2013 S.C.BW. Number: 425089
SMALL CLAIMS COURT OF NOVA SCOTIA
Cite as: Dorey v. 2361110 Nova Scotia Ltd., 2014 NSSM 81
BETWEEN:
DANIEL St. CLAIR DOREY AND KAREN RUTH DOREY
Claimants
(Respondents on Recusal Motion)
- and -
2361110 NOVA SCOTIA LIMITED
Defendant
(Moving Party on Recusal Motion)
DECISION AND ORDER
PRELIMINARY MOTION TO RECUSE
Date of Hearing: September 18th, 2014
Place of Hearing: Bridgewater, Nova Scotia
Heard Before: Gavin Giles, Q.C., Chief Adjudicator
Counsel: For the Applicant:
Michael K. Power, Q.C.
For the Respondent:
Derek R. Schnare
Date of Decision: September 22nd, 2014
Gavin Giles, Q.C., Chief Adjudicator
SUMMARY OF FINDINGS:
[1] For reasons set out in detail below, the Defendant’s Motion, that I recuse myself from these proceedings, is declined.
[2] First, the bases upon which such Motions are granted are objective and not subjective. The Moving Party’s subjective assessment, regarding my bias, likely bias, partiality, or the appearance or apprehension of same, as ably explained and highlighted by its own Counsel, is not relevant. What is instead relevant is how the objective observer, fully apprised of all of the circumstances of the subject proceedings, including the relevant high threshold test and the presumption at law regarding the decision-maker’s impartiality, would determine the Moving Party’s allegations of my bias, likely bias or partiality, or the appearance or apprehension of same. These principles were conceded by the Moving Party’s Counsel but were put best by the Respondents’ Counsel.
[3] Second, the high threshold test referred to above provides that it is incumbent upon the Moving Party to demonstrate the bias, likely bias or partiality, or the appearance or apprehension of same, which is being alleged. The allegation itself is not sufficient. The subjective feelings of the Moving Party are also not sufficient. The standard is an objective one, which weaves within it some important and overarching principles regarding the assumed impartiality of the judicial process and those engaged in it.
[4] Third, the Moving Party is relying on some past experience to support its allegation of bias, likely bias or partiality, or the appearance or apprehension of same, on my part will be sufficient to effect my recusal. Be the Moving Party’s past experience as it may, a bare allegation, without more, is not a sufficient basis for recusal. In that regard, the authorities are very clear that a judicial decision-maker can in the past make determinations against a party without at the same time tainting herself or himself with the appearance or apprehension of bias for the purposes of future matters involving the same party.
[5] After having considered all of the Moving Party’s comprehensive written and very capable oral submissions, and having considered the applicable authorities, I have come to the conclusion that the Moving Party has simply fallen short of establishing, on the required objective basis, that I lack the necessary objectivity and impartiality to fairly judge and determine the proceedings in which it is currently involved. It is on that basis that Moving Party’s recusal Motion is declined.
INTRODUCTION:
[6] This matter was heard before the Small Claims Court of Nova Scotia, at Bridgewater, on the afternoon of Thursday, September 18th, 2014.
[7] None of the parties were present; they were represented by their respective Counsel.
[8]
The matter involves claims in negligence, breach
of contract and trespass.
Very briefly put, the Claimants’ have alleged that they entered into an
agreement with the Defendant with respect to some work which was to be
undertaken along a common property boundary line which the Claimants and the
Defendant share. The Claimants contend that the agreed-upon work was completed
only in part and thus constituted both a breach of contract and a trespass.
[9] The Defendant has pleaded in response that it is the Claimants who have breached the subject contract by refusing or otherwise failing to enter into the collateral agreements which had been established with respect to the work to be undertaken along the common boundary line.
[10] Additionally, the Defendant added a Counter-Claim to the effect that the Claimants retaining wall, on their side of the common boundary line, had been permitted to fall into disrepair such that it constituted both a safety hazard and a general liability and permitted the escape of water run-off from the Claimants’ property onto the Defendants property. The Defendants Counter-Claim was effectively styled in both trespass and nuisance.
[11] The Claimants have denied the Defendant’s Counter-Claim.
[12] In a telephone conference scheduled to organize the proceedings, the setting of hearing dates, the exchanges of relevant documents and filings of Briefs, the Defendant, through its Counsel, raised the issue of an appearance of bias, sensed by the Defendant, should I preside. The appearance of bias was said to relate to two discrete matters; the first, that I had acted for the Defendant (or, more accurately, for a company which had common offices and shareholders with the Defendant) in the past; and second, that I had acted against the Defendant (more accurately, for a company which had common offices and shareholders with the Defendant) some nine years ago.
[13] The fact that I had in the past acted for a company which had officers and shareholders in common with the Defendant appeared to be the lesser of the two concerns. The greater concern was that when I had acted against the company which had common officers and shareholders with the Defendant and that it had agreed, essentially as a result of a Judicial Settlement Conference, to pay some not insignificant compensation to the party for whom I was acting in those proceedings. It was this payment which the Defendant seemed to hold against me personally and which appeared to have led the Defendant to the conclusion that I could not appear to them to be impartial in these proceedings.
[14] It was on those bases that I was urged by the Defendant, again through Counsel, to consider my recusal. I demurred in that argument and directed that if the Defendant was going to seek my recusal, it would have to do so more formally and on the basis of appropriate filings and legal arguments to which the Claimants would have the opportunity to respond. It was on that basis that the Defendant became the Moving Party in this Recusal Motion.
[15] The Moving Party’s written submissions were filed on September 17th, 2014. They set out a general recitation of the applicable law and attached some correspondence from the earlier proceedings in which I had acted against the company which had common officers and shareholders with the Moving Party. For the purposes of the Motion, I considered the Moving Party’s filings to be evidence, notwithstanding the fact that they were not introduced as such and could not be addressed on cross-examination. The Respondents were not opposed.
BACKGROUND:
[16] The prior proceedings in which I had acted against the company which had common officers and shareholders with the Moving Party were styled as Jeffrey Slaunwhite v. Carroll South Shore Motors Limited. Those prior proceedings were commenced in the Supreme Court of Nova Scotia, in Bridgewater, under Court file S.BW. No. 273034, on October 21st, 2006.
[17] The prior proceedings were commenced in “wrongful dismissal’. Mr. Slaunwhite had been employed by Carroll South Shore Motors Limited. His employment was terminated. He alleged that the termination was “wrongful”; in that it came about without notice or severance and on the alternative basis that it came about without notice and with severance which was not adequate. His pleadings, contained within a Statement of Claim which I issued out of the Supreme Court of Nova Scotia on his behalf, along with an Originating Notice, set out the following allegations – more or less in standard form:
5. On December 6, 2004 the Defendant terminated its employment of the Plaintiff. Mr. Slaunwhite alleged that the termination was without cause and without any or any reasonable notice.
6. The Plaintiff repeats his allegations in paragraph 6 hereof and pleads that the termination of his employment by the Defendant was wrongful. The Plaintiff pleads further that the termination was in breach of the terms or implied terms of his employment that his position was secure and that he would be provided with reasonable notice of termination or pay in lieu of reasonable notice of termination commensurate with his position with the Defendant, his age, his length of service to the Defendant and the likelihood of him finding reasonable alternative employment.
7. The Plaintiff further pleads that the Defendant had an obligation of good faith and fair dealing in its employment relationship with him. The Plaintiff further pleads that these obligations were breached and that the Defendant’s termination of the Plaintiff’s employment was wrongful.
8. At the time of termination the Plaintiff earned an annual salary of approximately $39,000. The Plaintiff was also entitled to certain benefits including, but not limited to:
(a) an annual bonus based on 1.5% of the gross profit of the Defendant’s automobile dealership;
(b) a car and fuel allowance provided to him without charge by the Defendant;
(c) vacation or vacation pay in lieu of vacation; and
(d) employment benefits which included, without limitation, extended health and dental coverage, short-term disability insurance, long-term disability insurance and group life insurance, all of which benefits were paid for at least partially by the Defendant.
9. The Plaintiff claims that as a further result of the Defendant’s actions, he has suffered and will continue to suffer various out-of-pocket expenses in an attempt to mitigate his damages, including employment search expenses, the full particulars of which will be provided prior to trial.
10. The Plaintiff further pleads that the termination of his employment by the Defendant was carried out in a manner or manners which was or which were insensitive, callous and high- handed and which therefore amounted to bad faith on the part of the Defendant. Included, without limitation, was the wrongful attempt on the part of the Defendant to withhold its payment of the bonus actually earned by the Plaintiff by the time of the termination of his employment. Also included, without limitation, was the Defendant’s attempt at the justification for its termination of the Plaintiff’s employment with it by its allegations of cause which it knew to have been false. The Plaintiff further pleads that the said bonus was withheld from the Plaintiff by the Defendant in an effort by the Defendant to extract a full and final release from the Plaintiff when such a full and final release was not warranted and at a time when the Defendant knew or ought to have known that the Plaintiff was short of funds.
[18] Subsequent to my issuance of pleadings on behalf of Mr. Slaunwhite, my involvement with the prior proceedings was very limited. Though carriage of the matter was technically mine, most of the services required of the matter by Mr. Slaunwhite were delegated to my colleague and partner, Ms. Tara Erskine. I was not engaged in any interlocutory matters. I did not conduct any examinations for discovery. I may have filed and served a List of Documents (as documentary disclosure was then styled). I did have some exchanges of correspondence with opposing counsel which related to the Defendant’s allegation of my conflict of interest which it raised in those prior proceedings. I also participated in a Judicial Settlement Conference which was requested by the Defendant in the prior proceedings; though “participation” on my part is a term which could only be used conditionally and with some definition.
[19] The Judicial Settlement Conference was convened before The Honourable Madame Justice Margaret J. Stewart. Her Ladyship spent scant time with me, Ms. Erskine and Mr. Slaunwhite at the Judicial Settlement Conference. In fact, well upwards of 90% of Her Ladyship’s time at the Judicial Settlement Conference was spent with opposing counsel and with Mr. John Carroll, representing – as an officer, director, shareholder or otherwise – the Defendant in the prior proceedings.
[20] My recollection is that the prior proceedings did not resolve themselves at the Judicial Settlement Conference though they did resolve shortly thereafter. In that regard, I do recall some telephone discussions and a small exchange of correspondence with opposing counsel; in the course of which a settlement was agreed.
[21] For the purposes of the within Recusal Motion, the Moving Party has highlighted, through Counsel, Mr. Slaunwhite’s pleadings at paragraph 10 of the Statement of Claim referred to above. At that paragraph 10, Mr. Slaunwhite pleaded in the prior proceedings that "the termination of his employment by the Defendant was carried out in a manner or manners which was or which were insensitive, callous and high-handed and which therefore amounted to bad faith on the part of the Defendant." This plea, according to the Moving Party’s Counsel, amounts, or at least amounted, to a negative assessment by me of the credibility of the directing minds of the Defendant in those prior proceedings. As there is at least some commonality between the directing minds of the Defendant in the prior proceedings and the Defendant in the current proceedings, the concern expressed by the Moving Party’s Counsel is that I could be perceived as having already adopted a negative view of the Defendant in the current proceedings. I reject that argument.
[22] My rejection of that argument is rooted not only in the applicable authorities but in a close consideration of the other "evidence" which has been filed by Counsel for the Moving Party in support of its Recusal Motion. I have placed the word “evidence” in the prior sentence in quotation marks as the attachments to the Brief filed by Counsel for the Moving Party have been treated as such despite their not having been tendered by way of Affidavit or viva voce testimony.
[23] Counsel for the Moving Party placed some emphasis on an e-mail message sent by Mr. John Carroll to my partner, Mr. Bruce Russell, Q.C. on April 2nd, 2008. The e-mail message was sent in the context of the prior proceedings. In the e-mail message, Mr. Carroll appears to express some discontentment about being caught "between a ‘rock and a hard place’ on this situation." The words "on this situation" appear to pertain to Mr. Carroll's contention that having retained my partner, Mr. Russell, Q.C. for other matters, it would be a conflict of interest for me to act against one of his business interests on behalf of Mr. Slaunwhite. I had rejected that argument; in part because the firm's mandates were distinct and in part because I had been acting for Mr. Slaunwhite against the Defendant in the prior proceedings for some years by the time my partner, Mr. Russell, Q. C. had been retained on what Mr. Carroll referred to as “the taxation issue”.
[24] Mr. Carroll's e-mail message, referred to above, made reference to correspondence to me from Counsel for the Defendant in the prior proceedings. That correspondence was dated March 28th, 2008. It included the following passage:
Your firm will want Mr. Carroll to sign consent with respect to further representation, and I would ask that you forward a draft of that consent to my attention. I would ask that you include in the form of provision confirming the confidentiality of information between the separate lawyers dealing with these two separate matters (i.e., ’Chinese wall’ issue) [sic].
I think Mr. Carroll's sole and legitimate concern in these circumstances is that he did not want to be looking for another lawyer on the income tax matter in view of the hearing date scheduled for sometime in July of this year. You indicated on more than one occasion that if an application was made then your firm would no longer be prepared to represent Mr. Carroll's company in the tax matter.
In previous letters you mentioned that we were accusing the firm of ‘unethical or ‘improper’ conduct etc. I don't think that is fair and it is clearly not accurate. In our opinion your firm was in a conflict of interest situation, but conflicts of interest many times, such as in this case, arise inadvertently as a result of problems with conflict checks or, as in this case the involvement of different albeit related parties with different names etc. We have all been in that situation at one time or another. Therefore, as you know, conflict issues can arise unintentionally or accidentally. In those situations, the lawyer only acts ethically if, when the lawyer becomes aware of the present conflict of interest or potential for future conflict of interest, they continue to act without receiving the informed consent of both clients. That is not the situation here.
[25] My follow-up with Counsel for the Defendant in the prior proceedings was to provide him with a form of consent referred to as well as documentation in support of the establishment, within my firm, of the necessary "ethical walls". To my recollection, that was the end of the matter. I maintained no interest, and made no inquiry, into the income tax matter to which Mr. Carroll had referred. Mr. Slaunwhite’s claim against the Defendant in the prior proceedings continued from that point onward; until it was resolved, consensually, in the early part of 2009.
[26] Regarding that consensual settlement, Counsel for the Moving Party made reference in the course of oral argument on the Recusal Motion to it having cost the Defendant (in the prior proceedings) a considerable sum. Regardless of the accuracy of that comment, consensual resolutions in litigation very often create unhappiness. It is in fact an adage in civil litigation generally that the best form of settlement is the one in which both (or all) parties are at least moderately unhappy.
[27] Conceded is that against the backdrop of this factual matrix, the Moving Party, because of its connection to the Defendant in the prior proceedings may not like me and that that emotional reaction to me may cause it a suspicion that I will not exercise my discretion fairly in these proceedings. But as Counsel for the Moving Party made clear in his oral arguments, this is a personal perception on the part of the Moving Party’s operating mind and that my own reputation for thoroughness, fairness and integrity is unassailable.
[28] The legal question thus posed is whether a reasonable observer, fully and properly informed, against the backdrop of both my Oath of Office and the presumption that judges and other judicial decision-makers will conduct themselves in manners which are fair and impartial, arrive at the conclusion that my limited contact with the Moving Party in the prior proceedings was such as to found a contention of bias, likely bias or partiality?
ANALYSIS:
[29] Section 2 of the Small Claims Court Act provides that:
It is the intent and purpose of this Act to constitute a court wherein claims up to but not exceeding the monetary jurisdiction of the court are adjudicated informally and inexpensively but in accordance with established principles of law and natural justice.
[30] Section 6(2) of the Act provides that:
The Governor in Council may appoint on the recommendation of the Attorney General such adjudicators as the Governor in Council deems necessary.
[31] Section 6(3) of the Act provides that:
No person shall be appointed or serve as an adjudicator unless that person is a practising member in good standing of the Nova Scotia Barristers' Society.
[32] Section 6(6) of the Act provides that:
Before taking office, each adjudicator shall take and subscribe the following oath before a judge of the Supreme Court:
I, . . . . . . . . . ., of . . . . . . . . . ., in the County of . . . . . . . ., make oath and say, that I will well and truly serve our Sovereign Lady the Queen in the office of Adjudicator of the Small Claims Court of Nova Scotia, and I will do right to all manner of people after the laws of the Province without fear, favour, affection or ill will.
[33] It appears from these statutory provisions that what was intended by the Legislature was a part-time Small Claims Court, designed to function as many other Courts do, but with practicing lawyers as the decision-makers. With our relatively small Bar being what it is, it had to have been contemplated by the Legislature that circumstances such as those underpinning this Recusal Motion would arise. It is no doubt on that basis, primarily, that the Legislature exhorts, through its Oath of Office, that individual Adjudicators "will do right to all manner of people after the laws of the Province without fear, favour, affection or ill will."
[34] Those words have to mean something important. They are thus germane to the resolution of this Recusal Motion. They mean that whatever the respective pasts which the individual Adjudicators have with those who appear before them, the expectation of neutrality “without fear, favour, affection or ill will” must always remain the hallmark of the individual Adjudicators’ work. And the assessment of whether it will or whether it won’t must always be an objective one.
[35] All analyses on Motions for recusal stem from the decision of the Supreme Court of Canada (per: de Grandpré, J.) (in dissent)) in Committee for Justice and Liberty v. Canada (National Energy Board), [1978] 1 S.C.R. 369. There, de Grandpré, J. held (at p. 394) of the basis upon which a Motion for recusal is generally argued that:
... 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 ... [The] test is ‘what would an informed person, viewing the matter realistically and practically – and having thought the matter through – conclude.’
[36] Though a dissenting one, de Grandpré, J.’s decision in Committee for Justice and Liberty gained prominence as a result of the much later Supreme Court of Canada decision (per: Corey, J.) in R. v. S. (R.D.), [1997] 3 S.C.R. 498. There, Corey, J. (commencing at para. 111) held with respect to de Grandpré, J.’s reasoning in Committee for Justice and Liberty that:
The test has been adopted and applied for the past two decades. It contains a two-fold objective element: the person considering the alleged bias must be reasonable, and the apprehension of bias itself must also be reasonable in the circumstances of the case. ... Further [,] the reasonable person must be an informed person, with knowledge of all the relevant circumstances, including ‘the traditions of integrity and impartiality that form a part of the background and apprised also of the fact that impartiality is one of the duties that judges swear to uphold’ ...
[37] Corey, J. then continued at paras. 112, 113 and 114 that:
Nonetheless the English and Canadian case law that does properly support the appellant’s contention that a real likelihood or probability of bias must be demonstrated and that a mere suspicion is not enough ...
...
Regardless of the precise words used to describe the test, the object of the different formulations is to emphasize that the threshold for a finding of real or perceived bias is high ...
...
The onus of demonstrating bias lies with the person who is alleging its existence ... . Further, whether a reasonable apprehension of bias arises will depend entirely on the facts of the case.
[38] Taken at its highest, the Moving Party brings its Recusal Motion on the contention of an apprehended bias on my part, contrary to its interests, based on what it has set out as its losses resulting, directly or indirectly, from my prior dealing with it in the prior proceedings. Taken at its lowest, the Moving Party could be seen as having developed a personal animus against me for the purposes of any future proceedings in which it might be engaged and over which I might be called upon to preside. Neither extreme meets, in my view, the traditional onus of proof which recusal requires.
[39] With obvious respect to the Moving Party’s directing minds, their personal views are irrelevant to the answer to the central question this Recusal Motion poses. As to the former concern, the case law set out above is clear: there is a strong, in fact an almost unassailable, presumption that decision-makers are impartial and will act impartially. The threshold test thus set for the removal (or recusal) is high. And the test is an objective one; engaging a hypothetical person, fully and properly informed and acting reasonably.
[40] Those tests having been articulated, there has been no demonstration by the Moving Party of “a reasonable apprehension of bias” when considered “entirely on the facts of the case”. In short, as held by the Supreme Court of Canada (per: Le Dain, J.) in Valente v. Her Majesty the Queen, [1985] 2 S.C.R. 673 (at p. 685), “[i]mpartiality refers to a state of mind or attitude of the tribunal in relation to the issues and the parties in a particular case. The word ‘impartial’ as Howland, C.J.O. noted, notes absence of bias, actual or perceived.”
[41] As a practical matter, the application of the decision-maker’s discretion in Motions for recusal is difficult. In some respects, the common practice casts the decision-maker in the roles of witness, advocate and decider. The conundrum was in fact put as follows by the Supreme Court of Nova Scotia (per: Richard, J.) in Mitsui & Co. (Point Aconi) Limited v. Jones Power Co. Limited, 2001 N.S.S.C. 29 (CanLii) (at para. 4):
It appears to be the practice that such applications are made before the judge to whom the application is directed – see Cominco Ltd. v. Westinghouse Canada Ltd., et al. (1979) 108 D.L.R. (3d) 579 (B.C.S.C.) and Arsenault – Cameron v. Prince Edward Island, [1999] 3 S.C.R. 851. As Jones said in its opening remarks:
Having looked that the authorities, it’s quite clear that the application has to be made before the judge himself which is a difficult position to put a judge in and in effect to try and be an informed observer standing to the side but that’s what the authorities seem to say and so that’s why we are before you today.
This places the judge at a rather unique but challenging position of having to rule upon his or her own conduct and rule whether or not such conduct raises a real likelihood of probability of bias. Except in the most egregious of circumstances, it is only the presiding judge who can properly determine the question of his or her own bias. The judge must be careful to bring the same degree of impartiality and attachment into these deliberations as would be the case in regular court proceedings. The judge must be careful to assume the role of an informed person with a complex and contextualized understanding of the issues. To do otherwise would be to subvert the process and bring into question the whole notion of judicial impartiality and fairness.
[42] Richard, J. in Mitsui held that a reasonable apprehension of his bias had not been made out. On appeal, the Nova Scotia Court of Appeal (per: Hallett, J.A.) disagreed. In Hallett, J.A.’s analysis, Richard, J. had made findings against Jones Power which were or which at least could be crucial to the assessment of matters which remained outstanding between Jones Power and its opponent. Both the findings made and the matters still pending were held by Hallett, J.A. as reasonably leaving Jones Power with the perception that Richard, J.’s mind with respect to the whole case had effectively been made up. That was, as held by Hallett, J.A., a sufficient apprehension of bias as to warrant Richard, J.’s recusal.
[43] Those are not the types of circumstances which inhere in this Recusal Motion. In this Recusal Motion, the Moving Party is looking to the past, and then attempting to project it into the future. Ignored is the fact that I have never made or argued credibility findings against it; or against any person associated with it. All I have done is issue pleadings against it which were in standard form, in an un-related matter, some time ago. Additionally, the very fact that I was involved, if not instrumental, in arriving at a consensual settlement in the prior proceedings could be taken as an indication of my recognition that the Defendant in those prior proceedings had in fact been fair. In such circumstance, I find the Moving Party’s currently-argued apprehension of bias to be unreasonable and incapable of substantiation by a reasonable observer, properly informed, and bearing in mind both the high threshold test and the presumption of my impartiality as a decision-maker.
[44] Additional support for this determination has been set out by the Supreme Court of Nova Scotia (per: Murphy, J.) in R. v. Black, 2003 N.S.S.C. 079. At issue in Black was an accused’s allegation with respect to a trial judge “that through [his] conduct and [his] decisions, [he had] exhibited what a reasonable person would consider an apprehension of bias (or prejudice) as [the accused] has referred to it”.
[45] In rejecting the motion for recusal, Murphy, J. held (commencing at para. 9) as follows:
I find that the test for determining that the judge is biased has not been met in this case. Mr. Black has not established the threshold required in order that it be necessary that I recuse myself.
I have concluded that no belief or opinion expressed, decision made or action taken by me in the proceeding to date would give a reasonable apprehension that I am biased or prejudiced, either as suggested by Mr. Black or otherwise.
I find that there is no basis on which I would conclude that would be unable to reach, or unable to appear to reach, a decision based on the evidence which will be presented in the case.
[46] From there, Murphy, J. went on to consider a number of the specific bases upon which the motion for recusal had been made. Murphy, J. conceded that each one of those bases as potential errors on his part but that they were reviewable (viz.: curable (on appeal)). Having made decisions reviewable on appeal was not, in Murphy, J.’s conclusion, evidence of his bias.
[47] Further on in Black, Murphy, J. held (at paras. 19-20) that:
With respect to the evidence of Mr. Piper during the Charter motions, and the exhibit containing his notes, both of which Mr. Black referred to during argument, I did inquire concerning Mr. Black’s interpretation of the evidence, and my inquiry generated discussion among Mr. Black, Mr. Holt and myself. It is not unusual when a case is being argued to have discussion concerning interpretation of evidence, that Mr. Black had full opportunity to indicate what his position was with respect to the evidence. If it is determined at some point that I misinterpreted the evidence, that again is a matter that can be dealt with by another court, but in my respectful view would not constitute bias on my part.
Mr. Holt has correctly indicated that Mr. Black’s personal views are not the test to be applied to determine whether I should recuse myself based on bias or prejudice. The test is an objective one, based upon what a reasonable person would conclude in circumstances and with respect to my disposition towards the case. The fact that I have made rulings against Mr. Black’s position from time to time in interlocutory matters does not give rise to an inference of bias.
[48] Murphy, J.’s decision in Black is particularly apposite the instant motion for recusal. If past rulings by a Judge against a party do not support an inference of future bias, how could it be said that a past allegation in a standard form in unrelated litigation some years ago would in fact, in objective terms, support an inference of future bias? The question is only posed rhetorically.
[49] Another authority which may serve inform the Moving Party’s Recusal Motion is that of the Federal Court of Canada (per: Crampton, J. (now Chief Justice Crampton)) in Cervenakova v. The Minister of Citizenship and Immigration, 2010 F.C. 1281.
[50] The principle issue before Crampton, J. in Cervenakova was the judicial review of a decision by the Canada Immigration and Refugee Board denying the Applicants “refugee status” upon their entry into Canada. A preliminary issue raised by those Applicants was that Crampton, J. ought to recuse himself on the basis of apprehended bias. The allegation by the Applicants was that Crampton, J. had heard cases (or a case) similar to theirs in the past and had ruled against the applicants in those cases. In the Applicants’ submission, that fact (or facts) stood for the proposition that Crampton, J. was predisposed to rule against the judicial review of applications for refugee status initially rejected by the Canada Immigration and Refugee Board.
[51] At para. 19 of Cervenakova, the Applicants’ basic position was put as follows:
In short, [counsel] submitted that the Applicants perceive that I have a pre-disposition to deny their application because: (i) I denied the application for judicial review in Denova v. Canada (Minister of Citizenship and Immigration) 210 F.C. 438; and (ii) I denied, last month, the application for leave and judicial review in Servanak v. Canada (Minister of Citizenship and Immigration), Imm-4574-10. Both those cases involved allegations of bias that are similar to the allegations being made in this proceeding.
[52] In dismissing the Applicants’ Motion for recusal, Crampton, J. held at para. 21 that: “[t]here is a big difference between being biased and exercising, even consistently, one’s judicial responsibilities based on one’s interpretation of the law.”
[53] Further on in Cervenakova, Crampton, J. held, at para. 23 that:
In Wewaykum Indian Band v. Canada, [2003] 2 S.C.R. 259 at para. 76, the Supreme Court confirmed the high test to be met when alleging bias, when it observed that ‘the standard refers to an apprehension of bias that rests on serious grounds, in light of the strong presumption of judicial impartiality.’ The Court proceeded to approvingly “Justice de Grandpré’s observation, in Committee for Justice and Liberty, above at 394, that ‘[t]he 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’.
[54] In terms of the Moving Party’s implied submission that I might rule against it in its current proceedings as a result of my limited past dealings with a party related to it as set out above, the comments made by Crampton, J. (at paras. 27 and 28) of Cervenakova are especially apposite:
I acknowledge that a reasonable and informed person might conclude that it is more likely than not that an adjudicator who is faced with a case that is highly similar to a case recently considered by the same adjudicator would approach the issues in the two cases in similar fashion. In absence of any facts, evidence or new arguments that might provide a basis for distinguishing two cases, such a person might also reasonably believe that it is more likely than not that the adjudicator would make determinations in the second case that are similar to those made in the first case. However, believing that it is more likely than not that an adjudicator will approach similar issues in a consistent manner is a far cry from apprehending, on substantial grounds, that the adjudicator is or may be biased. [Underlining Added]
[55] Cited by Crampton, J. in Cervenakova were the principles set out by Hallett, J.A. in Jones Power. Crampton, J. distinguished that case, and the principles arising from it, on the basis that Hallett, J.A. had found, as a fact, that the judge in the Court below “had prematurely made up his mind on a serious issue.” I have not done that in these proceedings and it has not been established by the Moving Party that the hypothetical reasonable person, being fully and properly informed and applying the proper objective test, would be likely to so find.
[56] In terms of the sworn duty and expected ability devolving to any decision-maker to carry out the proper and expected judicial function, reference is also made to paras. 31-34 of Crampton, J.’s decision in Cervenakova:
The Applicants also relied upon two other cases in which an allegation of bias against a judge was dismissed. In Arsenault – Cameron v. Prince Edward Island, [1999] 3 S.C.R. 851, at para. 5, Justice Bastarache observed that ‘partiality is ‘a state of mind or attitude ... in relation to the issues and the parties in a particular case’, a real disposition to a particular result. The Applicant would have to show wrongful or inappropriate declarations showing a state of mind that sways judgment in order to succeed’ (emphasis added). He proceeded to find that there was no evidence adduced to demonstrate that his beliefs or opinions expressed when he was counsel, a law professor or otherwise would prevent him from coming to a decision in the case before him, on the basis of the evidence. In my view, those comments and findings are applicable to the case at bar, particularly given that the only basis upon which the Applicants based their apprehension of bias is that I did not accept similar arguments made in other cases.
This brings me to the final case relied upon by the Applicants in respect of this issue. In Ahani v. Canada (Minister of Citizenship and Immigration) (2000), 7 Imm. L.R. (3d) 1 at para. 7 (F.C.A.), the Court quoted approvingly the following passage from Arthur v. Canada, [193] 1 F.C. 94 at 105:
The most accurate statement of the law would thus appear to be that the mere fact of a second hearing before the same adjudicator, without more, does not give rise to a reasonable apprehension of bias, but that the presence of other factors indicating a predisposition by the adjudicator as to the issue to be decided on the second hearing may do so.
The Applicants suggest that in this case, there are such ‘other factors.’ I disagree. The mere fact that I made adverse determination in respect of a similar issue, in two different prior cases, based on the facts, the evidence adduced and the arguments made in those cases, is not a sufficient basis upon which to conclude that such ‘other factors’ exist. To reiterate, the mere fact that I rejected similar arguments in two previous cases involving different applicants is not a sufficient basis upon which to conclude that an informed person, viewing the matter realistically and practically, and having thought the matter through, would apprehend that I am biased in relation to the issue that the Applicants in this case have raised in respect of bias by the Board.
To establish the existence of ‘substantial grounds’ for a reasonable apprehension of bias, one must go further and demonstrate that a judge ‘has been influenced by some extraneous or improper considerations.’ (Geza, above, at para. 57), has made ‘inappropriate declarations showing a state of mind that sways judgement in order to succeed.’ (Arsenault – Cameron, above), has prejudged one or more important issues.
[57] In the more than 3,500 cases I have heard as an Adjudicator (and later Chief Adjudicator) of this Court, presiding as such for more than two decades, there have been many allegations and counter-allegations made by the parties who have appeared before me. Many of them I have accepted. Many others I have rejected. Some of the parties who/which have appeared before me have been pleased with my rulings. Others have been bitterly disappointed by them. Such is the nature of the adjudicative function. And if past decisions or actions were to be held against every adjudicative or judicial decision-maker in an attempt to establish the apprehension of bias, the whole process of civil justice would fail and access to justice, as we know and understand that broad concept, would effectively be denied.
CONCLUSION:
[58] In arriving at these conclusions, I have not ignored the recent Decision of the Supreme Court of the United Kingdom (per: Lord Reid) in Healthcare at Home Limited v. The Common Services Agency, 2014 UKSC 49; nor have I ignored the just-released Decision of the Supreme Court of Nova Scotia (per: Coady, J.) in Trinity Western University v. Nova Scotia Barristers’ Society, 2014 NSSC 331.
[59] In the latter Decision, Coady, J. wisely and accurately exhorts (at Paragraph 12) that: "[t]he impression of impartiality is as important as impartiality." In the former decision, Lord Reed redefined, or at least gave clarity, to the concept of the “reasonable man” and help (at Paragraph 3) that:
It follows from the nature of the reasonable man, as a means of describing a standard applied by the court, that it would misconceived for a party to seek to lead evidence from actual passengers on the Clapham omnibus as to how they would have acted in a given situation or what they would have foreseen, in order to establish how the reasonable man would have acted or what he would have foreseen. Even if the party offered to prove that his witnesses were reasonable men, the evidence would be beside the point. The behaviour of the reasonable man is not established by the evidence of witnesses, but by the application of a legal standard by the court. The court may require to be informed by evidence of circumstances which bear on its application of the standard of the reasonable man in any particular case; but it is then for the court to determine the outcome, in those circumstances, of applying that impersonal standard.
[60] The Moving Party’s argued reticence to my involvement in the current proceedings has been highlighted above and is well-understood. But that factor, alone, cannot permit the party affected by the related judicial or adjudicative proceedings to effectively dictate the tribunal or officer before whom those proceedings will unfold or the tribunal or officer before whom the same proceedings will not unfold. Were it to be otherwise, all of those coming before the courts could potentially raise their subjective concerns over decision-maker bias and, through those means, just as effectively select those adjudicators (perhaps even the adjudicator) before whom they are prepared to appear. The spectre would amount to the very antithesis of the strong presumption, referred to above, of open and transparent access to impartial civil justice.
[61] Well understood is the position taken by many adjudicative and judicial decision-makers that in such circumstances, they will simply stand aside in favour of a colleague who is or may be more palatable to the party seeking the recusal then in issue. As easy and inviting as such a prospect might be, it does not accord with the view that adjudicative and judicial decisions ought to be principled and supported with clearly-articulated reasons.
[62] Having found that the Moving Party has fallen short of the objective establishment of a real apprehension of bias against it on my part, its Recusal Motion is dismissed. Subject to any appeal, or stay pending appeal, the matter will proceed subject to scheduling.
DATED at Halifax, Nova Scotia, this 22th day of September, 2014.
_____________________________
Gavin Giles, Q.C., Chief Adjudicator,
Small Claims Court of Nova Scotia
Solicitors:
For the Applicant:
Power, Dempsey, Leefe & Reddy
For the Respondent:
Well, Lamey, Mailman & Bryson