CITATION: C.M.M. v. D.G.C., 2015 ONSC 1681
DIVISIONAL COURT FILE NO.: No. 57-14 DATE: 20150316
ONTARIO SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
Sachs, Frank and D. Brown JJ.
BETWEEN:
C.M.M.
Appellant
– and –
D.G.C.
Respondent
– and –
J.M.
Respondent
J. Wilson, for the Appellant
V. Ambrosino, for the Respondent
S. Preshner, for the Office of the Children’s Lawyer
J. Hunter, for the intervenor, the Attorney General of Ontario
A. Luey and M. Birdsell, for the intervenor, Justice for Children and Youth
HEARD at Toronto: March 5, 2015
D. Brown J.
[1] D.G.C. moves to set aside the appeal decision of this panel dated January 13, 2015 (2015 ONSC 39) (the “Decision”) which was authored by Sachs J. and concurred in by Frank J. and myself. The principles applicable to this motion are those set out in Wewaykum Indian Band v. Canada, 2003 SCC 45.
[2] Several weeks after the panel released its Decision, counsel for D.G.C. wrote the court to advise his client had discovered that in late 1998 a solicitor-client relationship had existed for a brief period of time between Sachs J. and D.G.C. That brief solicitor-client relationship had ended upon the appointment of Sachs J. to the bench on November 24, 1998.
[3] At the time this appeal was heard on November 28, 2014, neither Sachs J. nor D.G.C. had any recollection of the previous solicitor-client relationship.
[4] D.G.C. deposed that he only recalled the relationship upon discovering a piece of correspondence during his preparation for a February 19, 2015 case conference in this proceeding. That January 11, 1999 correspondence was on the letterhead of the firm at which Sachs J. had practised. In it, Sachs J. had advised D.G.C. of her appointment to the Bench and enclosed an account for services rendered.
[5] On this motion D.G.C. does not allege actual bias. Instead, D.G.C. submits that his retainer of Sachs J. in 1998, when she was in private practice, and his disclosure of privileged information to her at that time, gives rise to a reasonable apprehension of bias in respect of the participation of Sachs J. in the Decision. D.G.C. submits that such a reasonable apprehension of bias requires that the Decision be set aside.
[6] Of paramount consideration on this motion is the principle of the appearance of the impartiality of the courts. Canadian law recognizes a strong presumption of judicial impartiality: Weywakum Indian Band, at para. 76. Where a party makes an allegation of reasonable apprehension of bias against a judge, Canadian law applies an objective standard, one which requires that any apprehension of bias against a judge be a reasonable one, held by reasonable and right-minded persons, applying themselves to the question and obtaining the required information to determine the question. In considering a motion for recusal on the basis of a reasonable apprehension of bias, a court must consider whether a person, armed with such information, would think that it is more likely than not that the judge, whether consciously or unconsciously, would not decide fairly: Committee for Justice and Liberty v. National Energy Board, 1976 2 (SCC), [1978] 1 S.C.R. 369, at p. 394.
[7] Section E.15 of the Canadian Judicial Council’s Ethical Principles for Judges, which deals with conflicts of interest involving former clients, states, in part: “A judge who was in private practice should not sit on any case in which the judge…was directly involved as either counsel of record or in any other capacity before the judge’s appointment.” In Del Zotto v. Canada (Minister of National Revenue), 2000 17139 (FCA), [2000] 4 F.C. 321 (C.A.), the Federal Court of Appeal observed, at para. 25, that while a departure from guidelines, such as the Ethical Principles for Judges, does not equate automatically to a reasonable apprehension of bias, such guidelines are drafted with a view to identifying those circumstances in which a reasonable, fair minded and informed person could have a reasoned suspicion of a conflict. Nonetheless, in every case the inquiry into whether a reasonable apprehension of bias exists is highly fact-specific; it cannot be addressed through peremptory rules: Weywakum Indian Band, para. 77.
[8] Turning, then, to the facts of this case, D.G.C. deposed that he had retained Sachs J. to represent him in relation to the issues connected to the pregnancy of J.M., the birth of C.M.M., and the possibility of a proposed agreement between J.M. and himself. Accordingly, the record discloses that the subject-matter of the 1998 solicitor-client relationship between D.G.C. and Sachs J. concerned events which ultimately culminated in D.G.C. and J.M. entering into the March 25, 1999 agreement, an agreement which forms part of the factual matrix at issue in this proceeding and in respect of which relief is sought by D.G.C. in his Answer.
[9] D.G.C. also deposed that during the course of the retainer he met and had numerous and lengthy discussions with Sachs J. During those discussions he disclosed everything about his case, including private details and privileged information, and he received advice, upon which he had acted.
[10] In light of that evidence, and notwithstanding the passage of some 16 years since the time of the brief solicitor-client relationship, the lack of recollection of that relationship by both D.G.C. and Sachs J. prior to the release of the Decision, and the independent concurrence of Frank J. and myself in the Decision authored by Sachs J., in my view prudence dictates that the Decision be set aside, this panel stand down from this matter, and a new panel be constituted by the Associate Chief Justice to re-hear the appeal.
[11] If any party intends to seek costs of the appeal and motion, they must serve and file brief cost submissions no later than Tuesday, March 24, 2013. Any brief responding cost submissions must be served and filed no later than Tuesday, March 31, 2013. Cost submissions shall not exceed seven (7) pages in length, including cost outlines or bills of cost.
___________________________ D. Brown J.
I agree:
Sachs J.
I agree:
Frank J.
Released: March 16, 2015
CITATION: C.M.M. v. D.G.C., 2015 ONSC 1681
DIVISIONAL COURT FILE NO.: No. 57-14 DATE: 20150316
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
Sachs, Frank and D. Brown JJ.
BETWEEN:
C.M.M.
Appellant
– and –
D.G.C.
Respondent
– and –
J.M.
Respondent
REASONS FOR JUDGMENT
D. Brown J.
Released: March 16, 2015