Canada: Stuart Budd & Sons Limited V. IFS Vehicle Distributors ULC: Supplemental Reasons Pending Appeal Lead To Reasonable Apprehension Of Bias

Although it is trite to say that an appeal is from the order not the reasons, it is nevertheless equally trite that the reasons often provide the basis for an appellate court's finding that the order was either correct or in error. Interesting questions about the interplay between the order and the reasons can arise when a judge issues supplementary reasons with knowledge that an appeal has been commenced.

In Stuart Budd & Sons Limited v. IFS Vehicle Distributors ULC, the Ontario Court of Appeal held that a reasonable apprehension of bias arose after a motion judge issued supplemental reasons nine months after a brief endorsement. A new hearing was thus ordered.

The Background

In the context of a franchise class action, the appellants brought a motion alleging that Ontario lacked jurisdiction or, in the alternative, was forum non conveniens. The motion judge held, in March 2014, that the respondents' evidence on the motion was woefully deficient. He nonetheless adjourned the motion on his own initiative to allow the respondents to file supplementary evidence. His endorsement suggested that the appellants' motion was unlikely to succeed. He issued a brief endorsement dismissing the motion after it was heard in April 2014. The Court of Appeal stayed the decision pending appeal in July 2014, and the motion judge issued supplementary reasons in February 2015. Within those supplementary reasons, he condemned the appellants' tactics in bringing the motion, and expressed the view that jurisdiction motions frustrate the purposes of the Rules of Civil Procedure.

The Analysis

For a unanimous Court of Appeal, Justice Epstein "regrettably" came to the view that the motion judge's actions created a reasonable apprehension of bias. She partially based her conclusion on reasons that are not relevant to appellate practice per se such as:

  • his adjournment on his own initiative (which could be seen as going out of his way to assist the respondents);
  • his deciding the motion without allowing the appellants to make oral arguments on certain issues;
  • inappropriately characterizing certain submissions of the appellants as "concessions";
  • a derisive tenor, including describing the motion an "abuse of process" on his own initiative; and
  • being consistently discourteous towards the appellants' counsel for no apparent reason.

Justice Epstein also gave helpful guidance about the circumstances in which delayed reasons will give rise to a reasonable apprehension of bias. Notably, when the judge has arrived at "an after the-fact justification for the decision rather than an articulation of the reasoning that led to the decision" or is engaged in "an after the-fact attempt not only to justify but also to bolster his decision", a reasonable apprehension of bias may arise. Justice Epstein wrote:

[80] Delay in delivering further reasons, in and of itself, does not displace the presumption of integrity: [...]. Moreover, a judge's knowledge of a pending appeal is just a factor to be taken into consideration: [...]

[81] However, in all of these circumstances, and in particular having regard to the conduct of the proceedings, I am of the view that an informed and reasonable observer would think that the Amended Endorsement was something other than an expression of the reasoning that led him to dismiss the motion.

[82] This case bears some similarity to Arnaout, which made clear that conduct will have the effect of displacing the presumption of integrity if, in all the circumstances, an informed and reasonable observer would think that the amendment was an afterthe-fact justification for the decision rather than an articulation of the reasoning that led to the decision [...]

[...]

[84] In my view, the Amended Endorsement suggests that the motion judge was motivated to respond to the challenges to his decision. I refer tothe motion judge's expressly identifying and then responding to grounds of appeal addressed in the reasons on the stay motion. Specifically, the motion judge dealt with two of the three "serious issues" raised in the proposed appeal – the fact that his Second Endorsement only addressed jurisdiction in regards to the appellant IFS and the consequences of certain comments he made and actions he took.

[85] I find the portion of the Amended Endorsement where the motion judge attempts to justify his handling of the matter, particularly troubling [...]

[86] In these passages, the motion judge appears to insinuate himself into the appeal process by attempting to defend his actions and his comments. It was an after the-fact attempt not only to justify but also to bolster his decision.

[Emphases added.]

Conclusion

Despite believing that the motion judge was "no doubt well-intentioned", Justice Epstein ultimately concluded that "the cumulative effect of the motion judge's conduct is that an informed, reasonable observer, viewing the proceedings as a whole, would conclude that the appellants did not receive the fair hearing to which they were entitled" (para. 89). She nonetheless held that the costs of the first motion should be at the discretion of the judge hearing the second motion.

It is clear from Stuart Budd that issuing supplemental reasons will not always create a reasonable apprehension of bias. But it is equally clear that a judge seeking to protect his or her reasons from appellate scrutiny can be improper, and may be the basis to find that a reasonable apprehension of bias has arisen.

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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