COURT FILE NO.: 07-1427

DATE: February 23, 2009

SUPERIOR COURT OF JUSTICE – ONTARIO

DIVISIONAL COURT

RE: The Attorney General for the Province of Ontario c/o Ministry of Transportation, Legal Services Branch (Plaintiff/Respondent) v. Thomas C. Powell (Defendant/Appellant)

BEFORE: THE HON. MR. JUSTICE G.M. MULLIGAN

COUNSEL: John Petrosoniak, for the Plaintiff/Respondent Mila Robin, for the Defendant/Appellant

HEARD: January 28, 2009

E N D O R S E M E N T

On appeal of the decision of Deputy Judge E. Symons dated November 16, 2007.

[1] This was an appeal of the decision of Deputy Judge E. Symons, deputy judge of the Small Claims Court sitting at Midland, Ontario. The judgment was dated November 16, 2007.

[2] The plaintiff, the Attorney General for the Province of Ontario (hereinafter called the respondent) sued Thomas C. Powell (hereinafter called the appellant) for damages. After the hearing, the respondent was awarded judgment for $1,811.25 for claim plus $270 for costs.

[3] The appellant appeals the decision of Deputy Judge Symons and asks that the judgment be set aside and that the respondent’s action be dismissed with costs payable to the appellant. The grounds for appeal are as follows:

(i) there was a reasonable apprehension of bias on the part of the deputy judge in two respects:

(a) the deputy judge was the former mayor of the Town of Midland, a municipality adjacent to the Township of Tay. The Township of Tay fire department sent an invoice to the respondent as a result of the appellant’s accident; and

(b) the deputy judge was an associate at a law firm and another associate at the law firm was a volunteer firefighter for the Township of Tay Fire Department at the time of the trial;

(ii) the deputy judge erred in granting judgment in favour of the respondent because he misapprehended the evidence and made errors in law.

[4] The respondent submits that there was no reasonable apprehension of bias in this case. The respondent further argued that the deputy judge made no palpable and overriding errors of fact, and further that the deputy judge made no errors of law which would require appellant intervention.

FACTS

[5] The basic facts of the occurrence are not in dispute. The appellant was travelling on Highway 12 and entered into the ramp leading to Highway 400. The appellant lost control of his vehicle, possibly in some snow, and his vehicle spun around and went into the ditch, landing on its roof. The accident happened almost across the road from the Township of Tay Fire Hall. The appellant was able to exit his own vehicle. The first responder was a fireman in a vehicle from the fire hall. He asked the appellant if he was alright. As a result of his call, two other fire vehicles arrived and shortly thereafter a police officer and a tow truck. The tow truck was able to flip the vehicle back over and extract it without any damage. The fire trucks eventually left the scene and the appellant stayed at the scene until he was driven home by the police officer. All of this activity took place on the shoulder of the on-ramp from Highway 12 to Highway 400.

[6] The issue of the appellant’s negligence with respect to the accident itself was admitted and was not an issue. In accordance with established policies the Township of Tay Fire Department invoiced the respondent for $1,575 for its services. The respondent then invoiced the appellant for this amount plus an administrative fee of 15%. When the account remained unpaid, the respondent brought this Small Claims Court action against the appellant.

REASONABLE APPREHENSION OF BIAS

[7] There was no suggestion of actual bias in connection with this appeal. The issue on appeal was reasonable apprehension of bias. The facts leading to these grounds of appeal were not dealt with at trial, but were brought forward as part of the grounds of appeal. As an aid to oral evidence, the appellant filed an extract from the deputy judge’s law firm webpage indicating that he was an associate at a Midland law firm, had practiced law for over 30 years, and was the mayor of the Town of Midland from 1988 to 1994. A further extract indicated that the Town of Midland was in southern Georgian Bay and was adjacent to the Township of Tay. An additional extract indicated that another associate in the law firm who joined the firm in 2007, became a volunteer firefighter with the Township of Tay in the fall of 2007, at about the time of the trial but several years after the accident.

[8] Given those facts, the following conclusions can be drawn:

(i) the deputy judge’s term as Mayor of the Town of Midland ended approximately 13 years prior to this trial;

(ii) the Town of Midland and its fire department was a neighbouring municipality to the Township of Tay and its fire department. The Township of Tay was not a party to this action, it was the first responder and it invoiced the respondent.

(iii) The associate at the deputy judge’s law firm was not a counsel at these proceedings, he was not a party to these proceedings, nor was the fire department to which he volunteered. The accident occurred several years before he joined the Department.

(iv) the deputy judge and the associate were both associates at the law firm and no employer/employee relationship existed between them.

[9] The appellant cited the often referred to legal maxim which was relied on in Roberts v. R. (2003) Carswell NAT 2822 (S.C.C.) at para. 66:

Parties have relied on Lord Hewart C.J.’s aphorism that “it is not merely of some importance, but it is a fundamental importance that justice should not only be done, but should manifestly and undoubtedly be seen to be done” (R. v. Justices of Sussex (1923) [1924] 1 K.B. (Eng. K.B.) at p.259. In Bartlett v. Glynn (2001) Carswell (Nfld.) 337 at para. 34, the court commented on aspects of a judge’s conduct or behaviour:

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.

[10] The Bartlett v. Glynn (supra) decision also discussed disqualification by association:

The third category is disqualification by association. It will often overlap the first and consists of cases where the apprehension of prejudgment or other bias results from some direct or indirect relationship, experience or contact with a person or persons interested in, or otherwise involved in, the proceedings.

[11] The Supreme Court of Canada dealt with the issue of reasonable apprehension of bias in R. v. RDS, [1997] 3 S.C.R. 484. The court adopted the wording of de Grandpre J. in Committee for Justice and Liberty v. National Energy Board, [1978] 1 S.C.R. 369 at para. 394:

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 … the test is “what would an informed person, viewing the matter realistically and practically, and having thought the matter through – conclude?”

In R. v. RDS, supra, the court concluded that judicial officers are to be presumed to be impartial and stated at para. 60 – 61:

Thus, reviewing courts have been hesitant to make a finding of bias or to perceive a reasonable apprehension of bias on the part of a judge, in the absence of convincing evidence to that effect.

[12] During argument on this appeal counsel were asked to provide any available decisions regarding reasonable apprehension of bias in circumstances such as these. Counsel were not able to provide any decisions under similar circumstances. The Ontario Court of Appeal has dealt with reasonable apprehension of bias in the following circumstances: the trial judge intervened and adopted an adversarial position: Shoppers Mortgage and Loan Corporation v. Health First Wellington Square Limited (1995) 38 C.P.C. 3rd (Ont.C.A.); the trial judge usurped the role of counsel and descended into the arena: Stein v. Sandwich West Township (1995) 25 M.P.L.R. (2d) 170 (Ont.C.A.), the trial judge engaged in extensive cross-examination of two witnesses and challenged their credibility: Lennox v. Arbour Memorial Services Inc. (2001), 56 O.R. (3d) 795. The Canadian Judicial Council in its publication “Ethical Principles for Judges” has provided the following guidance to judges on the subject of conflict of interest at page 46:

… the general principle that a judge should disqualify him or herself if aware of any interest or relationship which, to a reasonable, fair minded and informed person would rise to reason suspicion of lack of impartiality.

[13] In the case at bar the deputy judge did not disqualify himself and based on the thin reed of the associations referred to by the applicant, I find that there was no need for him to do so.

CONCLUSION ON BIAS

[14] The deputy judge had no direct association with the Township of Tay Fire Department. His direct association with a neighbouring fire department, the Town of Midland, ended some 13 years before the trial. The associate at his law firm was not a counsel or party to these proceedings. He became a volunteer firefighter in 2007, at approximately the time of the trial, but some four years after the actual accident in question. There was no employer/employee relationship between the deputy judge and this associate.

[15] Applying the well known test of reasonable apprehension of bias as laid out by the Supreme Court of Canada, I have no hesitation in finding that an informed person, viewing the matter realistically and practically, and having thought the matter through, would not find any apprehension of bias on these facts. Therefore, these grounds of appeal must fail.

ERRORS OF FACT OR LAW

[16] It is well established that the test to be applied on the review of a Deputy Small Claims Court Judge’s decision is as follows:

(a) findings of fact or inferences of fact cannot be reversed unless the trial judge has made a palpable and overriding error;

(b) the trial judge’s interpretation of the evidence as a whole should not be overturned absent palpable and overriding error; and,

(c) if the matter is one of law that is deemed to be vital to the disposition of the law suit, the test should be one of correctness.

[17] There is some dispute with respect to the facts involved in this accident. By way of background it is important to note that municipal fire departments are entitled to be paid by the Ministry of Transportation for the Province of Ontario when they respond to calls and provide service with respect to occurrences along Provincial Highways. However, there is no payment if they attend an accident scene and provide no service. In a nutshell, it is the appellant’s contention that this fire department provided no service therefore he ought not to have been invoiced by the Ministry of Transportation as the result of the invoice it received from the Fire Department. It was the respondent’s position that some service was provided in that the Fire Department, as the first responder, provided an initial assessment at the scene, and assisted the O.P.P. at the scene.

[18] In evidence Mr. Powell acknowledged that the fire department was the first responder and spoke to him as to his condition. He acknowledged that the three trucks were on the scene for approximately an hour and a half, however, it was his evidence that they didn’t do anything.

[19] Evidence for the respondent at trial was given by Robert Duncan, Fire Chief. Mr. Duncan was not at the scene but prepared the Fire Department’s invoice approximately three weeks after the accident. He prepared the invoice based on information provided to him by officers at the scene and by reviewing the O.P.P. police investigation report which was provided to him. His report as filed was the subject of cross-examination. Mr. Duncan acknowledged that he made an error on the report. He ticked off a box that said clean up of spills and acknowledged at trial that there was no evidence of any spill. However, he also ticked off the box which said assist O.P.P. This was not subject to any comment on cross-examination.

[20] The evidence indicated that the accident happened on a highway on-ramp. In addition to the appellant’s car in the ditch, there were five vehicles on the scene, including three fire trucks, a police car and a tow truck. There was only one police officer at the scene. At some point in time after the accident, the tow truck extracted the vehicle and brought it back on the on-ramp. The deputy judge in his reasons stated:

Now, whether or not the roadway was blocked by the fire trucks as indicated by the Chief, my leaning would be that the road probably was blocked in spite of Mr. Powell’s apparent recollection of what went on at the time. The Chief indicated that their protocol indicates that they render the scene safe, which would mean precluding traffic from driving through the area while their operations are under way.

[21] As indicated earlier, firefighters were first on the scene and were in a position to assess the situation and render first aid and traffic assistance to the police officer.

THE LAW

[22] As the Supreme Court of Canada stated in Paul Housen v. Rural Municipality of Shellbrook, No. 493, 2002 SCC 33, 2002 S.C.C. 33 at page 3:

It is argued that the trial judge enjoys numerous advantages over appellant judges which bear on all conclusions of fact, and, even in the absence of these advantages, there are other compelling policy reasons supporting a deferential approach to inferences of fact. We conclude, therefore, by emphasizing that there is one, and only one standard of review applicable to all factual conclusions made by the trial judge – that of palpable and overriding error.

[23] As Smith J. said in Savin v. McKay (1984) 44 C.P.C. 192 (Ont.Div.Ct.) at pages 192-193:

Since it is an appellate court which is not designed for retrial of the action, an error of law must be shown before the appeal will succeed.

CONCLUSION

[24] Based on the invoice indicating O.P.P. assistance, the evidence the deputy judge heard as to the first response by the Fire Department, the number of vehicles at the scene together with the extraction of this vehicle from the ditch back on to the travelled roadway, I cannot conclude that the judge made a palpable and overriding error in his conclusions. On all the evidence, he was entitled to conclude that the fire department blocked the roadway to render the scene safe by precluding traffic from driving through the area while the vehicle was being extracted from the ditch to the roadway. Deputy Judge Symons carefully and thoroughly reviewed the evidence in a nine-page judgment. He accepted the evidence of the appellant on many issues and indicated that he gave consideration to the appropriate weight to be given to the evidence of Mr. Duncan. He decided on the facts before him a service was provided. I do not find any palpable or overriding error on the findings of fact or errors of law.

[25] I would therefore dismiss the appeal on these grounds as well.

ADMINISTRATIVE COSTS

[26] The appellant also objected to the respondent’s addition of a fifteen percent administrative fee to the invoice it received from the Fire Department before billing the appellant. The deputy judge heard evidence from Winston Newman, the acting manager of the claims office for the Ministry of Transportation. The deputy judge accepted his evidence that this was the standard and customary practice that the Ministry of Transportation applied to all such invoices to recoup a portion of its administrative expenses. I am satisfied that the deputy judge had sufficient evidence before him to conclude that this was reasonable under the circumstances and I would dismiss this ground of appeal.

[27] The appellant’s appeal is therefore dismissed with costs payable to the respondent. If the parties cannot agree on costs, then the respondent may submit a cost outline and brief submission of costs not exceeding three pages within 20 days and the appellant should file his costs submissions with 30 days of the issuance of this Endorsement.

MULLIGAN, J.

DATE: February 23, 2009