Dik Lee v. Magna International Inc. et al.

COURT FILE NO.: CV-19-00615322-0000

DATE: 20211013

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: DIK LEE

AND:

MAGNA INTERNATIONAL INC., COSMA INTERNATIONAL INC., VENEST INDUSTRIES INC., MIKE ROOKE, GINA AIELLO, JOEL MINOR, JOEL WILLICK and STEVEN THUSUSKA

BEFORE: VERMETTE J.

COUNSEL: Dik Lee, self-represented

Laura Freitag, for the Defendants

HEARD: October 6, 2021

ENDORSEMENT

[1] On July 10, 2021, the Plaintiff, Dik Lee, filed a complaint against me with the Canadian Judicial Council and wrote to Regional Senior Justice Firestone to ask that I be removed as the case management judge in this matter. On August 11, 2021, Mr. Lee sent me a letter advising that he wanted to bring a recusal motion. On September 9, 2021, after numerous communications with Mr. Lee and counsel for the Defendants, I ordered that Mr. Lee’s recusal motion be heard on October 6, 2021 at 10:00 a.m. While Mr. Lee objected to the motion proceeding on that date and refused to file a Notice of Motion, he uploaded onto CaseLines a Motion Record containing two affidavits, a Factum and other materials in support of his request for recusal. He also appeared on the motion and made oral submissions. The Defendants similarly prepared a Motion Record and a Factum and their counsel made oral submissions at the hearing.

[2] I conclude that Mr. Lee has failed to establish a reasonable apprehension of bias. Therefore, I decline to recuse myself.

[3] In light of the issues raised by Mr. Lee, it is necessary to review the procedural background of this case in detail.

Factual and Procedural Background

[4] Mr. Lee was employed as a production technician by Venest Industries Inc., an auto parts manufacturer and a division of Cosma International Inc. Cosma International Inc. is a subsidiary of Magna International Inc. The other Defendants are employees of Venest Industries Inc.

[5] In February 2019, Mr. Lee commenced this action against the Defendants for damages and other relief, including damages for defamation, breach of contract and constructive dismissal. On March 5, 2021, counsel for the Defendants wrote to Regional Senior Justice Firestone to request the appointment of a case management judge. At that time, more than two years after the action was commenced, the action was still at the pleadings stage, and a number of pleadings motions had been heard. The Defendants’ request for case management was opposed by Mr. Lee. Ultimately, the request was granted, and I was appointed case management judge for this matter.

a. May 28, 2021 case conference

[6] After being appointed case management judge, I held a first case conference with the parties on May 28, 2021. I made two formal orders on that day: (1) that the parties serve affidavits of documents and the productions listed therein on the opposing parties by August 31, 2021, based on the current pleadings: and (2) that the next case conference take place in September 2021.

[7] My endorsement dated May 28, 2021 contains more detailed information with respect to the matters that were discussed during the case conference. It reads as follows:

The Plaintiff, Mr. Lee, was employed as a production technician by Venest Industries Inc., an auto parts manufacturer and a division of Cosma International Inc. Cosma International Inc. is a subsidiary of Magna International Inc. The other defendants are employees of Venest Industries Inc.

In February 2019, Mr. Lee commenced an action against the Defendants for damages and other relief, including damages for defamation, breach of contract and constructive dismissal.

While the action was commenced more than 2 years ago, it is still at the pleadings stage. The procedural history of this matter is summarized in the endorsement of Justice Diamond dated April 20, 2021 (2021 ONSC 2899). Of note, a number of pleadings motions have been heard in this matter:

• in the latter part of 2019, Master Mills dismissed a motion brought by Mr. Lee to add Gary Love as a Defendant;

• on June 24, 2020, after hearing a Rule 21 motion brought by the Defendants and a motion to amend brought by Mr. Lee, Justice Leiper ordered Mr. Lee to make certain changes to the Amended Fresh as Amended Statement of Claim, and also ordered that no further amendments to the Statement of Claim were to be made without further order of this court;

• on April 20, 2021, Justice Diamond dismissed a motion brought by Mr. Lee to amend his Statement of Claim and file a Second Fresh as Amended Statement of Claim, which would have added a series of unnamed defendants identified as “every director and every officer of the corporation of Magna International Inc. jointly and separately”. Justice Diamond held that the proposed amendments concerned “alleged breaches of a purported duty of care [related] to the negligent investigation of the plaintiff”, and that both Master Mills and Justice Leiper had found that there was no available tort of negligent investigation against the corporate defendants. Justice Diamond concluded as follows: “Given that this matter has languished in the pleadings stage for more than two years, and the plaintiff has had several attempts to finalize his pleading, I do not believe it to be in the interests of justice to afford the plaintiff a further opportunity to amend his pleading.”

I was advised during the case conference that Mr. Lee has filed a notice of appeal with respect to Justice Diamond’s April 20, 2021 decision. Pursuant to Rule 61.09 of the Rules of Civil Procedure, an appellant is to perfect an appeal within 30 days after filing the notice of appeal. While I do not know the exact date on which Mr. Lee filed his notice of appeal, it appears from the applicable Rules of Civil Procedure that Mr. Lee will have to perfect his appeal at some point before the end of June 2021, and that the Defendants will then have 60 days to file their responding materials.

The amendments that Mr. Lee is seeking to make would enlarge the scope of the action and add allegations to the existing pleading. They would not “shrink” the current allegations.

After more than two years after the commencement of this action and “being stuck in a pleading loop” for a significant period of time, the Defendants want this action to move forward. Mr. Lee’s position is that he should not be required to take any step in the action until the determination of his appeal. Aside from the time and work required to prepare for his appeal, he did not identify, in my view, any valid reason that would justify keeping this action on hold for a substantial number of months. I agree with Justice Diamond that “[i]t is time for this claim, as it currently exists, to move forward.” This is especially the case since Mr. Lee’s arguments with respect to allegations related to negligent investigation have already been rejected by one Master and two judges.

Given that the current allegations in the pleadings are going to remain, the parties can prepare affidavits of documents based on the current pleadings and, if Mr. Lee is successful on appeal, the parties can then prepare supplementary affidavits of documents. This process involves no duplication (or waste) of work and time and will allow the action to proceed on a timely basis after the determination of Mr. Lee’s appeal. In light of the history of this matter, it is possible that the production stage of this action could take as long as the pleadings stage, and this is another compelling reason to have the parties start this process as soon as possible.

While I told the parties that, at this time, I would not impose a deadline for the completion of examinations for discovery, I indicated that I may revisit this issue if the delays associated with the appeal or any further appeal are substantial.

When I asked Mr. Lee how much time he would like to have to prepare his affidavit of documents, he said until August 2022. This is not a reasonable request. While Mr. Lee may be busy working on his appeal during the next few weeks, he will not have to do anything related to the appeal while the Defendants are preparing their responding materials and until the hearing of the appeal. Mr. Lee also declined to give me any rough indication of the volume of relevant documents that he has in his possession. In light of this and the Defendants’ submissions, I order the parties to serve affidavits of documents and the productions listed therein on the opposing parties by August 31, 2021, based on the current pleadings.

The next case conference will take place in September 2021 so that the parties can give me an update on the appeal and we can discuss the next steps in the action. My assistant will contact the parties in early September 2021 to schedule the case conference.

Mr. Lee is contemplating bringing a motion to stay the Order of Justice Diamond pending appeal. I expressed some preliminary views on such a motion and its timing during the case conference, and I urged Mr. Lee to seek legal advice before bringing such a motion. Mr. Lee was not prepared to schedule this motion today as he said that he was not ready.

If Mr. Lee decides that he wants to bring a stay motion, he must contact my assistant by e-mail (copying counsel for the Defendants) to request another case conference during which the issue will be further discussed.

b. Mr. Lee’s request for recusal and scheduling of the motion

[8] After the May 28, 2021 case conference, I did not hear anything from the parties until August 11, 2021. On that date, Mr. Lee sent me a letter advising me of the following:

a. he had filed a complaint against me with the Canadian Judicial Council, a copy of which (dated July 10, 2021) was enclosed with his letter;

b. he had written to Regional Senior Justice Firestone to ask that I be removed as the case management judge in this matter. Copies of his correspondence with Regional Senior Justice Firestone’s office dated July 10 and August 3, 2021 were enclosed with his letter; and

c. he was advised on August 4, 2021 by Regional Senior Justice Firestone’s office that if he was seeking the recusal of a judge from his matter, he “must bring a motion on notice to all parties setting out the evidentiary basis upon which you believe a judge should recuse themself.”

[9] I pause here to say that, to this day, I have not been contacted by the Canadian Judicial Council with respect to any complaint filed against me by Mr. Lee. I was unaware of Mr. Lee’s complaint until I received his August 11, 2021 letter.

[10] Mr. Lee’s letter also stated the following:

As I was advised by the courts that a motion was necessary – I am seeking a motion to recuse the judge that is currently assigned as the case management judge in the case between Lee v. Magna International Inc. – Court File No: CV-19-00615322-0000 (the parties). I believe that there would be a conflict of interest if you heard the motion, however, at the phone conference on or about May 28, 2021, between the parties I understood that you had stated that all motions between the parties were to be heard by you.

I am approaching you to seek a motion date to recuse the judge that is currently assigned as the case management judge in the case between Lee v. Magna International Inc. – Court File No: CV-19-00615322-0000. Can you please advise if it is your intention to have this matter heard by you or if the Plaintiff is free to seek a motion date as per the RULES of the court.

If your intention is to have the matter heard by you – can you please advise as to the available dates for the motion to be heard in the 3rd or 4th week in October – or any time/date after that – so that I can confer with the defendants counsel as to an appropriate date for the motion to be heard. In the alternative, if your intention is not to have the matter heard by you – can you please advise that the Plaintiff is free to seek the motion through the normal court procedure. [Emphasis in the original.]

[11] In accordance with the principle that a motion for recusal of a judge is to be made to the judge being asked to recuse themself,[^1] on August 12, 2021, my assistant advised Mr. Lee on my behalf, copying counsel for the Defendants, that I would hear the recusal motion. She also stated the following in her e-mail: “Kindly consult with Ms. Freitag [counsel for the Defendants] as to how long you will need to argue the motion. Once we know how long will be needed for the motion, we will provide available dates.”

[12] Since she did not receive an answer to her question, my assistant sent a follow-up e-mail on August 16, 2021. On August 17, 2021, Mr. Lee sent the following e-mail to my assistant:

Please be advised that currently all of my efforts and time are devoted to the completion of the Affidavit of Documents as ordered by J. Vermette.

I will advise on the matter as soon as I have an opportunity to confer with the opposing parties counsel Thank you – stay safe!

[13] On August 18, 2021, I sent the following e-mail to the parties via my assistant:

Once allegations of bias are raised with respect to a judge, they need to be addressed in a timely manner. Therefore, I direct the parties to get back to my assistant by the end of this week with respect to how long will be needed for the parties to argue Mr. Lee’s recusal motion so that the motion can be scheduled as soon as possible. Thank you.

[14] Ms. Freitag subsequently advised my assistant that subject to any unforeseen issues that may arise in the course of the motion or otherwise, she thought that 30-45 minutes should be sufficient time to respond to Mr. Lee’s motion.

[15] Mr. Lee responded to my e-mail as follows later that day:

As stated in my email dated 17Aug21 –

Please be advised that currently all of my efforts and time are devoted to the completion of the Affidavit of Documents as ordered by J. Vermette to be completed and served.

I will advise on the matter of the motion as soon as time permits me to do so – I find that to be reasonable given the circumstances.

Thank you – stay safe!

[16] I sent the following response via my assistant on the same day, i.e. on August 18, 2021:

Mr. Lee,

Advising of how long you will need to argue a motion that you have decided to bring is not a time-consuming task. You simply have to send a time estimate as Ms. Freitag did earlier today. You were able to find time to write me a letter on August 11, 2021 about your position that I should recuse myself, and you also were able to find time to write related communications to Regional Senior Justice Firestone. Sending a short e-mail with a time estimate will take a fraction of the time that you spent on these letters and communications. As previously advised, allegations of bias, once made, need to be addressed in a timely manner. Therefore, you are directed to provide your time estimate to argue your motion by the end of the week. Thank you.

[17] Mr. Lee then basically resent the e-mail that he had sent earlier that day:

As stated in my emails dated 17Aug21 & 18Aug21– Please be advised that currently all of my efforts and time are devoted to the completion of the Affidavit of Documents as ordered by J. Vermette to be completed and served. I will advise on the matter of the motion as soon as time permits me to do so – I find that to be reasonable given the circumstances.

Thank you – stay safe!

[18] On August 24, 2021, I advised the parties that I was setting aside a maximum of two hours for Mr. Lee’s recusal motion and that the motion would be heard during the week of October 4, 2021. I directed the parties to advise my assistant of their availability during that week. My e-mail (sent by my assistant) read as follows:

In light of the time estimate provided by Ms. Freitag and Mr. Lee’s failure to abide by my clear direction, I am setting aside a maximum of 2 hours for Mr. Lee’s recusal motion. Given my availability and the need to deal with these allegations in a timely manner, the motion will be heard in the week of October 4, 2021 by videoconference (Zoom). You are directed to advise my assistant by the end of the day on Thursday whether there are dates/times at which you are not available during the week of October 4. Thank you.

[19] On August 31, 2021, Ms. Freitag sent an e-mail to my assistant apologizing for the delay of her response and stating that she had been out of the office. She advised that she was available all day on October 5 and 6 and holding both days.

[20] On September 2, 2021, I sent the following e-mail to Mr. Lee via my assistant, copied to Defendants’ counsel:

Mr. Lee,

Now that the deadline to serve affidavits of documents in this case has passed and that Ms. Freitag has provided her availability for your recusal motion, please advise my assistant of your availability during the week of October 4, 2021 by the end of this week. Thank you.

[21] On September 3, 2021, Mr. Lee sent the following response:

Please be advised that those dates are not available in my schedule. I will advise on the matter of the motion as soon as time permits me to do so - I find that to be reasonable given the circumstances.

Thank you.

[22] I responded on the same day as follows via my assistant:

Mr. Lee,

The motion will proceed by videoconference and, if necessary, we can accommodate your schedule by starting early in the morning or later in the day. As a result, it should be possible to find a 2-hour window at some point during the week of October [4]. If you are available on days that were not included in Ms. Freitag’s list, please let us know as arrangements may be possible.

Again, please let my assistant know about your availability during the week of October 4, 2021. If you are not available at any time during that week, please provide an explanation. Your responses so far could be interpreted as delay tactics and, if they are, this is not acceptable.

[23] On September 7, 2021, Mr. Lee sent an e-mail which did not answer the questions raised in my last e-mail. His e-mail read as follows:

Dear Ms. Ruiz - please forward this to Justice Vermette -- So that it is documented on record - the only delay is on the part of the Defendants who have not served me the Defendants Affidavit of Documents nor the documents listed in the Affidavit of Documents as per Justice Vermette’s order.

[24] On September 9, 2021, I released an endorsement that recounted the exchanges above about scheduling and ordered that Mr. Lee’s recusal motion be heard on October 6, 2021 at 10:00 a.m. by videoconference (Zoom) for a maximum of two hours. The endorsement stated the following, in part:

As stated in e-mails sent to the parties, allegations of bias, once made, need to be addressed in a timely manner. Now that these allegations have been made, they need to be ruled upon before I can take further steps in this case. It would be contrary to the objectives of case management for this case to be “in limbo” for an extended period of time. If the motion is dismissed, I will be able to legitimately continue my role as case management judge. If the motion is granted, the case will be assigned to a new case management judge who will be able to ensure that the case continues to progress.

In light of the foregoing, and given that: (1) Mr. Lee’s allegations of bias and initial request that I be removed as the case management judge were made approximately two months ago, on July 10, 2021; (2) Mr. Lee contacted me to request that I be removed as case management judge and to advise that he wished to bring a motion for that relief approximately one month ago, on August 11, 2021; (3) Mr. Lee has since repeatedly failed to abide by my directions and to respond to simple requests about his availability and the time needed to argue his motion; and (4) Ms. Freitag has advised that she is available on October 5 and 6, 2021, I order that Mr. Lee’s recusal motion be heard on October 6, 2021 at 10:00 a.m. by videoconference (Zoom) for a maximum of two hours.

The motion will proceed on that date unless I receive by September 15, 2021 convincing proof that Mr. Lee is unavailable on October 6, 2021 at 10:00 a.m. If such evidence is provided, the motion will be rescheduled at a different time on that day or at a different time during the week of October 4, 2021. If Mr. Lee is not available at any time during that week, convincing proof of such unavailability must be provided by September 15, 2021.

The parties are to abide by the following timetable:

a. Mr. Lee is to serve and file his motion materials by September 20, 2021.

b. The Defendants are to serve and file their responding motion materials, if any, by September 24, 2021.

c. Mr. Lee is to serve and file his factum by October 1, 2021.

d. The Defendants are to serve and file their factum by October 5, 2021.

If Mr. Lee decides not to file motion materials, I will decide the issue of alleged bias based on his letter dated August 11, 2021. [Emphasis in the original.]

c. Mr. Lee’s request for an extension of time to serve his affidavit of documents

[25] On August 16, 2021, in parallel to the communications regarding the scheduling of the recusal motion, Mr. Lee sent me a letter requesting that the deadline for the service of affidavits of documents be extended until September 30, 2021. By letter dated August 18, 2021, the Defendants advised that they were “agreeable to an extension of the limit to exchange Affidavits of Documents to either the end of September 2021 as requested or October 2021 given the proposed motion by Mr. Lee.”

[26] Less than 2.5 hours after the Defendants advised that they were agreeable to the extension of time that he was seeking, Mr. Lee withdrew his request for an extension of time. His letter dated August 18, 2021 reads as follows:

Dear Justice Vermette

Please be advised that I am withdrawing my request as outlined in my letter dated August 16, 2021, to seek relief in the form of extended time to complete the requirements outlined by you in your CIVIL ENDORSEMENT FORM dated May 28, 2021 – “I order the parties to serve affidavits of documents and the productions listed therein on the opposing parties by August 31, 2021, based on the current pleadings.”

I believe that your order as outlined by you in your CIVIL ENDORSEMENT FORM dated May 28, 2021 – “I order the parties to serve affidavits of documents and the productions listed therein on the opposing parties by August 31, 2021, based on the current pleadings.” should remain as ordered. [Emphasis in the original.]

[27] Later on August 18, 2021, my assistant sent an e-mail to the parties advising that in light of Mr. Lee withdrawing his request for an extension of time, no further steps were required on my part with respect to the deadline for the service of affidavits of documents.

d. Communications following my September 9, 2021 endorsement

[28] On September 10, 2021, Ms. Freitag sent me a letter advising that, contrary to Mr. Lee’s statement in his e-mail dated September 7, 2021, the Defendants had served their affidavit of documents electronically on August 31, 2021. The letter also raised issues with respect to the paper productions served by Mr. Lee and the service of documents electronically.

[29] I responded to Ms. Freitag’s letter via my assistant on September 13, 2021. I indicated that a case conference would be arranged shortly after the recusal motion had been determined, either with me (if the motion was dismissed) or with a new case management judge (if the motion was granted), during which the issues raised in her letter could be discussed. I referred the parties to paragraph 19 of my endorsement dated September 9, 2021 and encouraged them to have discussions to try to resolve as many issues as possible in the meantime.

[30] On September 11, 2021, Mr. Lee sent me a letter that addressed both the recusal motion and the production issues. The part of the letter dealing with the recusal motion reads as follows:

This letter is in response to 2 matters: the Endorsement of Justice Vermette dated September 9, 2021 – the matter was claimed to be heard by Justice Vermette on September 9, 2021. I was neither notified of any hearing nor did I have any knowledge of any hearing as indicated on Justice Vermette’s endorsement and identified as – ‘HEARD: September 9, 2021’. Based on the facts as such I have reasons to believe that the matter of the hearing of the Recusal Motion was unilaterally decided between the Defendants and Justice Vermette. As stated in the Endorsement of Justice Vermette – the motion was ordered by Justice Vermette – 1: without confirmation nor any notice given by the plaintiff Dik Lee – and – 2: despite the obvious conflict of interest in having a judge decide matters that are surrounding issues about themselves.

I am in objection to the matter being heard by Justice Vermette – there is an obvious conflict of interest for a judge to hear and make rulings on matters that specifically deal with their own person.

I am also in objection to the matter being heard in accordance with the timetable set by Justice Vermette as outlined in Justice Vermette’s endorsement dated September 9, 2021 for various reasons – specifically due from health issues suffered by the plaintiff in this ongoing litigation and adverse conduct by the defendants against the plaintiff – the plaintiff has suffered much grief, pain and suffering – please see attached medical letters from Doctor Joel Yellin (dated 2021-Aug-23) [TAB-A] and Mental Health Counsellor Tim Elliot (dated 2021-Aug-22) [TAB-B] – also- the unrealistic timelines provided by Justice Vermette in her previous order dated May 28, 2021 – regarding the production of Affidavits of Documents and the further production of the documents listed in the Affidavits of Documents the plaintiff has sustained severe burnout – leading to further stress and anxiety which has significantly contributed to the already existing grief, pain and suffering caused by the defendants against the plaintiff. The production of documents ordered to be provided to the defendants consisted of thousands of pages – 6 boxes and over 1530 documents – costs for the production of the documents exceeded hundreds of dollars.

The plaintiff will not have time, energy and resources – nor the mental health – to properly prepare for the Recusal Motion in accordance to the schedule as outlined in Justice Vermette’s endorsement dated September 9, 2021 – giving unfair advantage to the defendants in the motion and an unfair advantage in the overall litigation of the matter.

Further – it has been identified by the Recording management office and manager thereof that the recording of a matter heard in front of Justice Vermette does not exist – thereby Justice Vermette has failed to put on record and failed to ensure that the hearing heard in front of her on or about May 28, 2021 was put on record (Justice Vermette failed to ensure the hearing was audio recorded and recording available to the parties) – no recording of the matter exists – which can be reasonably interpreted as suspicious behaviour on the part of Justice Vermette. The plaintiff is escalating this matter forward and requires further time to evaluate the choices the plaintiff has regarding the matter of the non-existent audio and has scheduled meetings with the appropriate court personnel for this matter.

As the facts present – the plaintiff is of the position that the appropriate schedule for a Recusal Motion should be revisited in or about October 18, 2021 to give fair opportunity for the plaintiff to recuperate from his pain and suffering; to evaluate the choices for the non-existent recording of May 28, 2021; and to properly prepare materials and argument for the Recusal Motion – any other decision will further inflict pain and suffering on the plaintiff causing him unnecessary stress and anxiety.

[31] The letter went on to address the production issues raised by the Defendants, and Mr. Lee maintained his position that the Defendants had failed to serve their affidavit of documents by August 31, 2021.

[32] The attachments to Mr. Lee’s letter included a short letter dated August 23, 2021 by Dr. Joel Yellin. The letter is “Re: Dik Lee” and states the following:

This letter will confirm that this patient continues to be followed regularly by me and by the counsellor in my office for ongoing anxiety. This anxiety is due to workplace issues which are still being reviewed and adjudicated. This continues to have a negative impact on his day to day functioning. He has impaired sleep and mood. He requires ongoing treatment with our counsellor for the foreseeable future.

[33] Mr. Lee’s letter also attached a letter dated August 22, 2021 by Tim Elliott, Mental Health Counsellor. Mr. Elliott’s letter reads as follows:

To Whom it May Concern:

I am a Mental Health Counsellor assigned to Mr.Lee’s [sic] family physician’s, Dr. Joel Yellin, office and have been in this practice since 2007. I am employed by the Hamilton Family Health Team the largest family health team in Ontario, 160 doctors, 65 Mental Health Counsellors as well other allied health professionals. I have a Master's of Social Work as well as training in Cognitive Behaviour Therapy and Solution Focus Therapy. I first met Mr. Lee in July 2018 when he was still employed by MAGNA INTERNATIONAL INC.; VENEST INDUSTRIES divisonl [sic] Inc; where he believed he was being mistreated. Mr. Lee went from being a start employee, winning the suggestion awards frequently, which were often related to safety and he believes he was mistreated and let go due to this concern. Mr. Lee followed the rules and he believes that he was mistreated and his reputation damaged.

As a result of being let go of his job and these ongoing tribunal and court proceedings to regain his reputation back, Mr. Lee suffers from economic hardship, increasing anxiety and insomnia, I suggest these symptoms, which were not present until what he believes the evidence shows the mistreatment he suffered and a concerted effort by management of VENEST INDUSTRIES to force his resignation. [sic]

I [sic] you have any questions, please contact me through this office.

[34] The letters of Dr. Yellin and Mr. Elliot do not address the issue of Mr. Lee’s availability on October 6, 2021, nor his ability to proceed with a two-hour motion on that date.

[35] I responded to Mr. Lee’s letter via my assistant on September 13, 2021:

Further to Mr. Lee’s letter dated September 11, 2021:

(1)My endorsement dated September 9, 2021 was drafted on September 9, 2021 based on the written communications to and from the parties, as set out in the endorsement itself. There was no “hearing” with any of the parties.

(2)Paragraph 21 of my endorsement dated September 9, 2021 sets out what needs to be done to establish that you are not available to proceed with the motion on October 6, 2021. The required evidence has not been submitted.

(3)As set out in my response to Ms. Freitag’s letter dated September 10, 2021, a case conference will be arranged shortly after the recusal motion has been determined to address the issues regarding the parties’ affidavits of documents.

[36] Mr. Lee subsequently sent me a number of letters about the fact that he was not able to file his motion materials (letters dated September 28, September 29 (2 letters) and October 2, 2021). He was advised by court staff that he had to file a Notice of Motion in order to file his Motion Record, but he took the position that this was not a motion brought by him and he refused to prepare a Notice of Motion. Nevertheless, he uploaded onto CaseLines the materials that he had prepared and served for the motion and, as I stated at the hearing, I have reviewed and considered all of Mr. Lee’s materials on CaseLines with respect to this motion.

[37] On October 3, 2021, Mr. Lee sent an e-mail to both my assistant and Regional Senior Justice Firestone’s assistant attaching a letter to the Canadian Judicial Council dated October 3, 2021, which contains supplementary information and materials regarding the complaint that Mr. Lee filed against me.

[38] On October 4, 2021, Mr. Lee sent another e-mail to my assistant and Regional Senior Justice Firestone’s assistant attaching a further letter to the Canadian Judicial Council dated October 4, 2021, which contains additional supplementary information and materials regarding the complaint that Mr. Lee filed against me.

[39] On October 5, 2021, Mr. Lee sent yet another e-mail to both my assistant and Regional Senior Justice Firestone’s assistant asking “what the escalation process is regarding there not being any record of the case management meeting with Justice Vermette on May 28, 2021.” Mr. Lee’s e-mail forwarded an e-mail chain which included a number of e-mails between Mr. Lee and Ms. Natalie Cesario, Manager – Court Reporters/Recording Management Office. In an e-mail dated September 16, 2021 in the chain, Ms. Cesario sent a letter to Mr. Lee and indicated in her e-mail that the letter “should be the end of the escalation process”. After receiving two additional e-mails from Mr. Lee asking again about an escalation process, Ms. Cesario referred Mr. Lee to my assistant, stating that she “may be of assistance for the escalation process”. I note that while Mr. Lee makes numerous allegations with respect to the fact that there is no available recording of the May 28, 2021 case conference, he did not include in his motion materials the letter that Ms. Cesario sent to him on September 16, 2021.

[40] As stated above, Mr. Lee was present at the hearing of the motion on October 6, 2021 and made oral submissions. So did counsel for the Defendants.

Discussion

a. Allegations of apprehension of bias

[41] While Mr. Lee’s allegations of bias were initially limited to his July 10, 2021 complaint to the Canadian Judicial Council, his list of complaints has grown since then. Based on the materials before me, Mr. Lee appears to argue bias and/or apprehension of bias based on the following allegations:

a. Mr. Lee has filed a complaint against me with the Canadian Judicial Council.

b. During the May 28, 2021 case conference, I was disrespectful, I had no regard to the severity of the pain and suffering that Mr. Lee was undergoing in this matter and I broke out laughing at the misfortune of Mr. Lee.

c. Also during the May 28, 2021 case conference, I asked the Defendants for their opinion regarding Mr. Lee’s appeal from Justice Diamond’s decision and expressed an opinion on what the likely outcome of the appeal would be.

d. I misled Mr. Lee regarding his proposed stay motion during the May 28, 2021 case conference and attempted to discourage him from bringing a stay motion.

e. My decision to order the parties to serve their affidavits of documents by August 31, 2021 had the effect of “tipping the scales in the favour of the defendant” and set an unreasonable timeline that caused prejudice to Mr. Lee.

f. I failed to ensure that the May 28, 2021 case conference was recorded. According to Mr. Lee, I knew before the May 28, 2021 case conference that I was biased and that I wanted to bring a biased decision against Mr. Lee and in favour of the Defendants and, as a result, I did not want the case conference on the record.

g. I wrongly accused Mr. Lee of using delay tactics.

h. I ordered that the recusal motion be heard on October 6, 2021 despite having evidence before me that it would prejudice Mr. Lee. Mr. Lee refers to the two medical notes that he submitted and states that he was exhausted after preparing his Affidavit of Documents and that he needed more time to investigate the issue of the missing recording for the May 28, 2021 case conference. Mr. Lee sets out his position as follows in his Factum:

the plaintiff is of the position that the appropriate schedule for a Recusal Motion ought to have been revisited in or about October 18, 2021 to give fair opportunity for the plaintiff to recuperate from his pain, anxiety, and suffering; to evaluate the choices for the non-existent recording of May 28, 2021; and to properly prepare materials and argument for the Recusal Motion - any other decision will further inflict pain, anxiety, and suffering on the plaintiff causing him unnecessary stress and anxiety and is bias in the favour of the defendants.

[42] Mr. Lee objects to my hearing this motion as he “believes that there is an obvious conflict of interest for a judge to hear and make rulings on matters that specifically deal with their own person.” However, as stated above, the law is clear that a motion for recusal of a judge is to be made to the judge being asked to recuse themself: see, e.g., Morse Shannon v. Fancy, 2016 ONSC 7574 at para. 9, R. v. J.L.A., 2009 ABCA 344 at para. 31 and MacEwan v. Henderson, 2003 NSCA 133 at para. 6.

b. Legal principles

[43] 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”).

[44] 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”).

[45] 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 who 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.

[46] 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.

[47] In order to maintain the integrity of the court’s authority, allegations of bias must, as a general rule, be brought forward as soon as it is reasonably possible to do so: see R. v. Curragh Inc., 1997 CanLII 381 (SCC), [1997] 1 S.C.R. 537 at para. 11.

[48] The mere making of a complaint to the Canadian Judicial Council, by itself, does not amount to cogent evidence sufficient to displace the presumption of impartiality: see Aganeh v. Aganeh, 2017 ONSC 5733 at para. 36. In Doncaster v. Chignecto-Central Regional School Board, 2013 NSCA 59 at para. 13, the Nova Scotia Court of Appeal stated the following on this issue:

Obviously the mere filing of a complaint with the Canadian Judicial Council does not pull the trigger for recusal. If that were the case, one could simply file a complaint and “pick off” a judge, one by one until the complainant either found one to his liking (“judge shopping”) or there were no judges left to hear the case. Such a result is neither the law nor in the public interest.

See also Jayaraj v. Metcap Living Management Inc., 2021 ONSC 503 at para. 9, and R. v. J.L.A., 2009 ABCA 344 at para. 30. Thus, no inference is drawn that a judicial officer will treat a litigant unfairly or in a biased manner because the litigant has objected to the judicial officer’s conduct: see Peoples Trust Company v. Atas, 2018 ONSC 58 at para. 172.

[49] 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.

c. Purpose of case management

[50] Before applying the principles set out above to this case, it is important 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.

[51] 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 cases 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.

[52] It has been recognized that, because of the nature of case management, the test for reasonable apprehension of bias is more stringent in a case-managed environment. When addressing reasonable apprehension of bias in the case management context, the question is whether the judicial officer has decided the matter to the extent that he or she is no longer capable of being persuaded by the evidence to be filed (if any) and legal arguments to be raised in subsequent motions. Whether there is a reasonable apprehension of bias must be assessed from the point of view of a person who is informed and has an understanding of the nature and rules of case management, as well as the public interests that it serves: see Cosentino v. Dominaco Developments Inc., 2018 ONSC 4092 at paras. 46-51, 58; Control & Metering Ltd. v. Karpowicz (1994), 17 O.R. (3d) 431, 1994 CanLII 7233 (Gen. Div.); and Fatahi-Ghandehari v. Wilson, 2019 ONSC 3584 at paras. 12-14.

d. Application to this case

[53] Mr. Lee’s Motion Record includes two affidavits: an affidavit of Mr. Lee and an affidavit of Mary Zgrablic. The Defendants’ Motion Record includes one affidavit, i.e. the affidavit of Eric Gresham, in-house counsel to the Defendant Magna International Inc.

[54] Ms. Zgrablic does not provide any information about who she is in her affidavit, but Mr. Gresham indicates in his affidavit that he believes that Ms. Zgrablic is Mr. Lee’s mother.

[55] Ms. Zgrablic’s affidavit raises some issues. First, she states that she attended and heard the May 28, 2021 case conference. However, the only persons who identified themselves as being in attendance at the beginning of the May 28, 2021 case conference were Mr. Lee, Ms. Freitag and Mr. Gresham. I do not remember any signs that there was any other person on the phone, nor do I remember Mr. Lee being on speakerphone. Second, Ms. Zgrablic’s affidavit repeats word-for-word certain passages of Mr. Lee’s affidavit, putting into question whether her affidavit sets out her own recollection of what happened and what was said (assuming that she was in attendance at the May 28, 2021 case conference). In light of the foregoing and the fact that no information is provided in her affidavit to assist in determining the reliability of her evidence (e.g., her relationship to Mr. Lee, her age, her understanding of the case and the procedural issues, etc.), I give very little weight to the evidence provided by Ms. Zgrablic.

[56] I will now deal with each of the allegations of bias or apprehension of bias set out in paragraph 41 above:

a. Mr. Lee has filed a complaint against me with the Canadian Judicial Council: As set out in paragraph 48 above, the mere filing of a complaint with the Canadian Judicial Council, by itself, does not amount to cogent evidence sufficient to displace the presumption of impartiality, and no inference is drawn that a judicial officer will treat a litigant unfairly or in a biased manner because the litigant has objected to the judicial officer’s conduct. As stated above, I have not heard anything from the Canadian Judicial Council regarding Mr. Lee’s complaint.

b. During the May 28, 2021 case conference, I was disrespectful, I had no regard to the severity of the pain and suffering that Mr. Lee was undergoing in this matter and I broke out laughing at the misfortune of Mr. Lee: These allegations are factually incorrect. Among other things, I did not laugh at Mr. Lee or his alleged misfortune. This is confirmed in the affidavit of Mr. Gresham. In any event, as stated above, a perceived slight or discourtesy that occurred during a proceeding is insufficient to dispel the strong presumption of impartiality.

c. Also during the May 28, 2021 case conference, I asked the Defendants for their opinion regarding Mr. Lee’s appeal from Justice Diamond’s decision and expressed an opinion on what the likely outcome of the appeal would be: This is also factually incorrect: I did not ask the Defendants for their opinion regarding the merits of the appeal and I did not express an opinion on the likely outcome of the appeal. Again, this is confirmed in the affidavit of Mr. Gresham. In my endorsement dated May 28, 2021, I simply repeated what was stated in Justice Diamond’s endorsement (2021 ONSC 2899 at paras. 17 and 24): that Mr. Lee’s attempt to amend his claim to include allegations related to negligent investigation had already been rejected by one Master and Justice Leiper (and Justice Diamond), and that it was time for this action to move forward. I specifically provided for the preparation of supplementary affidavits of documents in the event Mr. Lee was successful on appeal. This does not reflect a closed or predisposed mind. Further, and in any event, I am not deciding the appeal, and I have not seen any of the appeal materials.

d. I misled Mr. Lee regarding his proposed stay motion during the May 28, 2021 case conference, and attempted to discourage him from bringing a stay motion: Given that Justice Diamond dismissed Mr. Lee’s motion for leave to amend his pleading, I asked Mr. Lee during the May 28, 2021 case conference what exactly he was seeking to stay pending the appeal. He was not able to articulate it. I also tried to explain to Mr. Lee that delay could impact his position on a stay motion (given the need to show irreparable harm). At no time did I say that I had to hear the stay motion (as opposed to the Court of Appeal).

As case management judge, it is not my role to provide legal advice to Mr. Lee, but it is my responsibility to attempt to advance the case in a timely and proportionate manner, narrow issues, reduce delays, avoid unnecessary motions, and keep litigation costs in check. As a result, in my endorsement and during the case conference, I urged Mr. Lee to seek legal advice before bringing a stay motion, and I directed that Mr. Lee arrange for a case conference if he decided that he wanted to bring a stay motion so that the issue could be further discussed. If and when Mr. Lee were able to articulate what he was seeking to stay, then it may have been possible to avoid the need for a motion through discussion or agreement. Ultimately, Mr. Lee never requested a case conference, and I am not aware of any stay motion brought in the Court of Appeal. Requiring a case conference before a motion is brought in a situation where the party cannot articulate the grounds for his proposed motion does not reflect a closed or predisposed mind. Rather, it reflects the proper role of a case management judge.

Even if, as alleged by Mr. Lee, I incorrectly told him that any stay motion pending appeal would have to be heard by me, an error of law is not a ground for recusal, it is a ground for appeal. Mr. Lee’s suggestion that I intentionally misled him on this point is not based on any evidence, let alone cogent evidence. Mr. Lee does not even provide an explanation as to why I would have wanted to mislead him on this point.

e. My decision during the May 28, 2021 case conference to order the parties to serve their affidavits of documents by August 31, 2021 had the effect of “tipping the scales in the favour of the defendant” and set an unreasonable timeline that caused prejudice to Mr. Lee: There is no merits to the suggestion that imposing a deadline for the service of affidavits of documents of all parties three months after the case conference tipped the scales in favour of the Defendants. In setting this deadline, I took into consideration the fact that Mr. Lee had some appeal materials to file, and I also sought Mr. Lee’s input. Unfortunately, Mr. Lee declined to give me any rough indication of the volume of relevant documents that he had in his possession, and he only put forward August 2022 as a proposed deadline, which was not a reasonable deadline. Based on the information that was before me, I ordered that the parties serve their affidavits of documents by August 31, 2021, i.e. three months later. This is a reasonable timeline and it does not reflect any predisposition. Further, Mr. Lee is not in a position to complain about this deadline as he asked for an extension of time, but as soon as the Defendants consented to his request, he withdrew it and he specifically asked that the deadline remain August 31, 2021.

f. I failed to ensure that the May 28, 2021 case conference was recorded. According to Mr. Lee, I knew before the May 28, 2021 case conference that I was biased and that I wanted to bring a biased decision against Mr. Lee and in favour of the Defendants and, as a result, I did not want the case conference on the record: I recorded the May 28, 2021 case conference using the Bell Canada recording function. This is confirmed by Mr. Lee himself in an e-mail dated July 21, 2021 that he sent to Natasha Ladouceur, Recording Management Coordinator, in which he stated that “[t]he telephone conference prompt on that date confirmed that the matter was ‘being recorded’”. However, I was later advised that the recordings made using the conference call number that was provided to me were not downloaded by the Court’s Records Management Office and were purged by Bell Canada after 30 days. I have no control over the conference call numbers that are provided to me by court staff and I had no knowledge about this issue until Mr. Lee requested a copy of the recording and it was discovered that the recording was unavailable.

The suggestion that, before my very first case conference in this matter, I knew that I was biased and that I wanted to bring a biased decision against Mr. Lee in favour of the Defendants, and that I decided that the case conference should not be recorded for this reason is a completely unfounded allegation in the nature of a conspiracy theory. No reasonable and informed person would give any credence to such an allegation. Mr. Lee does not even provide an explanation as to why I would have such a bias before meeting with the parties for the first time.

g. I wrongly accused Mr. Lee of using delay tactics: In my e-mail to Mr. Lee dated September 3, 2021 reproduced above, I stated that his “responses so far could be interpreted as delay tactics and, if they are, this is not acceptable.” I did not formally find that Mr. Lee was using delay tactics. Rather, I stated that his responses could be interpreted as delay tactics. Indeed, Mr. Lee’s repeated failure to abide by my directions and to respond to simple requests about his availability and the time needed to argue the motion can fairly be interpreted as delay tactics. Mr. Lee does not appear to understand or accept that he does not get to control the process and impose his own timelines at all times. In any event, this does not reflect a closed or predisposed mind.

h. I ordered that the recusal motion be heard on October 6, 2021 despite having evidence before me that it would prejudice Mr. Lee: I scheduled the motion to be heard on October 6, 2021 after Mr. Lee’s repeated non-responsive communications and based on the Court’s availability. In my September 9, 2021 endorsement, I gave Mr. Lee a last chance to demonstrate that he was not available on October 6, but he did not do so.

The two medical notes submitted by Mr. Lee were written before this motion was scheduled. As pointed out above, they do not address the issue of Mr. Lee’s availability on October 6, 2021, nor his ability to proceed with a two-hour motion on that date. The notes are very general and do not discuss what Mr. Lee is able and is not able to do. The procedural history of this case shows that Mr. Lee has been able to proceed with this litigation. He has brought a number of motions since he commenced this action more than two years ago, and he perfected an appeal during the summer. He served his affidavit of documents at the end of August and, since the May 28, 2021 case conference, he has found the time to write multiple letters to me and others, including Regional Senior Justice Firestone and the Canadian Judicial Council. Mr. Lee’s letter-writing reached a crescendo in the week leading to the hearing of the motion where he sent me a different letter almost every day. He also had the time and ability to send letters and materials to the Canadian Judicial Council to complain about me just a few days before the hearing of the motion, i.e. on October 3 and 4. Further, Mr. Lee was able to prepare a Motion Record containing two affidavits and a Factum, and he made oral submissions at the hearing of the motion.

Mr. Lee argues that the motion “ought to have been revisited in or about October 18, 2021”. There is no explanation as to the difference that 12 days would have made with respect to the general issues identified in the medical notes. While Mr. Lee may have preferred to argue the motion on October 18, he cannot dictate the Court’s availability. He was available on October 6 and participated in the motion.

I also note that Mr. Lee’s allegations of pain and suffering are seriously undermined by the fact that after requesting an extension of time to serve his affidavit of documents, he withdrew his request less than 2.5 hours after the Defendants consented to it, and he asked that I maintain the original deadline.

Further, there is no merit to Mr. Lee’s allegation that he needed more time to investigate the issue of the missing recording before the hearing of this motion. Mr. Lee has already been advised that the recording is not available, and he has met with and been provided information by the Court’s Records Management Office. There is nothing to “escalate” at this point. Mr. Lee is on a wild-goose chase.

As stated above, in order to maintain the integrity of the court’s authority, allegations of bias must be brought forward as soon as it is reasonably possible to do so: see R. v. Curragh Inc., 1997 CanLII 381 (SCC), [1997] 1 S.C.R. 537 at para. 11. The manner in which this motion was scheduled does not reflect bias, but, rather, the need to determine the allegations of bias on a timely basis so that the case can continue to move forward. For a similar situation, see Fatahi-Ghandehari v. Wilson, 2019 ONSC 3584 at paras. 4-7.

[57] Ultimately, Mr. Lee’s complaints arise out of his dissatisfaction with the procedural orders that I made and are not based on any evidence upon which a reasonably informed person could conclude that I acted with bias or that there was a reasonable apprehension of same.

e. Rule 1.09 of the Rules of Civil Procedure

[58] Rule 1.09 of the Rules of Civil Procedure reads as follows:

When a proceeding is pending before the court, no party to the proceeding and no party’s lawyer shall communicate about the proceeding with a judge or associate judge out of court, directly or indirectly, unless,

(a) all the parties consent, in advance, to the out-of-court communication; or

(b) the court directs otherwise.

[59] Many of the communications sent to me/my assistant in this case, especially after September 9, 2021, were sent in breach of this Rule as they did not respond to any inquiry on my part and it is clear from their contents that they were not sent on consent of the parties. At the end of the hearing on October 6, 2021, I reminded the parties about this Rule. Going forward, the parties are not to communicate with me/my assistant unless: (a) all the parties consent, in advance, to the out-of-court communication; or (b) the communication is in response to an inquiry or direction that I made. If the parties are not able to agree with respect to the sending of a substantive communication, then they should simply write to my assistant to request a case conference with a one-sentence summary of the issue(s) to be discussed.

Conclusion

[60] I reject Mr. Lee’s request for recusal. My assistant will contact the parties to schedule the next case conference in this matter, which shall take place during the week of November 1, 2021.

[61] In addition, the parties are ordered to comply with Rule 1.09 of the Rules of Civil Procedure going forward, as set out in paragraph 59 above.

[62] If costs cannot be agreed upon, the Defendants 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 27, 2021. Mr. Lee shall send to my assistant and upload onto CaseLines his submissions in response (with the same page limit) by November 10, 2021.

Vermette J.

Date: October 13, 2021

[^1]: See, e.g., Morse Shannon v. Fancy, 2016 ONSC 7574 at para. 9, R. v. J.L.A., 2009 ABCA 344 at para. 31 and MacEwan v. Henderson, 2003 NSCA 133 at para. 6.