COURT OF APPEAL FOR ONTARIO

CITATION: Bailey v. Barbour, 2012 ONCA 325

DATE: 20120516

DOCKET: C55105

Juriansz, LaForme and Ducharme JJ.A.

BETWEEN

Angelina Bailey

Claimant (Appellant)

and

Gerald Harry Barbour

Objector (Respondent)

Robert J. Fenn, Richard Rohmer (O.C.) Q.C., Izaak De Rijcke and Patrick M. Floyd, for the appellant

Jeffrey Streisfield, for the respondent

Heard: April 18, 2012

On appeal from the judgment of Justice John R. McIsaac of the Superior Court of Justice dated June 24, 2011, with reasons reported at 2011 ONSC 4019, 8 R.P.R. (5th) 76.

By the Court:

A. OVERVIEW

[1] The parties to this dispute have been battling for years over their respective rights to the waterfront properties they own on or near the shores of Georgian Bay in the township of Tiny in northern Simcoe County.

[2] The appeal to this court is from the decision and order of McIsaac J. released June 24, 2011. In that decision, the trial judge set aside the decision of Deputy Director of Titles Rosenstein, dated February 9, 2010, following an application by the appellant Mrs. Bailey pursuant to s. 46(2) of the Land Titles Act, R.S.O. 1990, c. L.5. In the proceeding under the Land Titles Act, the Deputy Director of Titles found that the objection filed by the respondent Mr. Barbour was not valid, and granted to Mrs. Bailey possessory title to a portion of the parcel claimed by Mr. Barbour, a narrow access route across the Barbour property to Mrs. Bailey’s property known as Tiny Island.

[3] Mr. Barbour’s appeal from the decision of the Deputy Director of Titles proceeded as a trial de novo before McIsaac J. and consumed 19 days. However, at its very outset, the trial judge alerted counsel to a potential conflict of interest and asked them to consider whether it caused either side any difficulty. Two short recesses followed, after each of which counsel for Mrs. Bailey respectfully asked the trial judge to recuse himself. The trial judge declined the request.

[4] On this appeal, the appellant raises eight issues, the first of which is whether it was appropriate and necessary in the interests of justice for the judge to recuse himself. We begin with that issue.

B. FACTS RELEVANT TO THE ISSUE OF REASONABLE APPREHENSION OF BIAS

[5] In raising the issue of possible conflict, the trial judge declared, among other things, that his wife is a real estate agent in Tiny Township where the properties of the parties are located, that she specializes in waterfront property, that she has a website titled “Shores of Tiny,” and that among the clients she has had are Heidi Lauridsen and Rebecca Kynoch-Rice. In the discussion with counsel that followed, the trial judge added that he and his wife also own waterfront property in Tiny Township, and have a cottage there.

[6] Ms. Lauridsen and Ms. Kynoch-Rice are daughters of the late Nancy Ann K. Rice, and nieces of the late Rebecca Van Aller, Mrs. Rice’s sister. Mrs. Rice was a neighbour of the parties and well known to them. She too owned waterfront property, which adjoined the northerly border of Mr. Barbour’s. In 2002, she joined Mrs. Bailey as an objector to Mr. Barbour’s application under the Boundaries Act, R.S.O. 1990, c. B.10, to confirm the true location of the northerly, westerly, and southerly boundaries of his property on the ground. Mrs. Bailey objected to the westerly border of Mr. Barbour’s property; Mrs. Rice objected to the northerly border.

[7] Mrs. Rice and Mrs. Van Aller were the daughters of the late Dr. William G. Kynoch. In 1971, the property now owned by Mrs. Bailey, Tiny Island, was conveyed to Mrs. Van Aller by her mother in her capacity as the Executrix of Dr. Kynoch’s estate. In 1988, Mrs. Van Aller sold Tiny Island to Mr. and Mrs. Bailey.

[8] Having disclosed his wife’s connection to Ms. Lauridsen and Ms. Kynoch-Rice and their connection in turn to the property owned by the estate of Mrs. Rice, the trial judge asked counsel if they wanted “a few minutes to discuss the matter.” Only counsel for Mrs. Bailey expressed concern. He said that he wished to speak to his clients. With that, the trial judge offered the following: “Okay. Well I’ll just give you the names of [my wife’s] two clients again for the record.”

[9] Even before consulting with his clients, however, counsel for Mrs. Bailey told the trial judge that he anticipated Ms. Lauridsen to be one of the witnesses in the trial. He added that he also anticipated statutory declarations of Mrs. Van Aller to be part of the record.

[10] According to the record, both Mrs. Van Aller and her sister were elderly when they died. At the time of the Boundaries Act hearing, Mrs. Van Aller was 81 years of age; her sister was 77. Mr. Barbour is himself today a man in his 90s. Through it all, what is clear is that one of the trial judge’s wife’s clients, Ms. Lauridsen, was directly involved in the action as an expected witness; the other client, Ms. Kynoch-Rice, Ms. Lauridsen’s sister, also had far more than a passing interest in how the dispute between Mrs. Bailey and Mr. Barbour might be decided. Their mother’s estate, after all, owns the neighbouring property and was and is apparently allied in interest with the appellant in this dispute.

[11] Counsel for Mrs. Bailey pressed his concerns to the trial judge about the reasonable apprehension of bias, citing what he referred to as the “multiplicity of involvements” if not of the trial judge, then at least of the trial judge’s wife. He said: “The apprehension on my client’s part is that it would be virtually impossible, especially in light of what you’ve now indicated that you also own property in this locale … to not have information prior to today about the specific set of circumstances, because Tiny Island stands out.”

[12] Although the trial judge indicated that he had “an understanding” with his wife not to discuss their business matters at home, he acknowledged that when he was assigned as the trial judge to this matter he brought up the “Tiny Island situation” with his wife, and asked her if there was “anything that, you know, I should know that you may be connected to this property.” Through that discussion, presumably, he learned of and disclosed to counsel his wife’s connection to Ms. Lauridsen and Ms. Kynoch-Rice.

[13] In the end, the trial judge decided, over the spirited objections of Mrs. Bailey’s counsel, that his wife’s involvement was merely an “attenuated connection” falling “well short of the threshold” justifying the request sought by Mrs. Bailey.

C. the trial judge’s ruling on the recusal request

[14] The trial judge’s ruling in its entirety was as follows:

I’d like to begin this ruling with reference to some general principles. A judge’s impartiality is presumed and a party seeking disqualification must establish that the circumstances justify a finding that the judge must be disqualified. The criterion of disqualification is the reasonable apprehension of bias.

The question is what would an informed, reasonable and right-minded person viewing the matter realistically and practically, and having thought the matter through, conclude. Would he or she think it is more likely than not that the judge, whether consciously or unconsciously, would not decide fairly? The standard refers to an apprehension based on serious grounds. These principles come from the judgment of the Supreme Court of Canada in Wewaykum Indian Band v. Canada, 2003 SCC 45, [2003] 2 S.C.R. 259.

At its highest, the applicant’s claim for disqualification is based on a general sense of unease because of the factors I announced earlier today in open court. In my view, this basis falls well short of the threshold that justifies the order sought. Accordingly, the application is dismissed. I reserve the right to expand upon these reasons.

[15] The trial judge did not expand upon his ruling, and made no further reference to it in his reasons for judgment.

D. the applicable law

[16] The inquiry into whether a conflict exists sufficient to prompt a decision-maker to recuse him or herself must be fact-specific. As his short oral ruling demonstrates, the trial judge correctly identified the test to be applied for determining whether there exists a reasonable apprehension of bias: What would an informed, reasonable and right-minded person, viewing the matter realistically and practically, and having thought the matter through, conclude? Would he or she think it is more likely than not that the judge, whether consciously or unconsciously, would not decide fairly?

[17] This test was first articulated by Grandpré J. in his dissenting reasons in Committee for Justice and Liberty v. National Energy Board, 1976 2 (SCC), [1978] 1 S.C.R. 369, at p. 394. Ever since, the Supreme Court of Canada has consistently endorsed the standard, including in the case referred to by the trial judge, Wewaykum Indian Band, although the court has also sought from time to time to clarify and develop it.

[18] Thus, for example, in his reasons in R. v. S. (R. D.), 1997 324 (SCC), [1997] 3 S.C.R. 484, Cory J. explained, at para. 111, that the test set down by Grandpré J. contains a “two-fold objective element”: not only must the person considering the alleged bias be reasonable, but “the apprehension of bias itself must also be reasonable in the circumstances of the case.” Cory J. added, at para. 113, that:

[T]he threshold for a finding of real or perceived bias is high. It is a finding that must be carefully considered since it calls into question an element of judicial integrity. Indeed an allegation of reasonable apprehension of bias calls into question not simply the personal integrity of the judge, but the integrity of the entire administration of justice.

[19] In addition to this “high” threshold set out by Cory J., the Supreme Court has made clear that, in those cases where a party seeks the recusal or disqualification of a judge, allegations of judicial bias will have to overcome the strong presumption of judicial impartiality. Moreover, “in any case where the impartiality of the judge is in question, the appearance of the matter is just as important as the reality”: R. v. Bow Street Metropolitan Stipendiary Magistrate and others, ex parte Pinochet Ugarte (No. 2), [1999] 1 All E.R. 577 (H.L.), at p. 592.

[20] In Metropolitan Properties Co. (F.G.C.) Ltd. v. Lannon, [1968] 3 All E.R. 304 (C.A.), at p. 310, Lord Denning M. R. stressed the importance of the appearance of judicial impartiality. He put the matter this way:

[I]n considering whether there was a real likelihood of bias, the court does not look at the mind of the justice himself.... It does not look to see if there was a real likelihood that he would, or did, in fact favour one side at the expense of the other. The court looks at the impression which would be given to other people. Even if he was as impartial as could be, nevertheless, if right-minded persons would think that, in the circumstances, there was a real likelihood of bias on his part, then he should not sit. And if he does sit, his decision cannot stand.

[21] This passage from Lord Denning M. R. in Metropolitan Properties Co. was cited with approval by Major J. in his dissenting reasons in S. (R. D.), at para. 11, and by this court in Benedict v. Ontario (2000), 2000 16884 (ON CA), 51 O.R. (3d) 147 (C.A.). In Benedict, the court also noted, at para. 20, that while Lord Denning M. R. used the phrase “real likelihood”, variations in the expression such as “reasonable apprehension”, “reasonable likelihood”, and “reasonable suspicion” should not be regarded as involving any substantive difference in the approach to be taken, and indeed amount to the same standard.

E. ANALYSIS

[22] In this case, no one has suggested any actual bias on the part of the trial judge. However, as the Supreme Court pointed out in Weywakum Indian Band, at para. 66, “where disqualification is argued, the relevant inquiry is not whether there was in fact either conscious or unconscious bias on the part of the judge, but whether a reasonable person properly informed would apprehend that there was” (emphasis in original).

[23] Would a reasonable person properly informed apprehend that there was an appearance of bias overhanging this trial? In our view, the question cannot be answered without taking account of all relevant factors, including, notably, the trial judge’s wife’s connections to the people and to the properties at the heart of the dispute. Among these connections were the following:

(a) one of the trial judge’s wife’s clients, Ms. Lauridsen, was expected to be a witness in the trial;

(b) another of the wife’s clients, Ms. Kynoch-Rice, is Ms. Lauridsen’s sister;

(c) the sisters are the daughters of the late Mrs. Rice, whose estate owns the property abutting the northerly border of the respondent’s property;

(d) Mrs. Rice joined the appellant as an objector to the respondent’s Boundaries Act application in 2002, and testified on the appellant’s behalf;

(e) in the proceeding under the Land Titles Act, relevant evidence admitted by Deputy Director of Titles Rosenstein included statutory declarations of Mrs. Rice and Mrs. Van Aller, by then both deceased, and a sworn affidavit of Ms. Lauridsen.

[24] Given these facts and circumstances, there can be no doubt that the trial judge’s wife’s clients have a great deal of knowledge about the parties to the dispute, and an obvious ongoing interest in the litigation and its result. In this context, it bears emphasis too that the trial judge spoke to his wife about, as he put it, the “Tiny Island situation”, and asked her if there was anything he should know about her connection to the property. Whatever her answer might have been, a reasonable person properly informed would only conclude that her connection to the property is deep and current and multi-layered.

[25] Whenever a party takes the position that a reasonable apprehension of bias exists, the judge must weigh the submission carefully and contextually, taking account of all relevant circumstances. The trial judge did not follow that course in this case. Had he done so, he would have given greater consideration to his wife’s involvement in the narrative, and he would not have concluded that the appellant’s claim for disqualification was based only on “a general sense of unease” falling “well short of the threshold that justifies the order sought.”

[26] In our view, the appellant has met the high threshold necessary to establish a reasonable apprehension of bias. The circumstances created a reasonable apprehension of bias, necessitating a new trial before a different judge of the court.

F. DISPOSITION

[27] For the foregoing reasons, the appeal is allowed. In the light of this determination, it would be inappropriate to comment on the other issues raised in the appeal.

[28] The order of the trial judge is set aside and a new trial ordered. The costs of the trial in the court below are in the cause. The costs of this appeal are to the appellant in the all-inclusive sum of $25,000.

Released: May 16, 2012 “RGJ”

“R.G. Juriansz J.A.”

“H.S. LaForme J.A.”

“Ducharme J.A.”