James W. Harbell

The respondents, the City of Toronto and the Toronto Transit Commission, brought a motion for the recusal of Justice Matlow and to strike the panel that had previously granted an application for judicial review.

The moving parties argued that Justice Matlow's prior involvement in contentious issues with the City created a reasonable apprehension of bias.

Justices Greer and E. Macdonald, the other members of the panel, were unaware of the extent of Justice Matlow's involvement prior to the motion.

They concluded that an objective third party would find a reasonable apprehension of bias.

Consequently, they decided to stand down, strike the panel, and declare their previous decision null and void to ensure the matter did not proceed in breach of natural justice.

The respondents, the City of Toronto and the Toronto Transit Commission, brought a motion requesting that Justice Matlow recuse himself from a judicial review panel due to a reasonable apprehension of bias arising from his prior advocacy against a City development project.

Justice Matlow, deciding the recusal issue alone, dismissed the motion, finding no reasonable apprehension of bias and that the respondents had waived their right to object by delaying.

However, the other two panel members, Justices Greer and E. Macdonald, concluded that a reasonable apprehension of bias did exist.

Because they could not order Justice Matlow to recuse himself, they stepped down from the panel to prevent a breach of natural justice, resulting in the panel being struck and the application ordered to be heard de novo.

The applicant sought judicial review of the City of Toronto's decision to proceed with the construction of a dedicated streetcar right-of-way on St. Clair Avenue West, arguing it contravened the Planning Act and the Environmental Assessment Act.

The Divisional Court released a short endorsement granting the application and setting aside the City's decision to proceed with the project, with formal reasons to follow.

The court noted the urgency of the matter to avoid wasted construction costs.