DIVISIONAL COURT FILE NO.: DC-15-144
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
MEW, HAMBLY and DAMBROT, JJ.
B E T W E E N:
GARY GRANT and DIANA KOPP GRANT
Appellants
– and –
ROBERT STOCKEY
Respondent
M. Wiffen, for the Appellants
Ian Latimer, for the respondent
HEARD in Brampton: 17 October 2016
MEW J. (ORALLY):
Background
1This appeal is the latest chapter in the long and somewhat tortured history of a dispute, which has its origins in a 2004 agreement of purchase and sale of residential property in Orangeville.
2On 9 December 2015, Emery J. gave the appellant, Gary Grant, leave to appeal an order made by Mr. Justice André, on 8 December 2014, which dismissed his motion to set aside two orders made by Mr. Justice Daley in December 2009 and June 2010. The effect of those orders was to direct the trial of certain issues between the parties and to provide appropriate directions relating to the trial of those issues.
3It is not necessary for the purposes of this appeal to repeat the detailed history of this litigation. A helpful and comprehensive outline is provided in the endorsement of Emery J., reported at 2015 ONSC 7569, paragraphs 4-19.
4Suffice it to say, that in 2009, Mr. Justice Daley heard two motions, one brought by Mr. Grant to set aside minutes of settlement that had been entered into with the plaintiff, Robert Stockey, and the other by Mr. Stockey seeking possession of the property which had been the subject of the agreement of purchase and sale and subsequent settlement agreement. Daley J. came to the conclusion that there should be a trial of certain issues that he identified in his reasons released on 23 December 2009. He also ordered that he remain seized of the matter.
5A further motion was brought by Mr. Grant on 29 June 2010 seeking to add to the issues to be tried. Daley J. dismissed that motion, declining to add to the issues to be tried.
6The trial of the issues defined in the trial management orders came before Mr. Justice Daley on 11 April 2011, at which time he recused himself from hearing the trial of the issues. He stated his reasons for doing so as follows:
Mr. Grant, being advised of the fact that counsel, Ian Latimer, will testify on behalf of the plaintiff, Stockey, and upon being advised by me that Mr. Latimer is a Deputy Judge of the Small Claims Court of the Central West Region has requested that I recuse myself. As I advised counsel and Mr. Grant, Mr. Latimer is not a social acquaintance or friend but he is a deputy judge in the Small Claims Court and I am the Administrative Judge for the Small Claims Court in this Region. Mr. Grant advised that he was not aware of Mr. Latimer’s status as a Deputy Judge until being advised by me. I have, today, been advised, by counsel, Mr. Latimer will testify as a witness in this trial. I expect that Mr. Latimer will testify as to the circumstances surrounding the negotiation, drafting and execution of the Minutes of Settlement, which are the subject of this trial. The parties in this action are entitled to an impartial and independent judicial determination of the issues at stake in this trial. The parties are not only entitled to an impartial and independent determination of the issues, but also to the appearance of such impartiality and independence. While I am satisfied that I can independently and impartially try this case, I am of the view that given Mr. Latimer’s status as a Deputy Judge of the Small Claims Court, the appearance of judicial independence and impartiality might be eroded to such an extent that a reasonable fair-minded and informed person would have a reasoned suspicion that there would be less than complete impartiality and independence on the part of the court.
In the result, I have concluded that I must recuse myself. The trial of the issues directed to be tried by me in my endorsement of December 23rd, 2009, is adjourned to a date to be set. The trial should be conducted by a justice from another Region of the Superior Court upon arrangements being made through the regional trial administrator’s office.
7Instead of proceeding with a trial of the issues in front of another judge, Mr. Grant brought an ill-conceived application for judicial review seeking, among other things, to set aside or change the orders made by Daley J. on the 23 December 2009 and 29 June 2010 on the basis that those orders had been compromised by Mr. Justice Daley’s subsequent disclosure of his relationship with Mr. Latimer and his decision to recuse himself.
8The Divisional Court held that it was without jurisdiction. The endorsement of the court, dated the 3rd December 2012 stated:
The applicant seeks judicial review of two interlocutory orders of Daley, J. He was previously refused an extension of time to seek leave to appeal those orders.
This court has no jurisdiction to grant judicial review of an order of the Superior Court judge sitting in that capacity.
Accordingly this application for judicial review is dismissed.
9Mr. Grant unsuccessfully appealed the Divisional Court’s decision to the Court of Appeal.
10Mr. Grant then brought a motion to set aside the 23 December 2009 and 29 June 2010 orders of Mr. Justice Daley.
11The motion was heard by Mr. Justice André who concluded, in reasons reported at 2014 ONSC 4889, that Mr. Grant was precluded by the doctrine of issue estoppel from re-litigating the issue of reasonable apprehension of bias, where that issue had been dealt with by both the Divisional Court and the Court of Appeal.
12In granting leave to appeal, Mr. Justice Emery concluded that there was good reason to doubt the correctness of the order made by André J on 8 December 2014. His rationale is captured in the following sentences at paragraph 31 of his decision:
… the Divisional Court did not dismiss the application for judicial review after considering whether there could be found a reasonable apprehension of bias on the part of Justice Daley when he made the trial management orders. The finding of the Divisional Court was far more fundamental; it found that it had no jurisdiction to make such a ruling over a Superior Court judge “sitting in that capacity” at all. This is likely because it is the function of an appellate court to sit on appeal of an order made by a judge, and not on a judicial review.
Issues
13The issues raised on this appeal are threefold:
a. whether André J. erred in finding that issue estoppel applied;
b. whether Daley J.’s finding of reasonable apprehension of bias impacts his earlier decisions; and, if so,
c. whether Mr. Grant is entitled to an order, pursuant to Rule 59.06, setting aside the prior orders of Daley J.
Analysis
14Mr. Stockey concedes that André J. erred in law when he dismissed the motion on the grounds that the doctrine of issue estoppel precluded Mr. Grant from re-litigating the issue of reasonable apprehension of bias. We agree and, in that regard, adopt the reasoning of Emery J., excerpted above.
15However, Mr. Stockey’s factum serves a reminder that an appeal is from the result of an order, and not the reasons. André J. may have misapplied the law but, Mr. Stockey argues, he nevertheless came to the correct result.
Reasonable Apprehension of Bias
16Turning to the second issue, there is a strong presumption of judicial impartiality, see R. v. S. (R.D.), 1997 324 (SCC), [1997] 3 S.C.R. 484, at paragraph 49.
17When, in an earlier motion, in the litigation between the parties, Mr. Grant sought to set aside the decision of another judge of this court (but who was not a supervisor of deputy judges), he was unsuccessful. The Divisional Court held in reasons reported at 2014 ONSC 2243, at paragraph 4:
We find that there is no institutional bias in this case. Having a shared occupation does not create such a bias. There are safeguards in place to ensure judges remain impartial. Judges are required to swear an oath of office and are required to adhere to a code that requires them to avoid conflicts of interest.”
18The test for reasonable apprehension of bias which governs in Canadian courts was articulated by the Supreme Court of Canada in Committee for Justice and Liberty et al. v. National Energy Board et al., 1976 2 (SCC), [1978] 1 S.C.R. 369, at page 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. 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 Mr. Crowe, whether consciously or unconsciously, would not decide fairly.
19Deputy judges of the Small Claims Court are appointed by a Regional Senior Justice of the Superior Court of Justice with the approval of the Attorney General: Courts of Justice Act R.S.O. 1990, c. C.43, s. 32. Deputy judges are appointed for terms of three years, which can be renewed for further three-year terms (subject to certain provisions involving the appointments in the renewal of deputy judges age 65 and older).
20There are more than 300 deputy judges in Ontario, sitting in the eight regions of the Superior Court. Their judicial role is part-time. Many, if not most, deputy judges are also practising lawyers. The legislation neither confers any special status on deputy judges nor imposes any restrictions on their activities as lawyers. Specifically, there are no limitations on deputy judges of the Small Claims Court appearing as counsel before other courts or tribunals in Ontario.
21Mr. Justice Daley was evidently faced with the prospect of one of the deputy judges, for whom he had administrative responsibilities, testifying before him as a witness at the trial of issues. As Daley J. noted, he was satisfied that he could independently and impartially try the case. Often, in such circumstances, the parties would agree to a trial judge continuing: the risk of actual bias would usually be non-existent. In this case, however, the parties did not agree that Justice Daley could continue.
22Judges are encouraged to strive to be, and to appear to be, as an impartial as is possible. A commentary in Ethical Principles for Judges, published by the Canadian Judicial Counsel observes at page 32:
This is not a counsel of perfection. Rather it underlines the fundamental nature of the obligation of impartiality which also extends to minimizing any reasonable apprehension of bias.
23Daley J. was, no doubt, mindful of this admonition. His decision to recuse himself appears to have been taken out of an abundance of caution. He was confronted with the unusual, and uncomfortable prospect of hearing from a witness for whom he had administrative responsibilities in that witness’s capacity as a deputy judge. If he had heard the trial he may have had to assess the credibility of Mr. Latimer and was no doubt concerned about the optics of that, given his position.
24Whether or not we would have come to the same conclusion as Daley J. on the question of recusal is immaterial. It was open, and appropriate, for him to conclude that his association with deputy judges could cause the appearance of judicial independence and impartiality to be eroded to such an extent that a reasonable fair-minded and informed person would have a reasoned suspicion that there would be less than complete impartiality and independence on his part.
25The fact that Mr. Justice Daley recused himself from hearing the trial of issues does not, however, in any way, taint his prior involvement in the case. While there will usually be a new trial if a judge is recused during the course of a trial, counsel could point us to no authority which suggested that a recusal would retroactively render decisions and orders at earlier stages of the litigation voidable.
26Indeed, Daley J. could, quite properly, have continued to preside over the trial of issues with Mr. Latimer acting as counsel for Mr. Stockey. It was only Mr. Latimer’s transformation from counsel to a witness that caused Daley J. to raise the fact that he was the administrative judge with responsibility for local Small Claims Court judges and having done so and Mr. Grant’s request, to recuse himself.
27On the second issue, therefore, we find that Daley J.’s recusal has no impact on his previous orders.
Rule 59.06
28In light of this conclusion, it is unnecessary to address the application of Rule 59.06 at any length. Suffice it to say that if we had come to the conclusion that in the circumstances there was a reasonable apprehension of bias on the part of Daley J. at the time of his previous orders, we would regard Rule 59.06 as the appropriate vehicle for seeking an order amending, setting aside, or varying those orders.
Conclusion
29For the foregoing reasons we would dismiss the appeal.
MEW J.
HAMBLY J.
DAMBROT J.
Date of Reasons for Judgment: 17 October 2016
Date of Release: 19 December 2016
CITATION: Grant v. Stockey, 2016 ONSC 7935
DIVISIONAL COURT FILE NO.: DC-15-144
DATE: 20161017
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
MEW, HAMBLY and DAMBROT, JJ.
B E T W E E N :
GARY GRANT and DIANA KOPP GRANT
Appellants
– and –
ROBERT STOCKEY
Respondent
ORAL REASONS FOR JUDGMENT
MEW J.
Date of Reasons for Judgment: 17 October 2016
Date of Release: 19 December 2016