Claim No. SCCH 227443
IN THE SMALL CLAIMS COURT OF NOVA SCOTIA
Cite as: Battiste v. Chapel Island First Nation, 2005 NSSM 14
BETWEEN:
RUSSELL CHARLES JAMES BATTISTE
Claimant
‑ and –
THE CHAPEL ISLAND BAND
Defendant
ADJUDICATOR of the SMALL CLAIMS COURT
David. T. R. Parker
Date of Decision: April 25, 2005
Fundamental questions regarding the Small Claims Court: Can the court provide a Fair Hearing and what is required of the Court in proving same: Can there be Judicial independence within the Small Claims Court model and can there be Judicial Independence: concerns that arise over Judicial Bias within the Small Claims Court model
Counsel: The Claimant, Russell Charles James Battiste, is self‑represented
Counsel, Sheldon Nathanson, for the Defendant
DECISION
1. This matter is currently before the Small Claims Court and is scheduled to be heard at eleven in the forenoon in Port Hawkesbury, Nova Scotia.
2. The Claimant, Russell Charles James Battiste, has commenced an action against the Chapel Island Band. The pleadings of the Claimant state:
"The reason for this claim is the gaming revenue which the Band collects from the VLTs, is not being given to me and my children as being Band members, according to the Gaming Agreement signed with the Province of Nova Scotia on January 1, 1998."
3. The Defendant in a Statement of Defence denies that individual members of the Defendant Band are entitled to gaming revenues and that the Claimant and his children are not entitled to gaming revenues, pursuant to the agreement between Her Majesty the Queen in right of the Province of Nova Scotia.
4. Prior to the scheduled hearing, it was brought to my attention by the Clerk of the Small Claims Court that the Claimant was concerned about a conflict of interest and that the Claimant wished to bring a motion forward prior to the hearing to determine whether an Adjudicator could hear the action because of a conflict.
5. I therefore invited both parties to provide briefs on their positions and that I would consider the matter and make a ruling if possible prior to the Hearing. Both parties presented written briefs and I wish to thank them, as I can now provide some written comments.
6. The brief or correspondence I received from the Claimant seems to focus on whether an Adjudicator of the Small Claims Court of Nova Scotia can "remain objective and impartial". There is a concern "that the Adjudicator's judgment may be affected by the presence of such a high profile politician and highest ranking official within the Justice Department". Apparently the Defendant has decided to call the Minister of Justice as a witness.
7. The Defendant's Counsel frames the question or concern somewhat differently in that the Claimant's concern is that a Small Claims Court Adjudicator is appointed by the Department of Justice, the head of which is the Minister of Justice.
8. I see these articulated concerns as two different issues. Can the parties have a fair hearing and an impartial adjudicator? These two concerns should be the concerns of all parties in any judicial proceeding and I shall deal with them both.
9. Fair Hearing
The Small Claims court is a statutory court and as such it derives its powers from the Statue, in this case the Small Claims Court Act. Section 2 of the Act requires that matters be dealt with in accordance with the principles of natural justice. Natural Justice, if one was to break it all down to a final comment, means fair play. That is, all parties should receive equal opportunity to present their case provided it accords with basic principles of law. For example, if a Claimant is not clear in his/her pleadings but it only becomes clear during the hearing, then the Defendant should be given the opportunity to defend him/herself against that claim which only during trial takes on a clear and identifiable framework.
10. A more particularized example of this would be if a Claimant pleaded fraudulent misrepresentation, however, during the hearing, alleged instead negligent misrepresentation, then the Defendant should be given the opportunity to respond to negligent misrepresentation rather than just fraudulent misrepresentation for which the Defendant had prepared to defend prior to trial. Another example would be that a party should be able to rebut new and unexpected claims that are brought against that person. Fair play is procedural in its nature. It is essential that all sides in a court action be allowed to fully present their position within the framework of the statute and within the framework of the principles of law. In terms of framework of the statute, this Court cannot deal with certain jurisdictional matters set out in Section 10. Therefore, not allowing a person to proceed because of a lack of jurisdiction does not abrogate from the principle of Natural Justice. Nor should a party expect to have matters proceed in a fashion that ignores the long established principles of law. For example, if a party to an action brings in an affidavit of an individual purporting certain facts to be taken as truthful and the other side wishes to challenge the deponent's affidavit, then that affidavit should be given little or no weight in those circumstances.
11. It is my view that the function of the Court as provided through the statute allows for a fair hearing.
12. The more difficult issue that the Claimant wishes addressed is impartial adjudication.
13. There are several aspects of this, which come to mind; however, from a legal perspective there are two main considerations, which I shall address and these are judicial independence and judicial bias.
14. Judicial Independence
With respect to judicial independence, adjudicators enjoy limited security of tenure and some limited degree of financial security. All adjudicators' terms of appointment are fixed as is their remuneration by Orders‑in‑Council. Neither is based on the whims of a member of the government. This is similar to other judicial appointments except that the term of office, although renewable, is not as secure as other judicial appointments. In terms of remuneration, it could exceed other judicial appointments depending on the workload of adjudicators as they are paid on an hourly basis. I believe, on those grounds, an argument is made that there is judicial independence. The link between the appointment of an adjudicator and the Minister of Justice is, in my view, remote in terms of who actually appoints an adjudicator. From an internal perspective, the hiring process involves a number of employees of the Department of Justice as well as people selected outside the Department, who interview prospective adjudicators and make recommendations based on their assessment of that person's degree of qualification. Certainly, to the best of my knowledge, the Minister or Deputy Minister or any cabinet member is not involved in the recommendation process.
15. If there were any perceived notion of an absence of judicial independence it would be in terms of the adjudicator also practicing as a lawyer and having lawyers who that adjudicator works with on a daily basis appear before that adjudicator. Here it would be incumbent upon the adjudicator to refrain from hearing a matter. A possible solution to that would be full‑time appointments, or adjudicators who are not practicing law, with lawyers, in the area where court is held.
16. Judicial Bias
It would appear from the brief put forward by the Claimant that judicial bias is the basis of his concern. In dealing with the notion of judicial bias I refer to the case of Mitsui & Co. (Point Aconi) Ltd. v. Jones Power [2001] N.S.J. No. 271(NSCA), a decision of Justice Hollett who quotes extensively of Justice Cory of the Supreme Court of Canada in R v. S (R.D.), [1997] 3 S.C.R. 484, another Nova Scotia case and I shall refer to the following paragraphs from the Mitsui case.
The Law of Bias and the Appearance of Bias:
¶ 30 In R. v. S.(R.D.), [1997] 3 S.C.R. 484, Cory, J. wrote authoritatively under the heading "Ascertaining the existence of a reasonable apprehension of bias". In S.(R.D.), the sole issue before the Supreme Court of Canada was whether a trial judge's reasons for her decision demonstrated actual or perceived bias. At p. 523 Cory, J. stated:
[91] A system of justice, if it is to have the respect and confidence of its society, must ensure that trials are fair and that they appear to be fair to the informed and reasonable observer. This is a fundamental goal of the justice system in any free and democratic society.
...
[94] Trial judges in Canada exercise wide powers. They enjoy judicial independence, security of tenure and financial security. Most importantly, they enjoy the respect of the vast majority of Canadians. That respect has been earned by their ability to conduct trials fairly and impartially. These qualities are of fundamental importance to our society and to members of the judiciary. Fairness and impartiality must be both subjectively present and objectively demonstrated to the informed and reasonable observer. If the words or actions of the presiding judge give rise to a reasonable apprehension of bias to the informed and reasonable observer, this will render the trial unfair.
¶ 31 He stated further at para. 99:
[99] If actual or apprehended bias arises from a judge's words or conduct, then the judge has exceeded his or her jurisdiction. See Curragh, [1997] 1 S.C.R. 537, supra, at para. 5; Gushman, [1994] O.J. No. 813, supra, at para. 28. This excess of jurisdiction can be remedied by an application to the presiding judge for disqualification if the proceedings are still underway, or by appellate review of the judge's decision. In the context of appellate review, it has recently been held that a "properly drawn conclusion that there is a reasonable apprehension of bias will ordinarily lead inexorably to the decision that a new trial must be held": Curragh, supra, at para. 5.
¶ 32 Justice Cory posed the question: What is bias? and he answered it as follows:
[103] It may be helpful to begin by articulating what is meant by impartiality. In deciding whether bias arises in a particular case, it is relatively rare for courts to explore the definition of bias. In this appeal, however, this task is essential, if the Crown's allegation against Judge Sparks is to be properly understood and addressed. See Prof. Richard F. Devlin, "We Can't Go On Together with Suspicious Minds: Judicial Bias and Racialized Perspective in R. v. R.D.S." (1995), 18 Dalhousie L.J. 408, at pp. 438‑39.
[104] In Valente v. The Queen, [1985] 2 S.C.R. 673, at p. 685, Le Dain J. held that the concept of impartiality describes "a state of mind or attitude of the tribunal in relation to the issues and the parties in a particular case". He added that "[t]he word 'impartial' . . . connotes absence of bias, actual or perceived". See also R. v. Généreux, [1992] 1 S.C.R. 259, at p. 283. In a more positive sense, impartiality can be described ‑‑ perhaps somewhat inexactly ‑‑ as a state of mind in which the adjudicator is disinterested in the outcome, and is open to persuasion by the evidence and submissions.
[105] In contrast, bias denotes a state of mind that is in some way predisposed to a particular result, or that is closed with regard to particular issues. ...
[106] A similar statement of these principles is found in R. v. Bertram, [1989] O.J. No. 2123 (H.C.), in which Watt J. noted at pp. 51‑52:
In common usage bias describes a leaning, inclination, bent or predisposition towards one side or another or a particular result. In its application to legal proceedings, it represents a predisposition to decide an issue or cause in a certain way which does not leave the judicial mind perfectly open to conviction. Bias is a condition or state of mind which sways judgment and renders a judicial officer unable to exercise his or her functions impartially in a particular case.
¶ 33 I find Justice Watts' statement in R. v. Bertram, particularly relevant to the issue before us.
¶ 34 Justice Cory then went on to deal with the test for finding a reasonable apprehension of bias. He stated at para. 109:
[109] When it is alleged that a decision‑maker is not impartial, the test that must be applied is whether the particular conduct gives rise to a reasonable apprehension of bias. Idziak, [1992] 3 S.C.R. 631, supra, at p. 660. It has long been held that actual bias need not be established. This is so because it is usually impossible to determine whether the decision‑maker approached the matter with a truly biased state of mind. See Newfoundland Telephone, [1992] 1 S.C.R. 623, supra, at p. 636.
¶ 35 He then dealt with the manner in which the test should be applied. He stated, commencing at para. 111:
[111] The manner in which the test for bias should be applied was set out with great clarity by de Grandpré J. in his dissenting reasons in Committee for Justice and Liberty v. National Energy Board, [1978] 1 S.C.R. 369, at p. 394:
[T]he 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. . . ."
This 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. See Bertram, supra, at pp. 54‑55; Gushman, supra, at para. 31. 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 the judges swear to uphold": R. v. Elrick, [1983] O.J. No. 515 (H.C.), at para. 14. See also Stark, [1994] O.J. No. 406, supra, at para. 74; R. v. Lin, [1995] B.C.J. No. 982 (S.C.), at para. 34. To that I would add that the reasonable person should also be taken to be aware of the social reality that forms the background to a particular case, such as societal awareness and acknowledgement of the prevalence of racism or gender bias in a particular community.
[112] The appellant submitted that the test requires a demonstration of "real likelihood" of bias, in the sense that bias is probable, rather than a "mere suspicion". This submission appears to be unnecessary in light of the sound observations of de Grandpré J. in Committee for Justice and Liberty, supra, at pp. 394‑95:
I can see no real difference between the expressions found in the decided cases, be they 'reasonable apprehension of bias', 'reasonable suspicion of bias', or 'real likelihood of bias'. The grounds for this apprehension must, however, be substantial and I entirely agree with the Federal Court of Appeal which refused to accept the suggestion that the test be related to the "very sensitive or scrupulous conscience". [Emphasis added.]
Nonetheless the English and Canadian case law 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. See R. v. Camborne Justices, Ex parte Pearce, [1954] 2 All E.R. 850 (Q.B.D.); Metropolitan Properties Co. v. Lannon, [1969] 1 Q.B. 577 (C.A.); R. v. Gough, [1993] 2 W.L.R. 883 (H.L.); Bertram, supra, at p. 53; Stark, supra, at para. 74; Gushman, supra, at para. 30.
[113] 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. It is a finding that must be carefully considered since it calls into question an element of judicial integrity. Indeed an allegation of reasonable apprehension of bias calls into question not simply the personal integrity of the judge, but the integrity of the entire administration of justice. See Stark, supra, at paras. 19‑20. Where reasonable grounds to make such an allegation arise, counsel must be free to fearlessly raise such allegations. Yet, this is a serious step that should not be undertaken lightly.
[114] The onus of demonstrating bias lies with the person who is alleging its existence: Bertram, supra, at p. 28; Lin, supra, at para. 30. Further, whether a reasonable apprehension of bias arises will depend entirely on the facts of the case.
¶ 36 Justice Cory concluded his review of the law on the appearance of bias with comments on judicial integrity and the importance of judicial impartiality. He stated at p. 533:
[117] Courts have rightly recognized that there is a presumption that judges will carry out their oath of office. See R. v. Smith & Whiteway Fisheries Ltd. (1994), 133 N.S.R. (2d) 50 (C.A.), and Lin, supra. This is one of the reasons why the threshold for a successful allegation of perceived judicial bias is high. However, despite this high threshold, the presumption can be displaced with "cogent evidence" that demonstrates that something the judge has done gives rise to a reasonable apprehension of bias. See Smith & Whiteway, supra, at para. 64; Lin, supra, at para. 37. The presumption of judicial integrity can never relieve a judge from the sworn duty to be impartial.
[118] It is right and proper that judges be held to the highest standards of impartiality since they will have to determine the most fundamentally important rights of the parties appearing before them. This is true whether the legal dispute arises between citizen and citizen or between the citizen and the state. Every comment that a judge makes from the bench is weighed and evaluated by the community as well as the parties. Judges must be conscious of this constant weighing and make every effort to achieve neutrality and fairness in carrying out their duties. This must be a cardinal rule of judicial conduct.
¶ 37 It is apparent from a review of the four opinions written by the judges of the Supreme Court of Canada in R. v. S. (R.D.) that the lead judgment on the nature of bias and the test to be applied in making a determination respecting the appearance of bias is that of Cory, J. He wrote for himself and Iacobucci, J.
¶ 38 Major, J., writing for himself, Lamer, C.J. and Sopinka, J. in dissent, stated at para. 23:
[23] I agree with the approach taken by Cory J. with respect to the nature of bias and the test to be used to determine if the words or actions of a judge give rise to apprehension of bias. However, I come to a different conclusion in the application of the test to the words of the trial judge in this case. It follows that I disagree with the approach to reasonable apprehension of bias put forward by Justices L'Heureux‑Dubé and McLachlin
¶ 39 In short, four other members of the Court agreed with Cory, J.'s comments as to the nature of bias and the test he enunciated. It is for that reason that I have quoted extensively from the reasons of Cory, J. rather than those of McLachlin and L'Heureux‑Dubé, JJ. Justice Cory's decision represents the views of the majority of the Court.
¶ 40 In J.B.B. and C.B.B. v. J.A.B. et al. (1992), 113 N.S.R. (2d) 60 (C.A.), Chief Justice Clarke dealt with the issue of perception of bias. The head note summarizes the facts as follows:
There was a custody battle between the natural mother and her companion, the natural father and the persons with whom the children had been left. Before crucial evidence was heard, the Family Court judge, in Chambers, advised counsel that in his opinion custody should go to the mother and continuation of the trial was a waste of time. Counsel for the persons with de facto care for the children requested that the judge disqualify himself on the ground of bias. The judge refused and awarded custody to the mother. The persons with care of the children appealed.
¶ 41 The appellants contended that the actions of the trial judge created an appearance of bias. They alleged that the trial judge appeared to have decided the case before he heard all of the evidence. To the appellants the trial judge's comments gave the appearance of a closed mind. Chief Justice Clarke agreed with these submissions.
¶ 42 After referring to the test enunciated by de Grandpré, J. in Committee for Justice and Liberty Foundation et al. v. National Energy Board (1976), 9 N.R. 115; 68 D.L.R. (3d) 716 Chief Justice Clarke concluded as follows:
[20] The test is objective: what a reasonable person would think in the circumstances. Here it would be that the judge had made his decision before all the evidence from all the parties was heard. Conversations between the presiding judge and counsel in the judge's chambers during the course of a trial relating to the issues at trial are neither protected by immunity nor exempt from the proper application of law.
¶ 43 In short, he decided that there was an appearance of bias as the judge appeared to have made his decision before all of the evidence from all the parties had been heard.
17. Some people are of the view that judges should wear a blindfold and at the end of the day weigh the facts on the scales of justice and that will determine the outcome of the case. This is much too simplistic a view. Justices do not wear blindfolds. Literally and figuratively they should be aware of the society in which they live. The law is constantly changing and requires tending and constant attention. If these principles are adhered to and the basic principles and rules of law are applied, then at the end of the day an "informed and reasonable person" would come to the same conclusion. The answer to the concerns first posed by the Claimant is Yes, an adjudicator of the Small Claims Court can be impartial because a higher court on an appeal can be an informed and reasonable observer as to whether the "words or actions of the presiding judge" or adjudicator give rise to a reasonable apprehension of bias.
18. These comments are intended to answer the question put forward by the Claimant.
19. However, if there is a motion, specifically requesting this adjudicator to make a decision and order that I cannot hear this case because of a conflict of interest or impartiality, I cannot make any such Order in any event, as I do not have the statutory authority to do so. Whatever powers I have or do not have are contained within the four corners of the Small Claims Court Act.
20. So my decision would be that I do not have the jurisdictional authority to grant any such motion through a formal order and any such motion is denied.
David T.R. Parker
Small Claims Court Adjudicator