Benedict v. Her Majesty the Queen in Right of Ontario [Indexed as: Benedict v. Ontario]
51 O.R. (3d) 147
[2000] O.J. No. 3760
Docket Nos. C33628 and C33629
Court of Appeal for Ontario
Finlayson, Doherty and Borins JJ.A.
October 13, 2000
Courts -- Judges -- Bias -- Reasonable apprehension of bias -- Motion to disqualify judge on grounds of reasonable apprehension of bias -- Judge being party in ongoing litigation over claim similar to employment-related claim being advanced in case before her -- Judge having interest in outcome of motion that disqualified her from hearing motion -- Disqualifying interest broader than pecuniary or proprietary interest -- Sufficient for disqualification that judge have some relevant interest in matter -- Motion for disqualification granted.
The provincial Crown was the respondent in an application brought by JB for severance or pay in lieu of reasonable notice and for a declaration of his rights under the Public Service Act, R.S.O. 1990, c. P.47 and the Public Service Pension Plan Act, R.S.O. 1990, c. P.48. The Crown moved for an order staying JB's application on the ground that he ought to file a grievance before the Public Service Grievance Board. Molloy J. dismissed the Crown's motion. The Crown then submitted that Molloy J. should withdraw her decision on the ground that she was disqualified from hearing the motion because prior to her appointment to the bench she was a plaintiff in an outstanding action against the Crown arising from her employment as a lawyer for the Ontario Human Rights Commission. Molloy J. refused to withdraw the decision, reasoning that the issues on the Crown's motion did not overlap with any issues in her own litigation and that the real defendant in her own litigation was not the Cro wn, which is a huge organization, but the Ontario Human Rights Commission. The Crown appealed.
Held, the appeal should be allowed.
A judge must be free of any interest that might improperly affect the determination of the case, or might reasonably be perceived to do so. When the impartiality of a judge is in question, the appearance of bias is just as important as the reality. Although the judge may, with justification, believe that he or she is unbiased, if the appearance of bias is present, he or she should withdraw from the case. If there is a reasonable apprehension of bias, a decision cannot stand, and in this case there was a reasonable apprehension of bias. Molloy J. ought not to have heard the motion because she was engaged in ongoing litigation over a claim that was similar to the employment-related claim being advanced in the case before her. It is well established that the Crown is indivisible, and she was hearing a motion brought by a party against whom she was actively asserting the same type of employment-related claim. Any decision she reached which was unfavourable to the Crown could be perceived as advancing or vindicating her own claim. In these circumstances, she had an interest in the outcome of the motion that disqualified her from hearing the motion. A disqualifying interest is broader than a pecuniary or proprietary interest, and it is sufficient for disqualification that the judge have some relevant interest in the matter.
APPEAL from a refusal to withdraw a decision on the grounds that there was a reasonable apprehension of bias.
Cases referred to Committee for Justice and Liberty v. Canada (National Energy Board), 1976 2 (SCC), [1978] 1 S.C.R. 369, 68 D.L.R. (3d) 716, 9 N.R. 115; Dimes v. Grand Junction Canal Proprietors (1852), 3 H.L. Cas. 759, 8 State Tr. N.S. 85, 19 L.T.O.S. 317, 17 Jur. 73, 10 E.R. 301; Great Atlantic & Pacific Co. of Canada Ltd. v. Ontario (Human Rights Commission) (1993), 1993 8616 (ON SC), 13 O.R. (3d) 824, 109 D.L.R. (4th) 214, 93 C.L.L.C. 17,017 (Div. Ct.); Metropolitan Properties Co. (FGC) Ltd. v. Lannon, [1968] 3 All E.R. 304, [1969] 1 Q.B. 577, [1968] 3 W.L.R. 694, 19 P. & C.R. 856, 112 Sol. Jo. 585, [1968] R.V.R. 490 (C.A.) (sub nom. R. v. London Rent Assessment Panel Committee, Ex p. Metropolitan Properties Co. (FGC) Ltd.); Newfoundland Telephone Co. v. Newfoundland (Board of Commissioners of Public Utilities), 1992 84 (SCC), [1992] 1 S.C.R. 623, 95 Nfld. & P.E.I.R. 271, 89 D.L.R. (4th) 289, 134 N.R. 241, 301 A.P.R. 271; R. v. Bow Street Metropolitan Stipendiary Magistrate, ex p. Pinochet Ugarte (No. 2), [1999] 1 All E.R. 577 (H.L.); R. v. S. (R.D.), 1997 324 (SCC), [1997] 3 S.C.R. 484, 161 N.S.R. (2d) 241, 151 D.L.R. (4th) 193, 218 N.R. 1, 477 A.P.R. 241, 118 C.C.C. (3d) 353, 10 C.R. (5th) 1 Statutes referred to Public Service Act, R.S.O. 1990, c. P.47 Public Service Pension Plan Act, R.S.O. 1990, c. P.48 Authorities referred to Canadian Judicial Council, Ethical Principles for Judges (1998), pp. 27, 42
Kenneth P. Swan, for respondent. Dennis W. Brown, Q.C., Malliha Wilson and Ben Ratelband, for appellant.
1BY THE COURT: -- This proceeding is brought by James Benedict by notice of application against Her Majesty the Queen in Right of Ontario (the "Crown"), by whom he had been employed for 28 years, for "severance or pay in lieu of reasonable notice" and benefits, as well as a declaration of his rights under certain legislation, including the Public Service Act, R.S.O. 1990, c. P.47 and the Public Service Pension Plan Act, R.S.O. 1990, c. P.48, arising from the cessation of his employment.
Background
2The Crown moved for an order staying Mr. Benedict's application on the ground that because he had a right to file a grievance before the Public Service Grievance Board (the "Board"), the court should defer to the jurisdiction of the Board. The motion came on for hearing before Molloy J. On the day after the hearing, she released a lengthy written endorsement containing her reasons for the conclusion that the court, and not the Board, had the jurisdiction to determine Mr. Benedict's claims.
3On the day on which the endorsement was released, the lawyer who argued the Crown's motion learned that the motions judge is the plaintiff in an action against the Crown, arising from her employment as a lawyer by the Ontario Human Rights Commission before her appointment to the bench, in which she is seeking damages for wrongful dismissal plus the value of lost benefits. The action was ongoing when Molloy J. heard the government's motion to stay Mr. Benedict's application. She made no disclosure to the parties of her personal litigation. Upon learning of her personal litigation, the Crown moved before Molloy J. requesting that she withdraw her endorsement. It submitted that she was disqualified from hearing its motion. The Crown claimed that as a result of her claim against it, she could not have given the motion an unbiased hearing. On that account Molloy J., the Crown said, should not have sat on its motion to stay Mr. Benedict's claim. Molloy J. did not agree. She dismissed the Crown's motion.
The Appeal
4The Crown has appealed both decisions. In its first appeal, it submits that Molloy J.'s decision refusing to stay Mr. Benedict's claim was wrong in point of law. In its second appeal, it submits that this decision should be set aside on the ground that the circumstances surrounding the hearing of the motion to stay by Molloy J. gave rise to a reasonable apprehension of bias on her part. We heard the second appeal first and agreed with the Crown's submission and set aside the decision refusing to stay claim, making it unnecessary to hear the first appeal. We stated that our reasons would be delivered later. Our reasons now follow.
Reasons of the Motions Judge
5Before reviewing the test that applies in determining whether the result of a trial, or an interlocutory motion, should be set aside on the ground that there existed a reasonable apprehension of bias on the part of the presiding judicial officer, it is necessary to review the reasons given by Molloy J. for her refusal to withdraw her decision on the Crown's motion to stay. Before doing so, it cannot be made too clear that the Crown expressly disclaims actual bias in the motions judge.
6From Molloy J.'s reasons, it is clear that when the motion was assigned to her for hearing, she was alert to whether it was appropriate that she hear the motion in view of her outstanding wrongful dismissal claim against the Crown. She said: "I certainly looked at it carefully to see if there was any possibility of an overlap between my own litigation and the issues raised in this motion." (Emphasis added) She checked the pleadings in her litigation and spoke to her counsel to find out if the Crown had raised the issue of whether the Board or the court was the proper forum in which her claim was to be litigated. She learned that the issue had not been raised. She concluded that as "[t]he sole issue before me was the legal question as to whether Mr. Benedict was entitled to proceed in this court," it was not improper for her to hear the motion.
7The motions judge continued:
Likewise, there was no issue before me, and therefore I did not deal with anything relating to the conduct of the Crown, much less the conduct of the Crown agency that was involved in my own litigation, which was the Ontario Human Rights Commission.
Therefore, I cannot see any connection between the issue that I decided and any issue that I could have been aware of as being involved in my own litigation. If that issue (failure to pursue grievance procedures) had been raised prior to my hearing the motion, I do believe it could have given rise to a reasonable apprehension of bias. I say that quite apart from any consideration of what the merits would be if such a motion were brought in my action. I think it is improper for me to give any consideration to that. But if that issue had ever been raised over the ten years or so since these incidents occurred, then that would be a different matter. But it simply did not. This is completely new to me.
Therefore, I do not know how the reasonable person looking at this situation could possibly think there would be a bias arising from something that person could not possibly have known about.
8Molloy J. then distinguished the circumstances surrounding the motion she had been assigned to hear from the circumstances which led the Supreme Court of Canada in Committee for Justice and Liberty v. Canada (National Energy Board), 1976 2 (SCC), [1978] 1 S.C.R. 369, 68 D.L.R. (3d) 716 and the Divisional Court in Great Atlantic & Pacific Co. of Canada Ltd. v. Ontario (Human Rights Commission) (1993), 1993 8616 (ON SC), 13 O.R. (3d) 824, 109 D.L.R. (4th) 214, to find the existence of a reasonable apprehension of bias in those cases. She concluded her reasons as follows:
. . . So, in my view, what it really comes down to is in fact what the argument was before me ultimately, which is, is there a reasonable apprehension of bias from my hearing any case in which the provincial government in any of its emanations is a party. It seems to me that that simply goes too far. The government is such a huge organization. The real defendant in my own litigation is the Ontario Human Rights Commission. The Crown is named, as it has to be, but it has not in truth been the defendant in the proceeding. I certainly have, over the course of the number of years that I have been sitting, heard other cases involving the provincial Crown, none involving anything related to the issues in my litigation, but then as I see it, that is the situation with Mr. Benedict's motion. The issue I decided had nothing to do with anything that is raised in my own litigation. Therefore, I do not see any reason to rescind my decision. It stands.
9Thus, there were two reasons why the motions judge was of the opinion that it was unnecessary that she disqualify herself from hearing the Crown's motion to stay Mr. Benedict's application. There was nothing improper in her hearing any proceeding to which the Crown is a party because it "is such a huge organization" and, in any event, the "real defendant" in her litigation was the Ontario Human Rights Commission. As well, the issue raised in respect to the proper forum to decide Mr. Benedict's claims "had nothing to do with anything that is raised in [her] own litigation". However, she did not consider that the claims in her case against the Crown and those in Mr. Benedict's case against the Crown had the common feature of being employment related.
Reasonable Apprehension of Bias
10The test which applies in determining the existence of a reasonable apprehension of bias has been considered by the Supreme Court of Canada in a number of cases, among which Committee for Justice and Liberty v. Canada (National Energy Board) and R. v. S. (R.D.), 1997 324 (SCC), [1997] 3 S.C.R. 484, 151 D.L.R. (4th) 193 are prominent. As well, the test was considered recently by the House of Lords in R. v. Bow Street Metropolitan Stipendiary Magistrate, ex p. Pinochet Ugarte (No. 2), [1999] 1 All E.R. 577 (H.L.).
11In S. (R.D.), L'Heureux-Dubé and McLachlin JJ. described the test at p. 207 D.L.R. [p. 502 S.C.R.]:
The test for reasonable apprehension of bias is that set out by de Grandpré J. in Committee for Justice and Liberty v. Canada (National Energy Board), 1976 2 (SCC), [1978] 1 S.C.R. 369, 68 D.L.R. (3d) 716. 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 25 (SCC), [1985] 2 S.C.R. 673, 23 C.C.C. (3d) 193, 24 D.L.R. (4th) 161; R. v. Lippé, 1990 18 (SCC), [1991] 2 S.C.R. 114, 64 C.C.C. (3d) 513; Ruffo v. Conseil de la Magistrature, 1995 49 (SCC), [1995] 4 S.C.R. 267, 130 D.L.R. (4th) 1. 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 . . . [refuse] to accept the suggestion that the test be related to the "very sensitive or scrupulous conscience".
12At pp. 229-31 D.L.R. [pp. 531-32 S.C.R.], Cory J. elaborated on the test as follows:
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 (QL) (H.C.J.), at para. 14. See also Stark, supra, at para. 74; R. v. Lin, [1995] B.C.J. No. 982 (QL) (S.C.), at para. 34 [summarized 27 W.C.B. (2d) 199].
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 allegation. Yet, this is a serious step that should not be undertaken lightly.
13Pinochet is an exceptional case. It involved a petition to the House of Lords to set aside its earlier decision restoring an extradition warrant for the arrest of Senator Pinochet rendered by a majority, of which Lord Hoffmann was a member, on the ground that Lord Hoffmann's links with Amnesty International ("AI"), which had been granted leave to intervene in the appeal, gave the appearance of possible bias. This case is helpful not only for its discussion of the rationale for the principle that a decision rendered by a judge in circumstances which give rise to a reasonable apprehension of bias cannot stand, but also for its discussion of the nature of the interest which a judge has in the outcome of a case which he or she is assigned to hear which will result in the automatic disqualification of the judge. As in this case, it was alleged that there was an appearance of bias, but not actual bias, on the part of Lord Hoffmann.
14It is worthwhile, therefore, to refer extensively to the opinion of Lord Browne-Wilkinson, whose reasoning and conclusion were agreed to by the other Law Lords, each of whom delivered concurring opinions.
15At p. 586, Lord Browne-Wilkinson began his discussion of apparent bias by setting out the circumstances that will result in the automatic disqualification of a judge:
The fundamental principle is that a man may not be a judge in his own cause. This principle, as developed by the courts, has two very similar but not identical implications. First it may be applied literally: if a judge is in fact a party to the litigation or has a financial or proprietary interest in its outcome then he is indeed sitting as a judge in his own cause. In that case, the mere fact that he is a party to the action or has a financial or proprietary interest in its outcome is sufficient to cause his automatic disqualification. The second application of the principle is where a judge is not a party to the suit and does not have a financial interest in its outcome, but in some other way his conduct or behaviour may give rise to a suspicion that he is not impartial, for example because of his friendship with a party. This second type of case is not strictly speaking an application of the principle that a man must not be judge in his own cause, since the judge will not normally be himself benefiting, but providing a benefit for another by failing to be impartial.
In my judgment, this case falls within the first category of case, viz where the judge is disqualified because he is a judge in his own cause. In such a case, once it is shown that the judge is himself a party to the cause, or has a relevant interest in its subject matter, he is disqualified without any investigation into whether there was a likelihood or suspicion of bias. The mere fact of his interest is sufficient to disqualify him unless he has made sufficient disclosure: see Shetreet Judges on Trial (1976) p. 303 and De Smith, Woolf and Jowell Judicial Review of Administrative Action (5th edn, 1995) p. 525. I will call this "automatic disqualification".
(Emphasis added)
16He referred to Dimes v. Grand Junction Canal Proprietors (1852), 3 H.L. Cas. 759, 10 E.R. 301, in which authorities were cited that show how the principle was developed. Lord Cottenham, who owned a substantial shareholding in the defendant company which succeeded at trial, sat on appeal from the trial judgment, which he affirmed. Lord Browne-Wilkinson described what followed the hearing of the appeal at pp. 586-87:
. . . There was an appeal to your Lordships' House on the grounds that Lord Cottenham LC was disqualified. Their Lordships consulted the judges, who advised that Lord Cottenham LC was disqualified from sitting as a judge in the cause because he had an interest in the suit (see 3 HL Cas 759 at 786, 10 ER 301 at 312.) This advice was unanimously accepted by their Lordships. There was no inquiry by the court as to whether a reasonable man would consider Lord Cottenham LC to be biased and no inquiry as to the circumstances which led to Lord Cottenham LC sitting. Lord Campbell said (3 HL Cas 759 at 793, 10 ER 301 at 315):
No one can suppose that Lord Cottenham could be, in the remotest degree, influenced by the interest he had in this concern: but, my Lords, it is of the last importance that the maxim that no man is to be a judge in his own cause should be held sacred. And that is not to be confined to a cause in which he is a party, but applies to a cause in which he has an interest.
(Emphasis added)
He went on to explain at p. 587 that although in the beginning disqualification was required only in cases where the judge was an actual party, this "absolute prohibition was then extended to cases where, although not nominally a party, the judge had an interest in the outcome".
17Lord Browne-Wilkinson discussed the nature of the "interest" which a judge has in a proceeding that will lead to his or her automatic disqualification. He stated at p. 587: "Hitherto only pecuniary and proprietary interests have led to automatic disqualification." He continued at p. 588:
. . . My Lords, in my judgment, although the cases have all dealt with automatic disqualification on the grounds of pecuniary interest, there is no good reason in principle for so limiting automatic disqualification. The rationale of the whole rule is that a man cannot be a judge in his own cause. In civil litigation the matters in issue will normally have an economic impact; therefore a judge is automatically disqualified if he stands to make a financial gain as a consequence of his own decision of the case. But if, as in the present case, the matter at issue does not relate to money or economic advantage but is concerned with the promotion of the cause, the rationale disqualifying a judge applies just as much if the judge's decision will lead to the promotion of a cause in which the judge is involved together with one of the parties. Thus in my opinion if Lord Hoffmann had been a member of AI he would have been automatically disqualified because of his non-pecuniary interest in establishing that Senator Pinochet was not entitled to immunity.
If the absolute impartiality of the judiciary is to be maintained, there must be a rule which automatically disqualifies a judge who is involved, whether personally or as a director of a company, in promoting the same causes in the same organisation as is a party to the suit. There is no room for fine distinctions if Lord Hewart CJ's famous dictum is to be observed: it is "of fundamental importance that justice should not only be done, but should manifestly and undoubtedly be seen to be done" (see R. v. Sussex Justices, ex p. McCarthy [1924] 1 KB 256 at 259, [1923] All ER Rep 233 at 234).
Earlier, at p. 587, Lord Browne-Wilkinson observed that the area of apparent bias is one "in which legal technicality is particularly to be avoided".
18In the result, Lord Browne-Wilkinson was of the opinion that Lord Hoffmann's association with AI was such that he had a sufficient interest in the appeal to require his automatic disqualification. He found the critical facts to be that AI was a party to the appeal, that AI was joined as an intervener to the appeal in order to argue for a particular result, that the result was achieved and that Lord Hoffmann was the director of a charity closely allied to AI and sharing, in this respect, AI's objects.
19It is important, in our view, to emphasize, as Lord Nolan stated at p. 592, "that in any case where the impartiality of a judge is in question the appearance of the matter is just as important as the reality". Lord Hope also addressed this concern at p. 593:
As my noble and learned friend Lord Goff of Chieveley said in R. v. Gough [1993] 2 All ER 724 at 730, [1993] AC 646 at 661, the nature of the interest is such that public confidence in the administration of justice requires that the judge must withdraw from the case or, if he fails to disclose his interest and sits in judgment upon it, the decision cannot stand. It is no answer for the judge to say that he is in fact impartial and that he will abide by his judicial oath. The purpose of the disqualification is to preserve the administration of justice from any suspicion of impartiality. The disqualification does not follow automatically in the strict sense of that word, because the parties to the suit may waive the objection. But no further investigation is necessary and, if the interest is not disclosed, the consequence is inevitable. In practice the application of this rule is so well understood and so consistently observed that no case has arisen in the course of this century where a decisi on of any of the courts exercising a civil jurisdiction in any part of the United Kingdom has had to be set aside on the ground that there was a breach of it.
(Emphasis added)
20The importance of the appearance of impartiality was also emphasized by Lord Denning M.R. in Metropolitan Properties Co. (FGC) Ltd. v. Lannon, [1968] 3 All E.R. 304 at p. 310, [1969] 1 Q.B. 577 (C.A.):
. . . It brings home this point; in considering whether there was a real likelihood of bias, the court does not look at the mind of the justice himself or at the mind of the chairman of the tribunal, or whoever it may be, who sits in a judicial capacity. It does not look to see if there was a real likelihood that he would, or did, in fact favour one side at the expense of the other. The court looks at the impression which would be given to other people. Even if he was as impartial as could be, nevertheless, if right-minded persons would think that, in the circumstances, there was a real likelihood of bias on his part, then he should not sit. And if he does sit, his decision cannot stand: see R. v. Huggins; R. v. Sunderland Justices, per Vaughan Williams, L.J. Nevertheless, there must appear to be a real likelihood of bias. Surmise or conjecture is not enough: see R. v. Camborne Justices, Ex p. Pearce; R. v. Nailsworth Justices, Ex p. Bird. There must be circumstances from which a reasonable man would think it likely or probable that the justice, or chairman, as the case may be, would, or did, favour one side unfairly at the expense of the other. The court will not enquire whether he did, in fact, favour one side unfairly. Suffice it that reasonable people might think he did. The reason is plain enough. Justice must be rooted in confidence; and confidence is destroyed when right-minded people go away thinking: "The judge was biased."
We note that while Lord Denning M.R. spoke in terms of a "real likelihood" rather than a "reasonable apprehension", in National Energy Board, de Grandpré J. took care to state that such variations in the expression used should not generally be treated as involving any substantive difference in the approach to be taken. "Reasonable apprehension", "real likelihood", "reasonable likelihood" and "reasonable suspicion" amount to the same standard.
21This passage from the reasons of Lord Denning M.R. in Lannon was cited, with approval, by Major J. in S. (R.D.) at p. 203 D.L.R. [pp. 496-97 S.C.R.]. At p. 232 D.L.R. [p. 533 S.C.R.] Cory J. added:
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.
22In 1998 the Canadian Judicial Council published Ethical Principles for Judges to assist judges in carrying out their responsibilities. At p. 27, at the beginning of the chapter entitled "Impartiality", the following statement appears: "Judges must be and should appear to be impartial with respect to their decisions and decision making." In the commentary on this statement, the following is found at p. 42:
As elsewhere in this area, the concern is with reasonable perception, as well as actual conflict of interest. In general, a judge should not preside over a case in which he or she has a financial or property interest that could be affected by its outcome or in which the judge's interest would give rise in a reasonable, fair minded and informed person, to reasoned suspicion that the judge would not act impartially. This general rule applies whether the interest is itself the subject matter of the controversy or where the outcome of the case could substantially affect the value of any interest or property owned by the judge, the judge's family or close associates. It will not apply where the judge's interest is limited to one shared by citizens generally.
(Emphasis added)
Analysis
23In our view, the issue of whether a reasonable apprehension of bias existed in Molloy J. presiding over the Crown's motion to stay Mr. Benedict's application can be addressed on the basis of three propositions:
(1) The motions judge was the plaintiff in an ongoing action against the Crown.
(2) The motions judge was the plaintiff in an ongoing action against the Crown the subject of which was an employment- related claim as in Mr. Benedict's case.
(3) The motions judge was the plaintiff in an ongoing action against the Crown the subject of which was an employment- related claim and in which it was open to Crown, as in the Crown's motion she was required to decide, to raise the issue whether the court should defer to the Public Services Grievance Board for the determination of her claim.
24Counsel for the Crown, pursuing the first proposition, took the position that Molloy J. should have disqualified herself because it was improper for her to preside in any case in which the Crown is a party while her personal litigation was ongoing. He submitted that if this proposition is too broad, she should not have heard the motion on the basis of the second proposition.
25In advancing his alternative argument, counsel emphasized that it is the appearance of bias that is central to the determination of whether Molloy J. should have disqualified herself from hearing the motion. He submitted that the appearance of bias arose from these facts:
-- the motions judge was in a position where she could decide the motion against the party she was actively suing in respect to an employment-related claim.
-- in determining the appropriate forum for the resolution of Mr. Benedict's claim, the motions judge was in a position in which she would be adjudicating on rights relevant to the viability of her own claim.
-- in presiding over the motion in Mr. Benedict's case with respect to the issue of grievance rights, she placed herself in a position to vindicate her rights against the Crown.
Although some of these facts can also be considered in respect to the third proposition by which apparent bias may be judged, counsel for the Crown submitted that he did not have to go that far to make out a case of apparent bias.
26In our view, the alternative position of counsel for the Crown is correct. As we will explain, a reasonable apprehension of bias existed in Molloy J. presiding over the Crown's motion in Mr. Benedict's case as she was the plaintiff in an ongoing action against the Crown the subject of which, as in Mr. Benedict's case, was an employment-related claim.
27Dealing with the reasons given by Molloy J. for declining to withdraw her decision, we do not agree that the defendant in the Benedict case is different from the defendant in her action because she and Mr. Benedict worked for different government agencies. As it is well established that the Crown is indivisible, the defendant is the same in each proceeding. Nor, as will be explained, does it matter in determining apparent bias whether the issue raised by the Crown's motion had, or had not, been raised in her own case.
28There are a number of important principles reflected in the authorities which we have reviewed. Foremost among them is the principle that the focus of the disqualification of a judge for apparent bias is the maintenance of public confidence in the absolute impartiality of the judiciary. When the impartiality of a judge is in question, the appearance of bias is just as important as the reality. That is why, when the issue of apparent bias is raised, it is necessary that fine distinctions and legal technicalities be avoided. Although the judge may, with justification, believe that he or she is unbiased, if the appearance of bias is present he or she should withdraw from the case. As Lord Denning M.R. stated in the passage quoted earlier in Lannon at p. 310 [All E.R.]:
. . . The court looks at the impression which would be given to other people. Even if he was as impartial as could be, nevertheless, if right-minded persons would think that, in the circumstances, there was a real likelihood of bias on his part, then he should not sit. And if he does sit, his decision cannot stand.
29Judges are professionals, accustomed to weighing evidence and considering submissions and doing their work in the public eye and subject to public criticism. They seek to give effect to the basic precepts of procedural fairness -- natural justice and due process. That is why a judge must be free of any relationship to the case under consideration which might improperly affect the determination of the case, or might reasonably be perceived to do so. As we have said, the common law recognizes that justice lies partly in the cold neutrality of impartial judges and precludes judges from acting in cases where there is a reasonable apprehension of bias on their part. Judges recognize this and regularly decline to preside in cases in which they have an interest that might reasonably be perceived as affecting their neutrality. No doubt this accounts for the exceedingly few cases in Canada which have considered apparent bias on the part of judges in civil cases. As Lord Hope noted in Pinochet at p . 593 [All E.R.], in the United Kingdom the principle of disqualification has been so consistently observed by judges that in the twentieth century no decision of a court exercising civil jurisdiction was set aside on the ground of apparent bias.
30Although Molloy J. is not a party to Mr. Benedict's case, she has a relevant interest in its subject matter. As Pinochet illustrates, the self-interest which a judge may have in a case over which he or she is presiding is much broader than a pecuniary or proprietary interest. Self-interest may arise in many ways. We find no need to attempt to catalogue them. For a judge to disqualify himself or herself from hearing a case, it is sufficient that the judge have some relevant interest in its subject. This follows from the principle that a person may not be a judge in his or her own cause.
31Mindful that the threshold for finding a reasonable apprehension of bias is high, in our view, applying the appropriate test, the circumstances that deprive the hearing of the motion of the appearance of evenhanded justice are that the motions judge was herself a party to an ongoing action against the Crown, arising out of her previous employment by it, involving issues broadly similar to those found in Mr. Benedict's claims arising out of his employment by the Crown. Both the motions judge and Mr. Benedict had asserted claims against the Crown which can be described generically as wrongful dismissal claims. Thus, in the context of a wrongful dismissal claim, the motions judge was hearing a motion brought by a party against whom she was actively asserting the same claim. Any decision she reached unfavourable to the Crown could have been perceived as advancing or vindicating her own claim. Applying the broad approach to self-interest discussed in Pinochet, the motions judge had an interest in the outcome of the motion.
32In our view, the motions judge should not have heard the motion. And later, when asked by the Crown to withdraw her decision, she should have done so. This is all that we are deciding in this appeal. In doing so, we are deciding the appeal by the application of the second proposition outlined earlier. We are not deciding that a judge who is a party to litigation against the Crown is per se disqualified from presiding in a case in which the Crown is a party. This is to be determined by whether or not the judge has an interest in the case. Nor are we deciding that before a judge must disqualify himself or herself from hearing a case in which a party is also a party in a case brought by the judge, that there must be an identity of a discrete issue, or issues, in each case. What we do decide, in what undoubtedly will be the rare case, is that a judge should not hear any case in which a party and the judge are engaged in ongoing litigation over a claim that is similar to the claim in the case before the judge for adjudication.
33Counsel for Mr. Benedict submitted that even if we were to find apparent bias we should, nevertheless, affirm the result reached by Molloy J. on the motion, or, in the alternative, permit counsel to argue the motion de novo. We declined counsel's request. For the reasons discussed in Newfoundland Telephone Co. v. Newfoundland (Board of Commissioners of Public Utilities), 1992 84 (SCC), [1992] 1 S.C.R. 623 at p. 625, 95 Nfld. & P.E.I.R. 271, if a reasonable apprehension of bias arises, it colours the entire proceedings and it cannot be cured by the affirmation of the underlying decision. As stated in Pinochet and in Lannon, where there is a reasonable apprehension of bias, the decision cannot stand.
34It is unfortunate that the motion will have to be reheard by another judge, given the delay, the inconvenience and the expense to the parties that this will occasion. This will probably have a more serious impact upon Mr. Benedict than upon the Crown. In the exercise of a relatively autonomous system of self-regulation, particularly where the public is to be reassured about the integrity of the courts, a judge is expected to disqualify himself or herself from hearing a case in certain circumstances -- particularly where it may be said that the judge has an interest in its outcome.
35In circumstances like this case, it is only the judge who knows the particulars that could give rise to apparent bias should the judge hear a case. Where a judge perceives a potential self-interest, especially where the circumstances may not be known to the litigants, he or she should withdraw from the case or should raise the potential problem and make full disclosure of all the relevant facts prior to, or at the outset of, the proceedings. Where any party takes the position that a reasonable apprehension of bias exists, the judge must carefully weigh that submission and when in doubt should disqualify himself or herself. Had Molloy J. followed that course in this case, another judge would have been assigned to the case through the normal administrative processes operating in the Metropolitan Toronto Region and the motion would have been heard and disposed of on its merits without delay or additional expense.
Conclusion
36For the foregoing reasons, the appeal is allowed and Molloy J.'s order of January 13, 2000, refusing to withdraw her decision of November 23, 1999, is set aside. In consequence of allowing the appeal, Molloy J.'s order of November 23, 1999 is also set aside and the Crown's motion to stay Mr. Benedict's application is remitted to the Superior Court for hearing by a different judge. In the circumstances, there will be no costs.
Order accordingly.
