The Tribune

By NICO SCAVELLA

Tribune Staff Reporter

nscavella@tribunemedia.net

A SUPREME Court judge yesterday said the court is “not at the beck and call” of Canadian fashion mogul Peter Nygard after noting she will not allow his “non-attendance” to his own recusal application on two consecutive occasions to “further delay” the hearing of those proceedings.

Justice Rhonda Bain, in a written ruling handed down yesterday afternoon, said while Mr Nygard is in breach of the court order requiring him to attend the recusal applications against her, the court is not at his “whim and fancy” and will hear his recusal applications in his absence.

However, Justice Bain said while she has decided to treat Mr Nygard’s absence as a “separate issue” from the substantive recusal motion, the court will give the Lyford Cay resident an opportunity to “show cause” of his failure to obey the court’s orders to attend the recusal application hearings on both October 30 and October 31.

Criticisms

Justice Bain’s ruling comes subsequent to two consecutive days of in court criticisms of Mr Nygard by Fred Smith, QC, lead attorney for Save The Bays (STB), concerning the former’s notable absences from his own recusal applications on two separate occasions.

During Tuesday’s proceedings, Mr Nygard’s attorney, Damian Gomez, QC, informed the court of his filing of an application in a bid to have Mr Nygard excused from attending the proceedings. At the time, Mr Gomez said Mr Nygard was out of the jurisdiction in Canada and has been “for some time”, thus explaining his absence from both Monday’s and Tuesday’s proceedings.

However, Mr Smith objected against both the filing of the application and the particulars contained therein. He charged that acceding to Mr Nygard’s application would be prejudicial to STB, that Mr Nygard gave no reason for his absence despite the “pivotal” role he plays in the recusal applications, and that he proffered no apology for his response.

Mr Smith further submitted that Mr Nygard’s absences, the consequent application for him to be excused, and the subsequent hearings on the application, had reduced the recusal proceedings to a “trial within a trial,” which is preventing the substantive matter from being dealt with.

Mr Smith ultimately submitted that a “practical solution” would be for Justice Bain to dismiss both the application for Mr Nygard’s excusal and his recusal application as he was not present in court to prosecute either. In yesterday’s ruling, Justice Bain said the absences of Mr Nygard, the fifth respondent in the matter, will be treated as a “separate issue and shall not delay these proceedings any further because of the non-attendance of the fifth respondent.”

She further ruled that contrary to Mr Smith’s submissions that STB, the applicants in the matter, would be prejudiced by Mr Nygard’s absence and consequent application for his excusal, she is of the opinion “that the prejudice to the applicants by a further delay in these proceedings is more prejudicial to the applicant.”

“The court shall not allow the court to be used by the fifth respondent,” she said. “The court is not at the beck and call of the fifth respondent. The fifth respondent has filed a notice of motion for recusal of the court. The fifth respondent has refused to attend. The court shall hear the application in the absence of the fifth respondent.”

Justice Bain further noted in her ruling that leave was first granted to Mr Nygard on June 13, 2013 to commence judicial review proceedings and to date, the substantive judicial review application has not been heard.

Rulings

She further noted that the court has since given 24 written rulings on preliminary points raised by the respondents including an application for recusal by Mr Nygard’s former attorney Keod Smith, another by Mr Nygard and one by former prime minister Perry Christie.

The ruling also noted there is another outstanding notice of motion for recusal of the court by Keod Smith.

“The court is not at the whim and fancy of the fifth respondent,” she continued. “The fifth respondent has filed a notice of motion and an amended notice of motion for recusal of the court. The court has an obligation to hear the notice of motion for recusal on an expedited basis.”

Mr Nygard has filed two recusal applications against Justice Bain on the grounds of bias, the latter of which was launched in March of this year. His first recusal application, which ultimately failed, was filed in 2015. Both recusal applications stem from Mr Nygard’s battle with STB over allegations the construction/development activities at his Lyford Cay home have led to a substantial growth of the property.

The group claims Mr Nygard has almost doubled the size of his property, from 3.25 acres to 6.1 acres, since he acquired it in 1984, by reclaiming Crown land from the sea. The advocacy group alleged that Mr Nygard achieved this without the necessary permits and approvals, claims that have been denied by the fashion designer.