Warning

This is a case under the Child, Youth and Family Services Act, 2017 and subject to subsections 87(8) and 87(9) of this legislation. These subsections and subsection 142(3) of the Child, Youth and Services Act, 2017, which deals with the consequences of failure to comply, read as follows:

87 (8) Prohibition re identifying child — No person shall publish or make public information that has the effect of identifying a child who is a witness at or a participant in a hearing or the subject of a proceeding, or the child’s parent or foster parent or a member of the child’s family.

(9) Prohibition re identifying person charged — The court may make an order prohibiting the publication of information that has the effect of identifying a person charged with an offence under this Part.

142 (3) Offences re publication — A person who contravenes subsection 87(8) or 134(11) (publication of identifying information) or an order prohibiting publication made under clause 87(7)(c) or subsection 87(9), and a director, officer or employee of a corporation who authorizes, permits or concurs in such a contravention by the corporation, is guilty of an offence and on conviction is liable to a fine of not more than $10,000 or to imprisonment for a term of not more than three years, or to both.

Court of Appeal for Ontario

DATE: 20200311 DOCKET: C67040, C67041, C67042, C67043, C67044 & C67045

van Rensburg, Benotto and Harvison Young JJ.A.

BETWEEN

J.B.

Plaintiff (Appellant)

and

Her Majesty the Queen in Right of Ontario as represented by the Minister of Child and Youth Services and the Minister of Health and Long-Term Care, Children’s Aid Society of the Regional Municipality of Waterloo, Hospital for Sick Children, Gideon Koren and Joey Gareri

Defendants (Respondents)

AND BETWEEN

Y.M.

Plaintiff (Appellant)

and

Her Majesty the Queen in Right of Ontario, The Catholic Children's Aid Society of Toronto, The Hospital for Sick Children, Child Protection Worker(s) John Doe/Jane Doe, Gideon Koren, Joey Gareri Viaguard Inc., also known as Accu-Metrics, Harvey Tenenbaum and Kyle Tsui

Defendants (Respondents)

AND BETWEEN

C.T.

Plaintiff (Appellant)

and

Hospital for Sick Children, Gideon Koren, Joey Gareri, The Children's Aid Society of the Regional Municipality of Waterloo, The Children's Aid Society of Hamilton, Child Protection Worker(s) John Doe/Jane Doe, and Her Majesty the Queen in Right of Ontario

Defendants (Respondents)

AND BETWEEN

T.W., K.B. and K.-L.B.

Plaintiffs (Appellant)

and

Her Majesty the Queen in Right of Ontario, Family Youth and Child Services of Muskoka, The Hospital for Sick Children, Gideon Koren, Joey Gareri, and Marilyn Smart

Defendants (Respondents)

AND BETWEEN

C.R., C.H., J.H., and C.H.H. by his litigation guardian, C.R.

Plaintiffs (Appellants)

and

Her Majesty the Queen in Right of Ontario, Children's Aid Society of the Regional Municipality of Waterloo, Angela Brenner, Michael Buchnea, James Woodstock, The Hospital for Sick Children, Gideon Koren, Joey Gareri, and Julia Klein

Defendants (Respondents)

AND BETWEEN

M.MD., D.W. and B.W. by his litigation guardian M.MD.

Plaintiffs (Appellants)

and

The Children's Aid Society of the Niagara Region, Child Protection Worker(s) John Doe/Jane Doe, The Hospital for Sick Children, Gideon Koren, Joey Gareri, and Her Majesty the Queen in Right of Ontario

Defendants (Respondents)

Counsel: Katherine Hensel and Kaelan Unrau, for the appellant J.B. Julie Kirkpatrick, for the appellants Y.M., C.T., T.W., C.R., and M.MD. Jeremy Glick and Estée Garfin, for the respondent Her Majesty the Queen in Right of Ontario Elizabeth Bowker and Ejona Xega for the respondents Children’s Aid Society of the Regional Municipality of Waterloo, Catholic Children’s Aid Society of Toronto, Children’s Aid Society of Hamilton, Family Youth Child Services of Muskoka and Child Protection Worker(s) John Doe/Jane Doe

Heard: December 12, 2019

On appeal from the judgment of Justice Darla A. Wilson of the Superior Court of Justice, dated May 1, 2019, with reasons reported at 2019 ONSC 2734.

Reasons for Decision on Motion for Reconstituted Panel

[1] At the opening of oral submissions in the group of six appeals before this court, counsel for J.B. requested that the panel be reconstituted to replace Benotto J.A. The basis for the request was her involvement in this court’s unanimous decision in Children’s Aid Society of the Regional Municipality of Waterloo v. C.T., 2017 ONCA 931, leave to appeal refused, [2018] S.C.C.A. No. 51 (“Waterloo”), which reinstated the trial judge’s no access order: at para. 101.

[2] Counsel for J.B. suggested that it would be “awkward” to make submissions to the same judge who had heard another appeal involving her client. Counsel did not assert actual bias, but rather the reasonable apprehension of bias.

[3] We determined that no bias – actual or reasonably apprehended – could possibly arise and denied the request.

[4] There is a strong presumption of judicial impartiality. A party who seeks to rebut this presumption bears a heavy burden. In his dissenting reasons in Committee for Justice and Liberty v. Canada (National Energy Board), [1978] 1 S.C.R. 369, at p. 394, de Grandpré J. articulated the test for a reasonable apprehension of bias, which the Supreme Court has repeatedly endorsed:

[T]he 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. … [T]hat 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 [the judge], whether consciously or unconsciously, would not decide fairly.”

[5] Cory J. expanded on this test, explaining that it contains a “two-fold objective element: the person considering the alleged bias must be reasonable, and the apprehension of bias itself must also be reasonable in the circumstances of the case”: R. v. S. (R.D.), [1997] 3 S.C.R. 484, at para. 111.

[6] The issue is whether a hypothetical observer, who is informed of all the facts, would believe it is “more likely than not” that a judicial decision-maker “would not decide fairly”: Committee for Justice and Liberty, at p. 394. This analysis does not engage the views or conclusions of a particular litigant before the court.

[7] The issue in Waterloo was whether the judge below had erred in law in allowing J.B. and C.T.’s appeal from the trial judge’s Crown wardship, no access order for their child. This court held that there were indeed legal errors in the appeal below and reinstated the trial judge’s order.

[8] This appeal raises different legal issues. (If it did not, the matter would be res judicata.)

[9] A reasonable observer, informed of all the facts, would not conclude that a judge would appear to be biased only because of her involvement in another case affecting the same party: see Arsenault-Cameron v. Prince Edward Island, [1999] 3 S.C.R. 851, at para. 5; see generally Miracle v. Miracle, 2017 ONCA 195 and R. v. J.L.A., 2009 ABCA 344, 464 A.R. 289. As this court held in Miracle, at para. 4:

A reasonable observer would not conclude that, because a judge has ruled against a party on a legal issue in one case, that judge, whether consciously or unconsciously, would likely be biased when deciding a different legal issue with respect to that same party in another case.

[10] We agree and denied the request to reconstitute the panel.

“K. van Rensburg J.A.”

“M.L. Benotto J.A.”

“A. Harvison Young J.A.”