COURT FILE NO.: 329/05

Toronto

DATE: 20051103

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

Justices matlow, greer, e. macdonald

B E T W E E N:

sos-save our St. clair Inc.

Applicant, Respondent to Motion

• and -

CITY OF TORONTO and TORONTO TRANSIT COMMISSION

Respondents, Moving Parties

Brian Gover and Patricia MacLean, for the Applicant

Earl A. Cherniak Q.C. and Cynthia B. Kuehl, for the Respondent, City of Toronto

James W. Harbell and Patrick G. Duffy, for the Respondent, Toronto Transit Commission

HEARD: October 25 and 26, 2005

REASONS FOR DECISION

GREER, E. MACDONALD, JJ.:

1At the conclusion of submissions in this matter, the panel agreed that Justice Matlow would first prepare his reasons on the matter of his recusal. This decision is one that he alone must make. It was agreed that after his decision was made, he would circulate his reasons to both of us in order that we could respond. The following is our response.

2As outlined in his reasons, we were on the Divisional Court panel that heard, on October 6 and 7, 2005 the application for judicial review brought by SOS- Save Our St. Clair Inc. The Responding parties were the City of Toronto and The Toronto Transit Commission.

3As the matter was urgent, the panel released its unanimous decision in a short endorsement on October 11, 2005 granting the relief requested by the Applicant. Our endorsement provided that we would prepare formal reasons for our decision in due course. These reasons have not been released.

4The Respondents brought this motion before this panel. It was heard on October 25 and 26, 2005. They seek the following orders:

5For an Order recusing Justice Matlow from continued participation in the hearing of the application; and

6For an Order striking the panel which heard this matter, and remitting the matter for a new hearing before a new panel; and

7For an Order that the decision dated October 11, 2005 is null and void.

8The tradition on the Divisional Court on matters where there is a panel of 3 justices is that the most senior justice acts as Chair. The most senior member of this panel was Justice Matlow who chaired the panel. Justice Matlow was appointed to the Court in 1981. Justice Greer was appointed in March 1991. Justice Ellen Macdonald was appointed in November 1991.

9When submissions on a matter before the panel are completed, the three justices retire to discuss their positions on the matter. The Chair asks the most junior justice to speak first and express his or her views. The second most senior justice is then asked for his or her views. The Chair speaks last in expressing his or her views. Justice Matlow followed this procedure. Each of us came to our own decision to grant the relief requested by the applicants independently of the other. At no time did Justice Matlow try to influence us to come to the decision that is reflected in our endorsement dated October 11, 2005. We do not agree with the submissions of the Respondents that this decision is tainted.

10Prior to this motion neither one of us was aware of the extent of Justice Matlow’s involvement in the contentious issues between the Friends of the Village (the “Friends”), the developer, and ultimately the City of Toronto.

11We were unaware of Justice Matlow’s e-mails to local politicians and to City Officials. We were unaware of his e-mails to Mr. John Barber commencing with the one sent from the Court House in Sudbury. We were unaware of his involvement in the proceedings before the Ontario Municipal Board. We were unaware that Justice Matlow assisted in the preparation of materials for an application to the Superior Court of Justice which was eventually withdrawn on consent. We were unaware that Justice Matlow delivered the bundle of documents to the attention of Mr. Barber at the offices of the Globe and Mail on October 5, 2005 the day before we commenced hearing the original application in this matter. We do not suggest that Justice Matlow misled us; we now understand that from his perspective there was no need to inform us of these activities.

12We were aware of Justice Matlow’s support of the Friends. The position of the Friends was highly publicized. Where we depart from Justice Matlow’s thinking on this very delicate and sensitive matter is that we are of the view that an objective third party is more likely than not to find a reasonable apprehension of bias. In other words, a reasonable right minded person, informed of the history of Justice Matlow’s activities is more likely than not to conclude that the decision-maker, whether consciously or unconsciously, would not decide fairly. See Committee for Justice & Liberty v. Canada (National Energy Board), [1978] 1 S.C.R. 369 (de Grandpré, J.) at 394; applied in Wewaykum Indian Band v. Canada. 2003 SCC 45, [2003] 2 S.C.R. 259 (per curiam) (“Wewaykum”) at paragraph 60:

... 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. In the words of the Court of Appeal, 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.

13It must be remembered that the original application in this matter was highly notorious. Perception in the minds eye of the public and the litigants is of unique importance in this case. Justice Matlow’s activities create a perception of partiality towards the City. In all of the circumstances of this unique case, perception is sufficient. Had we been aware of the content of his correspondence and e-mails with officials at City Hall, local politicians, and with Mr. Barber, we would have questioned him on the appropriateness of him presiding on this panel. Mr. Cherniak made it clear in his lengthy submissions that the Respondents make no allegation of bias or reasonable apprehension of bias on the part of the two remaining panel members.

14We are aware, as Judges, of the Canadian Judicial Council’s Ethical Principles for Judges (1998) (the “Guide”), and the duty of a Judge to act impartially. As stated in the Guide, “Judges must be and should appear to be impartial with respect to their decisions and decision making.” The principle that Judges should strive to ensure that their conduct, both in and out of court, maintains, and enhances confidence in their impartiality and that of the judiciary, is of utmost importance.

15The Commentary on these principles at A.2 of the Guide is that while judicial impartiality and independence are distinct concepts, they are closely related. As has been set out in the Commentary, the word “impartial” connotes absence of bias, actual or perceived. It further points out that these concepts are tied to individual and public confidence in the administration of justice. Therefore a tribunal should be perceived as independent, as well as impartial.

16The Canadian Judicial Council in its report dated December 12, 2002 (the “Flynn report”) reprimanded Mr. Justice Flynn, for entering into a public debate on a controversial issue, and found that he had failed in the due execution of his office in regard to the duty to act in a reserved manner. Justice Flynn, a member of the Quebec Superior Court, gave an interview in le Devoir concerning the legality of a real estate transaction involving his wife and others. We mention this report because it is instructive. At paragraph 59 of the Flynn report, the following appears:

A judge speaking about a matter likely to come before the court harms both the judiciary as a whole and the sound administration of justice. Such conduct undoubtedly gives rise to a reasonable suspicion by litigants that if it came to a hearing the matter would probably not be handled with complete impartiality.

17The Supreme Court of Canada recently examined these issues in Wewaykum. The court confirmed that one standard has now emerged as the criterion for disqualification, and that is the one set out by Mr. Justice de Grandpré which we referred to in para. 9 of these reasons.

18In Wewaykum the court observed at paras. 77-78 that such inquiries remain highly fact-specific, as there are no “textbook” instances, and it matters not whether the issue arises either before or after judgment has been delivered. In our case, while our decision has been rendered, the written reasons were not delivered before this motion for recusal was served by the City. The fact that no formal order has been issued and entered, means that we are not functus officio (Byers (Litigation Guardian of) v. Pentex Print Masters Industries Inc. (2003), 62 O.R. (3d) 647 (C.A.) at para. 41).

19Judges have the right to control the process before them. Given the importance of the appearance of impartiality in any decision, both to the public and to the litigants, we are of the view that we must declare the decisions made by the two of us as null and void. As we indicated above, the recusal motion is for Justice Matlow to decide and he has done so. We have given careful thought as to what should occur if Justice Matlow decided the matter of his recusal as he does in his reasons. We agree that in the circumstances, the panel must be struck and a new panel be constituted to hear the application de novo. We do so on the following basis.

20The circumstances that led to the City’s motion and the fact that these circumstances have been aired in a public courtroom has led us to the conclusion that we are duty bound to ensure that the panel is properly constituted in accordance with the law governing the exercise of judicial process, judicial power, and natural justice. This appears in an article by Geoffrey Lester, “Disqualifying Judges for Bias and Reasonable Apprehension of Bias: Some Problems of Practice and Procedure” (July 2001) 24 Advocates’ Quarterly 326-347.¹ Mr. Lester addresses the question of the proper procedure when a judge who is being asked to recuse himself/herself is a member of a collegiate court. Mr. Lester states that the other members hearing the review of a reasonable apprehension of bias should not shy away from taking a stand if they do not agree with the deciding judge. Mr. Lester sets out persuasive arguments made by Sir Anthony Mason, the former Chief Justice of the High Court of Australia at pages 338-339.

Where the judge is a member of a collegiate court, different considerations arguably apply and the application ought to be made to the court as a whole and not to the individual judge. It is appropriate to apply to a judge sitting alone, because that judge is the court. But where the court consists of more judges than the judge in question, this reason might not be as cogent. Sir Anthony Mason, former Chief Justice of the High Court of Australia, has argued there can be no real objection to fellow members of a collegiate court reviewing a decision of one of their members. First, a court is duty-bound to ensure that it is properly constituted in accordance with the law governing the exercise of judicial process, judicial power and natural justice. Fellow judges therefore ought not to shrink from that duty, or delegate it to one of their members. Second, the claim that it is only the individual judge involved who knows the facts (such as the nature and extent of the relationship with a party or a witness) and is therefore the only person who can make an authoritative decision is irrelevant. Since the test is an objective one, it is the appearance as well as the reality that is of fundamental importance. Indeed, this point can be stood on its head and it can be argued that the collegiate court is better able to apply that objective standard than the challenged judge.

There appears to be no uniform practice….The Supreme Court of Canada seems to have no fixed practice…²

It is submitted that in the case of a collegiate court the application ought to be made to the judge in question and not to the whole panel. As will be shown below, a decision to continue to sit or to stand down, and where available an appeal against that decision, is not based on anything akin to a “record” that supplies the factual basis for adjudication in most litigated matters. That material cannot really be said to be “evidence”. Thus, the objection to Sir Anthony Mason’s view turns on the difficulty that arises where members of the panel take a different view of the “evidence” and what has been established. On the one hand it is the challenged judge, who is most intimately familiar with the true situation and takes the view that there is no good reason to stand down. If he conscientiously holds that view, the judge has a duty to sit. On the other hand there might be one or more judges who conscientiously conclude that their fellow judge should disqualify himself. They cannot “order” that judge to stand down. No doubt, the challenged judge will discuss the matter with his colleagues and seek their views. But if the most that fellow judges can do is to make informal suggestions, then the problem of ensuring that the court is properly constituted has to be approached from another angle. The only practical solution seems to be that a fellow judge who conscientiously believes that the impugned judge ought to stand down and wrongly refuses ought himself to stand down on the ground that he believes that the matter is proceeding in breach of the principles of natural justice. [Our emphasis].

21It is not for us to say that Justice Matlow ought to recuse himself. But in circumstances where we conscientiously believe there is a perception of bias, it is open for us to stand down on the grounds that we believe that the matter is proceeding in breach of the principles of natural justice. Accordingly, we find that the panel must be struck and a new panel constituted to hear the application de novo.

GREER J.

E. MACDONALD J.

Released: November , 2005

COURT FILE NO.: 329/05

DATE: 20051103

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

Footnotes

1. 1Barrister-at-Law, of the Victorian, New South Wales and Ontario Bars. Member of the Civil Litigation Section, Department of Justice, Canada.
2. 2Different approaches were taken by the Supreme Court of Canada in Wewaykum and in the motion for recusal of Justice Bastarache in Arsenault-Cameron v. Prince Edward Island, [1999] 3 S.C.R. 851.