer involved.

10. I regret that, due to a variety of developments, there has [sic] delay in my issuing this endorsement. In the interim, Papageorgiou J. has been appointed the Case Management Judge. In my view, the parties having attended the Case Conference before me on September 14, 2020, there are some orders that should come from me and, subject to the parties attending another Case Conference before Papageorgiou J., certain orders that should come from Her Honour based on an update of developments that may have taken place between September and now.

11. In light of the foregoing, an Order shall go as follows:

a) Michael Hordo is prohibited from communicating, directly or indirectly, with opposing counsel or with the court (or court staff) with respect to this matter. I repeat, this is an order of the court.

b) The plaintiff, or anyone acting on her behalf, shall refrain from communicating with or copying the following counsel who were formerly working on this matter (or on companion actions), but whom are no longer doing so: Michael Chadwick, John Olah, Mark Gelowitz. If one of these lawyers confirms that they are once again involved in this proceeding, communications may resume.

c) The parties shall attend a Case Conference before Papageorgiou J. by writing forthwith to Her Honour’s judicial assistant […].

[14] There was no case conference held before Justice Papageorgiou and, earlier this year, the case management of this matter was transferred to me.

Case conferences held in 2021

[15] The first case conference held before me took place on April 30, 2021 by telephone. Mr. Besunder was in attendance for the Plaintiff, and Ms. Andjelkovic appeared for the Defendant. My endorsement dated April 30, 2021 reads as follows:

Counsel provided me with an update on the status of this matter. In order to ensure that this matter move forward in a timely fashion, I order the following:

1. By May 28, 2021, Mr. Besunder will either: (a) advise me, through my assistant, that he has received satisfactory instructions allowing him to continue to represent the Plaintiff, including on the Defendant’s motion to dismiss the action for failure to attend examinations for discovery; or (b) serve and file motion materials for an order removing him as lawyer of record in this matter.

2. If Mr. Besunder brings a motion for an order removing him as lawyer of record, he is to serve his motion materials on his client: (a) by e-mail at the last known e-mail address of his client, and (b) by mailing a copy at his client’s last known address.

3. If Mr. Besunder brings a motion for an order removing him as lawyer of record, he is to make best efforts before May 28, 2021 to agree with his client on a mutually convenient date for the return of his motion. If, despite his best efforts, he has not been able to agree with his client on a motion date, then he is allowed to select an available motion date for his motion to be removed as lawyer of record.

4. If Mr. Besunder brings a motion for an order removing him as lawyer of record, this motion will not be heard by me.

5. The next case conference in this matter will take place by telephone on June 17, 2021 at 9:15 a.m. Dial-in particulars will be circulated closer to the date.

6. Mr. Besunder is to send a copy of this endorsement to his client by e-mail so that she is aware of: (a) the deadline and other directions with respect to Mr. Besunder’s motion to be removed as lawyer of record, and (b) the date of the next case conference.

[16] The next case conference took place on June 17, 2021 by telephone, with the same counsel in attendance. My endorsement states the following:

Mr. Besunder reported that despite his efforts, he has been unable to obtain a motion date before a Master for his motion to be removed as a lawyer of record. Further, he has not heard back from his client since the last case conference, even though he has sent her a number of e-mails and also left a voicemail message.

While my April 30, 2021 Endorsement indicated that I would not hear Mr. Besunder’s motion to be removed as lawyer of record, after hearing Mr. Besunder’s report, I have decided to hear the motion in order to avoid further delay in this matter.

If the Plaintiff retains new counsel, a copy of this Endorsement should be provided to them so that they are aware of the next case conference in this matter on September 14, 2021 at 9:00 a.m.

[17] I also ordered as follows:

I order the following with respect to Mr. Besunder’s motion to be removed as lawyer of record:

• Mr. Besunder will serve his motion materials and a copy of this Endorsement on Ms. Hordo by June 22, 2021. As noted in my April 30, 2021 Endorsement in this matter, he is to serve his motion materials on his client: (a) by e-mail at the last known e-mail address of his client, and (b) by mailing a copy at his client’s last known address. Mr. Besunder should serve the Defendant in accordance with the Rules of Civil Procedure.

• Any responding materials are to be served by July 13, 2021.

• On July 14, 2021, Mr. Besunder will advise my assistant as to whether responding materials have been served on him by Ms. Hordo.

• If no responding materials have been served and the motion is unopposed, I will hear the motion in writing during the week of July 26, 2021.

• If the motion is opposed, my assistant will contact the parties to arrange for a case conference or a short hearing which, if possible, will take place during the week of July 26, 2021.

The next case conference in this matter will be held on September 14, 2021 at 9:00 a.m.

[18] On July 14, 2021, Mr. Besunder advised my assistant by e-mail that Ms. Hordo had served responding materials on July 13, 2021. In accordance with my endorsement dated June 17, 2021, he requested that a case conference be scheduled. This request was followed by numerous communications sent to my assistant in contravention of Rule 1.09 of the Rules of Civil Procedure by both Ms. Hordo and Mr. Besunder. They were directed to stop such communications.

[19] Another case conference was held before me by telephone on July 29, 2021. Ms. Hordo participated in the case conference, as well as Mr. Besunder and Ms. Mackeigan for the Defendant. My endorsement of that date states the following:

At the last case conference in this matter on June 17, 2021, I ordered a timetable for Mr. Besunder’s motion to be removed as lawyer of record. The timetable provided that if Mr. Besunder’s motion was going to be opposed by the Plaintiff, Ms. Hordo, then a further case conference should be scheduled before me. I was advised that after Mr. Besunder served his motion record, Ms. Hordo served responding materials, which also purported to bring a new motion and were served on a number of third parties. I have not seen the motion materials served by the parties. Given Ms. Hordo’s apparent intention to oppose Mr. Besunder’s motion, a case conference was scheduled for today.

This case conference proceeded by telephone conference. It was obvious that Ms. Hordo was being told what to say by someone else during the case conference, which is concerning in light of previous endorsements made by other judges in this matter. Consequently, I have advised all parties that future case conferences will take place by videoconference. I have also urged Ms. Hordo to start looking for a new lawyer. She was reminded during the call that her father cannot represent her in this litigation.

I have advised Ms. Hordo that, given that this case is case managed by me and that all motions in this matter are to be made to me (unless I direct otherwise), she needs to arrange for a case conference with me and the Defendant before bringing any motion. This also applies to the Defendant. Any motion that Ms. Hordo purported to bring in the last month is not going to proceed. Mr. Besunder’s motion to be removed as lawyer of record needs to be determined first. The next steps in the action can be discussed at the next case conference in October.

Despite the fact that Mr. Besunder was prepared to consent to an order that he provide to Ms. Hordo a copy of his file within three weeks after an order removing him as lawyer of record, Ms. Hordo was still not prepared to agree to an order removing Mr. Besunder as lawyer of record, even though she confirmed today that she did not want Mr. Besunder to continue to act as her lawyer in this litigation. However, she was unable to articulate any valid ground in opposition to Mr. Besunder’s motion, and just repeated that I had to read her motion materials. As a result of her position, a formal motion was scheduled, but I warned Ms. Hordo that she could be ordered to pay costs on the motion in the event her response to Mr. Besunder’s motion raises irrelevant grounds and simply confirms that there has been a breakdown in the lawyer-client relationship making the removal of Mr. Besunder necessary. I advised Ms. Hordo that she should get legal advice and that she or a lawyer retained by her can reach out to Mr. Besunder directly if she wishes to resolve the motion before September 13, 2021.

[20] The formal order I made reads as follows:

I order the following with respect to Mr. Besunder’s motion to be removed as lawyer of record, which the parties agreed will proceed in writing:

• Mr. Besunder will deliver his motion materials by August 9, 2021.

• Ms. Hordo will deliver her responding motion materials by August 23, 2021. The responding motion materials are to be strictly limited to a response to Mr. Besunder’s motion to be removed as lawyer of record. The responding motion materials are not to be served on any third parties and cannot seek any unrelated relief.

• Mr. Besunder will deliver his Factum by August 30, 2021.

• Ms. Hordo will deliver her Factum by September 9, 2021.

• I will hear the motion in writing on September 13, 2021.

• If any issues arise with respect to the timetable set out above, the parties can contact my assistant to schedule a case conference.

The next case conference in this matter will be held on October 14, 2021 at 9:00 a.m. by videoconference. My assistant will send a Zoom link to [the] parties in due course. If Ms. Hordo has retained new counsel by that date, she is to provide the Zoom link and a copy of this Endorsement to them so that they can participate in the case conference on October 14, 2021.

Ms. Hordo is ordered not to serve any materials on the Defendant directly. All materials are to be sent to counsel for the Defendant. [Emphasis in the original.]

Motion materials

[21] Mr. Besunder’s motion is for an order removing him and his law firm as lawyers of record for the Plaintiff. In support of his motion, Mr. Besunder has filed the affidavit of Janice Besunder who states that she works “on an occasional basis as a legal assistant to Robert Besunder”. In her responding materials, Ms. Hordo alleges that Janice Besunder is Mr. Besunder’s wife. Most of Ms. Besunder’s affidavit is based on information received from Mr. Besunder and/or attached documents.

[22] As stated above, Ms. Hordo filed more than 600 pages in response to Mr. Besunder’s motion. Her materials contain three affidavits sworn by her father, Mr. Hordo, on July 13, July 21 and August 23, 2021, numerous exhibits to these affidavits, and a Notice of Constitutional Question. Ms. Hordo has not sworn an affidavit and there is no direct evidence of what she thinks and/or what she wants.

[23] The materials filed by Ms. Hordo are replete with criticisms towards, and serious allegations against, Mr. Besunder, including allegations of bad faith, gross negligence, forgery, breach of undertaking, breach of the Rules of Professional Conduct, receiving bribes from the Defendant, misleading the Court, criminal offences and other wrongdoing.

[24] In her “Further Amended Plaintiff’s Responding Motion” dated August 23, 2021, Ms. Hordo also purports to bring a motion for various relief and 14 different orders, including: (a) an order that the Defendant pay to Ms. Hordo statutory non-earner benefits and housekeeping benefits; (b) an order that Mr. Besunder’s motion be struck and that he be reported to the criminal justice authorities for commissioning the swearing of two false affidavits by his wife; (c) an order that Mr. Besunder pay to Ms. Hordo $100,000.00 for damages; (d) an order approving amendments to the Statement of Claim and the adding of parties; (e) an order approving a discovery plan and a preservation letter; and (f) an order that Mr. Besunder be found to have acted in bad faith. Ms. Hordo’s motion also seeks the following:

The Court is asked to correct the record, apologize to the catastrophically injured self-represented litigant, to allow her the assistance of both her parents until she is able to hire a lawyer, to sanction Mr. Besunder or to recuse and the [sic] allow the Plaintiff to bring an application for Judicial Review to a panel of the Divisional Court for procedural fairness, Certiorari, Mandamus and her Constitutional Question.

[25] The relief sought in Ms. Hordo’s Factum is slightly different. She asks for the following 15 different orders:

a. An Order/Ruling affirming the validity of the Plaintiff's Constitutional Question;

b. A Ruling/Order that the Court has inherent jurisdictional power to rule of [sic] Mr. Besunder's Bad Faith although rare and unprecedented, this case warrants the judicial over-sight on the Bad Faith and gross negligence of Mr. Besunder's representation;

c. An Order against Mr. Besunder and his family and the lawyers and insurers, all acting in Bad Faith;

d. A Ruling/Order that the Affidavit of Janice Besunder, sworn August 5, 2021, with same paragraphs 1 to 17 identical to her Affidavit of June 22 2021, and demonstrated to be false, be struck;

e. A Ruling/Order that the Motion Record of Robert Besunder relying on the affidavit of Janice Besunder be struck;

f. An Order/Ruling that Mr. Besunder not be removed, but suspended from the practice of law until he fulfills his personal undertakings and pays costs for delay and damages to his client of $100,000.00 and he and his family account for all payments from the strangers/insurers on all matters Hordo;

g. An Order/Ruling that the Further Amended Statement of Claim, the adding of parties, found at Exhibit “H” of the Affidavit of Michael Hordo August 23 2021 be approved by the Court, including the Discovery Plan and Preservation Letter, under Rule 29.1, served July 13 2021 on all parties;

h. An Order/Ruling that the Court, in its inherent jurisdiction, find that Mr. Besunder acted in Bad Faith throughout;

i. An Order/Ruling that Mr. Besunder be reported to the criminal justice authorities for forging and uttering a false email to benefit by falsely garnered Court’s Orders;

j. An Order/Ruling for the delivery of the full client’s file immediately, which Mr. Besunder undertook to Justice Pinto and the Client, September 14 2020, to deliver within three weeks and is stare decisis;

k. An Order/Ruling that the Defendant is in breach of Statutes and is not on the record be deemed absolutely liability for failure to pay Statutory benefits and their defence struck;

l. An Order/Ruling for the release of the Accident Benefits files, which are the property of the Plaintiff and illegally in the control and possession of Certas, State Farm and/or Desjardins be Ordered delivered to the Plaintiff forthwith;

m. An Order for quantum meruit costs, to be determined by the Court, for Besunder’s Bad Faith, and the Bad Faith and misrepresentations of the lawyers Beard Winter and of Certas, Desjardins and State Farm as a deterrence for such reprehensible conduct to the Court;

n. An Order that until the Plaintiff has obtain [sic] replacement counsel, that her parents be allowed to assist her during any and all court hearings, as ruled by Justice Pinto and is stare decisis, and upon approval of the amendment of pleadings and adding of parties, the parents have full power of representation;

o. Should the Court find that this matter and the Orders sought by the Plaintiff are beyond their authority, to recuse themselves, and to allow the case to be brought to a panel of the Divisional Court for procedural fairness, Certiorari, Mandamus and Constitutional Question.

Discussion

a. Mr. Besunder’s motion to be removed as lawyer of record

[26] In Baradaran v. Alexanian, 2020 ONSC 4759 at para. 6, Associate Judge Robinson summarized as follows the principles that apply in the court’s assessment of a removal motion that is opposed by the client:

(a) The principles governing exercise of the court’s discretion to allow or refuse withdrawal “transcend the simple canons of contractual interpretation”.

(b) In deciding whether to allow a lawyer to be removed from the record under Rule 15.04 of the Rules, the court’s discretion is informed by the Rules of Professional Conduct. However, the court is not acting as the Law Society of Ontario (the “LSO”). Whether the Rules of Professional Conduct were violated or are being violated is a question for the LSO itself.

(c) The Rules of Professional Conduct require that a lawyer have “good cause” or “justifiable cause” to terminate a relationship, which must also consider and balance the amount of notice available to ensure that the clients are not left with too little time to find alternate counsel: see Rule 3.7-1 of the Rules of Professional Conduct and the related commentary.

(d) Withdrawal may be sought for an ethical reason, meaning that an issue has arisen in the solicitor-client relationship where it is now impossible for counsel to continue to act for the client. This includes circumstances such as instructions to act in violation of the lawyer’s professional obligations or a client’s refusal to accept the lawyer’s advice on an important trial issue. Generally, the court will grant removal in such circumstances, since counsel may be required to withdraw in order to comply with her or his professional obligations. It would be inappropriate for the court to require counsel to continue to act when to do so would put her or him in violation of professional responsibilities.

(e) Withdrawal may also be sought for non-payment of legal fees or another non-ethical reason. In these circumstances, the court may exercise its discretion to refuse counsel’s request having regard to the following non-exhaustive list of factors:

(i) whether it is feasible for the client to represent herself or himself in the litigation, having regard to considerations such as the particular circumstances of the client and the complexity of the proceeding;

(ii) other means of the client obtaining representation;

(iii) conduct of counsel, such as whether counsel gave reasonable notice to the client to allow her/him to seek other means of representation, or if counsel sought leave of the court to withdraw at the earliest possible time;

(iv) impact on the client from delay in the proceedings;

(v) impact on the other parties in the proceeding and, if applicable, witnesses and jurors, including consideration of the expected length and complexity of the proceeding; and

(vi) the history of the proceeding, including whether the client has changed lawyers repeatedly.

(f) One of the court’s principal concerns on a removal motion brought by counsel under Rule 15.04 is ensuring that the client is able to obtain new counsel without being prejudiced beyond the loss of historical knowledge that is necessarily incidental to a change of counsel. Prejudice to a client from a withdrawal is thereby always a significant factor to be considered. Serious prejudice militates strongly against permitting withdrawal, consistent with Rule 3.7-3 of the Rules of Professional Conduct, which expressly provides that a lawyer is not permitted to withdraw if serious prejudice would result to the client.

(g) The court is also concerned with ensuring that granting a removal order does not cause serious harm to the administration of justice.

(h) The court is not strictly bound by the terms of the parties’ contractual arrangements. Granting or refusing a removal motion has no bearing or effect on a claim for breach of contract or for compensation that the client (or the lawyer) may choose to bring. [Emphasis added.]

[27] Mr. Besunder makes the following submission in his Factum, with which I agree:

It is respectfully submitted that the nature of the allegations made by the Plaintiff and contained in the Affidavit of Michael Hordo, sworn August 23, 2021 filed in support of the Plaintiff’s responding motion materials, make it clear that the lawyer-client relationship has irreparably broken down, and that it is impossible for Robert Besunder to continue to act for the Plaintiff. Virtually every word in the Plaintiff’s materials place Robert Besunder in a position of conflict whereby it is impossible for him to take any steps on behalf of the Plaintiff.

[28] In my view, the following passage from Baradaran v. Alexanian, 2020 ONSC 4759 at para. 9 applies to the present case:

Mr. Baradaran’s [here, Ms. Hordo’s] submissions were more than sufficient to demonstrate that there has indeed been an irreparable breakdown in the solicitor-client relationship, even greater than the breakdown outlined in Mr. Wise [here, Mr. Besunder’s] materials. Requiring Mr. Wise to continue to act for Mr. Baradaran in these circumstances is not only unfair to Mr. Wise, but in my view is also unfair to Mr. Baradaran. For reasons regarding which I need not make any determination, Mr. Baradaran has evidently lost confidence in his lawyer’s ability to fairly advocate the plaintiffs’ interests in these two actions.

[29] The action is still at an early stage and there is currently no timetable and no upcoming deadline. As case management judge, I can ensure that any timetable that is imposed provides for a reasonable period of time for Ms. Hordo to retain new counsel. I also note that Ms. Hordo has known for more than a year that there were serious issues regarding her representation by Mr. Besunder and that Mr. Besunder would have to bring a motion to be removed as lawyer of record if these issues were not resolved. The evidence filed by Ms. Hordo only shows that one lawyer, Mr. Neinstein, was approached about taking her case. There are many other lawyers available in Toronto and environs: see Konstan v. Berkovits, 2019 ONSC 3063 at para. 15. In light of the above, I conclude that the removal of Mr. Besunder at this stage of the action will not be prejudicial to Ms. Hordo.

[30] In order to facilitate the transfer of the matter to a new lawyer, I order that Mr. Besunder provide to Ms. Hordo a copy of his file within three weeks of this endorsement removing him as lawyer of record. This is something that Mr. Besunder has said that he was prepared to consent to, both in a case conference before Justice Pinto and in a case conference before me. I reject Ms. Hordo’s submission that Mr. Besunder gave an undertaking, or was ordered by Justice Pinto, to provide a copy of his file to Ms. Hordo within three weeks of the case conference held before Justice Pinto on September 14, 2020. Justice Pinto’s endorsement dated January 22, 2021 does not reflect such an order. The endorsement only states that “Mr. Besunder estimated that he could provide the plaintiff’s entire legal file to the plaintiff within 3 weeks which would provide the plaintiff with sufficient time to identify new counsel.” No timing is specified in this paragraph and the use of the conditional tense suggests to me that the providing of the file would happen after Mr. Besunder was off the record. While Mr. Besunder was still lawyer of record and had all the obligations of a lawyer of record, he needed his file. Further, the notes of the case conference before Justice Pinto taken by Ms. Hordo’s mother show that no clear resolution was achieved by the end of the case conference with respect to the issue of representation, as there appears to have been a discussion about Mr. Besunder attending oral examinations and continuing to act on a limited retainer.

[31] Ms. Hordo’s position as set out in her motion materials appears to be that she does not want Mr. Besunder to continue to represent her, but that his removal should be conditional upon the granting of a series of orders in her favour. In his affidavit sworn August 23, 2021, Mr. Hordo states the following:

Prior to Robert Besunder getting off the record, the Court must address the wrong doing; must dismiss his Motions; address the forged and uttered email found at Exhibit "F", pages 301-7, Affidavit of Michael Hordo, July 21 2021, and forward the evidence of his wrongdoing to the criminal justice authorities and suspend him from the practice of law and order him immediately to fulfil his undertaking. Sanctions against Mr. Besunder should be deterrent so no other lawyers act in Bad Faith and skew the Court's vision on truth and justice.

[32] In his affidavit sworn July 13, 2021, Mr. Hordo states the following:

[…] Our daughter is agreeable to that [i.e. Mr. Besunder getting off the record] but on terms: costs thrown away payable forthwith of $100,000, if the materials ordered by Justice Pinto September last 2020 are delivered before the scheduled September Case Conference; if not cost thrown away payable of $150,000 and both of them Robert and Janice Besunder added as parties to this action and under the Plaintiffs [sic] Discovery Plan under R29.1 to produce a list of all documents and communications electronic and print and to preserve all materials and to be examined under oath following document discovery to the satisfaction of the plaintiff and of the Court.

[33] Finally, Ms. Hordo states the following in her Factum:

This is an application for removal of Mr. Robert Besunder as lawyer of record for the Plaintiff […]. The application is opposed due to the gross negligence, bad faith and failure of the solicitor to carry out his professional duties to his client, which have cause [sic] irreparable damage to the client and must be addressed prior to his removal as solicitor of record.

[34] A motion for the removal of a lawyer of record is not the proper forum to determine serious allegations against a lawyer, and to assess a lawyer’s contractual or other legal liability. As stated by Justice Myers in Konstan v. Berkovits, 2019 ONSC 3063 at para. 13:

Moreover, it would be a mistake to turn routine motions under Rule 15.04 into a form of assessment of breach of contract or breach of fiduciary duty. I am satisfied that whatever rights the clients may have to seek compensation as a result of Mr. Shiller’s acts, if any, are fully preserved to be dealt with in other proceedings that the clients may be advised to bring.

[35] The same reasoning applies here. Ms. Hordo is free to pursue remedies against Mr. Besunder in other proceedings that she may be advised to bring.

[36] Accordingly, Mr. Besunder’s motion to be removed as lawyer of record is granted.

b. Ms. Hordo’s requested orders and rulings

[37] Aside from an order that Mr. Besunder provide to Ms. Hordo a copy of his file within three weeks of this endorsement removing him as lawyer of record, I decline to grant any of the relief requested by Ms. Hordo in her motion materials. I do so for many reasons, including the following:

a. Until now, Ms. Hordo had a lawyer of record, i.e. Mr. Besunder. Consequently, she could not take steps in the action personally unless she served a Notice of Intention to Act in Person. Rule 15.01(3) of the Rules of Civil Procedure provides for two alternatives: a party to a proceeding may act in person or be represented by a lawyer. One of these alternatives must be adopted and one cannot adopt both or elect different alternatives on different court appearances[^1]: see Duca Community Credit Union Ltd. v. Tay (1995), 1995 CanLII 7136 (ON SC), 26 O.R. (3d) 172 (Gen. Div.). As a result, Ms. Hordo could not bring a motion personally.

b. My order dated July 29, 2021 in this matter states clearly that Ms. Hordo’s responding materials are to be strictly limited to a response to Mr. Besunder’s motion to be removed as lawyer of record, are not to be served on any third parties and cannot seek any unrelated relief.

c. Ms. Hordo’s “motion”, which seeks relief against non-parties, was not properly brought nor scheduled. Further, many of the issues raised and the relief sought by Ms. Hordo would not ordinarily be dealt with on a motion in writing.

d. Because of my order dated July 29, 2021 stating clearly that this motion was to be restricted to Mr. Besunder’s request to be removed as lawyer of record, the Defendant and the non-parties against which Ms. Hordo is seeking relief have not filed any responding materials or otherwise responded to the motion.

e. As stated above, it would be inappropriate on this motion to deal with allegations of negligence, breach of contract or breach of fiduciary duty on the part of Mr. Besunder, and any request for compensation made by Ms. Hordo as a result.

f. With respect to the allegations of Ms. Hordo regarding the affidavit of Ms. Besunder and the relief that she seeks in this regard, it is unnecessary to deal with this issue on this motion. As stated above: (i) Ms. Hordo’s own materials amply support the granting of an order removing Mr. Besunder as lawyer of record; and (ii) factual disputes between Ms. Hordo and Mr. Besunder and his affiant can be dealt with in other proceedings that Ms. Hordo may be advised to bring.

[38] Ms. Hordo requests an order that until she obtains replacement counsel, “her parents be allowed to assist her during any and all court hearings, as ruled by Justice Pinto and is stare decisis, and upon approval of the amendment of pleadings and adding of parties, the parents have full power of representation.”

[39] I refuse to grant Ms. Hordo’s parents “full power of representation”. Ms. Hordo is a capable adult and there is no basis to grant her parents, who are not licensed lawyers, “full power of representation”. Further, if Ms. Hordo was incapable (which, I repeat, she is not), her litigation guardian would have to be represented by a lawyer, as required by Rule 7.05(3) of the Rules of Civil Procedure.

[40] I have never ruled that Ms. Hordo’s parents could not provide assistance to her during hearings or other steps in the proceeding. However, the scope of such assistance cannot include representation and speaking on behalf of Ms. Hordo. The appropriate scope of assistance will depend on the context and can be determined on a case-by-case basis.

[41] Finally, it is wrong to assert that Justice Pinto ruled that Ms. Hordo’s parents were allowed to assist her during any and all court hearings. There is nothing to that effect in Justice Pinto’s endorsement dated January 22, 2021. Rather, Justice Pinto specifically ordered that Mr. Hordo was prohibited from communicating directly or indirectly with the court or court staff with respect to this matter. Further, Ms. Hordo’s mother’s own notes of the case conference before Justice Pinto show that while Justice Pinto apparently said that Ms. Hordo could consult with her parents, Ms. Hordo was advised that she could not allow her father to write to the Court on her behalf. The notes also state that Justice Pinto said that he was not permitting Mr. Hordo to represent Ms. Hordo and that he “genuinely feel not assisting daughter”. This seems to be confirmed by Mr. Hordo himself who states the following in his affidavit sworn July 21, 2021:

I am a retired lawyer but am precluded by Pinto J.'s Order from protecting and representing my daughter, the Plaintiff who has been confirmed catastrophically injured and cannot get proper legal representation, due to Robert Besunder's collusion with the insurer and stranger for profit.

[42] Thus, the allegation that this issue has been determined by Justice Pinto and is stare decisis is misleading.

[43] In light of the foregoing, Ms. Hordo’s request for various orders is denied, without prejudice to motions for the same or similar relief being properly brought in the future.

[44] The request for recusal and allegations of bias are addressed below.

c. Recusal request

i. Allegations of bias or apprehension of bias

[45] Most allegations of bias and/or apprehension of bias contained in Ms. Hordo’s motion materials relate to the July 29, 2021 case conference held before me. Ms. Hordo appears to argue bias and/or apprehension of bias based on the following allegations regarding the July 29, 2021 case conference contained in her father’s affidavit sworn August 23, 2021:

a. I allowed Mr. Besunder to file a fresh Notice of Motion after he had filed a Notice of Motion in June 2021.

b. I refused to acknowledge the motion materials already served by Ms. Hordo.

c. I failed to poll all those present and it appears that Ms. Besunder was present. Only Ms. Hordo was ordered to be alone at a Zoom case conference in October, without assistance. I have denied Ms. Hordo the support of her parents at the hearings before me.

d. I did not tell Mr. Besunder to stop speaking when he alleged that Mr. Hordo was in the room with his daughter during the case conference.

e. I have threatened Ms. Hordo with costs orders.

f. My “negative and almost hostile attitude”, “curtness” and “anger” during the case conference and in my endorsement, which is attributed in part to my having knowledge of the “demonization” of Mr. Hordo.

[46] It is noteworthy that Mr. Hordo swears in his affidavit that he was not present during the July 29, 2021 case conference. Ms. Hordo’s motion materials do not include any affidavit of Ms. Hordo or her mother who, according to Mr. Hordo’s affidavit, were the only persons present on the Plaintiff’s side at the July 29, 2021 case conference. It appears from Mr. Hordo’s affidavit that he purports to be able to draw conclusions about my attitude and other matters based on my July 29, 2021 endorsement and contemporaneous notes made by his wife.

[47] Mr. Hordo further complains that I held two case conferences without the knowledge of Ms. Hordo prior to the July 29, 2021 case conference. He also appears to argue that if I do not grant the orders sought by Ms. Hordo, that will constitute evidence of bias, and I should recuse myself. He states the following in his affidavit sworn August 23, 2021:

The Court must, as a result, accept all the Plaintiff's submissions and grant all orders requested by the Plaintiff, including payment of her Statutory Benefit arrears, delivery of her files from Mr. Besunder, forthwith, delivery of her entire AB, medical examinations and where they were sourced from and approve her amendment of Pleadings and adding of parties and accept and order her Rule 29.1 Discovery Plan and Preservation Letter and order delivery of document lists.

This will go a long way to meeting the Court's objective of moving the matter forward to assist the Court to get to the truth, for due process, to alleviate fear and apprehension of bias and to put the injured Plaintiff in a better position after more than 12 years of struggles dealing with lawyer acting in Bad Faith.

I ask the Court to correct the record, apologize to the catastrophically injured self-represented litigant and to sanction Mr. Besunder as requested, and make the Bench orders requested, or to recuse and allow the Plaintiff to move by way of Prerogative Writ of Certiorari and Mandamus and her Constitutional Question before a panel of the Divisional Court for relief by way of appeal or by application for Judicial Review. [Emphasis added.]

[48] In light of the evidence filed on this motion, it is worth repeating that Mr. Hordo is not a party to this action. Ms. Hordo is the only Plaintiff.

ii. Legal principles

[49] Impartiality reflects a state of mind in which the judge is disinterested in the outcome and is open to persuasion by the evidence and submissions. In contrast, bias reflects a state of mind that is closed or predisposed to a particular result on material issues. The test for bias contains a twofold objective standard: the person considering the alleged bias must be reasonable and informed; and the apprehension of bias must itself be reasonable. See Marchand (Litigation guardian of) v. Public General Hospital of Chatham (2000), 2000 CanLII 16946 (ON CA), 51 O.R. (3d) 97 at para. 131 (C.A.) (“Marchand”). The test has been formulated as follows: What would an informed person, viewing the matter realistically and practically – and having thought the matter through – conclude? Would the person think that it is more likely than not that the decision-maker, whether consciously or unconsciously, would not decide fairly? See Peart v. Peel Regional Police Services, 2006 CanLII 37566 at paras. 36-37 (Ont. C.A.) (“Peart”).

[50] As stated, the test is an objective one. While it is not unusual that a losing litigant honestly and, from their perspective, reasonably perceives the proceedings as unfair and the judge as partial, to equate that personal perception of bias with a reasonable apprehension of bias is to incorrectly use a subjective and inherently partial perspective to decide whether a proceeding was conducted impartially: see Peart at para. 54. The personal opinion of the losing litigant as to the quality and correctness of the court’s decision counts for little when assessing a partiality claim: see Beard Winter LLP v. Shekhdar, 2016 ONCA 493 at para. 11 (“Beard Winter LLP”).

[51] An allegation of a reasonable apprehension of bias must overcome the strong presumption of judicial impartiality. That presumption reflects the long and strong history of judicial independence and integrity in this country: see Peart at para. 39 and Kelly v. Palazzo, 2008 ONCA 82 at para. 20 (“Kelly”). Reasonable apprehension of bias claims are fact-driven. The party that makes the allegation must establish a reasonable apprehension of bias on the balance of probabilities. See Peart at para. 40. Cogent evidence is required to make out an allegation of judicial bias. Suspicion is not enough. See Marchand at para. 131.

[52] It takes much more than a demonstration of judicial impatience or even downright rudeness to dispel the strong presumption of impartiality. The moving party’s subjective opinion about the tone of the judge’s voice, or the judge’s appearance and attentiveness during the proceedings cannot, standing alone, overcome the strong presumption in favour of judicial impartiality. Baseless allegations of bias or of a reasonable apprehension of bias founded on a perceived slight or discourtesy that occurred during a proceeding do a disservice to the administration of justice. See Kelly at para. 21 and Beard Winter LLP at para. 12.

[53] As stated by Doherty J.A. in Beard Winter LLP 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.

iii. Purpose of case management

[54] Before applying the principles set out above to this case, it is important, in my view, to factor into the analysis the fact that this case was assigned to me for case management pursuant to Rule 77 of the Rules of Civil Procedure. One of the purposes of case management under Rule 77 and the broad powers given to judges under Rule 50.13(6) with respect to case conferences is “to prevent parties from taking technical positions that may have all kinds of good tactical reasons but which do not advance the resolution of the merits, are unhelpful, costly for the parties, or a waste of judicial resources”: see Apotex Inc. v Eli Lilly and Company, 2021 ONSC 3448 at para. 9.

[55] In CN v. Holmes, 2011 ONSC 4837 at para. 59, Justice Brown (as he then was) made some comments regarding the reasonable and proper expectations of parties about the case management of these proceedings in light of section 33 of the Commercial List Practice Direction which enunciates the policy that one judge should hear the whole of a matter on the Commercial List. The same considerations apply to the case management of cases under Rule 77 of the Rules of Civil Procedure. Justice Brown stated the following:

I wish to make one final comment concerning the reasonable and proper expectations of parties about the case management of these proceedings in light of section 33 of the Commercial List Practice Direction which enunciates the policy that one judge should hear the whole of a matter on the Commercial List. In Abrams v. Abrams I offered the following observations about how case management inevitably operates under such a system:

It is apparent that Mr. Abrams has challenged my jurisdiction to make such directions because they do not accord with the way he wishes to litigate this proceeding. Judicial management of high-conflict cases, such as this one, involves, at times, a certain amount of “judicial squeezing” in order to advance the case to a hearing in a timely and proportionate manner. Not all parties take kindly to such squeezing. But, it is worth recalling the comments made by Master Haberman in her decision in Mother of God Church v. Balolis where one party sought the recusal of a case management master with whose directions it did not agree:

It is understood that, in a case managed environment, there will be times when the master forms an impression about how one party or the other has been conducting itself as a result of this repeated exposure. If the view is unfavourable, that, in and of itself, does not give rise to a basis for recusal. One must still meet the test that has been articulated by the Supreme Court of Canada. Similarly, if the master’s repeated dealings with the parties and the issues gives rise to a sense that there is more merit to one side than the other, that, too, will not suffice to prevent further handling of the case. That is precisely what case management was intended to do - create an expeditious and cost effective way to resolve all aspects of the disputes that come before the courts, by allowing judges/masters to become familiar with the case through repeated exposure. [Emphasis added.]

In other words, some amount of judicial squeezing accompanies litigation management. If some pinching occurs, that does not signal a lack of jurisdiction or bias, but simply a necessary degree of judicial hammering to bang a case back into proper procedural shape. The recent adoption of the principle of proportionality signals that the sound of the judicial hammer will only get louder.

iv. Application to this case

[56] Before turning to the specific allegations of bias raised in Ms. Hordo’s materials, I note that despite the fact that: (a) Ms. Hordo confirmed during the July 29, 2021 case conference that she did not want Mr. Besunder to continue to act as her lawyer in this action, and (b) she could not articulate any valid ground in opposition to Mr. Besunder’s motion during the case conference, I nevertheless ordered that a formal motion be brought by Mr. Besunder so that I could consider Ms. Hordo’s written response to the motion, as she requested. I gave Ms. Hordo the opportunity to respond to Mr. Besunder by filing evidence and submissions, and I was open to persuasion by such evidence and submissions.

[57] I also note that since the Defendant’s motion was adjourned by Master Short on March 2, 2020, no progress has been made in this action, in large part due to the issues between Mr. Besunder and Ms. Hordo and her family. The three case conferences that I have held in this matter since becoming the case management judge were all focused on getting to a resolution of the issue of Ms. Hordo’s representation, one way or the other, so that other steps could be taken in this action and the case could advance in a timely fashion.

[58] I will deal with each of the allegations of bias or apprehension of bias regarding the July 29, 2021 case conference set out in paragraph 45 above:

a. I allowed Mr. Besunder to file a fresh Notice of Motion after he had filed a Notice of Motion in June 2021. If I remember correctly, Mr. Besunder advised at the case conference that he had been unable to file his motion materials. Further, and in any event, he had to update his Notice of Motion and materials to reflect the new hearing date and my July 29, 2021 endorsement. The grounds for Mr. Besunder’s motion never changed. I fail to see how the filing of a fresh Notice of Motion for the same relief could have prejudiced Ms. Hordo or indicate a predisposition on my part. This is a procedural issue that does not reflect a closed or predisposed mind.

b. I refused to acknowledge the motion materials already served by Ms. Hordo. My endorsement dated July 29, 2021 states that I had not seen the motion materials served by the parties, but that I had been advised that Ms. Hordo had served responding motion materials which purported to bring a new motion and that were served on a number of third parties. This information was not denied by Ms. Hordo during the case conference, and it is confirmed by the materials that she filed on this motion. As stated above, this “motion” was not properly brought. I also indicated in my endorsement that Mr. Besunder’s motion to be removed as lawyer of record needed to be determined first. As set out above, Ms. Hordo could not bring motions personally as long as she had a lawyer of record and she has never served a Notice of Intention to Act in Person. I have not expressed any views with respect to any of the motions that Ms. Hordo may want to bring. As indicated in my endorsement, the next steps in the action will be discussed at the next case conference. How I handled this issue reflects normal case management of the proceeding, not a closed or predisposed mind.

c. I failed to poll all those present and it appears that Ms. Besunder was present. Only Ms. Hordo was ordered to be alone at a Zoom case conference in October, without assistance. I have denied Ms. Hordo the support of her parents at the hearings before me. These allegations are factually incorrect. It is my practice during a case conference to ask everyone who is on the line to identify themselves, and there is no evidence at all that Ms. Besunder was present during the July 29, 2021 case conference. In any event, none of this could demonstrate a reasonable apprehension of bias. Further, the order I made on July 29, 2021 does not order Ms. Hordo to be alone at a Zoom case conference and does not deny her the support of her parents. As stated above, the appropriate scope of any assistance by her parents or anyone else can be determined on a case-by-case basis. I noted in my July 29, 2021 endorsement that it was obvious that Ms. Hordo was being told what to say by someone else during the case conference. Proceeding by Zoom will allow for more transparency. Again, this procedural decision does not reflect a closed or predisposed mind. As for the part of my endorsement reminding Ms. Hordo that her father could not represent her in the litigation, it merely repeats what Ms. Hordo and her father have been told before by other judges, as acknowledged by Mr. Hordo himself in his affidavit (see paragraph 41 above).

d. I did not tell Mr. Besunder to stop speaking when he alleged that Mr. Hordo was in the room with his daughter during the case conference. I did tell Mr. Besunder at some point during the case conference not to interrupt Ms. Hordo. Mr. Hordo is not a party to this action and I did not make any finding about who was or was not with Ms. Hordo during the case conference. Again, this does not reflect a closed or predisposed mind.

e. I have threatened Ms. Hordo with costs orders. I have not “threatened” Ms. Hordo with costs orders. My July 29, 2021 endorsement states that “I warned Ms. Hordo that she could be ordered to pay costs on the motion in the event her response to Mr. Besunder’s motion raises irrelevant grounds and simply confirms that there has been a breakdown in the lawyer-client relationship making the removal of Mr. Besunder necessary.” [Emphasis added.] This simply informed Ms. Hordo that there may be costs consequences for an unsuccessful party on a motion. I have not determined the issue of costs. Further, in my capacity as case management judge, it is my responsibility to try to avoid unnecessary motions that are costly for the parties and/or a waste of judicial resources.

f. My “negative and almost hostile attitude”, “curtness” and “anger” during the case conference and in my endorsement, which is attributed in part to my having knowledge of the “demonization” of Mr. Hordo. First, I disagree with how Mr. Hordo describes my alleged attitude during the July 29, 2021 case conference in his affidavit. Second, I fail to see how my July 29, 2021 endorsement reflects hostility, curtness or anger. Third, Mr. Hordo swears that he was not present at the July 29, 2021 case conference and no evidence of bias has been adduced by someone who was present. The evidence filed on this motion is not the type of cogent evidence that is required to make out an allegation of judicial bias. Fourth, in any event, as stated above, judicial impatience or rudeness are insufficient to dispel the strong presumption of impartiality.[^2] Fifth, as for the alleged “demonization” of Mr. Hordo, he is not a party to this action, and previous endorsements of this Court and previous communications between the Court and Mr. Hordo are what they are.

[59] I turn now to the allegations of bias that do not relate to the July 29, 2021 case conference. The fact that I held two case conferences on April 30 and June 17, 2021 which were allegedly without the knowledge of Ms. Hordo is neither here nor there. The case conferences were held with the lawyers of record at the time. Dealing with the lawyers of record does not reflect bias. Further, the procedural orders made during these two case conferences were ultimately superseded by the procedural order made on July 29, 2021.

[60] Finally, the allegation that I should recuse myself if I do not find in favour of Ms. Hordo is without merit. Ms. Hordo’s subjective perspective and personal perception of bias cannot be equated with a reasonable apprehension of bias. Ms. Hordo may of course exercise any appellate recourses that she may have under the law with respect to the correctness of my decision.

[61] I conclude that Ms. Hordo has failed to establish a reasonable apprehension of bias. Therefore, I decline to recuse myself.

Conclusion

[62] Mr. Besunder’s motion to be removed as lawyer of record is granted. Mr. Besunder is ordered to provide to Ms. Hordo a copy of his file within three weeks of the date of this endorsement.

[63] Further to my endorsement dated July 29, 2021, Mr. Besunder seeks costs of this motion. If costs cannot be agreed upon, Mr. Besunder shall send to my assistant and upload onto CaseLines a costs outline and submissions of not more than three pages (double-spaced), excluding the costs outline, by October 1, 2021. Ms. Hordo shall send to my assistant and upload onto CaseLines her submissions in response (with the same page limit) by October 15, 2021.

Vermette J.

Date: September 17, 2021

[^1]: The issue of limited retainer is not raised in this case.

[^2]: While I do not make any finding that these stereotypes were at play on this motion, I caution against the sexist view that women who are firm and stand their ground are somehow aggressive, angry or curt.