COURT FILE NO.: FS-18-2842-00

DATE: 20200918

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: A.P.

AND:

L.K.

AND:

Medical Officer of Health (City of Toronto)

BEFORE: J.T. Akbarali J.

COUNSEL: Caroline Kim and Kaitlin Jagersky, for the Appellant/Responding Party

Gary Joseph and Stephen Kirby, for the Respondent/Moving Party

Carol Smith, Fred Fischer and Alison Mintoff, for the Intervener, Medical Officer of Health (City of Toronto)

HEARD: September 15, 2020

PUBLICATION BAN

A non-publication order in this proceeding has been issued pursuant to the common law powers of a judge by the Superior Court of Justice and the considerations outlined by the Supreme Court of Canada in Dagenais v. Canadian Broadcasting Corp., 1994 39 (SCC), [1994] 3 S.C.R. 835, prohibiting the publication of:

a) any evidence or information that may identify the children, including their names, dates of birth, address(es), school(s), genders, images, or voices, but not including their ages or initials;

b) any evidence or information about the children’s health except for the fact that they are unvaccinated;

c) any evidence or information that may identify the parties, including their names, voices, and images, but not including their genders or initials.

ENDORSEMENT

Overview

[1] This proceeding arises out of an appeal from the decision of an arbitrator in which the arbitrator declined to order the vaccination of the parties’ two children. The appellant father wants the children to become vaccinated; the respondent mother does not.

[2] The appeal is currently scheduled to be heard on September 29, 2020. It was most recently scheduled to be heard before me on September 15, 2020, but was adjourned to allow the respondent to bring a motion seeking an order recusing me because she asserts that an informed, reasonable and right-minded observer would conclude that it is more likely than not that I, whether consciously or unconsciously, would not decide this appeal fairly.

[3] In support of her argument, the respondent relies on two preliminary decisions that I made in this matter – one permitting both parties to file certain fresh evidence, and one permitting the intervention of the Medical Officer of Health (City of Toronto) (“MOH”). The respondent also relies on two decisions I made in unrelated litigation in the context of the COVID-19 pandemic, one dealing with parenting time and decision-making, and the other dealing with education decisions. She also relies on three media articles about some of these decisions. The thrust of her arguments is that I am perceived as a champion of public health, and I have demonstrated a deferential attitude towards public health guidelines, and a willingness to weigh public health considerations in the determination of the issues under appeal, rather than narrowing my analysis to address only what is in the best interests of the parties’ children.

[4] The appellant opposes the relief sought by the respondent. He argues that I have rendered balanced decisions, including some unfavourable to him, and that a reasonable person, properly informed and viewing the matter realistically and practically, would conclude that I could decide the appeal fairly. He argues that the respondent has failed to discharge her onus on this motion.

Preliminary Issue – the Participation of the Intervener

[5] At the outset of the hearing, counsel for the respondent objected to the intervener making any submissions on this motion, arguing that doing so was outside the proper scope of the intervener’s role. The intervener argued that because my decision granting her leave to intervene, and media reports about her intervention, form part of the respondent’s grounds in support of her motion, she ought to be able to address them.

[6] I decided not to allow the intervener to make argument at the hearing of the motion, and I have disregarded the intervener’s written submissions on the motion. The intervention motion decision allowed the intervener to participate in the hearing of the appeal, but it did not extend participatory rights to the intervener with respect to other preliminary motions. In my view, the issues that arise on the recusal motion are issues in which the intervener does not have an interest, or a particular perspective to offer that may assist the court.

Issue

[7] There is one issue on the motion before me. I must determine if I should recuse myself from hearing the appeal in this matter because of a reasonable apprehension of bias.

The Relevant Legal Principles

[8] The parties largely agree on the relevant legal principles to be applied when a judge determines whether she ought to recuse herself because of a reasonable apprehension of bias.

[9] Judicial impartiality is a well-settled and foundational principle in which public confidence in our legal system is rooted. It is the fundamental qualification of a judge: Wewaykum Indian Band v. Canada, 2003 SCC 45, [2003] 2 S.C.R. 259, at paras. 57, 59.

[10] Impartiality connotes the absence of actual or perceived bias, and can be inexactly described as a state of mind in which the adjudicator is open to persuasion by the evidence and submissions: R. v. S. (R.D.)., 1997 324 (SCC), [1997] 3 S.C.R. 484, at para. 104. In Wewaykum Indian Band, at para. 58, the Supreme Court of Canada defined bias or prejudice as:

a leaning, inclination, bent or predisposition towards one side or another or a particular result. In its application to legal proceedings, it represents a predisposition to decide an issue or cause in a certain way which does not leave the judicial mind perfectly open to conviction. Bias is a condition or state of mind which sways judgment and renders a judicial officer unable to exercise his or her functions impartially in a particular case.

[11] The test as to whether I must recuse myself is well-established. It was recently articulated by the Court of Appeal in this way: would a reasonable person, properly informed and viewing the matter realistically and practically, conclude that the decision-maker could decide the case fairly? R. v. Ibrahim, 2019 ONCA 631, 147 O.R. (3d) 272, at para. 83. Similar iterations of the test appear in Committee for Justice and Liberty et al. v. National Energy Board et. al., 1976 2 (SCC), [1978] 1 S.C.R. 369, at p. 394, and in Wewaykum Indian Band, at para. 60, The test does not require actual bias, but only a reasonable apprehension of bias: R. v. S. (R.D.), at para. 109, Wewaykum Indian Band, at para. 66.

[12] There is a “strong presumption of judicial impartiality and a heavy burden on a party who seeks to rebut this presumption”: Langstaff v. Marson, 2014 ONCA 510, 121 O.R. (3d) 369, at para. 24. In Wewaykum Indian Band, at para. 76, the Supreme Court of Canada held that the standard refers to an apprehension of bias that rests on serious grounds, in light of the strong presumption of judicial impartiality; the test is not related to the “very sensitive or scrupulous conscience.” The threshold for a finding of real or perceived bias is high, and the ground for the apprehension must be substantial: R. v. S. (R.D.), at paras. 31, 36, 112-113.

[13] A court must not accede too readily to allegations of actual, or appearance of, bias. “Although it is important that justice be seen to be done, it is equally important that judicial officers discharge their duty to sit and do not, by acceding too readily to the applicant’s suggestions,

encourage parties to believe that, by seeking the disqualification of a judge, they will have their case tried by someone thought to be more likely to decide the case in their favour”: Ontario (Director, Family Responsibility Office) v. Samra, 2008 ONCJ 465, 66 R.F.L. (6th) 167, at para. 31.

[14] The party who alleges bias has the onus of demonstrating it on a balance of probabilities: R. v. Nero, 2016 ONCA 160, at para. 31, R. v. S. (R.D.), at para. 114.

[15] The test 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: Langstaff, at para. 28; R. v. S. (R.D.), at para. 111.

[16] The reasonable person considering the alleged bias “must be informed and know the relevant circumstances, including the traditions of integrity and impartiality on which the judicial system is based. A mere suspicion is not enough”: Langstaff, at para. 29. In R. v. S. (R.D.), at para. 111, Cory J. held that the relevant circumstances of which the reasonable person is aware will include “the fact that impartiality is one of the duties the judges swear to uphold.”

[17] The inquiry into reasonable apprehension of bias is highly fact-specific, and cannot be addressed through peremptory rules. “Whether the facts, as established, point to financial or personal interest in the decision-maker; present or past link with a party, counsel or judge; earlier participation or knowledge of the litigation; or expression of views and activities, they must be addressed carefully in light of the entire context. There are no shortcuts.”: Wewaykum Indian Band, at para. 77.

[18] The impugned conduct of a judge must not be looked in isolation, but must be considered in the context of the circumstances, and in light of the whole proceeding: R. v. S. (R.D.), at para. 141, Chippewas of Mnjikaning First Nation v. Chiefs of Ontario, 2010 ONCA 47, 265 O.A.C. 247, at para. 230.

[19] It is against this backdrop that I turn to consider the grounds the respondent advances in support of her motion. In so doing, I am mindful of my obligation to consider the grounds in the context of all of the circumstances, but in order to do so, each must also be examined individually.

[20] As I begin my analysis, I note a fundamental challenge before me, which was also faced by the court in Samson Indian Nation and Band v. Canada, 1997 6390 (F.C.), [1998] 3 F.C. 3, aff’d 1998 7815 (F.C.A.). I am unable to respond to the meaning of what I said in previous judgments. I must address the respondent’s grounds for the recusal motion while bearing in mind this fundamental limitation on the scope of my analysis.

The Preliminary Decisions in This Matter: Fresh Evidence Motion and Motion to Intervene

[21] The respondent relies on two preliminary decisions that I made in this matter. I describe each, and the history of my case management of this appeal, below.

[22] On December 13, 2019, I released reasons arising out of the parties’ motions for leave to admit fresh evidence on appeal: 2019 ONSC 7256. The appellant sought to introduce affidavits from three proposed experts and portions of an affidavit he had filed on an earlier, interlocutory, motion in the appeal. At para. 113, I concluded that the appellant’s experts’ evidence “is relevant because it bears upon a decisive or a potentially decisive issue at the arbitration, namely, the risk to the children if they are, or are not, vaccinated.” I also concluded that the evidence was necessary because the appellant’s proposed experts “are responding to the expert evidence led by the mother, on scientific issues involving vaccine efficacy, risks, and the effects of genetic variation on vaccine risks and recommendations”. In the result, I allowed the appellant’s expert evidence to be admitted as fresh evidence.

[23] In large measure, however, I did not allow the appellant’s lengthy affidavit evidence to be admitted as fresh evidence. I reached this conclusion because some of the appellant’s evidence was not proper evidence, for example, because it was argument, some of it was not relevant on the appeal, some of it was hearsay, and some of it did not meet the Palmer criteria for admission. In the result, I permitted three paragraphs of the respondent’s 118- paragraph affidavit to be admitted: at paras. 114-126.

[24] In her motion, the respondent sought to introduce an affidavit from the children’s physician, Dr. Pham, who had given evidence at the arbitration. Among other things, at para. 134(d), I described the evidence in Dr. Pham’s affidavit to include “her opinion that [the parties’ older child] has the capacity to understand the information relevant to making treatment decisions with respect to vaccination, and that [the older child] is sufficiently mature to consent or to refuse to consent to receiving vaccinations”, and Dr. Pham’s evidence that the older child “has expressed the wish not to be administered any vaccinations at the present time.” The question of whether the older child has capacity to consent to vaccinations was not at issue in the arbitration.

[25] Dr. Pham’s evidence also included her opinion, which I described at para. 140, that “the psychological and emotional impacts of the ongoing court proceedings pose a greater risk to the children than their present vaccination status”. The appellant raised concern because this evidence appeared to support an argument that Dr. Pham believed the children should not be vaccinated, when the appellant’s attempts to question Dr. Pham on this issue were objected to, and the objection upheld, at the arbitration.

[26] Despite these concerns, I admitted the evidence of Dr. Pham in its entirety. In para. 143, I wrote:

…it is most important that the court have current evidence about the children and the potential impact of vaccination on them, even if this results in irregularities in the record from the arbitration. … the court is dealing with two children, who have their particular needs, and whose development is constantly unfolding as they grow. The father seeks to overturn the arbitrator’s award and obtain an order to vaccinate the children. If the court’s analysis reaches the point where that determination must be made, the court must be able to determine whether the children as they are today

should be vaccinated, not whether the children as they were in 2017 should have been vaccinated.

[27] The appellant notes that my order on the fresh evidence motion was not appealed. The respondent argues that an appeal may not have been available. Usually fresh evidence motions are heard together with the main appeal, but in this case, the parties sought, and obtained, an order from another judge that the fresh evidence motion would proceed first. In the circumstances, I make no comment on the proper appeal route, and do not consider the fact that no appeal was taken in my analysis on this motion.

[28] Subsequent to the fresh evidence motion, I held several teleconferences with the parties. Among other things, those teleconferences dealt with the appropriate manner for the parties to test the fresh evidence. The appellant sought an order that cross-examinations on affidavits would occur by written interrogatories. The respondent sought an order directing oral cross-examinations. I ordered that oral cross-examinations take place.

[29] As a result of the respondent’s change in counsel, and at her request, on January 30, 2020, I adjourned the appeal, then scheduled for March 5, 2020, to April 30, 2020. This was the second adjournment of the appeal, which had originally been scheduled for December 17, 2019, but which I had previously adjourned to March 5, 2020 to accommodate the respondent’s then-counsel’s scheduling conflicts. (The appeal was adjourned again, to September 15, 2020, due to the partial shut down of the court’s operations due to COVID-19, and then again, as I have already noted, to allow the respondent to bring this motion.)

[30] The shut-down of the court’s physical operations due to COVID-19 also led to the adjournment of a pending motion from the MOH to seek intervener status in the appeal. Following the physical shut-down of the court’s operations, I held a telephone conference with counsel for the parties and the MOH, during which they jointly proposed that I hear the intervention motion, and the appeal, remotely. I directed the parties to finish filing all the material for the intervention motion so I could review it to determine whether I could proceed to hear it, having regard to the Notices to the Profession which then governed the scope of the court’s remote operations, and if so, the manner in which it should be heard.

[31] On April 30, 2020, I released reasons in the intervention motion, having heard it in writing: 2020 ONSC 2520. In my reasons, I determined that it was appropriate to hear the intervention motion because I deemed it necessary and appropriate to hear it on an urgent basis “because the appeal, at its heart, involves questions about the health and vaccination status of the children. It is possible that the appeal itself could become urgent, in the context of the current COVID-19 pandemic, should a vaccine become available, and the parties continue to disagree about whether the children should be vaccinated”: at para. 15.

[32] I then undertook an analysis to determine if it was appropriate to grant the MOH leave to intervene in the appeal. I concluded that the MOH had a real, substantial and identifiable interest in the subject matter and a distinct perspective to be articulated. I noted, at para. 56, some of the MOH’s proposed submissions, including:

(i) vaccine hesitancy stemming from misinformation about vaccines is a threat to individual and public health; (ii) in cases touching on public health issues, the failure of an adjudicator to act as gatekeeper creates the added risk of threatening the health of the community by giving credence and authority to misinformation; (iii) courts and other adjudicators can and should admit and rely upon public health records; and (iv) courts and other adjudicators can and should take judicial notice of certain facts related to immunization in Ontario.

[33] In my analysis, I identified relevant principles to apply when considering whether a proposed intervener may make a useful and distinct contribution to a proceeding. At para. 52(d), I identified one of these principles as follows: “[i]t is desirable to have all relevant possibilities brought to the court’s attention, including submissions on the impact of its judgment”, citing Craft et. al. v. City of Toronto et. al., 2019 ONSC 1151, at para. 64. I then found, at para. 58, that “the MOH can make a unique contribution and offer a distinct perspective on the issues raised in this appeal, which may assist the court in understanding the impact of its judgment beyond the private interests of the parties and their children.”

[34] In the result, I granted the MOH leave to intervene, to file a factum of no more than 20 pages, and to make oral submissions at the appeal, the length of which would be determined by me at an appropriate time. The appellant notes that this decision was not appealed, but I do not consider the lack of appeal in my analysis of the respondent’s motion.

[35] The appellant characterizes these decisions, and the management of the appeal as a whole as balanced, in which each party has had some successes and some losses. The respondent characterizes these decisions as favourable for the appellant.

[36] Based on my earlier decisions in this matter, the respondent argues that a reasonable observer, properly informed, and viewing the matter realistically and practically, would conclude that I could not decide the case fairly because:

a. I have gone out of my way to assist the appellant;

b. I have expressed a willingness to exceed the bounds of this appeal in expressing a view that the appeal could become urgent if a COVID-19 vaccine is developed and the parties disagree on whether the children should receive it, and in concluding that the MOH may assist the court in understanding the impact of its judgment beyond the private interests of the parties and their children, and

c. By allowing the intervention of the MOH, I am allowing the appellant to bolster his appeal.

[37] In support of her argument that a reasonable observer would conclude that I have gone out of my way to assist the appellant, and as a result, have created a reasonable apprehension of bias, the respondent relies on Stuart Budd & Sons Limited v. IFS Vehicle Distributors ULC, 2016 ONCA 60, 129 O.R. (3d) 37.

[38] In Stuart Budd, the Court of Appeal dealt with allegations of reasonable apprehension of bias arising out of a jurisdiction motion. It found that the motion judge conducted himself in a manner that gave the appearance that he favoured the respondent’s position, and found a reasonable apprehension of bias was made out.

[39] The impugned conduct of the motion judge included adjourning the motion on his own initiative to give the respondents an opportunity to correct a flaw he identified as being fatal to their position. When the hearing was returned, the motion judge dismissed the motion halfway through the full-day that had been scheduled without giving counsel the opportunity to make oral submissions on two issues that he properly identified as the principal arguments, including the issue of joinder, on which he subsequently relied to dismiss the motion. The Court of Appeal noted that the motion judge repeatedly criticized appellants’ counsel on matters including their advocacy skills, knowledge of the law, and handling of the matter, for example, stating that their cross-examinations were “a waste of time”, and their argument was “frustrating”. The Court of Appeal also referenced the motion judge’s reasons that went beyond reflecting the reasoning process and rather, entered the fray as an advocate for his earlier actions and decisions.

[40] The appellant argues that earlier decisions in a matter, even if unfavourable to a party, do not lead to a reasonable apprehension of bias. As Charney J. noted in Courtney v. Sambray, 2015 ONSC 5488, at para. 18, judges are frequently called upon to make interlocutory decisions in the course of a case, in which, for example, they may decide issues of admissibility of evidence or make other preliminary decisions. “If such a decision is not in a party’s favour, it does not mean that the judge has pre-determined the merits of the case or has any bias against the unsuccessful party. Otherwise judges making interlocutory decisions would routinely be recused from hearing the rest of the case.”

[41] Similarly, Katarynych J. held that “the mere fact that one judge has issued a number of orders against a party does not justify a conclusion that the judge has taken an obvious dislike to that litigant and is hence not impartial… Such prior contact is not a factor in determining an appearance of bias, unless real bias can be shown”: Samra, at para. 60. See also Lamka v. Waterloo Regional Police Services Board, 2012 98291 (Ont. S.C. Sm. Cl.), at para. 12.

[42] In my view, a reasonable person, properly informed and viewing the matter realistically and practically, would not conclude that my earlier decisions in this matter can be described as me going out of my way to assist the appellant, leading to a conclusion that I could not decide the case fairly. Nothing in the earlier decisions I have made in this matter approach the conduct at issue in Stuart Budd. There is no indication in my earlier decisions that I adapted the litigation process in favour of the appellant. Rather, my earlier decisions reflect determinations in favour of, and against, both parties, reached in the usual course, for the reasons described.

[43] With respect to the respondent’s argument that I am prepared to exceed the boundaries of the appeal, I note that my statement that this appeal may become urgent if a COVID-19 vaccine becomes available does not relate to the merits of the appeal, but was a conclusion in support of a procedural order sought by all parties, including the respondent. The respondent takes the position that the result of the appeal may, but need not necessarily, decide the question of future decision-making for the children regarding vaccinations, while the appellant submits that future decision-

making regarding vaccinations will be determined by the result of the appeal. In any event, neither party has been given, nor indeed sought, leave to adduce fresh evidence regarding the COVID-19 pandemic. A reasonable person viewing the matter realistically and practically would not conclude that I, on my own initiative, have expanded the boundaries of the appeal to include COVID-19, and as such, could not decide the case fairly.

[44] To the extent any expansion of the issues of the arbitrator can be said to result from my fresh evidence decision, I note that my decision permitted the respondent’s fresh evidence regarding the capacity of the parties’ older child to consent to receiving vaccinations, which issue was not addressed by the arbitrator.

[45] In written argument, the respondent states, “[s]ince the introduction of a COVID-19 vaccine could only become urgent if presumed to be in the children’s best interest and not available as a result of [the respondent’s] objections, [my] comments in this regard are also indicative of a predisposition in favour of [the appellant’s] case.” In my view, a reasonable person, properly informed and viewing the matter realistically and practically would also note the respondent’s argument on the fresh evidence motion, which presumably will be renewed at the appeal, and which is reflected in the fresh evidence of Dr. Pham that I permitted, that there is concern about “the potential negative psychological and emotional impacts of the very adversarial conflict between [the parties], where vaccinations are used as a point of contention at a philosophical level, as opposed to focusing on the well-being of the children right in front of them”: see para. 134 g)-i) for my description of Dr. Pham’s evidence. On the fresh evidence motion, respondent’s then-counsel also relied on the decision of the arbitrator who stated, in part, “[t]he evidence suggests that the children have aligned to a certain extent with their mother’s views on vaccinations. The prospect that they will be forced to be vaccinated is making them anxious and stressed. Their best interests require that they be freed from this conflict, which can only occur with the Award I have made”: at para. 106. A reasonable person, properly informed, would not conclude that my reference to the potential future urgency of the appeal as a result of a COVID-19 vaccination establishes a predisposition in favour of the appellant, or a reasonable apprehension of bias.

[46] In determining that the MOH’s intervention may assist the court in understanding the impact of its judgment beyond the private interests of the parties and their children, my decision applies existing law. A reasonable person, viewing the matter realistically and practically, would not conclude that applying existing law means that a decision-maker cannot decide a case fairly. A reasonable person, properly informed, would have knowledge of the role that interveners play in appeals, and would understand that allowing an intervener the ability to make submissions on an issue is not a decision to taken to bolster a party’s case, nor a guarantee that the intervener’s submissions will be adopted. Thus, the fact that I granted the MOH leave to intervene would not lead a reasonable person to conclude that I could not decide this case fairly.

[47] The respondent suggests error in my reasons on the intervention motion, arguing that I allowed the intervention notwithstanding s. 16(8) of the Divorce Act, R.S.C. 1985, c. 3, 2nd Supp., which provides that, in making decisions of custody and access, the court shall rely only on the best interests of the child. Leaving aside the speculative nature of the respondent’s argument, since

the appeal has yet to be argued, my reasons on the intervention motion explain the basis for my decision on that motion. This is not an appropriate forum for the intervention motion to be examined for error and, as I have noted, I cannot respond to address the meaning of what I said in my earlier decisions.

[48] In my view, the decisions in Sambray, Samra, and Lamka apply here. My earlier decisions in this matter, aspects of which the respondent may consider unfavourable, do not support a finding of a reasonable apprehension of bias.

Decisions in Unrelated Litigation: A.T. v. V.S. and Spence v. Zinati

[49] The respondent also relies on my decisions arising from two motions I heard in unrelated litigation.

[50] On July 7, 2020, I released reasons in A.T. v. V.S., 2020 ONSC 4198, granting temporary decision-making to the applicant mother on matters involving health, education and extra-curricular activities, and granting a temporary order that the respondent father’s parenting time take place by video. I identified the catalyst for the dispute between the parties, at para. 2, as “the father’s rejection of the seriousness of the COVID-19 pandemic, and his active and willful disobedience of public health guidelines, including by organizing and hosting protests in Toronto against the public health measures taken by government and public health officials in Ontario.”

[51] I referred to evidence in the record that the respondent called the pandemic a “scamdemic”, and engaged in behaviour that included hugging strangers. The applicant was concerned about risk of exposure to COVID-19, and about the ability of the parents to make joint decisions for the child in the context of the pandemic.

[52] I found that the respondent’s behaviour was “of the sort contemplated by Pazaratz J. when he wrote, in Ribeiro v. Wright, [2020 ONSC 1829](https://www.minicounsel.ca/scj/2020/23204), at para. [14], that ‘in some cases a parent’s lifestyle or behaviour in the face of COVID-19… may raise sufficient concerns about parental judgment that direct parent-child contact will have to be reconsidered’”.

[53] With respect to decision-making, I found, at para. 29, that the respondent “exaggerates the history of cooperation between the parties”, in reliance on examples from the evidence which included:

a. Paragraph 26 – “the respondent tried to interfere with [the applicant’s] wish to have pain relief during labour and delivery.

b. Paragraph 27 – “the respondent refused to consent to vaccinate [the child], contrary to the applicant’s wishes, and against the advice of [the child’s] pediatrician. The applicant was eventually able to catch [the child] up on his vaccinations, but the respondent continued to refuse his consent to the flu vaccination. The applicant eventually arranged the flu vaccination for [the child] without the respondent’s consent.”

c. Paragraph 28 – “The parties also disagreed about whether the respondent should administer ‘Herbalife shakes’ to [the child]. The applicant deposes that [the child’s] pediatrician had warned that the shakes put [the child] at risk of kidney and liver damage, but the respondent continued to give [the child] the shakes. The respondent argues that the shakes were appropriate because they were meant for children. When he was asked to address the fact that the shakes were meant for children twice [the child’s] age, he stated in argument that he administered a smaller dose than the one recommended for older children.”

[54] At paragraph 29 I found that the record revealed “a disturbing pattern: a disrespect of both, the applicant’s views, and of the views of experts, particularly health experts.” At paragraph 30, I found there was potential for significant conflict between the parties. At paragraph 30, I noted the respondent’s evidence that he does not support mask-wearing for children. At paragraph 31 I noted the respondent’s evidence that he would likely oppose the child taking any vaccine related to the virus. At paragraph 33, I noted the applicant’s evidence that she prefers to follow the advice of public health authorities. I concluded “[t]here is thus clear potential for conflict between the parties arising out of the decision-making for [the child] in the context of the current pandemic, and the parties’ different views about the reliability and importance of public health advice.”

[55] In paras. 34-35, I directed myself to, and applied the best interests of the child test. Among other things, I wrote that, “the respondent thinks he knows better than the medical experts – so much so, that he is not even willing to entertain the idea that he might have something to learn from them.”

[56] At paras. 37-38, I wrote:

In my view, it is not appropriate that the parties have joint decision making over matters that benefit from consideration of the views of experts. Their views are too divergent, and the respondent has a history of both, rejecting the views of experts, and attempting to impose his will on the applicant.

In my view, it is appropriate that, on a without prejudice, temporary basis, the applicant shall have sole decision-making authority for [the child] on all major decisions regarding [the child’s] health and medical care, [the child’s] schooling, and [the child’s] extra-curricular activities. During a pandemic that the respondent refuses to acknowledge is anything more than a “scamdemic”, it is in [the child’s] best interests that decisions about his health, schooling, and extra-curricular activities be made by the parent who accepts the public health concerns presented by the pandemic.

[57] In Zinati v. Spence, 2020 ONSC 5231, I addressed a motion where the applicant father wanted the parties’ children to learn virtually, while the respondent mother wanted the children to return to in-person learning.

[58] I reviewed the then-extant law on the emerging issue, which encompassed two decisions of the Quebec Superior Court, and two decisions of the Ontario Superior Court of Justice, Chase v. Chase, 2020 ONSC 5083, and Wilson v. Wilson, an unreported decision of Boucher J.

[59] At para. 13, I noted that Himel J., in Chase, found the reasoning in Droit de la famille – 20641, 2020 QCCS 1462, to be persuasive, when she concluded that “[t]he Ontario government is in a better position than the courts to assess and address school attendance risks.” I made reference to Himel J.’s decision not to take into account a report from the Hospital for Sick Children entitled “COVID-19: Guidance for School Reopening”, dated July 29, 2020. I identified, at para. 24, the problem that “the parties [making arguments about the conclusions in the Sick Kids’ report or about criticisms of the report] are unlikely to be experts, and there is no expert evidence offered to explain or contextualize any of the allegations being made.” In para. 26, I wrote, “[c]ourts do not function in a vacuum. Judges are aware, as Himel J. noted, that there are experts with competing views. Litigants should not expect the Sick Kids report to be taken as gospel when it comes to children and COVID-19.”

[60] I then concluded, at para. 27:

In my view, and having regard to available jurisprudence on this new and evolving issue, determinations about whether children should attend in-person learning or online learning should be guided by the following factors:

a. It is not the role of a court tasked with making determinations of education plans for individual families or children to determine whether, writ large, the government return to school plans are safe or effective. The government has access to public health and educational expertise that is not available to the court. The court is not in a position, especially without expert evidence, to second-guess the government’s decision-making. The situation and the science around the pandemic are constantly evolving. Government and public health authorities are responding as new information is discovered. The court should proceed on the basis that the government’s plan is reasonable in the circumstances for most people, and that it will be modified as circumstances require, or as new information becomes known.

b. When determining what educational plan is in a child’s best interest, it is not realistic to expect or require a guarantee of safety for children who return to school during a pandemic. There is no guarantee of safety for children who learn from home during a pandemic either. No one alive today is immune from at least some risk as a result of the pandemic. The pandemic is only over for those who did not survive it.

c. When deciding what educational plan is appropriate for a child, the court must ask the familiar question – what is in the best interest of this child? Relevant factors to consider in determining the education plan in the best interests of the child include, but are not limited to:

i. The risk of exposure to COVID-19 that the child will face if she or he is in school, or is not in school;

ii. Whether the child, or a member of the child’s family, is at increased risk from COVID-19 as a result of health conditions or other risk factors;

iii. The risk the child faces to their mental health, social development, academic development or psychological well-being from learning online;

iv. Any proposed or planned measures to alleviate any of the risks noted above;

v. The child’s wishes, if they can be reasonably ascertained; and

vi. The ability of the parent or parents with whom the child will be residing during school days to support online learning, including competing demands of the parent or parents’ work, or caregiving responsibilities, or other demands.

[61] The respondent argues that earlier reasons in similar cases can lead to a reasonable apprehension of bias. She argues that my comments in the two particular cases described above suggest that I have a predisposition in favour of the recommendations of public health officials. She argues that I would, in effect, need to contradict my prior rulings in order to uphold the arbitral award in this case, which she describes as running “contrary to the recommendations of virtually every level of government with respect to vaccinations.” She did not explain why that is so, in view of the standard of review analysis that must be brought to bear on appeal.

[62] The appellant states that these other decisions do not involve vaccines. He argues that the only mention of vaccines in either of these decisions occurs in A.T. v. V.S., where it is mentioned only to illustrate past conflict between the parties (the father having eventually consented to the vaccination of the child, apart from the flu vaccine), and the potential for future conflict, between the parties. He argues that A.T. v. V.S. and Spence v. Zinati are not mirror image cases to this appeal, and that, in any event, the analysis in both decisions follows the existing case law, and by so doing, they cannot support a finding of a reasonable apprehension of bias.

[63] The question of reasonable apprehension of bias and prior decision-making has been addressed by the courts in other cases.

[64] In Samson Indian Nation, the plaintiffs claimed a reasonable apprehension of bias on the part of the trial judge due to two decisions in unrelated litigation in which the trial judge was involved, and in which he had opined on legal issues that were also raised in the case then before him. As the judge noted on the recusal motion, he was unable to respond to what he said in his judgments. However, he wrote that he failed to see how his interpretation of the law could give rise to a reasonable apprehension of bias. “If this were the case I would never be permitted to sit on a case involving an issue about which I had previously decided. This, of course, would also apply to every other judge in Canada who has made a decision on a particular issue.” He noted that, to the extent the Court of Appeal determined his legal interpretations were in error, he would be bound to follow the appellate court’s jurisprudence in future decisions.

[65] The judge in Samson Indian Nation reviewed other decisions where bias was alleged based on a judge’s earlier involvement with similar legal issues, noting that courts have found that judges cannot be disqualified merely based on a prior decision on an issue or point of law. He concluded that “a judge, in deciding issues put before him or her in another case and which issues may be similar or the same as the issues he or she is to try will not be recused on the basis of a reasonable apprehension of bias for having previously decided the issues.”

[66] There have also been cases where prior involvement on an issue has led to a finding that a reasonable apprehension of bias exists, demanding the recusal of a judge.

[67] The respondent relies on R. v. Musselman, 2004 34073 (Ont. S.C.) to support her argument that a judge’s prior expression of views in similar cases can lead to a reasonable apprehension of bias. In Musselman, Corbett J. considered a trial judge’s decision not to recuse himself from an “over 80” trial. The trial judge, in obiter dicta, in another matter, Moore, had expressed views that Corbett J. characterized as comments which “could create the impression that he was less than pleased with the state of the law on the defence of ‘bolus drinking’, the impact it was having on court delays, and the general independence and objectivity of defence expert toxicologists.” On appeal from the Moore trial, Langdon J. of the Superior Court of Justice concluded that the trial judge’s remarks gave rise to a reasonable apprehension of bias, and directed a new trial. Upon learning of the result on appeal, the trial judge contacted Crown counsel to determine if a further appeal was planned. The trial judge made comments indicating his disagreement with Langdon J.’s decision, and he offered to “share his thoughts” with the Crown, apparently to assist with any appeal. Crown counsel suggested the communication was improper, at which time the trial judge realized it was inappropriate to communicate with the Crown regarding the possible appeal, and all communication between them stopped.

[68] The email between the trial judge and Crown counsel was disclosed to the accused in the unrelated Musselman case, because the Crown determined it had a duty (presumably pursuant to R. v. Stinchcombe, 1991 45 (SCC), [1991] 3 S.C.R. 326) to disclose it. This disclosure resulted in the recusal motion in the Musselman litigation, in which the trial judge found he need not recuse himself.

[69] On appeal of the Musselman recusal decision, Corbett J. found that the trial judge defended his language and obiter dicta statements from the Moore trial, and the tone and language of the decision on the recusal motion in Musselman reflected the trial judge’s “deep and personal dissatisfaction with Langdon J.’s decision”. Corbett J. found that the trial judge should have restricted himself to interpreting and applying Langdon J.’s decision, and should not have gone further.

[70] In the result, Corbett J. wrote, at para. 14:

I am impelled to the conclusion that the learned trial judge has now entered the “fray”, on his own behalf, and has so personalized the Moore decision, and the impact of that decision on the perception of his ability to try “over 80” cases impartially, that an atmosphere has been created where it appears that the trial judge has matters of his own reputation and integrity in mind when approaching these cases, rather than the dispassionate adjudication of the underlying cases.

[71] Thus, in Musselman, like in Stuart Budd, the judge was found to have entered the fray on his own behalf.

[72] The respondent also relies on Langstaff to argue that a judge’s expressed opinion in an earlier, “mirror-image matter”, was a critical factor in leading to a finding that there was a reasonable apprehension of bias. In Langstaff, a pre-trial judge expressed an opinion on a key issue - vicarious liability - in favour of a plaintiff in a civil sexual assault case against the plaintiff’s former teacher and school board. During the course of the pre-trial, the judge realized that he knew both the plaintiff and the plaintiff’s family. As a result, it was agreed the pre-trial would not proceed any further.

[73] Subsequently, the pre-trial judge became the trial judge in a “mirror-image matter”, where a different plaintiff made almost identical allegations of sexual assault against the same defendants. The judge rendered a decision, consistent with his earlier opinion at the pre-trial in the other matter, finding vicarious liability on the part of the school board. The decision was thus favourable to the parties with whom he had an association. The appellate court was asked to determine whether there was a reasonable apprehension of bias as a result of these facts and sequence of events, which the Court of Appeal described as “unique”: at para. 34. The Court of Appeal concluded, at para. 41, that a reasonable person, viewing the matter realistically and practically, would conclude that there was an apprehension of bias.

[74] Thus, in cases where the court has found a reasonable apprehension of bias as a result of a judge’s decisions in unrelated matters, the judge has either entered the fray (Musselman), or had a personal relationship with one of the parties affected (Langstaff). Neither of these circumstances is present in this case, or indeed, has been alleged.

[75] Rather, the respondent alleges that my “expression of views and activities” (Wewaykum Indian Band, at para. 77) through my decisions in A.T. v. V.S. and Zinati v. Spence form the basis for a conclusion that there is a reasonable apprehension of bias. The allegation is thus closer to that advanced in Samson Indian Nation than it is to the decisions in Musselman or Langstaff.

[76] In my view, a reasonable person, properly informed and viewing the matter realistically and practically would not conclude that I cannot decide the case fairly based on my decisions in A.T. v. V.S. and Zinati v. Spence, because:

a. the matters at issue in this appeal are not the same as those at issue in either A.T. v. V.S. or Zinati v. Spence. They are not “mirror image” cases.

b. in the respondent’s argument regarding A.T. v. V.S. in particular, she stated that my decision leads to the conclusion that I prefer custodial decisions to be made by parents who follow public health advice. The appellant argues that A.T. v. V.S. was a very different situation than this one. He states that, in this case, the respondent does not deny the existence of diseases, the value of expert opinion, or the chance to learn something from experts. She has led evidence from her own experts in support of her belief that the children’s best interests are served by not vaccinating them. The facts and issues in this appeal are different than those at issue in A.T. v. V.S.

c. the issues raised on appeal are identified in the respondent’s factum on appeal as (i) whether the arbitrator erred in failing to perform his gatekeeping function with respect to the expert evidence led at arbitration; (ii) whether the arbitrator failed to treat the parties with equality and fairness; (iii) whether the arbitrator erred in his consideration of the public records entered as evidence below; (iv) whether the arbitrator made errors of fact in his reliance on the evidence led on the respondent’s behalf, and in failing to consider the evidence led by the appellant; (v) whether the arbitrator erred in fact, or in mixed fact and law, in finding that it was in the children’s best interests to remain unvaccinated, in part on the basis of the status quo that existed during the marriage; and (vi) whether the arbitrator made an error in fact with respect to his findings regarding the children’s views on vaccination. None of these issues are addressed in A.T. v. V.S., or Zinati v. Spence. In particular, those decisions do not relate to vaccinations.

d. there is no evidence, and indeed no argument, that in A.T. v. V.S. or Zinati v. Spence, I “entered the fray on my own behalf” or have become so concerned about my own reputation as it might be impacted by issues raised in this appeal that I could not decide the case fairly.

e. the decisions in A.T. v. V.S. and Zinati v. Spence follow extant authority. In A.T. v. V.S., I relied on the leading decision of Pazaratz J. in Wright v. Ribeiro. In Zinati v. Spence, I relied on the limited jurisprudence then existing. The respondent argues that in Zinati v. Spence, I had a choice whether to follow Himel J.’s decision in Chase or Boucher J.’s decision in Wilson, however, she does not explain how Wilson conflicted with my decision in Spence v. Zinati, or with Himel J.’s decision in Chase, in its analysis, as distinct from its result.

[77] The reasonable person, properly informed, and considering my decisions in A.T. v. V.S. and Spence v. Zinati, would know that, as a practical and realistic matter, judges deal regularly with cases in which certain themes of broader societal interest recur. In family law, those themes include, among others, domestic violence and abusive behaviour, traditional gender roles in relationships, and, particularly when there is a global pandemic, public health issues. A reasonable person, viewing the matter practically and realistically, would understand that dealing with a case in which an issue of broad societal interest is engaged does not raise a reasonable apprehension of bias on the part of the judge in cases where the issue arises again, as it inevitably will. Were it otherwise, as a practical matter, the administration of justice would grind to a halt. There would be no judges left to hear cases.

[78] In my view, a reasonable person, properly informed and viewing the matter realistically and practically, would not conclude that I could not decide the appeal fairly based on my prior decisions. They would understand that prior decisions on different issues do not create a reasonable apprehension of bias. They would understand the obligation of the court to follow precedent and consider persuasive authority, apply appropriate legal principles, and evaluate the evidentiary record when making its decisions.

The Media Articles

[79] The respondent relies on three media articles in support of her motion. One article relates to my decision in the fresh evidence motions in this matter. Another relates to my decision to allow the MOH to intervene in this appeal. The last relates to my decision in A.T. v. V.S. All three articles were written by the same journalist, and published in the Toronto Sun newspaper. There is no evidence that any other journalist covered these decisions, or that they were published other than in the Toronto Sun.

[80] In an article entitled “Divorced Dad Pushes Ahead in Vaccination Fight”, the journalist describes the appellant as having “won a slim victory in his ongoing battle” over the vaccination of the children. The journalist states that the court gave the applicant “the go-ahead…to have bona fide vaccination experts testify on his behalf in his appeal of a shocking 2018 family arbitration decision that sided with anti-vaxxers who falsely claim vaccines do more harm than good.” The article sets out some comment from the appellant, and relates some history of the arbitration, and the appellant’s Gofundme campaign to finance his appeal. The journalist provides what appears to be her own assessment of the credentials of the appellant’s experts and the respondent’s experts. The journalist notes that I rejected the appellant’s evidence challenging the credentials of one of the respondent’s experts. The journalist writes, “[m]ore worrying to the father was the judge’s decision to accept the new evidence from their children’s pediatrician”, and relates this to the physician’s evidence about her concern for the psychological and emotional health of the children, and the physician’s evidence that the parties’ older child is mature enough to decide for himself whether to be vaccinated.

[81] The respondent agrees that the description of the appellant’s experts as “bona fide vaccination experts” was made by the journalist, not by me in my reasons on the fresh evidence motion.

[82] In an article entitled “Top Health Official Joins Dad’s Fight to Get his Kids Vaccinated,” the same journalist reports on the decision to allow the intervention of the MOH in this appeal. After setting out some comments from the appellant, making reference to the arbitrator’s reasons, and referring to the appellant’s Gofundme campaign, the journalist writes:

[The MOH’s] interest in the case is due to a ‘rising threat to public health, through the proliferation of misinformation surrounding the utility, efficacy, and safety of vaccinations,’ according to the ruling by Ontario Superior Court Justice Jasmine Akbarali.

“She explains that this threat arises because a reduction in vaccines due to vaccine hesitancy can reduce herd immunity and lead to outbreaks, and can put vulnerable individuals at risk from vaccine-preventable diseases.”

[83] The quote attributed to me in the first paragraph above is a reference to para. 7 in my reasons on the intervention motion, in which I describe the MOH’s evidence as follows:

The MOH describes her interest in this appeal as aligning with the public interest in promoting and maintaining the health of the community. Her delegate, who swore an affidavit on the motion, deposes that the MOH’s interest in this appeal is informed, in part, by a rising threat to public health, through the proliferation of misinformation surrounding the utility, efficacy, and safety of vaccinations. She deposes that misinformation about vaccines has contributed to vaccine hesitancy, which the MOH and others, including the World Health Organization, have identified as a threat to public health. She explains that this threat arises because a reduction in vaccines due to vaccine hesitancy can reduce herd immunity and lead to outbreaks, and can put vulnerable individuals at risk from vaccine-preventable diseases.

[84] The final article on which the respondent relies is entitled “Father who Believes COVID-19 is a ‘Scamdemic’ Loses Custody of Child”. In this article, the journalist opens by writing, “[w]atching people fighting against having to wear masks or otherwise abide by legitimate public health guidelines and you have to wonder about their poor children. Who’s protecting them from this insanity?”

[85] She goes on to write, “[w]ell, at least Ontario’s family court is taking a dim view of separated parents who aren’t acting in the best interests of their kids.” She refers to the ruling in A.T. v. V.S. as “scathing” against the father “for dismissing COVID-19 as a ‘scamdemic.’” The journalist describes portions of the ruling, including my reliance on Pazaratz J.’s decision in Ribeiro v. Wright. She concludes by writing, ‘[i]f the mom doesn’t agree to resuming in-person visits, [the father] can apply to the court – but only after he either tests negative for COVID or self-isolates for 14 days and also agrees to follow government and public health protocols in the future. Because protecting your child’s health is no hoax.”

[86] I asked the parties if any jurisprudence existed in which courts have considered the role media coverage might play in determining whether a reasonable apprehension of bias exists. Both parties confirmed they had been unable to locate any authority on the point.

[87] In my view, a reasonable person, properly informed, and viewing the matter realistically and practically, would notice that the media articles upon which the respondent relies appear, on their face, to be provocative, seeking an emotional reaction from the reader. They include phrases such as “shocking 2018 family law arbitration decision”, “fight to have his children vaccinated”, “anti-vax”, “it’s more important than ever to fight the quacks and conspiracy theorists”, “[w]ho’s protecting [children] from this insanity?”, and “[b]ecause protecting your child’s health is no hoax.” A reasonable person would seek out the underlying decisions to ensure that they were properly informed, and draw their conclusions from the source material, not a journalist’s articles about the decisions. A reasonable person, properly informed, would also note that there are only three media articles in question, all of which were written by the same journalist, for the same paper.

[88] There is no evidence on which to conclude that the journalist in question, who is presumably paid to write articles for her paper, represents a reasonable person, properly informed, who is viewing the matter practically and realistically.

[89] I thus conclude that, at least in these circumstances, where there has been limited media coverage all attributable to the same journalist, that a reasonable person, properly informed, would disregard the media coverage entirely, and form their views as to whether I can decide the appeal fairly based on the decisions at issue. Reviewing the underlying decisions is how the reasonable person would become properly informed.

Is there a reasonable apprehension of bias in the totality of the circumstances?

[90] Having looked at the grounds advanced by the respondent in support of her motion individually, it remains necessary to view the matter as a whole. Would the grounds advanced by the respondent, taken together, in the context of all of the circumstances, and in light of the whole proceeding, lead a reasonable person, properly informed and viewing the matter realistically and practically, to conclude that I could not decide the appeal fairly?

[91] When the individual grounds in support of the recusal motion have no merit on their own, they cannot collectively have merit. There must be something behind the individual grounds for them to amount to a sum greater than their parts. In this case, the individual grounds have no merit.

[92] Moreover, the cases where a reasonable apprehension of bias has been found to exist have hallmarks not seen in this case. There is no suggestion that I have entered the fray in the litigation between the parties, or in respect to any issue raised in the appeal. There is no evidence that I have rejected the guidance of existing law in reaching the conclusions I have reached in the decisions upon which the respondent relies in this case. There is no evidence that I have a relationship or alliance with any of the parties personally, or any financial interest in the matters under appeal. There is no evidence I have had any prior involvement with this case other than is appropriate in my role as case management judge.

[93] The respondent has not met her burden to displace the strong presumption of judicial impartiality. The grounds she alleges in support of her motion, taken together and viewed in the context of all of the circumstances and in light of the whole proceeding, are not substantial and do not discharge her onus. The apprehension of bias that she alleges is not reasonable. In my view, a reasonable person, properly informed and viewing the matter realistically and practically, would conclude that I can decide the appeal fairly.

Delay

[94] I note briefly that the appellant argued that the respondent’s motion was brought late, and was designed to delay the hearing of the appeal. He argued that the respondent indicated her intention to bring the motion prior to the release of Zinati v. Spence, but weeks after the release of A.T. v. V.S., weeks after the release of the intervention decision, and months after the release of the fresh evidence decision. The respondent argues that the delay in the appeal was primarily caused by the appellant’s delay in perfecting the appeal, and that the decision to bring the motion was made as soon as practicable.

[95] As is apparent by now, I have not determined the motion on the basis of delay. While I agree it would have been preferable, and possible, for the motion to have been brought earlier than it was, the delay is not so significant to be controlling in this case.

Costs

[96] The parties have agreed that the successful party on this motion shall be entitled to $5,000 in costs, plus H.S.T. The appellant is the successful party. The respondent shall pay his costs of $5,000, plus H.S.T. within thirty days.

Summary of Order

[97] In summary, I make the following order:

a. The respondent’s motion for an order that I recuse myself from hearing the appeal in this matter is dismissed;

b. The respondent shall pay the appellant his costs of this motion in the amount of $5,000, plus H.S.T. within thirty days.

c. This endorsement is an order of the court, enforceable by law from the moment it is released.

J.T. Akbarali J.

Date: September 18, 2020