



COURT OF APPEAL FOR ONTARIO

CITATION: Brummell v.
    Ontario (Attorney General), 2014 ONCA 828

DATE: 20141121

DOCKET: C58354

Hoy A.C.J.O., Epstein and Hourigan JJ.A.

BETWEEN

Gerald Guy Brummell

Appellant

and

The Attorney General for Ontario, Andrew Beatty,
    Darryl Foulkes, Commissioner Julian Fantino, Superintendent Ken Smith,
    Inspector George Miller, Inspector Pat Finnigan, Inspector Earl Johns,
    Inspector Carson Pardy, Mark Zulinski, Mike Smith,
Paul
    Beesley
, Chris Newton, Baldassare Nuccio, Brian Hollenbeck, Jayne
    Pellerin, Christina Reive, Vern Crowley, Al Doubrough, Dennis Desjardins, Brad
    Robson, Jon Bakelaar, Bernie Gaw, Kevin Knowack, Al OByrne, Conner Durkin,
    Jeff McKinnon, Brad Burkholder, Mark Allison, Don Davies, Troy Bellehumeur,
    Terry Penlington, Andrew Goad, Kevin Conner, Matt Casie, Tom Whittaker, Dan McAuley,
The City of Quinte West Police Services Board
,
Her
    Majesty the Queen in Right of Ontario

Respondents

Gerald Guy Brummell, appearing in person

Darrell Kloeze and Judith Parker, for the respondents

Heard: November 7, 2014

On appeal from the order of Justice Hugh K. OConnell of
    the Superior Court of Justice, dated January 20, 2014.

ENDORSEMENT

[1]

The appellant seeks to adjourn his appeal of the January 20, 2014 order
    of the motion judge striking out his claim without leave to amend and
    dismissing the action in its entirety. He also brings an application to have a
    CPIC statement that shows that certain charges against him were withdrawn
    before his criminal trial, admitted as fresh evidence.

[2]

The appellant argues  on the basis of the CPIC statement  that this
    appeal should be adjourned until this court reviews Rosenberg J.A.s December
    12, 2013 decision. In his decision, Rosenberg J.A. denied the appellant an
    extension of time to appeal his September 30, 2008 conviction on two charges of
    making false statements for the purpose of procuring a passport for other
    persons contrary to s. 57(2) of the
Criminal Code
, two charges of
    uttering forged documents in relation to the passports contrary to s.
    368(1)(b), one charge of obtaining credit by fraud contrary to s. 362(1)(b),
    and four charges of fraud contrary to s. 380(1).

[3]

The request for an adjournment and the application to have the CPIC
    statement admitted as fresh evidence are both dismissed. The CPIC statement is
    not relevant to the issues that were before the motion judge.

[4]

We therefore turn to the appeal.

[5]

As the respondents assert in their factum, the motion judge found that
    the appellants claim was fatally flawed, making allegations of malicious
    prosecution when the criminal proceedings had not been resolved in the
    appellants favour, raising allegations which were plainly and obviously beyond
    the limitation period, and seeking damages for causes of action which either do
    not exist or for which the material facts were, and could not be pleaded.

[6]

On appeal, the appellant argues that the motion judges order should be
    overturned because the respondents did not bring their rule 21 motion soon
    enough, two unissued draft amended Statements of Claim superseded the last
    issued claim, the motion judge made errors of fact, and the motion judge was
    biased against him.

[7]

In our view, this appeal is without merit.

[8]

There is no basis to interfere with the exercise of the motion judges
    discretion to hear and grant the rule 21 motion. Delay was understandable. The
    appellant continued to amend his claim. Further, it would be antithetical to
    the aim of litigation efficiency to insist that a claim that has no chance of
    success cannot be the subject of a rule 21 motion because of delay, and must be
    brought to trial.

[9]

The motion judge considered both the most recent claim filed by the
    appellant (the Second Amended Statement of Claim), a draft amended claim called
    the Fresh as Amended Statement of Claim,  and the most recent draft claim,
    served only the week before the rule 21 motion, and after the close of
    pleadings. The procedure the motion judge adopted was appropriate given the
    last-minute nature of the amendments and given that the appellant had not
    brought a motion to amend his claim after the close of pleadings or obtained
    the parties consent.

[10]

To
    the extent that the motion judge made any factual errors, they are clearly not
    overriding. As indicated above, the motion judge found that the claim was
    fatally flawed, no matter the form of pleading.

[11]

Finally,
    there is strong presumption of judicial impartiality. The appellant has not shown
    that, objectively, there was a reasonable apprehension of bias.

[12]

The
    appeal is accordingly dismissed. The appellant shall pay costs to the respondents
    in the amount of $4500, inclusive of disbursements and HST.

Alexandra Hoy A.C.J.O.

Gloria Epstein J.A.

C.W. Hourigan J.A.


