Budd (Stuart) & Sons Ltd. et al. v. IFS Vehicle Distributors ULC et al., (2016) 344 O.A.C. 255 (CA)

• Judge: Weiler, Epstein and Huscroft, JJ.A.
• Court: Court of Appeal (Ontario)
• Case Date: July 09, 2015
• Jurisdiction: Ontario
• Citations: (2016), 344 O.A.C. 255 (CA);2016 ONCA 60

Budd & Sons Ltd. v. IFS Vehicle Distr. (2016), 344 O.A.C. 255 (CA)

MLB headnote and full text

Temp. Cite: [2016] O.A.C. TBEd. JA.018

Stuart Budd & Sons Limited, 290756 Alberta Ltd., Saab on the Queensway Ltd., 798983 Ontario Inc., 9216-0415 Quebec Inc., 6847781 Canada Ltd., Forbes Saab and Used Car Shop Inc. and Springman & Springman Limited (plaintiffs/respondents) v. IFS Vehicle Distributors ULC, International Fleet Sales Inc., Michael Libasci and Peggy King (defendants/appellants)

(C58835; 2016 ONCA 60)

Indexed As: Budd (Stuart) & Sons Ltd. et al. v. IFS Vehicle Distributors ULC et al.

Ontario Court of Appeal

Weiler, Epstein and Huscroft, JJ.A.

January 21, 2016.

Summary:

The plaintiffs were eight car dealers, five based in Ontario and three non-Ontario based. Their action sought various forms of relief under the Arthur Wishart Act (Franchise Disclosure). The defendants included IFS Vehicle Distributors ULC, incorporated in British Columbia, and International Fleet Sales Inc., incorporated in California. The defendants brought a motion challenging the jurisdiction of the Ontario Superior Court to hear the action. Alternatively, the defendants asserted that if the claims were to proceed together in one action, the action should be heard in California.

The Ontario Superior Court, in a decision found at 2015 ONSC 519, denied the motion on April 23, 2015, without hearing argument on joinder and forum non conveniens. The motion judge advised that he would be delivering further reasons for purposes of any appeal from its decision. The defendants appealed and moved for a stay, pending the appeal. The defendants also sought an extension of time to perfect the appeal.

The Ontario Court of Appeal, per Epstein, J.A., granted a stay and an extension of time to perfect the appeal. On February 3, 2015, the motion judge released his reasons for appeal purposes, entitled "Amended Endorsement". As part of the decision, the judge criticized the defendants' conduct of the meritless motion and awarded the plaintiffs substantial indemnity costs. On appeal, the defendants challenged the motion judge's findings and conclusions relating to jurisdiction simpliciter and forum non conveniens. The defendants also asserted that the judge's comments and conduct during the course of the jurisdiction raised a reasonable apprehension of bias.

The Ontario Court of Appeal allowed the appeal and ordered a new trial where there was a reasonable apprehension of bias on the part of the motion judge.

Courts - Topic 583

Judges - Duties - Re reasons for decisions - The defendants brought a motion challenging the Ontario Superior Court's jurisdiction to hear the action against them - The motion judge adjourned the hearing on his own initiative to give the plaintiffs an opportunity to correct what he characterized as a fatal evidentiary flaw - The judge also made a number of comments that he referred to as his "preliminary yet strongly held views" - At the judge's request, further factums were filed to address the plaintiffs' new evidence and to make submissions on the issues of joinder, jurisdiction and forum non conveniens - When the hearing resumed, after a half day but before hearing argument on joinder and forum non conveniens, the judge issued brief reasons in which he dismissed the motion and referred to it as an "abuse of process" - The judge advised that he would be delivering further reasons for appeal purposes - The defendants appealed - Over nine months after dismissing the appeal, the judge delivered his reasons for appeal purposes - The reasons concluded by criticizing the defendants' conduct of the meritless motion and awarding the plaintiffs substantial indemnity costs - The Ontario Court of Appeal allowed the defendants' appeal and ordered a new trial - At various points, the motion judge conducted himself in a manner that gave the appearance that he favoured the plaintiffs' position - A reasonable observer could perceive the adjournment as the judge going out of his way to assist the plaintiffs - That perception was strengthened by his dismissive comments - At the second hearing, the judge decided the motion without allowing counsel to engage the court in oral argument on two important issues - His finding that the defendants had conceded that Ontario had jurisdiction simpliciter over the three Ontario defendants was troubling - The overall tenor of his remarks was derisive and suggested a view critical of jurisdiction motions and of the defendants' motion in particular - His findings that the motion was an abuse of process, made on his own initiative without the benefit of submissions or reference to any legal authorities, was unwarranted - In all three endorsements, he repeatedly criticized the defendants' counsel - In the delayed reasons for appeal purposes, he appeared to insinuate himself into the appeal process by attempting to defend his actions and his comments - It was an after-the-fact attempt not only to justify, but also to bolster his decision - The cumulative effect was that an informed, reasonable observer, viewing the proceedings as a whole, would conclude that the defendants did not receive a fair hearing - There was a reasonable apprehension of bias - See paragraphs 53 to 90.

Courts - Topic 590

Judges - Duties - Duty to appear just and impartial - The Ontario Court of Appeal stated that "Judges benefit from a presumption of integrity, which acknowledges that they are bound by their judicial oaths and will carry out their duties in accordance with their legal responsibilities ... In R. v. Arnaout [2015, ONCA] ..., this court described these responsibilities: 'A judge must both weigh the case impartially in his or her own mind and ensure that the circumstances objectively demonstrate his or her impartiality to an informed and reasonable observer.' ... Although judges enjoy the benefit of the presumption of integrity, the presumption can be rebutted by a judge's comments or conduct ..." - See paragraphs 45 and 46.

Courts - Topic 590

Judges - Duties - Duty to appear just and impartial - The Ontario Court of Appeal stated that "Delay in delivering further reasons, in and of itself, does not displace the presumption of integrity ... Moreover, a judge's knowledge of a pending appeal is just a factor to be taken into consideration ..." - See paragraph 80.

Courts - Topic 685

Judges - Disqualification - Bias - General - [See first Courts - Topic 590 and second Courts - Topic 691 ].

Courts - Topic 686

Judges - Disqualification - Bias - By trial judge - The Ontario Court of Appeal stated that "It is important to acknowledge from the outset that it takes much more than a demonstration of impatience with counsel or even unwarranted discourtesy to rebut the strong presumption of impartiality ... However, courts will be rightly troubled when a motion judge is consistently discourteous towards counsel for no apparent reason. Derisive remarks will therefore be relevant to the issue of bias ..." - See paragraphs 72 and 73.

Courts - Topic 691

Judges - Disqualification - Bias - Reasonable apprehension of bias - [See Courts - Topic 583 ].

Courts - Topic 691

Judges - Disqualification - Bias - Reasonable apprehension of bias - The Ontario Court of Appeal referred to the test for a reasonable apprehension of bias - The court stated that "The strong presumption of judicial impartiality is not easily displaced ... A reasonable apprehension of bias requires a 'real likelihood or probability of bias' ... The test is an objective one, viewed from the perspective of an informed and reasonable observer ... It is a high burden. ... Significantly, in assessing whether a judge's presumption of impartiality has been displaced, his or her individual comments or conduct during the hearing of a matter should not be considered in isolation but within the context of the entire proceedings ... The objective of the test is to ensure both the reality and the appearance of a fair adjudicative process. Both are essential to maintaining public confidence in our system of justice ... It is not normally possible to prove actual bias. If the impugned conduct or comments have the cumulative effect of raising a reasonable apprehension of bias, there is no need to consider the impact of the bias." - See paragraphs 47 to 50.

Practice - Topic 692

Judges - Disqualification - Bias - Arising out of expressed opinions on legal issues - [See Courts - Topic 583 ].

Practice - Topic 4960

Admissions - Concession on legal point or issue in dispute - The Ontario Court of Appeal stated that "It is important that concessions be clearly made and clearly identified as such ... This is because concessions attract serious consequences. What has been conceded is taken as proven without further evidence or argument." - See paragraph 66.

Practice - Topic 6035

Judgments and orders - Reasons for judgment after trial or application - Time for giving decision - [See Courts - Topic 583 ].

Practice - Topic 6037

Judgments and orders - Reasons for judgment after trial or application - Effect of giving judgment "with reasons to follow" - [See Courts - Topic 583 ].

Cases Noticed:

Van Breda et al. v. Village Resorts Ltd. et al., [2012] 1 S.C.R. 572; 429 N.R. 217; 291 O.A.C. 201; 2012 SCC 17, refd to. [para. 20].

405341 Ontario Ltd. v. Midas Canada Inc. (2010), 264 O.A.C. 111; 322 D.L.R.(4th) 177; 2010 ONCA 478, refd to. [para. 2].

R. v. Teskey (L.M.), [2007] 2 S.C.R. 267; 364 N.R. 164; 412 A.R. 361; 404 W.A.C. 361; 2007 SCC 25, refd to. [para. 45].

R. v. Arnaout (A.M.) (2015), 339 O.A.C. 379; 2015 ONCA 655, refd to. [para. 45].

Commission scolaire francophone du Yukon No. 23 v. Yukon (Procureure générale), [2015] 2 S.C.R. 282; 471 N.R. 206; 2015 SCC 25, refd to. [para. 70].

Committee for Justice and Liberty v. National Energy Board, [1978] 1 S.C.R. 369; 9 N.R. 115, refd to. [para. 47].

Cojocaru v. British Columbia Women's Hospital and Health Center et al., [2013] 2 S.C.R. 357; 445 N.R. 138; 336 B.C.A.C. 1; 574 W.A.C. 1; 2013 SCC 30, refd to. [para. 48].

Arsenault-Cameron et al. v. Prince Edward Island, [1999] 3 S.C.R. 851; 267 N.R. 386; 201 Nfld. & P.E.I.R. 1; 605 A.P.R. 1, refd to. [para. 48].

R. v. R.D.S., [1997] 3 S.C.R. 484; 218 N.R. 1; 161 N.S.R.(2d) 241; 477 A.P.R. 241, refd to. [para. 48].

Chippewas of Mnjikaning First Nation v. Ontario (Minister Responsible for Native Affairs) et al. (2010), 265 O.A.C. 247; 2010 ONCA 47, leave to appeal refused (2010), 409 N.R. 396 (S.C.C.), refd to. [para. 48].

Wewayakum Indian Band v. Canada and Wewayakai Indian Band, [2003] 2 S.C.R. 259; 309 N.R. 201; 2003 SCC 45, refd to. [para. 49].

National Trust Co. v. Bouckhuyt (1987), 23 O.A.C. 40; 61 O.R.(2d) 640 (C.A.), refd to. [para. 66].

Toronto (City) v. Canadian Union of Public Employees, Local 79 et al., [2003] 3 S.C.R. 77; 311 N.R. 201; 179 O.A.C. 291; 2003 SCC 63, refd to. [para. 69].

R. v. Power (E.), [1994] 1 S.C.R. 601; 165 N.R. 241; 117 Nfld. & P.E.I.R. 269; 365 A.P.R. 269, refd to. [para. 69].

Kelly v. Palazzo et al. (2008), 233 O.A.C. 160; 89 O.R.(3d) 111; 2008 ONCA 82, refd to. [para. 72].

R. v. Cunningham (K.) (2011), 281 O.A.C. 7; 106 O.R.(3d) 641; 2011 ONCA 543, refd to. [para. 80].

Counsel:

Matthew Latella and Sarah Petersen, for the appellants;

Andy Seretis, for the respondents.

This appeal was heard on July 9, 2015, by Weiler, Epstein and Huscroft, JJ.A., of the Ontario Court of Appeal. Epstein, J.A., released the following decision for the court on January 21, 2016.