Justice Perell of the Ontario Superior Court was recently given
pause in the midst of a certification motion in Davidson v Canada (Attorney General)
when he expressed concern that a written submission made by counsel
could have led an objective observer to reasonably apprehend that
he had pre-judged the motion before it had been completed. While
the motion has now moved forward, with Justice Perell continuing to
preside, Justice Perell's brief endorsement provides a
cautionary tale for counsel with respect to making submissions in
ongoing class proceedings.
In this case, an initial hearing was held to determine whether
the proposed class action met the requirements of the first of five
certification criteria set out in section 5(1) of the Class
Proceedings Act. Justice Perell held that the first criterion
was satisfied, and the parties were then invited to make written
submissions in advance of further hearings with respect to the
remaining four certification criteria.
Justice Perell's Concern Regarding Appearance of Bias
The plaintiff submitted a factum that concluded its overview
with the following statement: "As this Court noted during a
previous hearing, this action is precisely the type of human rights
discrimination case which is ideally suited to proceed as a class
action". While the defendant did not raise an objection to
this statement in its responding submissions or at the commencement
of the hearing, Justice Perell became concerned that the statement
might suggest that he had already decided the certification motion
in its entirety before the second phase had concluded.
Justice Perell asked the plainitiff to advise when he had made
the statement that was attributed to him in the plaintiff's
factum. He was advised that, in fact, the comment was not
accurately reported both in its content or in its context, which
had been a passing comment that sexual harassment and
discrimination class actions have unique provisions under the U.S.
class action regime. He found that his actual comment would not
raise a reasonable apprehension of bias nor would it suggest that
he had pre-judged the other certification criteria.
Lost Hearing Time and Adverse Cost Consequences as a
In these circumstances, Justice Perell adjourned the motion and
directed counsel to obtain instructions as to whether their clients
wished to bring a recusal motion to have him removed from the
proceeding. The hearing resumed the following day, at which time
both parties advised that they were prepared to proceed with
Justice Perell as the presiding judge for certification. However,
because a significant amount of hearing time had been lost, the
plaintiff requested an adjournment. Justice Perell granted the
adjournment, and also allowed the defendant to reserve the right to
claim costs for the wasted hearing.
A Cautionary Tale for Litigants Regarding Statements of the
The procedural hiccup provides a cautionary tale for litigants.
In making oral or written submissions, counsel need to be extremely
careful to accurately record statements of the court on which they
wish to rely and must ensure that such statements are summarized
accurately in any further court materials. Taking detailed notes
during the course of hearings and obtaining transcripts where
possible can aid in avoiding potential issues, such as the recusal
of the judge presiding over the action, or an adverse costs award.
The failure of counsel to do so will be embarrassing at the least,
and may result in an adverse cost award and potential loss of
goodwill with the presiding judge.
Where one party may have inaccurately attributed a statement to
the court, the opposing party should carefully consider whether and
how it might raise an objection. Justice Perell remarked on the
difficulty for counsel of raising the appearance of bias of the
court when he noted that the defendant "had made no objection
in its factum to the statement, but that is understandable because
it's a hard allegation to make against a judge particularly
during the course of a hearing". If there is a concern that
counsel has not accurately recorded a statement of the court,
counsel should first raise the concern with opposing counsel,
giving opposing counsel an opportunity to correct the statement
before the materials are filed with the court or, if that is not
practicable, at the commencement of the hearing. In many cases,
discussion between counsel, while reserving rights with respect to
matters such as costs, can lead to an acceptable resolution of the
issue for all involved.
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.
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