Anton Oleynik Applicant And: Memorial University of Newfoundland Respondent And: MICHAEL HARVEY, in his capacity as the information v. privacy commissioner of Newfoundland and labrador, 2023 NLSC 86

court crest IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR GENERAL DIVISION Citation : Oleynik v. Memorial University of Newfoundland , 2023 NLSC 86 Date : June 9, 2023 Docket : 201701G6218 Between: Anton Oleynik Applicant And: Memorial University of Newfoundland Respondent And: MICHAEL HARVEY, in his capacity as the information and privacy commissioner of Newfoundland and labrador intervenor Before: Justice Glen L.C. Noel Place of Hearing: St. John’s, Newfoundland and Labrador Date of Hearing: January 23 and 30, 2023

Summary: Anton Oleynik applied, along with seeking other grounds of relief, for the recusal of the Case Management Judge from hearing an application for production of records in native format under the Access to Information and Protection of Privacy Act , and the recusal of the Case Management Judge from the multiplicity of all other case-managed proceedings involving him. The Court denied the application and ordered Oleynik to pay the Respondent’s costs on a solicitor and client basis within 30 days of

taxation or agreement on costs. Appearances: Anton Oleynik Appearing on his own behalf Giles W. Ayers Appearing on behalf of the Respondent Andrew A. Fitzgerald, KC Appearing on behalf of the Intervenor Authorities Cited: CASES CONSIDERED: Oleynik v. Law Society of Newfoundland and Labrador, 2022 NLSC 151; Oleynik v. Law Society ofNewfoundland and Labrador, 2022 NLSC 166, [Unreported Judgment]; Oleynik v. Memorial University of Newfoundland, 2021 NLCA56; R. v. S. (R.D.), (SCC), [1997] 3 S.C.R. 484; Cojocaru v. British Columbia Women’s Hospital and Health Center,2013 SCC 30; Northcott v.

Association of Social Workers (Newfoundland and Labrador), 2011 NLTD(G) 74; Pintea v. Johns, 2017 SCC23; Young v. Noble, 2017 NLCA 48; Cabana v Newfoundland and Labrador, 2020 NLCA 44; Lesiczka v. Sahota, 2007 BCSC 479, leaveto appeal refused, 2007 BCCA 334; Cosentino v. Dominaco Developments Inc., 2018 ONSC 4092; Rogers Wireless Inc. v. CellulandCanada Inc., 2010 ONSC 2301, aff’d 2011 ONSC 1199 (Div. Ct.); Lakhoo v. Lakhoo, 2016 ABCA 200; Alston v. The Municipal Districtof Foothills No. 31, 2021 ABQB 155; AR v. JU, 2021 ABCA 337; Rana v.

Rana, 2021 ABCA 399, leave to appeal refused 2023CarswellAlta 568; Alberta (Information and Privacy Commissioner) v. University of Calgary, 2016 SCC 53; H.(F.) v. McDougall, 2008SCC 53; Yukon Francophone School Board, Education Area No. 23 v. Yukon Territory (Attorney General), 2015 SCC 25; Committee forJustice & Liberty v. Canada (National Energy Board, (SCC), [1978] 1 S.C.R. 369; Patrick Street Holdings Ltd. v. 11368NL Inc., 2021 NLSC 29; Oleynik v. Memorial University of Newfoundland and Labrador, 2021 NLSC 4; Oleynik v. Memorial Universityof Newfoundland and Labrador, 2021 NLSC 99; Langor v.

Spurrell (1997), (NL CA), 157 Nfld. & P.E.I.R. 301, 17C.P.C. (4th) 1, 486 A.P.R. 301 (Nfld. C.A.); Alberta Health Services v. Wang, 2018 ABCA 104; Yukon Francophone School Board,Education Area No. 23 v. Yukon Territory (Attorney General), 2015 SCC 25; Al-Haidari v. Memorial University of Newfoundland, 2022NLCA 58; R. v. Gaming Board for Great Britain, ex parte Benaim, [1970] 2 all ER 528, [1970] 2 Q.B. 417; R. v. Winsor (2014), 1085A.P.R. 105, 349 Nfld. & P.E.I.R. 105 (N.L. Prov. Ct.); R. v. Adams, (SCC), [1995] 4 S.C.R. 707; Northwestern UtilitiesLtd., Re, (SCC), [1979] 1 S.C.R. 684; Ontario (Energy Board) v.

Ontario Power Generation Inc., 2015 SCC 44; R. v.Omar, 2007 ONCA 117; Cabana v. Newfoundland and Labrador, 2014 NLCA 34; Oleynik v. Memorial University of Newfoundland,2021 NLCA 40; Penney v. Newfoundland and Labrador, 2020 NLSC 46, aff’d 2021 NLCA 35; Stockley v. Hopkins, 2023 NLSC 39;Holloway v. Holloway, 2001 NFCA 17 STATUTES CONSIDERED: Access to Information Protection of Privacy Act, S.N.L. 2015, c. A-1.2; Judicature Act, R.S.N.L. 1990, c.J-4; Labour Relations Act, R.S.N.L. 1990, c. L-1; Criminal Code, R.S.C. 1985, c. C-46 RULES CONSIDERED: Rules of the Supreme Court, 1986, S.N.L. 1986, c. 42, Sch.

D TEXTS CONSIDERED: Statement of Principles on Self-represented Litigants and Accused Persons (September 2006)online:<www.cjcccm.gc.ca/ cmslib/general/news_pub_other_PrinciplesStatement_2006_en.pdf> REASONS FOR JUDGMENT Noel, J.: INTRODUCTION [1] The Applicant, Anton Oleynik seeks my recusal from hearing his application for production of records in native format ofaccess to information requests under the Access to Information Protection of Privacy Act, S.N.L. 2015, c.

A-1.2 (the “ATIPPA”), andrecusal from the multiplicity of all other case management proceedings involving him as a party that I am handling. (Total List ofProceedings before me attached as Appendix “A”) [2] Oleynik is a self-represented litigant with considerable experience before numerous courts across Canada (see Appendix “B”).

[ 3 ] In the reasons below, I explain why I have denied the application and Oleynik’s other grounds of relief, as well as the impact this application has had on the future conduct of the case-managed of proceedings. background [ 4 ] This is not the first time Oleynik has requested my recusal from one of his proceedings that I have heard: Oleynik v. Law Society of Newfoundland and Labrador , 2022 NLSC 151 (the “ Law Society judgment”). He has appealed the decision for, among other grounds, refusing to disqualify myself.

In Oleynik’s subsequent Rule 15.07 Application under the Rules of the Supreme Court, 1986 , S.N.L. 1986, c. 42, Sch. D , seeking amendments to the decision, I refused to consider his additional evidence and held I was functus officio to reconsider the recusal issue I had decided: Oleynik v. Law Society of Newfoundland and Labrador , 2022 NLSC 166, [ Unreported Judgment ] at para. 27 . [ 5 ] He also raised, on appeal of four of my rulings in interlocutory decisions, that I denied him procedural fairness and my conduct gave rise to a reasonable apprehension of bias.

The Court of Appeal dismissed these appeals: (see Oleynik v. Memorial University of Newfoundland , 2021 NLCA 56 , at paras. 63–74 for discussion on procedural fairness and apprehension of bias). [ 6 ] Most recently in Oleynik v. Labour Relations Board of Newfoundland and Labrador, file number 202201G1567, he sought my recusal from hearing his originating application seeking an order of mandamus directing the Board to hear an application he had before it. At the hearing date of February 13, 2023, I ruled that his application for mandamus be adjourned sine die until my reasons in this present matter are issued.

I held there was no urgency for an order of mandamus given the Board’s undertaking to deal with his application as expeditiously as possible. Oleynik filed a Notice of my Order. [1] [ 7 ] As a preliminary issue, Oleynik raised whether the parties to the Labour Relations Board proceeding should be included in this recusal application so as not to take them by surprise and to save time. As Case Management Judge, I elected not to include the parties to 202201G1567 to this application because all of Oleynik’s purported incidents of bias involved the other proceedings.

The Court was not prepared to assign another judge to hear the Labour Relations Board matter as Oleynik requested. Oleynik stated, “the scope of the Application covers all proceedings in which I am a party, with no exceptions.” [ 8 ] Whether the parties and their counsel in the Labour Relations Board proceeding appeared on this recusal application, I would have reserved and needed time to render my reasons.

By maintaining the February 2023 hearing dates in that matter, I was able to satisfy myself that the Board was dealing expeditiously with Oleynik’s application before it, and there was no urgency for disposition of the mandamus relief sought, and strongly opposed by the Respondents. issues [ 9 ] Oleynik has identified the following as the points at issue: 1. Whether there is a reasonable apprehension of potential lack of open-mindedness and/or impartiality since the case management judge has already considered the issue of native format on at least three different occasions. 2.

Whether the case management judge showed bias against the Applicant as a self-represented litigant in case-managed proceedings. 3. Whether it was inappropriate for the Commissioner as Intervenor to take a position on the case management judge’s alleged bias? [ 10 ] Oleynik submits the Court showed bias in six instances: (

i) Issuance of the Orders of September 30, 2020; (ii) Misplaced Applicant’s Brief Filed in the Proceeding 201701G6218; (iii) Issuance of Case Management Order of November 19, 2021, for Law Society Proceeding; (iv) Case management in the Taxation Appeal 202201G1201; (

v) Statements made at the hearing of September 13, 2022, and included in the original version of the Judgment in Oleynik v. Law Society of Newfoundland and Labrador , 2022 NLSC 151 ; and (vi) Alleged Ex parte communication with the opposing represented parties and the Court’s refusal to communicate with the Applicant. [ 11 ] In addition to seeking my recusal from the case-managed proceedings, Oleynik seeks the following relief: (

i) The Court’s Case Management Minutes dated April 29, 2022 in the 202201G1201 proceeding, be disclosed or, in the alternative, reasons for sealing this document be stated; (ii) Information as to where (“exact location”), when (“exact date”) and by whom (“a clerk or employee’s name”) his Brief that was originally filed on March 1, 2018, in the 201701G6218 proceeding that was temporarily misplaced, was later located; (iv) Access to records pertaining to the provisions of an editable electronic version of the correspondence from November 17, 2021, to the Court, which includes email exchanges to which the editable version was attached. (

v) Costs for the time spent on identifying and following up on the Brief referred to in (ii) that went missing (“one full day and a half”) and costs on this application for recusal. analysis

[12] Recusal applications are one of those rare occasions where judges are required to consider and decide on their own conduct ofthe proceedings, and whether they can keep an open mind on the issues requiring adjudication. I shall do so with proper consideration ofthe detailed evidentiary foundation Oleynik has presented. The Legal Test and Burden of Proof for Bias [13] Oleynik does not have to establish actual bias, but a reasonable apprehension of bias on my part: R. v.

S. (R.D.), (SCC), [1997] 3 S.C.R. 484, at para. 109. [14] The Court of Appeal[2] reviewed and set out the test for proving a reasonable apprehension of bias: [64] There is a strong presumption of judicial impartiality and a high burden of proving the claim on the party alleging bias (YukonFrancophone School Board, Education Are #23 v.

Yukon (Attorney General), 2015 SCC 15, [2015] 2 S.C.R. 282, at paras. 25–26). [65] The test for a reasonable apprehension of bias is discussed in Yukon, at paras. 20–21: 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. [emphasis added] [15] As I set out in the Law Society judgment (at paras. 21 and 26), the burden rests with Oleynik to rebut the strong presumption ofjudicial impartiality with serious and substantial evidence. The impugned comments or other conduct that grounds the allegations of biasmust be considered in the entire context of the circumstances, and in light of the whole proceedings: S. (R.D), at para. 141. “It is a highpresumption, not easily displaced”: Cojocaru v.

British Columbia Women’s Hospital and Health Center, 2013 SCC 30, at para. 22.

Foundational Basis of Oleynik’s Submissions [16] Oleynik grounded the evidentiary foundation and arguments to support his application for my recusal with: 1. a 23-page Affidavit; 2. a Supplemental Affidavit of 299 pages; 3. additional filings of 36 pages (for ease of reference but not new evidence) submitted during oral submissions; 4. a 30-page single space Brief that includes a listing of authorities; and 5. a further Supplemental List of Authorities with hyperlinks (as permitted by the Court for Oleynik’s filings). [17] Oleynik submits my perceived bias against him as a self-represented litigant has several elements.

He states one of the mostimportant authorities is Northcott v. Association of Social Workers (Newfoundland and Labrador), 2011 NLTD(G) 74, wherein Fry J (asshe then was and now C.J.N.L.), quoted Robertson v. Edmonton (City) Police Service, 2004 ABQB 519 and endorsed (at para. 28) thevarious types of bias.

He relies on three elements: 1. “informational bias” (as a result of “some prior involvement either with the parties or the issue”); 2. “attitudinal bias” (“when the decision-maker has previously expressed opinions on an issue, thereby showing a predisposition infavour of one side or the other”); and 3. “operational bias” (arising “out of ex parte communications between the tribunal and one of the parties, or other unbalancedprocedures that give rise to unfairness”). [18] He argues that nothing in his current recusal application relates to “institutional bias” or other grounds already dealt with by theCourt of Appeal.

He is relying on new evidentiary foundation and not trying to rehear a matter already decided. He claims a significantpart of documentary evidence only became available recently. [19] Oleynik submits he started to perceive the case management judge’s bias shortly after the proceedings commenced to be casemanaged – about three years ago in 2020.[3] Application for Recusal Triggered by Decision in Oleynik v. Law Society [20] He claims his application for recusal was triggered when the original version of my decision in Oleynik v.

Law Society, 2022NLSC 151 was transmitted to “an unidentified number of undisclosed recipients” on Friday, October 21, 2022, in the afternoon, beforehe had been able to raise any issues and request remedies. He claims “highly prejudicial information” was transmitted. [21] The Law Society judgment was circulated to the parties and as is the Court practice, to Judges and Staff only. The originalversion was never published.

The published version reflected changes in accordance with my ruling on the Rule 15.07 application thatOleynik filed. [22] At the hearing, I raised with Oleynik that I may have erred on his application under Rule 15.07 to correct the Law Society

judgment and to not permit his application for additional evidence, but if I erred, the Court of Appeal is the proper avenue for error correction. The Court had not previously released the Rule 15.07 oral ruling in Oleynik v. Law Society , 2022 NLSC 166 for publication for the reasons stated in paragraph 2 of that judgment.

Since this decision now forms part of the grounds of his evidentiary foundation for recusal, and Oleynik’s application and written submissions quote excerpts from the decision, it is appropriate to have the full context of my reasoning in that decision (attached hereto as Appendix “C”). [ 23 ] Oleynik notes he was very clear and careful in his Notice of Appeal in the Law Society proceeding (attached hereto as Appendix “D”) not to include the matter of whether I should have recused myself from the Law Society matter – he is not asking the Court of Appeal to consider the issue of recusal “at this point.” I do note his Notice of Appeal (at paragraph 69 (d)) raises whether the applications judge erred by declaring himself functus officio on the recusal issue.

The Notice of Appeal also stipulates (at para. 70) that he “has drawn a tentative list of alleged errors” and “this list is not expected to be final at this stage, which may be reflected in the factum.” [ 24 ] He submits that the Court of Appeal has not been asked to consider whether the case management judge has a closed mind or not. That is the question he is asking here. The Court is first expected to assess itself.

He relies on Ayangma v Canada Health Infoway , 2017 PECA 13 , (at para. 25 ) that allegations of bias are to be raised before the applications judge before they are properly subject to appellate review. [ 25 ] Oleynik perceives he has been misunderstood by the Court. Near the close of Oleynik’s oral submissions on January 23, 2023, he commented, “just for clarity, because I have been misunderstood several times here today.” He emphasized the question he brings before the Court is whether there are reasonable grounds for recusal. The Court must consider all evidence through that lens.

At the risk of any confusion on my part, I have taken the liberty of re-reading his submissions and supporting affidavits, and going back to re-listen to all of the audio recordings to ensure I did not misunderstand any of his assertions and submissions. In my respectful view, he conflates any challenges to his position as misunderstandings .

Statement of Principles on Self-represented Litigants [ 26 ] Oleynik, as a self-represented litigant, alleges I failed to apply the Canadian Judicial Council’s Statement of Principles on Self- represented Litigants and Accused Persons (September 2006)online:<www.cjcccm.gc.ca/cmslib/general/ news_pub_other_PrinciplesStatement_2006_en.pdf>. The Supreme Court of Canada and the Newfoundland and Labrador Court of Appeal endorsed the Statement of Principles : Pintea v. Johns , 2017 SCC 23 , at para. 4 ; Young v. Noble , 2017 NLCA 48 , at para. 34 ; and Cabana v Newfoundland and Labrador , 2020 NLCA 44 , at para. 90 .

Early in the case-managed proceedings, I brought the Statement of Principles to Oleynik’s attention. [ 27 ] He relies on following Statements and Principles from the Statement of Principles : A. PROMOTING RIGHTS OF ACCESS STATEMENT: Judges, the courts and other participants in the justice system have a responsibility to promote opportunities for all persons to understand and meaningfully present their case, regardless of representation. B.

PROMOTING EQUAL JUSTICE STATEMENT: Judges, the courts and other participants in the justice system have a responsibility to promote access to the justice system for all persons on an equal basis, regardless of representation. PRINCIPLES: 1. Judges and court administrators should do whatever is possible to provide a fair and impartial process and prevent an unfair disadvantage to self-represented persons. 2. ... 3. Where appropriate, a judge should consider engaging in such case management activities as are required to protect the rights and interests of self-represented persons.

Such case management should begin as early in the court process as possible . [emphasis added] 4. When one or both parties are proceeding without representation, non-prejudicial and engaged case and courtroom management may be needed to protect the litigants’ equal right to be heard. Depending on the circumstances and nature of the case, the presiding judge may: a. Explain the process; b. Inquire whether both parties understand the process and the procedure; c. Make referrals to agencies able to assist the litigant in the preparation of the case;

d. Provide information about the law and evidentiary requirements; e. Modify the traditional order of taking evidence; and f. Question witnesses. C. RESPONSIBILITIES OF THE PARTICIPANTS IN THE JUSTICE SYSTEM STATEMENT: All participants are accountable for understanding and fulfilling their roles in achieving the goals of equal access to justice, including procedural fairness. PRINCIPLES: For Both the Judiciary and Court Administrators 1. Judges and court administrators should meet the needs of self-represented persons for information, referral, simplicity, and assistance. ... For Court Administrators ... 2.

In particular, court administrators should be given sufficient resources to be able to: a. Provide, on request, all public information contained in dockets or calendars, case files, indexes and existing reports; ... For Self-Represented Persons ... 3. Self-represented persons are required to be respectful of the court process and the officials within it.

Vexatious litigants will not be permitted to abuse the process. [ 28 ] I note Oleynik never read into the record the last sentence that I have underlined for emphasis above in B.3 from the Statement of Principles : “ Such case management should begin as early in the court process as possible .” [emphasis added] The Court has taken the proactive steps of early case management of each of the proceedings. [ 29 ] Memorial in its submissions takes the position that Oleynik’s application is “vexatious.” There is an expectation that self- represented litigants not be abusive of the court process.

The Statement of Principles (C. Responsibilities … For Self-Represented Persons (3)) states: “Self-represented persons are required to be respectful of the court process and the officials within it. Vexatious litigants will not be permitted to abuse the process.” Comments Oleynik Alleges as Indicative of Bias [ 30 ] At the Law Society hearing of September 13, 2022, Oleynik states I made several comments indicative of bias against a self- represented litigant.

He asserts that I accused him of playing the self-represented-litigant card: “By no means, you’ve got more experience than half the lawyers in civil matters before the court, either in our court, before the Supreme Court of Canada, before the Federal Court. Like you can only play that card about a self-represented litigant so much. You are very intelligent and very sophisticated.

So carry on.” [ 31 ] To put my comments in context, Oleynik’s experience before all levels of courts and other jurisdictions is established by the publically available reported decisions. [ 32 ] He says the Court saw its task as “pressing and cornering” him as a self-represented party because of my comment in the Law Society judgment (at para 38): “When pressed at the hearing to clarify what it was that my Judicial Assistant did that was improper, Oleynik recanted that it was not what she did but what Ms.

Thomson did.” Oleynik submits he has been consistent in his submissions that a conflict of interest situation arises when Noel J reviews ex parte exchanges between his Judicial Assistant and Ms. Thomson. I made no finding in the Law Society proceeding that Ms. Thomson had ex parte communications with the Court.

[ 33 ] He states I also made accusations that he is advancing conspiracy theories: “‘See, the trouble I’ve got, it seems as though your allegations – everybody is conspiring. Everybody is out to get you, you know, including my Judicial Assistant, including me. Everyone is out to – is conspiring against you.” [ 34 ] My comment will be put in proper perspective for the informed and reasonable observer, when I deal with the details of his alleged instances indicative of bias.

Ethical Principles for Judges [ 35 ] Oleynik relies on the Canadian Judicial Counsel, Ethical Principles for Judges as another benchmark for assessing his recusal application. Ethical Principles for Judges provides ethical guidance for federally appointed judges. In the Law Society judgment on the issue of his recusal request, I stated (at para 24): A fundamental foundation of our legal system is an independent and impartial judiciary. Oleynik is entitled to the confidence that I will decide independently and free of extraneous influence.

The Canadian Judicial Counsel, Ethical Principles for Judges (2021), online: Canadian Judicial Council <http://www.cjc-ccm.ca> states: “Judicial independence ensures that judges are impartial in fact, and also that they are perceived to be so.” [ 36 ] In that proceeding (at para 61(5) of the Law Society judgment), Oleynik cited the 2021 edition of Ethical Principles for Judges .

At the hearing of this application, he quoted from the former version of Ethical Principles for Judges ( Ethical Principles for Judges , online: Canadian Judicial Council <http://www.cjc-ccm.ca/en/what-we-do/initiatives/ethical-principles-judges-0>). In particular, he cited the following: 3. Integrity Statement : Judges should strive to conduct themselves wit integrity so as to sustain and enhance public confidence in the judiciary. Principles : 1. Judges should make every effort to ensure that their conduct is bove reproach in the view of reasonable fair minded and informed persons. 5.

Equality Statement : Judges should conduct themselves and proceedings before them so as to assure equality according to law. Principles : 1. Judges should carry out their duties with appropriate consideration for all persons (for example, parties, witnesses, court personnel and judicial colleagues) without discrimination. 2. Judges should strive to be aware of an understand differences arising from, for example, gender, race, religious conviction, culture, ethnic background, sexual orientation or disability. 6.

Impartiality Statement : Judges must be and should appear to be impartial with respect to their decisions and decision making. Principles : 3. The appearance of impartiality is to be assessed from the perspective of a reasonable, fair minded and informed person. [ 37 ] The corresponding provisions of the current version of Ethical Principles for Judges are as follows: II. Integrity and Respect Statement – Principles

A. Judges comply with the law and conduct themselves both inside and outside the courtroom in a manner that is above reproach in the view of reasonable and informed persons. 4.B.1 Judges should avoid comments, expressions, gestures or behaviour that may reasonably be interpreted as showing insensitivity to or disrespect for anyone.

Example include inappropriate comments based on stereotypes linked to gender identity or expression, differing mental or physical abilities, age and socio-economic background, or other conduct that may create the impression that persons before the court will not be afforded equal consideration and respect. Inappropriate statements by judges, in or out of court, have the potential to call into question their commitment to equality and their ability to be impartial. 5.A.2 Impartiality requires not only the absence of bias and prejudgment, but also the absence of any appearance of partiality.

This dual aspect of impartiality is captured in the oft-repeated words that justice must not only be done, but manifestly be seen to be done. The test whether a reasonable and informed person with knowledge of all relevant circumstances, viewing the matter realistically and practically, would apprehend a lack of impartiality in the judge . [emphasis added] 5.A.4 Judges have a fundamental obligation to be and to appear to be impartial. This obligation of impartiality does not presuppose that judges are free of life experiences , sympathies or opinions.

Rather, it requires judges to be sensitive to their own biases and to consider different points of view with an open mind. Judges should interact with all parties fairly and even-handedly . [emphasis added] [ 38 ] Ethical Principles for Judges is not the law that governs consideration for judicial disqualification and recusal. The current version states (at 5.A.3): “[w]hile there is a close association between the judge’s ethical and legal duties of impartiality, Ethical Principles is not intended to deal with the law relating to judicial disqualification or recusal [emphasis added].

The former version also stated (at page 30): “The Statement and Principles do not and are not intended to deal with the law relating to judicial disqualification or recusation.” [ 39 ] Ethical Principles for Judges (at 5.A.7) specifically instructs judges to “ensure that proceedings are conducted in an orderly and efficient manner and that the court process is not abused.” It further reminds judges that “[a]n appropriate measure of firmness may be necessary to achieve this end.” Most importantly, “[i]n the presence of challenging or vexatious litigants, judges should be firm , decisive and at the same time respectful to ensure that litigants’ rights are protected” [emphasis added]. [ 40 ] I pause here to note I make no comment or determination, as I will subsequently expand on, that Oleynik is a “vexatious litigant.” Memorial is seeking to have him declared a vexatious litigant in a separate application before the Court. [ 41 ] Oleynik submits that if the Court fails to follow the two sets of “ Principles ” - Statement of Principles on Self-represented Litigants and Ethical Principles for Judges - it is indicative of bias against a self-represented litigant.

He submits Memorial seems to argue that these Principles do not apply or apply to a lesser extent in the case management process. I did not take this to be Memorial’s position. Where Apprehension of Bias Alleged in Case Managed Proceedings [ 42 ] Counsel for Memorial argued there is a more stringent test where a litigant alleges an apprehension of bias against a judge in multiple case-managed proceedings. Memorial submits the purpose of the case management rule provides helpful context for the assessment of Oleynik’s Application for recusal.

Rule 18A.01 states: The purpose of this Rule is to provide for selected proceedings a level of management and direction with respect to pre-trial procedures and preparation for trial that is more organized, coordinated and focused than what would be normally applicable to cases proceeding through the system from pleading to trial, with a view to:

a) ensuring that maximum benefit is gained from each trial day;

b) making more efficient use of Court resources;

c) ensuring adequate and accurate amounts of time are reserved for trial; and

d) providing for the public interest in access to justice in a timely and cost effective manner.

[43] The case management rule, “with any necessary modification(s),” applies when the Court makes an order for case managementof any applications or appeals before this Court: Rule 29.18, Rule 58.02(3) and Rule 58.13. [44] Memorial asserts Rule 18A treats a case management judge’s familiarity with the proceedings as a valuable asset to facilitatethe efficient and timely resolution of the issues in the proceedings.

The duty of judges to hear cases assigned to them becomesparticularly important in the case management context, where judges are expected to develop familiarity with the complexity of theproceedings and assist the parties to organize and focus on the issues for disposition: Lesiczka v. Sahota, 2007 BCSC 479, leave toappeal refused, 2007 BCCA 334, at paras. 20 and 22. [45] In that light, Memorial argues it makes sense that the courts have applied a more stringent test where reasonable apprehensionof bias is alleged against a case management judge: Cosentino v.

Dominaco Developments Inc., 2018 ONSC 4092, at para. 47; RogersWireless Inc. v. Celluland Canada Inc., 2010 ONSC 2301, aff’d 2011 ONSC 1199 (Div. Ct.) at para. 113; Lakhoo v. Lakhoo, 2016ABCA 200, at para. 14; Alston v. The Municipal District of Foothills No. 31, 2021 ABQB 155, at para. 39; AR v. JU, 2021 ABCA 337,at paras. 28–28; Rana v.

Rana, 2021 ABCA 399, leave to appeal refused 2023 CarswellAlta 568, at para. 14. [46] On the other hand, Oleynik submits a less stringent test is required to protect self-presented litigants. [47] He argues Rule 18A does not treat the case management judge’s familiarity with the proceedings as an asset, and there are noprecedents from this jurisdiction. He notes Rule 18A.09(1) permits the case management judge to be the trial (applications) judge but itis not mandatory.

Further, he submits the Court failed to give a clear rationale for making Case Management Orders, in particular, theone dated December 19, 2022, in the Labour Relations Board proceeding. He asserts that Order and others did not protect the rights andinterests of him as a self-represented persons. [48] I disagree with Oleynik’s

interpretation of the rule when read in proper context. Rule 18A.07(1) stipulates when a casemanagement judge has been assigned, all subsequent applications shall be made to that judge. Our Court of Appeal recognized thebenefit of having a single judge manage “a complex mix of interrelated court proceedings” and the “uncompleted matters”: Oleynik,2021 NLCA 56, at paras. 2 and 3. From a true reading of the rule, it is plain and obvious that a single judge having familiarity with theproceedings is a valuable asset for the management of similar proceedings and related parties.

That is the Court’s rationale for theissuance of all the Case Management Orders in these proceedings, and it is consistent with the recommended approach in the Statementof Principles. [49] Oleynik submits Memorial’s authorities are distinguishable because they are from other jurisdictions with different casemanagement rules and legislation. The legislative texts considered in Memorial’s cited authorities are to be read in their entire context,as the “modern approach” to statutory

interpretation requires: Alberta (Information and Privacy Commissioner) v. University of Calgary,2016 SCC 53, at para. 63. [50] In distinguishing the cases, he notes the parties had counsel (except in Cosentino where a lawyer party represented himself). The court in Alston found one of the parties in contempt. Oleynik points out that the Court has not found him in contempt or declaredhim vexatious. The wording of the case management rule under consideration in AR v.

JU prohibited the case management judge frombeing the trial judge. [51] The standard of proof to establish the test for bias is no different for a represented or self-represented litigant. The party whoalleges bias has the burden of rebutting the presumption of impartiality and proving a reasonable apprehension of bias. The applicant hasthe “high burden of proving the claim” of bias and must demonstrate “substantial” evidence of bias (See Yukon Francophone SchoolBoard, Education Area No. 23 v.

Yukon Territory (Attorney General), 2015 SCC 25, at para. 25; and Committee for Justice & Liberty v.Canada (National Energy Board, (SCC), [1978] 1 S.C.R. 369, at page 395). [52] Quite simply, the test I must apply is what the objective reasonably informed person would conclude, “viewing the matterrealistically and practically.” I will not apply a more or less stringent test.

One of the considerations from the perspective of theobjective observer is the fact that the proceedings are subject to case management and the case management judge would have gainedconsiderable familiarity with the proceedings over the last three years. My disqualification will affect a multiplicity of proceedingswherein I have already rendered several interlocutory rulings.

Of course, the benefit of familiarity with the proceedings is not anadequate justification for continuing as the case management judge, if Oleynik satisfies the evidentiary burden to meet the test forrecusal. [53] Oleynik correctly points out, “when addressing reasonable apprehension of bias in the case management context, the questionis whether the judicial officer has decided the matter to the extent that he or she is no longer capable of being persuaded by the evidence.The issue [is] one of an open or closed mind”: Cosentino, (at para. 48). [54] I questioned Oleynik on why he was continuing to raise some of the same instances for seeking my recusal as he had raisedpreviously.

His answer is some material facts are the same, but now I must view them from the lens of a single different question:whether they are indicative of a closed mind. His recusal request in the Law Society matter was, according to his argument, based onsome of the same documentary evidence but “different facts” on whether I am biased against self-represented litigant. Bias, he says,cannot disappear overnight. [55] He continues to complain that all the proceedings should have been resolved through internal extra-judicial resolution.

TheCourt of Appeal (2021 NLCA 56) has already decided (at para. 72): “There should be no consequence to either party for failing to pursuean alternate dispute resolution (such as private mediation), and no inference of bias with the judge for failing to address the parties’failure to engage in private mediation.” [56] Oleynik concluded his oral foundational submissions before moving to the substance of his allegations, by emphasizing hisapplication is not about setting aside decisions.

He observed, Memorial and the Commissioner are “attacking a straw man of their ownmaking.” In other words, they attacked an argument he is not making and failed, in his view, to address the real substance of hisarguments.

Issue 1 – Whether there is a reasonable apprehension of potential lack of open-mindedness and/or impartiality since the case management judge has already considered the issue of native format on at least three different occasions? No Lack of Open-mindedness or Impartiality on the Issue of Native Format [ 57 ] Oleynik has filed a Rule 38 application for a determination of whether an access to information applicant has a statutory right to records in a “native format” (more recently known as “original digital files”) [4] under the ATIPPA .

Oleynik submits I have already decided on the issue of access to records in native format in other of his proceedings, and therefore I should feel constrained by precedents of my own making.

This leads to suspicion I will not have an open and impartial mind when hearing his Rule 38 Application. [ 58 ] He relies on Handrigan J’s finding in Patrick Street Holdings Ltd. v. 11368 NL Inc. , 2021 NLSC 29 , at para. 58 , that a reasonable, fair-minded, informed person may have a reasoned suspicion that he would not have an open and impartial mind, if he heard further applications in matters that he already considered previously on two occasions.

In the particular circumstances of that case, Handrigan J concluded (at para. 54): “If nothing else, I may actually be constrained by two precedents of my own making.” [ 59 ] Contrary to Oleynik’s submission, I have not previously determined this issue and there has been no judicial decision of the issue in this jurisdiction under the ATIPPA . I am able to keep an open mind and adjudicate impartially on the issue. [ 60 ] Oleynik takes no issue with the Commissioner making submissions on native format.

Oleynik acknowledges the Commissioner has expertise on that matter and it is within the Commissioner’s mandate to interpret the ATIPPA . He asserts, however, the Commissioner and Memorial are again “after creating a straw man” on this issue. [ 61 ] He also continues to insist that counsel for Memorial and the Commissioner needed to put forward their arguments on November 17, 2022, when his Rule 38 Application hearing was originally scheduled. He was ready to proceed on the issue of native records and no additional evidence was required.

He stated his argument would have taken only ten minutes. [ 62 ] He sent an ex parte letter (attached as Appendix “E”) sent to Chief Justice the day prior to the hearing day requesting that: 1. Either the alternate case management judge or another judge assigned by the Chief Justice hears the matters scheduled before the issue of Noel’s J.’s bias is addressed in due course, 2. When exercising the Chief Justice’s discretion in the assignment of judges to the matters 202201G1567 and 202201G5037 (no case management orders have been made to date), Noel J.’s perceived bias be accounted for, 3.

Were a separate ex parte or inter partes application deemed necessary by the Court, the undersigned be provided with relevant instructions (e.g., as to the proper identification of respondents to the inter partes application), as per recommendations of the Canadian Judicial Counsel , and the application be disposed either by the alternate case management judge or another judge assigned by the Chief Justice. [ 63 ] The opposing parties objected to the hearing proceeding on that date.

I required Oleynik to file an application setting out all of his grounds for seeking recusal to give the parties a full opportunity to respond.

Counsel confirmed when asked at the outset of the November 17, 2023, hearing that neither Defendant nor the Intervenor were copied by Oleynik on the letter to the Chief Justice, but rather the office of the Chief Justice had emailed both parties with a copy at 4:25 p.m. of November 16. [ 64 ] Oleynik raises whether a fair-minded person would consider the fact that I refused to proceed to hear his arguments for recusal on the issue of native format, as a further indication of bias on my part.

The decision to grant a postponement of the proceedings is a discretionary order exercised on what is fair and just for all parties.

I find the informed fair-minded person would conclude it was reasonable to grant the request of the opposing parties, and require Oleynik to make a separate application for recusal setting out the full extent of his foundational grounds, so as not to waste time and resources dealing with Oleynik’s allegations in a piecemeal fashion. [ 65 ] In terms of demonstrating to the informed observer my fair dealing with Oleynik as a self-represented litigant, I note in the Law Society proceeding, I accepted Oleynik’s position that he did not require a separate and formal application on his request for my recusal in that matter.

I was satisfied he had appropriately raised the issue, and I had the ability to decide the issue on the material filed and submissions made: Law Society judgment, at para. 22. Acceptance of the Commissioner’s Submissions on Native Format [ 66 ] The submissions of counsel for the Commissioner are persuasive on the issue of native format.

I find that I have not pre- determined the issue because of other rulings. [ 67 ] The Commissioner submits the ATIPPA is a public interest statute that contains a comprehensive procedure governing access to information and protection of privacy of records in the custody or control of public bodies. The

interpretation of the ATIPPA , including the right of access under the ATIPPA and the exceptions that apply to the right of access, is to be decided exclusively within the confines of the statute. Decisions in civil litigation, which has its own distinct regime for the discovery of documents pursuant to the Rules of the Supreme Court, 1986 are not binding in interpreting the ATIPPA . [ 68 ] Oleynik argues I have ruled against him on the issue of native format on three different occasions.

His argument is since I was not prepared to consider native format (or metadata as an integral part of the electronic records) when considering higher level requirements, it is unreasonable to expect that I will change my view when applying lower level requirements [emphasis added]. [ 69 ] To determine if there is any merit to Oleynik’s argument, I will examine the three decisions Oleynik identifies as having already addressed the issue: • Oleynik v. Memorial University of Newfoundland and Labrador , 2021 NLSC 4 , at para. 41 .

• Oleynik v. Memorial University of Newfoundland and Labrador , 2021 NLSC 99 , at paras. 29 , 32 and 334. • Oleynik v. Law Society of Newfoundland and Labrador , 2022 NLSC 151 , at para. 58 and paras. 129 to 134. Oleynik v. Memorial University of Newfoundland and Labrador, 2021 NLSC 4 [ 70 ] Oleynik applied pursuant to Rule 31.04 to compel answers to the Interrogatories by Memorial’s officers and agents, including its counsel. Oleynik also sought leave to issue Interrogatories to counsel for the Commissioner.

At paragraph 41, I held: Oleynik has not demonstrated any materiality or necessity for requiring counsel for Memorial to answer the Interrogatories. He relies on email correspondence Ms. Thomson sent to him purporting to explain the alterations in the metadata of emails in Memorial’s production. Oleynik does not accept the explanation as accurately reflecting the alterations that did occur. Counsel cannot mislead a party, but counsel is entitled to be wrong in the explanation offered.

I make no finding as to the accuracy of counsel’s explanation. [ 71 ] There was no finding in paragraph 41 as to what right, if any, an access to information applicant may have to records in native format under the ATIPPA . I made no comment regarding the accuracy of counsel’s explanation regarding the alleged alterations in the metadata of emails. The ruling in this case was limited to whether Oleynik had demonstrated that it was material or necessary for legal counsel to be compelled to give answers to interrogatories.

The decision has no bearing on the issue of access to records in native formation pursuant to the ATIPPA . Oleynik v. Memorial University of Newfoundland and Labrador, 2021 NLSC 99 [ 72 ] Oleynik sought leave to introduce expert evidence in three proceedings, 201901G5833, 201901G7928, and 202001G3967.

I ruled that the expert reports of his expert, Christopher Harris, were inadmissible. [ 73 ] My ruling at paragraph 29 was in relation to the proceeding 201901G5833 and states: “The Court’s consideration of what happened with the deletion of the BCC is not relevant to the Court’s determination of whether the anonymity requirement under s. 12 was complied with.” My ruling does not address whether an applicant has a right to records in native format pursuant to the ATIPPA .

My finding was limited to s. 12 of the ATIPPA and has no bearing on the statutory right of access contained within the ATIPPA . [ 74 ] My decision at paragraph 32 was in relation to proceeding 201901G7928 stating: The issues for consideration, noted at paragraph 67 of Memorial’s Brief, do not require consideration of the issue of anonymity. In any event, in my Rule 38 ruling, Oleynik v. Memorial University of Newfoundland and Labrador , 2021 NLSC 51 at para. 114 , I concluded there is no statutory right of appeal under either s. 12 (anonymity) or s. 64 (protection of personal information) of the ATIPPA .

The reason for the removal of the BCC line is not relevant or necessary to address the reasonableness of the searches conducted. [ 75 ] This ruling was given in the context of Oleynik’s request for an order requiring MUN to search for records responsive to disregard requests.

My decision is limited to s. 12 and s. 64 of the ATIPPA and did not address or pre-judge the issue of whether an applicant has a right to access to records in native format under the ATIPPA . [ 76 ] My decision at paragraph 34 was in relation to proceeding 202001G3976 and states: “As for the release of records in native format, that determination can be made without the expert opinion. The report is not relevant or necessary to allow for a determination of the appeal issues.” [ 77 ] This ruling did not address whether an applicant has a statutory right of access to records in native format under the ATIPPA .

I concluded that expert evidence is not necessary to make this finding. Whether an applicant has a right to records in native format is governed by the working of the ATIPPA , and not the opinion of experts, and I did not opine regarding access to records in native format. Oleynik v. Law Society of Newfoundland and Labrador, 2022 NLSC 151 [ 78 ] Neither MUN nor the Commissioner were a party to this decision.

This decision was not an appeal, or a judicial review associated with the ATIPPA , but rather, an appeal from a decision of the Complaints Authorization Committee dismissing the allegations made by Oleynik against legal counsel for MUN. There was no adjudication on the issue whether an applicant has a statutory right of records in native format under the ATIPPA . [ 79 ] The paragraphs relied upon by Oleynik to demonstrate a lack of open-mindedness or lack of impartiality are paragraph 59, and paragraphs 129–134.

Paragraph 59 states: “Oleynik seeks the admission of ‘new evidence’ as detailed in his submissions (at para. 105, March 3, 2022 Brief), and ‘newly discovered evidence’ (at para. 44, August 10, 2022 Brief).” [ 80 ] The issue of access to records in native format under the ATIPPA is not addressed in this paragraph. [ 81 ] I later state at paragraphs 129–134 of the Law Society judgment: [129] On the reasonableness standard, the Committee’s approach to the investigation of the allegation of alteration of court records is entitled to deference.

The Committee’s reasoning reflects it adequately considered the allegation and no further investigation was necessary. [130] The Committee considered: (

i) correspondence from Oleynik, specifying the details of his allegation and Ms. Thomson’s correspondence in reply to the allegation of alteration of court records; and (ii) two expert reports, one submitted by Oleynik and one in rebuttal from Ms. Thomson.

[131] The Committee’s decision stated: With respect to allegation (ii), that Koren Thomson misled the Court by providing a false explanation of how the metadata and contents of the two emails produced for inspection and copying had been altered, the Committee is of the opinion that there are no reasonable grounds to believe that Koren Thomson engaged in conduct deserving of sanction as alleged. Koren Thomson had a duty to her client to raise every issue and advance every argument. The Committee is of the opinion that she was bound by the Code to advance the client’s position with respect to their explanation.

The Committee noted that a lawyer cannot mislead the court, however, a lawyer can be wrong in an explanation offered. The Committee is of the opinion that Koren Thomson reasonably brought forward her client’s position and supported it with their expert’s evidence.

While the Committee is of the opinion that they need not decide whether the metadata and/or documents were altered, they found no reasonable basis on the evidence to suggest that Koren Thomson misled the Court, rather Koren Thomson advanced her client’s argument. [132] The Committee has “a broad discretion” in the procedure it adopts when considering allegations. In Aylward (at para 48) the NL Court of Appeal concluded, “Considerable deference must be, therefore, given to the Committee to deal with the complaint based on the correspondence it received” from the parties. It was open to the Committee to accept Ms.

Thomson’s explanation, and to decide there was no reasonable basis on the totality of the evidence to investigate further. [133] The scope of the Committee’s duty to investigate, as noted from the quoted source in Martin (at para. 21), “is limited to that which is necessary to determine whether there is a reasonable basis in the evidence” to believe the member has engaged in conduct deserving of sanction. [134] I defer to the Committee’s handling of the allegation, and dismiss this ground of appeal. [ 82 ] I deferred to the findings of the Complaints Authorization Committee without opining on issues associated with rights of access under ATIPPA . [ 83 ] There has been no finding, either implicitly or explicitly, by me in the jurisprudence identified by Oleynik as to whether an access to information applicant has a statutory right of access to records in native format under the ATIPPA .

Therefore, there is no basis for concluding that I lack impartiality in adjudicating that specific issue in the future and this ground for recusal must fail. Issue 2 – Whether the Case Management Judge showed bias against Oleynik as a self-represented litigant in case managed proceedings? [ 84 ] There is no air of reality to any of Oleynik’s allegations that I have exhibited bias, actual or perceived. I find that no reasonably informed person fully aware of the relevant facts would conclude that I have conducted myself in a manner that raises a real or perceived apprehension of bias or lack of objectivity. (

i) Issuance of the Orders of September 30, 2020 [ 85 ] Oleynik submits that he “was not aware at the early stages of case management that the Court exceeded its jurisdiction” (stated at para 15 of Oleynik’s Brief) in issuing the Orders of September 30, 2020 for service of documents upon him. I thereby showed bias against him as a self-represented litigant for my alleged failure to follow proper procedure when parties disagree on a particular matter at a case management meeting. The informed observer would find Oleynik’s position on this issue to have no merit. [ 86 ] Counsel for Memorial, Ms.

Thomson raised the difficulty of effecting service of documents on Oleynik at the case management meeting on September 30, 2022. She pointed out, “I hate to bring it up again, but we need a proper address for service.” She offered her apologies that the issue of service was “coming up for the third time.” I expressed, “this is unbelievable, quite frankly, that we can’t even agree on how we’re going to serve.” [ 87 ] The address Oleynik provided for service was at the Department of Sociology of Memorial.

This was presenting a problem because Memorial had buildings in lock down due to COVID-19 Measures, and prior arrangements with the University were required for the delivery of documents. Oleynik refused to accept Ms. Thomson’s offer to provide electronic service, and he refused to provide his residential address for service.

His position was he had provided a proper address for service, and “it’s just a question of respect for the rules during COVID-19 restrictions.” [ 88 ] After considerable discussion and my efforts on “trying to get a workable solution” failed, I made the following Order to effect service in each of the applicable proceedings: 1. Anton Oleynik may be served before 11:30a.m. at the Department of Sociology of Memorial University of Newfoundland; 2. If service cannot be effected before 11:30am at the Department of Sociology:

a) Dr. Oleynik can pick the documents up at the office of the lawyer effecting service; or

b) Dr. Oleynik can provide Counsel with a residential address where the process server can serve him no later than 6pm. [ 89 ] I explained to Oleynik at the case management meeting the issue of service had taken enough of the Court’s time and I was not prepared to entertain further submissions on the issue. I indicated his remedy if he did not like the order I imposed was to appeal it.

The transcript Oleynik filed of the audio recording of the case management meeting reveals I also stated I was open to changing the procedural order: “If at the next case management meeting, if it’s not workable I’m open, obviously, it’s a procedural order.

I’m open to change it if a better solution can be worked out, but as of now that’s the order that will be drafted and served.” [ 90 ] Oleynik did not raise the service Orders on appeal ( Oleynik , 2021 NLCA 56 ), and he never asked me at the subsequent case management meeting, as I had offered, to consider changing the Orders to accommodate an alternative form of service suitable to him.

[91] I do not agree with Oleynik’s position that the Court exceeded its jurisdiction in making the Orders at case managementwithout adjourning “the matter into chambers or Court for full argument and decision”: Rule 18A.06(6). First, if I had no jurisdiction,my order was incorrect and he ought to have appealed my orders on that basis. Second, the Orders pertain to service of non-originatingdocuments in existing proceedings and service may be made in such manner as the Court may order: Rule 6.11(1)(d).

Third, the Rulesare not “iron rails” but guidelines for “the furtherance of procedural justice to ensure a proper determination on the merits of a particulardispute”: Langor v. Spurrell (1997), (NL CA), 157 Nfld. & P.E.I.R. 301, 17 C.P.C. (4th) 1, 486 A.P.R. 301 (Nfld.C.A.), at para. 42. Fourth, the Court heard submissions from the parties on the issue, and the case management was on the record. Fifthand most importantly, the principle of proportionality did not justify a further hearing on the issue.

In Oleynik, 2021 NLSC 4, at para.37, I held: “I will at times during conduct of these proceedings be governed by the principle of proportionality. My goal is to ensure theparties get a fair and proper resolution expeditiously and cost-effectively.” [92] I specifically asked Oleynik if my Orders were in excess of jurisdiction, or indicative of bias, why he did not raise it as a groundof appeal in his appeal of earlier interlocutory decisions.

He responded: “I need to indicate a pattern, when I have enough evidence, youdon’t overreact immediately when injustice happens, I calculate resources and costs.” It is apparent from his comments that Oleynik isnot a self-represented litigant who needs the Court’s assistance and guidance, but one who is quite capable of calculating and planninghis litigation strategy. [93] Further, on this issue of the service Orders, Oleynik improperly attempts to re-litigate and have me reconsider a finding I madein my decision to dismiss his appeal in the Law Society matter.

He submits the situation surrounding the issuance of the Orders ismaterial to the Court’s assessment of how the Law Society handled one of his allegations against Ms. Thomson. He alleged Ms.Thomson, “[p]rovided her client with incorrect information in mid-September 2020 claiming that there was an Order or direction of thecase management judge in respect to service of documents.” The Law Society dismissed the allegation. [94] He argues the underlying issue is whether there was a relevant order or decision when Ms. Thomson made the contested claim.

To adjudicate this matter, he says the Court needed to review the context in which the Orders were issued, and therefore would haverequired me reviewing my own orders. The finding I made in the Law Society judgment (at para. 36) was the Complaints AuthorizationCommittee’s dismal of the allegation did not “necessitate me reviewing the merits of my own orders and decisions.” [emphasis added].

If I am wrong on that, Oleynik in his appeal of my Law Society judgments can seek to have the Court of Appeal correct my error. [95] Oleynik fails to accept that an apprehension of bias is not established merely because a litigant is unsuccessful, evenrepeatedly. Unfavorable outcomes are not evidence of bias, particularly so in the context of case management.

The law is clear thatjudges need not recuse themselves just because they have made some, or many, rulings against any one party: Alberta Health Services v.Wang, 2018 ABCA 104, at paras. 8 and 9. [96] On his appeal of interlocutory decisions giving rise to a reasonable apprehension of bias, the Court of Appeal held (2021NLCA 56, at para. 67): “The lack of success, mostly, on the judgments rendered is not indicative of bias, or apprehension of bias.” (ii) Misplaced Applicant’s Brief Filed in the Proceeding 201701G6218 [97] The Court inadvertently misplaced Oleynik’s Brief (a large black hard-cover three-ring binder) filed on March 1, 2018, in the201701G6218 proceeding.

Oleynik alleges it went missing during the period when I had permitted Ms. Thomson to have access to thefile for the purpose of determining transcripts she should commission for a fulsome record. Oleynik informed the Court Registryofficers that the Brief was missing on August 18, 2022. He followed up on this matter in a letter to the Court Registrar on August 29,2022, asking for an investigation. [98] Oleynik submits there are four material facts on this issue. First, he states his own access to Court files has been restricted,documents in files are missing, and sometimes files are not available.

Second, there is at least one other case before the Court, that ofAmeenah Zaid Al-Haidari and Memorial involving Ms. Thomson, and he needs to check court files on a regular basis. Third, the Courtoffered inconsistent explanations as to how his Brief (“a key document”) was lost and found. Fourth, the missing Brief was relevant tomatters involving Ms. Thomson that he brought before the Law Society. [99] Despite Oleynik’s claim of lack of access to court files, he has had 76 appointments (7 additional appointments cancelled) anddocumented visits to the Registry to view files.

He complains all of his access is documented but Ms. Thomson’s was not. As an officerof the court, Ms. Thomson may have access to the file at her discretion. I gave her permission on the record for “coordinating thephysical file” from which the key document went missing. [100] He produced in his Brief, at para. 19, the transcript of the case management meeting on September 30, 2020, for the assertion thatgave Ms. Thomson “an unrestricted access to and the control over the relevant court file”: COURT: And Dr. Oleynik, you have no problem with Ms. Thomson coordinating the physical file? And she’ll, you know...

AO: Well, as long as, again, the transcripts that were filed, they are staying as such, that’s fine. COURT: Yeah. Well, what’s filed, nothing is going to come out of the file. You know, Ms. Thomson won’t be permitted to takeanything out of... AO: No. That’s fine. I mean everything else ... just if new transcripts that we’re missing are needed for some reason... COURT: Yeah. She just needs the physical ... file to see what’s in it.

She’s not going to take anything away or insert anything in ...So leave is given for you to contact [my Judicial Assistant] to coordinate getting the physical file, reviewing what transcripts have beenprepared and requesting copies of those transcripts, if necessary, and then preparing other transcripts of you see fit.

[emphasis mine] [ 101 ] The Minutes signed by the parties for that case management meeting reflect counsel for Memorial had leave to contact my Judicial Assistant “for the purpose of physically accessing the court file to determine what, if any, additional transcript[s] need to be provided to the Court.” Oleynik also had leave to contact my Judicial Assistant to obtain the case management

summary report. [ 102 ] Ms. Thomson sought access to the Court file because, at the material time, I was maintaining all the files for the proceedings in my chambers for ease of reference. That turned out to be unworkable given the frequency at which Oleynik was seeking access to court files in the proceeding. I decided and informed the parties that all files would be returned to the Registry, except if and when I needed a particular file for preparation for hearings and meetings or judgment writing.

In the course of returning the files from chambers to the Registry, Oleynik’s Brief unfortunately got misplaced. [ 103 ] The Brief in question was for a hearing that took place before the late Justice Hurley, who had reserved on judgment but had passed away before rendering his decision.

The parties had agreed in case management on January 13, 2021, as documented in my Case Management Report of the same date and circulated to the parties, that the matter “will be held in abeyance and reviewed after the issue of Oleynik’s expert report is resolved.” I was not asked by the parties to revisit the outstanding judgment or any other aspect having to do with the 201701G6218 proceeding, save and except Oleynik’s inquiries to alert the Court in August 2022 that his Brief was missing from the court file. [ 104 ] At the hearing of the Law Society appeal proceeding on September 13, 2022, he raised the issue: “with the integrity of the Court’s records in the 20171G6218 proceeding.” I interjected to inquire about the relevance of that issue in the Law Society proceeding because it was not before the Complaints Authorization Committee.

The hearing record also indicates I advised Oleynik the Court would arrange a case management meeting to deal with that issue. [ 105 ] He insisted that the matter was relevant on the basis that there is a consistent pattern in all allegations made against Ms. Thomson. I asked him directly: “So you’re alleging Ms. Thomson deliberately removed your filings from the court file?” His replied, “Mr. Justice, I didn’t make any allegation at this point ...

I would like, first, the matter to be properly investigated.” [ 106 ] Oleynik submits I demonstrated bias in referring to his position on the situation with the Brief as “silliness.” My specific comments were: I’ve been giving you, and this Court has been giving you – as I said before in some of my decisions, you got more access to this court than ever a litigant I’ve known in my 30 years of – between practising law and being on the bench And I’ve been trying to be very fair for you, very fair with you, but when you get on with what I call silliness and irrelevant information about having investigations because a filing has gone missing, and the implication that, oh, Ms.

Thomson or somebody maliciously took that out of the file, it’s silliness. [ 107 ] I concede I demonstrated some frustration on this issue during the course of the Law Society hearing, and perhaps I could have expressed myself differently. Nevertheless, the well-informed and reasonable observer would evaluate my comments within the perspective and complexity of what I was faced with and the preposterousness of Oleynik’s position.

Abella J in Yukon Francophone School Board stated, “that a judge’s individual comments during [an application are] not to be seen in isolation” (at para. 25). [ 108 ] Oleynik’s persistence in pursing an investigation into the cause of the missing brief, choosing to disregard my repeated explanations and calling them inconsistent and contrary is, as Mr. Ayers stated in his submissions, “an attack on Justice Noel’s credibility” as well as the Court’s. [ 109 ] The day following the Law Society hearing I conducted a case management meeting via teleconference on September 14, 2022, in the Labour Relations proceeding.

The internal records of the Court, which Oleynik filed in a Supplementary Affidavit on the same date describe the communication between my Judicial Assistant and the Chief Justice’s Judicial Assistant My Judicial Assistant on November 21, 2022 pointed out to the Chief’s office that there was no Case Management Order for this file and inquired if this was an oversight.

The Chief’s Judicial Assistant noted in response, “Chief said it was an oversight but he won’t make a CM Order for now.” [5] [ 110 ] During the call to set the hearing dates in the Labour Relations matter, I inquired of counsel for the Board, Megan Reynolds, whether the Record was filed. The parties confirmed the Board had filed a 10-volume Record and a Supplementary Record. I had the Supplementary Record in my possession but not the Record. The Clerk reached out to the Registry to inquire if it was in the Registry but not brought to chambers with the file.

While waiting for the Clerk to confirm the whereabouts of the Record, my Judicial Assistant brought to my attention that the misplaced Brief had been located. I immediately informed Oleynik that his Brief had been located: Good news, Dr. Oleynik. I think we’ve also ... the registry has also located the one we had much discussion about, the 16 ... the 6124. I don’t know if I got the number right. There’s so many of them, but the missing brief or briefs. Apparently, it’s been located in another file. So we’ll deal with that subsequently. That’s not for the parties here today.

But, no it’s ... it is filed at the registry, Ms. Reynolds, so ... and case management notes ... [ 111 ] On September 20, 2022, my Judicial Assistant, as per my direction, emailed Dr. Oleynik, Ms.

Thomson, and Fitzgerald KC to address various administrative case management matters and to advise, among other things: “The 201701G6218 March 1, 2018 Applicant’s Brief has been located among the Judge’s working material and has been returned to the associated file.” [ 112 ] Oleynik submits “within one week, the status and location of the key document changed three times” [emphasis added]. “It was left unexplained why it took one month to locate the Brief among the [Judge’s] working material.” It is a thousand-page document in a large binder. [ 113 ] I cannot be certain as to why the Brief was misplaced from the court file and ended up in a separate file box referred to as “Judge’s working material.” I can be certain Ms.

Thomson would not have access to a file specifically designated as the Judge’s working material. A court officer may have assumed, because it was a large black binder and not strictly complying with the “bound” document requirement for filing under Rule 4.02(3) and (4), that it was part of the Judge’s working material.

[ 114 ] I am astonished that Oleynik has commanded so much Court time and resources regarding this issue, and with Oleynik’s implication that Ms. Thomson would have removed the Brief from the Court file. Oleynik maintained in his oral submissions that he is not accusing Ms. Thomson of removing his Brief from the court file. But, because the file was “under the control of Ms. Thomson,” it is the “most reasonable assumption in the circumstances.” [ 115 ] Oleynik continues his attempt to connect a court file involving an unrelated party, Ms. Al-Haidari, to the situation with his missing Brief because he alleges Ms.

Thomson was involved in Ms. Al-Haidari’s court file. One of the issues in that proceeding involves “unreliable evidence (alleged forged document)”: Al-Haidari v. Memorial University of Newfoundland , 2022 NLCA 58 , at para 10 . He submits Ms. Al-Haidari’s case is comparable and logically relevant, and that Goodridge JA in the Al-Haidari decision made no allegation of “silliness.” [ 116 ] Justice Goodridge’s decision concerned Al-Haidari asking the Court of Appeal to appoint state-funded legal counsel to represent her on the appeal of two interlocutory procedural orders arising out of a civil claim.

Goodridge JA denied her application holding (at para. 11) that “Ms. Al-Haidari is articulate and highly educated. She has the ability to provide sufficient written and oral submissions addressing the issues engaged.” There is absolutely nothing about the Al-Haidari decision that assists Oleynik in establishing his claim of my apprehension of bias against him. [ 117 ] I ruled in the Law Society hearing, “[w]hatever is happening in that matter is not my concern. I’m not dealing with it.” I held it was irrelevant to Oleynik’s Law Society appeal and his allegation of unfair treatment of him.

I remain of that view on evidence he has placed before me on this application. [ 118 ] Raising apprehension of bias to make veiled attacks against the Court and counsel is wrong. In refusing to accept the Court’s repeated explanation for his misplaced Brief, he attacks the integrity of the Court and continues to make spurious accusations against Ms. Thomson. Oleynik as a self-respected litigant does not get a pass for disrespecting the Court and counsel. Nor does he gain immunity from sanction as I will later address. [ 119 ] As for his claim of costs at paragraph 117(

e) of his Brief for the misplaced brief, it is regrettable that Oleynik had to spend time inquiring and looking for his Brief. It is no fault of the opposing parties that the file was misplaced by the Court, so there is no entitlement for Oleynik to recover costs for the time he expended. I find he has persisted unreasonably with this and ought to have accepted the Court’s explanation and moved on without insinuating that Ms.

Thomson may have removed the file. (iii) Issuance of Case Management Order of November 19, 2021, for Law Society Proceeding [ 120 ] I considered this issue in the Law Society judgment (at paras. 12 to 20) [6] . I held (at para. 20) that the Court has inherent jurisdiction to make the Case Management Order without first hearing from the parties. Oleynik refuses to accept my ruling and will not move on from it. [ 121 ] Oleynik submits the situation with this Case Management Order suggests that the case management judge appears unable to ensure proper management of the Law Society proceeding and other court files.

He raises that the Court penalized him with elevated costs for taking “unnecessary time of the Court and Law Society on the issue of the Case Management Order”: (at para 152). [ 122 ] He reasserts his argument that the Court ignored his basic procedural rights, including the right to be heard.

He is following up on the issue of the Case Management Order attempting to defend his right to be heard, and the denial of that right in his capacity as a self- represented litigant. [ 123 ] He again challenges the Court’s ability to make the Order, and reiterates that he expressed legitimate concerns as to how case management orders are issued on other occasions in the proceedings (at para. 29 of the Applicant’s Brief).

He raises a reference I made in a case management meeting on April 8, 2022, in the appeal he commenced of a Taxing Master’s decision (202201G1201) when setting filing dates in that hearing that the rules are not inflexible “iron rails.” [ 124 ] He argues “the flexibilization of the Rules” caused prejudice to him because (

a) he was denied the right to be heard; and (

b) he was penalized by elevated costs for his attempts to follow the Rules. He equates his right to be heard in reference to the cases of immigrants – they have no right to come in, but they have a right to be heard: R. v. Gaming Board for Great Britain , ex parte Benaim , [1970] 2 all ER 528, [1970] 2 Q.B. 417 .

The fact that I was aware, through his filings in the Labour Relations proceeding, that he is a landed immigrant with family in Ukraine he submits gives particular relevance to his right to be heard. [ 125 ] He argues, at the very least, his November 26, 2021 “administrative letter” (a term coined by Oleynik) to acting Chief Justice Marshall should have been admitted as additional evidence.

I did in fact admit and consider the letter (at para. 60.6): “Oleynik’s administrative letter to Justice Marshall, as previously referred to, is not new evidence as it is contained within the subject Court file.” [ 126 ] He submits he had a right to be heard by Marshall J who endorsed the Case Management Order on behalf of the Chief Justice ( Law Society judgment at para. 14).

When asked why he did not copy the case management judge on his letter, he said he addressed the letter to “the decision-maker.” He claims the decision-maker did not provide him with a response and his right to be heard by Marshall J was a denial of procedural fairness. Oleynik had no entitlement to be heard by a judge of this Court exercising an administrative function under the Judicature Act , R.S.N.L. 1990, c. J-4 . Neither did he have a right to be heard by the Chief Justice, on whose behalf Marshall J was acting.

I dealt with and dismissed his arguments on the Court’s jurisdiction to issue the Order, and his argument on the denial of procedural fairness is simply a collateral attack on my prior ruling. [ 127 ] Incidentally, I note that while Oleynik complains about ex parte communication, which I will address further in this judgment, the letter to Justice Marshall was not copied to the other parties. [ 128 ] He notes a copy of his letter was missing from the file when he checked it. Nothing turns on this, as he filed the letter as part of his Affidavit material, and I was aware of the letter and addressed it.

I have directed a court officer to ensure a copy of the letter is placed appropriately in the court file and marked Copy.

[ 129 ] I was concerned with Oleynik’s use of administrative letters, particularly when he did not copy the case management judge or the parties, so I directed no further administrative letters would be accepted. He presented the Registry with eleven administrative letters , which grew into a misuse of the court process and resources. The earlier referenced September 20, 2022, email to the parties stated: “... Please be advised the Court will not accept any further administrative letters.

Should a matter arise requiring attention, please file an Application through the normal course.” [ 130 ] This approach is also consistent with what Oleynik had been told previously about delivering administrative letters to judges. McGrath J (as she then was), when hearing an Oleynik file of 201901G5833 on December 5, 2019, advised Oleynik that the Rules of the Court do not provide for the filing of letters and the practice of the Court is not to accept such letters. She instructed Oleynik to refrain from doing so and detailed the proper process for filing documents with the Court through the Registry.

He has ignored McGrath J’s direction. [ 131 ] Oleynik argues the restriction on administrative letters undermines the informality of case management. Case management he says should make the process more flexible. I find his argument somewhat paradoxical considering he argues the Case Management Order should not have been issued. What he really disputes is not case management but that I not conduct the case management. An assigned case management judge is not disqualified because a party would prefer another judge. [ 132 ] Rearguing the very same issue again is an abuse of the Court’s process.

Any informed and fair-minded observer would view it as such. [ 133 ] Alternatively, if Oleynik is correct and I must look at this issue, as part of a cumulative process, the reasonable observer would not conclude it is indicative of the closed-mindedness of the case management judge. Oleynik states he asked himself several times whether there is enough evidence, and why so many instances related to the Law Society matter triggered this recusal application. The reality is Oleynik does not agree with my handling of and rulings in his Law Society appeal.

That is not a basis for recusal. (iv) Case Management in the Taxation Appeal 202201G1201 [ 134 ] Oleynik takes issue with my case management of his Taxation appeal in the 202201G1201 proceeding. I conducted a case management meeting on April 29, 2022, to set a date for the appeal hearing and filing dates. I inquired if there were any preliminary matters. Oleynik expressed his objection that the Court issued the Case Management Order without hearing from the parties.

I listened to the audio of the Meeting and Oleynik is heard to say he raised that issue previously in the Law Society proceeding, “It’s done now, so let’s move on.” It is apparent that Oleynik did not “move on” from this issue. [ 135 ] He raises my comment from an earlier date that I would be case managing any proceeding that involves Memorial. He says the available evidence does not support my explanation that any proceeding involving Memorial is assigned to me because Ms. Al-Haidari’s proceedings have not been assigned to me.

He takes my comment out of context, as I obviously meant proceedings that involve him and Memorial as part of the “complex mix of interrelated court proceedings” to use the phraseology of Goodridge JA. [ 136 ] He argues the General Division of the judicial center of St. John’s has transformed into a single-judge jurisdiction as far as his proceedings are concerned, which equates his access to justice to the case management judge. There has been no delay in making myself available to hear the proceedings.

I have made every effort to accommodate the parties, at times on short notice, and provide dates suitable to the parties and the available Court docket. [ 137 ] He submits the Court’s decision to seal the Case Management Minutes (Appearance Detail Report) undermines the principles of

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