



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 partys
    appeal from the order of Perell J. dated July 4, 2018, wherein he dismissed the
    respondents motion to recuse himself from making a decision regarding costs of
    a prior motion (the recusal order). The moving partys 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 partys 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 counsels 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.


