Court File and Parties

CITATION: Kivisto v. Law Society of Ontario, 2021 ONSC 6394

DIVISIONAL COURT FILE NO.: 265/19

DATE: 20210927

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

D.L. Corbett, Fitzpatrick and Favreau JJ.

B E T W E E N:

JUSSI KUSTAA KIVISTO

Mr Kivisto, self-represented

Appellant

• and -

THE LAW SOCIETY OF ONTARIO

Amanda K. Worley, for the Respondent

Respondent

Heard by Videoconference: Feb. 5, 2021

REASONS FOR DECISION

D.L. Corbett J.:

[1] On September 24, 2020, this panel heard an appeal from a decision of the Appeal Panel of the Law Society of Ontario, upholding a decision of a Hearing Panel of the Law Society of Ontario, finding that Mr Kivisto engaged in conduct unbecoming a member of the Society and ordering Mr Kivisto’s disbarment. This panel dismissed the appeal for oral reasons given on the date of the hearing (2020 ONSC 5790).

[2] On November 30, 2021, Mr Kivisto moved before this panel asking us to set aside our decision and remit the appeal for a hearing before a fresh panel of this court on the basis of a reasonable apprehension of bias on the part of this panel. The allegations of reasonable apprehension of bias were made principally against me, and Mr Kivisto alleged that because of a reasonable apprehension that I was biased, my participation in the appeal tainted the panel’s decision.

[3] The parties were directed to exchange materials in respect to Mr Kivisto’s allegations of reasonable apprehension of bias, and this panel reconvened to hear argument on this point on February 5, 2021.

[4] For the reasons that follow I would dismiss Mr Kivisto’s motion to set aside our decision of September 24, 2020.

Legal Framework

[5] In R. v. Musselman, I described the principles that apply to an allegation of bias or reasonable apprehension of bias as follows:

The right to trial before an independent and impartial tribunal is fundamental. It is enshrined expressly in s. 11(d) of the Charter; it is inherent in the principles of fundamental justice guaranteed in Section 7 of the Charter; it is likewise enshrined in the Canadian Bill of Rights, s.2(e) and (f) and in Article 14 of the International Covenant on Civil and Political Rights, to which Canada has been a signatory since 1976. See R. v. Lippe et al. (1991), 64 CCC (3d) 513 (SCC).

Impartiality is assessed on both a subjective and objective basis, as reflected in the time-honoured principle restated by Cory J. in R. v. R.D.S. (1997), 118 CCC (3d) 353 at 384: “In order to fulfill this duty [of fairness] the decision-maker must be and appear to be unbiased.”

A writ of prohibition may issue where an applicant establishes a reasonable apprehension of bias on the part of the Judge: R. v. Steele (1895), 26 OR 540 (CA); R. v. Handley (1921), 54 NSR 470 (CA); Nichols v. Graham (1937), 68 CCC 349 (Man. KB).

A “mere possibility” of bias is not sufficient to establish a reasonable apprehension of bias: Ex parte Victory (1893), 32 NBR 249 (CA); Campbell v. Walsh (1910), 40 NBR 186 (CA). Rather, the likelihood of bias must be real and substantial: Childs v. The Queen (1958), 122 CCC 126 (App. Div.); R. v. Menzies; ex parte Skoff, [1970] 1 CCC 345 (Ont. HC); R. v. Camborne Justices, ex parte Pearce, [1954] 3 WLR 415 (Div. Ct.).

There is a strong presumption that Judges will carry out their judicial functions fairly, independently, and impartially. The threshold for a successful allegation of apprehended bias is high. “However, despite this high threshold, the presumption can be displaced with ‘cogent evidence’ that demonstrates that something the Judge has done gives rise to a reasonable apprehension of bias.” See: R. v. R.D.S. (1997), 118 CCC 353 (SCC); R. v. Curragh Inc. (1997), 113 CCC (3d) 481 (SCC).

“Bias as applied to a person or tribunal… is a state of mind disqualifying the person affected from adjudicating impartially in respect of the subject-matter under consideration. It is not a concrete fact but is an inference to be drawn from relevant facts”: Ex parte Perry (1929), 51 CCC 105 (PEI SC), per Mathieson C.J. As reflected in this statement, bias is not solely circumscribed by a subjective animus towards a participant in the proceedings, or some personal interest in the outcome. “Bias” refers to anything that may reasonably lead the adjudicator to decide the case on some basis other than the evidence before the tribunal and the law. “Apprehended bias” refers to anything that may lead the informed and reasonable observer to form a reasonable apprehension that the adjudicator might decide the case on some basis other than the evidence and the law.

“The scope of this duty [of fairness] and the rigour with which it is applied will vary with the nature of the tribunal in question. For very good reason it has long been determined that the courts should be held to the highest standard of impartiality.” See: R. v. R.D.S. (1997), 118 CCC (3d) 353 at 384, per Cory J.

To establish a reasonable apprehension of bias, the applicant must establish that the reasonable person, with knowledge of the relevant circumstances, would have a reasonable apprehension of bias: R. v. Moore, ex parte Brooks (1969), 6 DLR (3d) 465 (Ont. HC); R. v. McCelvis, ex parte Robbins (1970), 1 CCC (2d) 238 (Ont. HC); Committee for Justice and Liberty v. National Energy Board (1976), 68 DLR (3d) 716.

The test, thus stated, involves two objective elements (see R. v. Bertram [1989] OJ No. 2123 (Ont. HCJ), per Watt J.):

i. The person by whom bias is apprehended must be a reasonable person, invested with full knowledge of the circumstances said to give rise to bias; and

ii. The apprehension of bias, itself, must be reasonable and not far-fetched or the product of an overly sensitive mind.

For authoritative and compendious statements of the test, see: Committee for Justice and Liberty v. National Energy Board (1976), 68 DLR (3d) 716 (SCC., per de Grandpre J., and the passage from R. v. R.D.S. in the judgment of Langdon J. in Moore, referenced at footnote 11, below.[^1]

These principles were stated in the context of a criminal trial. The expectation of independence and impartiality applies equally in the context of civil regulatory proceedings, such as the case at bar.[^2]

Mr Kivisto’s Arguments

(a) Allegation that I showed a reasonable apprehension of bias by refusing Mr Kivisto’s Request to File a Long Factum in December 2019

[6] Mr Kivisto argued that I showed a reasonable apprehension of bias because I refused a request from him on December 9, 2019 to file a factum in this case exceeding 30 pages in length. My endorsement from that date stated: “The draft version [of Mr Kivisto’s factum] is prolix and unfocused. The request is denied.”

[7] Mr Kivisto did remind me at the outset of the hearing that I had denied a request for a long factum “way back in January”. As I told Mr Kivisto when he raised the point, I did not recall “that that was this case. Now that you remind me, I do vaguely recall that there was a request for a factum beyond 30 pages, which I did not [grant]…. I don’t remember anything more about it than that.” Mr Kivisto baldly alleges that there is a reasonable apprehension that I “lacked candour” in making this statement. No explanation is provided as to why these facts could give rise to such a conclusion.

[8] With respect, Mr Kivisto fails to appreciate the reality of judging. In a routine day, an administrative judge of this court may give several dozen procedural directions. This amounts to several hundred directions per year. I did not remember on September 24, 2020 that I had denied Mr Kivisto’s request for a long factum back in January, and when he jogged my memory, I had only the vaguest recollection of it.

[9] As administrative judge for the Divisional Court, I routinely consider requests to file factums longer than thirty pages in length. Such requests are rarely granted. Making routine procedural orders prior to a hearing does not give rise to a reasonable apprehension of bias on the part of an administrative judge, a motions judge, or a case management judge.

[10] The routine procedural direction I gave in this file in January 2020 does not give rise to a reasonable apprehension of bias in respect to the hearing of the appeal in September 2020.

(b) Allegation that I Manipulated the Docket to Hear Mr Kivisto’s Appeal in Order to Dismiss It

[11] The appeal was originally scheduled for September 17, 2020, before Sachs, Kristjanson and King JJ. During preparation of the case the night before the scheduled hearing, the President of the panel, Sachs J., discovered that her spouse, Clayton Ruby, Q.C., had been a member of the Appeal Panel that made the order that was the subject-matter of the appeal.

[12] When the hearing commenced on September 17, 2021, Justice Sachs advised the parties that she had a conflict and that the matter would have to be rescheduled before a different panel. Her Honour explained that if she had discovered the conflict earlier, she could have arranged to switch assignments with the judge scheduled to hear Divisional Court motions on September 17th. However, as she had only discovered the conflict the evening before the hearing, it had not been possible to make that substitution and for the motion judge to be prepared properly to hear the appeal on September 17th. Sachs J. offered the parties a return date the following week on either September 22 or 24, 2020. The parties selected September 24, 2020, which is how the appeal came to be before this panel on the hearing date.

[13] Mr Kivisto argues in his factum: “[t]here is a reasonable apprehension that upon learning, on or about September 17, 2020, about Justice Sach’s conflict, Justice Corbett cleared the Court’s docket for two separate days during the week beginning September 21, 2020 for the purpose of dismissing the Lawyer’s appeal.”

[14] This argument is both counter-intuitive and preposterous. This panel was already scheduled to sit on cases for the week of September 21, 2020. When Justice Sachs’ conflict came to light, arrangements were made to place this case before us during the following week, since we were able to accommodate the case in our schedule. No hearings were adjourned or cancelled for the purpose of making room on our schedule to hear this case. This panel accommodated this case to facilitate timely hearing of the appeal.

[15] Mr Kivisto did not raise this concern before Justice Sachs when the case was adjourned, or before this panel on September 24, 2020.

[16] The rescheduling of this appeal because of a conflict to a panel already constituted to hear matters that week does not give rise to a reasonable apprehension of bias.

(c) Transcript Discloses Prejudgment

[17] Mr Kivisto baldly asserts that “[t]he transcript makes it clear that the Court’s decision to dismiss the appeal had been made well before the panel was seated.” There is nothing in the transcript to support such an allegation. Mr Kivisto received his full time to make his submissions. He used that time. The court’s oral reasons show clearly that the court heard and considered Mr Kivisto’s oral submissions: a large portion of the oral reasons are structured around those oral submissions.

[18] Argument during an appeal is not akin the fact-finding process in a trial court. The record below is before the appeal court in writing. The parties’ arguments are before the court in writing. The appeal court has read and digested all of these materials. It is normal for appellate judges to ask questions and put propositions to the parties that reflect the court’s understanding of the case. It is also normal for an appeal court to frame the arguable issues with the parties so that the time spent in oral argument is focused on the issues in dispute.

[19] There is nothing out of the ordinary about the argument that took place before this court in this case.

(d) The Decision Discloses Prejudgment

[20] This court rendered an oral judgment on the day of the hearing. That oral judgment was rendered by me, on behalf of the panel, after Mr Kivisto completed his oral arguments and after the court caucused to consider the case. On even a cursory review of the oral reasons, it is clear that they summarize and address the arguments made by Mr Kivisto in oral argument.

[21] In his factum Mr Kivisto restates his arguments on the appeal and argues that this court must have prejudged the case because his arguments were correct and this court’s decision was wrong. Simply put, this court did not find favour with Mr Kivisto’s arguments on appeal. Our failure to accept Mr Kiviso’s arguments does not ground an argument for reasonable apprehension of bias.

[22] I would not review or respond to Mr Kivisto’s arguments about the substance of the appeal. This court gave its reasons on September 24, 2020. Those reasons explain why the appeal was dismissed. It is neither necessary nor appropriate for this court to revisit its decision because Mr Kivisto has alleged reasonable apprehension of bias: our oral reasons say everything necessary to explain why the appeal was dismissed.

(e) No Actual Bias

[23] I was indifferent as between Mr Kivisto and the Law Society. I have no personal interest in the subject-matter of the appeal. I do not know Mr Kivisto. The primary issue on the appeal was legal in nature, as is reflected in the decision of the Appeal Panel below and this court’s reasons in the instant appeal.

[24] Mr Kivisto argued that the cumulative effect of the points he raises on this motion, taken all together, gives rise to a reasonable apprehension. I do not accept that argument. This was an ordinary appeal, heard and decided in an ordinary way. Nothing about it gives rise to a reasonable apprehension of bias.

Summary and Conclusion

[25] I would dismiss Mr Kivisto’s motion to set aside this panel’s decision dismissing his appeal.

[26] There shall be no order for costs.

D.L. Corbett J.

Fitzpatrick and Favreau JJ.:

[27] We have reviewed Corbett J.’s reasons and fully agree that Mr. Kivisto has not made out his claim of reasonable apprehension of bias in this case.

[28] As observed by Corbett J., administrative judges are required to make many directions and rulings on issues leading up to a hearing, including the permissible length of a factum. Corbett J.’s ruling denying Mr. Kivisto’s request to file a factum longer than 30 page in this case, including the language used to describe Mr. Kivisto’s proposed factum, would not lead a reasonable person to conclude that our colleague had made up his mind about the merits of Mr. Kivisto’s case. It is trite law that a ruling unfavourable to a litigant, even when expressed in strong language, on its own cannot form the basis for finding a reasonable apprehension of bias.

[29] We also agree that there is no basis for Mr. Kivisto’s suggestion that there is a reasonable apprehension of bias in the manner in which this matter was scheduled. As one of the administrative judges of the Divisional Court, Justice Favreau is aware of how matters are scheduled in this Court. Generally, as in this case, hearing panels are scheduled months ahead to sit for a week at a time. Here, when the original hearing date was cancelled due to a conflict of interest by Justice Sachs, it was fortuitous that there was availability for a hearing the following week. There was no design to schedule this matter before Corbett J. and any suggestion by Mr. Kivisto to the contrary is unsupported and defies common sense.

[30] Also, we agree that the manner in which the hearing was conducted does not give rise to a reasonable apprehension of bias. It is normal and expected for the president of a panel to control the hearing process and for all members of a panel to ask questions, including expressing their concerns about the positions advanced by the parties. In order for such questions or interventions to give rise to a reasonable apprehension of bias, courts look at the cumulative conduct and not at isolated questions or interventions. We have reviewed the transcript in this matter and are satisfied that the conduct of the hearing did not create a reasonable apprehension of bias. The questions and interventions were directed at testing the logic and foundation of Mr. Kivisto’s arguments and positions. This is a proper and appropriate role of the Court on an appeal, such as this one, where Mr. Kivisto challenged multiple findings made by the tribunal below.

[31] Besides the arguments made by Mr. Kivisto addressed in Corbett J.’s reasons, in his factum Mr. Kivisto also relies on findings made by the Court of Appeal in an unrelated case about the manner in which our colleague had conducted a prior case. That decision and the Court of Appeal’s comments in that case have no bearing or relevance on the issue of whether there is a reasonable apprehension of bias in this case. The decision in question is over 5 years old. Mr. Kivisto was not a party to that case nor has he suggested that this matter is in any way related to that case. There is no basis for Mr. Kivisto’s attempt to suggest a reasonable apprehension of bias based on an unrelated decision of the Court of Appeal.

[32] Accordingly, we agree that the motion for recusal should be dismissed.

Fitzpatrick J.

Favreau J.

Released: September 27, 2021

[^1]: R. v. Musselman (2004), 25 CR (6th) 295 (Ont. SCJ), paras. 15-23.

[^2]: See, for example, Committee for Justice and Liberty v. National Energy Board (1976), 68 DLR (3d) 716 (SCC) and Wewaykum Indian Band v. Canada, 2003 SCC 45, [2003] 2 SCR 259 and the non-criminal cases cited in the quotation from Musselman, above.