@B,00021966,OR
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Rando Drugs Ltd. et al. v. Scott*
[Indexed as: Rando Drugs Ltd. v. Scott]
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86 O.R. (3d) 641
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Court of Appeal for Ontario,
Rosenberg, Armstrong and Juriansz JJ.A.
August 1, 2007
- Vous trouverez la traduction fran‡aise de la d‚cision ci-dessus … la p. 653, post.
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Courts -- Judges -- Bias -- Reasonable apprehension of bias -- Trial judge a partner in law firm that formerly acted for defendant -- Trial judge not having any personal involvement in case -- Trial judge's lack of knowledge of case and lengthy period of time which had elapsed since he had been partner in law firm justifying his decision not to recuse himself on ground of reasonable apprehension of bias.
More than ten years before the trial, the trial judge was a partner of the law firm that had once represented one of the defendants by counterclaim (the "defendant") in this litigation. The trial judge had never been involved in the case and his former firm no longer acted for the defendant. The plaintiff by counterclaim (the "plaintiff") asked the trial judge to recuse himself. He refused, and the plaintiff and her counsel left the courtroom. The trial judge dismissed the counterclaim. Within days, he realized that he had a previous association with one of the other defendants, an accountant. He informed the parties, and the plaintiff brought a motion pursuant to rule 59.06 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 to set aside the judgment based on that newly- discovered fact. The motion was dismissed. The plaintiff appealed against that order and against the dismissal of the counterclaim.
Held, the appeals should be dismissed.
While the Guidelines for recusal set out in the Ethical Principles for Judges published by the Canadian Judicial Council recommend recusal in the circumstances of this case (i.e., where the judge's former firm acted in the very case that was now to be tried by the judge), the guideline did not state a firm rule. Disqualification is not the natural corollary even to a finding that a trial judge had some direct involvement in a case over which he or she is now presiding. Each case in which a reasonable apprehension of bias is argued must be decided on its own facts. Had the trial judge been asked to represent the plaintiff as counsel before his appointment to the bench, the conflict rules would likely have prevented him from taking the case because his firm had formerly represented one of the defendants in the case. However, what appeared at first sight to be an inconsistency in the application of rules could be explained by the different contexts and, in particular, the strong presumption of judicial impartiality that applies in the context of disqualification of a judge. There is no such presumption in cases of allegations of conflict of interest against a lawyer because of a firm's previous involvement in the case. In this case, there were two significant factors that justified the trial judge's decision not to recuse himself. The first was his statement that he knew nothing of the case when it was in his former firm and that he had nothing to do with it. The second was the long passage of time. At the time of the motion, he had been a judge for six years and thus had not had a relationship with his former firm for a considerable period of time. A reasonable person, viewing the matter realistically, would conclude that the trial judge could deal fairly and impartially with this case. [page642]
When the trial judge came to deal with the counterclaim, after the plaintiff and her counsel had withdrawn from the courtroom, he was unaware of his connection to the other defendant. It followed that this relationship could not have influenced his decision. Further, because of the action of counsel for the plaintiff, the decision to be made about the counterclaim was essentially a formal one. There was no one in the court to present evidence to support the counterclaim. The trial judge could have come to no other decision than to dismiss the counterclaim. That decision could not have been influenced or appear to have been influenced by the unknown fact.
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Cases referred to
Committee for Justice and Liberty v. Canada (National Energy Board), 1976 2 (SCC), [1978] 1 S.C.R. 369, [1976] S.C.J. No. 118, 68 D.L.R. (3d) 716, 1976 2 (SCC), 9 N.R. 115; R. v. S. (R.D.), 1997 324 (SCC), [1997] 3 S.C.R. 484, 1997 324 (SCC), [1997] S.C.J. No. 84, 161 N.S.R. (2d) 241, 151 D.L.R. (4th) 193, 1997 324 (SCC), 218 N.R. 1, 477 A.P.R. 241, 118 C.C.C. (3d) 353, 10 C.R. (5th) 1; Wewaykum Indian Band v. Canada, 2003 SCC 45, [2003] 2 S.C.R. 259, 2003 SCC 45, [2003] S.C.J. No. 50, 231 D.L.R. (4th) 1, 309 N.R. 201, [2004] 2 W.W.R. 1, 2003 SCC 45, 40 C.P.C. (5th) 1, 19 B.C.L.R. (4th) 195, consd
Other cases referred to
Locabail (U.K.) Ltd. v. Bayfield Properties Ltd., [2000] Q.B. 451, [2000] 1 All E.R. 65, [2000] 2 W.L.R. 870 (C.A.); MacDonald Estate v. Martin, 1990 32 (SCC), [1990] 3 S.C.R. 1235, [1990] S.C.J. No. 41, 1990 32 (SCC), 70 Man. R. (2d) 241, 77 D.L.R. (4th) 249, 121 N.R. 1, 1990 32 (SCC), [1991] 1 W.W.R. 705, 48 C.P.C. (2d) 113 (sub nom. MacDonald Estate v. Martin & Rossmere Holdings, Martin v. Gray, Gray v. Martin); President of the Republic of South Africa and Others v. South African Rugby Football Union and Others, [1999] 4 S.A. 147
Rules and regulations referred to
Rules of Civil Procedure, R.R.O. 1990, Reg. 194, rule 59.06
Authorities referred to
Canadian Judicial Council, Commentaries on Judicial Conduct (Cowansville, Qu‚bec: ?ditions Yvons Blais, 1991)
Canadian Judicial Council, Ethical Principles for Judges (Ottawa: Canadian Judicial Council, 1998)
Mullan, David, Administrative Law (Toronto: Irwin Law, 2001)
Shaman, Jeffrey M., Steven Lubet and James J. Alfini, Judicial Conduct and Ethics, 3rd ed. (Virginia: Lexis, 2000)
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APPEALS from the judgment of Patterson J. of the Superior Court of Justice, dated September 27, 2005, dismissing the counterclaim of the plaintiff, and from the order of Patterson J., dated June 30, 2006, dismissing the motion to set aside his judgment of September 27, 2005.
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Paul J. Pape, for plaintiff by counterclaim, appellant Lena B.D. Scott.
Stephen R. Schenke, for defendants by counterclaim, respondents Michael Blacher and M. Blacher Drugs Ltd.
Arthur M. Barat, Q.C., for defendant by counterclaim, respondent Joseph J. Burk. [page643]
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The judgment of the court was delivered by
[1] ROSENBERG J.A.: -- This case concerns allegations of bias against a judge. More than ten years before the trial, the trial judge, Justice Terrence Patterson of the Superior Court of Justice, was a partner of the firm that had once represented one of the defendants by counterclaim. Although the judge had never been involved in the case and his former firm no longer acted for the defendant, the plaintiff by counterclaim (the appellant in this court) asked the judge to recuse himself. He refused. The appellant and her counsel then walked out of the court. The judge accordingly dismissed the counterclaim. The appellant appeals against the dismissal of her counterclaim and argues that the trial judge erred in failing to recuse himself.
[2] An additional issue arose after the dismissal of the counterclaim. Within days of the dismissal of the counterclaim, the trial judge realized that he had had a previous association with one of the other defendants, an accountant. He informed the parties and then heard a motion asking that he set aside his earlier order on the basis of this newly discovered information. The judge refused to do so. The appellant also appeals against this order.
3For the following reasons I would dismiss the appeals.
The Facts and Procedural History
The first recusal motion
[4] An understanding of the allegations made in this case requires an examination of the factual and procedural background. To distinguish between his role as judge and as lawyer, I will refer to Justice Patterson as Patterson J. or the trial judge, and Mr. Patterson, respectively.
[5] This action was commenced over 13 years ago by the purchaser of the appellant's shares in a corporation that operated a drug store. The claim by the plaintiffs in the original action was against the appellant for damages for failure to file income tax returns in a timely manner. The appellant in turn counterclaimed against the plaintiffs and brought third party proceedings against her accountant, Joseph J. Burk, and against her former business associate, Michael Blacher, and Mr. Blacher's company. The facts giving rise to the claim, counterclaim and third party proceedings arose in the years 1992 to 1994.
[6] The claim against the appellant by the plaintiffs and the counterclaim as against them was dismissed on consent in 1998, over eight years ago. The appellant nevertheless pursued her [page644] third party claim against Burk, Blacher and Blacher's company, who I will collectively refer to as the respondents.
[7] After several false starts, the trial was set to commence before Patterson J. in Windsor on September 27, 2005, some 11 years after the events and six plus years after the main action had been dismissed. On Friday, September 23, 2005, counsel for the appellant, Mr. Raymond Colautti, for the first time alerted the court by letter to a problem with Patterson J. sitting on the case. In this letter, Mr. Colautti stated that from 1992 to 1994, Blacher and his corporation were represented by Mr. Slopen of the Wilson Walker firm. At that time, both Mr. Slopen and Mr. Patterson were partners in the firm. Mr. Colautti stated that considerable correspondence would be filed at the trial, some of which would be on Wilson Walker letterhead showing Mr. Patterson as a partner. In his letter, Mr. Colautti stated that he would be asking Patterson J. to recuse himself.
[8] The letter was not brought to Patterson J.'s attention and so he first learned of the appellant's concerns when the parties appeared for trial on Tuesday, September 27, 2005. At that time, Mr. Colautti brought his motion to have Patterson J. disqualify himself. The motion was advanced on the basis of reasonable apprehension of bias, which allegedly arose from the fact that during the events leading up to the filing of the claim and counterclaim, Mr. Patterson was a partner of the firm that represented Mr. Blacher and his company. A member of that firm had filed the statement of defence to the counterclaim. As he had said in his letter, Mr. Colautti submitted that letters from the Wilson Walker firm, on which Mr. Patterson's name appears in the letterhead, would be filed at trial. Although Mr. Colautti invited him to look at the correspondence, the trial judge did not do so. Mr. Colautti also stated that his client was making allegations of fraud and dishonesty against Mr. Blacher and the trial judge would be required to make credibility findings involving Blacher and the appellant. There was no suggestion of any impropriety on behalf of the law firm itself. It is unclear when the Wilson Walker firm stopped acting for Mr. Blacher.
[9] The trial judge stated that he had no knowledge of the case when it was in the firm and had done no work on the case. No one then or now disputes this statement.
[10] The trial judge stated that he had adopted a guideline, which he understood was generally adhered to in his jurisdiction, that he wait three years before hearing any cases involving his former firm. He held that the fact that the events in the case arose when he was a partner of the firm did not change his view [page645] that a sufficient period, almost 12 years, had passed. He saw no reason to recuse himself. He was satisfied that he could impartially hear the case. As he said:
I cannot even see how there could be an apprehension of bias based on the facts. There has been a time period passed that is certainly well in excess of any two-, three-year guideline. The distinction that this took place when I was a partner does not elevate it to being something that suddenly becomes timeless, in my opinion.
[11] Accordingly, the trial judge dismissed the application. Mr. Colautti then asked the trial judge to adjourn the trial so that he could bring an application for leave to appeal to the Divisional Court. The trial judge pointed out that if the trial was adjourned, it could take up to a year before the matter was resolved. The trial judge refused to adjourn the trial. Mr. Colautti and his client then withdrew from the courtroom. Since the appellant did not present any evidence in support of her claim, the trial judge dismissed the counterclaim with costs.
The motion to set aside
[12] Within days of the dismissal of the action, the trial judge realized that he had had an association with the other respondent, Mr. Burk. Counsel were informed of this fact during a conference call with the trial judge that had been arranged for that very purpose. During the call, the trial judge informed counsel that he had come to realize that the Mr. Burk who was a defendant to the counterclaim was the same Mr. Burk who had supplied estate accounting services for the Wilson Walker firm and in fact had done some work for the estate of his wife's father in the 1990s. The trial judge then stated"I believe this is important, very important, and that I should recuse myself because of this contact with Mr. Burk."
[13] Counsel then informed the trial judge that the order dismissing the counterclaim had already been issued and entered. Mr. Colautti took the position, however, that it was not too late to set aside the order because of newly discovered facts.
[14] In the course of the call, the trial judge stated that he was not aware of his relationship with Mr. Burk during the trial. It is not disputed that the trial judge was unaware of his relationship with Mr. Burk when he dismissed the counterclaim.
[15] During the conference call it was eventually agreed that, if so advised, the appellant would bring a formal motion to set aside the judgment. For reasons that are not relevant, this motion was not heard until May 26, 2006. The motion was brought pursuant to rule 59.06 [of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194] [page646] on the basis of facts arising or discovered after the order was made. The trial judge held that he became functus when the order was issued and entered. He dismissed the motion, saying, in part, the following:
The circumstances of the case before me being a possible recusal motion concerning one of the defendants Joseph Burk was not heard because the plaintiff and her counsel left the courtroom at the start of the trial which resulted in the dismissal of their action.
Analysis
The recusal application on the trial date
[16] There is no suggestion that the trial judge had any financial or other interest in this litigation even though his firm had carriage of the file in the early 1990s. Nor does the appellant suggest that the trial judge was actually biased. Accordingly, the issue is whether the circumstances give rise to a reasonable apprehension of bias because of the prior involvement of the trial judge's former firm in the litigation. In such a case, the test to be applied has been explained in several cases from the Supreme Court of Canada, most notably, Committee for Justice and Liberty v. Canada (National Energy Board), 1976 2 (SCC), [1978] 1 S.C.R. 369, [1976] S.C.J. No. 118, R. v. S. (R.D.), 1997 324 (SCC), [1997] 3 S.C.R. 484, [1997] S.C.J. No. 84 and Wewaykum Indian Band v. Canada, 2003 SCC 45, [2003] 2 S.C.R. 259, [2003] S.C.J. No. 50.
[17] The accepted test for reasonable apprehension of bias is found at pp. 394-95 S.C.R. of de Grandpr‚ J.'s dissenting reasons in Committee for Justice and Liberty:
. . . 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. . . . that 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".
[18] Further, as the court said in Wewaykum at para. 76, an apprehension of bias must rest on serious grounds"in light of the strong presumption of judicial impartiality". The inquiry is "highly fact-specific" and "cannot be addressed through peremptory rules".
[19] I also draw assistance from the following statement made by the Constitutional Court of South Africa in [page647] President of the Republic of South Africa and Others v. South African Rugby Football Union and Others, [1999] 4 S.A. 147, at para. 48:
The reasonableness of the apprehension must be assessed in the light of the oath of office taken by the Judges to administer justice without fear or favour; and their ability to carry out that oath by reason of their training and experience. It must be assumed that they can disabuse their minds of any irrelevant personal beliefs or predispositions. They must take into account the fact that they have a duty to sit in any case in which they are not obliged to recuse themselves. At the same time, it must never be forgotten that an impartial Judge is a fundamental prerequisite for a fair trial and a judicial officer should not hesitate to recuse herself or himself if there are reasonable grounds on the part of a litigant for apprehending that the judicial officer, for whatever reasons, was not or will not be impartial.
(Footnote omitted; Emphasis added)
[20] While there are no peremptory rules, at least two sources provide assistance in considering an allegation that a trial judge is disqualified on the basis of a reasonable apprehension of bias. One can have regard to the extant body of judicial decisions in which these issues have been dealt with. One can also turn to the codes and guidelines crafted to assist with the governance of judicial conduct. [See Note 1 below] In Canada there is no code of conduct for judges. Instead, the Canadian Judicial Council has published a set of statements, principles and commentaries under the title Ethical Principles for Judges (Ottawa: Canadian Judicial Council, 1998). The appellant placed particular emphasis on this document and I will therefore begin my discussion of this aspect of the case with that document. [See Note 2 below]
[21] The point made in Wewaykum that there are no peremptory rules in this area is reinforced by a number of comments in Ethical Principles for Judges that emphasize there can be reasonable disagreements about the application of the principles and that departures from the principles do not necessarily warrant disapproval. Further, as noted at p. 3, the statements, principles and commentaries "are advisory in nature" and "shall not be used as a code or a list of prohibited behaviours".
[22] The appellant relies upon statements made under the "Impartiality" section in Ethical Principles for Judges and especially, the statements, principles and commentary concerning [page648] former clients. Because of their importance, I have set out the applicable parts, which are found at p. 47:
Judges will face the issue of whether they should hear cases involving former clients, members of the judge's former law firm or lawyers from the government department or legal aid office in which the judge practised before appointment. There are three main factors to be considered. First, the judge should not deal with cases concerning which the judge actually has a conflict of interest, for example, as a result of having had confidential information concerning the matter prior to appointment. Second, circumstances must be avoided in which a reasonable, fair minded and informed person would have a reasoned suspicion that the judge is not impartial. Third, the judge should not withdraw unnecessarily as to do so adds to the burden of his or her colleagues and contributes to delay in the courts.
The following are some general guidelines which may be helpful:
(a) A judge who was in private practice should not sit on any case in which the judge or the judge's former firm was directly involved as either counsel of record or in any other capacity before the judge's appointment.
(c) With respect to the judge's former law partners, or associates and former clients, the traditional approach is to use a "cooling off period" often established by local tradition at 2, 3 or 5 years and in any event at least as long as there is any indebtedness between the firm and the judge and subject to guideline (a) above concerning former clients.
[23] The appellant submits that this case falls clearly within guideline (a) and that the trial judge should therefore have recused himself. The appellant submits that the trial judge confused two different circumstances. He applied the "cooling-off period" rule set out in guideline (c) to a circumstance that was more properly captured by guideline (a). I agree with that submission in this sense. It seems to me that the judge may well have confused the two issues. The three-year rule to which he referred is, in my view, a rule that is applicable to when a judge should hear cases involving his former firm or former clients. The cooling-off period has limited application to a case where it is alleged not simply that the judge's former firm acts for one of the parties, but that the firm acted in the very case that is now to be tried by the judge. This case involves the latter circumstance and thus, it is guideline (a) that is applicable.
[24] Accordingly, if guideline (a) purports to lay down a firm rule, the trial judge should have recused himself. But, guideline (a) is not a rule; it is a guideline that has only an advisory purpose. The trial judge could not be faulted had he recused himself when the application was brought, but the fact that he did not recuse [page649] himself does not mean that he erred. It all depends on the particular circumstances. Moreover, the leading cases, far from suggesting that guideline (a) states a firm rule, suggest quite the opposite.
[25] I begin with Committee for Justice and Liberty where a majority of the Supreme Court of Canada held that Marshall Crowe, the then Chair and Chief Executive Officer of the National Energy Board, was disqualified from sitting on hearings concerning the construction of a natural gas pipeline because of his prior involvement with a group that had studied and made recommendations on matters directly related to the matter that he was then to consider at the National Energy Board hearings. In the course of considering the question of Mr. Crowe's disqualification, Laskin C.J.C. referred to the position of a trial judge and former client in terms that illustrate guideline (a) is far from a firm rule. He said the following in relation to the matters covered by guidelines (a) and (c) at p. 388 S.C.R.:
Lawyers who have been appointed to the Bench have been known to refrain from sitting on cases involving former clients, even where they have not had any part in the case, until a reasonable period of time has passed. A fortiori, they would not sit in any case in which they played any part at any stage of the case. This would apply, for example, even if they had drawn up or had a hand in the statement of claim or statement of defence and nothing else.
(Emphasis added)
[26] Applying this statement to the circumstances of this case, the trial judge was not required to disqualify himself. He knew nothing of the case when it was in the firm and he played no part in the case at any stage. Moreover, as the Wewaykum case illustrates, even the statement that a judge not sit on cases in which he or she played a part is not an absolute rule. In Wewaykum the court held that even though Binnie J. had been involved in the very case before the court many years earlier when he was the federal Associate Deputy Minister of Justice, he was not disqualified from sitting on the appeal. With respect to the dictum from Committee for Justice and Liberty that I have set out above, the court said the following at paras. 81 and 82:
This dictum must be understood in the context of the principle of which it is but an illustration. It does not suggest that any degree of earlier participation in a case is cause for automatic disqualification. This statement provides sensible guidance for individuals to consider ex ante. It suggests that a reasonable and right-minded person would likely view unfavourably the fact that the judge acted as counsel in a case over which he or she is presiding, and could take this fact as the foundation of a reasonable apprehension of bias.
However, contrary to what has been argued, it cannot realistically be held that Binnie J. acted as counsel in the present case, and the limited extent of his participation does not support a reasonable apprehension of bias. To repeat, what is germane is the nature and extent of Binnie J.'s role. The [page650] details of Binnie J.'s involvement in this case, as outlined in the earlier part of these reasons and which should be viewed in the context of his broad duties in the Department of Justice, would convince a reasonable person that his role was of a limited supervisory and administrative nature.
(Emphasis added)
[27] Thus, disqualification is not the natural corollary to a finding that a trial judge has had some involvement in a case over which he or she is now presiding. Where the judge had no involvement, as here, it cannot be said that the judge is disqualified.
[28] The point can rightly be made that had Mr. Patterson been asked to represent the appellant as counsel before his appointment to the bench, the conflict rules would likely have prevented him from taking the case because his firm had formerly represented one of the defendants in the case. Thus, it is argued how is it that as a trial judge Patterson J. can hear the case? This issue was considered by the Court of Appeal (Civil Division) in Locabail (U.K.) Ltd. v. Bayfield Properties Ltd., [2000] Q.B. 451, [2000] 1 All E.R. 65 (C.A.). The court held, at para. 58, that there is no inflexible rule governing the disqualification of a judge and that"[e] verything depends on the circumstances."
[29] It seems to me that what appears at first sight to be an inconsistency in application of rules can be explained by the different contexts and in particular, the strong presumption of judicial impartiality that applies in the context of disqualification of a judge. There is no such presumption in cases of allegations of conflict of interest against a lawyer because of a firm's previous involvement in the case. To the contrary, as explained by Sopinka J. in MacDonald Estate v. Martin, 1990 32 (SCC), [1990] 3 S.C.R. 1235, [1990] S.C.J. No. 41, 77 D.L.R. (4th) 249, for sound policy reasons there is a presumption of a disqualifying interest that can rarely be overcome. In particular, a conclusory statement from the lawyer that he or she had no confidential information about the case will never be sufficient. The case is the opposite where the allegation of bias is made against a trial judge. His or her statement that he or she knew nothing about the case and had no involvement in it will ordinarily be accepted at face value unless there is good reason to doubt it: see Locabail, at para. 19.
[30] That brings me then to consider the particular circumstances of this case and whether there are serious grounds to find a disqualifying conflict of interest in this case. In my view, there are two significant factors that justify the trial judge's decision not to recuse himself. The first is his statement, which all parties accept, that he knew nothing of the case when it was in his former firm and that he had nothing to do with it. The second is the long passage of time. As was said in Wewaykum, at para. 85: [page651]
To us, one significant factor stands out, and must inform the perspective of the reasonable person assessing the impact of this involvement on Binnie J.'s impartiality in the appeals. That factor is the passage of time. Most arguments for disqualification rest on circumstances that are either contemporaneous to the decision-making, or that occurred within a short time prior to the decision-making.
[31] There are other factors that inform the issue. The Wilson Walker firm no longer acted for any of the parties by the time of trial. More importantly, at the time of the motion, Patterson J. had been a judge for six years and thus had not had a relationship with his former firm for a considerable period of time.
[32] In my view, a reasonable person, viewing the matter realistically would conclude that the trial judge could deal fairly and impartially with this case. I take this view principally because of the long passage of time and the trial judge's lack of involvement in or knowledge of the case when the Wilson Walker firm had carriage. In these circumstances it cannot be reasonably contended that the trial judge could not remain impartial in the case. The mere fact that his name appears on the letterhead of some correspondence from over a decade ago would not lead a reasonable person to believe that he would either consciously or unconsciously favour his former firm's former client. It is simply not realistic to think that a judge would throw off his mantle of impartiality, ignore his oath of office and favour a client -- about whom he knew nothing -- of a firm that he left six years earlier and that no longer acts for the client, in a case involving events from over a decade ago.
The motion to set aside
[33] Some time was spent in the argument of this appeal on whether the unusual circumstances that developed as a result of the trial judge's conference call after the order was issued and entered fell within the terms of rule 59.06 and whether the trial judge was right to resolve the matter solely on the basis that he was functus. Because of the view I take as to the merits of the rule 59.06 motion, I need not deal with those issues.
[34] In his very helpful submissions, Mr. Pape, counsel for the appellant, submitted that in considering the issues on this appeal and especially, the trial judge's decision on the rule 59.06 motion, the court must consider the cumulative effect of the circumstances, beginning with the involvement of the trial judge's former firm in the case and ending with the trial judge's disclosure of his relationship with the respondent Burk. In my view, in the circumstances of this case, this is not the correct approach. Rather, it is necessary to focus on the decision the trial [page652] judge was called upon to make on September 27, 2005 and the circumstances that existed at that time.
[35] No one disputes that when the trial judge came to deal with the counterclaim, after Mr. Colautti and his client had withdrawn from the courtroom, he was unaware of his connection to Mr. Burk. It follows that this relationship could not have influenced his decision. Further, because of Mr. Colautti's action, the decision to be made about the counterclaim was essentially a formal one. There was no one in the court to present evidence to support the counterclaim. I fail to see how the trial judge could have come to any other decision.
[36] As the Court of Appeal said in Locabail, at para. 55"How can there be any real danger of bias, or any real apprehension or likelihood of bias, if the judge does not know of the facts that, in argument, are relied on as giving rise to the conflict of interest?"
[37] If Mr. Colautti and his client had accepted the trial judge's ruling, remained in the courtroom and presented evidence, it may well be that at some point the trial judge would have realized his connection to Mr. Burk and consequently recused himself, as he indicated in the conference call. But, that is not what occurred; counsel and client withdrew leaving the trial judge to make the only decision that could have been made.
[38] In Wewaykum, despite Binnie J.'s statement that he had no recollection of the case, the court went on to consider whether there was a reasonable apprehension of bias because of a belief that his prior involvement might unconsciously have influenced the decision he wrote for the court. Accordingly, I do not foreclose the possibility that in some unusual case the court might set aside a decision because of a previously unknown fact that comes to the judge's attention after the case is finished. As I have said in relation to the recusal motion, everything depends on the particular circumstances. The pivotal circumstance here is that by refusing to present her case, the appellant left the trial judge with a simple decision that could not, on any theory, have been influenced or appear to have been influenced by the unknown fact.
[39] I would conclude with this comment. Counsel for Mr. Burk was highly critical of Mr. Colautti for refusing to accept the trial judge's ruling. I agree with counsel that it would have been better for the appellant to have accepted the ruling, presented the case and, if she lost, to have raised the issue on appeal. Whatever may have been the law in the past, I consider David Mullan's statement of law in Administrative Law (Toronto: Irwin Law, 2001) at 348 to be correct: [page653]
. . . the party [who raised the bias issue] need not abandon the proceeding in the sense of refusing to take part. Indeed, not only does the law not require this but it is also very dangerous. . . .
The peril Mullan cautions against occurred here. By withdrawing from the courtroom, the appellant abandoned her case. She cannot rely on an unknown fact that might have affected the course of the proceedings had she remained.
Disposition
[40] Accordingly, I would dismiss the appeals with costs. If the parties are unable to agree on costs, they may provide brief written submissions within 15 days of the release of these reasons.
Appeals dismissed.
Notes
Note 1: Texts on judicial ethics are an additional source. See e.g., Jeffery M. Shaman, Steven Lubet & James J. Alfini, Judicial Conduct and Ethics, 3rd ed. (Virginia: Lexis, 2000) at 140-145. The texts are, however, of limited assistance in this case given the particular context.
Note 2: Also see the previous publication by the Canadian Judicial Council, Commentaries on judicial Conduct (Cowansville, Qu‚bec: ?ditions Yvons Blais, 1991) at 69-72.
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