



COURT OF APPEAL FOR ONTARIO

CITATION: McGregor v. Pitawanakwat, 2017 ONCA 77

DATE: 20170127

DOCKET: C60456

Laskin, Feldman and Hourigan JJ.A.

BETWEEN

Robert Joseph McGregor

Respondent (Applicant)

and

Mary Angela McGregor Pitawanakwat

Appellant (Respondent)

Nicole Marcus, for the appellant

Eric Hovius, for the respondent

Heard: September 6, 2016

On appeal from the order of Justice R. Dan Cornell of the
    Superior Court of Justice, dated March 11, 2015 and from his costs award dated
    May 22, 2015, reported at 2015 ONSC 3263, 2015 CarswellOnt 7616.

Laskin J.A.:

A.

Overview

[1]

The appellant, Mary Pitawanakwat, and the respondent, Robert McGregor,
    are sister and brother. Both are members of the Whitefish River First Nation,
    located in the district of Manitoulin. Their underlying dispute is over
    possession of a parcel of land  Lot 15  on the Whitefish reserve.

[2]

The parties parents owned Lot 15. In July 1988, they transferred
    possession of it to McGregor. A Certificate of Possession in his name was
    registered under the
Indian Act
, R.S.C., 1985, c. I-5.

[3]

In April 2010, Pitawanakwat moved into a house on Lot 15. She claims she
    is entitled to possession, because in 2009 her parents orally gifted the lot
    and the house to her, a gift they later confirmed by an addition to their will
    in February 2011. The parties father died in late 2011, and their mother died
    a few months later. After their deaths, Pitawanakwat continued to live on Lot
    15. She claims to have made improvements to the property in the rough amount of
    $29,000. But she paid no occupation rent.
[1]

[4]

Then, in January 2014, McGregor brought an application to determine
    possession of Lot 15. He eventually also sought an order evicting Pitawanakwat
    from the property. After numerous adjournments, the application was heard in
    March 2015. Although Pitawanakwat had had a lawyer, she chose to represent
    herself at the hearing.

[5]

The application judge found for McGregor and ordered Pitawanakwats
    eviction. He held that the Certificate of Possession registered in 1988 was
    valid. He found as a fact that there was no evidence to support Pitawanakwats
    allegation of an oral gift from her parents. And he noted that the addition to
    the will that Pitawanakwat relied on transferred Lot 14, not Lot 15. Finally,
    he concluded that neither the alleged gift nor the addition to the will could
    assist Pitawanakwats claim, because by then, her parents no longer had an
    interest in Lot 15  they had transferred their interest to McGregor. The
    application judge ordered substantial indemnity costs against Pitawanakwat of
    approximately $24,000.

[6]

On appeal, Pitawanakwat does not challenge the correctness of the
    application judges decision. She puts forward no argument to suggest that McGregors
    Certificate of Possession is invalid. Instead, her main submission is that she
    was denied a fair hearing.

[7]

She contends she was denied a fair hearing for two reasons: (1) the
    application judge unreasonably refused an adjournment to permit her to retain a
    lawyer, lead further evidence, and give notice of a constitutional question
    concerning the impact of Anishinaabe custom on the property provisions of the
Indian
    Act
; and (2) the application judges conduct of the hearing gave rise to a
    reasonable apprehension of bias.

[8]

Pitawanakwats secondary submission is that the application judges
    order for substantial indemnity costs was excessive and unfair. She seeks leave
    to appeal costs and an order setting aside the costs order.

B.

ISSUES

(1)

Was Pitawanakwat denied a fair hearing?

[9]

As I said, Pitawanakwats submission that she was denied a fair hearing
    rests on two planks: the application judge unreasonably refused an adjournment,
    and his conduct of the hearing gave rise to a reasonable apprehension of bias. I
    note a few preliminary points.

[10]

In assessing Pitawanakwats submission, I take into account that she did
    not have a lawyer at the hearing. The record shows that she did have a lawyer
    between November 2014 and February 2015, and apparently during this period, the
    parties had made progress toward settling their dispute. Why Pitawanakwats
    relationship with her lawyer broke down so soon before the hearing is unclear
    from the record.

[11]

But as well as taking into account Pitawanakwats self-representation, I
    also take into account her level of sophistication. In his costs endorsement,
    the application judge characterized her as follows:

The respondent is an intelligent and educated person. She
    indicated that she had attended Osgoode Hall Law School and that she had taught
    as a university professor. It was clear during the course of the proceedings
    that the respondent is quite familiar with the legal system as evidenced by the
    articulate manner in which she presented her case.

Pitawanakwat does not dispute the application judges
    characterization of her.

[12]

A final preliminary point is that the denial of a fair hearing is a free-standing
    ground of review. A correct decision cannot cure an unfair hearing, because the
    unfairness would taint the entire proceedings: see
R. v. S. (R.D.)
, [1997]
    3 S.C.R. 484, at para. 100.

(a)

The application judges refusal to grant an adjournment

[13]

An application judges decision whether to grant or refuse an
    adjournment is discretionary and thus attracts a high degree of deference from
    this court. In exercising this discretion, an application judge should take
    into account the interest of the applicant, the interest of the respondent, and
    the interest of the administration of justice in the timely resolution of the
    dispute:
Khimji v. Dhanani
, 182 O.A.C. 142, at para. 14. The
    application judge in this case took these interests into account, and his
    refusal to grant an adjournment was a reasonable exercise of his discretion. In
    support of his refusal, I make the following four points.

[14]

First, although in this court Pitawanakwat asserted she did not
    appreciate that the hearing would resolve entitlement to Lot 15, that assertion
    is at odds with the record. At no point during the hearing did she tell the
    application judge she did not understand he would be deciding the issue of
    possession of Lot 15. Moreover, early on in the hearing itself, she assured the
    application judge she could properly present her case.

[15]

Second, the application judges refusal to grant an adjournment has to
    be assessed in the context of the number of adjournments that had previously
    been granted. The application was brought in January 2014. In April 2014, it
    was adjourned to July to permit Pitawanakwat to retain counsel and file
    responding material. In July 2014, the application was adjourned to late
    September and then again to February 2015, before being finally heard on March
    11, 2015. By then, almost 14 months had elapsed since McGregor initiated his
    application. Throughout this entire period, Pitawanakwat continued to live in a
    house on Lot 15 without paying rent. The interests of McGregor and the
    administration of justice supported the application judges refusal.

[16]

Third, Pitawanakwats contention that she needed more time to raise
    constitutional issues does not withstand scrutiny. Soon after McGregor started
    his application, Pitawanakwat suggested there were constitutional issues that
    needed to be decided. These issues, she said, related to the interplay between
    the
Indian Act
and Anishinaabe custom. She discussed raising these
    constitutional issues in a case management conference with Del Frate J. on
    August 31, 2014. He gave her three weeks to serve a notice of constitutional question
    on the federal government. She did not do so. And she did not do so after the
    expiry of Del Frate J.s order, in the three months when she had a lawyer. Even
    in this court, she did not file a draft notice or put forward any argument that
    her constitutional issue had merit.

[17]

Finally, the application judge gave Pitawanakwat wide latitude to
    present her case, including allowing her to refer to certain documents that
    were not formally part of the record. In this court, though she had counsel,
    she did not seek to file fresh evidence or any further material that might have
    supported her position.

[18]

For these reasons, I would not give effect to Pitawanakwats submission
    that the application judge erred in refusing to adjourn the application.

(b)

Reasonable apprehension of bias

[19]

The threshold for showing bias is appropriately high. We presume judges
    will be impartial. We presume they will carry out their oath of office and act
    fairly to litigants. This high threshold requires cogent evidence to make out a
    claim of bias. The standard is objective. The test the party alleging bias must
    meet is whether an informed person, viewing the matter realistically, and
    having thought the matter through, would conclude that the trial or application
    judge would not decide the matter fairly:
Committee for Justice and Liberty
    v. Canada (National Energy Board)
, [1978] 1 S.C.R. 369, at p. 394.

[20]

This test recognizes that appearances count. Justice must not only be
    done, it must appear to be done. Thus, the test captures both actual bias,
    which is rarely alleged, and the appearance of bias, which is more commonly
    alleged and which is alleged on this appeal.

[21]

In assessing a claim alleging an appearance of bias, a reviewing court
    has to examine the judges conduct of the entire trial or hearing. Instances of
    alleged improper conduct must be considered cumulatively, but the odd
    inappropriate comment during the course of a long hearing will be unlikely to
    establish a reasonable apprehension of bias:
S. (R.D.)
, at para. 134.

[22]

In the present appeal, Pitawanakwat submits that the application judge
    made two sorts of comments that gave rise to a reasonable apprehension of bias:
    he made comments showing he had prejudged the case against her; and he made
    comments that were sarcastic and denigrated her and thus presumably showed his
    lack of impartiality. If made out, either sort of comment could give rise to a
    reasonable apprehension of bias. But my examination of the record leads me to
    conclude that the application judge neither prejudged the case nor treated
    Pitawanakwat unfairly. On the contrary, he conducted a fair hearing, and he
    gave Pitawanakwat a full opportunity to present her case, including trying to
    assist her in her presentation.

(i)

Alleged prejudgment

[23]

Pitawanakwat cites two examples to show that the application judge prejudged
    the case against her: early in the hearing, he commented justice delayed is
    justice denied; and later in the hearing, he had a lengthy dialogue with
    counsel for McGregor over the form of the order, should McGregor be successful
    on the application. Neither example supports Pitawanakwats argument.

[24]

The application judge made the comment justice delayed is justice
    denied in considering Pitawanakwats adjournment request. The comment was an
    appropriate consideration in determining whether to grant an adjournment. Also,
    right after refusing an adjournment, the application judge explained why he
    made the comment and then assured Pitawanakwat he had not already decided the
    case:

Let me provide you with my absolute assurance, Ms. Pitawanakwat,
    that I have not made up my mind about this proceedingI will put to you, you
    have completely misinterpreted my comment that justice delayed is justice
    denied. I simply put that forward as one of the competing considerations that I
    must take into consideration in assessing your request for an adjournment. So
    rest assured that I have not made up my mind in terms of the merits of this
    application.

[25]

A trial or application judge commonly discusses with counsel the form of
    the order sought if the client is successful. That the application judge did so
    in this case did not show prejudgment. He especially wanted the assistance of
    McGregors counsel, because Lot 15 was on an Indian reserve, and so the order,
    if granted, would have to take into account possession and ownership of reserve
    land.

[26]

I conclude that nothing in the record shows that the application judge
    had prejudged the case.

(ii)

Alleged sarcastic and denigrating comments

[27]

Pitawanakwat cited several of the application judges comments, which
    she maintains were sarcastic and denigrated her position. On appeal, we are
    reviewing the transcripts of the proceedings, so we cannot assess the tone of
    the application judges comments. But on reading them, none of the comments
    Pitawanakwat relies on reflects sarcasm or denigration of her position. One or
    two may show the application judges impatience, but nothing more.
    Cumulatively, they do not give rise to a reasonable apprehension of bias. Only
    a few require some explanation.

[28]

Pitawanakwat introduced her argument speaking in her native language,
    Anishinaabemowin, which she claims is required of women of Anishinaabe
    heritage. Before she finished her introduction, the application judge
    interrupted her and said: Ms. Pitawanakwat, lets not play games here, shall
    we. Still, the application judge let Pitawanakwat explain why she had begun
    her submissions in her native language. He was perhaps a little impatient and
    understandably frustrated, because, as he explained to Pitawanakwat, he did not
    understand her language, and she had not provided an interpreter. He asked her
    to make her submissions in English, and she did.

[29]

During the hearing, the parties had a lengthy discussion with the
    application judge about the requirements of the
Indian Act
for a
    transfer of land in 1988. Pitawanakwat seemed to suggest that the transfer to
    McGregor in 1988 required a band resolution, and there had been none.
    McGregors counsel pointed out that the requirement for a band resolution came
    into effect when the
Indian Act
was amended in 1994. Three of the
    application judges comments that Pitawanakwat relies on to make out her claim
    of bias occurred during this discussion about the requirements of the
Indian
    Act
.

·

Early on in the discussion, the application judge commented to
    Pitawanakwat: lets not beat around the bush, shall we. I mean there shouldnt
    be any room for argument in terms of what the statute required in 1988. In
    making this comment, the application judge was simply asking Pitawanakwat to
    directly address the point counsel for McGregor had made, that in 1988, no band
    resolution was required for a transfer of land under the
Indian Act
, as that requirement only
came into
    effect in 1994.

·

Later during the discussion, Pitawanakwat referred to her copy of
    the
Indian Act
. The application judge repeatedly asked her whether the
    copy she had reflected the provisions in effect in 1988. When she did not give
    a straightforward answer, he commented: I dont want to talk about should, if,
    would have, could have, its a black or white question, it either was or it was
    not. Again, the application judge was doing nothing more than trying to
    clarify the
Indian Act
s requirements for a transfer of land in 1988, and
    specifically, whether the band had to agree by resolution to the transfer to
    McGregor.

·

Pitawanakwat continued to avoid directly answering the
    application judges question as to whether a band resolution was required for a
    transfer in 1988. The application judge understandably commented: youre
    making this very difficult on me.

[30]

None of these comments, taken together, give rise to disqualifying bias.
    The hearing lasted nearly a full day. The application judge gave Pitawanakwat
    an opportunity to put forward all of her arguments. She was not denied a fair
    hearing. I would not give effect to her main ground of appeal.

(2)

Was the award of substantial indemnity costs excessive and unfair?

[31]

The application judge ordered substantial indemnity costs against
    Pitawanakwat in the amount of $24,383.82, inclusive of disbursements. Pitawanakwat
    contends that the award of substantial indemnity costs was excessive and
    unfair. She asks to set aside the costs award.

[32]

Pitawanakwat does not have a right to appeal the costs award. She must
    obtain leave of this court to do so. This court rarely grants leave, because
    costs orders are discretionary, and we do not lightly interfere with them. A
    party seeking leave to appeal a costs order must show that the judge exercised
    this discretion unreasonably. In my view this is one of those rare cases in
    which leave should be granted and the application judges cost award should be
    set aside.

[33]

The application judge based his order of substantial indemnity costs on
    two factors: Pitawanakwat unreasonably delayed the proceedings against her; and
    her defence had no merit. He summarized his conclusion at para. 8 of his
    reasons on costs:

It is clear that the respondent acted in a most unreasonable
    manner by delaying the process as long as possible and presenting a defence
    that had no prospect of success. I find that the actions of the respondent rise
    to a level of reprehensible conduct and accordingly I award substantial
    indemnity costs.

[34]

In his reasons, the application judge gave particulars for his
    conclusion:

·

Pitawanakwat
    repudiated a settlement of the litigation reached by her lawyer and the lawyer
    for McGregor;

·

She
    asked for a further adjournment to serve a notice of constitutional question
    after having failed to comply with the order of Del Frate J.;

·

The
    record shows she was going to delay the proceedings in any way she could, which
    increased McGregors legal costs; and

·

Her
    position on the merits depended on a will under which she would inherit Lot 14,
    not Lot 15, which she claimed in this litigation.

[35]

Reprehensible conduct is a proper basis for an award of substantial
    indemnity costs. But I do not consider Pitawanakwats conduct to have been
    reprehensible, and the particulars relied on by the application judge do not
    support such a finding.

[36]

First, the record does not show that the parties had previously reached
    a settlement. At most, as McGregors counsel said during the hearing, we were
    moving closer and closer to hopefully resolving this. Thus the application
    judge was wrong to say Pitawanakwat had repudiated a settlement.

[37]

Second, asking for a further adjournment hardly amounts to reprehensible
    conduct. Pitawanakwats adjournment request was refused so it did not cause
    further delay.

[38]

Third, although the proceedings had been ongoing for 14 months, Pitawanakwat
    had done nothing to delay them beyond asking for adjournments, which the court
    had granted.

[39]

Finally, though Pitawanakwats claim appeared to have little or no
    merit, she nonetheless had been living on Lot 15 for nearly four years before
    McGregor started this application to evict her. Understandably, perhaps, she
    honestly believed she had a legal basis to remain there. That she opposed the
    application to evict her does not support the kind of reprehensible or
    outrageous conduct necessary to justify an award of substantial indemnity
    costs.

[40]

I would grant leave to appeal costs, set aside the application judges
    cost award and in its place substitute an award of partial indemnity costs for
    the application in the amount of $15,000, inclusive of disbursements.

C.

Conclusion

[41]

I would dismiss the main ground of appeal, that Pitawanakwat was denied
    a fair hearing. I would, however, grant leave to appeal costs, allow the costs
    appeal, and reduce the award for the costs of the application from $24,383.82
    ($20,000 in fees and $4,383.82 in disbursements) to $15,000 inclusive of
    disbursements.

[42]

As McGregor has been substantially successful on the appeal, I would
    award him the costs of the appeal in the amount of $6,000 inclusive of
    disbursements and applicable taxes.

Released: January 27, 2017 (J.L.)

John Laskin J.A.

I agree. K. Feldman J.A.

I agree. C.W. Hourigan J.A.





[1]
The application judge did not resolve these competing claims as he held he had
    insufficient evidence to do so.


