



COURT OF APPEAL FOR ONTARIO

CITATION: OZ Merchandising Inc. v. Canadian
    Professional Soccer League Inc., 2021 ONCA 520

DATE: 20210719

DOCKET: C67488

Doherty, Benotto and Huscroft
    JJ.A.

BETWEEN

OZ
    Merchandising Inc.

Plaintiff (Appellant)

and

Canadian Professional Soccer
    League Inc.,
Eastern Ontario 
    District Soccer Association
,
The Ontario Soccer Association
,
Canadian Soccer Association
, Canadian Soccer League
    Inc., CSL Association Inc., IRA Greenspoon, Vincent Ursini,
Cary Kaplan
and Stan Adamson

Defendants (Respondents)

Nicholas Karnis
    and Rajiv Prasad, for the appellant

Jordan
    Goldblatt and Jocelyn Howell, for the respondents, Eastern Ontario District
    Soccer Association, The Ontario Soccer Association

Andrew K.
    Lee, for the respondent, Canadian Soccer Association

Heard: June 23, 2021 by video conference

On appeal from the judgment of Justice Robyn
    M. Ryan Bell of the Superior Court of Justice, dated August 27, 2019, reported
    at 2019 ONSC 5017; costs decision reported at 2020 ONSC 119.

By the Court:

overview

[1]

The appellant, OZ Merchandising Inc. (OZ
    Merchandising) appeals from the dismissal of its action against the respondents,
    Eastern Ontario District Soccer Association (EODSA), the Ontario Soccer
    Association (OSA), and the Canadian Soccer Association (CSA). In the event
    that the main appeal fails, OZ Merchandising seeks leave to appeal the costs
    order made by the trial judge.

[2]

The court did not call on the respondents to
    address any of the submissions made by the appellant on its appeal from the
    dismissal of the action. The court dismissed that appeal with reasons to
    follow. After hearing argument on the costs appeal, the court reserved judgment.
    We have concluded leave to appeal from that order should be granted but the
    appeal should be dismissed. These reasons address both our dismissal of the
    main appeal, and the dismissal of the costs appeal.

the main appeal

[3]

This lawsuit began in 2004. There is no need to
    chronicle its lengthy procedural history. The trial judge provided a brief
    summary in her Costs Decision, at para. 8. By the time the action reached trial
    in 2019, there was only one plaintiff, the appellant OZ Merchandising, and
    three defendants, the respondents, before the court.

[4]

The trial proceeded before a jury for about seven
    weeks. However, the trial judge struck the jury as a consequence of what she
    determined to be numerous serious improprieties in counsel for the appellants
    closing argument to the jury:
OZ Merchandising Inc. v. Canadian
    Professional Soccer League Inc.
, 2019 ONSC 3882. There is no appeal from
    the decision striking the jury.
[1]

[5]

The appellants claims against the respondents
    arose out of three discrete events. We need not review the evidence in detail.
    The factual context for the claims is succinctly described by the trial judge
    in the first paragraph of her reasons:

The Ottawa Wizards were a soccer club in the
    Canadian Professional Soccer League (CPSL) from 2001 to 2003. Their home
    stadium was the OZ Optics Stadium in Carp, Ontario. In the fall 2003, three
    events occurred. First, in September, the Ottawa Wizards applied to the Ontario
    Soccer Association (OSA) to host the OZ Optics Invitational Tournament; the
    application was not approved, and the proposed tournament was not held. Second,
    in November, the Canadian Soccer Association (CSA) issued International
    Transfer Certificates (ITCs) for two Ottawa Wizards players, Peter Mponda and
    Macdonald Yobe, which resulted in Mr. Mponda and Mr. Yobe returning to Malawi.
    Third, in December, the Eastern Ontario District Soccer Association (EODSA)
    publicized that OZ Dome Sports Club had not applied to operate an indoor league
    during the 2003-2004 season and described the potential consequences of
    participating in unsanctioned competition at the OZ Dome facilities.

[6]

OZ Merchandising claimed against each respondent,
    alleging negligence and intentional interference with the economic interests of
    OZ Merchandising (referred to by the trial judge as the unlawful means
    claim).

[7]

The trial judge dismissed the negligence claims as
    against each respondent. In respect of each of the three events giving rise to
    the negligence claims, the trial judge found:

·

OZ Merchandising failed to show any of the
    respondents owed it a duty of care;

·

if a duty of care existed, there was no basis
    upon which to find any of the respondents breached that duty of care; and

·

if a duty of care existed, and if there was a
    breach of that duty of care, OZ Merchandising had failed to prove any damages: Reasons,
    at paras. 9-11.

[8]

In respect of the intentional interference with
    economic interest claim, the trial judge concluded:

·

there was no evidence any of the respondents
    intended to cause economic harm to OZ Merchandising;

·

there was no evidence any of the respondents
    committed an unlawful act against a third party; and

·

OZ Merchandising failed to prove any damages: Reasons,
    at paras. 10-11.

[9]

In summary, the trial judge concluded OZ
    Merchandising had failed to establish any of the essential elements necessary
    to prove either of the claims it advanced against the respondents. To the
    extent the appeal turns on alleged errors made by the trial judge in her analysis
    of the claims, the appellant can succeed only if it demonstrates errors in
    respect of all three elements of the negligence claim, or all three elements of
    the unlawful means claim.

the scope of the appeal

[10]

It is unfortunately necessary to comment on the
    manner in which this appeal has been perfected and presented. The Notice of
    Appeal and Amended Notice of Appeal list dozens of grounds of appeal. The
    appellants factum on the appeal addresses several, but far from all of the
    grounds of appeal referred to in the Notice of Appeal and Amended Notice of
    Appeal. In oral argument, counsel addressed some, but not all of the grounds argued
    in the factum.

[11]

The appellant also brought what it styled as a fresh
    evidence application. On the application, the appellant filed a three-volume motion
    record and a factum. The motion record contained two affidavits, one from a
    paralegal who worked for the appellant and had some involvement in the trial,
    and the other from Mr. Omur Sezerman, the President of the appellant, a former
    plaintiff and the person directing the litigation on behalf of the appellant.

[12]

A review of the affidavits, the attachments to
    the affidavits, and the factum, reveals that the vast majority of the supposed
    fresh evidence is, in reality, argument based on the trial record. The
    material advances arguments, almost all of which were made at trial, often more
    than once, and rejected by the trial judge.

[13]

The appellant sought leave to file a factum of
    some 500 pages. On the motion, the appellant indicated its factum could be
    reduced to about 125 pages. Leave to file a factum of that length was denied. A
    further appeal to a panel was dismissed. We agree with counsel for the respondents
    submission that the fresh evidence material presently before the court is a
    transparent attempt to avoid both the 30-page limit on facta prescribed by a Practice
    Direction of this court, and the orders of this court refusing leave to file an
    extended factum:
OZ Merchandising Inc. v. Canadian Professional Soccer
    League Inc.
, 2020 ONCA 532, affd. 2020 ONCA 659.

[14]

In the circumstances, it would be appropriate to
    refuse to address the grounds of appeal arising from the trial record but
    disguised by the appellant as part of a fresh evidence application. We will,
    however, address the merits of two of those arguments. One alleges bias by the
    trial judge, and the other alleges ineffective assistance by trial counsel. We
    will address these issues because they affect matters relevant to the proper administration
    of justice. The appellants disregard of the rules and orders of this court can
    be addressed in the context of our determination of the costs of the appeal.

[15]

Apart from the bias and ineffective assistance
    of counsel claims, we have considered the grounds of appeal raised and argued
    by the appellant in its factum and, or in its oral argument.

the grounds of appeal

[16]

The grounds of appeal can be broken down into
    four categories:

·

alleged errors of fact and law in respect of the
    negligence claim
[2]
;

·

allegations of evidentiary and procedural errors
    that rendered the trial unfair;

·

the ineffective assistance of counsel allegation;
    and

·

the bias allegation.

(a)

The errors relating to the negligence claim

[17]

The appellant makes various submissions in its
    factum pertaining to the trial judges analysis of, and findings in respect of
    the negligence claim. Some of those arguments were repeated in oral submissions.

[18]

The appellant challenges some, but not all, of
    the grounds upon which the trial judge found the appellant had failed to prove
    damages. Even if the appellants arguments relating to damages were accepted,
    the trial judges finding the appellant suffered no damages would still stand,
    based on unchallenged findings at trial. Without proof of damages, the
    negligence claims cannot succeed. Consequently, even if the appellant demonstrated
    the trial judge erred in holding the respondents did not owe a duty of care to
    the appellant, and further erred in holding there was no breach of that duty of
    care, the negligence claim would still fail.

[19]

The absence of any challenge on appeal to some
    of the grounds on which the trial judge found the appellant failed to prove
    damages, is enough to dispose of the arguments premised on alleged errors in
    the negligence analysis. We will, however, address those arguments. They repeat
    those made at trial. With one exception, the appellants arguments on appeal ignore
    the trial judges factual findings and her detailed analysis of the applicable
    case law.

[20]

The appellant does contend the trial judge made
    a palpable and overriding factual error in her duty of care analysis. The
    appellant argues the trial judge wrongly concluded the appellant had failed to
    prove it owned the Ottawa Wizards Soccer Club. Ownership of the soccer club was
    relevant to, but not necessarily determinative of, whether any of the respondents
    owed a duty of care to the appellant in respect of the issuance of the International
    Transfer Certificates for the two Ottawa Wizards players.

[21]

The trial judges finding, that the appellant had
    not shown it was the owner of the Ottawa Wizards, rested to some extent on
    evidence of an application made by the Ottawa Wizards for membership in the
    Canadian Professional Soccer League: Reasons, at para. 28. That application
    showed OZ Optics as the owner. The appellant argues the trial judge put too
    much emphasis on that document, especially because the application was made
    some three years before the relevant events. There was no evidence of any
    subsequent change in ownership.

[22]

We see no error in the trial judges fact
    finding. She considered the evidence and the arguments relating to the
    ownership of the Wizards. While the trial judge did place emphasis on the
    application in 2000 for membership in the Canadian Professional Soccer League,
    it was not the only evidence she relied on. It was for the trial judge to
    determine the weight to be assigned to any particular piece of evidence: Reasons,
    at paras. 24-39.

[23]

It must also be borne in mind that the ultimate
    question was not the ownership of the Ottawa Wizards. The question was whether
    the necessary relationship existed between the appellant and any of the
    respondents in respect of the International Transfer Certificates to warrant
    finding a duty of care. As the trial judge correctly observed, the evidence
    relevant to whether a duty of care existed went beyond the evidence concerning
    the ownership of the Ottawa Wizards.

[24]

The appellant has not demonstrated a basis upon
    which this court should interfere with the trial judges finding of fact on the
    ownership question.

[25]

In a variation on the argument about ownership,
    counsel for the appellant submitted the trial judge wrongly focused exclusively
    on the legal relationship between the appellant and the Ottawa Wizards. He
    maintained that the trial judge had to look at their relationship in the soccer
    world.

[26]

We do not accept the trial judge limited her
    consideration to the purely legal relationships between the appellant and the
    respondents. She fully appreciated that the duty of care analysis required an
    evaluation of the nature of the relationship, if any, between the appellant and
    the respondents considered in the context of the three events said to give rise
    to the negligence claim: Reasons, paras. 16-19.

(b)

Evidentiary and Procedural Rulings

(i)

Did the trial judge err in holding that any
    motion for judgment against the defaulting defendants would be decided by a
    judge and not the jury?

[27]

The trial judge held that any motion for default
    judgment against the defaulting defendants would proceed before a judge and not
    the jury. She relied on the express language in Rule 19.05(1). The trial judge
    also accepted that any admissions deemed to be made by the defaulting
    defendants as a consequence of their default would not be admissible against
    the respondents. The appellant conceded both points before the trial judge. They
    now argue to the contrary.

[28]

Setting aside the appellants retreat from the
    position it took at trial, we are satisfied the trial judges rulings accord
    with the applicable procedural and evidentiary rules. The language of Rule 19.05(1)
    expressly contemplates a plaintiff moving for judgment against a defaulting
    defendant before a judge. The Rule also provides that the judge may order
    that the action proceed to trial. These rules give a judge the discretion to
    hear a motion for judgment, and a discretion to order the matter to trial. Neither
    entitles a plaintiff to put the motion before a jury. The discretion as to how,
    and in what forum, the matter will proceed is left to the judge.

[29]

The trial judges ruling that the deemed admissions
    by the other defendants would not be admissible against the respondents also
    rests on solid ground. An admission made by one party in a judicial proceeding
    is not admissible against other parties to that judicial proceeding:
Correia
    v. Canac Kitchens
, 2008 ONCA 506, at para. 110;
R. v. C.(P.)
,
    2015 ONCA 30, at paras. 39-45.

[30]

The trial judges rulings also reflect a proper
    exercise of her case management responsibilities. Allowing the appellant to
    lead evidence before a jury of deemed admissions, which were not admissible
    against the respondents, and which in some cases, did not relate to the claims
    against the respondents, ran the risk of prejudicing the respondents in their
    defence despite any limiting instruction the trial judge might give.

[31]

The rulings did not prejudice the appellant in
    the presentation of its case. As the trial judge made clear, the appellant was not
    foreclosed from leading evidence from anyone, including the parties noted in
    default, if that evidence was relevant to the claims advanced by the appellant
    against the respondents.

[32]

The appellant submits the trial judge bifurcated
    the trial contrary to the provision in Rule 6.1.01. There was no bifurcation of
    the trial. The trial judge correctly held the default proceedings were a
    separate proceeding from the trial. The trial judges holding, that evidence
    not relevant to the claims as pleaded against the respondents would not be
    heard by the jury, was not a bifurcation of the issues properly before the
    jury, but an application of the universal rule limiting admissibility to
    evidence relevant to the issues to be decided by the jury.

(ii)

Did the Trial Judge Improperly Limit the Scope
    of the Appellants Claim at the Outset of the Trial?

[33]

The appellant made repeated attempts to advance
    a theory of liability based on the respondents alleged legal responsibility
    for the acts of other defendants. The pleadings provided no basis for any such
    theory. A motion to amend the pleadings shortly prior trial to incorporate that
    theory failed:
OZ Merchandising Inc. v.
Canadian
    Professional Soccer League
, 2018 ONSC 7468. Appeals from that ruling
    to the Divisional Court, Court of Appeal and Supreme Court of Canada, all
    failed. A further attempt to amend the pleadings at trial also failed: Ruling
    on Motion for Reconsideration, May 10, 2019, at paras. 17-35.

[34]

Despite the failed attempts to amend the
    pleadings prior to trial, the appellant continued to press a theory predicated
    on the respondents liability for the acts of other defendants. At the outset
    of the trial, counsel for the appellant provided the court with draft jury
    questions. One question read:

Are the defendants [the respondents] liable
    for the damages sustained by the plaintiff as a result of the actions of the
    CPSL/CSL/CSLA?

[35]

By its terms, the question assumed that the jury
    was entitled to find the respondents liable to the appellant for the actions of
    other entities. The proposed question ignored the scope of the pleadings and
    the orders refusing to permit the appellant to amend those pleadings.

[36]

In submissions at trial, counsel described the
    appellants theory as a single entity or system theory of liability. Counsel argued
    this theory was somehow different than a theory of liability based on agency or
    some other form of vicarious liability. The trial judge, in rejecting the
    appellants claim that it could argue the respondents were responsible for the
    actions of others, described the theory advanced by the appellant as the
    equivalent of the discredited concept of group enterprise liability: Ruling
    on Evidentiary Issues and Scope of Trial, April 16, 2019, at paras. 12-18.

[37]

The appellant argues the claim was not
    predicated on a group enterprise theory, but instead relied on the assertion
    that the respondents and other defendants were engaged in a joint system of
    governance over soccer operations within Canada. The appellant maintains that
    this joint governance rendered each respondent liable for the acts of other
    defendants who were also part of the overall scheme controlling soccer
    operations in Canada.

[38]

Whatever name one chooses to affix to the
    appellants theory of the respondents liability for the actions of other
    defendants, it amounts to a claim that the respondents were vicariously liable
    through agency principles for the actions of others. The appellant advanced no
    such theory through the first 14 years of the lawsuit. The appellants attempt
    to introduce that theory was rejected in 2018 as coming far too late in the
    litigation.

[39]

The trial judge correctly rejected the
    appellants numerous attempts to expand the scope of the trial beyond the
    boundaries of the pleadings.

(iii)

The Admissibility of Documentation Pertaining to
    FIFA Rules

[40]

FIFA is an international organization that sets
    down rules and procedure governing the conduct of various national soccer
    associations. The documentation setting out FIFA rules and regulations was
    admitted at trial on consent.

[41]

The appellant argued it was entitled to refer to
    the contents of the FIFA rules in support of its negligence claim, especially
    as it related to the transfer of the contracts of the two Ottawa Wizards
    players. The appellant maintains that as the rules were admitted on consent, they
    were admitted for the truth of their contents.

[42]

We agree with the respondents that the issue was
    not the admissibility of the FIFA rules. They were properly before the court on
    agreement. The trial judge concluded, however, that she had no evidence as to
    how, if at all, the rules applied in the specific circumstances of the two
    Ottawa Wizards players. Absent evidence, the trial judge was not prepared to accept,
    as valid, the appellants interpretation of the relevant rules: Reasons, para.
    76. In the absence of evidence, the trial judge made no error in refusing to
    act on the appellants submissions as to the meaning of the rules.

(c)

The Ineffective Assistance of Counsel

[43]

The appellant argues that trial counsel, who is
    also apparently an employee of the appellant or a related company, provided
    ineffective assistance at trial. The appellant submits the incompetence of its
    lawyer should be visited on the respondents, and the judgment obtained by the
    respondents dismissing the action should be set aside because the appellant had
    incompetent counsel. Remarkably, the appellant makes the submission although
    counsel, who the appellant says was incompetent at trial, appears as co-counsel
    for the appellant on the appeal.
[3]

[44]

Allegations of ineffective legal assistance at
    trial in civil matters are properly raised by way of a negligence action
    brought by the client against the lawyer. There may be some civil cases in
    which the nature of the claim gives rise to a public interest that transcends
    the private interests of the litigants and requires that an appellant be
    permitted to raise the competence of its trial counsel as a ground for setting
    aside the trial judgment. The claim advanced by the appellant against the
    respondents is a straightforward negligence claim seeking damages for pure
    economic loss. Nothing in the nature of this case justifies permitting the
    appellant to rely on the incompetence of counsel as a basis for denying the
    respondents the judgment obtained at trial: see
D.W. v. White
, 2004
    CanLII 22543 (ON CA), at paras. 42-51, 55.

[45]

Even if the appellant could advance the
    incompetence of its counsel as a reason to set aside the judgment below, there
    is no merit to the ineffective assistance claim advanced by the appellant. The
    only evidence in support of the claim comes from Mr. Sezermans affidavit
[4]
. Although one section of Mr.
    Sezermans affidavit is headed Ineffective Assistance of Counsel, many of the
    complaints in that section are directed primarily at the trial judge. As with most
    of the rest of Mr. Sezermans affidavit, these paragraphs reiterate arguments
    made and lost, often more than once, at trial. Mr. Sezermans recollection and
    characterization of the events at trial do not constitute fresh evidence on
    appeal and are inadmissible.

[46]

Many of the allegations of ineffective
    assistance made by Mr. Sezerman come in the form of bald statements with no
    reference to the actual trial record. Other allegations appear to criticize
    trial counsel for abiding by the trial judges rulings, rather than following Mr.
    Sezermans instructions to the contrary. Abiding by a trial judges rulings,
    even when the client is convinced they are wrong, is hardly ineffective
    assistance.

[47]

Most importantly, although Mr. Sezerman asserts
    that his lawyers conduct fell below the standard of reasonable professional
    judgment, Mr. Sezerman offers no admissible evidence in support of that
    opinion. Mr. Sezerman is not a lawyer and is not qualified to opine as to
    whether counsels conduct fell below the accepted standard. Mr. Sezermans
    opinion is inadmissible.

[48]

Finally, even if Mr. Sezerman were competent to offer
    an opinion on the reasonableness of trial counsels conduct, his opinion is wrong.
    For example, Mr. Sezerman repeatedly argues trial counsel was negligent in
    making certain admissions on the pre-trial motion concerning the default
    judgment proceedings and the scope of the trial. The admissions made by counsel
    were reasonable and consistent with the applicable procedural and evidentiary law.
    The trial judge would inevitably have ruled as she did regardless of what
    admissions may or may not have been made by counsel. As explained above, we are
    satisfied the trial judges rulings were correct.

[49]

In summary, none of the portions of Mr.
    Sezermans affidavit referring to the competence of trial counsel meet the
    criteria for the admissibility of fresh evidence. Mr. Sezerman is not qualified
    to give an opinion as to the competence of counsel and that opinion is
    inadmissible. The opinion is also unsubstantiated by the trial record. If the
    appellant actually believes trial counsel, who remains counsel on appeal and apparently
    an employee, was negligent, the appellant can sue trial counsel. There is no
    justification for dragging the respondents into that controversy or denying
    them their judgment dismissing the appellants action.

(d)

The Bias Allegation

[50]

On April 23, 2019, the appellant brought a
    motion asking the trial judge to recuse herself after the trial judge made pre-trial
    rulings on various issues, including the scope of the trial. The appellant
    claimed the errors in the trial judges ruling, and her demeanour in the course
    of the proceeding, created a reasonable apprehension of bias against the
    appellant. The trial judge dismissed the motion and gave oral reasons (Trial Transcript,
    April 23, 2019, pp. 1-10).

[51]

On May 6, 2019, the appellant brought a motion
    for a mistrial. This time, the appellant alleged actual bias and a reasonable
    apprehension of bias. Counsel relied on the same grounds advanced on the motion
    for recusal. The trial judge dismissed the motion (Endorsement, May 7, 2019).

[52]

In both motions, the appellants allegations of
    bias, or a reasonable apprehension of bias, relied largely on rulings the trial
    judge made in the course of the trial. The appellant argued the rulings made against
    the appellant were so numerous and so wrong as to demonstrate a reasonable apprehension
    of bias, if not actual bias.

[53]

The appellant chose not to renew any of the bias
    allegations in the factum filed on the appeal. Instead, the appellant included
    these allegations in the fresh evidence material.

[54]

The affidavit of Ms. Elizabeth Ramirez, a
    paralegal involved in the trial, speaks to various rulings made at the trial,
    and the unfairness she believes flowed from those rulings. Ms. Ramirezs
    opinion about the correctness or fairness of the rulings is irrelevant. The
    factual content of her affidavit adds nothing to the trial record. Her
    affidavit is not admissible as fresh evidence on the appeal.

[55]

Mr. Sezermans affidavit refers at length to the
    bias claim. In large measure, Mr. Sezermans affidavit is simply argument, and
    repeats the arguments made many times at trial. The bias arguments based on the
    rulings made at trial stand or fall on the trial record. Mr. Sezermans
    opinions about the legal correctness of those rulings, and his characterization
    of the unfairness of those rulings, do not constitute fresh evidence on appeal
    and are not admissible.

[56]

Although most of Mr. Sezermans affidavit consists
    of his version of the trial events and his opinion about the correctness of the
    rulings, neither of which constitute fresh evidence, Mr. Sezerman does make
    allegations which go beyond challenging the correctness of the trial judges
    rulings. Mr. Sezerman alleges institutional bias against him by the local
    judiciary in Ottawa. Mr. Sezerman also insinuates, but does not specifically
    allege, bias against him because of his ethnic background. We are prepared to
    treat the contents of Mr. Sezermans affidavit, which address those two
    allegations, as fresh evidence, which is properly before this court.

[57]

We divide the bias allegations into three
    categories:

·

Bias based on the conduct of the trial judge;

·

Bias based on an institutional bias against Mr.
    Sezerman among the local judiciary; and

·

Bias based on ethnic background.

(i)

The Conduct of the Trial Judge

[58]

The appellants arguments based on the trial
    judges conduct, both at trial and in his affidavit, come down largely to the
    assertion that the trial judge made so many errors, which had such a negative
    impact on the appellants case, that the trial judge must have been biased
    against the appellant.

[59]

The submission rests on two false premises. First,
    adverse rulings, even rulings which are subsequently held to be wrong by a
    higher court, do not demonstrate bias. Second, the appellant has failed to
    demonstrate any substantive error in the rulings, or any unfairness in the
    process followed by the trial judge in rendering her rulings.

[60]

Perhaps the best example of the misconceived
    nature of the bias allegations can be found in the appellants repeated
    insistence that the trial judges pre-trial ruling as to the scope of the trial
    effectively gutted the appellants case. The appellant alleges the ruling
    demonstrates bias, both because it was erroneous and because of its disastrous impact
    on the appellants case. In fact, the trial judges ruling did no more than
    limit the appellant to the case as pleaded, a limitation which applies to all
    litigants. As explained in our earlier reasons, she made no legal error in
    doing so, and regardless of what Mr. Sezerman may believe, her ruling imposed
    no procedural unfairness on the appellant.

[61]

Put bluntly, Mr. Sezerman refuses to accept
    either the correctness of the trial judges rulings, or that they were made in
    good faith. Mr. Sezerman will believe what he chooses to believe. However, he
    has failed to show any error in the rulings and has failed to rebut the strong
    presumption in favour of judicial impartiality.

[62]

The appellants submission that the trial
    judges ruling striking the jury provides evidence of bias is a second example of
    the fundamental flaw in the appellants approach to the bias claim. The
    appellant submits that in striking the jury, the trial judge simply adopted and
    echoed the submissions made by the respondents. The appellant claims this parroting
    of the respondents submissions demonstrates judicial bias.

[63]

Although the appellant claims the trial judges
    ruling striking the jury demonstrates the trial judges bias, the appellant did
    not challenge the correctness of that ruling in its factum. Consequently, even if
    the trial judge simply repeated the respondents submissions (an unfair and
    inaccurate characterization of her reasons), the appellant did not allege those
    arguments led the trial judge to improperly strike the jury. How can accepting
    and even repeating meritorious arguments demonstrate judicial bias?

[64]

In many respects, the bias allegations are
    redundant to the appellants case on appeal. The bias allegations assume the
    trial judge made serious and repeated errors during the trial. If those assumptions
    had merit, the appellant would succeed on the appeal by virtue of having
    demonstrated the serious errors without recourse to any bias allegation. On the
    other hand, if as we have concluded, the arguments alleging serious errors by
    the trial judge have no merit, the bias claim, as framed by the appellant,
    loses most of its force.

[65]

In addition to alleging the trial judges
    rulings demonstrated bias, the appellant maintains that the trial judges
    facial expressions and body language also indicated bias against the appellant.
    The appellant relied on affidavits filed on the trial in support of this claim.
    Those affidavits were filed by Mr. Sezerman, his wife, and an articling
    student.

[66]

These allegations are vague. Absent some
    manifestation of this alleged conduct in the record, or some other form of
    confirmatory evidence, it is difficult to ascribe much weight to a partisans subjective
    interpretations of a trial judges facial expressions or body language. These
    kinds of allegations alone cannot rebut the strong presumption in favour of
    judicial impartiality.

[67]

The appellant also points to the number of
    rulings made against the appellant in the course of the trial as evidence of
    bias. A mere counting of the rulings for and against a party to a trial
    provides little insight into the fairness of the trial. In addition, the number
    of the rulings made against the appellant is accounted for, to a significant
    degree, by the appellants refusal to abide by the trial judges rulings, and
    its insistence on litigating over and over again some of the same issues.

[68]

The appellant further submits the trial judges
    reference to Mr. Sezerman as the puppet master in her costs decision provides
    further evidence of bias. We disagree. The respondents were seeking costs
    against Mr. Sezerman personally. It was their position he personally controlled
    the litigation to the extent that he should be held personally responsible for
    aspects of the litigation, which on the respondents submissions justified
    increased costs. The trial judge was required to make a finding as to the role
    played by Mr. Sezerman.

[69]

Her finding that Mr. Sezerman was indeed in full
    control of the litigation, even to the point of directing counsel as to what
    submissions should be made in closing and what questions should be put to
    witnesses, was supported on the record. The phrase puppet master is apt given
    her findings.

(ii)

The Allegations of Institutional Bias

[70]

Mr. Sezerman complains about the impartiality of
    other judges in the Ottawa region. He refers to an earlier case in which a
    judge described him as bellicose. He also relies on an appearance before
    another judicial officer in Ottawa, who described herself as the fairest
    person in this place that is going to give you a proper hearing. Mr. Sezerman
    interprets this remark as an indication that the judges and other personnel in
    the Ottawa court system would not be fair to me. Finally, Mr. Sezerman refers
    to the events surrounding the recusal of the judge initially assigned to
    conduct this trial.

[71]

None of the events referred to by Mr. Sezerman
    offer any basis upon which a reasonable person could perceive institutional
    bias among the Ottawa judiciary toward Mr. Sezerman.

[72]

The case in which the trial judge described Mr.
    Sezerman as bellicose was entirely unrelated to this case and occurred some
    ten years earlier. A single word in an entirely unrelated proceeding offers no
    basis upon which a reasonable and informed observer could conclude Ottawa
    judges were biased against the appellant. Nor does Mr. Sezermans success on
    appeal in that case offer any support for the bias claim. In allowing the
    appeal in part, the Court of Appeal was not critical of the trial judge or her
    use of the word bellicose: see
Oz Optics Limited v. Timbercon, Inc
.,
    2010 ONSC 310, revd 2011 ONCA 714.

[73]

The comment relied on by Mr. Sezerman concerning
    the fairest person in this place is incapable of bearing the sinister
    connotation ascribed to it by Mr. Sezerman.

[74]

Lastly, the recusal of the judge initially
    assigned to conduct the trial provides no support for a bias allegation.
    Counsel for the respondents learned that the judge initially assigned to the
    trial had previously been a partner at a law firm, that acted for one of the
    respondents. Counsel brought this to the attention of the court and a new trial
    judge was assigned.

[75]

The appellant submits that while the assignment
    of the initial trial judge might seem a simple oversight it becomes
    disturbing in light of what happened after the assignment of the second trial
    judge who actually heard the trial.

[76]

There is no objective basis for Mr. Sezermans
    concerns. It is common place that judges who are assigned to conduct a trial
    become aware of connections to the parties or their lawyers that make it
    prudent that someone else conduct the trial. That is exactly what happened
    here. Why any of this would be disturbing to a reasonable observer is left
    unexplained by the appellant.

[77]

The allegations of an institutional bias against
    Mr. Sezerman are baseless.

(iii)

Ethnic Bias

[78]

In his affidavit, Mr. Sezerman insinuates that
    the trial judge took a personal dislike to him because he was an immigrant
    whose ethnic background and passion for the justice of his cause caused him to
    conduct himself in court in a manner which the trial judge considered
    inappropriate and disrespectful. Mr. Sezerman asserts he intended no
    disrespect.

[79]

There is nothing in the record to support the
    suggestion that Mr. Sezermans ethnic background had anything to do with the
    trial judges rulings or conduct of the trial. Clearly, the trial judge found
    some of Mr. Sezermans conduct inappropriate and worthy of sanction. In several
    of her rulings, the trial judge set out in detail the conduct of Mr. Sezerman she
    found to be inappropriate and explained why that conduct was inappropriate. Some
    of the trial judges reasons related to Mr. Sezermans behaviour in court, however,
    the trial judge was primarily troubled by Mr. Sezermans adamant refusal to
    abide by rulings made during the trial. The trial record supports the trial
    judges factual findings in this regard.

[80]

The trial judge had the onerous responsibility
    of keeping this long, sometimes heated, trial on the rails. Her task was made
    all the more difficult by the presence of the jury. To do so, the trial judge
    had to insist the parties comply with her rulings and comport themselves in
    court in a manner consistent with the proper administration of justice. No
    doubt Mr. Sezerman was passionate about his cause, and no doubt he was
    dissatisfied with the way the trial was going. Neither Mr. Sezermans passionate
    belief in his cause, nor his firm belief the trial was not being conducted
    fairly, relieved him of his obligation to comply with the trial judges orders
    and control his behaviour in court. The trial judges insistence that Mr.
    Sezerman follow the rules or face the consequences demonstrates neither a
    personal dislike of Mr. Sezerman, nor a bias based on his ethnic background. It
    does reveal the trial judge was determined to keep the trial moving forward in
    accordance with the rules, even if the appellant was wholly dissatisfied with
    the way the trial was unfolding.

[81]

There is no merit to any part of the bias
    allegation.

[82]

The appeal from the dismissal of the action
    against the respondents is dismissed.

the costs appeal

(i)

The Costs Awarded Against the Appellant

[83]

The respondents were completely successful at
    trial. They had made substantial six figure offers to settle about two years
    before the trial. The offers remained outstanding at the time of trial.
[5]

[84]

Applying well established authority, the trial
    judge held the respondents were entitled to their costs on a partial indemnity
    basis up to the date of the offers, and on a substantial indemnity basis after
    the date of the offers:
S & A Strasser Ltd. v. Richmond Hill (Town)
(1990), 1 O.R. (3d) 243 (C.A.); Costs Decision, at paras. 25-35.

[85]

The trial judge was also satisfied the
    appellants conduct in the course of the trial warranted an elevated costs
    award. She set that conduct out in some detail in her reasons and concluded it
    justified an award of substantial indemnity from the date of trial. Although
    the trial judges finding that the conduct of the appellant merited an award of
    costs on a substantial indemnity basis was supportable on this record, it was
    unnecessary to the trial judges finding with respect to the respondents
    entitlement to costs on a substantial indemnity basis. The trial judge had
    determined, apart from the appellants conduct, based on the offers to settle,
    that the respondents should have substantial indemnity costs from the date of
    the offers in 2017, well before the commencement of the trial: Costs Decision,
    at paras. 36-39.

[86]

The trial judge did not err in awarding costs to
    the respondents on a partial indemnity basis to the date of the offers and,
    thereafter, on a substantial indemnity basis. Even disregarding the appellants
    conduct at the litigation, the award was consistent with well-established case
    law.

[87]

We also see no error in the quantum awarded
    against the appellant. This litigation was lengthy, convoluted and hard fought.
    The trial consumed about nine weeks. On the findings of the trial judge, the
    actions of the appellant, particularly the repeated re-litigation of issues
    previously decided, unnecessarily prolonged the litigation. The trial judge
    also properly took into account the quantum of costs claimed by the appellant.

[88]

The trial judge appreciated that the ultimate determination
    of costs must reflect a fair and reasonable amount that the losing party should
    reasonably expect to pay rather than an actual indemnification of the amount
    actually expended by the successful parties: Costs Decision, at para. 50. We
    see no basis upon which this court should interfere with the trial judges
    assessment.

(ii)

The Costs Awarded Against Mr. Sezerman
    Personally

[89]

Mr. Sezerman was initially a plaintiff, but he
    was no longer a party to the litigation at trial. The trial court has inherent
    jurisdiction to award costs against a non-party. That discretion is exercised
    sparingly in cases involving gross misconduct, vexatious conduct, or conduct
    that undermines the fair administration of justice:
1318847 Ontario
    Limited. v. Laval Tool & Mould Ltd.
, 2017 ONCA 184, at paras. 66, 76
.

[90]

The trial judge appreciated the limits on her
    authority to order costs against Mr. Sezerman. She ultimately concluded that
    Mr. Sezerman controlled the appellants conduct throughout the litigation.
    After detailing that conduct, the trial judge said, at para. 59:

Mr. Sezerman bears responsibility for the
    plaintiffs litigation conduct at trial  conduct I have determined to be
    egregious and worthy of the courts sanction.

[91]

The appellant has not demonstrated any error in
    the trial judges description of the conduct at the litigation, her
    determination that Mr. Sezerman was personally responsible for that conduct, or
    her ultimate conclusion that the conduct merited a significant costs sanction
    against Mr. Sezerman personally. We agree with the trial judge that Mr.
    Sezerman assumed personal control over the conduct of the litigation. His
    attempts to excuse or even justify his conduct based on his temperament and the
    inexperience of his counsel should carry no weight when deciding whether Mr.
    Sezerman should be personally responsible for some part of the costs. Mr.
    Sezerman is a mature, intelligent person and a successful businessman. He must bear
    personal responsibility for his personal misconduct during the trial: Costs
    Decision, at paras. 57-59. We also see no error in the trial judges
    quantification of the extent of Mr. Sezermans personal responsibility.

[92]

We grant leave to appeal the costs order but
    dismiss the appeal.

conclusion

[93]

The appeal is dismissed.

[94]

Counsel for the respondents shall serve and file
    written submissions as to the costs of the appeal within 10 days of the release
    of these reasons. The submissions shall not exceed 4 pages, double-spaced, not
    including any bill of costs. The appellant shall serve and file its written
    submissions as to costs within 10 days of receiving the respondents submissions.
    The appellants submissions shall not exceed 4 pages double-spaced, excluding
    any bill of costs. The respondents may file written reply submissions of no
    more than 2 pages within 7 days of receiving the appellants submissions.

Released: DD July 19, 2021

Doherty
    J.A.

M.L.
    Benotto J.A.

Grant
    Huscroft J.A.





[1]
The appellant did attach, as an exhibit to the fresh evidence
    affidavit of Mr. Sezerman, a document entitled Errors in Trial Judges
    Assessment of 69 Grounds to Strike Jury. The exhibit is not evidence of
    anything, but is argument presumably advanced by Mr. Sezerman. Counsel did not
    challenge the striking of the jury in the factum filed on the appeal or in oral
    argument. During oral argument, counsel confirmed the striking of the jury was
    not a ground of appeal in the appellants factum. After some further dialogue
    with the court, counsel sought to amend the appellants argument to add a
    claim that  the jury was improperly struck. The court indicated it was not
    disposed to permit counsel to advance new grounds of appeal during oral
    argument. Counsel did not pursue the matter.



[2]
There is one paragraph in the appellants factum (para. 54) in
    which the appellant submits the evidence relating to two of the three relevant
    events demonstrates an intention by the respondents to cause economic harm to
    the appellant. The factum does not point to or even allege any errors by the
    trial judge in her analysis of the relevant evidence. There is no basis upon
    which to interfere with her finding: see Reasons at para. 87-91, 128-133.



[3]

Mr. Prasad, who appeared as lead counsel on the appeal, was
    not counsel at trial.



[4]

In oral argument, counsel who is alleged to have been
    incompetent at trial, and who appeared for the appellant on the appeal,
    attempted to make a statement to the court, presumably in support of the
    ineffective assistance of counsel claim. The court refused to permit counsel to
    make that statement. If counsel wanted to admit his incompetence in support of
    the appeal, his role was that of a witness, and not counsel on the appeal. The
    appellant chose not to file an affidavit from trial counsel.



[5]
EODSA and OSA were represented by the same counsel and were awarded
    one set of costs.


