Court File and Parties
COURT FILE NO.: CV-18-00607758-0000
DATE: 20211208
SUPERIOR COURT OF JUSTICE – ONTARIO
RE: TANYA REBELLO, Plaintiff (Appellant)
AND:
DEL PROPERTY MANAGEMENT, LANEY CHOI, TORONTO STANDARD CONDOMINIUM CORPORATION NO. 2151, PARAGON SECURITY, PARAGON SECURITY GUARD (SAM REZA), PARAGON SECURITY GUARD (RONALD CRABB), TONY KAMEL, NAGIB HANNA KAMEL, STEPHEN CHOW, CENTURY 21 ATRIA REALTY INC. BROKERAGE, TRIDEL GROUP OF COMPANIES, Defendants (Respondents)
BEFORE: S.F. Dunphy J.
COUNSEL: Tanya Rebello, Acting in person
Eric Turkienicz and Jennifer Ilton, for Paragon Security, Paragon Security Guard (Sam Reza), and Paragon Security Guard (Ronald Crabb) the Defendants (Respondents)
HEARD at Toronto (Video): November 29, 2021
REASONS FOR DECISION
[1] Ms. Rebello appeals two orders of Master (now Justice) Sugunasiri to this court. The first order, dated April 27, 2020 ordered the plaintiff to post $23,713.93 as security for the defendants’ costs of this proceeding through to the end or oral examinations for discovery and barred further action on this matter until the security ordered was posted. A subsequent order dated June 4, 2020 required the plaintiff to pay the costs of the motion itself which were fixed in the amount of $12,047.71.
[2] Both orders are interlocutory orders of an Associate Judge (as Masters are now designated). Neither order represents a final determination of any rights raised by the underlying claim. These decisions cannot be interfered with by me unless I find (i) that the decision was arrived at based upon an error of law, (ii) that the Learned Master exercised her discretion on the wrong principles or (iii) misapprehended the evidence leading to a palpable and overriding error.
[3] Importantly, it is not sufficient that the judge hearing the appeal concludes that he or she may have exercised discretion differently than the Associate Judge who decided the matter. An appeal is not a re-hearing.
[4] The appellant in this case is self-represented. She is not subject to a different set of rules in the conduct of her proceeding although the court is certainly required to make reasonable allowances for the lack of legal training of a self-represented litigant and to apply the Rules in a purposive manner without undue technicality.
[5] This self-represented litigant has shown herself to be particularly adept at navigating the system to the point of abuse and well beyond. Her tactical protestations of lack of sophistication or experience are belied by her actions. The appellant served but deliberately chose not to file her appeal record in this case. Instead, of filing her appeal record (a document she served electronically several weeks ago as required but did not file or upload), she prepared a detailed motion record seeking an adjournment of her appeal.
[6] This appeal hearing date was fixed on a basis peremptory to the appellant on June 30, 2021, following more than a year of glacial progress by the plaintiff in advancing her own appeal. The grounds advanced for the adjournment were at all events entirely without merit.
[7] Although she had no trouble preparing a detailed motion record in support of her requested adjournment and filing same electronically in a relatively brief time frame, the plaintiff appellant claimed to be unable to manage the filing of her own appeal record despite (i) having managed to serve the same record electronically on the respondents on time, (ii) having been given months to prepare it with the respondent having offered to assist in its preparation and filing if need be; and (iii) having been given explicit instructions in writing of the requirement to upload these materials on to Case lines for the purposes of appeal at the time the appeal date was set. When advised that her adjournment request was being denied, the appellant managed to send her appeal record and factum electronically to the Registrar within three or four minutes.
[8] The appeal record has still not been properly filed as far as I am able to determine. The lack of a properly constituted appeal record filed in advance of the scheduled hearing of her own appeal on a date that was peremptory to her are grounds enough to dismiss the appeals as abandoned. However, I proceeded to hear Ms. Rebello on the merits. I found it unnecessary to call upon the respondents and dismissed both of her appeals with costs from the bench with reasons to follow. These are those reasons.
[9] No error of law has been shown to have been made by the Learned Master (as she then was) in respect of either order. There has been no misapprehension of the evidence or of the applicable principles of any kind, let alone of a sort potentially leading to palpable and overriding error. The plaintiff has failed to demonstrate bias or partiality on the part of the Learned Master, a charge that she has apparently levied against substantially every judicial official that she has appeared before in this case as an apparent tactic to procure delay in hearings when other tactics fail. The conduct of the proceeding in question has not resulted in any procedural unfairness nor any denial of fundamental justice. I found both appeals to be utterly devoid of merit.
[10] There is a further element to this hearing that was disturbing beyond the failure of the appellant to take steps to file her own appeal record prior to the hearing. During the course of her argument, Ms. Rebello advised that she had sent me the “wrong” document for one of the tabs of her appeal record (Tab 4). The document in question was Exhibit T to the affidavit of Mr. Curtis contained in her original responding motion record. She proceeded to send me a “revised” copy of that document that contained an additional and entirely unrelated (to the exhibit in question) document that was in no way part of the exhibit originally filed. The page bore a super-added out of sequence page number. This episode was nothing less than a dishonest attempt to introduce new evidence on the appeal under false pretenses. The document in question was at all events entirely unidentified on its face and formed no part of my decision.
Background facts
[11] The procedural history of the motion and appeal is relevant here and I shall set it out in somewhat more detail than might be usual in an interlocutory appeal proceeding of this sort.
[12] The Statement of Claim was commenced in October 2018. The plaintiff’s claim named a condominium corporation, its property manager and various security guards among others as defendants in a claim arising from events that took place during the plaintiff’s tenancy in a Toronto condominium. The defendants are alleged to have conspired with each other, conducted unlawful surveillance of the plaintiff, harassing her, invading her privacy and inflicting emotional and other harm upon her. The claim was referred by the defendants’ counsel to a judge under Rule 2.1.01(6) of the Rules of Civil Procedure to consider whether it should be dismissed as frivolous on its face.
[13] In a written decision dated February 14, 2019 (2019 ONSC 1112), Matheson J. found that despite certain problems with the claim as drafted, the claim was not on its face sufficiently frivolous, vexatious or an abuse of process to warrant dismissal under Rule 2.1. In so ruling, Matheson J. specifically noted the ability of the defendants to bring further motions on notice including motions seeking early dismissal of the claim.
[14] The distinction made by Matheson J. is an important one. Her ruling that the claim on its face did not meet the standard required by Rule 2.1 for summary dismissal does not in any way preclude a further examination of that same question in a motion where evidence can be filed by both parties and considered by the court. That is precisely what happened here.
[15] The defendants did indeed have evidence that they wished to present in furtherance of their contention that the claim is or is likely to be found to be frivolous and vexatious. They brought their motion for security for costs and this was scheduled to be heard by a Master on December 19, 2019. The defendants’ motion was brought under Rule 56.01(1)(e) of the Rules alleging that there is good reason to believe that the plaintiff’s action is frivolous and vexatious and that the plaintiff has insufficient assets in Ontario to pay the defendants’ costs. It was served approximately three weeks prior to the intended hearing date.
[16] The following occurred before the security for costs motion was able to be heard on the merits by the Learned Master on January 27, 2020:
a. On November 26, 2019, the plaintiff brough an allegedly “urgent” motion before the Master seeking to adjourn the defendants’ motion from December 19, 2019 (more than three weeks away at that point) to a date in May 2020. Master Sugunasiri agreed to adjourn the motion from December 19, 2019 until January 27, 2020 in order to give the plaintiff further time to prepare her response to the motion but did so on a peremptory basis.
b. Although she was successful on this adjournment application, the plaintiff was not satisfied with the outcome having asked for a much longer adjournment than that which was accorded her. On December 6, 2020 she appeared in Civil Practice Court – also on an urgent basis – seeking to schedule an appeal of the adjournment decision that she had just won ten days earlier. Myers J. scheduled the requested appeal for a hearing on January 22, 2020 noting that he was scheduling the appeal on that date in order to allow it to be heard without disrupting the peremptory adjournment order being appealed from.
c. A further appearance attempting to vary the terms of the adjournment followed on December 20, 2019, again in practice court but this time before Dow J. This second effort was not successful.
d. The Superior Court appeal of the original adjournment order of the Master was heard by O’Brien J. on January 22, 2020. It was dismissed with costs although further time to permit the plaintiff to late-file her responding material to the security for costs motion was allowed.
e. The security for costs motion then came back before the Learned Master on January 26, 2020 as originally scheduled. At the opening of the motion, the plaintiff requested the Learned Master to recuse herself on a variety of grounds. These included a complaint she had made to the Human Rights Tribunal naming the Learned Master (as well as Justices Myers and Dow before whom she appeared on her two Civil Practice Court appearances) as well as a complaint to the Chief Justice of Ontario[^1]. She also sought an adjournment of the peremptory hearing on the basis of her intended motion to seek leave to appeal from the decision of O’Brien J.. The Learned Master declined to recuse herself or to adjourn the peremptory hearing due to the intended leave application (which was filed that morning, whether before or after the commencement of the hearing before the Learned Master being an unresolved matter in dispute between the parties). There was no applicable stay of proceedings in place.
[17] The motion for security for costs then proceeded as scheduled. It was heard without viva voce evidence. The matter was taken under reserve by the Learned Master and written reasons were released on April 27, 2020 granting the defendants’ motion and ordering the defendant to post security for costs in the amount of $23,713.93 within sixty days. Her reasons also established a timetable for receiving written submissions on the matter of costs and established size requirements for those submissions.
[18] Ms. Rebello delivered costs submissions well in excess of the limits established by the Learned Master and her reasons for decision on costs released on June 4, 2020 notes that Ms. Rebello “threatened to escalate the matter” if the Master did not comply with Ms. Rebello’s demand to be permitted to file a ten page submission instead of the three that were allowed her. In the end, Master Sugunasiri reviewed the submissions as filed and awarded Ms. Rebello costs in the amount of $2,000 for her “walk-in” adjournment motion on November 26, 2019 (Ms. Rebello requested $13,000) but also awarded $14,036.71 to the moving party defendants for costs of the substantive motion. Offsetting the one against the other resulted in a net costs award of $12,037.71 payable by Ms. Rebello.
[19] Both orders were swiftly made the object of appeals to the Superior Court. The path for those appeals to arrive before me was no smoother than the path travelled by the original security for costs motion. As noted, notices of appeal emerged immediately after the reasons were released in both cases. However, neither the original notice of appeal nor the amended notice (issued after the costs order was released) contained any return date for the intended appeal nor did Ms. Rebello take any steps to obtain a hearing date for her appeals or to advance them in any way thereafter.
[20] Several months went by with no sign of any actions being taken by the appellant to advance her appeals. The defendants sought direction from the court and attempted to arrange a Civil Practice Court appointment in November 2020 to schedule the appeal hearings. This resulted in Ms. Rebello writing to the motions coordinator seeking to cancel the CPC appointment made by the respondents. Myers J. intervened on November 12, 2020 and directed the parties to appear at a case conference “to resolve all outstanding procedural issues with the appeal”. Ms. Rebello objected to this procedural order the following day and noted that she was appealing another decision of Myers J. in a different matter and had also complained about him to the CJC and the Federal Court, accusing him of having a conflict of interest. The case conference was ordered to proceed by Myers J. in a three-page endorsement that also directed Ms. Rebello to cease writing to the motions coordinator.
[21] The case conference was ultimately convened before Papageorgiou J. on December 17, 2020. When Ms. Rebello objected that she had not agreed to the date when it was set, Papageorgiou J. adjourned the case conference to February 1, 2021. On that date, Mr. Rebello asked Papageorgiou J. to recuse herself for bias citing a 2016 case that she had heard in small claims court that Ms. Rebello was unhappy about. Papageorgiou J. declined to recuse herself as demanded and gave detailed reasons for her decision. Ms. Rebello stated that she needed more time to obtain transcripts of the hearings for appeal purposes and the case conference was adjourned to March 12, 2021 with specific directions being given regarding the issue of the transcripts.
[22] On March 12, 2021 further directions were given regarding the obtaining of recordings of the arguments before the Master and the case conference was again adjourned to April 16, 2021.
[23] On April 16, 2021 Ms. Rebello said that she would not be able to prepare the Appeal Record for her appeals because “she does not know how to prepare electronic documents”. The defendant offered to prepare a pdf appeal record of the relevant documents for the plaintiff. Papageorgiou J. ordered that “Ms Rebello may file her Appeal Record by filing her Notice of Appeal, th[e] scanned pdf record if it is satisfactory as well as the transcripts”. The matter was adjourned to a further case conference scheduled for May 17, 2021.
[24] The following day, Ms. Rebello wrote to Papageorgiou J. complaining of this “highly prejudicial” order. On April 20, 2021 Papageorgiou J. issued an endorsement directing Ms. Rebello to stop writing letters either to herself or to the defendant and confirming the timing of the next case conference.
[25] On May 17, 2021 the parties appeared for a further case conference before Papageorgiou J. as directed. At this time, Ms. Rebello said that she was still unable to complete the Appeal Record. Papageorgiou J. noted that Ms. Rebello had yet to furnish any evidence that she had ever paid for the transcripts. The matter was adjourned again to June 30, 2021 at which time the parties were advised they should expect to confirm a date for the appeal and Ms. Rebello was directed to provide proof of payment for the transcripts.
[26] On June 30, 2021, the case conference proceeded before Akbarali J. At that time, Akbarali J. was advised that Ms. Rebello had only paid for the transcripts the prior day and that the transcripts that Ms. Rebello had earlier assured would were expected a few days after the May 17 appearance would not in fact be ready for several more weeks. Akbarali J. noted the “unusual” nature of requiring transcripts for an appeal of a motion at which no viva voce evidence was presented. The plaintiff sought six months to prepare her factum and complained that the appeal books scanned by the defendant at Papageorgiou J.’s request were “all wrong”. The six-month delay requested was found to be unreasonable and a peremptory timetable was established leading to a two-hour appeal hearing on November 29, 2021. The timetable required the service of the plaintiff’s appeal book and factum by October 22, 2021, and responding materials by the defendants by November 12, 2021. The plaintiff was authorized to deliver a reply factum by November 22, 2021 limited to five pages.
[27] It is to be noted that Akbarali J’s endorsement contained very specific directions to the plaintiff about the requirement to file all materials on Case Lines for the court’s use at the hearing, advising the plaintiff to be careful to use hyperlinks or to upload tabs individually to ensure the court could access the documents easily.
[28] To this point, fourteen months had transpired since the decision being appealed from had been handed down. Six case conferences were held for the purpose of bringing the plaintiff to the point of having her own appeal ready for a hearing. There was still no sign of an Appeal Record being prepared and the transcripts that the appellant advanced as the principal cause of the delay had still not been produced and in fact only been paid for a few days earlier.
[29] The pandemic can explain only a small part of this lengthy delay. The inescapable conclusion from this record is that the appellant was seeking to protract and delay the appeal proceeding for as long as she could and it must be observed was remarkably successful at doing so.
[30] The plaintiff did in fact prepare and serve her appeal book and factum by the October 22, 2021 deadline set by Akbarali J. She did not however upload it to Case Lines on that date or afterwards as Akbarali J. explicitly directed her to do nor did she take any steps to obtain any help necessary to upload it if such were needed. She did serve it electronically upon the respondents in a timely way and forwarded a copy to the Registrar at the outset of the hearing before me.
[31] The respondents had a deadline of November 12, 2021 to serve their responding material. They did so, serving the plaintiff electronically in precisely the way she had served them with her own record. However, unlike the plaintiff, they also uploaded their documents to Case Lines and provided a hyper-linked index of all of their documents to enable their retrieval.
[32] In the days leading up to and immediately following November 12, the plaintiff sent several emails to the respondents’ counsel demanding that she be provided with paper copies of the respondents materials with numbered pages and an index. The tone of these emails was both peremptory and abusive. The defendants agreed to provide her with a courtesy hard copy of their materials and did so by process server the following week in addition to the electronic copy provided to her in a timely way.
[33] There were no page numbers on the document they produced for the quite sufficient reason that Case Lines automatically assigns page numbers when they are uploaded (as in fact happened here).
[34] The plaintiff did not prepare the brief reply submissions she was authorized to file by November 22, 2021. She claimed that she could not read the electronic version of the documents she had received and was unable to find her way through the paper copy given the lack of page numbers.
[35] This objection was a spurious one. The two volume Appeal Record uploaded by the respondents included nothing that was not already part of the court record and thus already in Ms. Rebello’s possession. An index at the front of each volume indicated clearly the name and date of each such document if she preferred to consult paper copies instead of the electronic copies she received or the hyperlinked and paginated copies available to her on Caselines.
[36] I have not detailed in this chronology the flurry of emails sent to Akbarali J. or her assistant. On November 22, 2021, Ms. Rebello responded to a message from Akbarali J’s assistant advising her to make her request for an adjournment to the judge hearing the appeal by stating that the response was “unacceptable and I will be escalating the matter [to] higher levels”. During this time frame, Ms. Rebello rejected offers from the respondents to provide her with another digital copy containing numbered pages (notwithstanding that such numbers would not be the same as the automatically-assigned Case Lines numbers). She insisted on an adjournment and would accept no substitute.
[37] Instead of preparing reply materials and even seeking leave to file them a few days late by reason of any difficulties she may have had, Ms. Rebello prepared a motion record (35pp), factum (11pp), book of authorities (23pp) and motion confirmation form (2pp) all of which she delivered electronically on November 26, 2021 requesting an adjournment of the appeal hearing. Ms. Rebello managed to arrange to have these documents uploaded on to Caselines by the morning of the appeal hearing even if her Appeal Record was not.
Issues to be decided
[38] The following are the issues that I decided (or, in the case of costs, decided subsequent to the hearing) and my reasons for deciding them:
a. Should the hearing be adjourned to another date?
b. Has the appellant demonstrated an error of law, the exercise of discretion on wrong principles or a misapprehension of the facts leading to a palpable and overriding error affecting the order requiring the payment of security for costs appealed from?
c. Has the appellant demonstrated an error of law, the exercise of discretion on wrong principles or a misapprehension of the facts leading to a palpable and overriding error affecting the order of costs appealed from?
d. Has the appellant demonstrated the existence of a reasonable apprehension of bias on the part of the Learned Master?
e. What is the appropriate scale and amount of costs to be awarded to the successful respondents on these appeals?
Issues to be decided
(a) Should the hearing be adjourned to another date?
[39] I rejected Ms. Rebello’s request for an adjournment advanced at the outset of the hearing.
[40] The hearing date had been fixed on a basis peremptory to the appellant following an excessively long period of “preparation” during which the appellant failed to take any active steps to advance the appeal except after repeated exhortations. A total of six case conferences over more than six months were convened to move these appeals forward, alleged issues in obtaining transcripts of two relatively brief attendances (neither of which received viva voce evidence) was cited by the appellant on each occasion as a primary reason for the delay being encountered. Whatever the alleged necessity of the transcripts of the hearings before the Learned Master (only incomplete extracts were filed by the appellant and none of these were ultimately referenced by her in argument before me), there is no evidence that Ms. Rebello took any steps to actually pay for the transcripts until days before the last case conference itself occurring more than a year after the decisions appealed from. The pandemic explains no more than a small part of this delay. Transcripts in other matters were being produced in great volume and with great regularity by our court reporters during this time span with nothing like the delay encountered here. The tortured history of the steps required to bring these two appeals to a hearing and the peremptory nature of the hearing date assigned warrant at the very least a highly skeptical examination of the bona fides of any late-breaking adjournment request.
[41] The primary ground advanced by the appellant was the lack of page numbers or tabs on the two-volume appeal record delivered by the respondents. She alleged that this materially impaired her ability to prepare for the hearing of this appeal. This objection is entirely spurious for the reasons adverted to in my overview of the facts above.
[42] The respondents complied with the directions issued by Akbarali J. on June 30, 2021 when the appeal date and timetable were set. They delivered their materials electronically to Ms. Rebello on time and in exactly the same manner as she delivered her own Appeal Record to them – a fact not recited or adverted to in her motion record. Despite Ms. Rebello’s repeated insistence that she lacked page numbers, Akbarali J. gave her very specific directions that she would be required to upload her documents on to Caselines months in advance. The fact that Caselines automatically assigns unique page numbers to every document uploaded was also explained to her in the email exchanges between the parties if indeed she was ignorant of that fact. The respondents bent over backwards to accommodate the demands of the plaintiff despite the abusive tone of her communications.
[43] I also received the appellants pleas to being an unsophisticated self-represented litigant unable to work with electronic documents with a grain or two of salt. While she may be self-represented, the record makes it quite clear that on the spectrum of self-represented litigants she must be placed near the most sophisticated end of the spectrum. Apart entirely from the significant number of other cases where she is managing her various claims as plaintiff referenced in the appeal record, Mr. Rebello managed to produce a detailed factum, book of authorities and motion record in support of her request for an adjournment displaying a high degree of facility and sophistication in that endeavour that she might more profitably have devoted to preparing the reply materials that she was entitled to file. She prepared those materials and served them electronically (and they were subsequently uploaded to Caselines) in addition to serving (but not filing) her factum and lengthy Appeal Record electronically weeks earlier.
[44] The correspondence from Ms. Rebello to the respondents’ counsel forming part of her own motion record leads quite strongly to the inference that delay was her primary goal in bringing forward the request for an adjournment, an inference that the history of repeated attempts to slow down the progress of the respondents’ motion reinforces. At all events, I found no material impediment to the appellant being in a position to present her appeal before me nor have the respondents breached in a material way any obligation they were under in preparing, serving and filing their own materials. While somewhat voluminous, the respondents’ record clearly identified every document in an index and these were already in the appellant’s hands (save and except the factum of course).
[45] The interests of justice did not favour granting an adjournment in these circumstances and I proceeded to hear the appeal on its merits.
(b) Has the appellant demonstrated an error of law, the exercise of discretion on wrong principles or a misapprehension of the facts leading to a palpable and overriding error affecting the order requiring the payment of security for costs appealed from?
[46] Neither the written nor oral submissions of the plaintiff appellant detail any identifiable errors of law attending the decision of the Learned Master to grant the motion. The decision itself is cogently reasoned and disagreement with the outcome is not the same as an error of law.
[47] The Learned Master outlined the reasons why the decision of Matheson J. did not preclude her from making the order she made. Her reasoning in so concluding was sound and correct. She correctly identified the test to be applied to satisfy the requirements of Rule 56.01(1)(e); she correctly described the meaning of frivolous and of vexatious. In terms of the test for appellate review, the main issue is thus whether she applied discretion on the basis of wrong principles or misapprehended the facts when applying them to the law in a way that gave rise to a palpable and overriding error. There is simply no basis to find that any of these things occurred.
[48] The Learned Master gave cogent and detailed reasons for her conclusion that there is good reason to believe that the action is frivolous and vexatious. She referred to scandalous and apparently incredible allegations of some of the defendants working with members of the Toronto Police Service (who are not parties to the action) to eavesdrop and monitor her, to install listening devices etc. The allegations appear on their face to be largely fantastic and difficult to credit. This does not of course mean that the allegations are untrue – it may be that the plaintiff can prove some or all of them. However, their nature fully justified the view the Learned Master took of them in informing her decision that the there is reason to believe that the claim as pleaded is frivolous and vexatious. The plaintiff’s responding record did not provide sufficient evidence to displace that inference. There was evidence to support her conclusions which are not on their face unreasonable. There is no basis to disturb her findings.
[49] The same analysis was applied by the Learned Master as regards the criterion of vexatiousness and the same conclusions apply for the same reasons. There is no error in the analysis of the standard to be applied nor of her application of the facts to that standard. Disagreement with the outcome is not a ground of appeal.
[50] Ms. Rebello focused her oral argument quite strongly on the question of whether the Learned Master had a basis to conclude that Ms. Rebello has insufficient assets to satisfy a costs award. Once again, care must be taken to distinguish between error of law in determining the test and misapprehension of facts in applying the facts to the legal standard.
[51] It was in this context that Ms. Rebello sought to introduce new evidence by simply adding documents to her appeal record (without seeking leave) and by way of the slip-sheeted introduction of an additional page (identified as p. “193(a)” purporting to be part of Exhibit “T” to Mr. Curtis’ affidavit in her original responding record.
[52] Ms. Rebello claimed that this document was in fact part of the original record before the Learned Master. There is no evidence that this is so and strong evidence that it was not. The page in question was described by her as a bank record (it has been redacted to remove any identifying features, including the name of the alleged bank) apparently showing a bank balance in some unidentified account as of January 2020. Paragraph 53 of Mr. Curtis’ affidavit which described Exhibit “T” contains no references to a bank statement and refers only to a “Purview” real estate report (which was attached).
[53] Leaving aside the question of Ms. Rebello’s apparent attempt to mislead the court, the “evidence” in question is nothing of the sort. It is neither identified nor sworn to by any witness. Mr. Curtis made no reference to it in his affidavit nor did he establish any basis to have knowledge of it. Ms. Rebello had the opportunity to file an affidavit of her own on the motion but clearly chose not to do so.
[54] The Learned Master noted the practical onus on Ms. Rebello to demonstrate the sufficiency of her assets given her unique knowledge of her own financial circumstances and the evidence the moving parties had adduced. That evidence from the public record showed that there were unpaid costs orders made in other proceedings brought by Ms. Rebello as well as a piece of rural real estate where she had mortgaged the property for more than its original purchase price. In response to this, the only evidence from Ms. Rebello was Mr. Curtis’ affidavit which failed to substantively address either issue and critically contained no information whatsoever regarding the state of Ms. Rebello’s liabilities. The Learned Master’s reasons her conclusions regarding the financial capacity of the appellant to satisfy a costs award are cogent and compelling. Ms. Rebello had the opportunity to provide direct evidence to rebut this and chose not to do so.
[55] There was a further “fact” that Ms. Rebello alleged had been misapprehended by the Learned Master. The fact in question was an allegation contained in the moving party’s motion record to the effect that the affiant (Mr. Scolero) believed that Mr. Curtis was living in the subject condominium unit in a common law relationship with the plaintiff. Mr. Curtis’ affidavit denies that this is the case. Mr. Scolero made an inference in his affidavit and stated his factual basis for doing so. Mr. Curtis’ denial does not make the affidavit of Mr. Scolero a “lie” nor was the fact of Mr. Curtis’ relationship with Ms. Rebello material to any issue determined by the Learned Master. Mr. Cutis’ affidavit provides ample confirmation of his numerous dealings with the respondent from the relevant unit in the building and in that regard at least corroborated his evidence. None of these matters rise to the point of palpable and overriding error nor does it amount to a misapprehension of the evidence. Neither the primary residence of Mr. Curtis nor the state of his relations with Ms. Rebello had any material bearing on the issue before the court.
[56] Ms. Rebello’s factum made reference to a number of factual statements contained in the moving parties’ affidavit that she characterized as false. I have reviewed all of these. The mere fact that Ms. Rebello filed an affidavit from Mr. Curtis disputing various statements made in Mr. Scolero’s affidavit does not render contrary statements conclusively false. Few if any of the disputed statements were of more than peripheral relevance to her decision and thus could not alone or in combination be construed as leading to palpable or overriding error at all events.
[57] Finally the Learned Master considered whether it was just in all of the circumstances to make the order she made. Her reasons contain a detailed description of the test she applied and the reasons she reached the conclusion she reached. I can see no basis to interfere in any way with her decision.
[58] There is no basis to interfere with the decision of the Learned Master as regards her order that the plaintiff be required to post security for costs. Her appeal of that order must accordingly be dismissed.
(c) Has the appellant demonstrated an error of law, the exercise of discretion on wrong principles or a misapprehension of the facts leading to a palpable and overriding error affecting the order of costs appealed from?
[59] As with the decision to grant the motion to require security for costs, the decision to award costs for that motion is a discretionary one and the standard of review of the order on appeal is the same. The appellant bears the onus of showing that the Learned Master made her decision on the basis of an error of law, the exercise of discretion based on an incorrect principle or a misapprehension of the facts leading to a palpable and overriding error.
[60] I have reviewed the June 4, 2020 decision appealed from in light of Ms. Rebello’s factum and her oral argument. The decision shows no misapprehension of the principles to be applied. The Learned Master identified the criteria from Rule 57.01 that appeared to be most relevant to her task and outlined her reasoning. She chose to apply the substantive indemnity scale of costs by reason of what she found to be the obstructive conduct of the appellant from the outset of the motion. There was ample evidence in the record from which that conclusion might have been reached. She examined the experience of counsel, the importance of the issues and the complexity of the proceeding and made observations in respect of each which are similarly well-grounded in the evidence from the record.
[61] The amount awarded is well within the bounds of reasonable and is indeed towards the lower end of the scale, a conclusion which does not suggest the existence of operative errors of principle. Indeed, the amount awarded compares quite favourably to the $13,000 in costs that Ms. Rebello sought for the motion where she was successful (the adjournment motion) even if the Learned Master only awarded $2,000 in costs to Ms. Rebello for that particular motion.
[62] I can find no basis to interfere with the costs award made. That appeal must also be dismissed.
(d) Has the appellant demonstrated the existence of a reasonable apprehension of bias on the part of the Learned Master?
[63] Mr. Rebello’s factum focused in significant measure upon allegations of bias on the part of the Learned Master. Substantially all of the evidence cited by her in support of that allegation amounts to little more than disagreement with decisions reached by the Learned Master whether in declining to grant precisely the adjournment sought by Ms. Rebello initially, in making the new return date peremptory on the plaintiff, in taking a different view of the evidence filed by the moving parties or in failing to agree with the evidence of Mr. Curtis filed by her. None of this is reasonably capable of being construed by an objective observer as evidence of “bias” or lack of procedural fairness.
[64] There is a strong presumption of judicial impartiality that is not easily displaced. To do so requires showing “a real likelihood of bias” and comments of the judicial official during the hearing must be viewed in their full context. The test for the existence of a reasonable apprehension of bias is whether an informed person, viewing the matter realistically and practically — and having thought the matter through — would conclude that it is more likely than not that [the decision-maker], whether consciously or unconsciously, would not decide fairly: Yukon Francophone School Board, Education Area #23 v. Yukon (Attorney General), 2015 SCC 25, [2015] 2 SCR 282 (at para. 20 and 25).
[65] The mere fact that a litigant is unhappy with the outcome of one proceeding does not mark the judicial official who made that decision as biased or unable fairly to decide a controversy involving the same litigant thereafter. The gist of Ms. Rebello’s complaints about the conduct of the Learned Master amounts to little more than this. The existence of an unsubstantiated claim to the Human Rights Tribunal or the Chief Justice similarly cannot meet the standard of suggesting to a reasonable informed person that the named judicial official is by that reason unable fairly to decide a matter involving the complainant. This is particularly so where the texts of the two complaints are reviewed and considered in the context of the systematic filing of such complaints against almost every judicial official who touched her file.
[66] Ms. Rebello suggested that perceived unfairness or lack of due process arose by virtue of the Learned Master proceeding to hear the motion a notice of leave to appeal the decision of O’Brien J. filed on the day of the hearing of the motion. In support of this position, her appeal record included a partial transcript of the hearing on January 27, 2020 where the Learned Master inquired about the status of the leave to appeal application and indicated that had it been filed she would not deal with the appeal that day. As with any comment of a judicial official in the course of a hearing, this comment can only be given weight if considered in its full context.
[67] There are two elements of context to be considered. First, there was no reason whatsoever for an application for an application seeking leave to appeal a decision rejecting her appeal of what was a purely discretionary order respecting the length of an adjournment to have any bearing on the hearing of the motion. The defendants’ motion had been scheduled to be peremptory to the plaintiff and the appeal hearing in respect leave was sought had itself been scheduled so as not to interfere with the scheduled hearing of the defendants’ motion. The Learned Master’s spontaneous comment about not proceeding with the hearing was made spontaneously and without having heard from the moving party who would obviously be affected by the order.
[68] Second, the context indicates that there were quite reasonable grounds to conclude that Ms. Rebello took advantage of a brief adjournment accorded her to file an otherwise unfiled leave to appeal notice and thereby obtain the adjournment that she had requested instead of merely obtaining a copy of a document already filed. Earlier that morning, she had provided the court with an unissued copy of the leave to appeal notice only and was vague about when she had allegedly filed the document. Ms. Rebello unilaterally stretched that brief adjournment accorded her to clarify the status of her leave application for approximately two hours, returning with a stamped copy and appearing to agree in oral comments upon her return that she had only just had the document issued. The partial transcript does not indicate what reasons if any the Learned Master gave for proceeding with the hearing nor does it indicate whether the appellant raised any objection to her doing so at the time.
[69] The record is quite equivocal as to when the leave to appeal application was filed that day. Regardless of when the document was in fact issued (before or after the hearing of the motion), the fact remains that the mere fact of seeking leave to appeal in no way operates to stay the hearing of the motion she had sought on multiple occasions to delay. There was no deprivation of natural justice arising from the fact that the motion proceeded notwithstanding the preliminary decision of the Learned Master to adjourn it if the leave application had in fact been filed.
(e) What is the appropriate scale and amount of costs to be awarded to the successful respondents on these appeals?
[70] Following my decision to dismiss both appeals issued from the bench, I invited the respondents to make their submissions in relation to costs. The respondents sought costs on a substantial indemnity scale in the amount of $16,939.63. They had not uploaded their outline of costs prior to the hearing – a step that is ALWAYS advisable absent Rule 49 issues. I heard their submissions as to scale but required them to upload their Outline of Costs and gave the appellant five days to review same and prepare written submissions in response within five days. Ms. Rebello prepared her written submissions and uploaded these to Caselines as I directed.
[71] By way of summary, the respondents point primarily to the elements of the history of this proceeding that I have outlined above to submit that the appellant’s behaviour greatly added to the costs of responding to this appeal.
[72] Ms. Rebello’s written submissions suggest – incorrectly – that I directed the respondents to file written submissions repeating the oral submissions they made during the hearing in her presence. I made no such direction and in fact underlined the opposite direction. I did require them to upload their outline of costs which they ought to have done prior to the hearing. They did so. There is nothing to this objection advanced by Ms. Rebello.
[73] Ms. Rebello submits that it was the respondents who failed to follow the rules of the court and misled the court resulting in a lengthening of the proceeding. There is no fair reading of the facts that would render either assertion true. The appellant took virtually no steps to advance her own appeal after delivering her notice of appeal. The glacial pace of the appeal process outlined above speaks for itself. I entirely agree with the submissions of the respondents that Ms. Rebello’s conduct on this appeal merits the awarding of costs on a substantial indemnity basis. The obstructive conduct that the Learned Master found warranted substantial indemnity costs in relation to the original motion continued and in an amplified manner in relation to the appeal. Substantial indemnity costs are clearly justified.
[74] Ms Rebello also challenged the reasonableness of the amounts claimed by the respondents, referring to her own self-represented status, their unpaginated appeal materials and the use of more than one lawyer on the matter. There is no merit to any of these objections. The respondents have endured what can only be described as frequent abuse directed their way by the appellant. They offered to help her in arranging to scan the appeal record if she had problems in that department. Far from finding their claimed costs to be unreasonable, I found their outline of costs to err on the side of conservatism. The amounts claimed appear to me to be at the low end of the spectrum for such matters even on a partial indemnity scale.
[75] Having regard to the gauntlet the respondents had to run to get this appeal heard and disposed of, the amount claimed in the underlying action and the importance of the issues to the parties, the experience of counsel and forbearance demonstrated by such counsel throughout, I find the amount of costs claimed in the respondents outline of costs - $16,939.63 on a substantial indemnity scale - to be eminently fair and reasonable.
[76] In the result I award the respondents their costs of both appeals on a substantial indemnity basis which costs I fix in the amount of $16,939.63 all inclusive.
Disposition
[77] As indicated, I rejected both appeals from the bench with reasons to follow. The respondents are entitled to their costs of these appeals on a substantial indemnity scale that I have fixed at $16,939.63 such amount being payable within thirty days.
[78] I was asked by the respondents for leave to take out the formal order dismissing this appeal and awarding costs without a requirement for Ms. Rebello’s approval as to form and content. Approval as to form and content is normally required when orders are signed by the Registrar but not when issued directly by the judge making them and is able to assess directly the conformity of the formal order with the order made. I am directing the respondents to prepare the formal orders (one dated November 29, 2021 dismissing the appeals with costs to be fixed by me; the other dated today’s date awarding costs on a substantial indemnity basis and fixing the amount of such costs at $16,939.63). The orders are to be forwarded by email to Ms. Rebello and uploaded to Caselines. If Ms. Rebello has any comments regarding the form of the orders, she may explain those comments in writing and upload those comments to Caselines within 24 hours. I shall review the drafts, her comments if any and make any revisions required to make them correspond to the orders I am making here prior to signing them. A Word version of the two orders is to be provided to me through the Motions Office so that I can make any such revisions if need be.
[79] Orders accordingly.
S.F. Dunphy J.
Date: December 8, 2021
[^1]: The copy of the Human Rights Tribunal produced by Mr. Rebello in her (unfiled) Appeal Record was partial and undated; the letter to the Chief Justice included in the Appeal Record was dated subsequent to the hearing on January 27, 2020.