Law Times

January 9, 2017

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Page 2 January 9, 2017 • Law Times Morse brought applications for two charging orders against Fancy, as well as two actions seeking payment of the dis- bursements and declarations of entitlement to certain amounts of fees. Wilson ruled on the applica- tions in a decision released in June 2016 and granted Morse a charging order on the proceeds of any settlement or judgment in the two matters. Fancy has con- tended that the actions are an abuse of process, saying Morse should not have been able to file both applications and ac- tions for the same relief. Morse says the actions are necessary to determine whether Fancy has to pay him and how much. In September 2016, Fancy sent a letter to Wilson and Re- gional Senior Justice Geoffrey Morawetz, saying Wilson was biased and that she should re- cuse herself. Fancy then sent a letter to Wilson saying he would provide evidence that would prove she was involved with the alleged break and enter. As evidence, he submitted his letter from 2005, which inquires whether Wilson and her co- counsel on a case had retained an investigator to conduct sur- veillance on his client. Fancy also wrote a letter to Justice Thomas McEwen, who had appointed Wilson to deter- mine if case management was appropriate in the matter, com- plaining that she was biased and repeating his allegations against her. Fancy then refused to attend the proceedings concerning his recusal motion, saying the Court of Appeal would deal with the issues he had raised through an appeal of Wilson's earlier deci- sion of Morse's applications. "It's really outside the bounds of what the court can expect appellate court ordered the res- toration of an action to the trial list after it had been administra- tively dismissed. In that case, a motion judge had also dismissed a motion to restore an action to the trial list before it was administratively dismissed a month later. The Court of Appeal set aside the order, saying the motion judge had erred in applying the appropriate principles. "If the defendants should argue that the appeal is moot because of an intervening ad- ministrative dismissal, Carioca would seem to provide him with an answer," Glithero said. The defendants in Apa Holdings successfully argued that the motion requesting an extension was unnecessary be- cause if the appeal is success- ful, s. 134 of the Courts Justice Act empowers appellate courts to "make any order that could have been made by the court ap- pealed from," meaning it has the jurisdiction to restore the action to the trial list. Glithero agreed. Ryan Wozniak, the lawyer representing the defendant, An- tonio Duscio, says the case clari- fies the procedure when a mo- tion has been brought to restore an action, fails and has been ap- pealed but won't be heard until after an administrative dismiss- al date. "It doesn't render the appeal moot because the appellate court will have the jurisdiction to make any order to restore the action if it finds the original mo- tions judge erred," he says. Wozniak says the decision makes it so that a party who un- successfully moves under rule 48.11, which allows for the res- toration of an action to the trial list, can't move a second time under 48.14. Wozniak says this closes a gap that would poten- tially allow a party to engage in re-litigation. The ruling is im- portant given that lawyers need to understand how new rules around administrative dismiss- als are being interpreted, he says. The rules concerning ad- ministrative dismissals — Rule 48 of the Rules of Civil Proced- ure — were amended effective Jan. 1, 2015 in order to reduce the number of administrative- related claims LawPRO had been receiving. Under the new rules, the courts dismiss any actions that were not set down for a trial five years after they started. Any actions started after Jan. 1, 2012 could be automatically dismissed after that amount of time, and any actions that were filed before would be dismissed by Jan. 1, 2017. Colin Dubeau of Nelligan O'Brien Payne LLP said the Apa Holdings action seems to be exactly the type of thing the new rules were hoping to address. "I don't know if they en- visioned one this old, but that seems to be what the new rules with respect to procedural dis- missals were intended to ad- dress," says Dubeau, who did not act in the Apa Holdings case. LT MATTER CREDENTIALS TORONTO I BARRIE I HAMILTON I KITCHENER 1-866-685-3311 I A Noticeable Difference ™ Choosing a personal injury lawyer is one of the most important decisions an injured person will make. Help your client ask the right questions: Is the lawyer? Untitled-4 1 2015-02-17 10:59 AM NEWS from an officer of the court," Morse says of Fancy's allega- tions. In an email, Fancy said he is seeking leave to appeal the decision from the Divisional Court. In his Notice of Motion to the Divisional Court, Fancy argued Wilson could not objectively weigh the evidence that he said proved her bias and that there is a "bitter history" between them. The Ontario Court of Ap- peal is set to hear Fancy's appeal of Wilson's earlier decision on Jan. 23. In her decision on the re- cusal motion, Wilson said Fancy failed to provide any evidence to substantiate his allegations, which she said were "devoid of merit." She added that he did not raise the issue of her alleged bias when she was first appointed to preside over the dispute, and it was only after she ruled against him that he put forward the re- cusal motion. "There is no evidence put forth by the Defendants that supports a finding of reasonable apprehension of bias or actual bias," she said. LT Continued from page 1 No evidence to support lawyer's allegations: judge New rules addressed in ruling Continued from page 1

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