IN THE SUPREME COURT OF BRITISH COLUMBIA
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Citation: |
Dempsey et al. v. Envision Credit Union et al., |
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2005 BCSC 1730 |
Date: 20051209
Docket: S91786
Registry: New Westminster
Between:
John Ruiz Dempsey, on behalf of the People of Canada
Plaintiffs
And
Envision Credit Union, Laurentian Bank of Canada,
Royal Bank of Canada, Canadian Imperial Bank of
Commerce, Bank of Montreal, TD Canada Trust,
Canadian Payments Association and others
Defendants
Brought Under the Class Proceedings Act, R.S.B.C. 1996, c. 50
- and -
Docket: L050637
Registry: Vancouver
Between:
Pavel N. Darmantchev, Ian Denis Gravlin, Dena Alden
Plaintiffs
And
MBNA Canada Bank and others
Defendants
Brought Under the Class Proceedings Act, R.S.B.C. 1996, c. 50
- and -
Docket: L050149
Registry: Vancouver
Between:
Ian Denis Gravlin and Pavel N. Darmantchev
Plaintiffs
And
Canadian Imperial Bank of Commerce; Kronis, Rotsztain,
Margles, Cappel; Barbara K.H. Damm; Richards and Richards;
and George Richards and others
Defendants
Brought Under the Class Proceedings Act, R.S.B.C. 1996, c. 50
- and -
Docket: S89429
Registry: New Westminster
Between:
Citi Cards Canada Inc.
Plaintiff
And
Pedro Liong also known as Pedro C. Liong and
Linda Liong also known as Linda Kua Liong
Defendants
Brought Under the Class Proceedings Act, R.S.B.C. 1996, c. 50
- and -
Docket: S044649
Registry: Vancouver
Between:
Bank of Montreal
Plaintiff
And
Pedro Liong and Linda Liong
Defendants
Counterclaim Brought Under
the Class Proceedings Act, R.S.B.C. 1996, c. 50
- and -
Docket: S045442
Registry: Vancouver
Between:
MBNA Canada Bank
Plaintiff
And
Otto Louis Luinenburg
Defendant
Brought Under the Class Proceedings Act, R.S.B.C. 1996, c. 50
- and -
Docket: S87315
Registry: New Westminster
Between:
Canadian Imperial Bank of Commerce
Plaintiff
And
Otto Louis Luinenburg
Defendant
And
Kronis, Rotsztain, Margles, Cappel,
Barbara K.H. Damm,
Richards and Richards,
George Richards and others
Defendants by Counterclaim
Before: The Honourable Madam Justice Garson
Reasons for Judgment
| Appearing on His Own Behalf in New Westminster Action No. S91786: |
John Dempsey |
| Counsel for Envision Credit Union, Canadian Imperial Bank of Commerce, Bank of Montreal and Canadian Payments Association in Action No. S91786; and for Kronis, Rotsztain, Margles, Cappel, Barbara K.H. Damm, Richards and Richards and George Richards in Action Nos. L050149 and S087315: |
D.R. McGowan |
| Counsel for Laurentian Bank of Canada, Royal Bank of Canada and TD Canada Trust in Action No. S91786: |
A.D. Borrell |
| Appearing on His Own Behalf in Vancouver Action Nos. L050637 and L050149: |
Pavel Darmantchev |
| No one appearing for Ian Denis Gravlin: |
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| Counsel for MBNA Canada Bank and Citi Cards Canada Inc. in Action Nos. L050637, S89429 and S045442: |
D.T. Neave |
| Appearing on His Own Behalf and On Behalf of Linda Liong in New Westminster Action No. S89429 and Vancouver Action No. S044649: |
Pedro Liong |
| Appearing on His Own Behalf in New Westminster Action No. S87315 and Vancouver Action No. S045442: |
Otto Luinenburg |
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Date and Place of Hearing: |
September 12, 2005 |
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Vancouver, B.C. |
INTRODUCTION
[1] This is an application made by the plaintiffs, Messrs. Dempsey, Darmantchev, Liong, and Luinenburg, in the within seven actions, that I recuse myself from presiding over these matters as case management judge or in any capacity on various grounds which I shall describe below.
[2] The individuals, Messrs. Dempsey, Darmantchev, Liong, and Luinenburg, are either plaintiffs in the within actions or plaintiffs by counterclaim. In these reasons, I shall refer to them as plaintiffs.
NOTICE OF MOTION
[3] Mr. Dempsey filed the notice of motion in Dempsey v. Envision Credit Union et al., Vancouver Action No. S91786 (the "Dempsey Action"), but the same motion is brought in each of these actions on the same grounds by the other three individual plaintiffs. I quote from the notice of motion as follows:
TAKE NOTICE that an application will be made by the Plaintiff, John Ruiz Dempsey, to The Honourable Chief Justice Donald I. Brenner at the Courthouse at 651 Carnarvon Street, New Westminster[,] British Columbia, at a date and time to be set for an order that:
1. The Case Management Judge, the Honourable Madam Justice Nicole J. Garson be recused or precluded from presiding over this matter and other matters involving the applicant John Ruiz Dempsey.
2. Any further appointment of any case management judge be decided by an independent panel or jury.
3. Any further appointment of any case management judge be preceded by full disclosure of all relevant facts and possible conflict of interest to the applicant regarding any case management judge.
4. All similar or related class action suits now filed against the financial institutions to be decided on its own merits and have its own assigned case management judge and not be presided by one single judge.
[4] There are other claims for relief in the notice of motion which were not argued before me at this time. There are pending applications pursuant to Rule 19(24) by all the defendants to strike out the actions or counterclaims in all these actions. Pending those hearings, I have stayed each of the seven actions.
[5] The affidavit of Mr. Dempsey filed in support of the notice of motion is brief and I shall reproduce it in full:
I, John Ruiz Dempsey of 14639 - 81A Avenue, Surrey, B.C., MAKE OATH AND SAY AS FOLLOWS:
1. That I am a Plaintiff herein and as such, have personal knowledge of the matters and facts herein deposed to except where stated to be based on information and belief, and where so stated, do verily believe the same to be true;
2. That I make this Affidavit in support of my Notice of Motion to be filed together with this Affidavit;
3. The herein action is of national importance because of the number of people represented in this action;
4. The case management judge assigned to this case was assigned by the Chief Justice without prior consultation with the Plaintiffs. The case management judge has demonstrated clear bias or apprehension of bias against the Plaintiff herein and other non-bank litigants in this and other similar actions.
5. The neutrality requirement helps to guarantee that life, liberty, or property will not be taken on the basis of an erroneous or distorted conception of the facts or the law. The said judge has not complied with said neutrality requirement.
6. All courts have a constitutional obligation as well as an obligation to God to safeguard personal liberties and to uphold the Rule of Law and the supremacy of God.
7. The above mentioned Judge has in the past deliberately violated other litigant's personal liberties and/or has wantonly refused to provide due process and equal protection to all litigants before the court or has behaved in a manner inconsistent with that which is needed for full, fair, impartial hearings.
8. The Canadian Constitution, the Code of Ethics for Judges and the Law of Canada guarantees an unbiased Judge who will always provide litigants with full protection of ALL RIGHTS. Therefore, the Plaintiff respectfully demands said judge recuse herself in light of her prior dealings as lead counsel for TD Canada Trust as well as her past unethical and/or illegal conduct or conduct which gives the Plaintiff good reason to believe the said Judge cannot hear the herein action in a fair and impartial manner
9. The case management judge has demonstrated clear disregard for the rule of law and total disbelief in the supremacy of God.
10. The case management judge is in violation of her oath of office.
11. The case management judge or any other judge of the court does not have jurisdiction over the Plaintiff, John Ruiz Dempsey. Attached hereto and marked as Exhibit "A" is a copy of the Plaintiff's Constructive Notice of Child of God Status as filed in Gravlin et al v. CIBC et al S.C.B.C. No. L050149 Vancouver Registry and LAW SOCIETY OF BRITISH COLUMBIA v. DEMPSEY S.C.B.C. # L91905 Vancouver Registry.
12. The defendants in this action are seeking to strike the Statement of Claim and to unseat the Plaintiff from the judgment seat without any valid or juristic reason, argument, claim or counterclaim.
13. The matter has not yet progressed beyond the discovery process. The defendants are making every effort to prevent the Plaintiff from making discovery of the defendants.
14. Other than bare denials, the defendants have not provided any reasonable answer or defence against the allegations set forth in the Statement of Claim.
[6] Exhibit "A" to Mr. Dempsey's affidavit is entitled, "Constructive Notice of Child of God Status," and I reproduce it in full:
Whereas Canada is a nation founded upon the belief in the principles of the supremacy of God and the rule of law, and,
Whereas the number two position in that hierarchy is not claimed by anyone, and,
Whereas the governments of this nation seem to rely on deception to gain the power to govern, and,
Whereas I am desirous of living my life as a 'Child of God,' and,
Whereas the only powers able to claim any authority over a 'Child of God' is God, and,
Whereas neither the government, nor it's [sic] agents nor its representatives or employees are God, or above God, and,
Whereas by legally claiming the number two position in the above mentioned hierarchy, I occupy a position above all governments and their agents and employees and representatives,
Be it known to any and all, that on this date,
June 21, 1005, I John Ruiz Dempsey a free living man, do hereby lawfully claim the status of 'Child of God'.
Any person, living or artificial who wishes to claim any authority over me must first prove they exist above God; they are God; they are between me and God; or they have a document upon the face of which can be found the verifiable signature of God.
Failure to first do one of the above mentioned things means all claims to authority is abandoned or unlawful.
Attempting to exercise any authority over me without first fulfilling one of the four above mentioned requirements is an unlawful act of fraud and/or extortion.
[7] In submissions, the plaintiffs described four separate grounds for objecting to my continuing to preside as case management judge in these seven actions or to my presiding over further applications in these actions:
1. My past association as counsel for one of the defendant banks.
2. My previous ruling in Gravlin et al. v. Canadian Imperial Bank of Commerce et al., 2005 BCSC 839 (the "Gravlin Ruling").
3. Mr. Dempsey's allegation I am biased, because I said that religion had no place in the courtroom in the Gravlin Ruling.
4. The last ground is less specifically described. Mr. Dempsey asserts that he has not "accepted" my jurisdiction to hear this matter.
[8] The plaintiffs say that the reference in the notice of motion to my "past unethical and/or illegal conduct" relates to the Gravlin Ruling.
DESCRIPTION OF UNDERLYING LITIGATION
[9] The within actions are proposed class actions, premised on the assertion that the defendants' banking practises are unlawful. Claims against the law firms arise from debt collection proceedings which have been commenced against the plaintiffs.
[10] In the Gravlin Ruling, commencing at ¶ 6, I describe the claims in that action and in Darmantchev et al. v. MNA Canada Bank et al., Vancouver Action No. L050637 (the "Darmantchev Action"). The within application is brought in those actions and the six other actions. In each of the actions, the claims are substantially the same and similar language is used in the statements of claim or counterclaims as I have described in Gravlin. I will not repeat those descriptions here.
CONFLICT OF INTEREST
[11] A judge should not recuse himself, or herself, from a case without a good reason. In De Cotiis et al. v. De Cotiis et al., 2004 BCSC 117, Groberman J. considered an application that he recuse himself from that case. He said at ¶ 10 of his reasons for judgment:
There is, however, another aspect of these matters that must not be forgotten. It is the duty of a judge to hear cases that come before him or her, and a party should not be able to unilaterally choose not to have a matter heard by a particular judge simply because that party would prefer that another judge hear the case. If one party, without sound reason, is able to unilaterally determine that a particular judge will not hear a case, it also tends to bring the administration of justice into disrepute.
[12] I now turn to a consideration of the reasons that the plaintiffs say I should recuse myself from their cases.
[13] The plaintiffs claim that I should recuse myself from hearing further applications in these cases because of the above-noted unfavourable ruling, in which I denied Mr. Dempsey the privilege of audience. Judges are required to make procedural and substantive orders on interim applications and at trials. An unfavourable ruling in the course of an action, in and of itself, is not indicative of bias against the unsuccessful party. I find this argument is without merit.
[14] The plaintiffs assert that I am biased on account of a statement that religious beliefs have no place in the courtroom alleged to have been made in my Reasons for Judgment in the Gravlin Ruling. Mr. Borrell, counsel for Laurentian Bank of Canada, Royal Bank of Canada and TD Canada Trust, says that ¶ 69 and ¶ 71 are the only paragraphs in the Gravlin Ruling that could possibly form the basis of the plaintiff's assertion. Those paragraphs read:
Conduct in Litigation
Mr. Dempsey is courteous, co-operative, well spoken and well prepared in the court room. However, he has declared that he does not consider himself bound by the rule of law. He says he is bound by natural law or a higher law. I set out above his position in this regard, in quoting from his written submission. Mr. Dempsey is of course entitled to his societal, religious and political views, but a law suit is not a proper tool to advance political causes in the absence of a legal wrong. In my view, to grant him the privilege of acting as counsel before this court when he asserts that he will not adhere to statutory rules, laws or common law, is to invite chaos in this court and to risk bringing the administration of justice into disrepute. (See R. v. Dick).
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Conclusion on the Exercise of Discretion
I conclude, for the reasons set out in the preceding five paragraphs, that it is neither necessary nor proper to grant Mr. Dempsey the privilege of appearing as counsel in these proceedings. Most importantly, his assertion that he does not consider himself bound by the rule of law renders him unfit to be granted the privilege of appearing as a representative in this court. It would be advisable (despite the objection of Mr. Gravlin and Mr. Darmantchev) for the plaintiffs to consult legal counsel to sort out whether there is any cause of action at all or to advise that the actions ought not to go forward if they are frivolous and vexatious. I therefore exercise my discretion to deny Mr. Dempsey the privilege of audience before this court in both these actions.
I see no basis in those paragraphs for the assertion that I have demonstrated bias against the plaintiffs and I ought not to recuse myself on this basis.
[15] This brings me to the ground described in ¶ 8 of Mr. Dempsey's affidavit, that I am biased on account of my previous role as counsel for Canada Trust.
[16] In, De Cotiis Mr. Justice Groberman, considered if he should recuse himself from hearing the case on account of his previous association with the law firm representing the plaintiff, At ¶ 8 he held:
As counsel have pointed out, it is awkward for counsel to argue the issue of whether or not a judge should refrain from sitting on a matter. The nature and quality of the judge's previous association will be best known to the judge him or herself. While I might not put it as bluntly as Mr. Hordo in saying the judge "effectively becomes a witness", the fact remains that the judge must disclose the facts surrounding the previous association. That disclosure will be critical to the decision as to whether or not the judge should refrain from hearing a matter.
[17] In the Dempsey Action, Mr. Dempsey has named TD Canada Trust as a defendant. Prior to my appointment to the bench over four years ago, I acted as counsel for Canada Trust in several cases concerning Canada Trust's role as corporate trustee of employee pension plans. Counsel for TD Canada Trust was unable to advise the court of the precise date that Canada Trust became TD Canada Trust and I am unaware of the legal nature of that change in corporate status. Mr. Borrell advised the court that upon receipt of the notice of motion he asked his client about any past relationship with me prior to my appointment to the bench. His client was unaware of any such relationship. I did not act as counsel in connection with Canada Trust’s banking activities and I never acted for the entity now known as TD Canada Trust.
[18] The question is whether I should by reason of that past association with Canada Trust refrain from hearing future applications in this matter and refrain from presiding as case management judge over these seven actions.
[19] I quote again from De Cotiis at ¶ 5, 6, 7, 9, 12, 14 and 16:
A judge, on appointment to the bench, must be very concerned about apprehensions of bias. Normally, a period of time will elapse before a judge will hear cases brought before him or her by counsel from his or her former firm.
There is neither in law nor in guidelines any set period of time that must elapse before a judge is able to hear a matter in which a party is represented by counsel from his or her former firm. Rather, the question is one of whether a reasonable person with knowledge of the circumstances would perceive that there might be a predisposition or bias resulting from the past relationship.
Clearly, in the interests of justice, a judge must not hear any matter where there is any reasonable apprehension that he or she might be biased. To do so would bring the administration of justice into disrepute. A previous association between a judge and a law firm can, in some circumstances, raise such an apprehension.
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The awkwardness of the situation and the importance of the court avoiding any appearance of bias lead the court to err, if at all, on the side of caution in these matters. That is, in my view, a salutary position.
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Mr. Sanderson mentions the case of Locabail (UK) Ltd v. Bayfield Properties Ltd., [2000] QB 451, a case in which the English Court of Appeal considered, in the context of a variety of applications for leave to appeal, the question of when a judge should recuse him or herself from hearing a case. The point that it is the duty of the court to consider, rather than give effect to, every objection, is made starting at paragraph 21:
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If objection is ... made, it will be the duty of the judge to consider the objection and exercise his judgment upon it. He would be as wrong to yield to a tenuous or frivolous objection as he would to ignore an objection of substance. |
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I believe that this principle is implicit, as well, in the judgment of Bastarache J. in Arsenault-Cameron v. Prince Edward Island, [1999] 3 S.C.R. 851.
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The test to be applied in a situation such as the present is that of whether an informed and fair-minded observer could reasonably apprehend that the judge might be biased by the previous association.
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I have concluded that no reasonable apprehension of bias arises in the case at bar. The connection between myself and Davis & Company was too brief, not sufficiently recent, and not sufficiently close to give rise to any reasonable apprehension that it would bias me for or against Mr. Sanderson's clients on the applications before me.
[20] The Supreme Court of Canada stated in R. v. S. (R. D.), [1997] 3 S.C.R. 484 at ¶ 49 that there is a presumption that judges are impartial. The Nova Scotia Court of Appeal elaborated that “the threshold for a finding of real or perceived bias of a judge is high. The onus of demonstrating it lies with the person who is alleging its existence. There is a presumption that judges will carry out their oath of office.” [Children’s Aid Society of Cape Breton v. M.(L.) (1998), 42 R.F.L. (4th) 1 (N.S.C.A.) at ¶ 48].
[21] The standard for disqualifying a judge from hearing a case was stated by the Supreme Court of Canada in Committee for Justice and Liberty v. National Energy Board, [1978] 1 S.C.R. 369 at p.394:
…the apprehension of bias must be a reasonable one held by reasonable and right minded persons, applying themselves to the question and obtaining thereon the required information. In the words of the Court of Appeal, that test is "what would an informed person, viewing the matter realistically and practically--and having thought the matter through--conclude. Would he think that it is more likely than not that [the decision maker], whether consciously or unconsciously, would not decide fairly."
[22] In Liszkay v. Robinson, [2003] B.C.J. No.2163 (C.A.), the British Columbia Court of Appeal upheld an order by the Chief Justice of the B.C. Supreme Court that a trial judge take over a case from which another judge recused himself due to a conflict of interest. In discussing the test in Committee for Justice, the court cautioned against judges recusing themselves too hastily, “We agree with the appellant that recusal is not warranted merely by a trial judge raising the possibility of an apprehension of bias. For a judge to disqualify himself on trifling or invalid grounds obviously raises concerns about wasted resources and delay with the attendant risk of injustice.”
[23] The test in Committee for Justice has been applied in several cases where bias is alleged against a judge due to prior involvement with one of the parties before the court.
[24] In the Children’s Aid case, the Children’s Aid Society brought an application for permanent care of two children. The application was opposed by the children’s mother, who also alleged that the judge was in a conflict of interest due to her past work as counsel for the Children’s Aid Society. In applying the Committee for Justice test, the Nova Scotia Court of Appeal, said at ¶ 50, “The fact that a judge, at some time prior to appointment, acted as a lawyer for a party before the court or had a professional association with a lawyer before the court, does not, on its own, give rise to a reasonable apprehension of bias. There is no settled principle that judges must not hear cases involving former clients or former associates in practice.”
[25] In Valu Healthcare Realty Inc. v. Zellers Inc., [2004] O.J. No. 4939 (Ont. Sup. Ct.), the plaintiff alleged that the master hearing a motion was biased because the defendant, Zellers Inc., had been a client of his before his appointment to the court. The master’s first involvement with the case was two and half years after his appointment to the court, and over three and half years after he had ceased to act for the defendant. The court found that this period of time was sufficient to lead a reasonable person to conclude that the master was able to adjudicate the issues before him fairly and impartially. The court found at ¶ 8 that the Committee for Justice test included a “…recognition that the mere fact that a litigant was a client of the judge prior to the judge’s appointment does not necessarily require the judge to recuse himself or herself provided a reasonable period of time has passed since the retainer ended.”
[26] In summary, where a judge hearing a case has had some prior involvement with one of the parties, courts have considered three primary factors to determine whether there exists a reasonable apprehension of bias, including;
[27] In this case, Mr. Dempsey submits that I should recuse myself as the trial judge because, prior to my appointment to the bench, I acted as counsel for Canada Trust in litigation concerning its role as corporate trustee of pension plan trusts. One of the defendants, TD Canada Trust, is a successor company to Canada Trust, and therefore Mr. Dempsey alleges there is a reasonable apprehension of bias. Applying the factors from the caselaw above, it seems clear that this situation does not give rise to a reasonable apprehension of bias based upon the test in Committee for Justice.
[28] My retainer with Canada Trust was confined to trust cases, and did not involve consumer lending matters at all, and certainly did not involve the case at bar. I had no association with this file prior to my appointment to the bench. I, therefore, had no access to any information about the parties prior to my appointment. In addition, my retainer with Canada Trust ended with my appointment to the court over four years ago. In the Zellers case, the court found that intervening period of less than four years were sufficient to reject allegations of an apprehension of bias.
[29] Mr. Dempsey also claims that a conflict of interest was raised by my generally having represented a financial institution. There is no merit to the suggestion that as counsel I was in any way closely connected with the financial industry as a whole such that an informed and fair-minded observer could reasonably apprehend that I might be biased by that previous association.
[30] The last ground is Mr. Dempsey’s assertion that he has not “accepted” my jurisdiction to hear this matter. I believe this ground is covered by ¶ 2 to ¶ 4 of the notice of motion. The Chief Justice has authority to assign justices to hear cases. (Supreme Court Act, R.S.B.C. 1996, c.443, s. 2(3)) A litigant does not have a right to accept or reject the assignment of a justice to his or her case, subject to objections based on bias and conflict of interest. Having decided that there is no basis for such claims of bias or conflict of interest, Mr. Dempsey’s objection to the Chief Justice’s assignment of this case to me must fail.
[31] The plaintiffs’ applications are dismissed.
“N. Garson, J.”
The Honourable Madam Justice N. Garson