With the assistance of Yola Ventresca
1. Alfano v.
Piersanti, 2012 ONCA 297 (O'Connor A.C.J.O.,
LaForme J.A. and Cunningham A.C.J. (ad hoc)), May 9,
2012
This decision is significant for its discussion of the
independence of expert witnesses and whether a lack of independence
goes to the issue of the weight to be afforded to that evidence,
or, conversely, its
admissibility.
This long and complex legal battle concerned Osler, an entity
incorporated by the Alfano family with the assistance of their
lawyer Christian Piersanti ("Piersanti"), to operate a
paving business. Ownership in Osler was shared among Piersanti and
the Alfano brothers through family trusts. After the relationship
between the Alfano family and Piersanti began to deteriorate,
Piersanti locked the Alfanos out of the business. After the
Alfanos commenced this action against Piersanti and others,
Piersanti assigned Osler into bankruptcy.
After a long trial, MacDonald J. held, in part, that Piersanti
improperly assigned Osler into bankruptcy as part of a fraudulent
scheme to deprive the Alfano Family Trusts of their interests in
Osler. MacDonald J. ordered Piersanti to pay twenty million
dollars in damages resulting from the bankruptcy of
Osler. Piersanti and the other defendants
appealed. The trial judge's refusal to hear evidence from
a proposed expert was one of the grounds of appeal.
At trial, the appellants proposed to call an expert to proffer
evidence with respect to the issue of forensic accounting and the
Alfanos' damages claim. Upon receiving the expert's
reports, counsel for the respondents provided notice of their
intention to object to the admissibility of the expert's
evidence on the ground that the expert and his associates had
assumed the role of advocate and were not acting
independently.
The issue of the admissibility of the evidence was addressed
during a three day voir dire during which the proposed
expert was cross-examined at length.
Following the voir dire, MacDonald J. held that the
expert's evidence was inadmissible. Specifically, she
held that the expert had assumed the role of advocate and his role
as an independent witness was secondary to that of "someone
who is trying their best for their client to counter the other
side." She found that the expert's reports were
"tainted by the lack of impartiality [...]" that were
apparent in e-mails produced during the voir dire.
On appeal, the appellants argued that the trial judge erred in
refusing to admit the expert's evidence. Specifically,
the appellants argued that the expert's reports were impartial
and objective and, further, that any lack of independence goes to
the question of the weight to be attributed to the expert's
evidence, not its admissibility.
Writing for the Court of Appeal, O'Connor A.C.J.O.
affirmed the principle that expert evidence is an exception to the
general rule barring opinion evidence. The party tendering expert
evidence has the burden to satisfy, on a balance of probabilities,
the four criteria for the admissibility of expert evidence set out
by the Supreme Court of Canada in R. v. Mohan, [1994] 2
S.C.R. 9: 1) relevance, 2) necessity in assisting the trier of
fact, 3) the absence of any exclusionary rule, and 4) proper
qualification.
O'Connor A.C.J.O. noted that previous jurisprudence from
the Supreme Court of Canada had confirmed that in adjudicating on
the necessity of expert evidence, the court must consider whether
the expert is capable of assisting the trier of fact by providing
information likely to be beyond the trier's knowledge and
experience. In determining whether an expert's evidence will be
helpful, a court must consider the expert's independence or
objectivity. A biased expert is unlikely to provide useful
assistance.
O'Connor A.C.J.O. explained that the courts have accepted
that experts are called by one party in an adversarial proceeding
and are generally paid by that party to prepare a report and to
testify. The courts, however, must remain concerned "that
expert witnesses render opinions that are the product of their
expertise and experience and, importantly, their independent
analysis and assessment." While the opinion may support the
client's position, "it should not be influenced as to form
or content by the exigencies of the litigation or by pressure from
the client."
Importantly, O'Connor A.C.J.O. noted that while in most
cases, the issue of whether an expert lacks independence or
objectivity is addressed as a matter of weight to be attached to
the expert's evidence rather than as a matter of its
admissibility, the court retains a residual discretion to exclude
the evidence of a proposed expert witness when the court "is
satisfied that the evidence is so tainted by bias or partiality as
to render it of minimal or no assistance." In considering the
issue of whether to admit expert evidence in the face of concerns
about independence, a trial judge may conduct a voir dire
and have regard to any relevant matters that bear on the
expert's independence, including the expert's report, the
nature of the expert's retainer and any materials and
communications that formed part of the process by which the expert
came to his or her opinion. The Court of Appeal noted that
absent an error in applying the proper legal principles or a
conclusion unsupported by the evidence, an appellate court will not
interfere with a trial judge's decision regarding a proposed
expert's independence.
Applying these principles to the facts of this case,
O'Connor A.C.J.O. noted that the trial judge had regard to the
appropriate legal principles and that there was ample evidence to
support her conclusion that the expert's proposed evidence
lacked independence.
2. Downer v. The
Personal Insurance Company, 2012 ONCA 302
(Lang, LaForme JJ.A. and Pattillo J. (ad hoc)), May 9,
2012
This was an appeal by the insurer, The Personal Insurance
Company, from the dismissal of its motion for summary judgment to
dismiss the insured's claim for accident benefits. The
appeal turned on the meaning of "accident" under s. 2(1)
of the Statutory Accident Benefits Schedule –
Accidents on or after November 1, 1996, O. Reg. 403/96
("Schedule").
The incident which gave rise to these proceedings occurred
when the insured pulled into a gas station to purchase gas. While
his engine was running, he was assaulted in his vehicle by a number
of men. They attempted to pull him out of vehicle. The
insured managed to drive away, but believed that he might have hit
or run over one of the assailants while doing so. He applied for
statutory accident benefits, claiming that he suffered from
depression, anxiety, post-traumatic stress disorder, back pain and
headaches. The insurer paid accident benefits, but ultimately took
the position that the payment was the result of an error as the
insured was not involved in an "accident" within the
meaning of the Schedule as "accident" was
defined as "an incident in which the use or operation of an
automobile directly cause[d] an impairment".
The insurer subsequently brought a motion for summary judgment
seeking to dismiss the insured's claim for entitlement to
statutory accident benefits. At first instance, the motion
judge dismissed the insurer's motion and granted a declaration
that the insured was involved in an "accident" within the
meaning of the Schedule. He found that the incident
resulted from one of the ordinary and well-known activities to
which automobiles were put, namely pulling into a gas station in
order to purchase gas. In addition, the motion judge found
that there was a direct or proximate causal relationship between
the insured's injuries and the use or operation of an
automobile as his use of the automobile had not ended before injury
was suffered, he had not left the vehicle and the assault on the
insured arose out of his ownership, use and operation of his
vehicle. On appeal, the insurer argued that the motion judge erred
in concluding that the insured was involved in an
"accident" within the meaning of the
Schedule.
The appeal was allowed in part. Writing for the Court of
Appeal, LaForme JJ.A. held that the motion judge had erred in
concluding that the insured was involved in an
"accident". Specifically, he erred in concluding that the
causation test was satisfied in relation to the injuries caused by
the assault on the plaintiff while he was parked at the gas
station. LaForme JJ.A. noted that the source of the motion
judge's error was in the way he framed the causation test. The
motion judge failed to use the language from Greenhalgh v. ING
Halifax Insurance Co. (2004), 72 O.R. (3d) 338 (C.A.) and
instead incorrectly articulated a version of the causation test
that took much of its language from Amos v. Insurance Corp. of
British Columbia, [1995] 3 S.C.R. 405.
In stating the causation test, the motion judge erroneously
referred to "ownership", which was not included in s.
2(1) of the Schedule, and he failed to ask whether an
intervening act outside the "ordinary course of things"
resulted in the injuries. Further, he erred in relying on the
location of the attack and on the inferred motive of the assailants
as proving that there was a direct causal relationship between the
injuries suffered and the use or operation of a motor
vehicle.
The Court of Appeal reaffirmed that the correct causation test
to be applied was that articulated in Greenhalgh,
supra, which consists of two questions:
- Was the use or operation of the vehicle a cause of the injuries?
- If the use or operation of a vehicle was the cause of the injuries, was there an intervening act or intervening acts that resulted in the injuries that cannot be said to be part of the "ordinary course of things?" In that sense, can it be said that the use or operation of the vehicle was a "direct cause" of the injuries?
While holding that the physical assault on the insured did not
constitute an "accident" under s. 2(1) of the
Schedule, LaForme JJ.A. noted that the insured's
psychological injuries, which resulted from his belief that he had
run over one of his assailants, might have been caused by an
"accident". Whether the insured was involved in an
"accident" was a genuine issue requiring a trial. As a
result, the action had to proceed to trial.
3. Roque v. Pilot
Insurance Company, 2012 ONCA 311 (Juriansz, LaForme
and Epstein JJ.A.), May 14, 2012
In this decision, the Court of Appeal was asked to determine
when the limitation period begins to run for commencing an action
against an insured's own insurer under the inadequately insured
motorist endorsement of an automobile insurance policy. The Court
of Appeal held that the limitation period in section 17 of the OPCF
44R commences when the plaintiff has a body of evidence accumulated
that would provide him/her with a "reasonable chance" of
persuading a judge that the claim would exceed
$200,000.
In Roque, the plaintiff was injured by another
motorist in 1996. In 2002, he learned that the other motorist
had only $200,000 of insurance coverage. The plaintiff consequently
commenced an action against his insurer for $1,000,000 in general
damages and $750,000 in special damages. The insurance policy
included OPCF 44, the Family Protection Endorsement. That
provision provides as follows:
Every action or proceeding against
the insurer for recovery under this change form shall be commenced
within 12 months of the date that the eligible claimant or his or
her representative knew or ought to have known that the quantum of
claims with respect to an insured person exceeded the minimum
limits for motor vehicle liability insurance in the jurisdiction in
which the accident occurred, but this requirement is not a bar to
an action which is commenced within 2 years of the date of the
accident.
Before the motion judge, the plaintiff argued that this provision should be interpreted to mean that the limitation period begins to run when a plaintiff's damages have been quantified by settlement or judgment. The plaintiff argued that only then can it be said that the plaintiff "knows" for certain that the available insurance under the defendant's policy is less than that available under his own coverage.
The motion judge disagreed and interpreted the provision to
provide that the limitation period commences when the body of
evidence gives the plaintiff a reasonable chance of persuading a
judge that the claim would exceed the policy limit. On the
facts of this case, the motion judge held that the limitation
period had expired. The plaintiff's claim was
consequently dismissed.
The plaintiff appealed to the Court of Appeal. In
addition to the argument regarding the interpretation of section
17, the plaintiff argued at the Court of Appeal that the limitation
period does not begin to run until the plaintiff knows that the
quantum of the claim is greater than the tortfeasor's insurance
coverage. The plaintiff submitted that this interpretation would
avoid creating a multiplicity of proceedings, as it would reduce
the need for injured parties to sue their own insurers.
Writing for the Court of Appeal, Juriansz J.A. rejected both
arguments.
With respect to the plaintiff's first argument, namely
that section 17 should be interpreted to mean that the limitation
period begins to run when the plaintiff's damages have been
quantified by judgment, Juriansz J.A. noted that this
interpretation had been adopted by Gordon J. in Hampton
v. Traders General Insurance Company (1996), 27 O.R. (3d) 285
(Gen. Div.). In that case, Gordon J. held:
The application, in my view, would
be difficult indeed. The progression of a personal injury action
produces not unusually a series of crests and troughs on quantum
and liability as evidence becomes known and medical reports unfold.
It may be quite elusive, vague and blurred as to what point on this
sine curve a reasonably competent civil litigator objectively or
subjectively fixes as probably that where minimum limits are
attracted. Nor can the complications introduced by subsequent highs
and lows be disregarded.
On the basis of the foregoing, Gordon J. concluded that
"[t]he discoverability application in all but catastrophic
cases of clear liability must, in my view, be the date of the
judicial determination of award as against the primary
tortfeasor."
Juriansz J.A. held that applying discoverability in this way
would be inconsistent with the text of the provision: if the
limitation period begins when the plaintiff knows the quantum of
the claim with certainty, the phrase "or ought to have
known" in the provision is left without meaning.
With respect to the appellant's argument that the
limitation period does not begin to run until the plaintiff knows
that the quantum of the claim is greater than the tortfeasor's
insurance coverage, Juriansz J.A. also disagreed. He held
that the words of the provision were clear and that the motion
judge was correct to find that the proper approach to this issue
was set out by Master Dash in McCook v. Subramaniam
(2008), 172 A.C.W.S. (3d) 344 (S.C.) where he noted: "the
plaintiff's case runs from when he has a body of evidence
accumulated that would give him a "reasonable chance" of
persuading a judge that his claims would exceed
$200,000."
With respect to the appellant's argument regarding a
multiplicity of proceedings, Juriansz J.A. held that this concern
was overstated. Juriansz J.A. noted that section 258.4 of the
Insurance Act obligates an insurer who receives a notice
under s. 258.3(1)(b) to promptly inform the plaintiff whether there
is a motor vehicle liability policy issued by the insurer to the
defendant and, if so, the liability limits under the policy, as
well as whether the insurer will respond under the policy to the
claim. This provision is intended to avoid the situation that arose
in this case, where the defendant's insurer did not comply with
s. 258.4. Juriansz J.A. noted that where a defendant's insurer
fails to comply with its obligations under the Insurance
Act, plaintiff's counsel should initiate the claim against
the insurer and discontinue it later if necessary.
Accordingly, the appeal was dismissed with costs.
Precious Metal Capital Corp. v.
Smith, 2012 ONCA 298 (Rosenberg, Juriansz and Rouleau
JJ.A.), May 8, 2012
Last month, the Court of Appeal released two cases dealing
with the new summary judgment rule and the application of the
Court's recent decision in Combined Air Mechanical Services
Inc. v. Flesch, 2011 ONCA 764.
Both Cosford and Precious Metal are appeals
from decisions granting summary judgment motions. These cases are
significant in illustrating how the Court of Appeal is applying
Combined Air to summary judgment motions decided before
that case was released. Both appeals were
dismissed.
Cosford involved an appeal from the decision of
Tranmer J. granting the respondent corporation's motion for
summary judgment. The appellant's claim against the
respondent was founded in tort and generally alleged that the
respondent had made a negligent representation in a deed registered
on title.
The respondent transferred the property to another corporation
which, along with its controlling party, were among the other
defendants. The deed at issue disclosed that the consideration for
the sale of the property was $1,400,000. Approximately 6 months
after the sale of the property by the respondent to the
corporation, the appellant loaned $335,000 to the corporation, to
be secured by a second mortgage on the property. In advancing the
funds, the appellant understood that his mortgage was second in
priority to the mortgage held by Laurentian Bank of Canada.
Subsequently, the Laurentian Bank mortgage was in default, and the
bank issued a Notice of Sale. Eventually, by court order, the
property was sold. After the costs associated with the sale, the
payout of the first mortgage, and his solicitor's fees, the
appellant received $7663.78 from his initial advance of
$335,000.
In this brief decision, the Court of Appeal held that the
motion judge fully appreciated the five requirements of proof
required to establish the tort of negligent representation as set
out in the case of the Queen v. Cognos Inc.,
[1993] 1 S.C.R. 87. Applying that test on the Rule 20 motion, the
motion judge correctly cited the special relevance of the fourth
criterion: that the representee must have relied, in a reasonable
manner, on the negligent misrepresentation. On the question of
reliance, the Court of Appeal found that the motion judge fully
appreciated the nature of the tortious conduct alleged against the
respondent, carefully reviewed all of the applicable evidence, and
then made clear findings of fact as to the alleged negligent
misrepresentation.
Further, the Court of Appeal was satisfied that the motion
judge correctly exercised his powers under Rule 20.04 (2.1). He
asked and affirmatively answered the essential question: can the
full appreciation of the evidence and issues that is required to
make dispositive findings be achieved by way of summary
judgment"? The Court held that unlike the Mauldin and
Bruno actions discussed in Combined Air,
the record in this case was not voluminous; the motion raised only
two narrow issues and only a discrete number of findings of fact
were required to decide the motion. Accordingly, the motion judge
had sufficient evidence to conclude that there was no genuine issue
requiring a trial with respect to the appellant's claim of
negligent misrepresentation.
Precious Metal involved an appeal from the order of
Cumming J. granting summary judgment to the moving parties (the
"Ancash defendants"), who were three of the twelve
defendants named in the initial action.
The plaintiff claimed a constructive trust arising from an
alleged breach of fiduciary duty and duty of confidence owed in
connection with its intended acquisition of a South American mining
property. The plaintiff claimed that it retained the defendant,
Gregory Jack Peebles ("Peebles"), as its agent in
connection with the acquisition. The plaintiff alleged that
it shared confidential information with Peebles and the defendant
Gregory Charles Smith ("Smith"). The plaintiff claimed
that Peebles acquired the mine for his own benefit and thereby
breached his fiduciary duty to the plaintiff and committed a breach
of confidence. The Ancash defendants were indirect purchasers of
the mining properties from Peebles and Smith. The plaintiff claimed
relief against the Ancash defendants on the basis of their knowing
assistance in Peebles' breach of trust and for conspiracy and
unjust enrichment.
The Ancash defendants moved for summary judgment to dismiss
the action against them on the basis that their position was
derivative to the issues raised by the statement of claim against
Peebles and Smith. The motion judge granted the order and found
that there was no genuine issue for trial. The motion judge found
that the agency relationship asserted by the plaintiff could not
exist in law given the strength of the documentary evidence and the
evidentiary record as a whole. He concluded that the
reasonable inference from the documentation was that the plaintiff
knew that its agreement with Peebles did not relate to the mine in
question and so no contractual or fiduciary duty was owed by
Peebles or Smith regarding the mine at issue. Furthermore, he found
that no breach of confidence was established, as any information
given by the plaintiff to Peebles regarding the mine was in the
public domain and was not misused by Peebles or Smith. As no viable
claim against Peebles or Smith was established, the motion judge
found that there was no claim against the Ancash defendants as
their successors in title.
Writing for the Court of Appeal in Precious Metal,
Juriansz J.A. distinguished this case from Cosford in that
it contained a voluminous evidentiary record and conflicting
evidence from a number of witnesses. Nevertheless, Juriansz
J.A. found that the Combined Air formulation of the
summary judgment test was met in this case. This finding was
premised largely on the fact that despite the extensive evidentiary
record, relatively few documents related to the one issue on which
the case ultimately turned: whether Peebles was retained by
Precious Metal as its agent to purchase, or finance the purchase of
the property in question on its behalf. The record enabled the
application judge to have a "full appreciation" of the
evidence and issues required to make the findings he did.
With respect to the issue of conflicting evidence from
witnesses, Juriansz J.A. noted that most of the points of
disagreement were minor and not material to the matters at issue.
He noted that the motion judge avoided making credibility findings
and, despite the conflicting evidence, he was able to decide that a
trial was not required based on his conclusion that the agency
relationship asserted by the plaintiff could not exist in law given
the strength of the documentary evidence and the evidentiary record
as a whole, which was a determination he was entitled to
make.
Lloyd v. Bush, 2012 ONCA 349
(Goudge, Armstrong and Lang JJ.A.), May 28, 2012
Last month, the Court of Appeal decided two cases dealing with
the issue of apprehension of bias. In both Lloyd v. Bush
and Bailey v. Barbour, the Court affirmed the test for
establishing a reasonable apprehension of bias, first articulated
in de Grandpré J.'s dissenting judgment in Committee
for Justice and Liberty v. Canada (National Energy Board),
[1978] 1 S.C.R. 369: what would an informed, reasonable and
right-minded person, viewing the matter realistically and
practically, and having thought the matter through, conclude? Would
he or she think it is more likely than not that the judge, whether
consciously or unconsciously, would not decide fairly? The
determination of whether a reasonable apprehension of bias arose
requires a highly fact-specific inquiry and there is a strong
presumption in favour of the impartiality of a trier of fact.
Despite the high threshold for determining a reasonable
apprehension of bias, in both Lloyd v. Bush and Bailey
v. Barbour, the appeal was allowed, the judgment set aside and
a new trial ordered.
In Lloyd, the appellant sued the respondents for
injuries suffered as a result of a "horrendous" accident
involving a loaded propane truck driven by the respondent, David
Bush. The appellant also sued the County and the Town.
The action was settled with the driver and the owner of the
propane truck. On the first day of trial, counsel for the County
brought a Rule 20 motion to dismiss certain claims against the
County and Town which alleged failure to properly design the road
and related issues. The trial judge granted the motion.
The only remaining issue in relation to the County and Town
concerned proper winter maintenance of the road. After the
decision regarding summary judgment was released, counsel for the
Town advised that the Town was prepared to carry the defence of the
County. Counsel for the County then withdrew from the
trial.
During the trial, the trial judge found that counsel for the
appellant improperly raised an allegation of fraud against the Town
after an expert witness for the appellant testified that the
Town's records regarding the road clearing and salting on the
date of the accident were inconsistent with a photograph of the
road taken on that date. Although appellant's counsel denied
that he made an allegation of fraud, the trial judge insisted that
an allegation of fraud was being made by the appellant without
having pleaded it. The trial judge again referred to this alleged
fraud when addressing costs.
Further, midway through trial, the trial judge made a
statement regarding the appellant's credibility by referring to
her falsified curriculum vitae, which indicated that she had
received a bachelor degree. The appellant had testified that she
was one credit short but had intended to obtain the credit at the
time.
Writing for the Court of Appeal, Armstrong J.A. held that the
trial judge had erred when he concluded that the expert's
testimony amounted to an allegation of fraud that had not been
pleaded. This error occurred in part because the trial judge came
to this conclusion on his own initiative. The Court found the trial
judge's repeated interjections about the allegation of fraud to
be "troubling". His characterization of the
plaintiff's evidence that the work reflected in the records was
inconsistent with the state of the road surface as an assertion of
fraudulent record-keeping by the Town was "an entirely
erroneous characterization of the evidence and of the
plaintiff's position on this, the main issue in the
trial". Armstrong J.A. further held:
Coupled with the persistence with
which the trial judge asserted this erroneous characterization, it
clearly would have suggested the trial judge appeared to have the
view that the plaintiff was asserting a position that could not
possibly be true and doomed the plaintiffs' case. In my view, a
fully informed reasonable observer would conclude that at this
relatively early point in the trial, and particularly after the
repetition of the error later in the trial, the trial judge seemed
to have closed his mind to the central issue in the case and
"whether consciously or unconsciously, would not decide
fairly."
With respect to the trial judge's comments regarding the
plaintiff's credibility, the Court of Appeal noted that the
seemingly gratuitous statement of the trial judge concerning the
appellant's credibility before the conclusion of the trial was
not appropriate and raised a serious issue regarding the trial
judge's impartiality. The Court found that the reference made
by the trial judge in open court concerning the appellant's
negative credibility raised a reasonable apprehension of bias,
particularly when considered in conjunction with the trial
judge's interjection with respect to the allegation of fraud
and its apparent impact on his perception of the appellant's
case. Accordingly, a new trial was ordered.
Bailey involved a protracted battle between the
parties regarding their respective rights to waterfront
properties.
The appeal arose from the order of McIsaac J. setting aside
the decision of Deputy Director of Titles Rosenstein, following an
application by the appellant Bailey pursuant to s. 46(2) of the
Land Titles Act. In the proceeding under the
Land Titles Act, the Deputy Director of Titles found that
the objection filed by the respondent Barbour was not valid, and
granted to Bailey possessory title to a portion of the parcel
claimed by Barbour, a narrow access route across the Barbour
property to Bailey's property known as Tiny Island.
Barbour's appeal from the decision of the Deputy Director of
Titles proceeded as a trial de novo before McIsaac J. At
its outset, however, the trial judge alerted counsel to a potential
conflict of interest and asked them to consider whether it caused
either side any difficulty. Counsel for Bailey asked the trial
judge to recuse himself, but McIsaac J. declined the request.
There were several potential conflicts indicated by the trial
judge, the most significant of which was that his wife was a real
estate agent in Tiny Township specializing in waterfront property.
Among her clients were family members of property owners with an
interest in the dispute at issue, one of whom was expected to be a
witness at the trial.
Counsel for Bailey raised his concerns with the trial judge
about the reasonable apprehension of bias, citing what he referred
to as the "multiplicity of involvements" if not of the
trial judge, then at least of the trial judge's wife. The trial
judge decided that his wife's involvement was merely an
"attenuated connection" falling "well short of the
threshold" justifying the request of recusal.
In its decision, the Court of Appeal pointed out that the
inquiry into whether a conflict exists sufficient to prompt a
decision-maker to recuse him or herself must be fact-specific. The
trial judge correctly identified the test to be applied for
determining whether there exists a reasonable apprehension of bias.
The Court of Appeal further cited the decision of Metropolitan
Properties Co. (F.G.C.) Ltd. v. Lannon, [1968] 3 All E.R. 304
(C.A) where Lord Denning M. R. stressed the importance of the
appearance of judicial impartiality:
In considering whether there was a
real likelihood of bias, the court does not look at the mind of the
justice himself.... It does not look to see if there was a real
likelihood that he would, or did, in fact favour one side at the
expense of the other. The court looks at the impression which would
be given to other people. Even if he was as impartial as could be,
nevertheless, if right-minded persons would think that, in the
circumstances, there was a real likelihood of bias on his part,
then he should not sit. And if he does sit, his decision cannot
stand.
In this case, counsel did not suggest any actual bias on the
part of the trial judge. However, as the Supreme Court pointed out
in Weywakum Indian Band, at para. 66, "where
disqualification is argued, the relevant inquiry is not whether
there was in fact either conscious or unconscious bias on
the part of the judge, but whether a reasonable person properly
informed would apprehend that there was" (emphasis in
original).
The Court of Appeal noted that the question of what a
reasonable person properly informed would conclude could not be
answered without taking into account all of the relevant factors,
which in this case included the trial judge's wife's
connections to the people and properties at the heart of the
dispute. Given the facts and circumstances of this case, the Court
of Appeal found that there could be no doubt that the trial
judge's wife's clients would have a great deal of knowledge
about the parties to the dispute, and an obvious ongoing interest
in the litigation and its result.
The Court of Appeal went on to explain that whenever a party
claims that a reasonable apprehension of bias exists, the judge
must weigh the submission carefully and contextually, taking
account of all relevant circumstances. The trial judge did not
follow that course in this case. Had he done so, he would have
given greater consideration to his wife's involvement in the
narrative, and he would not have concluded that the appellant's
claim for disqualification was based only on "a general sense
of unease" falling "well short of the threshold that
justifies the order sought."
The Court of Appeal concluded that the appellant met the high
threshold necessary to establish a reasonable apprehension of bias.
The circumstances created a reasonable apprehension of bias,
necessitating a new trial before a different judge.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.