IN THE SUPREME COURT OF NOVA SCOTIA
Citation: Reynolds v. Spence, 2004 NSSC 233
Date: 20041117
Docket: SAM 226932
Registry: Amherst
Between:
Norma A. Reynolds
Appellant
v.
Darrell Spence, Mechfo Operations Inc & Troy Phinney
Respondent
Judge: The Honourable Justice Donald M. Hall
Heard: November 4, 2004, in Amherst, Nova Scotia
Counsel: Norma Reynolds, self-represented.
Troy Phinney, self-represented.
By the Court:
[1] The appellant has appealed a decision of the Small Claims Court of Nova Scotia dismissing her claim for wood allegedly removed from her land by the defendants.
[2] The issues argued on this appeal were whether there was a denial of natural justice on the ground that there was bias or a reasonable apprehension of bias on the part of the learned adjudicator and whether the adjudicator committed an error in law in reaching the conclusion that he did.
[3] It appears that someone cut a significant quantity of wood on land which the appellant claimed to be hers without her consent and without compensating her for the value of the wood. The respondents denied any involvement or responsibility in the cutting and removal of the wood from the appellant's land. The learned adjudicator summarized his findings as follows:
These are the facts as presented. On the whole of the evidence I do find that the Claimant has [not] proven her case on the balance of probabilities. During her testimony Mrs. Reynolds indicated that she had no personal knowledge of who cut the area that has given rise to this dispute or had she even observed the area as being cut herself. She relied entirely on the information provided to her by Quentin LeMoine. Mr. LeMoine also testified that he had no knowledge of who cut the wood from the area which gave rise to the dispute. Neither the Claimant or Quentin LeMoine ever saw Troy Phinney or anyone acting on his behalf or any one associated with Mechfo Operations cutting on the Claimant's property.
I have carefully considered the evidence that there were things said by Troy Phinney which amounted to admissions of responsibility for cutting on Norma Reynolds' land. On the whole of the evidence I do not accept that these conversations took place as was testified. I do not accept that Mr. Phinney, either on his own behalf or on behalf of any of the defendants, admitted to the conduct complained of by the Claimant.
I also find that the Defendant Darrel Spence was diligent at all times in instructing Troy Phinney and Mechfo Operations on where to cut wood from his property. He was not negligent, and he was at all times mindful of the boundary as shown on Mr. Rayworth's plan.
[4] The appellant claims that the adjudicator was biased against her. This allegation arose out of the fact that the trial extended over two evenings and between the first and second evening the respondent, Darrell Spence, contacted the adjudicator's law firm for the purpose of having a deed prepared respecting his residential property. Mr. Spence spoke to a paralegal in the law firm's office who referred it to Mr. Farrell, the adjudicator. On doing a cursory search the adjudicator realized that the Mr. Spence who had contacted the law firm was the same Mr. Spence who was a party in the trial that he was then conducting. He immediately told the paralegal to inform Mr. Spence that he and his firm could not act for him. It seems that Mr. Spence was not familiar with Amherst law firms and had no idea that the adjudicator was a member of the law firm that he had contacted.
[5] When the hearing resumed that evening the adjudicator advised the parties of the contact. He describes what took place in that regard in his summary as follows:
I raised this issue at the beginning of the second night of the hearing and gave the parties an opportunity to comment on it and to object to me proceeding to hear the case. I told them that I felt I had to disclose the contact and that I was concerned that a perception of bias may arise out of this contact. I did advise the parties that I did not feel that the extent of the contact by Mr. Spence was sufficient to give rise to any clear conflict and that I personally did not feel that I would exhibit any bias if I continued to hear the case. All of the parties, including the Claimant, Norma Reynolds, indicated that it was their choice that I continue at that time to hear the case and adjudicate on the matter. There were no objections raised based on the possibility that I had become biased towards any party as a result of the contact by Mr. Spence or that I had been placed in a situation where I was acting in conflict with the interest of any of the parties.
[6] In her written submission to this court respecting the issue, the appellant stated:
Pursuant to the court case between Darrell Spence and myself, I believe a case of bias occurred when Mr. Spence contacted the Adjudicator on a legal matter concerning his land after said Adjudicator was acting on this case. Although the Adjudicator did disclose this information to the court, I now believe I should have asked him to step down. The case had drug on for some time before a court date was set and I was anxious to finally see it come to court.
I had no experience; this was my first time in Small claims Court. I was confused and somewhat unnerved by the complete and uncalled for assassination of my character by Mr. Spence and his witnesses on the previous night of court. I might add this went on for the second night as well. The attack on my character and boundary lines that had no bearing on this case whatsoever, should not have been permitted and was allowed by the Adjudicator to go on and on. I believe it clouded his judgment. My character was not on trial. The case was uncontrolled and reached a point where it was difficult for everyone to focus on the issues.
This character bashing by Spence and his witnesses made it impossible for me to conduct my case in the manner I wished. Also, Darrell Spence should have known his contacting the Adjudicator would be perceived as a conflict of interest. In retrospect, I believe the Adjudicator should have stepped down voluntarily.
[7] Mr. Creighton, on behalf of the appellant, Darrell Spence, in his brief correctly submitted to the court, "Bias goes to the jurisdiction of the tribunal. In other words, if an Adjudicator is biased then the Adjudicator loses jurisdiction". See R. v. Curragh (1997) 1 S.C.R. 537 at paragraph 6.
[8] It seems to me as well that if an adjudicator is biased, for or against a party, a denial of natural justice would result. Pursuant to the requirements of natural justice an interested party is entitled to a hearing. In my opinion, it goes without saying that the hearing must be a fair hearing. Such would be most unlikely to occur in a hearing before a biased judge or adjudicator.
[9] Whether the bias goes to loss of jurisdiction or a denial of natural justice is immaterial. If in fact there was bias or a reasonable apprehension of bias, the decision of the adjudicator cannot stand.
[10] The question of bias was considered by the Supreme Court of Canada in R.D.S. v The Queen [1997] 3 S.C.R. 484. At paragraph 31 Justices L’Heureux-Dubé and McLachlan stated:
The test for reasonable apprehension of bias is that set out by de Grandpré J. in Committee for Justice and Liberty v. National Energy Board, [1978] 1 S.C.R. 369. Though he wrote dissenting reasons, de Grandpré J’s articulation of the test for bias was adopted by the majority of the Court, and has been consistently endorsed by this Court in the intervening two decades: see, for example, Valente v. The Queen, [1985] 2 S.C.R. 673; R.v. Lippé, [1991] 2 S.C.R. 114; Ruffo v. Conseil de la magistrature, [1995] 4 S.C.R. 267. De Grandpré J. stated, at pp. 394-95:
. . . the apprehension of bias must be a reasonable one, held by reasonable and right-minded persons, applying themselves to the question and obtaining thereon the required information . . . . [T]hat test is “what would an informed person, viewing the matter realistically and practically - and having thought the matter through - conclude. Would he think that it is more likely than not that [the decision-maker], whether consciously or unconsciously, would not decide fairly.”
The grounds for this apprehension must, however, be substantial and I . . . refus[e] to accept the suggestion that the test be related to the “very sensitive or scrupulous conscience”.
. . . The presumption of impartiality carries considerable weight, for as Blackstone opined at p.361 in Commentaries on the Laws of England, Book III, . . . “the law will not suppose a possibility of bias or favour in a judge, who is already sworn to administer impartial justice, and whose authority greatly depends upon that presumption and idea”. Thus, reviewing courts have been hesitant to make a finding of bias or to perceive a reasonable apprehension of bias on the part of a judge, in the absence of convincing evidence to that effect: R. v. Smith & Whiteway Fisheries Ltd. (1994), 133 N.S.R.(2d) 50 (C.A.), at pp. 60-61.
[11] It is also essential that the party alleging bias should raise the issue in a timely manner. As Justices McLachlan and Major stated in R. v. Curragh Inc. (supra) at paragraph 114: “The proper course for a party affected by the bias is to move promply for recusal of the judge.” Otherwise “ . . . parties perceiving bias could lie in the weeds and long after the trial judge rules against them, have the entire proceeding invalidated ab initia.” (Paragraph 106).
[12] In the present case I am satisfied that there was, in fact, no bias on the part of the adjudicator and certainly no convincing evidence of such. The appellant claimed that the adjudicator demonstrated bias in permitting the appellants to present evidence attacking her character and not permitting her to call witnesses to refute that evidence. Such evidence would only have a bearing on the appellant's credibility as a witness. The fact is, however, that the adjudicator did not base his decision on any findings respecting the appellant's credibility, but solely on his finding that the appellant had failed to present evidence to establish her case on a balance of probabilities.
[13] The question remains, was there a basis for a reasonable apprehension of bias? In my view there was not. There was no direct contact between Mr. Spence and the adjudicator. The contact that there was between Mr. Spence and the adjudicator's law firm was very minimal in duration and substance. Immediately upon realizing from whom the inquiry had come, the adjudicator had his assistant inform Mr. Spence that the firm could not act for him. What had occurred did so through chance and not design.
[14] Upon resumption of the trial and before any further evidence was called the adjudicator informed the parties of the incident and questioned whether they had any concerns with him continuing the trial. All parties including the appellant indicated that they were satisfied that he should continue.
[15] In these circumstances I fail to see that there was any reasonable apprehension of bias. Indeed the appellant raised no concern about bias until after receiving an unfavourable decision. Furthermore, the adjudicator was half way through the trial. In my view, it would have been wrong for him not to continue in view of the minor nature of the incident and the fact that all parties expressed the desire that he continue.
[16] As to whether there was error in law, it is apparent that all of the objections raised by the appellant are with respect to factual issues. As I pointed out at the hearing of this appeal, on an appeal from the Small Claims Court this Court does not see the evidence and must accept the adjudicator's findings of fact. In other words, this Court is not in a position to review the evidence or interfere with findings of fact made by the adjudicator. This Court is confined to considering the grounds of appeal set out in s. 32(1) of the Small Claims Court Act, viz. jurisdictional error, error of law, and failure to follow the requirements of natural justice. On reviewing the material in this appeal, I fail to see any error of law that would have affected the decision.
[17] Accordingly, the appeal is dismissed.
Donald M. Hall, J.