DATE: 20010518

DOCKET: C33861

COURT OF APPEAL FOR ONTARIO

RE: JACQUELINE COATHUP (Applicant/Respondent) –and–

JAMES KENT COATHUP (Respondent/Appellant)

BEFORE: FINLAYSON, CARTHY and CHARRON JJ.A.

COUNSEL: Clinton H. Culic, for the appellant

Stephen Grant, for the respondent

HEARD: May 10, 2001

RELEASED ORALLY: May 10, 2001

On appeal from the judgment of Justice Helen K. MacLeod dated February 2, 2000.

E N D O R S E M E N T

[1] The appellant husband seeks an order pursuant to s. 134(4)(b) of the Courts of Justice Act permitting the introduction of fresh evidence on the issue of the appearance of bias. The evidence is offered to support a request for a new trial and is not directed to any findings made at trial. The proffered evidence consists of the Petition for Divorce of the trial judge along with certain material from that court file and the affidavit of the appellant’s trial counsel.

[2] The court records of the trial judge’s personal divorce proceedings reveal that the divorce was uncontested following agreement between the parties on matters capable of agreement. There is no suggestion that it was acrimonious or raised any issue between the trial judge and her husband that were replicated in the divorce proceedings in this appeal. The sole significance, developed in argument, was that the proceedings were outstanding during the conduct of the within trial and the divorce was made final after the conclusion of this trial and, by coincidence, on the very day that the trial judge settled her judgment with counsel (February 14, 2000).

[3] The affidavit of trial counsel refers to two statements made in chambers by the trial judge to the female counsel for the appellant during the course of this trial. The trial counsel took them as being directed to her and arising out of a comment she had made to the trial judge some 18 months earlier when her own marriage had ended. One of the trial judge’s remarks was ribald and the two of them put together could, in the opinion of the trial counsel present, be interpreted to mean “marriage was not a great idea for women”. Trial counsel was not shocked by the statements and stated that she was “well known for making ribald remarks myself”. She responded to the trial judge with some bantering language of her own.

[4] Ordinarily, this would have been the end of the matter, but unhappily trial counsel repeated the trial judge’s remarks to her client with the observation that she did not think the trial was going well. Her client was upset and when asked what he could do about it, she told him that there was the avenue of appeal and also a complaint to the Judicial Council. Trial counsel now regrets having done this. She made it clear that she would not support any complaint to the Judicial Council that her client might want to undertake. However, the appellant retained other counsel and she felt obliged to swear the within affidavit.

[5] It is suggested that the remarks of the trial judge made outside the court room, when viewed against the circumstance that the trial judge was in the last stages of having her own marriage dissolved, created an appearance of bias on the part of the trial judge against the appellant husband.

[6] We reject the suggestion that these comments would create a reasonable apprehension of bias in the mind of an informed person viewing the matter realistically and practically. We also deplore the fact that the appellant’s counsel on appeal arranged to have the trial judge’s personal divorce file examined in the hope of producing evidence to support this application. It is noted in this regard that the trial judge made no secret of her divorce proceedings and it was she who told both trial counsel on February 14, 2000 that her divorce had been made final that day.

[7] The proffered fresh evidence does not meet the threshold of relevancy necessary to be admitted as fresh evidence. In particular, it does not in any sense support an allegation that the appellant is entitled to a new trial because the trial judge’s conduct indicated an appearance of bias towards the appellant.

[8] The motion to admit the fresh evidence is dismissed.

[9] On the merits of the appeal, the appellant argues that the trial judge should not have acted on a comment of counsel for the appellant to the respondent’s counsel to the effect that the appellant was prepared to declare bankruptcy. When this comment was brought to the attention of the trial judge, it was not denied or resiled from and the trial judge was, in the exercise of her discretion, entitled to make the comments and give the directions that she did.

[10] As to the determination of the retirement date, there is evidence upon which the trial judge could have arrived at the date that she did. We would not interfere with her finding.

[11] Accordingly, the appeal is dismissed with costs to be assessed on a party-and-party basis.

Signed: “G.D. Finlayson J.A.”

“J.J. Carthy J.A.”

“Louise Charron J.A.”