



COURT OF APPEAL FOR ONTARIO

CITATION: Miracle v. Maracle III, 2017 ONCA 195

DATE: 20170306

DOCKET: C62656

Sharpe, Lauwers and Hourigan JJ.A.

BETWEEN

Andrew Clifford Miracle

Appellant

and

Andrew Clifford Maracle III, Jasmine Johnson and
    The Canadian Imperial Bank of Commerce (CIBC)

Respondents

Glenn Bogue, for the appellant

Alannah Fotheringham, for the respondent, CIBC and for
    the proposed parties, Sherry Walker and Victor Dodig

Roger Horst and Rafal Szymanski, for the proposed party,
    Chief R. Donald Maracle

Heard: March 1, 2017

On appeal from the order of Justice Wolfram Tausendfreund
    of the Superior Court of Justice, dated June 15, 2016.

By the Court:

A.       Objection to the panel assigned to hear this appeal

[1]

At the outset of oral argument, counsel for the appellant asked that
    this appeal be heard by a differently constituted panel. He objected to Sharpe
    J.A. sitting on the appeal because he was a member of the panel that decided
Tyendinaga
    Mohawk Council v. Brant
, 2014 ONCA 565, 121 O.R. (3d) 561, a case in which
    certain parties to the present appeal were involved. Counsel further objected
    to Hourigan J.A. sitting on the appeal because, prior to his appointment as a
    judge, he had been a senior member of the staff in the office of the Attorney
    General for Ontario. Counsel submitted that because of these prior
    associations, a reasonable apprehension of bias arises.

[2]

The test for reasonable apprehension of bias laid down and consistently
    endorsed by the Supreme Court of Canada is:

what would an informed person, viewing the matter realistically
    and practicallyand having thought the matter throughconclude. Would he think
    that it is more likely than not that [the decision-maker], whether consciously
    or unconsciously, would not decide fairly.  (
Yukon Francophone School
    Board, Education Area No. 23 v. Yukon Territory (Attorney General
), 2015
    SCC 25, [2015] 2 S.C.R. 282, at paras. 20-21

[3]

The reasonable observer is not a person with a very sensitive or
    scrupulous conscience:
R. v. S.
(
R.D.
), [1997] 3 S.C.R. 484,
    at para 31.  Rather, it is the sort of person who always reserves judgment on
    every point until she has seen and fully understood both sides of the argument
    and who takes the trouble to read the text of an article as well as the
    headlines:
Helow v. Secretary of State for the Home Department
,
    [2008] UKHL 62, [2008] 1 W.L.R. 2416 (U.K. H.L.), at para. 3.

[4]

In our view, that test is not met in the circumstances of this appeal.
    The issues arising in
Tyendinaga Mohawk Council v. Brant
were strictly
    legal in nature and quite distinct from the issues posed on this appeal. A reasonable
    observer would not conclude that, because a judge has ruled against a party on
    a legal issue in one case, that judge, whether consciously or unconsciously,
    would likely be biased when deciding a different legal issue with respect to that
    same party in another case.

[5]

Moreover, there is absolutely no connection between anything done in the
    course of Hourigan J.A.s prior employment in the office of the Attorney
    General of Ontario and the issues raised on this appeal. There is no merit to
    the appellants contention that Hourigan J.A.s prior employment gives rise to
    a reasonable apprehension of bias.

[6]

We further note that, when this appeal was listed for hearing last week,
    counsel for the appellant made similar allegations of bias against a
    differently constituted panel. That panel ruled that, while there was no
    substance to those allegations, the case would be adjourned to a different
    panel. The repetition of the same complaint today reveals a pattern of conduct
    on the part of counsel that cannot be condoned. Unfounded claims of bias and repeated
    requests for adjournments cause delay and impose added cost to other litigants
    and the court system. Judges have a duty to sit and hear cases to ensure proper
    and expeditious justice. They must not be dissuaded from fulfilling that duty
    by groundless allegations of bias.

[7]

We adopt, for the purposes of this appeal, the following statement made
    by Doherty J.A. in
Beard Winter LLP v. Shekhdar
, 2016 ONCA 493, [2016]
    O.J. No. 3257, at para. 10:

It is important that justice be administered impartially.  A
    judge must give careful consideration to any claim that he should disqualify
    himself on account of bias or a reasonable apprehension of bias.  In my view, a
    judge is best advised to remove himself if there is any air of reality to a
    bias claim. That said, judges do the administration of justice a disservice by
    simply yielding to entirely unreasonable and unsubstantiated recusal demands. 
    Litigants are not entitled to pick their judge.  They are not entitled to
    effectively eliminate judges randomly assigned to their case by raising
    specious partiality claims against those judges.  To step aside in the face of
    a specious bias claim is to give credence to a most objectionable tactic.

B.      The appeal

[8]

The appellant appeals the dismissal of his motion seeking to:

·

add
    Chief R. Donald Maracle, Victor Dodig, Sherry Walker and Donald A Maracle as co-defendants,
    and seeking damages jointly and severally against those parties in the amount
    of $76 million;

·

claim
    an order striking down the
Indian Act
,
    R.S.C. 1985, c. I-5,

and declaring land north of the 49th parallel
    to be held communally;

·

claim
    punitive damages in the amount of $24 million; and

·

claim
    costs on a solicitor and client basis.

[9]

This action, as presently constituted, is brought by the appellant
    against his son, his sons wife, and the Canadian Imperial Bank of Commerce
    (CIBC). It arises out of a partnership between father and son involving a
    tobacco and convenience store business and a dispute concerning an account the
    business had at the CIBC. None of the proposed defendants are parties to that
    dispute and there are no allegations made against those proposed defendants in
    the pleadings.

[10]

The motion was brought without leave after the action had been set down
    for trial. Because the appellant failed to obtain leave to bring the motion,
    the motion judge dismissed it on the basis of rule 48.04(1). That rule provides
    that, subject to certain exceptions not relevant to this case, any party who has
    set an action down for trial  shall not initiate or continue any motion or
    form of discovery without leave of the court.

[11]

The appellant asks this court to reverse the decision of the motion
    judge and to proclaim a decree of default judgment against various parties.
    He raises a number of grounds of appeal, including the submission that the
    motion judge erred by failing to move [the court] into its exclusive equitable
    jurisdiction. He submits that this case should be referred to a court of
    equity as it existed prior to 1881 and that this court lacks jurisdiction
    because of the appellants alleged Métis status.

[12]

There is no merit to those arguments or to any of the other arguments
    raised by the appellant. They are entirely lacking in any legal foundation.

[13]

The appellant has brought his action in the Superior Court of Justice
    and he must abide by the
Rules of Civil Procedure
. His Aboriginal or Métis
    status does not exempt him from those rules. The appellants motion to add additional
    parties after the action had been set down for trial without first obtaining
    leave is a plain breach of rule 48.04(1). The appellant has failed to
    demonstrate any error made by the motion judge in dismissing the motion.

[14]

The appeal is dismissed, with costs to the respondents CIBC, Victor
    Dodig and Sherry Walker fixed at $7,500 and costs to the respondent Chief R.
    Donald Maracle fixed at $7,500. Both figures are inclusive of disbursements and
    applicable taxes.

[15]

We order that the appellant shall not be permitted to take any further
    actions against any of these parties without leave of a judge of this court if
    those costs have not first been paid. The costs we have ordered may be enforced
    in the same manner as provided in paras. 7, 8, 9 and 10 of the order of Tranmer
    J. dated August 14, 2013. Approval of the formal order is dispensed with.

Released: March 6, 2017

Robert J. Sharpe J.A.

P. Lauwers J.A.

C.W. Hourigan J.A.


