Court of Appeal for Ontario

Date: 2019-12-12 Docket: C66385 Judges: Juriansz, Pepall and Miller JJ.A.

Parties

Between

Health Genetic Center Corp. o/a Health Genetic Center and Yuri Melekhovets a.k.a. Iouri Melekhovets

Plaintiffs (Appellants)

and

New Scientist Magazine, Peter Aldhous, and Reed Business Information Ltd.

Defendants (Respondents)

Counsel

For the Appellants: Gil Zvulony

For the Respondents: Sandra Barton and Erin Farrell

Heard

December 5, 2019

Appeal Information

On appeal from the judgment of Justice Thomas R. Lederer of the Superior Court of Justice, dated December 7, 2018, with reasons reported at 2018 ONSC 7224.

Reasons for Decision

A. Introduction

[1] Dr. Melekhovets began selling a prenatal paternity test to the public in 2001. Unlike other paternity tests that obtain the DNA of the fetus from the womb, the appellants' test was "non-invasive" in that it purported to extract the DNA of the fetus from a sample of the mother's blood.

[2] Dr. Melekhovets claimed that he and his corporation were defamed by the publication of an article in New Scientist magazine in December 2010. The article was the product of an 18-month investigation by the respondents. It criticized Dr. Melekhovets and the test for yielding unreliable results.

[3] At the 14-day trial, the respondents led evidence that Dr. Melekhovets lacked the expertise to develop the test. They alleged that Dr. Melekhovets did not validate the test before putting it on the market, that the test ran on flawed methodology, and that the test reported incorrect results to several customers who used it to determine the paternity of an unborn child. The trial judge rejected Dr. Melekhovets' unsupported assertions that the test was scientifically sound and that the respondents were motivated by malice. He concluded that the respondents had established the defences of justification, fair comment, responsible communication, and qualified privilege and dismissed the appellants' action.

[4] Dr. Melekhovets and his corporation appeal the trial decision. They also seek leave to appeal the trial judge's costs award of $1,478,766.64: 2019 ONSC 575, at para. 17.

B. Appeal Proceedings

[5] The appellants first filed a notice of appeal on January 3, 2019, alleging in excess of 25 legal and factual errors in the trial judgment. The notice was filed by Dr. Melekhovets' trial counsel.

[6] The trial judge rendered his costs award on January 22, 2019. The appellants filed a supplementary notice of appeal on January 29, 2019, seeking leave to appeal the costs award and alleging errors in that award. This supplementary notice of appeal was also filed by trial counsel.

[7] The appellants retained new counsel and filed another supplementary notice of appeal on May 27, 2019. This third notice of appeal withdrew all the substantive grounds of appeal in the initial notice and set out a single ground of appeal, namely that the appellants did not receive a fair trial because the trial judge's conduct of the trial and his reasons for decision gave rise to a reasonable apprehension of bias.

[8] On appeal, the respondents sought to introduce fresh evidence in the form of an affidavit by a lawyer who attended most of the trial hearings when she was an articling student. We ruled that a significant part of the tendered fresh evidence was inadmissible because it related to the appellants' conduct after the trial. We regarded other parts of the tendered fresh evidence to be unnecessary as they related to matters evident from the trial transcripts and the correspondence already within the appeal materials.

C. Analysis

[9] The appellants recognize that they bear the onus of establishing that an informed person viewing the matter realistically and practically – and having thought the matter through – would conclude that it was more likely than not that the trial judge, whether consciously or unconsciously, would not decide fairly: Stuart Budd & Sons Limited v. IFS Vehicle Distributors ULC, 2016 ONCA 60, 129 O.R. (3d) 37, at para. 47.

[10] The appellants also recognize that their burden is a heavy one, as the strong presumption of judicial impartiality is not easily displaced: Stuart Budd, at para. 48.

[11] We raise one additional principle. An apprehension of bias should be raised as soon as it is reasonably possible to do so: R. v. Curragh Inc., [1997] 1 S.C.R. 537, at para. 11. This principle protects the integrity of the court's authority: Curragh Inc., at para. 11. It also ensures a full record, and prevents counsel from keeping allegations of bias in reserve and deploying them tactically upon receipt of an unfavourable decision. Furthermore, as Donald J.A. of the Court of Appeal for British Columbia has observed, "the genuineness of the apprehension becomes suspect when it is not acted on right away": Eckervogt v. British Columbia, 2004 BCCA 398, 30 B.C.L.R. (4th) 291, at para. 48.

[12] In their written materials, the appellants rely on numerous instances of alleged bias in the trial judge's conduct of the hearing and his interaction with counsel. Each of these instances, considered on its own, seems petty in an appeal alleging bias. However, the appellants assert that the cumulative effect of each instance must be considered in light of the trial judge's decision and reasons. In oral argument, the appellants' counsel expressly conceded that the cumulative effect of the trial judge's conduct during the trial itself would be insufficient to establish a reasonable apprehension of bias.

[13] The appellants likened their position to that of the appellants in Stuart Budd, the main authority on which they relied. In that case, the appellants raised the reasonable apprehension of bias argument for the first time on appeal, and this court concluded that the motion judge's comments and conduct during the hearing, considered together with his reasons for decision, gave rise to a reasonable apprehension of bias. We accept that where a judge's decision and reasons are necessary to support an apprehension of bias, the appeal may be the earliest occasion on which the ground could reasonably be asserted.

[14] In this case, the appellants did not raise the bias allegation immediately upon appealing, but only in their third notice of appeal. We observe that the first two notices of appeal, which were filed by trial counsel, raised no issue of bias. While the test is an objective one, the appellants have filed no evidence that either they or their counsel, who were present at trial and observed the trial judge's conduct in person, held a subjective apprehension of bias.

[15] It is also telling that the appellants withdrew all the substantive grounds of appeal they first put forward. Thus, they seek to assert their position on appeal that the trial judge's findings are tainted by bias while avoiding a review of the evidence on which those findings are based. It seems to us there is good reason to regard the ground of reasonable apprehension of bias advanced by the appellants as tactical in nature.

[16] Given the appellants' concession that the trial judge's decision and reasons are necessary to ground the reasonable apprehension of bias argument, we find it unnecessary to discuss each of the alleged instances of bias at the trial, which the appellants itemized meticulously in their pleadings. We focus on the instances that the appellants addressed in oral argument.

[17] One instance involved the trial judge's acceptance of cough drops from the respondents' counsel, which the appellants allege prompted him to show her extra courtesy the next day of trial. The appellants' counsel placed great emphasis on the cough drops. In fact, he advanced the alternative argument that the trial judge's acceptance of the cough drops, which he described as a gratuity, was on its own sufficient to establish a reasonable apprehension of bias.

[18] We first dispose of the alternative argument. It is clear from the transcript that the trial judge was not well on the day respondents' counsel gave him cough drops. The trial judge was too sick to attend the hearing the next day. When he returned the following day, he apologized for having cancelled court on little notice to the parties. The appellants' counsel would not agree that the trial judge's acceptance of cough drops from counsel was inconsequential. However, he did accept that it would be inconsequential for a trial judge to accept a tissue from counsel. We fail to see any meaningful distinction between cough drops and a tissue. We have no hesitation in concluding that any apprehension of bias flowing from the acceptance of the cough drops is unreasonable.

[19] The only other instance addressed in oral argument was the trial judge's comment that the appellants' trial counsel was too young to know the "usual practice" with respect to sealing orders. The transcript makes clear that the trial judge was considering the breadth of the proposed sealing order and wished to see case law. The appellants' trial counsel proceeded to address the usual practice, to which the trial judge responded that counsel was too young to know the usual practice, adding that he made the comment to "lighten the load". The trial judge then commented positively on counsel's description of the practice. While it would have been preferable for the trial judge to have avoided any reference to counsel's age, this exchange does not contribute to the allegation of reasonable apprehension of bias.

[20] All the instances on which the appellants rely must be considered in the context of the trial judge's manner of dealing with all counsel throughout the trial: Stuart Budd, at para. 49. In a trial of any length, it is all too easy to cherry-pick individual off-hand remarks by the trial judge. For example, the appellants took us to pp. 3175-76 of the transcripts, which cover a brief exchange occurring at the start of the 14th day of the hearing, to support his argument that the trial judge displayed extra courtesy to the respondents' counsel at the next hearing day after he accepted her cough drops. We observe that immediately following the passage on which that argument rests, the trial judge showed a special courtesy to appellants' counsel, Mr. Donald, by conveying to him a personal salutation from a justice of the Federal Court of Appeal.

[21] This was a trial in which the issues were exceedingly technical and hotly contested. The trial judge and the parties were under strain to complete the evidence, which included testimony from several expert witnesses, in the allotted time. The court sat during extended hours on several occasions. The trial judge's comments to counsel during the trial may have been informal, sometimes unnecessary, and occasionally inadvisable (such as his comment on counsel's youth). However, considered cumulatively and in full context, we are not persuaded that his comments are evidence of partiality or differential treatment toward the respondents' counsel.

[22] It remains to consider whether the trial judge's reasons cast a different light on his conduct of the trial. The appellants' counsel complains that the trial judge, in his reasons, was far more critical of Dr. Melekhovets than was the original magazine article. He offers no authority for the proposition that the trial judge fell into legal error by drawing harsh conclusions from the voluminous record before him.

[23] The appellants do not attack the trial judge's findings that the defences of fair comment, responsible communication, and qualified privilege were established. Nor do the appellants mount a direct attack on his finding of the defence of justification. They merely argue the trial judge failed to recognize Dr. Melekhovets' right to commercialize his work. As we read his reasons, the trial judge observed that Dr. Melekhovets relied on his right to commercialize his work to excuse his failure to meet the shifting evidentiary burden to counter the respondents' evidence that the paternity test was unreliable.

[24] In his decision spanning 179 paragraphs, the trial judge carefully sets out his findings and the evidence that supports them. His reasons for decision provide no basis to regard his conduct of the trial in a different light. Considered together, his conduct and his reasons do not support a reasonable apprehension of bias against the appellants.

D. Disposition

[25] The appeal is dismissed. Leave to appeal costs is denied.

[26] The respondents are entitled to a net costs order in the amount of $45,000, inclusive of disbursements and applicable tax, on account of the appeal. This amount reflects a reduction for their failed motion for leave to admit fresh evidence.

"R.G. Juriansz J.A."

"S.E. Pepall J.A."

"B.W. Miller J.A."