Docket: T-1686-21
Citation: 2023 FC 1605
Ottawa, Ontario, November 30, 2023
PRESENT: The Honourable Madam Justice Turley
BETWEEN: |
CHRISTOPHER JOHNSON |
Plaintiff |
and |
CANADIAN TENNIS ASSOCIATION, MILOS RAONIC, GENIE BOUCHARD, DENIS SHAPOVALOV and FELIX AUGER-ALIASSIME |
Defendants |
ORDER AND REASONS FOR ORDER
I. Overview
[1] The Plaintiff, a self-represented litigant, appeals the decision of Associate Judge Coughlan dated October 26, 2023 under Rule 51 of the Federal Courts Rules, SOR/98-106 [Rules]. The Associate Judge dismissed the Plaintiff’s motion for an order pursuant to Rule 97(b) of the Rules compelling the representative of the Defendant Canadian Tennis Association [Tennis Canada] President Michael Downey and the Defendant Felix Auger-Aliassime [the two Defendants] to answer questions arising from their answers given on examination for discovery.
[2] The Plaintiff’s motion is without merit. He makes bald allegations of bias against the Associate Judge and fails to demonstrate any error in the underlying decision. For the reasons that follow, the Plaintiff’s motion is dismissed, with costs payable forthwith to the two Defendants in the total amount of $4,000.
II. Background
[3] In the underlying action, the Plaintiff, a photographer and journalist, alleges copyright infringement by the Defendants of his photographs.
[4] Associate Judge Coughlan has been case managing this action since May 30, 2022. As noted by Justice Régimbald, as of April 5, 2023, there had been more than ten (10) orders, twelve (12) directions, and many case management conferences: Johnson v Canadian Tennis Association, 2023 FC 483 at para 3 [Johnson 2023]. Since Justice Régimbald’s decision, there have been another three (3) orders, six (6) directions, and one (1) case management conference. In addition, this is the third time the Plaintiff has sought to appeal an order rendered by Associate Judge Coughlan.
A. Written interrogatories
[5] The Plaintiff elected to conduct examinations for discovery of the two Defendants by way of written interrogatories. The two Defendants brought a motion to strike or re-frame many of the Plaintiff’s questions.
[6] By orders dated August 25, 2022, Associate Judge Coughlan struck a large number of the Plaintiff’s questions and gave the two Defendants thirty (30) days to respond to the remaining questions. The two Defendants provided written answers on September 23, 2022. The Plaintiff did not appeal either of the August 25, 2022 orders.
[7] The Plaintiff sought leave to conduct oral discoveries of the two Defendants. Associate Judge Coughlan dismissed that motion. The Plaintiff appealed her order. In dismissing the Plaintiff’s appeal, Justice Régimbald noted that if the Plaintiff had relevant questions arising as a result of the two Defendants’ answers to the written interrogatories, his recourse is a motion under Rule 97(b) for an order compelling the Defendants “to answer questions improperly objected to and respond to any proper questions arising from their answers”
: Johnson 2023 at para 35.
B. Plaintiff’s Rule 97(b) motion
[8] Associate Judge Coughlan granted the Plaintiff leave to bring a motion seeking answers to questions arising from answers previously given by the two Defendants on discovery. She specifically directed the Plaintiff to particularize the questions for which further answers were sought, and the basis for the relief: Order dated June 28, 2023 at para 2. In addition, the Associate Judge cautioned the Plaintiff about the scope of follow-up questions, specifically that “he was not being granted leave to conduct a wholesale re-examination for discovery”
. The Plaintiff was further warned that if his motion was “abusive and failed to adhere to the cautions given, it would be dismissed and would result in a substantial costs award”
: Order dated October 26, 2023 at para 15.
[9] The Plaintiff’s motion record was 187 pages, with approximately 64 pages of questions. He proposed approximately 140 follow-up questions for Tennis Canada President Michael Downey and approximately 124 follow-up questions for the Defendant Felix Auger-Aliassime.
[10] Associate Judge Coughlan rejected the Plaintiff’s 76-page reply to the two Defendants’ submissions because it was filed late and was not proper reply: Order dated October 26, 2023 at para 18.
[11] Ultimately, after reviewing the proposed questions and the parties’ submissions, the Associate Judge dismissed the Plaintiff’s motion, finding that it was essentially an impermissible collateral attack on orders previously made that had not been appealed:
[25] Although time consuming and laborious, I have carefully reviewed the Plaintiff’s proposed questions. I am left in no doubt that by this motion, the Plaintiff merely seeks to redouble his efforts to conduct a second round of examinations for discovery of the Defendants. In attempting to do so, he effectively ignores the Orders and Directions of this Court. For the reasons set out below, I am satisfied that this motion amounts to little more than an impermissible collateral attack on Orders made and not appealed.
[12] Associate Judge Coughlan concluded that many of the questions were substantially the same or a variation of questions that she had struck out in her August 25, 2022 orders, which the Plaintiff did not appeal: Order dated October 26, 2023 at paras 26-29.
[13] Furthermore, the Associate Judge dismissed the Plaintiff’s motion for the following additional reasons:
(i)Despite the Court’s caution about the proper scope of discovery, the Plaintiff continues to ask questions based on his assertion of false or inconsistent evidence: Order dated October 26, 2023 at paras 30-32, 36.
(ii)In accordance with Rule 97(b), the Plaintiff is limited to asking proper questions arising from an answer. It does not entitle the Plaintiff to conduct a re-examination for discovery. The Plaintiff’s proposed follow-up questions far exceed his original examination for discovery questions: Order dated October 26, 2023 at para 33.
(iii)Many of the proposed questions are irrelevant, ask for a legal conclusion, or are abusive: Order dated October 26, 2023 at paras 34-35.
[14] In her reasons, Associate Judge Coughlan referred to a number of the Plaintiff’s proposed questions to illustrate how the questions were similar to those questions that had been struck, irrelevant, abusive or improper, and generally well beyond the scope of Rule 97(b): Order dated October 26, 2023 at paras 26-28, 31-32, 34-35.
[15] The Associate Judge determined that an award of costs in the amount of $2,000, payable forthwith and in any event of the cause, was justified under Rule 400 for a number of reasons. Most significantly, she held that this was the Plaintiff’s third motion concerning further examinations for discovery. Despite being cautioned that an abusive motion would result in serious costs consequences, the Plaintiff proposed 64 pages of follow-up questions that were largely irrelevant, abusive, or a variant of questions previously struck: Order dated October 26, 2023 at para 38.
III. Issues and Standard of Review
[16] The Plaintiff challenges the Associate Judge’s dismissal of his motion on two grounds. First, he alleges that Associate Judge Coughlan “demonstrated bias”
. Second, he asserts that she “misapprehended, ignored or denied several important facts”
: Notice of Motion dated November 4, 2023 at para 4.
[17] Decisions made on motions under Rule 97(b) are discretionary: Canada (Attorney General) v Fink, 2017 FCA 87 at para 7. A discretionary order of an Associate Judge is subject to the appellate standard of review set out by the Federal Court of Appeal in Hospira Healthcare Corporation v Kennedy Institute of Rheumatology, 2016 FCA 215 at paras 27-28, 65-66, 79 and Canada (Attorney General) v Iris Technologies Inc, 2021 FCA 244 at para 33 [Iris]. As a result, questions of fact and questions of mixed fact and law are reviewable on a standard of palpable and overriding error, while questions of law will be reviewed on the standard of correctness: Iris at para 33.
[18] Here, the Plaintiff alleges that the Associate Judge misapprehended the facts in dismissing his motion. On that basis, the onus is on the Plaintiff to demonstrate a palpable and overriding error in the Associate Judge’s order: Johnson v Canadian Tennis Association, 2022 FC 776 at para 23 [Johnson 2022]. As explained by the Federal Court of Appeal, this is a high threshold to meet – it is not enough to pull at leaves and branches and leave the tree standing – the entire tree must fall: Mahjoub v Canada (Citizenship and Immigration), 2017 FCA 157 at para 61; Canada v South Yukon Forest Corporation, 2012 FCA 165 at para 46.
[19] Furthermore, this Court has repeatedly emphasized that case management judges are to be afforded deference, particularly in dealing with factually-dependent issues: Tétreault v Boisbriand (City), 2023 FC 168 at para 25 [Tétreault]; Hughes v Canada (Human Rights Commission), 2020 FC 986 at para 67; Da'naxda'xw First Nation v Peters, 2020 FC 208 at paras 23, 39; Bard Peripheral Vascular, Inc v WL Gore & Associates, Inc, 2015 FC 1176 at para 42 [Bard].
[20] The two Defendants raise a preliminary issue, namely the admissibility of the Plaintiff’s new affidavit. They argue that the affidavit should not be admitted on this appeal, as it does not meet the test for fresh evidence.
IV. Analysis
A. Plaintiff’s affidavit is inadmissible
[21] The general rule is that an appeal of an Associate Judge’s order is to be decided based on the material that was before the Associate Judge: Johnson 2022 at para 31; Canjura v Canada (Attorney General), 2021 FC 1022 at para 12 [Canjura]; Onischuk v Canada (Revenue Agency), 2021 FC 486 at para 9 [Onischuk]. It is only in exceptional circumstances where new evidence may be admissible, including where the new evidence (i) could not have been made available earlier; (ii) will serve the interests of justice; (iii) will assist the court; and (iv) will not seriously prejudice the other side: Canjura at para 12.
[22] There are no exceptional circumstances allowing the Plaintiff to file new evidence on this appeal. The Plaintiff’s affidavit merely seeks to rehash the history of these proceedings, most of which repeats what he had previously submitted in the affidavit and written representations related to his Rule 97(b) motion. Furthermore, the affidavit he filed on this appeal is largely argumentative and does not set out relevant facts as required by Rule 81(1) of the Rules: Atidigah v Canada (Citizenship and Immigration), 2023 FC 221 at para 5; Rainy River First Nations v Bombay, 2022 FC 1434 at paras 36, 54; Abi-Mansour v Canada (Attorney General), 2015 FC 882 at paras 30-31.
[23] In addition, I agree with the two Defendants that the Plaintiff makes bald and unsupported allegations against the Associate Judge and counsel for the Defendants that are not in the interests of justice to admit. As discussed below, the only issue of bias properly raised in this appeal is whether the Associate Judge exhibited bias in dismissing the Plaintiff’s Rule 97(b) motion. This is not a wholesale review of the Associate Judge’s conduct in the proceedings to date. In that vein, the Plaintiff’s affidavit is largely irrelevant.
[24] For these reasons, I decline to admit the Plaintiff’s affidavit, sworn on November 4, 2023 as evidence on this appeal.
B. Unfounded allegations of bias
(1) High threshold to rebut presumption of judicial integrity and impartiality
[25] Allegations of bias against members of the judiciary are very serious and must not be made lightly as they engage the very foundation of our judicial system: Firsov v Canada (Attorney General), 2022 FCA 191 at para 57 [Firsov]; Njoroge v Royal Canadian Mounted Police, 2023 FC 1181 at para 15 [Njoroge]; Tétreault at para 28; Ernst v Canadian National Railway Company, 2021 FC 16 at para 50 [Ernst].
[26] As the Supreme Court has held, the presumption of judicial integrity and impartiality is strong and is not easily rebutted: Cojocaru v British Columbia Women’s Hospital and Health Centre, 2013 SCC 30 at para 22.
[27] The onus of demonstrating bias falls on the person alleging it and the threshold is high: Njoroge at para 12; Tétreault para 33. The Plaintiff must establish that “an informed person, viewing the matter realistically and practically – and having thought the matter through – … [would] think that it is more likely than not that the [decision-maker], whether consciously or unconsciously, would not decide fairly”
: Firsov at para 56, citing Yukon Francophone School Board, Education Area #23 v Yukon (Attorney General), 2015 SCC at paras 20-21, 26.
[28] It is therefore incumbent on the Plaintiff to adduce cogent, convincing, and substantial evidence to meet the high threshold: Patel v Canada (Attorney General), 2023 FC 922 at para 83 [Patel]; Tétreault at para 32. As aptly stated by Justice Brown, allegations of bias “cannot be made on mere suspicion, conjecture, insinuations, or a mere impression of an applicant”
: Ernst at para 50.
(2) The Plaintiff fails to demonstrate bias
[29] Here, the Plaintiff alleges that the Associate Judge demonstrated bias in dismissing his motion, asserting that “an impartial Court would have granted his request”
: Notice of Motion at para 3. It bears repeating that this appeal is not a wholesale review of the Associate Judge’s conduct of the proceedings to date as the case management judge.
[30] However, the majority of the arguments in the Plaintiff’s Written Representations under the heading “Bias and Double Standards”
make allegations about the Associate Judge’s conduct of these proceedings writ large. More specifically, the Plaintiff refers to previous orders and case management conferences, and alleges that the Associate Judge was not impartial and that she imposed double standards on the parties: Plaintiff’s Written Representations at paras 26-27(a)-(l), (n). Given the limited nature of the appeal before me, I have not considered the Plaintiff’s submissions concerning bias generally but only those arguments as they relate to the Associate Judge’s disposition of his Rule 97(b) motion.
[31] In his Written Representations, the Plaintiff advances two main grounds in support of his bias allegations relevant to this appeal. First, he states that the Associate Judge studied and taught at the same law school as counsel for the two Defendants: Plaintiff’s Written Representations at para 27. Second, the Plaintiff asserts that it was “unfair and unjust”
that the Associate Judge did not accept his reply submissions on the motion: Plaintiff’s Written Representations at para 27(m). The Plaintiff has failed to meet the high threshold necessary to rebut the presumption of judicial integrity and impartiality on either ground.
(a) Bias not established by virtue of attending same law school
[32] The Plaintiff did not tender any evidence to support his bias allegation based on the Associate Judge being a “fellow alum”
of the University of Alberta law school: Plaintiff’s Written Representations at para 39. Taken at face value, this allegation is wholly without merit.
[33] The fact that a judge may have attended the same law school as one of the litigant’s counsel does not support the conclusion, on a balance of probabilities, that “the judge was, in fact, biased or that a reasonable, right-minded and properly informed person would conclude that the judge did not decide the case impartially”
: Patel at para 83. Indeed, if merely attending the same law school was sufficient to justify a bias finding, judges would be routinely disqualified from sitting on cases.
[34] I am satisfied that a reasonably informed person, viewing the matter realistically, would not conclude that the Associate Judge’s impartiality was affected by virtue of the fact that she may have attended the same law school as the two Defendants’ counsel.
(b) Bias allegations based on disagreement with Associate Judge’s decision
[35] The jurisprudence is clear that the fact that a judge decides against a party does not, in and of itself, constitute bias: Njorge at para 15; Tétreault at para 34; Onischuk at para 43. The Plaintiff’s allegations of bias are essentially based on his disagreement with the Associate Judge’s findings.
[36] For example, the Plaintiff argues that the Associate Judge “demonstrates her bias and hostility toward me by saying that my motion ‘amounts to little more than an impermissible collateral attack on Orders made and not appealed’”
: Plaintiff’s Written Representations at p 40. I do not agree. As discussed below, there is no palpable and overriding error in the Associate Judge’s dismissal of the Plaintiff’s motion.
[37] Similarly, the Plaintiff alleges that the Associate Judge exhibited bias because she rejected his reply submissions: Plaintiff’s Written Representations at para 27(m). The Associate Judge, however, appropriately refused to admit the late-filed 76-page reply in which the Plaintiff “attempted to reframe the 64 pages of questions in the motion record”
: Order dated October 26, 2023 at para 18. Furthermore, as set out in the Associate Judge’s Direction dated August 17, 2023, the “Plaintiff’s Reply impermissibly purports to add two additional documents. Those documents appear to be an attempt to restate or reargue his underlying motion for relief pursuant to Rule 97 to which the Defendants have already responded”
.
[38] In accordance with Rule 369(3), any reply submissions must be filed within four (4) days of being served with the respondent’s record. In addition, new evidence and new arguments are not permitted on reply. Rather, proper reply submissions are “limited to issues that a party had no opportunity to deal with, or which could not reasonably have been anticipated”
: Deegan v Canada (Attorney General), 2019 FC 960 at para 121.
[39] Justice Grammond recently held that “[c]ase management judges do not show bias simply by discharging their duty of managing the proceeding in a fair and efficient manner or by requiring compliance with the Federal Courts Rules”
: Onischuk at para 44. This is precisely what occurred here. The Associate Judge rejected the Plaintiff’s reply for filing because it did not constitute proper reply. Moreover, the Associate Judge dismissed the Plaintiff’s motion because his proposed follow-up questions were “generally irrelevant, abusive or improper”
and the scope of the questions went “well beyond that permitted by Rule 97(b)”
: Order dated October 26, 2023 at para 35.
C. No palpable and overriding error made by the Associate Judge
[40] For the reasons that follow, the Plaintiff has failed to establish that Associate Judge Coughlan made a palpable and overriding error in dismissing his Rule 97(b) motion. As set out above, a wide margin of deference is afforded to case management judges on an interlocutory motion, given their familiarity with the history, facts, and complexities of the matter at hand. In particular, they are best placed “to direct and control the discovery process”
: Bard at para 42.
[41] Here, the Associate Judge concluded that the approximately 245 proposed follow-up questions were irrelevant, abusive, or improper questions on discovery. Based on the sheer number of proposed questions, the Associate Judge’s approach was entirely reasonable: Bard at para 41. After reviewing the questions, she addressed them globally, but also provided concrete examples of questions falling into each category of impropriety.
(1) Impermissible collateral attack
[42] The Associate Judge’s main basis for dismissing the Plaintiff’s motion is that it “amounts to little more than an impermissible collateral attack on Orders made and not appealed”
: Order dated October 26, 2023 at para 25. In her reasons, Associate Judge Coughlan provides numerous examples of how the questions are substantially the same as, or a variance of, questions she had struck out in her August 25, 2022 orders: Order dated October 26, 2023 at paras 26-29.
[43] A collateral attack is “an impermissible attempt to nullify the result of another proceeding outside of the proper channels for the review of that decision”
: Mancuso v Canada (National Health and Welfare), 2015 FCA 227 at para 39 [Mancuso]. The Plaintiff did not appeal the August 25, 2022 orders and he cannot now seek to ask the same or similar questions previously struck as improper questions on discovery. This would result in an end-run around the Associate Judge’s previous orders: Boily v Canada, 2019 FC 323 at para 45.
[44] In my view, the Plaintiff’s attempt to ask similar questions is not only an impermissible collateral attack on the Associate Judge’s previous orders, but is also an abuse of the Court’s process in that it amounts to an attempt to relitigate issues already decided: Onischuk at para 33. The two doctrines – collateral attack and abuse of process – are related, but distinct: Mancuso at para 39. In the circumstances, both doctrines are applicable to the extent that the proposed follow-up questions are simply re-cast versions of prior questions that were struck by the Court.
(2) Follow-up questions beyond proper scope
[45] In addition to collateral attack, the Associate Judge determined that many of the proposed questions were beyond the permissible scope of examination for discovery. On a prior appeal brought by the Plaintiff, Justice Régimbald made clear that “the fact that Mr. Johnson believes that the Defendants were not truthful in their responses and provided inconsistent statements, is not a ground for oral discovery”
: Johnson 2023 at para 32.
[46] However, as found by Associate Judge Coughlan, the Plaintiff still sought to ask the two Defendants “a multitude of additional questions based upon his assertion that the earlier answers are false or inconsistent”
: Order dated October 26, 2023 at para 31. Indeed, the Plaintiff acknowledges that he is doing just that: “I am respectfully asking them to clarify their vague or inconsistent claims”
: Plaintiff’s Written Representations at para 32(b). As explained by Justice Régimbald, however, these types of questions are not proper discovery questions, but rather evidence the Plaintiff can rely upon to seek to impeach the Defendants’ credibility at trial: Johnson 2023 at para 32.
[47] The Associate Judge further concluded that, as a whole, the Plaintiff’s proposed questions went well beyond the proper scope of follow-up questions and amounted to a “full-scale re-examination”
: Order dated October 26, 2023 at para 33. In fact, the list of proposed follow-up questions exceeds the original questions asked on discovery. In his motion, the Plaintiff proposed approximately 140 follow-up questions for Tennis Canada President Michael Downey and approximately 124 follow-up questions for the Defendant Felix Auger-Aliassime.
[48] Finally, Associate Judge Coughlan concluded that many of the proposed questions “are irrelevant, ask for a legal conclusion or are abusive”
. Fifteen examples of such questions are set out in her reasons: Order dated October 26, 2023 at para 34. Determining the propriety of a discovery question “requires a contextualized measure of judgment”
that is properly exercised by Associate Judges in their case-management roles: Bard at para 42.
[49] I appreciate that the Plaintiff is self-represented and not legally trained; however, he misapprehends the discovery process. Contrary to his assertions, simply prefacing a question with “do you agree”
or posing a question that demands a “yes”
or “no”
answer does not establish that the question is a relevant and/or proper question: Plaintiff’s Written Representations at paras 6, 32(a), 42.
[50] Based on the foregoing, I am unable to conclude that Associate Judge Coughlan made any palpable and overriding errors in dismissing the Plaintiff’s motion for leave to ask further questions arising from the two Defendants’ prior answers given on discovery.
D. Costs are warranted
[51] I am exercising my discretion under Rules 400 and 401 of the Rules to award costs against the Plaintiff for two main reasons. First, and most significantly, costs are warranted given the unsupported allegations of bias and impropriety levelled against Associate Judge Coughlan. While I will not repeat them here, the offensive tone and disrespectful nature of the Plaintiff’s submissions concerning the Associate Judge’s conduct as case management judge merits sanction by the Court.
[52] The jurisprudence is clear that unwarranted allegations of bias will not be tolerated. Bias allegations not only question the personal integrity of the particular judicial officer but constitute an attack on the judicial system as a whole: Rodney Brass v Papequash, 2019 FCA 245 at para 17; Coombs v Canada (Attorney General), 2014 FCA 222 at para 14; Njoroge at para 18; Tétreault at para 28.
[53] Furthermore, the Court cautions the Plaintiff that if he continues to make bald allegations, he may face serious consequences. In Abi-Mansour v Canada (Aboriginal Affairs), 2014 FCA 272, the Federal Court of Appeal stated:
[15] Going forward, Mr. Abi-Mansour should know that unsubstantiated allegations of bias expose him to the dismissal of his proceedings as an abuse of process, either at the request of the opposing party or on the Court’s own motion. He should govern himself accordingly.
[54] In addition, the Plaintiff has made serious allegations of bad faith and misconduct against the two Defendants’ counsel in this appeal. Notably, Associate Judge Coughlan has repeatedly cautioned the Plaintiff about his allegations of misconduct and impropriety against the parties, counsel, and the Court: Order dated January 11, 2023 at paras 10-11, 24; Order dated November 8, 2023 at paras 22-23. Most recently, in an order dated November 8, 2023, the Associate Judge remarked that his “behaviour continues unabated”
: Order dated November 8, 2023 at para 22.
[55] Second, I agree with the two Defendants’ counsel that an elevated costs award is justified as the appeal was “frivolous, vexatious and unnecessary”
: Defendants’ Written Representations at para 15(a). Moreover, as noted by the Associate Judge in her reasons below, when she granted the Plaintiff leave to bring a Rule 97(b) motion, she cautioned him about the scope of permissible follow-up questions and serious cost consequences if his motion was abusive: Order dated October 26, 2023 at paras 15, 38.
[56] The Plaintiff, however, failed to pay heed to the Associate Judge’s caution. He sought to ask approximately 245 follow-up questions, many of which were re-cast versions of questions previously struck by the Associate Judge in her August 25, 2022 orders, and questions that ignored both the Associate Judge’s orders as well Justice Régimbald’s cautions about the purpose of discovery questions: Order dated October 26, 2023 at paras 25-33, 36. I agree with Associate Judge Coughlan that the “Court cannot condone such conduct”
: Order dated October 26, 2023 at para 38.
[57] Taking into account the circumstances of this matter, an award of costs of $4,000 payable forthwith in accordance with Rule 401(2) is appropriate and just.
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