S.L. v. Marson et al.

[Indexed as: L. (S.) v. Marson]

Ontario Reports

Court of Appeal for Ontario,

MacPherson, Watt and Benotto JJ.A.

July 2, 2014

121 O.R. (3d) 369 | 2014 ONCA 510

Case Summary

Courts — Judges — Bias — Plaintiff successfully suing defendant school board for damages for sexual assault by teacher — Counsel for defendant subsequently discovering that trial judge had given opinion on key issue of liability during pre-trial in identical action by another student and had then withdrawn from pre-trial when he realized he knew student and his family — Defendant permitted to adduce that fact as fresh evidence on appeal — Appeal allowed — Reasonable apprehension of bias on part of trial judge existing.

The plaintiff sued the defendant school board for damages for sexual assault by a teacher. After the jury was selected, an adjuster with the defendant's insurer told counsel for the defendant that she recognized the trial judge as the pre-trial judge in another identical action brought by another student (the "K.M. action"), and that the pre-trial had been discontinued. She did not say why the pre-trial had been discontinued. The jury found that the defendant had been negligent. In a separate ruling, the trial judge found the defendant vicariously liable for the teacher's acts of abuse. Counsel for the defendant subsequently discovered that, while sitting as the pre-trial judge in the K.M. action, the trial judge had expressed his view on the issues of the defendant's liability for the teacher's actions and the quantum of damages, that he had then realized that he knew the K.M. family, and that he had withdrawn from the pre-trial. The defendant appealed and sought to admit fresh evidence on appeal.

Held, the appeal should be allowed.

The defendant was permitted to introduce the details of the trial judge's involvement in the K.M. action as fresh evidence on appeal as they were directly related to the validity of the trial process. The trial judge gave an opinion on a key issue of liability during the K.M. pre-trial, felt sufficiently compromised by his association with the K.M. family that he recused himself, and then conducted a trial in a mirror-image matter and rendered a decision on the same key issue of liability. The circumstances gave rise to a reasonable apprehension of bias on the part of the trial judge. The failure of defence counsel to object when he was told after jury selection about the trial judge's participation in the K.M. pre-trial did not disentitle the defendant from raising the issue on appeal. Counsel was not aware of the facts on which he now relied, and was entitled to assume that the trial judge would be impartial. Consistent with the presumption of judicial impartiality, there can be no duty to investigate possible grounds of bias if there is no reason to believe they exist.

Cases referred to

Benedict v. Ontario (2000), 2000 16884 (ON CA), 51 O.R. (3d) 147, [2000] O.J. No. 3760, 193 D.L.R. (4th) 329, 136 O.A.C. 259, 48 C.P.C. (4th) 1, 100 A.C.W.S. (3d) 58 (C.A.); Canadian College of Business and Computers Inc. v. Ontario (Private Career Colleges Act, Superintendent), [2010] O.J. No. 5435, 2010 ONCA 856, 272 O.A.C. 177, 17 Admin. L.R. (5th) 245; 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, 9 N.R. 115; [page370] Metropolitan Properties Co. (F.G.C.) Ltd. v. Lannon, [1968] 3 All E.R. 304, [1969] Q.B. 577 (C.A.); R. v. Bow Street Metropolitan Stipendiary Magistrate, [1999] 1 All E.R. 577, [2000] 1 A.C. 199, [1999] 2 W.L.R. 272 (H.L.); R. v. Campbell, 1997 317 (SCC), [1997] 3 S.C.R. 3, [1997] S.C.J. No. 75, 150 D.L.R. (4th) 577, 217 N.R. 1, [1997] 10 W.W.R. 417, J.E. 97-1787, 206 A.R. 1, 121 Man. R. (2d) 1, 156 Nfld. & P.E.I.R. 1, 49 Admin. L.R. (2d) 1, 118 C.C.C. (3d) 193, 11 C.P.C. (4th) 1, 46 C.R.R. (2d) 1, 73 A.C.W.S. (3d) 592, 35 W.C.B. (2d) 513; R. v. Palmer, 1979 8 (SCC), [1980] 1 S.C.R. 759, [1979] S.C.J. No. 126, 106 D.L.R. (3d) 212, 30 N.R. 181, 50 C.C.C. (2d) 193, 14 C.R. (3d) 22, 17 C.R. (3d) 34, 4 W.C.B. 171; R. v. S. (R.D.), 1997 324 (SCC), [1997] 3 S.C.R. 484, [1997] S.C.J. No. 84, 118 C.C.C. (3d) 353, 10 C.R. (5th) 1, 151 D.L.R. (4th) 193; R. v. Widdifield (1995), 1995 3505 (ON CA), 25 O.R. (3d) 161, [1995] O.J. No. 2383, 84 O.A.C. 241, 100 C.C.C. (3d) 225, 43 C.R. (4th) 26, 28 W.C.B. (2d) 72 (C.A.); Wewaykum Indian Band v. Canada, [2003] 2 S.C.R. 259, [2003] S.C.J. No. 50, 2003 SCC 45, 231 D.L.R. (4th) 1, 309 N.R. 201, [2004] 2 W.W.R. 1, J.E. 2003-1819, 19 B.C.L.R. (4th) 195, 7 Admin. L.R. (4th) 1, [2004] 1 C.N.L.R. 342, 40 C.P.C. (5th) 1

Rules and regulations referred to

Rules of Civil Procedure, R.R.O. 1990, Reg. 194, Rule 50

Authorities referred to

Lester, G.S., "Bias: How and When to Raise the Objection" (1997), 3 A.A.P. 49

APPEAL from the judgment of Tausendfreund J. of the Superior Court of Justice, sitting with a jury, dated January 25, 2013 for the plaintiff.

Donald Rogers and David Rogers, for appellant.

R. Steven Baldwin, for respondent.

The judgment of the court was delivered by

BENOTTO J.A.: —

A. Introduction

[1] The appellant seeks to admit fresh evidence which, it is submitted, would disclose a reasonable apprehension of bias on the part of the trial judge. The appellant asks that the judgment and jury verdict be set aside and that a new trial be ordered. In the alternative, the appellant asks that the quantum of damages be varied.

[2] For the reasons that follow, I would admit the fresh evidence, allow the appeal and order a new trial.

B. Facts

(1) The respondent's action

[3] The respondent brought an action for damages for the sexual abuse he suffered at the hands of his grade seven and eight science teacher in 1976 and 1977. The teacher, Robert Terry Marson, was employed by the Hastings and Prince Edward [page371] District School Board (the "appellant"). The respondent named both Mr. Marson and the appellant as defendants. Mr. Marson did not defend the action.

[4] Mr. Marson operated a "mini-zoo" in his classroom at Harry J. Clarke School in Belleville, Ontario. The zoo consisted of a number of small animals housed in cages. Mr. Marson used the zoo as a way to lure and groom young boys so that he could sexually abuse them.

[5] The respondent was one of those boys. It is not in dispute that Mr. Marson abused the respondent by fondling him, performing oral sex on him and, on one occasion, sodomizing him. The respondent told no one until 2006, when he disclosed the abuse to his wife. Thereafter, he went to the police and Mr. Marson was charged and convicted of sexual assault. The respondent brought this action in 2008 for damages against Mr. Marson and the appellant. It was tried by a judge and jury in January 2013.

[6] The appellant did not deny the assault or that the respondent had suffered damages. The issues at trial involved the quantum of damages and whether the appellant had been directly negligent or was vicariously liable for the acts of Mr. Marson.

[7] The jury found that the appellant had been negligent. In a separate ruling, the trial judge found the appellant vicariously liable for the teacher's acts of abuse. The jury awarded general, special and punitive damages.

(2) The "K.M." action

[8] The respondent was not the only former student to bring an action against the appellant and Mr. Marson for sexual abuse. K.M. was a student of Mr. Marson's around the same time as was the respondent, and he also brought an action for damages. The "K.M." action was proceeding through the courts and was to be heard after the respondent's action.

[9] The K.M. action was extraordinarily similar to the respondent's action. It involved almost identical factual claims: the same teacher; the same school; the same mini-zoo; the same mode of luring and grooming in connection with the zoo; and a time frame that overlapped with that of the respondent's allegations. The legal issues were also the same: K.M. sought damages for negligence on the part of the appellant school board, both directly and by way of vicarious liability.

[10] P. Diane McDowell was counsel for the appellant in both the respondent's action and the K.M. action. [page372]

[11] On May 31, 2012, Ms. McDowell attended a pre-trial in the K.M. action. The pre-trial judge expressed his view on the key issues in the case, namely, the liability of the appellant for Mr. Marson's actions and the quantum of damages. The pre-trial judge opined that there would be vicarious liability on the part of the appellant because of the zoo in the classroom, which provided the opportunity for Mr. Marson to abuse the student.

[12] During the course of the pre-trial, the judge realized that he knew both the plaintiff and his family and had an association with them. Because of this, it was agreed that the pre-trial would not proceed any further.

(3) Change of counsel

[13] Four months later, in October 2012, Ms. McDowell retired from the practice of law. She transferred ten or 12 files, including the respondent's action and the K.M. action, to S. Wayne Morris.

[14] The files arrived in Mr. Morris' office from late October until the third week of November. A trial date for the respondent's action had been set for January 7, 2013. Mr. Morris was under time constraints to have the matter ready for trial immediately after the Christmas season. As a result, he focused on preparing the respondent's action for trial. He did nothing with the K.M. case other than formally opening the file on a computer system.

(4) The respondent's trial begins

[15] Jury selection began in the respondent's trial on January 7, 2013. After the jury had been selected, Beth Olave, an adjuster with the appellant's insurer, mentioned to Mr. Morris that she recognized the trial judge as the pre-trial judge in the K.M. action and that the pre-trial had been discontinued. She did not say why the pre-trial was discontinued. Mr. Morris remembers the conversation as one in which Ms. Olave was making an observation that she recognized the trial judge.

[16] Mr. Morris had no concerns about the trial judge's involvement in another matter because he had faith that any issue involving a conflict would have been disclosed to counsel prior to trial at the trial management conference.

[17] At the time, Mr. Morris was unaware of the similarities between the respondent's action and the K.M. action. He was also unaware of the trial judge's association with the K.M. family. He did not realize that the trial judge had conducted the K.M. pre-trial, rendered an opinion and discontinued because of his association with the plaintiff and his family. [page373]

[18] The respondent's trial proceeded. On January 24, 2013, the jury rendered a verdict against the appellant.

(5) The fresh evidence

[19] In April 2013, Mr. Morris was preparing the K.M. case for discovery. It was only then that Mr. Morris became aware that the trial judge in the respondent's trial had rendered an opinion on the same issues while sitting as the pre-trial judge in an identical case where he knew that plaintiff and his family sufficiently well to disqualify himself. He testified that, had he known this prior to the respondent's trial, he would have asked the trial judge to recuse himself.

C. Issues

[20] The issues to be addressed are:

(1) Is the fresh evidence admissible?

(2) Does the evidence disclose a reasonable apprehension of bias?

D. Analysis

(1) Is the fresh evidence admissible?

[21] The principles governing the admissibility of fresh evidence on appeal are outlined in R. v. Palmer, 1979 8 (SCC), [1980] 1 S.C.R. 759, [1979] S.C.J. No. 126. The Palmer test requires the applicant to satisfy four criteria: (i) the evidence could not, through the exercise of due diligence, have been adduced at trial; (ii) the evidence must be relevant in that it bears on a decisive or potentially decisive issue; (iii) the evidence must be reasonably capable of belief; and (iv) the evidence must be such that, if believed, it may have affected the result at trial.

[22] When the proposed fresh evidence raises issues connected to the validity of the process itself, different considerations apply. In R. v. Widdifield (1995), 1995 3505 (ON CA), 25 O.R. (3d) 161, [1995] O.J. No. 2383 (C.A.), Doherty J.A. said, at para. 16:

The Palmer criteria do not, however, apply to all situations where fresh evidence is offered on appeal. Those criteria reflect the balancing of competing considerations relevant to the interests of justice when fresh evidence is offered to attack a determination made at trial. The same criteria cannot necessarily be applied where, as here, the fresh evidence is offered for a different purpose. The material sought to be admitted here is not directed at a finding made at trial, but instead challenges the very validity of the trial process. The nature of this material and the purpose for which it is offered places it outside the Palmer paradigm: R. v. McKellar (1994), 1994 1402 (ON CA), 19 O.R. (3d) 796 at 799, 34 C.R. (4th) 28 at 31 (C.A.); R. v. Vottero, Ontario Court of Appeal, June 17, 1992 (unreported). [page374]

[23] The fresh evidence sought to be introduced here deals with subsequently discovered facts that are directly related to the validity of the trial process. I would admit the fresh evidence.

(2) Does the evidence disclose a reasonable apprehension of bias?

(a) The applicable law

[24] There is a strong presumption of judicial impartiality and a heavy burden on a party who seeks to rebut this presumption.

[25] Judicial impartiality has been called "the key to our judicial process": see Wewaykum Indian Band v. Canada, 2003 SCC 45, [2003] 2 S.C.R. 259, [2003] S.C.J. No. 50, at p. 288 S.C.R. Chief Justice Lamer referred to "public confidence in the impartiality of the judiciary" as "essential to the effectiveness of the court system": see R. v. Campbell, 1997 317 (SCC), [1997] 3 S.C.R. 3, [1997] S.C.J. No. 75, at para. 10. The presumption of impartiality anchors public confidence in the integrity of the administration of justice.

[26] An allegation of bias engages the very foundation of our judicial system. It calls into question not simply the personal integrity of the judge, but the integrity of the entire administration of justice.

[27] In order to rebut the presumption of impartiality, a test has been developed by the Supreme Court of Canada. It was first articulated by de Grandpré J. in his dissenting reasons in 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, at p. 394 S.C.R.:

[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. . . . [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 judge], whether consciously or unconsciously, would not decide fairly."

[28] The Supreme Court has repeatedly endorsed this test. In his reasons in R. v. S. (R. D.), 1997 324 (SCC), [1997] 3 S.C.R. 484, [1997] S.C.J. No. 84, Cory J. explained, at para. 111, that the test set down by de Grandpré J. contains a "two-fold objective element": not only must the person considering the alleged bias be reasonable, but "the apprehension of bias itself must also be reasonable in the circumstances of the case". Cory J. added, at para. 113, 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 [page375] calls into question not simply the personal integrity of the judge, but the integrity of the entire administration of justice.

[29] This two-fold objective element is based on reasonableness: the person considering the alleged bias must be reasonable and the apprehension of bias itself must also be reasonable. The reasonable person must be informed and know the relevant circumstances, including the traditions of integrity and impartiality on which the judicial system is based. A mere suspicion is not enough.

[30] The determination is also fact-specific. In Wewaykum, the Supreme Court held, at para. 77:

[T]his is an inquiry that remains highly fact-specific. In Man O'War Station Ltd. v. Auckland City Council (Judgment No. 1), [2002] 3 N.Z.L.R. 577, [2002] UKPC 28, at par. 11, Lord Steyn stated that "This is a corner of the law in which the context, and the particular circumstances, are of supreme importance." As a result, it cannot be addressed through peremptory rules . . . there are no "textbook" instances. Whether the facts, as established, point to financial or personal interest of the decision-maker; present or past link with a party, counsel or judge; earlier participation or knowledge of the litigation; or expression of views and activities, they must be addressed carefully in light of the entire context. There are no shortcuts.

[31] This stringent test for a party alleging apprehension of bias is grounded in the need to preserve the integrity of the judicial system. It also recognizes the need to maintain the public confidence in the judicial system. The analysis contemplates a hypothetical observer who is informed of all the facts. It does not depend upon the views or conclusions of the litigant.

[32] It has also been held that, in order to maintain public confidence in the administration of justice, the appearance of judicial impartiality is as important as the reality. In Metropolitan Properties Co. (F.G.C.) Ltd. v. Lannon, [1968] 3 All E.R. 304, [1969] Q.B. 577 (C.A.), at p. 310 E.R., Lord Denning M.R. stressed the importance of the appearance of judicial impartiality. He said:

[I]n considering whether there was a real likelihood of bias, the court does not look at the mind of the justice himself. . . . 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[.]

[33] This passage was cited with approval by Major J. in his dissenting reasons in S. (R. D.), at para. 11, and by this court in Benedict v. Ontario (2000), 2000 16884 (ON CA), 51 O.R. (3d) 147, [2000] O.J. No. 3760 (C.A.). In Benedict, the court added, at para. 20: [page376]

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.

This reasoning accords with the decision of Lord Nolan in R. v. Bow Street Metropolitan Stipendiary Magistrate, [1999] 1 All E.R. 577, [2000] 1 A.C. 199 (H.L.), at p. 592 All E.R.:

[I]n any case where the impartiality of the judge is in question, the appearance of the matter is just as important as the reality.

The appearance of impartiality was emphasized in Weywakum, at para. 66:

[W]here disqualification is argued, the relevant inquiry is not whether there was in fact either conscious or unconscious bias on the part of the judge, but whether a reasonable person properly informed would apprehend that there was.

(Emphasis in original)

(b) Application to the facts

[34] The facts and the sequence of events here are unique. The trial judge gave an opinion on a key issue of liability during a pre-trial in a related matter. He withdrew from that pre-trial because he had an association with the plaintiff and his family. He then conducted a trial in a mirror-image matter and rendered a decision on the same key issue of liability. This decision, consistent with his earlier opinion, was favourable to the parties with whom he had an association. The trial judge felt sufficiently compromised by his association with the K.M. family that he recused himself during a pre-trial when no binding decision would be rendered. He then rendered a decision, consistent with his opinion at the pre-trial, which favoured the family that he was associated with.

[35] The respondent relies on Rule 50 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 for the proposition that a pre-trial judge is not precluded from conducting the trial. Rule 50 was amended in January 2012 to expand the case management powers of the pre-trial judge and to remove the blanket prohibition against the pre-trial judge presiding at trial provided that all parties consent in writing. Rule 50 does not preclude a pre-trial judge from presiding at the trial of a related matter. Thus, there was no procedural impediment to the pre-trial judge in K.M. presiding at the respondent's trial. While I accept this proposition, it ignores the issue. The issue here arises not [page377] because the trial judge presided at the pre-trial of a related action, but rather as a result of a unique combination of events. Those events are the pre-trial judge's opinion on the matter; his association with a party; and his decision in an identical matter which might reasonably assist the party he had an association with.

[36] The respondent further submits that the appellant's counsel should have objected to the participation of the trial judge immediately after jury selection when he had been told about the trial judge's participation in the K.M. pre-trial. The respondent submits that his failure to immediately object disentitles him from raising the issue on appeal.

[37] I do not accept this submission. There is a presumption of impartiality on the part of the judiciary and counsel was entitled to assume impartiality. Counsel testified that it did not occur to him that there was anything to object to. He was not aware of the facts which are now relied upon, in particular, he did not know of the opinions given by the trial judge in an identical matter from which he recused himself as a result of his association with the M.s. The facts he knew at the opening of trial would not support the serious allegation questioning the impartiality of the trial judge.

[38] A voluntary and informed decision must be made whether to advance a bias claim before a party can be said to waive the right to do so: see Canadian College of Business and Computers Inc. v. Ontario (Private Career Colleges Act, Superintendent), [2010] O.J. No. 5435, 2010 ONCA 856, 272 O.A.C. 177, at para. 51.

[39] Consistent with the presumption of impartiality is the fact that there can be no duty to investigate possible grounds of bias if there is no reason to believe they exist: see G.S. Lester, "Bias: How and When to Raise the Objection" (1997), 3 A.A.P. 49, at p. 50.

[40] There is a high threshold required to rebut the presumption of impartiality. There is also an imperative on the part of the administration of justice to uphold the appearance of impartiality.

[41] The hypothetical reasonable person would be informed of the trial judge's pre-trial opinion, his association with the plaintiffs, the discontinued pre-trial and the subsequent trial decision. In my view, this person viewing the matter realistically and practically would conclude that there was an apprehension of bias. [page378]

E. Disposition

[42] I would allow the appeal and order a new trial, with costs payable to the appellant in the amount of $40,000, inclusive of disbursements and applicable taxes.

Appeal allowed.

End of Document