Written by: Irvin Schein

I have been involved in a number of cases in which motions have been brought to force an opposing lawyer to give up a file and get off the record for a variety of reasons, but most typically due to an alleged conflict of interest. In my view, and as a general rule, the threshold to be met to obtain an Order declaring opposing counsel to be in conflict is not particularly high. But what about judges?

In any case where the impartiality of the judge is in question, the appearance of the matter is just as important as the reality.

A number of years ago, I defended a client in a small town in Ontario in a contract case. The Plaintiff moved for judgment before one of only two judges regularly sitting in that jurisdiction. For whatever reason, that judge obviously took a significant dislike to my client and not only did I lose, the judge went of his way to make a number of harsh and derogatory statements about him which I found to be uncalled for.

I launched an appeal in that summary judgment, and I was successful. However, not only did the Court of Appeal set aside the judgment, it also granted an Order declaring a bias on the part of that particular judge and requiring that the judge refrain from participating in any motions, pre-trial conferences or the trial itself as that matter progressed.

That was a very unusual case. The evidence of bias was plain and obvious on the record. The situation is much more difficult where there is no actual evidence of bias but only the possibility of bias. The recent decision of the Court of Appeal in Bailey v. Barbour was such a case.

In that case, the parties were disputing their respective right to waterfront property on Georgian Bay, in the Township of Tiny.

At the beginning of the trial, the trial judge told the lawyers of a potential conflict of interest on his part and asked whether or not either of them considered it to cause any difficulty. After some consideration, the lawyer for the Plaintiff asked the judge to recuse himself. Remarkably enough, the judge declined that request and proceeded to conduct the trial.

On the appeal, the Appellant argued that the judge should have recused himself.

The judge had pointed out to the lawyers that among other things, his wife was a real estate agent in Tiny Township specializing in waterfront property and that her clients included two individuals who were likely to (and ultimately did in the case of one of them) play a role in the trial. It was clear to everyone at that time that one of those individuals would be testifying and it was equally clear that the other one had a keen interest in the outcome of the case because of her ownership of a neighbouring property.

The trial judge indicated that he had an “understanding” with his wife not to discuss business matters at home. He also acknowledged that when he had been assigned to the matter as the trial judge, he brought up the situation with his wife and asked her if there was anything that he should know about any possible connection between his wife and the properties. It was at that point that he learned of her relationship with the two individuals referred to above.

However, and deciding to stay on as trial judge, he ruled that his wife’s involvement was merely an “attenuated connection” falling short of the threshold to be met in such circumstances.

As the Court of Appeal pointed out, a judge’s impartiality is presumed and in assessing the question of whether or not there exists a reasonable apprehension of bias, one would have to ask what “an informed, reasonable and right-minded person viewing the matter realistically and practically and having thought the matter through” would conclude.

The Court of Appeal went on to point out that “in any case where the impartiality of the judge is in question, the appearance of the matter is just as important as the reality”. The court has to consider whether or not there is a real likelihood that the judge will favour one side at the expense of another. The court will look at the impression that will be given to other people. Other cases have used phrases such as “reasonable apprehension”, “reasonable likelihood”, and “reasonable suspicion” instead of “real likelihood”, but they all mean the same thing.

In this case, in answer to the question as to whether a reasonable person properly informed would apprehend an appearance of bias, the Court of Appeal found that one would have to take into account all of the relevant factors including the trial judge’s wife’s connection to the people and the properties in the dispute. In those circumstances, the Court of Appeal found that there would be no doubt that the individuals having a business relationship to the trial judge’s wife would have a great deal of knowledge about the parties and an interest in the litigation and its result. Clearly, her connection to the property was deep and current. As a result, the Court of Appeal determined that there did exist a reasonable apprehension of bias necessitating a new trial before a different judge. The appeal was allowed. The Respondent was ordered to pay the Appellant’s costs of the deal fixed at $25,000.

What is truly unfortunate, of course, is that as a result of a wrong decision on the part of a trial judge concerning his own status, the parties had to incur the expense of an appeal (resulting in a $25,000 costs award against the Respondent) and the parties will now have to engage in yet another expensive trial likely lasting for another 3 weeks or so.

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