COURT OF APPEAL FOR ONTARIO
CITATION: Brunning v. Fontaine, 2019 ONCA 98
DATE: 20190211
DOCKET: M49852 (C65737) & M49512
Feldman, Lauwers and Nordheimer JJ.A.
BETWEEN
Fay Brunning
Requestor/Responding Party
(Appellant)
and
Larry Philip Fontaine, et al.
Plaintiffs
and
The Attorney General of Canada, et al.
Defendants/Moving Party
(Respondent)
Catherine A. Coughlan and Brent Thompson, for the moving party
Lawrence Greenspon, for the responding party
Heard: February 1, 2019
On appeal from the order of Justice Paul M. Perell of the Superior Court of Justice, dated July 4, 2018, with reasons reported at 2018 ONSC 4182.
REASONS FOR DECISION
[1] The moving party brings this motion to quash the responding party’s appeal from the order of Perell J. dated July 4, 2018, wherein he dismissed the respondent’s motion to recuse himself from making a decision regarding costs of a prior motion (the “recusal order”). The moving party’s position is that the recusal order is interlocutory, not final, and is only appealable to the Divisional Court with leave.
Background
[2] This issue arises in the context of the Indian Residential School Settlement Agreement claims process. On January 4, 2018, the motion judge released reasons addressing various issues raised in a Request for Directions brought by the responding party on behalf of her client. The decision went largely, but not entirely, against the responding party’s client: Fontaine v. Canada (Attorney General), 2018 ONSC 103.
[3] On January 15, 2018, the motion judge issued a Direction addressing the contents of various emails sent by the responding party to the court in which she expressed, in part, her disagreement with the January 4 decision: Fontaine v. Canada (Attorney General), 2018 ONSC 357 (the “January 15 Direction”). The motion judge then invited costs submissions with respect to the January 4 decision. The moving party submitted that costs should be paid personally by the responding party.
[4] The responding party asked the motion judge to recuse himself from the determination of the costs issue on the basis that there was a reasonable apprehension of bias arising from some comments that the motion judge had made respecting the responding party in the course of his reasons that led to the January 15 Direction. The motion judge refused to recuse himself: Fontaine v. Canada (Attorney General), 2018 ONSC 4182. The motion judge then proceeded to deal with the costs. In doing so, he ordered the responding party to pay costs personally in the amount of $25,000: Fontaine v. Canada (Attorney General), 2018 ONSC 4195 (the “costs order”).
[5] It is the recusal order that forms the subject matter of the appeal to this court. The moving party contends that the recusal order is an interlocutory order and therefore any appeal lies to the Divisional Court with leave: Courts of Justice Act, R.S.O. 1990, c. C.43, s. 19(1)(b). The responding party contends that the recusal order is final as it finally decides that the motion judge would decide the costs issue; thus the appeal lies to this court: Courts of Justice Act, s. 6(1)(b).
Analysis
[6] One of the leading cases on the difference between final and interlocutory orders is Hendrickson v. Kallio, [1932] O.R. 675 (C.A.). In that decision, Middleton J.A. said, at p. 678:
The interlocutory order from which there is no appeal is an order which does not determine the real matter in dispute between the parties – the very subject matter of the litigation, but only some matter collateral. It may be final in the sense that it determines the very question raised by the applications?, but it is interlocutory if the merits of the case remain to be determined.
[7] In support of her position, the responding party pointed to the oral endorsement of this court in Catford v. Catford, 2013 ONCA 56 where it appears that an appeal from a refusal by a judge to recuse herself was heard. We do not view that decision as determining the issue that is before us. The issue of jurisdiction was neither raised nor determined by the panel that heard that appeal.
[8] The responding party also points to the decision of this court quashing the appeal of the January 15 Direction: Brunning v. Canada (Attorney General), 2018 ONCA 1009. In the reasons, Doherty J.A. said, at para. 27:
As counsel for the appellant acknowledged in oral argument, the comments made by the Eastern Administrative Judge about the appellant's conduct in his January 15 Direction will be front and centre on the appeal from the recusal motion. They will also figure in the costs appeal, if leave is granted. The appellant will have her opportunity to challenge in this court the fairness of the process leading to the January 15 Direction and the merits of the comments made by the Eastern Administrative Judge about the appellant's conduct.
[9] The responding party submits that, in this passage, Doherty J.A. implicitly found that the appeal from the recusal order is properly before this court. We do not agree. The issue of the jurisdiction of this court to hear the appeal of the recusal order was not before the court and was not the subject of submissions by counsel, as counsel acknowledged.
[10] All that Doherty J.A. was pointing out was that there were other avenues that were potentially available to the responding party to seek review of the merits of the comments made about her conduct. On that point, we note that the issues surrounding the recusal order, particularly the allegation of a reasonable apprehension of bias, are all grounds that she has properly raised in her motion for leave to appeal from the costs order, and which the court deciding whether to grant the leave will have to consider.
[11] None of this changes the fact that the recusal order does not finally determine any substantive rights of the parties nor does it determine a substantive claim or defence in the matter before the court. It is thus an interlocutory order that may only be appealed to the Divisional Court, with leave. The substantive issue is whether the responding party ought to personally pay the costs of the January 15 Direction. That issue has been separately determined by the costs order and is the subject of an outstanding motion for leave to appeal to this court.
[12] During the course of the oral hearing, counsel for the moving party raised the issue that the motion for leave to appeal the costs order is not properly before this court because the amount involved is $25,000, although counsel’s position was that they were not pursuing the jurisdiction issue.
[13] The jurisdiction of this court by way of appeal from orders of the Superior Court of Justice is set out in s. 6(1)(b) of the Courts of Justice Act. It provides that this court has jurisdiction to hear an appeal from a final order of a judge of the Superior Court of Justice “except an order referred to in clause 19(1)(a)”. That exception applies to final orders, under s. 19(1.2)(a), for “a single payment of not more than $50,000”. The costs order is a final order. Given that it is for an amount under $50,000, this court does not have jurisdiction to hear the appeal. Any appeal lies to the Divisional Court. However, because it is a costs order, leave to appeal is required under s. 133(b) of the Courts of Justice Act.
[14] In the end result, both of these proposed appeals must be dealt with first in the Divisional Court. Neither of them is properly before this court. Consequently, both this appeal and the motion for leave to appeal the costs order must be quashed and the responding party must seek leave to appeal both orders from the Divisional Court.
Conclusion
[15] The appeal of the recusal order is quashed. The motion for leave to appeal from the costs order is also quashed. The moving party did not seek costs and none are ordered.
“K. Feldman J.A.”
“P. Lauwers J.A.”
“I.V.B. Nordheimer J.A.”