Dockets: T-473-06
T-474-06
Citation:
2017 FC 454
Toronto, Ontario, May 5, 2017
PRESENT: Case Management Judge Kevin R. Aalto
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Docket: T-473-06
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BETWEEN:
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ALLAN JAY
GORDON
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Plaintiff
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and
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HER MAJESTY THE
QUEEN
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Defendant
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Docket: T-474-06
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AND BETWEEN:
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JAMES A. DEACUR
AND ASSOCIATES LTD. AND JAMES ALLAN DEACUR
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Plaintiffs
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and
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HER MAJESTY THE
QUEEN
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Defendant
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ORDER AND REASONS
[1]
As I said in Court, this case has lost its way.
[2]
There seems to be a never-ending litany of
issues concerning the conduct of the action and allegations of misbehaviour of
the Plaintiffs and allegations of improper conduct by the Plaintiffs against
counsel for the Defendant and on and on.
[3]
These allegations recently escalated to impugn
the integrity of the Court and seek my recusal as Case Management Judge all of
which was contained in a spate of correspondence from the Plaintiff, Allan Jay
Gordon.
[4]
A case conference in person was convened in
Court on Friday, March 10, 2017 to deal with these issues and to deal with the
ongoing incivility which this case seems to generate. To emphasize that it was
a Court proceeding the Court was gowned.
[5]
By way of brief background, the individual
Plaintiffs are accountants. They represent themselves although, from time to
time, Mr. Deacur and his company have had legal representation. The case
concerns claims against the Crown, (Canada Revenue Agency or CRA), for misfeasance,
negligence and other torts arising from a criminal proceeding commenced by CRA in
the early 1990’s against the Plaintiffs for alleged fraud relating to
Scientific and Research and Development Credits. After many years and a
lengthy preliminary inquiry, the Crown dropped the charges.
[6]
At the case conference convened to deal with the
issues noted above I rendered oral reasons relating to the conduct of the
action with the fervent hope that the parties, and the Plaintiffs in
particular, would get the point about civility and what is required of parties
in a lawsuit. I also dealt with the issue of conduct of the discovery and
recusal. The oral reasons were transcribed and are set out hereafter. I have
corrected syntax and typographical errors but not the substantive commentary:
CASE MANAGEMENT JUDGE AALTO: Good
morning, everybody, have a seat please:
I have a number of things that I want to
deal with this morning. Before I get to those, I want to deal with some
unsettling issues which have evolved during the course of this week in this
case, which are troublesome to me in a number of ways. We are in a courtroom today
for this case conference. Why? Let me explain. This case has lost its way.
Parties have forgotten that this is first and foremost a Court sitting and I
emphasize a Court sitting.
Secondly, it's time to bring decorum back to
this matter. In my view, this Court must take control of its processes and
this case must be conducted in a courtroom. Much of the work in this case over
the last six years has taken place in a boardroom. The boardroom has been
beneficial from time to time and has allowed ease of decision-making in dealing
with issues, but it also has led to this matter devolving into, from time to
time, a battle in a sandbox: little or no Court formality. And while this has
worked, as I said, for a while, it has led to a significant lack of respect for
the process.
It is my view that the Plaintiffs, in
particular, do not have the right to use a proceeding in a Court to attack
others, either the Court or counsel. It is not their personal place. It is a
public institution and those that seek to make use of the courts to right a
perceived or legitimate wrong do not have carte blanche to act inappropriately,
speak offensively of others, or pursue personal agendas.
Notwithstanding my best efforts, this has
not been happening and so we're going to have to change the way this case is
conducted.
This week has seen the second attack on my
integrity in this proceeding and I get quite upset with people attacking my
integrity. I have admonished the parties from time to time to cease what seems
like an endless back and forth squabbling over matters. It matters not who
starts it, it simply is not an acceptable approach to the conduct of litigation
in this Court.
This week has seen Mr. Gordon engaging in
what I can only describe as a petulant writing campaign. He may disagree with
decisions of this Court. If he does so, he has a right of appeal, not to
engage in attacking others. It is not appropriate to write incendiary, verging
on contemptuous correspondence, not of the Court, but also of counsel for the
Crown, who is simply doing her job. Mr. Gordon may not appreciate that, but
that's what happens in this Court.
By happenstance, I received this week a copy
of The Advocates' Journal, a publication of The Advocates' Society and I
was reading an article in this edition. It is by the late, great, Arthur
Maloney. Maloney was one of the finest advocates to appear in the courts of
Ontario and in his address at the call to the bar ceremony in 1978 he made the
following observation:
"Advocacy is imperfect and
ineffective if it is without courtesy. Courtesy to the Court, the public, to
the witnesses you examine in chief or that you may cross-examine and also to
your colleagues at the bar."
I would add to that including those
participating in the case.
Mr. Maloney goes on to say:
"This is what Chief Justice
Warren Burger had in mind when he wrote the foreword to Patterson's book, The
Profession of Law. He said, 'Manners and decorum, especially in the courtroom,
are the indispensable lubricant to the inherently contentious adversary
process.'"
Civility, respect, and common sense have
been sadly lacking in this case, notwithstanding my efforts to try and control
it. So that brings me to what has transpired this week.
On Monday, we held a case conference at the
opening of Mr. Deacur's examination for discovery. The first issue which we
addressed was the issue raised in the letter by Mr. Deacur, sent to the Court
some months ago, or thereabouts. And let me just observe now, I understand
from Monday's session that that letter was not copied to Ms. Linden. It is a
breach of Court protocol to write to the Court without copying the other side.
In fact, there are courts that do not accept correspondence from litigants
unless it specifically is allowed by the judicial officer involved. In case
management, I frequently receive correspondence from parties but it is a
requirement of whatever correspondence I receive is copied to the other side.
I made that observation on Monday and so let us turn back to the events of
Monday.
Mr. Deacur's letter addressed the trial
dates which I had set late last year and it was followed by a letter from Mr. Gordon
of February 26th in which he echoed the concern of Mr. Deacur regarding the
timing of the trial. That matter was dealt with and I advised the parties that
I'd put in motion with the hearings coordinator trial dates that would not
interfere with the busy season of these Plaintiffs. [Ed. Note: the trial dates
were set in March- April - a time frame which interferes with the busiest time
of year for these accountants]
Following that issue two matters were
addressed, although obviously not to the satisfaction of Mr. Gordon. One issue
related to Mr. Gordon having not responded to a letter which was sent back in
December requesting certain information and documentation.
The second issue related to whether or not
these Plaintiffs were properly armed to continue with discovery because they had
not brought all of the documents which we have, over the years, had reduced to
disks so that everybody could have ready access to those documents. I dealt
with that issue on Monday.
In the course of it, of course, I made some
observations regarding the frustrations that I have with this case and the
frustration that I have with the Plaintiffs from time to time, and I invited
Ms. Linden to bring a motion to dismiss the case if she was so instructed. What
I did not say, of course, is that if such a motion were brought, I'm not going
to hear it. I think somebody else should hear it and offer views on the Plaintiffs
conduct in this piece. I may come back to that in a moment.
As a result of orders and my observations of
the conduct of the Plaintiffs on Monday, and what might be considered a fit of
pique, Mr. Gordon scrawled on his letter of February 26, 2017 a note, placed it
in an envelope and addressed it to the Chief Justice of this Court. The note
reads:
"I am asking Prothonotary Aalto
be removed from this case due to his improper, unreasonable and unfair
behaviour."
This was followed on March 6th by an e-mail
from Mr. Gordon:
"To whom it may concern, I am
asking that Prothonotary Aalto remove himself from this case as he is acting
inappropriately, unfairly and in an unreasonable manner in the above listed
cases. I will submit more detailed information that it is clear he has no
interest or potentially not capable of acting in a proper manner in these
cases."
That letter was followed by a further
missive on March 7, 2017. That letter reads as follows:
"Case intolerable to attend due
to abuse by Federal officials.
Prothonotary Aalto has set up a
double standard, and is acting unfairly and unreasonably in the above cases.
Due to the improper behaviour by
Aalto."
And let me pause there -- I am not “Aalto”.
I am Your Honour, I'm Prothonotary Aalto, I am Case Management Judge Aalto. I
am not Aalto in the context in which it's used in this letter. Let me
continue.
"Due to the improper behaviour
by Aalto the Federal Lawyers in the case acting for the Respondents, are knowingly
making false statements in court, and being completely rude and intolerable.
The latest episode occurred yesterday
in Court.
After a question by the Respondent was
finished, I was whispering to my Co-plaintiff."
Let me pause. There is nothing in our rules
of practice or in the conduct relating to examinations for discovery that
permit individuals, whether they be counsel or others to whisper in the ear of
a witness. Period. Lawyers know that they are not allowed to answer for a
witness or whisper answers to a witness during the course of an examination for
discovery. It is a practice that goes back into the mists of time. It will
not be tolerated in this proceeding.
Let me continue.
"The Respondent then said I
could not continue the whispering because it would muddy the record."
Let me stop there again. Yes, it would
muddy the record but quite apart from muddying the record it is entirely
inappropriate and improper.
I continue with Mr. Gordon's letter.
"Knowing that the Respondent had
done that throughout their questioning I knew it was false. (Also I asked the
court reporter who told me it was false my whispering would not be on the
record.")
That is not the point. The point is it
should not take place. Period.
I return to Mr. Gordon's letter.
"The respondent then went on an
abusive tirade. This type of unprofessional dishonest behaviour is not
acceptable."
Well, I agree with the statement.
Unprofessional, dishonest behaviour is not acceptable. I do not accept the
conclusionary statements Mr. Gordon is making in his attack on Ms. Linden.
"If the Respondent was at all
concerned about the record they would have verified with the court reporter
what was happening if the court reporter indicated there was a problem I would
have apologized."
I will not repeat that that is not the
issue. I have dealt with the issue earlier relating to this.
Last paragraph of the letter.
"It is clear the federal Lawyer
was knowingly making false statements in court due to the way Aalto has run
these double standard proceedings.
Yours very truly,
Allan J. Gordon CPA, CA, LPA”
So that's Mr. Gordon's response to the Court
and the conduct of the discovery.
The import of these letters, of course, is
that he seeks to have me removed as Case Management Judge in this proceeding
based on his vague allegations of unreasonable behaviour, double standard and
the like. These types of letters are received by courts from time to time.
It's not unusual that judges from time to time be asked to recuse themselves.
In essence that's what Mr. Gordon is doing in this case.
Again, by happenstance, the Honorable Mr.
Justice David Stratus of the Federal Court of Appeal had occasion to issue a
decision dated March 2, 2017, in a case called Her Majesty the Queen in Right
of Canada and the Attorney General of Canada, Applicants, and Ade Olumide,
Respondent [2017 FCA 42].
Justice Stratus was sitting alone on this
matter because it related to an issue that he was hearing as a single judge of
the Federal Court of Appeal. It is a decision that deals in part with recusal
and also deals with vexatious litigants. The part of the case that I want to
emphasize, however, is that which deals with recusals. The respondent in that
case had alleged bias against Justice Stratus and demanded that he recuse
himself. Justice Stratus denied the request for recusal. He said this in
respect of recusals:
"The Chief Justice appointed me
to deal with the latest motions and various proceedings brought by [the
respondent] before the Court. I had no input into that decision. Having been
appointed, I cannot recuse myself absent good legal cause."
Let me pause briefly there. I was appointed
case management judge of this case on September 22nd, 2009, by the Chief
Justice, by the then Chief Justice of this Court. As case management judge I
was appointed to deal with all matters relating to this case leading up to
trial, and to have it ready for a trial after all appropriate steps in the
litigation were taken.
This case has had a tortured history.
Notwithstanding my best effort to try and move it forward in a timely basis, we
are now almost seven and a half years down the road, [Ed. Note: the case has
seen motions re striking the claim, appeals, endless proceedings regarding
production of third party client files of the Plaintiffs, privacy issues and
ultimately production of thousands of pages of documents in a data base which
took a lengthy period of time to develop by the Crown] but at least a trial
date in 2018 that doesn't interfere with the businesses of the Plaintiffs will
take place.
I do not take the job of being a case
management judge lightly. I took an oath when I took this appointment and I
try every day to satisfy that oath to act fairly, impartially and as best as I
can on issues between the parties. Frequently, when one makes a decision there
is a party who is not particularly happy. It is the nature of the process.
It's also one of the outcomes of this job.
Let me return to Justice Stratus'
observations. He goes on to say the following:
"The law is clear that good
legal cause exists if I were biased in fact against [the respondent] or his
case or were otherwise unable to decide the present matter fairly. Further,
good legal cause exists if the legal test for apparent bias is made out. That
test is whether a reasonable, fully-informed person, thinking the matter
through, would conclude that it is more likely than not that I, whether
consciously or unconsciously, would not decide the present appeal fairly."
Let me turn to this case.
The conclusionary statements in Mr. Gordon's
letters do not provide good legal cause. They are merely his opinions of
things, and this Court and many courts act on evidence. As Justice Stratus did
in the Olumide case, I will not recuse myself absent good legal cause. That is
the test to be applied. If judges ran for the hills every time any party
questioned their impartiality, very little would get done in this Court or any
Court. Dissatisfaction with the decision leads to appeals, not to recusals.
So where does this leave us?
A number of observations: Number one, as I
said at the outset, this is a Court proceeding, not a sandbox proceeding. In
future we will conduct meetings between the parties, case conferences in a
courtroom and we will observe all of the process of a Court. That will include
such matters as parties standing to address the Court, not speaking over each
other, not making accusations about the opposite side. I simply will not
tolerate interruptions that I have witnessed in the past again.
Formal orders will be issued relating to
matters that are decided during the case conferences. I have operated this
case on the basis of directions from time to time in the hope that that would
be a way to move this matter forward more efficiently. It hasn't worked. So
we will now return to a more formal structure.
I do not wish to receive correspondence from
the parties unless I invite it.
Mr. Gordon in his correspondence was quite
blunt that he wanted me removed from this case. He's free to bring a motion to
recuse me. If he does, let us get this matter resolved now, not later. If he
wishes to have me removed as the case management judge in this case, he shall
bring a formal motion for recusal before the Court. It shall be served and
filed on or before March 31, 2017. Motions for recusal are heard at first
instance by the judge who is being asked to recuse him or herself. If the
motion is brought, I will set a schedule for any responding material if the
Crown wishes to engage in any issue. And then I will set a date to hear it in
open Court. And whatever outcome may come of that motion, a formal order will
result.
. . .
[The balance of the transcript is omitted as the hearing continued with
an exchange between the Court and the parties concerning dates and discovery/production
issues]
[7]
Some additional observations need to be made.
First, before issuing this Order I required a full copy of the transcribed
transcript of the hearing which only recently became available. Second, none
of the allegations against Ms. Linden or her alleged conduct are accepted by
this Court. Third, the omitted portion of the transcript deals with exchanges
between the Court, the Plaintiffs and Ms. Linden concerning the ongoing
examinations for discovery which are being held in the courthouse so that I am
able to attend to deal with issues as they arise. Fourth, the parties are to
conduct themselves in accordance with my observations in Court and the Plaintiffs
are to answer questions put to them in a forthright factual basis without
opinion, editorializing or accusations. Fifth, in my commentary in Court, I
ordered Mr. Gordon, should he so choose, to seek to have me recused that he
should bring a formal motion for recusal before the Court to be served and
filed on or before March 31, 2017. That time has passed and Mr. Gordon has not
done so. In the result there is no need to make that part of this formal
order.
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