Written by: Irvin Schein

In my last post, I made a comment about a judge having failed to recuse himself upon the request of counsel at the beginning of a trial on the grounds of reasonable apprehension of bias arising out of a connection between the trial judge’s wife and certain individuals with an interest in the outcome of the case. 

I also referred to an experience which I had had several years earlier in which I was able to have a summary judgment overturned on the basis of bias as evidenced by remarks made by a motions court judge. 

In a recent Court of Appeal decision, Lloyd v. Bush et al., the Court dealt with another situation in which a judge betrayed an apparent bias during the course of a trial, resulting in the decision being set aside and a new trial being ordered.  The circumstances were so unusual (and hopefully interesting) as to bear close examination.

As I had indicated in my last post, the rather high threshold established by the cases for the overturning of a decision on the basis of a reasonable apprehension of bias can be met without a finding of actual bias.  It is sufficient to demonstrate that on an objective basis, a reasonable person with knowledge of all of the facts would conclude that it is more likely than not that a judge would not decide fairly.  The appearance of potential bias is sufficient.

Lloyd v. Bush was a case in which bias was clearly demonstrated by the trial judge’s own statements and actions in several respects.  Read more of this post