Canada: Top 5 Civil Appeals from the Court of Appeal (June 2012)

Last Updated: June 20 2012
Article by Peter W. Kryworuk

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:
  1. Was the use or operation of the vehicle a cause of the injuries?
  2. 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.
4.  Cosford v. Player, 2012 ONCA 276 (Juriansz, LaForme and Ducharme JJ.A), May 1, 2012
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.
5. Bailey v. Barbour, 2012 ONCA 325 (Juriansz, LaForme and Ducharme JJ.A.), May 16, 2012
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.

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In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.