The Tribune

By AVA TURNQUEST

Tribune Chief Reporter

aturnquest@tribunemedia.net

AN attorney for Canadian fashion mogul Peter Nygard yesterday defended his client’s recusal motion against claims its ulterior motive was to derail proceedings against him.

Carlton Martin, of Martin, Martin and Co., argued that Mr Nygard has been denied his fair right to be heard before Supreme Court Justice Cheryl Grant-Thompson but offered up a conciliatory provision to support her decision to remain on the case if she could satisfactorily address concerns.

Save The Bays attorney Fred Smith, QC, argued the frivolous nature of the recusal motion was an abuse of process, adding that trying to pin down Mr Martin’s position on the motion was like “nailing jello to the wall”.

The QC asked the court not only to dismiss the motion, but to also censure Mr Nygard and his legal counsel Mr Martin and Keod Smith, for bringing a motion that had no basis in fact or law.

For his part, Mr Martin submitted the recusal motion’s principal aim should not be seen as seeking the recusal of Justice Grant-Thompson - which he acknowledged was optional - but rather an attempt to highlight Mr Nygard’s rights and seek to have them realized.

This stance was branded as “wishy-washy” by Mr Smith who stressed the motion represented a spurious and embarrassing allegation against the court that should be taken in context of the more than 20 recusal motions made in the case over the past seven years.

In his submissions yesterday, Mr Martin also referred a prejudicial statement made by Justice Grant-Thompson that represented a “breaking point” in his client’s decision to file for recusal.

Mr Martin said Justice Grant-Thompson called STB’s case against Mr Nygard “formidable” on June 13; however, he noted the court clerk has failed to provide requested transcripts.

Nonetheless, Mr Martin said the alleged statement, when paired with Justice Grant-Thompson’s refusal to hear Mr Nygard’s applications on several orders, had cemented his view of his client’s right to a fair trial.

Mr Smith maintained the Coalition’s objection to Mr Nygard being heard on any other matter until contempt proceedings were settled.

“It’s an abuse of the process of the court,” Mr Smith said, “I have never seen a recusal motion as abusive as this. It contains no grounds or evidence and the opening line of his salvo for recusal is ‘you’re not necessarily seeking the recusal of her ladyship’, well either you’re pregnant or your not, can’t have it both ways…this motion is neither fish nor fowl hence its abusive nature.”

“Recusal motion was filed for an ulterior purpose that is to undermine your previous order for a date to hear their leave application. So that they could scuttle off clandestinely and without advising this court to try and get a different judge to try and hear the leave application. That is an abuse of process, judge shopping.

Mr Smith continued: “It has also been filed for the ulterior purpose of preventing this court from concluding the show cause hearing, the sentencing and mitigation hearing, and properly and in an orderly fashion disposing of this case.”

On the judge shopping claim, Mr Smith was referring to Mr Martin’s attempt to obtain a date before Justice Keith Thompson to hear the leave application; however, Mr Martin said this was only done because there was a fast-approaching deadline before the Court of Appeal and all matters before Justice Grant-Thompson, in his understanding, had been halted due to the recusal motion.

Mr Martin accused Mr Smith of acting illogically, and seeking to bring irrelevant matters before the court.

Mr Nygard’s recusal motion marks the fourth judge he has filed recusal applications against concerning his legal battles with Save The Bays (STB), following retired Justice Rhonda Bain and fellow Justices Indra Charles and Keith Thompson.

Notwithstanding two motions that are still outstanding, Mr Smith noted yesterday there has never been a successful recusal motion in the case, nor successful appeal of a motion’s dismissal.

Justice Indra Charles recused herself from the matter in her own motion in January.

“All of these recusal applications,” Mr Smith said, “they ate up time like a cancer to these proceedings. We need radical surgery at this time. This court cannot continue to be seen to be impotent to a man who refuses to come to court when ordered. Even though he gave excuses about medical conditions those are now over milady, long past, even if they were correct he could have come to court and apologized for his failure to appear.

Mr Smith added: “A clear message needs to be sent that the Supreme Court, that the writ of this court means something. There is a duty on this court to maintain the integrity of the administration of justice, a message should be sent that cancerous unmeritorious recusal applications that continue to delay and cost the parties and waste precious judicial time will not be tolerated. It has become a disease in this jurisdiction.”

In a supporting affidavit yesterday, Mr Nygard was said to be “a bit elderly” and facing serious health issues.

Mr Martin has asked the court to allow Mr Nygard to have his hearings in these matters in his absence.

This matter stems from a breach of retired Justice Bain’s July 13, 2013 injunction prohibiting him from engaging in dredging activities at his Simms Point/Nygard Cay property.

It follows Mr Nygard’s failure on several occasions to attend his own sentencing hearings—as ordered by the court—for breaching the court order.

In setting out his case for the recusal motion’s dismissal, Mr Smith called for the judge to ignore Mr Martin’s late submissions which failed to meet filing deadlines set by the court.

He said Mr Nygard’s counsel could have applied for an extension of time, adding Justice Grant-Thompson has “bent over backwards” to accommodate the parties so that the court is seen as having acted fairly and impartially.

In his submissions, Mr Martin argued for Justice Grant-Thompson – if she chose to stay on –- to consider that proceedings hinged on the question of whether the Court had the right to make the contempt findings.

Mr Martin’s submission read: “How is the Court to know or determine whether Nygard is to be given a penalty in respect of ay contempt found against him if the question of irregularity and jurisdiction, or lack of it, is not determined?

“There just cannot be a determination of any issue of mitigation and sentencing without the Court first dealing with or addressing and determining these questions.”

It continued: “It is submitted that once preliminary applications are permitted to be heard and are in fact heard and ruled on, one way or the other, the Court would have discharged its duty to Nygard, and he would have no room to complain otherwise than as to whether the Court was right or wrong in its decision, which would not be a matter for this Court.”

Mr Martin’s submission read: “These submissions are not trifling in the least. If justice is to be done in this case or these proceedings they must be looked at very seriously. The Court must do what it has to do in order to achieve justice to all parties in this case, and must do it with an unbiased mind, without fear or favour, bearing in mind one most paramount factor: the oath to do justice. If in the view of your ladyship this charge cannot be met or is in jeopardy of being met, then, in your ladyship’s own judgment, a recusal should be the right thing to do.”

Both parties are expected to return to court on September 13 for a ruling.