



COURT OF APPEAL FOR ONTARIO

CITATION: Robert v. Assis, 2018 ONCA 442

DATE: 20180509

DOCKET: C63627

Hourigan and Benotto
    and Fairburn JJ.A.

BETWEEN

Aline J. Robert and
    David E. Guthrie

Plaintiffs (Appellants)

and

Tania Assis and Richard Buitendyk

Defendants (Respondents)

J. Sebastian Winny, for the appellants

Sharon Ilavsky, for the respondents

Heard and released orally: May 3, 2018

On appeal from the judgment of Justice J.W. Sloan of the
    Superior Court of Justice dated March 20, 2017.

REASONS FOR DECISION

[1]

The appellants brought an action against their
    next door neighbour seeking injunctive relief and damages for:

(i)

invasion of privacy arising from video and audio
    cameras which they say were trained on their property;

(ii)

nuisance arising from outside speakers, floodlights and the
    occasional errant hockey puck;

(iii)

trespass arising primarily from the construction of two fences; and

(iv)

abuse of process arising from an application for a peace bond made
    by the respondents before a justice of the peace.

[2]

Following a nine day trial, the trial judge
    dismissed the action.

[3]

The appellants allege that the trial judge
    failed to decide the case on the merits, provided inadequate reasons and
    demonstrated a reasonable apprehension of bias.

[4]

We do not accept these submissions.

[5]

The trial judge carefully detailed the evidence
    of all parties and the claims made by the appellants. He concluded that the
    invasion of privacy alleged had not been proved. He found that there was no
    credible evidence to support the allegation. He also found that the claims by
    both parties were hyperbolized. He found that the nuisance had not been
    established as the appellants never approached the respondents about such
    things as lights and music. The couple of incidents in which hockey pucks wound
    up in the appellants yard did not rise to the level of nuisance. Although a
    great deal of time at trial was spent on trespasses, the trial judge was not
    satisfied that the trespass with respect to the construction of the fence took
    place. Also, there was no evidence from a surveyor to establish where the lot
    line was in connection with the alleged moving of the stakes. There was no
    evidence of abuse of process as the trial judge found no dishonesty in relation
    to the application for a peace bond.

[6]

The reasons read as a whole, indicate that
    findings of credibility were essential to all of these determinations. Those
    findings are entitled to deference. Further, the reasons clearly provide the
    parties with the rationale for the trial judges decision.

[7]

The bias allegation appears to arise from the
    trial judges question to counsel and subsequent comments about the fact that
    the parties did not take advantage of various mediation services.

[8]

There is a strong presumption of judicial
    impartiality and a heavy burden on a party who seeks to rebut this presumption.
    The analysis contemplates a hypothetical observer who is informed of all the
    facts. It is not dependent upon views or conclusions of the litigant. In our
    view, no reasonable person informed of all the facts would conclude that the
    judge was biased. On the contrary, the judges inquiry into mediation was
    eminently reasonable. The facts of this case before him cried out for the
    question to be asked. As the trial judge said at para. 447:

It is extremely unfortunate that a case of
    this nature could not be resolved without having a time consuming, emotionally
    draining and very expensive eight and half days Superior Court trial.

[9]

We share that view.

[10]

The fresh evidence is not admissible. It
    consists of further information about security cameras and a suggestion that
    the trial judge wrote bullet point comments about his reasons to a legal
    publisher, reacted with anger at the conclusion of counsels submissions, and
    asked about mediation.

[11]

The first issue does not meet the
Palmer
test which requires the applicant to satisfy the court that the
    evidence could not have been adduced at trial and if believed, it could reasonably,
    when taken with the other evidence adduced at trial, be expected to have
    affected the result. The evidence could have been adduced at trial, and it is
    clear that the proposed evidence is more of the same evidence already rejected
    by the trial judge.

[12]

The second issue has no factual foundation or
    relevance. We have already addressed the mediation issue.

[13]

The appeal is therefore dismissed with costs to
    the respondents in the amount of $20,312 inclusive of disbursements and taxes.

C.W. Hourigan J.A.

M.L. Benotto J.A.

Fairburn J.A.


