COURT FILE NO.: CV-18-00001310-00; CV-19-00002122-00; CV-19-00003118-00; CV-19-00003248-00 DATE: 2023 09 11

SUPERIOR COURT OF JUSTICE – ONTARIO

RE: CV-18-00001310-00 SAPUSAK, Chris Jamie AND: 9706151 CANADA LTD. D’MELLO, Roy 11037315 CANADA INC. 1152729 B.C. LTD. BANGIA PROPERTY SERVICES LTD APEX FINANCIAL CORP. 1824231 ONTARIO INC.

RE: CV-19-00002122-00 APARICIO-MARTINEZ, Nathali AND: PENTILLA, Karen MULTANI, Daljeet Kaur

RE: CV-19-00003118-00 SAPUSAK, Chris Jamie AND: 11039342 CANADA INC. DURDYEV, Annageldi SALDANA, Eric FIRST NATIONAL HOLDING CORP. KASSIEDASS, Parduman KULLAR, Amritpal Singh D’MELLO, Alice SINGH, Davinder

RE: CV-19-00003248-00 SAPUSAK, Chris Jamie AND: KAUR, Harcharan

BEFORE: Regional Senior Justice Ricchetti

COUNSEL: N. Colville-Reeves, for the Plaintiff, Chris Jamie Sapusak; R. D’MELLO, the Defendant is self-represented, 9706151 Canada Ltd. and 11037315 Canada Inc.; P. Robson, for the Defendants, 1152729 B.C. Ltd. and Amritpal Singh Kullar.

HEARD: August 22, 2023, by Video Conference

ENDORSEMENT

Disclosure Motions

[1] I will refer to Mr. Roy D’Mello as reference to him personally and his two corporations of which he acknowledges he is a director: 9706151 CANADA LTD (970 Canada) and 11037315 CANADA INC. (110 Canada) (I will refer to both companies as the D’Mello Corps). Mr. D’Mello appears today in his personal capacity and for the D’Mello Corps.

[2] The Plaintiff, Chris Sapusak (“Plaintiff”) brings a motion to deal with Undertakings, Refusals and other disclosure from Mr. D’Mello and his companies.

[3] Mr. D’Mello brings a cross-motion for certain disclosure he seeks from the Plaintiff.

[4] These motions were scheduled and timetabled at a conference, before me, on June 14, 2023.

[5] Late, the day before these motions were to be heard, Mr. D’Mello brought a recusal motion because of an alleged conflict of interest and/or bias/apprehension of bias. This motion had not been previously discussed nor scheduled to be heard this day.

Preliminary Issues

[6] Mr. D’Mello requested that the recusal motion be dealt with first. Mr. D’Mello submitted that the court should “timetable” the recusal motion. Mr. D’Mello advised the court he didn’t wish to proceed with the recusal motion today because he had “other things” he wanted to include in the recusal motion and needed time to put those “things” before the court. Exactly what “other things” to be put before the court were never disclosed.

[7] Any adjournment of the recusal motion would result in a significant delay to the disclosure motions in this five-year-old action.

[8] Given the late delivery of Mr. D’Mello’s recusal motion, the Plaintiff’s counsel had not seen, nor reviewed, Mr. D’Mello’s recusal motion. After given an opportunity to review Mr. D’Mello’s recusal motion, the Plaintiff’s counsel was prepared to proceed with the recusal motion.

[9] Mr. D’Mello repeated his submission that the recusal motion should be timetabled and heard before the disclosure motions be heard.

[10] After consideration, the court indicated it would not adjourn the disclosure motion. The date was scheduled on June 14, 2023, a timetable had been ordered, materials had been filed, and there had already been considerable delay in this and related files (one of four files involving Mr. D’Mello and Mr. Sapusak: CV-18-1310, CV-19-3118, CV-22-2405, CV -22-2425). There was urgency in dealing with these proceedings as: there was a CPL on title to the subject lands; there was an existing Mareva order; at one point property expenses had not been paid and the subject property was on the verge of a tax sale, and finally, there have been extensive delays in moving these proceedings to trial set out in the court’s prior endorsements.

[11] Having determined and advised that the disclosure motions would go ahead today, Mr. D’Mello was given the option of either proceeding with his recusal motion first, followed by the disclosure motions OR re-scheduling/timetabling the recusal motion and proceed with the disclosure motions.

[12] Mr. D’Mello chose to proceed with the recusal motion today.

[13] Then Mr. D’Mello sought an adjournment of the disclosure motions. Why? Mr. D’Mello alleged that he had not attended certain examinations for discovery of other parties. There was no evidence on this. The Plaintiff was not given notice of this issue nor had the Plaintiff an opportunity to put before the court the Affidavits of Service of the appointments for examination for discovery.

[14] However, even if Mr. D’Mello was correct that he had not attended the other examinations through no fault of his, Mr. D’Mello was asked by this court what the relevance was as to what other parties had said on their examination for discovery to the issue before this court - whether Mr. D’Mello should answer his undertakings or his refusals.

[15] Mr. D’Mello responded that they were relevant for “context”. When questioned on the meaning of context, Mr. D’Mello suggested that the documentation or information sought during his examination might or could be obtained from other parties.

[16] The court advised Mr. D’Mello that whether other parties had information or documentation (or indeed had already disclosed/produced that information/documentation) it did not relieve him of his legal obligation to provide the information/documentation within his power, possession or control in his Affidavit of Documents nor was it relevant to whether he has/should answer his UTs or Refs.

[17] I am satisfied that the issues to be decided on the disclosure motions are: a) whether the UT was given; b) whether each question refused was relevant to the issues in this proceeding; and c) if so, Mr. D’Mello would, in response to the questions, be required to produce documentation within his power, possess or control and answer the questions under oath and any questions that reasonably flow therefrom.

[18] I am satisfied that the decision on the above is unrelated to what other parties did or did not say or produce at their examinations.

[19] This adjournment request for the disclosure motions was denied.

The Recusal Motion

[20] At the end of submissions, I dismissed the recusal motion with reasons to follow. These are those reasons.

[21] Mr. D’Mello is a lawyer, a member of the Law Society of Ontario (LSO). Mr. D’Mello is not a self-represented litigant unfamiliar with legal procedure nor legal concepts.

[22] Mr. D’Mello submits there are two grounds for his recusal motion: a) Conflict of Interest; and/or b) Actual or Reasonable Apprehension of bias.

[23] Some background is necessary.

[24] The court in D’Mello v. Sapusak et al., 2023 ONSC 970 describes the multiplicity of proceedings involving the Plaintiff and Mr. D’Mello.

[25] At present, there is approximately $140,000 in outstanding cost awards against Mr. D’Mello and the D’Mello Corps. That alone might be sufficient to refuse to deal with any either Mr. D’Mello’s recusal motion and his disclosure cross-motion. However, solely for the purpose of getting these proceedings ready for trial and to avoid further delays, I go on to deal with all motions on their merits.

Prior Attempt to Recuse me and other Central West Judges

[26] Mr. D’Mello, directly or through his counsel, has already made various claims that judges involved in these proceedings are bias. Those instances are described below. All such claims were made where Mr. D’Mello was apparently unhappy with the rulings or decisions made by the judge.

[27] As it relates to me, Mr. D’Mello decided last summer (2022) to commence a formal application against me rather than bring a motion. In CV-22-2425: D’Mello v. Sapusak and Ricchetti (the Recusal Application), Mr. D’Mello sought:

An Order that the Honorable Justice Ricchetti (“Justice Ricchetti”) recuse himself from the proceedings CV-18-1310

2a. Roy D’Mello (“Applicant”) is a defendant in action CV-18-1310 (“Action”) commenced in Brampton, Ontario. He is a director of 9706151 Canada Ltd. and 11037315 Canada Inc. who are defendants in the Action (collectively “Defendants”).

2c. There is bias, or a reasonable apprehension of bias, against the Applicant if Justice Ricchetti were to preside in these proceedings.

2q. The Applicant made a complaint against Justice Ricchetti to the Ontario Judicial Council in October 2021. This complaint was then redirected to the Canadian Judicial Council in January 2022, well before the date of this application.

2w. Although an endorsement was not made, Justice Ricchetti recused himself, and another judge presided at the case management conference.

2dd. Statements made by Justice Ricchetti only add to the reasonable apprehension of bias

2ee. In his April 8, 2021 letter Justice Ricchetti made comments relating to the subject Mareva injunction indicating that he was predisposed that the subject Mareva injunction was still extant.

2ff. In his July 29, 2022 Endorsement, Justice Ricchetti stated that the case was not moving along despite the plaintiff’s efforts.

[28] Mr. D’Mello’s Recusal Application (and a related application) refers to Justice Petersen also being biased when dealing with these proceedings.

[29] Civil Law Group represented me. They sought to bring a motion to dismiss the Application. Justice Daley was to preside over this motion. Justice Daley scheduled a hearing to set a timetable and date for the motion to dismiss.

[30] Mr. D’Mello did not attend the timetabling/scheduling appearance before J. Daley.

[31] When the motion to strike hearing date arrived, Mr. D’Mello had not filed any responding materials.

[32] When the motion to strike hearing date arrived, Mr. D’Mello sought an adjournment.

[33] The adjournment was denied for the reasons set out by J. Daley. In summary, Justice Daley found that the Recusal Application was an abuse of process (failing to bring the application before me) and had no merit in law (absolute immunity in the exercise of judicial function). Mr. D’Mello relied on a CJC complaint he submitted. The fact that Mr. D’Mello had filed a complaint with the CJC was not, by itself, determined by J. Daley to provide evidence or constitute a basis to establish bias nor a reasonable apprehension of bias.

[34] Justice Daley granted the motion to strike.

[35] Mr. D’Mello appealed J. Daley’s decision. Mr. D’Mello did not perfect the appeal and recently sought to extend the time to do so.

Steps to remove Other Judges

[36] Mr. D’Mello’s attempts to remove judges from hearing this proceeding has not been limited to the Recusal Application.

[37] For example, Mr. D’Mello filed complaints with both the Ontario Judicial Counsel and the Canadian Judicial Council.

[38] As set out below, in other instances, Mr. D’Mello or his counsel wrote to the court accusing the judge of bias, hoping that the matter would simply be scheduled before another judge.

[39] In no case, did Mr. D’Mello actually establish that any other judge hearing these matters was biased or there was a reasonable apprehension the judge was biased.

[40] Mr. D’Mello suggests, in his Recusal Application and in this motion, that where a judge against whom he alleged bias did not hear any further motions, the judge accepted that they were biased. For example, Mr. D’Mello states “it appears that she [J. Shaw] recused herself”. There is nothing to support this bald conclusory and inaccurate statement. The matter was simply scheduled before another judge to avoid these types of motions and further delay this already protracted litigation.

The Position of Mr. D’Mello in this motion

[41] Mr. D’Mello asserts:

a) There is a conflict of interest because he has pending litigation against me personally – the Recusal Application. As stated above, Mr. D’Mello had not perfected his appeal in the Recusal Application. Mr. D’Mello requested my counsel to consent to the extension of time to perfect. My counsel did not consent to the extension of time to perfect. As a result, Mr. D’Mello relies on this as evidence of bias by me and announced that he will be seeking costs against me personally for not consenting to the extension of time. Accordingly, Mr. D’Mello asserts I have a personal, pecuniary, and hence, a conflict of interest in this proceeding.

b) There is actual or a reasonable apprehension of bias demonstrated by my refusal to consent to the extension of time to perfect his appeal. As described by Mr. D’Mello:

I believe that this discretion [refusing to consent to the extension], which was exercised without explanation, shows bias or a reasonable apprehension of bias that creates a jurisdictional question in the Sapusak matter.

c) There is actual or a reasonable apprehension of bias based on my unilaterally assuming case management of these proceedings and having reported his previous counsel, Mr. P. Robson, in these proceedings to the Law Society of Ontario.

Analysis

[42] There is a high level of presumption of judicial impartiality that is not easily displaced.

[43] The test for a reasonable apprehension of bias is whether an informed reasonable person, viewing the matter realistically and practically – and having thought the matter through – would conclude that it is a real likelihood or probability that I would consciously or unconsciously, not decide the issues fairly.

[44] The discussion in Yukon Francophone School Board, Education Area #23 v. Yukon (Attorney General), 2015 SCC 25 is particularly instructive:

[25] Because there is a strong presumption of judicial impartiality that is not easily displaced (Cojocaru v. British Columbia Women’s Hospital and Health Centre, 2013 SCC 30, [2013] 2 S.C.R. 357, at para. 22), the test for a reasonable apprehension of bias requires a “real likelihood or probability of bias” and that a judge’s individual comments during a trial not be seen in isolation: see Arsenault-Cameron v. Prince Edward Island, [1999] 3 S.C.R. 851, at para. 2; R. v. S.(R.D.), at para. 134, per Cory J.

[26] The inquiry into whether a decision-maker’s conduct creates a reasonable apprehension of bias, as a result, is inherently contextual and fact-specific, and there is a correspondingly high burden of proving the claim on the party alleging bias: see Wewaykum Indian Band v. Canada, 2003 SCC 45, at para. 77; R. v. S.(R.D.), at para. 114, per Cory J. As Cory J. observed in R. v. S.(R.D.):

. . . allegations of perceived judicial bias will generally not succeed unless the impugned conduct, taken in context, truly demonstrates a sound basis for perceiving that a particular determination has been made on the basis of prejudice or generalizations. One overriding principle that arises from these cases is that the impugned comments or other conduct must not be looked at in isolation. Rather it must be considered in the context of the circumstances, and in light of the whole proceeding. [Emphasis added; para. 141.]

(Emphasis added.)

[45] To rebut the strong presumption, the evidence must be “cogent”. A party’s belief that the judge is or might be biased is not sufficient. The evidence must be “serious and convincing”. See Hu v. Lee, 2023 BCSC 794 for a summary of the evidentiary burden and considerations on a motion to recuse:

[13] The party alleging bias bears the burden of establishing that the circumstances justify disqualification: Wewaykum Indian Band v. Canada, 2003 SCC 45 at para. 59. This bar is high, due to the strong presumption of impartiality. The test is not “whether a judge’s previous decision was right or wrong, or viewed favourably or unfavourably by counsel or their clients”: R. v. Anderson, 2017 BCCA 154 at para. 12. Nor is the test what an individual plaintiff believes or has concluded: Siemens v. Howard, 2016 BCSC 2700 at para. 17. Rather, the grounds on which bias is alleged must be serious and convincing: N.R.G. v. G.R.G., 2017 BCCA 407 at para. 66. It requires “cogent evidence”, or a real likelihood or probability of bias: Yukon Francophone School Board, Education Area #23 v. Yukon (Attorney General), 2015 SCC 25 at para. 25; R. v. S.(R.D.), [1997] 3 S.C.R. 484 at para. 112, per Justice Cory [S. (R.D.)]; Wewaykum Indian Band v. Canada, 2003 SCC 45 at para. 76.

[46] Judges must not give in to unfounded allegations of conflict or bias. To do so brings the administration of justice into disrepute.

[16] A judge must not remove themselves too quickly. As explained by Justice Marzari in Lesiczka v. Lesiczka (A.B. v. C.D. and E.F. (Re)), 2019 BCSC 1057:

[10] A judge who is too eager to recuse oneself without an adequate evidentiary basis to establish a real apprehension of bias could damage the public respect for the administration of justice. Not only does it contribute to delay in proceedings, but it impacts greatly on the issue of whether justice is seen to be done and the integrity of the justice system: See R. v. S. (R.D.), [1997] 3 S.C.R. 484 at para. 113.

[11] Judges are entrusted with the duty of carrying out their judicial duties with integrity and impartiality. Acceding too quickly to suggestions of bias encourages parties, and the public, to believe that a different judge would be more likely to decide in their favour. Judges are expected to, and do, take their oaths when they become judicial officers very seriously. This is why the threshold for proof of bias is high.

(Emphasis added.)

See also Beard Winter LLP v. Shekhder, 2016 ONCA 493 at para. 10.

[18] There is no legal “test” for recusal: Skyllar v. Skyllar, 2022 BCCA 138 at para. 22, quoting from Quinn v. Canadian Red Cross Society, 2006 BCCA 255 at para. 44. A judge must take care not to recuse themselves without good reason. In determining whether to recuse oneself, a judge must consider their duty to hear the case assigned to them. As Justice Groves summarized in Lesiczka v. Lesiczka (A.B. v. C.D. and E.F. (Re)), 2019 BCSC 1057 at para. 21, “the tendency of judges to err on the side of caution by recusing themselves when they are not truly disqualified is tempered by a judge’s duty to hear cases that come before him or her”: see also, De Cotiis v. De Cotiis, 2004 BCSC 117 at paras. 10–11. Allowing one party to unilaterally determine that a particular judge will not hear their case could also bring the administration of justice into disrepute.

(Emphasis added.)

[47] In Beard Winter LLP v. Shekhder, 2016 ONCA 493 at para. 10 deserves being repeated in full:

[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.

(Emphasis added.)

a) The Outstanding Appeal does not establish a Conflict/Bias

[48] At the heart of Mr. D’Mello’s recusal motion is a conflict arising from a proceeding he brought – one to recuse me, which application was dismissed, but is now under appeal.

[49] If a litigant can bring a proceeding against a judge and that proceeding constitutes bias or reasonable apprehension of bias (or even some evidence of bias or apprehension of bias) upon which to require a judge to recuse themselves, then it would be open to all litigants to easily and effectively remove or disqualify any judge from their proceeding. Not only would this encourage objectionable litigation tactics, it would also create a scheduling chaos, and bring the administration of justice into disrepute.

[50] The primary ground advanced by Mr. D’Mello is that I should have consented to extend the time for perfecting the appeal. There is no obligation in law to consent in such circumstances, particularly where the failure to perfect the appeal was the fault of Mr. D’Mello.

[51] Further, I note that J. Daley released his reasons on February 8, 2023 and by July 2023, Mr. D’Mello had only filed a Notice of Appeal and taken no steps to perfect his appeal. One must also consider Mr. D’Mello’s conduct leading up to the Recusal Application which is the subject of the appeal:

a) failing to attend the scheduling/timetabling on September 15, 2022; b) failing to file responding materials to the motion to strike. c) seeking an adjournment the day before the hearing; and d) failing to attend on the return of the Recusal Application on January 26, 2023, a date agreed upon by Mr. D’Mello.

[52] It would be shocking to the public and a reasonably objective person that, Mr. D’Mello, having brought the Recusal Application, did nothing further in that application and could rely on the Recusal Application as evidence of a conflict or bias.

[53] An objective and reasonable person would also consider Mr. D’Mello’s past unsubstantiated allegations of bias against me and other judges as an indication that he brings such applications he simply does not like the rulings or decisions of the particular judge. Or to delay the proceedings.

[54] An objective and reasonable person would also consider Mr. D’Mello’s actions to delay these proceedings, including the various attempts to delay this proceeding today through the various adjournment requests to delay this recusal motion and the disclosure motions.

[55] I am not persuaded that a reasonable and objective person would accept that, in these circumstances, Mr. D’Mello’s appeal creates a conflict of interest nor that there is any evidence of an actual or a reasonable apprehension of bias which requires me to recuse myself.

b) Allegations of prior bias conduct

[53] Let me now turn to Mr. D’Mello’s other alleged evidence of actual or apprehension of bias and why such allegations do not establish any evidence, let alone clear and convincing evidence of bias or apprehension of bias. Nor does the alleged evidence meet Mr. D’Mello’s onus on this motion.

c) This is a continuation of a pattern to delay by Mr. D’Mello in this proceeding:

[54] As found by J. Petersen, when dealing with the Mareva injunction that: “The defendants are responsible for the overwhelming bulk of the inordinate delay in this proceeding.”

[55] Justice Daley found that:

[51] Further, the practical effect of an adjournment would simply be to allow D’Mello to continue his campaign of stonewalling and delay in the underlying litigation with these meritless claims. Again, this conclusion favours the denial of the adjournment request.

[56] Mr. D’Mello’s attempted to delay the disclosure motions today by bringing this motion late the afternoon before the hearing (like the attempted delay before J. Daley) so that no proper response could be provided by the Plaintiff. Mr. D’Mello, this morning, did everything he could to delay the disclosure motions from going ahead.

d) The issue of bias has been raised by Mr. D’Mello repeatedly and historically

[57] After an adverse order from Justice Dennison, Mr. D’Mello brought a motion to declare her order “void ab initio” for making a “draconian order” when granting an interim Mareva injunction.

[58] The full hearing of the Mareva injunction was then scheduled to be heard before J. Shaw. Mr. D’Mello, after an adverse scheduling ruling by J. Shaw, Mr. D’Mello accused her of bias.

[59] On February 16, 2021, Mr. D’Mello’s counsel announced, by email to the court, that he was going to bring a motion to recuse J. Shaw.

Further to Justice Shaw's Endorsement, please find attached a Notice of Motion for the recusal of Justice Shaw. As no returnable date has been scheduled, I am unable to file this Notice of Motion with the JSO Portal, therefore I would again ask Ms. Powers to assist in filing this Notice. I can undertake to pay any requisite Court Filing Fees in the manner required of me.

[60] Mr. D’Mello’s then counsel, Mr. Robson, wrote directly to the court complaining of J. Shaw’s decision. My letter of April 8, 2021 to Mr. D’Mello’s counsel, copied to the LSO, is set out below and it contains the contents of Mr. Robson’s email:

April 8, 2021

Mr. Paul Robson sent via email to: paulrobsonlaw@aol.com

On April 6, 2021, Justice Shaw’s judicial assistant requested your availability for a conference call on April 15th or 16th at 9 a.m. Nothing else.

Good evening,

Justice Shaw has advised under the circumstances she will schedule a conference call. I am able to offer either April 15 or 16 th at 9 am.

Please advise which date will work for both of you.

Thank you,

Your responding email to the court dated April 6, 2021 at 5:32 p.m. has been brought to my attention. A copy of the communication is set out below:

NO.

Look at the optics. We have a judge who has lost jurisdiction wanting to continue to sit on a new narrative and a lawyer who has not filed any responding material in response to a serious negligence claim against him notwithstanding the passage of oodles of time and wanting a medical adjournment without a shred of evidence to support his request. Many lawyers would want to head for the hills in that lawyer's position.

It is totally unfair to my client with a 2 year Mareva and I will not abide it.

Justice Shaw should recuse herself asap and a new judge should take charge and demand appropriate evidence.

Paul Robson

Your responding email goes well beyond setting out your availability and is entirely improper and contrary to the Rules of Civil Procedure and Rules of Professional Conduct. Rule 1.09 of the Rules of Civil Procedure provides:

1.09 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 case management master 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.

As a lawyer, you are fully aware that you are not to write to the court regarding matters before the court. Your email makes statements regarding serious and substantial issues, such as lack of jurisdiction and makes disparaging comments against opposing counsel.

Next, you go on to state you will “not abide” by the court’s Mareva order. This is a shocking statement from a member of the Law Society of Ontario.

Then, you go on to request that Justice Shaw immediately recuse herself. As you know this issue should be dealt with in a motion with evidence. To raise it, in the matter you did, is suggestive of an attempt to intimidate Justice Shaw or to obtain the appointment of another judge.

None of these statements are proper or appropriate from a lawyer representing a litigant in an email to the court.

You are hereby directed not to send any further communications to this court except to respond to, and only respond to, matters specifically requested by this court.

A copy of your email and this response is being sent to the Law Society of Ontario.

Sincerely,

Leonard Ricchetti RSJ Central West Region

cc: Law Society of Ontario

[61] Mr. D’Mello’s then counsel, on June 30, 2021, brought a motion to set aside the interim Mareva injunction, alleging that the above letter constituted improper interference by me with the result that J. Shaw’s decision should be set aside as a nullity and the matter should be heard de novo.

[62] Mr. D’Mello and his prior counsel relied on my April 8, 2021 letter as demonstrating that I was either biased or had a reasonable apprehension of bias.

[63] On November 19, 2021, Mr. D’Mello’s counsel objected to me “having anything to do with these matters” due to the improper involvement, being the letter set out above, advising that a complaint had been filed with the Judicial Council and “any attempt by him to further engage will be a violation of rule of judicial conduct”. Mr. D’Mello had reported me to the Ontario Judicial Council and the Canadian Judicial Council. And used those complaints as evidence of bias before J. Daley.

[64] The motion to recuse J. Shaw was never pursued by Mr. D’Mello. It had achieved its apparent purpose – another judge was scheduled to hear the motion – J. Petersen.

[65] It is important to note that Mr. D’Mello’s actions and claims resulted in almost 2-year delay in hearing the Mareva motion on its merits. After the hearing, Justice Petersen upheld the issuance of the interim Mareva injunction granted by J. Dennison.

[66] Mr. D’Mello, after losing the motion before J. Petersen in 2022, accused her of bias and commenced an application against her.

[67] The delays continued in late 2022.

[68] In order to get this matter focused on a trial, case management was taken over by me, the Regional Senior Justice, responsible for scheduling in the Central West Region.

[69] In 2023 alone, there have been various attendances and motions before me in these proceedings such as ordering that the four proceedings be heard together, such as ordering the examinations for discovery. There have also been very recent attendances before me, including as recent as June 14, and July 18, 2023. On June 14, 2023, Mr. D’Mello participated and agreed to the scheduling of the various motions to be heard including the disclosure motions. Except for the Recusal Application, which had been dismissed, and until this motion was brought the day before the disclosure motions, there was no indication that Mr. D’Mello sought or intended to seek that I recuse myself from this or any of the related proceedings.

Conclusion

[70] In these circumstances, in my view, a reasonably objective observer, with knowledge of the circumstances, would give no weight to the claims of bias nor reasonable apprehension of bias advanced by Mr. D’Mello.

[71] Nor would such an objective observer conclusion there was bias or a reasonable apprehension of bias by me in dealing with these proceedings.

[72] I expressly reject any suggestion that, by writing to counsel, in this case Mr. Robson about his clear improper communications to the court, even if copied to LSO, demonstrates or is evidence of bias or an apprehension of bias.

[73] As for Mr. D’Mello’s relief that he seeks to move these files out of the Central West Region, he must comply with the Rules by bringing a motion to the RSJ (or the RSJ’s designate) in the “receiving” region. He is free to do so. I make no comment on this motion such a motion if it is brought. However, I note:

a) Mr. D’Mello’s counsel on November 19, 2021 advised that a Rule 13 motion to move the matter to Toronto would be “filed shortly”. There is nothing in the record that suggests such a motion was brought. b) The Plaintiff sought to move these proceedings to the Commercial List in Toronto in March 2022 on the basis that the Defendants (including Mr. D’Mello) were unduly delaying this proceeding by bringing motion after motion. That request to transfer was denied. c) In the case conference before me on February 10, 2023, Mr. Robson, on behalf of Mr. D’Mello, expressly advised the Defendants wished to proceed in Brampton with various motions.

Costs of the Recusal Motion

[74] Either party seeking costs may submit written submissions, within two weeks, limited to 3 pages PLUS any Offers and authorities.

[75] A party against whom costs are claimed, may submit responding written submissions, within two weeks, limited to 3 pages PLUS any Offers and authorities.

[76] There will be no reply submissions.

The Claims by the Plaintiff

[77] The Plaintiff’s actions stem from mortgage enforcement activities of 970 Canada and 110 Canada in relation to the Plaintiff’s properties located at 3284 4th Line in Bradford, Ontario (“the Bradford Land”) and 11 Royal Terrace Crescent, Bolton, Ontario (“the Caledon Land”) (jointly referred to as the “Lands”).

[78] The Plaintiff’s claim is that Mr. D’Mello engaged in fraudulent dealings with the Lands including three Power of Sale transactions, orchestrated by Mr. D’Mello, that were neither bona fide nor between non-arms length parties, in order to financially benefit at the expense of the Plaintiff.

[79] The Plaintiff alleges that both 970 Canada and 110 Canada are corporations under the control of Mr. D’Mello and that D’Mello is the alter ego of the D’Mello Corps.

[80] The Plaintiff’s claim seeks to set aside and unwind the sale of the Bradford Land by 970 Canada under a Power of Sale to the 115 BC defendant whose principal is Mr. Kullar. In that sale 11039342 Canada Corp. (NOTE THE DIFFERENT CORP) allegedly took back a “vendor take back” mortgage on the sale. The purchaser subsequently defaulted on this mortgage. This resulted in a further power of sale, this time by 11039342 Canada Corp who sold it with a 100% “vendor take back” to a tenant. There are more details below.

[81] The Plaintiff also seeks to set aside or unwind the sale of the Caledon Lands by 970 Canada under a purported Power of Sale to the Bangia defendant. A mortgage was placed on the Caledon lands by a corporation (Canguard) which corporate entity did not appear to be registered and only recently appeared by counsel for a limited purpose. This mortgagee has since taken possession of the Caledon Lands. There are a number of subsequent dealings with the Caledon Land questioned by the Plaintiff as evidence of the lack of bona fides and non arms length dealings.

[82] The Plaintiff seeks to pierce the corporate veil of the D’Mello’s Corps. The Plaintiff alleges that both 970 Canada and 110 Canada are corporations under the control of Mr. D’Mello and that Mr. D’Mello is the alter ego of both corporations.

[83] As described above, the Bradford Land went through a further power of sale by a D’Mello Corp. In July of 2019, 110 Canada sold the Bradford Property under a second time Power of Sale while motions were outstanding in relation to that property. A mortgage went on title by 11039342 Canada Inc. for $750,000 but that company allegedly has no bank account and its alleged principals have failed to attend for discoveries. This company, 110393242 Canada Inc. was incorporated by Mr. D’Mello on the same day that 110 Canada was incorporated.

[84] The legal or beneficial ownership of the corporations involved in the 3 Powers of Sale transactions is an issue as no shareholder registries or resolutions have been produced. I am satisfied the legal and beneficial ownership of the three corporations involved in the three power of sales are relevant to the bona fides and whether the transactions were at arm’s length.

[85] The monies flowing from the three power of sale proceedings were all through D’Mello’s trust account of his personal law firm. As a result, the financial information relating to the three transactions are relevant to the bona fides and whether the transactions were at arm’s length.

[86] The Plaintiff was granted a CPL on both Lands.

[87] On July 23, 2019, an interim Mareva injunction was granted, preventing Mr. D’Mello and 115 BC Corp. from dealing or dissipating assets in which they have a direct or indirect interest.

[88] On August 30, 2019, J. Daley ordered the disclosure off all bank accounts and records with respect to the power of sale transactions, including the mortgages involved in those transaction.

[89] Disclosure of the details of the transactions remains woefully incomplete.

Analysis of the Plaintiffs’ Disclosure Motion

The Position of Mr. D’Mello to the Plaintiff’s Disclosure Motion

[90] Mr. D’Mello failed to deal with the individual questions which were refused or were taken under advisement. He made no submissions on the Undertakings and/or Refusals. Instead, Mr. D’Mello made the following generic submissions:

a) Some of the questions related to the Mareva order rather than proper discovery questions. b) Some of the questions were overly broad (i.e. all corporate records). c) The fact that he produced documents in his Affidavit of Documents regarding the third power of sale transaction should not be taken as meaning that he considered the third power of sale transaction relevant to the proceeding as Mr. D’Mello would now seek to withdraw any such documents.

[91] Mr. D’Mello at one point suggested that he would amend his Affidavit of Documents. That is up to him. However, I am not prepared to delay the production of any disclosure in this five-year-old action until that is done. All documents ordered to be produced herein shall be produced within 30 days from the date these reasons are released.

Disclosure of all Mr. D’Mello and D’Mello Corps.’ Assets

[92] I dismiss this part of the Plaintiff’s motion.

[93] The Mareva Order did not provide for the complete disclosure of all assets of Mr. D’Mello and the D’Mello Corps. Despite the fact a typical provision in a Mareva order includes complete disclosure of assets, I am not prepared to imply such a term.

[94] To the extent that there were previous undertakings given by Mr. D’Mello on this subject, they should be answered as Mr. D’Mello undertook to provide this financial information.

[95] However, aside from any outstanding undertakings (i.e. refusals), the Plaintiff cannot properly ask for details of Mr. D’Mello’s assets and how he has dealt with those assets to date as part of this disclosure motion. This information is not relevant to the issues to be tried.

[96] The fact that the Plaintiff asserts there is reason to believe that Mr. D’Mello and the D’Mello Corps. have breached the Mareva Order, is also not before me.

[97] This part of the Plaintiff’s motion may be brought back if the Plaintiff so chooses to pursue this remedy. Such a motion should be a motion to amend the Mareva Order rather than as a disclosure motion.

Some general comments:

Third Power of Sale Transaction

[98] Mr. D’Mello objects to the production of documents or information regarding the third power of sale as not relevant because he says it was not pleaded. 110 Canada’s subsequent dealings with the Bradford Lands, within one year of exercising its power of sale are relevant to the bona fides and arm’s length nature of the first and second power of sale.

[99] Besides, 110393242 Canada Corp took a VTB when 970 Canada was the mortgagee selling under the power of sale – and both are connected to Mr. D’Mello.

[100] Further, the Plaintiff claims a return of the Bradford Lands, and hence the bona fides and nature of the subsequent transaction, whether that sale by 110393242 Canada Corp was to an innocent third party without notice may figure highly relevant to the relief sought by the Plaintiff.

[101] I am satisfied the third power of sale transaction is relevant to the issues to be tried.

Corporate Records from the D’Mello Corps.

[102] I am satisfied that that, given the allegations of piercing the corporate veil, that the D’Mello Corps. are alleged to be the alter ego of Mr. D’Mello and the D’Mello Corps. were used to perpetrate the alleged fraud, the following portion of the corporate records of the D’Mello Corps. are clearly relevant:

a) The complete shareholder register; b) The Articles of Incorporation; c) The ByLaws; d) All minutes or resolutions in any way relating or referring to any of the three transactions including the financing, enforcement, receipt/disbursement of monies and any subsequent financial dealings by the corporations with any of the three transactions; e) The financial records of the corporations from 6 months prior to the first of the three transactions until today; f) Any document in the Corporate Records referencing the dealings with the Calendon and Bradford Lands such as the authorization, reasons for, financing, the vendor take back in any way relating to the Lands or any of the three powers of sale.

Mr. D’Mello Trust Account Ledgers and Documents

[103] There is no dispute that the funds received/disbursed for the three powers of sales, all went through Mr. D’Mello’s trust accounts for his law firm.

[104] The actual trust ledgers and documentation (such as cheques, bank drafts and other monetary documentation) showing the receipt and disbursement of funds for the three transactions are relevant to the Plaintiff’s allegation that the transactions were fraudulent, not bona fide, not arm’s length and should be set aside.

[105] The fact that Mr. D’Mello alleges that the transactions were legal and bona fide to third parties, adds to the relevancy of the ledgers and documentation sought.

[106] The relevancy is not only limited to the D’Mello Corps. but also to Mr. D’Mello and his firm, and any financial documents that he personally has in his power, possession or control relating to any of the three transactions.

[107] To the extent that D’Mello’s account ledgers and other financial documentation refer to the authorizations, receipt and disbursement of any funds in any way relating to the three transactions and/or vendor take back mortgages, or any subsequent financial dealings with the Lands through Mr. D’Mello’s accounts are relevant to the issues to be decided in this proceeding.

The Specific Questions

Undertakings

[108] There were no submissions made nor dispute raised by Mr. D’Mello regarding the undertakings given at his examination on July 8, 2020. These are set out in Schedule A to the Plaintiff’s Notice of Motion.

[109] Accordingly, to the extent these undertakings remain unanswered, they must be answered within 30 days. Further, Mr. D’Mello (in his personal capacity and on behalf of the D’Mello Corps.) must attend within 30 days thereafter to answer any reasonable and relevant questions that flow from the answers to the undertakings.

Refusals

Feb 16, 2023 examination of Mr. D’Mello:

[110] Q 38 p 10 – the identity of the owners of the D’Mello Corps. For the reasons set out above, the identify of the shareholders (legal and beneficial) and hence direct or indirect owners/shareholder of the D’Mello Corps. is relevant to this proceeding. This includes who, if any one else, directed Mr. D’Mello to incorporate the D’Mello Corps. and 1103934 Canada Inc. if he (or his family members) are not the beneficial shareholders. The answer is relevant as to the dealings with the subject properties. ANSWER

[111] Q 55 p 13 - ANSWER – same as Q 38 p 10 but for 110 Canada Corp.

[112] Q 57 p 14 – ANSWER – for reasons set out above, the identity of the shareholders or beneficial owners of the D’Mello Corps. are relevant but only for the period set out above.

[113] Q 160 p 37 – The Q was whether there was any evidence as to when the Mortgage Commitment was first generated as the computer has since been disposed of. If this is available in the D’Mello records, it should be provided as it is relevant to the bona fides of the mortgages used for the power of sales. ANSWER

[114] Q 278 p 68 – ANSWER for the reasons set out above, the trust ledgers for D’Mello’s law firm from January 2017 to date are relevant BUT ONLY RELATING TO THESE PROPERTIES, THE THREE TRANSACTIONS AND/OR THE MORTGAGES AND/OR THE LANDS.

[115] Q 281 p 68 – The Q was for the date upon which the monies were deposited for the 970 Canada mortgage should become apparent when the trust ledger for the transaction is disclosed in Q 378 p 68. ANSWER

[116] Q 473 p 110 – Alice D’Mello signed documents to transfer the Bradford and Caledon Lands in February 2018. The Q asked who Alice D’Mello was in relation to Mr. D’Mello. Relevant to ownership and bona fides of the transactions at issue. ANSWER

[117] Q 479 p 111 – ANSWER for same reasons as Q 473 p 110

[118] Q 577 p 132 – The question relates to production of D’Mello’s bank statements to support his trust ledger entries. I accept that the source of funds and dates received for the three transactions are relevant. ANSWER BUT only those relating to any dealings with the three transactions including dealings with the subsequent mortgages. This will include Mr. Singh’s deposit cheque of January 23 and the payouts of the VTBs.

[119] Q 728 p 170 – 110 Canada sold Bradford and 1103942 Canada Inc. provided financing. Both companies were incorporated on the same day by Mr. D’Mello. Whether it was Mr. D’Mello who incorporated both companies on October 11, 2018, and who the shareholders and/or beneficial owners is relevant to the bona fides of the sale and financing. ANSWER

[120] Q 750-3 p 177 – the question was whether there were any discussions in the spring of 2019 to bring the VTB mortgage back into good standing. Whether there were any attempts or discussions to bring the VTB mortgage back into good standing is relevant to the bona fides and/or arms length transaction. ANSWER

[121] Q 756/758/759 p 177-179 – In my view, I am not persuaded that whether Mr. D’Mello knew Mr. Kassiedass or had met him or knew he had rented the property bears on the issues to be decided. Mr. D’Mello’s dealings with 115 BC Corp. is relevant. But Mr. Kassiedass nor 115 BC Corp. have been shown to be controlled by Mr. D’Mello. REFUSED.

[122] Q 760 p 178 - REFUSED same reasons as last group of questions regarding Mr. Kassiedass.

[123] Q 761 p 178 – REFUSED – The Q asks for reasons Mr. D’Mello sold to First National. I fail to see how this is relevant to Mr. D’Mello’s dealings with the property.

[124] Q 764/765 p 179 – REFUSED – The Q asks whether Mr. D’Mello knows two specified individuals. It is not clear what the relevance is as to whether he does or doesn’t know those person? Knowing who a person is not relevant to whether the sale was a bona fide arms length transaction.

[125] Q 782 p 182– This is a Mareva question- REFUSED – see reasons above.

[126] Q 785 – p 183 – ANSWER for the same reasons set out above relating to the bank statements, minute books for the D’Mello Corps. subject to the time limitations and parameters set out above.

Under Advisements

Examination of Mr. D’Mello February 16, 2023

[127] Q 52 page 13 – Whether Mr. D’Mello has a beneficial interest in the D’Mello Corps., what that interest is, if his family members have any interest in the D’Mello Corps., if someone else who instructed those companies to be incorporated, are all relevant to the bona fides of the transactions and who benefits from the transactions. ANSWER

[128] Q 169 p 40 – The question is whether Mr. D’Mello has information as to when Mr. Sapusak first received the Commitment Letter. REFUSED. This is not relevant to the issues.

[129] Q 184 p 44 – REFUSED – same as Q 169 p 40.

[130] Q 451-462 p 106-107 – ANSWER what instructions and information Mr. D’Mello gave to the property management company during the mortgage, during the power of sale are relevant to the mortgagee’s bona fide dealings with the lands.

[131] Q 487 p 114 – Given Mr. D’Mello’s reasons for selling the lands quickly (back of the lack of insurance coverage), any of Mr. D’Mello’s dealings and discussions with other insurance providers is relevant given the rationale for the quick sale. ANSWER

[132] Q 491- 495 p 115-116 – ANSWER – Mr. D’Mello’s dealings with the appraiser regarding these two properties are relevant to the bona fides of the transaction.

[133] Q 510-512 p 120 – These Qs relate to obtaining information as to when/who/ dealings by the property manager with the Lands (i.e. when Mr. D’Mello received photos of the lands). I am satisfied these questions are relevant. ANSWER

[134] Q 519 p 122 – This Q seeks to have Mr. D’Mello produce digital copies of emails with a prospective purchaser. There is an issue regarding the timing of these discussions and the digital copy will be more accurate than a time stamp placed on the documents at some later time by an unknown person. ANSWER

[135] Q 562 p 130 – The question was to advise the basis of the decision to list the Caledon Property for $600,000. This goes directly to the bona fides of the power of sale. ANSWER

[136] Q 579/580 – These Qs related to a very substantial increase in the Agreement of Purchase and sale from $350,000 to $450,000 AFTER the agreement had been signed. The reasons for the increase are relevant to the bona fides of the sale and, in particular, the sale by the mortgagee. ANSWER

[137] Q 593/594 p 136 – This Q asks why Mr. D’Mello did not provide the lender financing to a purchaser. I fail to see the relevance of the speculative question. REFUSED

[138] Q 641 p 149-150 – This Q asks whether Mr. D’Mello had a discussion with the project manager about doing an appraisal prior to the sale. This is relevant to the bona fides of the transaction by a mortgagee under a power of sale. ANSWER

[139] Q 648 p 151 – This Q asks how the sale price of the Bradford lands was arrived at. This is relevant to the bona fides of the transaction by a mortgagee under a power of sale. ANSWER

[140] Q 697 p 163 – This Q asks for details about the amount claimed by the mortgagee. This is relevant to the actions of the mortgagee in the power of sale. ANSWER

[141] Q 708 p 165 – This Q asks whether Mr. D’Mello and Mr. Forgione (APEX) who is alleged to have improperly taken possession of the Lands, had previously worked together on mortgage financing. This is a speculative question. The issue is this transaction. REFUSED

[142] Q 709 p 166 – This Q asks whether Mr. D’Mello had acted for Mr. Forgione (or his companies, as his lawyer). This is a speculative question. The issue is this transaction. REFUSED

[143] Q 712 -714 p 166 – These are a series of questions involving Mr. D’Mello and Mr. Forgione (APEX). I am satisfied that the question whether Mr. D’Mello contacted Mr. Forgione about these Lands, when and what was discussed is relevant to the actions by D’Mello regarding the powers of sale. ANSWER

[144] Q 722 p 168 – This Q asks Mr. D’Mello to produce all communications with APEX/Forgione. The question is too broad. The question should be limited to written or oral communications with APEX/Forgione regarding these lands. ANSWER

[145] Q 769 p 180 – This Q asks whether Mr. D’Mello had any dealings with the Caledon lands after it was sold to Bangia. This is relevant to D’Mello’s dealings with the properties he sold and whether the transactions were bona fide. ANSWER

Conclusion

[146] Mr. D’Mello on his behalf and the D’Mello Corps. shall provide the answers and the documentation required by the above rulings to the Plaintiff within 30 days and is to attend for a further examination within 30 days thereafter to answer any relevant questions arising therefrom.

Analysis of Mr. D’Mello’s Disclosure Motion

[147] Mr. D’Mello seeks disclosure of the following:

• An Order for disclosure of Canada Post tracking information obtained by Plaintiff or his counsel of the registered letters containing the notice of sale dated November 20, 2017.
• An order that the Plaintiff provide utility bills from the time he was allegedly occupying the property between 2016 and 2017.
• An order that the Plaintiff provide a signed release authorizing Home Trust Company to release any report, pictures, or appraisal relating to the property at 11 Royal Terrace Crescent, Bolton.

[148] Part of the difficulty with Mr. D’Mello’s cross-motion is that he does not provide any reference to these questions (or any questions) to transcripts from the examination of the Plaintiff. In fact, neither transcripts nor references to transcripts have been provided by Mr. D’Mello.

[149] The other difficulty that Mr. D’Mello has is that the issues were answered in the Plaintiffs reply materials.

1. The Plaintiff confirmed that, neither he nor anyone on his behalf did any search of tracking with Canada Post. Part of the problem here is that the Power of Sale Canada Post receipts show the wrong postal code referring to Brantford rather than Bradford.
2. The Plaintiff states he does not have any utility bills.
3. The Plaintiff asked Home Trust for its documents in 2018 and everything the plaintiff received from Home Trust was produced in the plaintiffs Affidavit of Documents.

[150] On this basis, Mr. D’Mello’s cross-motion for disclosure is dismissed.

Costs of the Disclosure Motion

[143] Either party seeking costs may submit written submissions, within two weeks, limited to 3 pages PLUS any Offers and authorities.

[144] A party against whom costs are claimed, may submit responding written submissions, within two weeks, limited to 3 pages PLUS any Offers and authorities.

[145] There will be no reply submissions.

RSJ L. Ricchetti Released: September 11, 2023

COURT FILE NO.: CV-18-00001310-00; CV-19-00002122-00; CV-19-00003118-00; CV-19-00003248-00 DATE: 2023 09 11 SUPERIOR COURT OF JUSTICE - ONTARIO RE: CV-18-00001310-00 Chris Jamie Sapusak -and- 9706151 Canada Ltd., Roy D’Mello, 11037315 Canada Inc., 1152729 B.C. Ltd., Bangia Property Services Ltd., Apex Financial Corp., and 1824231 Ontario Inc. RE: CV-19-00002122-00 Nathali Aparicio-Martinez -and- Karen Pentilla and Daljeet Kaur Multani RE: CV-19-00003118-00 Chris Jamie Sapusak -and- 11039342 Canada Inc., Annageldi Durdyev. Eric Saldana, First National Holding Corp., Parduman Kassiedass, Amritpal Singh Kullar, Alice D’Mello and Davinder Singh RE: CV- 19-00003248-00 Chris Jamie Sapusak -and- Harcharan Kaur COUNSEL: N. Colcille-Reeces for the Plaintiff, for the Chris Jamie Sapusak R. D’Mello, Self-Represented, for the Defendant 9706151 Canada Ltd. and 11037315 Canada Inc. P. Robson, for the Defendants, 1152799 B.C. Ltd and Amritpal Singh Kullar ENDORSEMENT RSJ RICCHETTI Released: September 11, 2023