Alli v. Alli, 2011 ONCJ 575

Toronto (North York) Registry No. D52008/10 DATE: 2011·XI·15 CITATION: Alli v. Alli, 2011 ONCJ 575 ONTARIO COURT OF JUSTICE BETWEEN: KALPANA ALLI, Applicant, — AND — RAYMOND MOHAMED ALLI, REHANNA ALLI and INSAN ALLI, Respondents. Before Justice Harvey P.

Brownstone Endorsement inscribed on 15 November 2011 CIVIL PROCEDURE — Case management — Case conference — Authority of case conference judge — Authority to entertain motionsmade after case conference — Whereas subrule 17(24) of Family Law Rules forbids judge who had conducted settlement conference onissue from adjudicating on that issue at subsequent motion or trial, nothing forbids case conference judge from dealing with motion madeafter case conference — Absence in rule 40 [case management in Ontario Court of Justice] of any counterpart to subrule 39(9) [functionsof case management judge in Family Court of Superior Court of Justice] does not mean that case conference judge in Ontario Court ofJustice lacks authority to deal with post-conference motions — Denying such authority would be contrary to court practice for pastdozen years since rules were promulgated — It would also make no sense if case management judge could make substantive orders(even when not on consent) during case conference under clause 17(8)(b.1) but could not do so after case conference — Judge who hadheld case conference rejected party’s argument that he could not deal with post-conference motion.

COURTS AND JUDGES — Judges — Disqualification — Bias — Grounds — Judge’s expression of opinion on outcome of case —When party objected to having case conference judge hear motion made after conference, judge reviewed transcript of case conferenceand concluded that he had conducted it as if it were settlement conference at which he had strongly indicated how dispute betweenparties should be resolved — On basis of subrule 17(24) of Family Law Rules, judge agreed that it would not be appropriate for him tohear motion and therefore recused himself from hearing that motion.

STATUTES AND REGULATIONS CITED Family Law Rules, O. Reg. 114/99 [as amended], subrule 1(7), rule 2, rule 16, clause 17(8)(b.1), subrule 17(24), subrule 39(9), rule 40and Form 14B. Rules of Civil Procedure, R.R.O. 1990, Reg. 194 [as amended]. CASES CITED Brown v. Fairchild, , 38 R.F.L. (4th) 214, [1998] O.J. No. 609, 1998 Cars​well​Ont 696 (Ont. Prov. Div.). Subodh R. Bhardwaj ...................................................................... counsel for the applicant mother Omar A.H. Sherman .................................................................... counsel for the respondent father James D.

Singer ................................................................ counsel for the respondent grandparents [1] JUSTICE H.P. BROWNSTONE (endorsement):— The applicant has brought a motion for custody. The grandparentshave asked to have the motion heard by a different judge on the basis that a judge who has conducted a case conference has no authorityto hear a motion in the case. Counsel for the grandparents argued that rule 40 of the Family Law Rules, O. Reg. 114/99, as amended,

which governs case management in the Ontario Court of Justice, does not contain a provision similar to subrule 39(9), which specificallyauthorizes Superior Court judges to hear motions after having conducted case conferences. Counsel argues that this omission from rule40 is indicative of the Rules Committee’s specific intention to deprive judges of the Ontario Court of Justice from hearing motions ifthey have conducted a case conference in the case.

Counsel argues further that there is no inherent jurisdiction in the Ontario Court ofJustice to hear a motion after having conducted a case conference and that it would not be appropriate to resort to the Rules of CivilProcedure, R.R.O. 1990, Reg. 194, as amended, pursuant to subrule 1(7) of the Family Law Rules to fill the apparent lacuna in the rulesprocedure governing this court. [2] Counsel argued that there is a sound policy basis for not permitting provincial judges to hear motions after conducting acase conference: the Ontario Court of Justice is an “inferior court” that lacks numerous powers granted to Superior Court judges, such asparens patriae jurisdiction and the authority to make orders relating to property.

In my view, the only significance of this court’s beingan “inferior court” is that it is entirely a creature of statute (not a “court of equity”) and has no inherent jurisdiction other than theinherent jurisdiction to control its own process, which has been confirmed in such cases as Brown v. Fairchild, , 38R.F.L. (4th) 214, [1998] O.J. No. 609, 1998 Cars​well​Ont 696 (Ont. Prov. Div.).

The “inferior” nature of the Ontario Court of Justice vis-à-vis the Superior Court is completely irrelevant to the issue at hand, because I find that the Family Law Rules do indeed contemplatethat judges of the Ontario Court of Justice have the authority to hear motions after having conducted case conferences. [3] Subrule 17(24) specifically provides that a judge who has conducted a settlement conference cannot adjudicate over theissue at a motion or a trial.

It can of course be argued, similar to the reasoning applied by counsel in this case, that the RulesCommittee’s specific omission of the words “case conference” in subrule 17(24) can lead to the reasonable inference that the RulesCommittee DID intend that a judge who has conducted a case conference (and not a settlement conference) CAN indeed adjudicate theissue at a motion or a trial. I prefer this

interpretation. [4] In my view, the failure of the Rules Committee specifically to provide in rule40 for a provision similar to subrule 39(9)should NOT be interpreted to mean that a judge of the Ontario Court of Justice is prohibited from hearing a motion if he or she hasalready conducted a case conference in the case.

The fact that Superior Court judges are specifically empowered to hear motions inthese circumstances does not mean that judges of the Ontario Court of Justice are not. [5] The Family Law Rules have been in effect since 1999 and it is beyond dispute that the primary objective of the rules hasalways been to encourage single-judge case management, which of necessity requires that, as much as possible, each case is managed bya single judge, who conducts case conferences, hears motions and conducts settlement conferences.

Only if the case cannot be settled orotherwise adjudicated pursuant to rule 2, rule 16 or clause 17(8)(b.1), should a case be sent to a different judge for adjudication. Thisprinciple is the very heart and soul of the way business has been conducted in the Ontario Court of Justice throughout Ontario for over adecade, with great success.

If counsel’s argument were accepted and judges of this court could not hear motions after having conductedcase conferences, this would lead to the absurd result that judges could not deal with any motions including procedural motions such asForm 14B motions and even motions for orders on consent.

This would undermine the entire foundation and operation of casemanagement and would be totally contrary to the overriding principles set out in rule 2, to “deal with cases justly”. [6] Furthermore, it would be incongruous and absurd if a case management judge could make substantive orders (evenwhen not on consent) at a case conference pursuant to clause 17(8)(b.1) but not be authorized to make such orders at a motion followinga case conference held by that judge. [7] In the alternative, counsel argues that I should recuse myself from hearing the motion because of the strong opinionsthat I expressed at the case conference held on 19 September 2011.

I have reviewed the transcript of 19 September 2011 and I agree thatmy comments were clear, definitive and strongly indicative of how I believed the dispute between the parties should be resolved. Whatactually occurred on 19 September 2011, for all intents and purposes, was a settlement conference, not just a case conference. Accordingly, pursuant to subrule 17(24), it would not be appropriate for me to hear the motion, and I have recused myself from hearingthe motion. [8] The trial co-ordinator shall

schedule the motion to be heard by a different judge. After the motion has been adjudicated,the case should return to me for further case management.