Court File and Parties

Citation: Davidson v. Canada (Attorney General), 2016 ONSC 1512 Court File No.: CV-15-524736-00CP Date: 2016-03-01

Superior Court of Justice - Ontario

Re: Linda Gillis Davidson, Plaintiff And: Attorney General of Canada, Defendant

Before: Perell J.

Counsel: Won J. Kim, Megan B. McPhee, Tina Q. Yang, and Aris Gyamfi for the Plaintiff Gina M. Scarcella, Victoria Yankou, and Andrew Law for the Defendant

Heard: February 29 and March 1, 2016

Endorsement

[1] This is a certification motion to determine whether the four remaining certification criteria under section 5(1) of the Class Proceedings Act, 1992 have been satisfied. I ruled at an earlier hearing that the first criterion, the cause of action criterion, was satisfied for a systemic negligence claim. In the plaintiff’s factum for this motion, plaintiff’s counsel concluded the overview with the following statement: “As this Court noted during a previous hearing, this action is precisely the type of human rights discrimination case which is ideally suited to proceed as a class action”. I was concerned about this statement because it suggested that I had already decided, i.e., prejudged this certification motion. I was concerned that an objective observer might have a reasonable apprehension that I was biased. The defendant Crown had made no objection in its factum to the statement, but that is understandable because it’s a hard allegation to make against a judge particularly during the course of a hearing.

[2] At the commencement of the certification motion, I asked plaintiff’s counsel at what hearing I had made the remark and was advised that it was at the section 5(1)(a) hearing. I was also advised that the comment was not accurately reported both in its content and in its context, which was a passing comment that sexual harassment and discrimination class actions have unique provisions under the U.S. class action regime. That comment would not raise a reasonable apprehension of bias and does not suggest that I had prejudged the other certification criteria, which are fiercely contested.

[3] Having heard from plaintiff’s counsel I asked the Crown counsel if she recalled the remark and she recalled that there was mention of the United States legislation but not the comment as set out in the factum.

[4] In these circumstances, I adjourned the first day of the motion and directed counsel to obtain instructions as to whether their clients wished to bring a recusal motion.

[5] The hearing resumed the following morning (i.e., today, March 1st, 2016) and I was advised that neither party wished me to hear a recusal motion. Because the hearing time had been lost the plaintiff requested an adjournment. The Crown did not oppose the adjournment reserving the right to claim costs for the wasted hearing. I am granting the adjournment request without prejudice to the Crown’s request for costs of the adjournment.

[6] The hearing is adjourned to May 26 and 27, 2016.

PERELL J.

Date: March 1, 2016