Bias is in the Eye of the Beholden: Latner v. Doe

The recent Ontario Superior Court of Justice decision of Master Haberman in Latner  v. Doe, 2010 ONSC 4989 (CanLII) involves a Rule 31.10(2) motion for leave to examine a non-party witness to facilitate the plaintiff’s efforts in identifying an anonymous defendant in a defamation action. The Master’s reasons also address a motion for recusal arising from perceived injudicious comments made by the Master in  another case involving the Latner family’s battle for control of their father’s coins and  for power of attorney over his personal care and property.
In Latner v. Doe, the plaintiff, Joshua Latner sought an order requiring his brother, Steven Latner to attend to be examined as a non-party for the purpose of assisting him in identifying the ubiquitous defendant, John Doe in a defamation action. On February 19, 2010, Joshua learned of the existence of a website which described him in, the Master’s words, “very unflattering terms”.   The site also contained Joshua’s photo, superimposed the epithet “Loser”, as well as a photo of his home.  The claim was issued on March 5, 2010.
The website photos were posted from a Photobucket hosted account.Unsurprisingly,  the account’s administrator was identified as John Doe, with a Photobucket user name: “joshlatner.”  Following further inquiries by the plaintiff and his counsel, both the Photobucket account and the associated blog were quickly shut down.
On March 19, 2010, the plaintiff obtained a Norwich Pharmacal order requiring both Google and Photobucket to release information to him to assist him in identifying John Doe.  Both complied, resulting in the plaintiff obtaining the IP address associated with the alleged defamatory postings, which turned out to be a Rogers Cable account. On April 20, 2010, a further court order was obtained for the purpose of identifying the anonymous IP address subscriber.   According to Rogers’ records, it appears the IP address was assigned to the plaintiff’s brother,  Steven Latner, thereby prompting the motion to cross-examine.
The motion was contested on the grounds of lack of proportionality and lack of necessity,  given an opportunity to come forward with this information without the need for a motion and court order.

With respect to the Rule 31.10(2) motion, the Master applied the factors set out in  Irwin Toy Ltd. v. Doe, [2000] O.T.C. 561) as follows:

“1.      There is reason to believe that Steven has information relevant to the matter in issue: the IP address from which the blog emanates is registered to Steven.   While he may not be able to state unequivocally who was responsible for this publication, he certainly is well placed to provide information as to who it could have been and to help sort this out.  As his IP address was used, one would have thought he, too, would want to know how this could have happened without his authority or even his knowledge;
2.      Joshua cannot get this information from anyone he is entitled to examine for discovery: The action is currently being brought against John Doe due to the difficulty establishing Doe’s identity.  As a result, there is no defendant who can be examined for discovery at this time and there won’t be one until John Doe is identified;
3.      It would be unfair for Joshua to proceed to trial without having an opportunity to examine Steven: as this blog was posted from Steven’s IP account, Joshua has satisfied that criterion, too.  Steven is likely to have some information that can assist in getting to the bottom of this;
4.      The examination (60-90 minutes has been proposed) is not of an unreasonable duration nor unfair to Steven:   Further, it would not delay a trial that cannot occur until such time as Doe is identified; and
5.      Joshua must show a prima facie case of defamation and that his claim is reasonable and being advanced in good faith: Based on a review of the contents of the blog, included in the record, I am satisfied, that this criterion has also been fulfilled.”
It is unclear why the Master did not refer to the recent decision in Warman v. Wilkins-Fournier (which I discussed previously here) where the Divisional Court established the following test for compelling third party disclosure of the identities of anonymous posters in internet defamation actions:
“[34] Given the circumstances in this action, the motions judge was therefore required to have regard to the following considerations: (1) whether the unknown alleged wrongdoer could have a reasonable expectation of anonymity in the particular circumstances; (2) whether the Respondent has established a prima facie case against the unknown alleged wrongdoer and is acting in good faith; (3) whether the Respondent has taken reasonable steps to identify the anonymous party and has been unable to do so; and (4) whether the public interests favouring disclosure outweigh the legitimate interests of freedom of expression and right to privacy of the persons sought to be identified if the disclosure is ordered.”

In any event, the more intriguing part of the motion involved a recusal motion brought by Brett Moldaver, Steven Latner’s counsel. According to the Master’s reasons:

“[7]        While I was purging my list and before beginning the hearing of this motion, Mr. Moldaver, Steven’s counsel, rose and asked me to recuse myself from hearing it.  I had to ask him the basis for his request as it was not volunteered.  It seems he had concerns about my hearing the matter as I had heard a motion in another action involving Latner family members and he was unhappy with my findings.  
[8]        My findings in that case have no bearing on this one – the two actions are totally unrelated and involve other Latner family members.   In fact, Steven is not a party to either action.  No evidence was filed by Steven in this case so his credibility is not challenged or otherwise in issue here.  I therefore saw no basis to step aside and I declined to do so. 
[9]        We eventually reached this motion later in the morning.  At that time, Mr. Chernos rose and advised me that he had been made privy to certain facts by Mr. Modaver and was wondering if I should reconsider the recusal request in light of that information. Apparently, Mr. Moldaver had conveyed his concerns to him in confidence, so rather than sharing them with me directly, Mr. Chernos invited Mr. Moldaver to do so.  
[10]      Mr. Moldaver rose again.  All he added to his earlier comments was that he felt some of the things I had said about the Latner family and about his client, in particular, had not been necessary when dealing with the earlier motion.
[11]      The particular comment to where he appeared to take objection involved my discussion as to the manner and frequency with which the Latners access the courts.  As a Case Management master, I am always mindful of how court time, a limited resource, is used.  I am also aware of how costly litigation can be and, in the context of proportionality, I approach all matters from the standpoint of trying to discourage litigation when, in my view, there are more appropriate ways to resolve disputes.    
[12]      Thus, while Mr. Moldaver may believe that my comments were not necessary, they were, in my view, important in regards to the number of outstanding Latner v. Latner cases outstanding at that time and, hopefully, they have been or will be of assistance.  
[13]      Although this action is not case managed, I have had the opportunity to deal with two “Latner family” files.  I do not believe that my having dealt with one in any way affects my now dealing with this matter.   There is, in my view, no basis to step aside now on the limited basis of what I was told by Mr. Moldaver.  Counsel was so advised.     
[14]      Joshua’s counsel then noted that Mr. Moldaver had shared different information with him, which he was not free to disclose.   Mr. Moldaver, when asked again, insisted there was nothing further and so we proceeded.  A master should not have to solve a mystery in order to deal with a request to recuse.  She is entitled to assume that the counsel who seeks recusal is prepared to put his cards on the table to explain why.  Here, I ruled on the basis of what counsel chose to share – I could do no more.  Neither party sought to adjourn the motion in order to move, on evidence, to have me recuse myself. “
Recusal motions are awkward to say the least; it’s like trying to ask your boss to fire go “f—” himself”, which by this I mean “fire himself”.

Nevertheless, sometimes this gambit is the only weapon left to draw when faced with a partial or biased judicial officer. 

Master Haberman, in a previous decision, Mother of God v. Bakolis, 2005 CanLII 13807 (ON S.C.), summarized the test for recusal as follows:

“The law in this area is very clear.   As I stated in Metrin v. Big H et al., (court file no  94-CQ-55989CM, August 16, 2001; upheld on appeal), the test for preventing of a member of the court from hearing a matter on the basis of reasonable apprehension of bias is as articulated by De Grandpre J. in Committee for Justice and Liberty v. Canada, 1976 CanLII 2 (S.C.C.), [1978] 1 S.C.R. 369.  As he states, at pp. 394-95:
…the apprehension of bias must be a reasonable one, held by reasonable and right minded persons, applying themselves to the question and obtaining the required information….[T]hat test is “what would an informed person, viewing the matter realistically and practically – and having thought the matter through – – conclude.  Would he think that it is more likely than not that [the decision- maker], whether consciously or unconsciously, would not decide fairly.”
There are a number of general principles that flow from that test (see R. v. S.(R.D.), [1973] S.C.R. 484, p. 530 and onwards, and Marchand v. Public General Hospital Society of Chatham, [2000] O.J. No. 4428, (C.A. decision) at p. 27), as follows:
1)         The test contains two objective elements: the person considering the alleged bias must be reasonable and the apprehension of bias itself must be, as well;
2)         The reasonable person must be an informed person, with knowledge of all relevant circumstances.  These will vary from case to case;
3)         The grounds for apprehension of bias must be substantial.  A “real likelihood or probability of bias must be demonstrated” (R. v. S.(R.D.),p. 531). Suspicion will not suffice (see Marchand v. P.G.H.S. of Chatham (C.A.), p. 7);
4)         The onus of demonstrating bias lies with the party alleging it;
5)         There is a presumption that officers of the court will carry out their oaths of office, which can only be displaced by cogent evidence (R. v. S.(R.D.), p. 533);
6)         Courts should be held to the highest standards of impartiality. In order to achieve that plane, judicial officers must be and must also be seen to be disinterested in the outcome and open to persuasion by evidence and submissions.  Bias “reflects a state of mind that P is closed and predisposed to a particular result on the material issues” (see Marchand v..G.H.S. of Chatham (C.A), p.27).
In applying the test, the court focuses on the impression given to an informed observer.  It does not peer into the mind of the actual judicial officer who dealt with the matter to determine the likelihood of what he or she would actually do (see Metropolitan Properties v. Lannon [1968] 3 All E.R. 304, p. 1310.).  Thus, what I may have intended by my comment should not be the focus of my inquiry here.  Rather I must consider what an observer, one who is properly informed of all relevant circumstances, would take from what I have said and written. Would he or she reasonably have concerns about my objectivity if I proceed to hear the leave motion and to deal with this action thereafter? 
In arriving at my disposition I must bear in mind that while a litigant is entitled to a fair and impartial judge, he is not entitled to a favourable one (see Control and Metering Limited v. Karpowicz [1994] O.J. No. 345, p. 13).  Parties must be discouraged from seeking to recuse members of the Bench from hearing matters on the basis that they fear they will lose, unless there is a real and supportable basis for asserting that they have a reasonable apprehension of bias.  To approach these issues differently would only encourage judge and master shopping (see Authorson (Litigation Guardian of) v. Canada) [2000] O.J. No.2050). 

Bias is in the eye of the beholden.

Whether counsel’s motion for recusal had any legs to stand on is for the reader to decide. The following are some key excerpts from Master Haberman’s reasons in Latner v. Latner-Assaraf, 2010 ONSC 3141 (CanLII) (with my emphases added in italics):

“[1]          The Latner family appears to be an extremely litigious one.  Unfortunately, as the evidence tendered in this proceeding demonstrates, a considerable amount of their litigation is directed at one another.   It is unfortunate that a family that has been financially successful to the degree they have been has been unable to find better ways to pass their time and more appropriate causes for their wealth.  Litigation is not a “sport” and should never be treated as such.  I include these observations as they provide context for the events giving rise to these motions.

[18]      Albert’s son, Steven Latner, swore the affidavit in support of Albert’s motion.  Steven claims that he and his brother, Michael, are Albert’s “attorney for property and health”.   The documents appended to evidence this state of affairs include a “Continuing Power of Attorney for Property”, dated July 14, 2009, witnessed by R.B. Moldaver, current counsel; a Power of Attorney for Personal Care, also dated July 14, 2009 and witnessed by counsel; a Power of Attorney regarding TD Canada Trust, dated May 16, 2009 and a General Power of Attorney, also dated May 14, 2009. 
[19]      Despite the various legal arrangements pursuant to which Steven and Michael have obtained authority to represent their father, Albert brings this action in his own name, without the assistance of a litigation guardian.  This, in my view, is an important point.
[20]      Steven states that when he found out that Elise had taken the coins, he was the one who wrote to her about it.  He also swore that he and his brother Michael are advised about the legal proceedings by counsel from time to time, and that counsel also meets with Albert, “to attempt to explain the process and proceedings.”   
[21]      There is no evidence before the court as to who actually instructs counsel.   This is worrisome.  In the context of the motion, Albert’s counsel would have me accept that he is not capable of providing reliable testimony at discovery.  In fact, in the event that I was not prepared to make that finding based on the medical report that Albert filed, his counsel sought to have the court order that Albert be examined.  This is a rather odd request coming from the party to be examined – if Albert is agreeable to be examined, why would the court so order?  If he is not in agreement, who is instructing counsel on his behalf and without apparent authority to do so?  If Albert is not able to instruct counsel, on what basis was this motion brought?    
[22]      Timing is a critical issue in this matter.  According to Steven, at the time Elise was serving her various notices of examination and trying to compel her father to attend to be examined for discovery, he and Michael:
did not concern ourselves to any great degree on (sic) the potential problem of dad attending for discovery.  In the first place, his condition did not apparently (sic) cause us concern in this respect until about December of last year.  Second, Moldaver told us that there was a reasonable argument for dad getting judgment based on the admissions of Elise and the question of dad being examined was not a present concern.
[23]      In view of the multiple notices of examination served by Elise, it is difficult to understand how Steven could have understood his lawyer to say that the question of Albert being examined was not a “present concern.”  In view of the efforts being made by Elise and her counsel to examine him, it most certainly ought to have been.
[24]      Further, even if that was not a sufficient basis to raise such concerns earlier, surely by the time Elise brought her motion seeking to have both the coins and chuppah actions transferred to case management in late January 2010, Moldaver, Steven and Albert ought to have been aware there was a real possibility that Albert would be ordered to submit to examinations for discovery, particularly as they had already had the benefit of examining Elise.  
[25]      Yet, despite the fact that Albert’s condition apparently caused Steven concern by December 2009, this concern was not raised before Master Graham on the return of their motion for summary judgment and Elise’s cross-motion on January 28, 2010.  At that time, Albert was trying to proceed with his summary judgment motion without submitting to discoveries, though he had already examined Elise.  Elise asked that the motion be adjourned while she completed her discoveries of Albert. 
[26]      Master Graham held that it would be inequitable for the plaintiff to exercise his right of discovery and to elicit evidence to be used at his motion without allowing the defendant to exercise the same rights.   I fully agree.  I note further that Albert had also refused to submit to being examined with respect to a pending motion pursuant to Rule 39.03.
[27]      On that basis, Master Graham adjourned the summary judgment motion pending Elise’s examination for discovery of Albert. 
[28]      In my view, this motion is yet a further attempt to exempt Albert from having to do what almost all other litigants are required to do – respond to questions under oath regarding matters relevant to the action.    

[30]      Although there was no evidence on this point, both counsel advised that Albert had, indeed, gifted a sum of $150 million to each of his children.  This is difficult to reconcile with Steven’s description of his father as “tight fisted.”
[31]      Steven went on:
In the past, I advised my father to leave the coins to the children and he said he would consider it, but never acted on it. 
[32]      While Steven was certainly in a position to ask, suggest or recommend this course of action to his father, his choice of the word “advised” suggests he expects to have a real influence on his father’s decisions regarding the handling of his wealth.
[33]      It is also curious that Steven states unequivocally that his father has not taken steps to amend his will to ensure this outcome (“he never acted on it”).   How is it that he can swear to this with certainty?  While he does not state the basis for his belief, as this is all it can be, he swears that this is the case – his father has not gifted or bequeathed the coins to anyone
[34]      Despite the fact that Steven makes this assertion, when he found out that Elise had taken the coins, he wrote to her saying that they belonged to the children.   Steven now characterizes his conduct as “an overreaction”, when clearly, what he conveyed to his sister was not accurate and he knew that to be the case at the time he made the statement.   The fact that Steven cavalierly admits to this misrepresentation to his sister is a factor to be considered when weighing his evidence.   This evidence suggests that Steven may be prepared to say whatever he thinks he needs to say to achieve the desired result.  
[35]      Steven at no point explains how he is able to say that none of the coins were gifted to Elise, except for what he believes he was told by her previous counsel. 
[36]      Despite the nature of the motion, Steven makes no comment in his supporting affidavit about his father’s ability to testify.  Instead, he appends a short medical report from Dr. Shulman, dated April 8, 2010.

Transcript from Steven’s cross-examination
[48]      Steven is either a witness whose testimony defies credulity or the litigation in which he is enmeshed with his family members is so extensive that, in 2010, he was not able to recall if he had sued his father in 2007.   While Steven did recall that Albert sued Elise for the return of coins and a chuppah; that Elise had sued him; and that Albert had sued his son, Josh, in respect of a car, some money and a house, when asked if he had sued his father, Steven responded that he did not recall.  It was only after considerable cross-examination and reference to a document that Steven was able to bring this unusual fact to mind. 
[49]      Steven conceded that he had an acrimonious relationship with his father at that point in time, and he blames Elise and Josh for that.  He claims they:
convinced my dad of certain untruths, took him away from his familiar surroundings with his family, myself and my brother Mike, who shared business interests for over 30 years.  When he was vulnerable they forced him to do certain things, of which this was one.  
[50]      Steven characterized Elise’s conduct with respect to Albert as “crimes she committed to her father.”  He then qualified his comments by stating that he meant “emotional crimes”.   He went on about how Elise and Josh took Albert to Europe in 2007 “on a moment’s notice” without advising him and Michael, and he accused them of having unduly influenced Albert at that time.   He claims that Elise “mentally abused” Albert and that this caused Albert to turn on him.   In the end, Albert’s counsel conceded on the transcript that there was acrimony between Steven and Elise.
[51]      Steven continued to testify in a manner that causes this court concern.  He claims he was unaware that Elise’s suit against him was for $10 million.   He apparently knew nothing about the suit as, according to his sworn testimony, he never bothered to read the claim.  He failed to read it because “he knew” without having to read it that whatever Elise said about him was untrue.  He reached this conclusion based on Elise’s nature and past behaviour.  
[52]      Steven also claimed to be unaware that he was counterclaiming against Elise for $25 million – he stated that he simply left it all to his attorneys and his brother.  This is curious indeed – how would Steven have instructed his counsel regarding his defence and his counterclaim without knowing what the claim contained?          
[53]      Throughout this cross-examination, Steven demonstrated nothing short of contempt for his sister which he made no effort to disguise.   It clearly appeared to colour everything he had to say about her.  This, coupled with his earlier letter to Elise in which he knowingly misled her by claiming the coins had been “left to the children”, leaves me in grave doubt as to whether he should ever replace Albert as the prime witness in this proceeding – he has already demonstrated that he is prepared to say what he has to, regardless of the truth, and the fact he is open about despising Elise only exacerbates my concerns about his ability to be a truthful witness when it comes to matters involving his sister.  
[54]      Most importantly, with respect to the primary issue of whether or not Albert should be excused from discoveries, when asked if Albert was on board with his own motion, the exchange with Steven went as follows:
Q.        He’s on board with that?
            A.         Absolutely.
            Q.       He doesn’t want to be examined?
            A.         He couldn’t be.
            Q.        He doesn’t want to be?
A.         He probably would want to face his daughter but he won’t be able to live through it, I would think, considering the state he’s been put in by their behaviour towards him.
[55]      There is no evidence at all suggesting that having to testify would in any way endanger Albert’s life – and Steven has already established that he is prone to “over react” as he refers to it.  This response, however, again leads to the question: who is instructing counsel here?  Steven is not his litigation guardian – in fact, he has none.  Therefore, only Albert can instruct counsel. 

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