Robinson v. Lepage, 2015 ONSC 3128

CITATION: Robinson v. Lepage, 2015 ONSC 3128

DIVISIONAL COURT FILE NO.: 14-DC-2028

DATE: 2015/05/15

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

BETWEEN:

Dale Robinson

Appellant

– and –

Paula Lepage

Respondent

Arthur Ayers, for the Appellant

Ralph A. Lee, for the Respondent

HEARD: May 13, 2015

Justice Patrick Smith

Introduction

1This is an appeal by Dale Robinson from the decision of Small Claims Court Deputy Judge Lyon Gilbert dated May 8, 2014 awarding damages for breach of contract to the Respondent, Paula Lepage, in the amount of $4,386.02, plus pre and post judgment interest calculated at 5% from September 23, 2012 to the date of payment. Costs were fixed in favour of the Respondent at $1,650.00.

2The three grounds of appeal raised by the Appellant are as follows:

1. The behaviour of the Deputy Judge towards the Appellant during the course of the trial demonstrated a reasonable apprehension of bias which precluded the Appellant from presenting his evidence, question witnesses and make representations;

2. The Deputy Judge acted unethically by personally soliciting and receiving charitable donations from the paralegal representing the Respondent and in failing to disclose this fact to the Appellant prior to the commencement of the trial;

3. The Deputy Judge made errors in law, an overriding and palpable error in fact, or a combination of the two, resulting in a miscarriage of justice.

3My decision and reasons will deal with the second ground of appeal namely, the solicitation of funds for a personal charitable cause from members of the legal profession including the representative of the Respondent and whether this is sufficient to establish a reasonable apprehension of bias.

Background

4During the month of April 2014, Deputy Judge Lyon Gilbert entered the “CN Cycle for CHEO” sporting event – an event planned for May 4, 2014.

5The event had a website allowing competitors to advertise themselves for the purpose of soliciting funds. Once a donation was received, the name of the donor was added to the competitor’s website.

6Deputy Judge Gilbert posted a picture of himself on the website asking the public to “Please sponsor Lyon Gilbert” along with a message “Some of you may know me; others may not. I am a member of the Ottawa Legal Community.”

7Deputy Judge Gilbert had been a lawyer and Deputy Small Claims Court Judge in Ottawa for many years.

8Nine days before the commencement of the trial over which Deputy Judge Gilbert presided he received a financial donation of an undisclosed amount from Phoenix Paralegal & Advocacy Services. This donation was posted on his website.

9Phoenix Paralegal & Advocacy Services is the employer of Tami Cogan – the paralegal who represented the Respondent at trial.

10Also posted on the website was a comment sent by Tami Cogan on April 6, 2014 to Deputy Judge Gilbert stating: “A great effort for a great cause. Enjoy the ride Mr. Gilbert!”

11Deputy Judge Gilbert did not disclose receipt of the financial donation received from Phoenix Paralegal & Advocacy Services or the message received from Tami Cogan. The Appellant only learned of this information after receiving Deputy Judge Gilbert’s decision.

Discussion

12There have been many reflections from the earliest of times upon the qualities that a judge must possess. Socrates perhaps said it best: “four things belong to a judge- to hear courteously, to answer wisely, to consider soberly and to decide impartially.” The case before the court concerns the quality of impartiality.

13Public perceptions including the perception of impartiality are an integral part of the legal system. The public must have confidence that when they appear in court they will receive a fair and unbiased hearing. The integrity of the administration of justice depends upon this perception.

14Public perception involves the perception of the public at large as well as the perception of the litigants. Sir Robert Megarry, a noted English judge, once observed that the most important person in the court room with respect to the issue of perception is “the litigant who is going to lose.” [Sir Robert Megarry, “Temptations of the Bench”, 16 Alberta Law Review 406 at 410].

15In this case, the Appellant (Defendant) asserts that the judge hearing the trial demonstrated a reasonable apprehension of bias and that a new trial is therefore required.

16The Canadian Judicial Council (CJC) has published “Ethical Principles for Judges”. Under the heading Civic and Charitable Activity the following guideline appears:

Judges are free to participate in civic, charitable and religious activities subject to the following considerations:

(a) Judges should avoid any activity or association that could reflect adversely on their impartiality or interfere with the performance of judicial duties.

(b) Judges should not solicit funds (except from judicial colleagues or for appropriate judicial purposes) or lend the prestige of judicial office to such solicitations.

17Deputy Judges of the Small Claims Court are subject to the same ethical standards as other judges of Ontario. They hear a large volume of cases and discharge an extremely important function within the legal system. Over the years, the monetary jurisdiction of the court has steadily increased in recognition of the important role the court plays. For a large portion of the public, the Small Claims Court is the court where litigation of their grievance takes place.

18One of the rationales behind the establishment of ethical guidelines for the judiciary is to ensure that judges avoid any perceived apprehension of bias. Actual bias will always disqualify a judge; however, where there is a reasonable apprehension of bias, a judge must disqualify himself/herself to safeguard confidence in the administration of justice.

19The test for ascertaining whether there is a reasonable apprehension of bias was set out by the Supreme Court of Canada in Committee for Justice v. The National Energy Board, [1978] 1 S.C.R. 369 :

…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 the Decision maker, whether consciously or unconsciously, would not decide fairly.

20Whether Deputy Judge Gilbert was aware of the ethical guidelines of the CJC is not material. He had received a financial donation from the paralegal company representing the Respondent along with a personal message from the paralegal, herself.

21When the Appellant learned of Deputy Judge Gilbert’s relationship with Phoenix Paralegal & Advocacy and the Respondent’s representative, Tami Cogan, after receiving the decision of the court, he could not but think that he did not receive a fair trial and that the judge was biased in favour of the Respondent (Plaintiff). Any informed person, viewing the matter realistically and practically would arrive at the same conclusion.

22Deputy Judge Gilbert should have recused himself on his own volition under the circumstances.

23All of this information should have been disclosed by Deputy Judge Gilbert to the Appellant before the commencement of the trial and it was not. Failure to make disclosure denied the Appellant the opportunity to ask for an adjournment or to request that the judge recuse himself.

24It is my finding that the Appellant has established that Deputy Judge Gilbert demonstrated a reasonable apprehension of bias. Consequently, there is no reason to address the other grounds of appeal.

25The appeal is allowed. The decision of Deputy Judge Gilbert is set aside. The registrar of the Small Claims Court is directed to schedule a new trial date.

26Under the circumstances no order of costs is made.