Apprehension of Bias when judges decide

By Peter W. Kryworuk
Jun 20, 2012
Last month, the Court of Appeal decided two cases dealing with the issue of apprehension of bias. In both Lloyd v. Bushand Bailey v. Barbour, the Court affirmed the test for establishing a reasonable apprehension of bias, first articulated in de Grandpré J.'s dissenting judgment in Committee for Justice and Liberty v. Canada (National Energy Board), [1978] 1 S.C.R. 369: what would an informed, reasonable and right-minded person, viewing the matter realistically and practically, and having thought the matter through, conclude? Would he or she think it is more likely than not that the judge, whether consciously or unconsciously, would not decide fairly?  The determination of whether a reasonable apprehension of bias arose requires a highly fact-specific inquiry and there is a strong presumption in favour of the impartiality of a trier of fact.
Despite the high threshold for determining a reasonable apprehension of bias, in both Lloyd v. Bush and Bailey v. Barbour, the appeal was allowed, the judgment set aside and a new trial ordered.
In Lloyd, the appellant sued the respondents for injuries suffered as a result of a "horrendous" accident involving a loaded propane truck driven by the respondent, David Bush. The appellant also sued the County and the Town. 
The action was settled with the driver and the owner of the propane truck. On the first day of trial, counsel for the County brought a Rule 20 motion to dismiss certain claims against the County and Town which alleged failure to properly design the road and related issues.  The trial judge granted the motion.  The only remaining issue in relation to the County and Town concerned proper winter maintenance of the road.  After the decision regarding summary judgment was released, counsel for the Town advised that the Town was prepared to carry the defence of the County.  Counsel for the County then withdrew from the trial. 
During the trial, the trial judge found that counsel for the appellant improperly raised an allegation of fraud against the Town after an expert witness for the appellant testified that the Town's records regarding the road clearing and salting on the date of the accident were inconsistent with a photograph of the road taken on that date. Although appellant's counsel denied that he made an allegation of fraud, the trial judge insisted that an allegation of fraud was being made by the appellant without having pleaded it. The trial judge again referred to this alleged fraud when addressing costs.
Further, midway through trial, the trial judge made a statement regarding the appellant's credibility by referring to her falsified curriculum vitae, which indicated that she had received a bachelor degree. The appellant had testified that she was one credit short but had intended to obtain the credit at the time.
Writing for the Court of Appeal, Armstrong J.A. held that the trial judge had erred when he concluded that the expert's testimony amounted to an allegation of fraud that had not been pleaded. This error occurred in part because the trial judge came to this conclusion on his own initiative. The Court found the trial judge's repeated interjections about the allegation of fraud to be "troubling". His characterization of the plaintiff's evidence that the work reflected in the records was inconsistent with the state of the road surface as an assertion of fraudulent record-keeping by the Town was "an entirely erroneous characterization of the evidence and of the plaintiff's position on this, the main issue in the trial". Armstrong J.A. further held:
Coupled with the persistence with which the trial judge asserted this erroneous characterization, it clearly would have suggested the trial judge appeared to have the view that the plaintiff was asserting a position that could not possibly be true and doomed the plaintiffs' case. In my view, a fully informed reasonable observer would conclude that at this relatively early point in the trial, and particularly after the repetition of the error later in the trial, the trial judge seemed to have closed his mind to the central issue in the case and "whether consciously or unconsciously, would not decide fairly."
With respect to the trial judge's comments regarding the plaintiff's credibility, the Court of Appeal noted that the seemingly gratuitous statement of the trial judge concerning the appellant's credibility before the conclusion of the trial was not appropriate and raised a serious issue regarding the trial judge's impartiality. The Court found that the reference made by the trial judge in open court concerning the appellant's negative credibility raised a reasonable apprehension of bias, particularly when considered in conjunction with the trial judge's interjection with respect to the allegation of fraud and its apparent impact on his perception of the appellant's case.  Accordingly, a new trial was ordered. 
Bailey involved a protracted battle between the parties regarding their respective rights to waterfront properties.
The appeal arose from the order of McIsaac J. setting aside the decision of Deputy Director of Titles Rosenstein, following an application by the appellant Bailey pursuant to s. 46(2) of the Land Titles Act.  In the proceeding under the Land Titles Act, the Deputy Director of Titles found that the objection filed by the respondent Barbour was not valid, and granted to Bailey possessory title to a portion of the parcel claimed by Barbour, a narrow access route across the Barbour property to Bailey's property known as Tiny Island. Barbour's appeal from the decision of the Deputy Director of Titles proceeded as a trial de novo before McIsaac J. At its outset, however, the trial judge alerted counsel to a potential conflict of interest and asked them to consider whether it caused either side any difficulty. Counsel for Bailey asked the trial judge to recuse himself, but McIsaac J. declined the request.
There were several potential conflicts indicated by the trial judge, the most significant of which was that his wife was a real estate agent in Tiny Township specializing in waterfront property. Among her clients were family members of property owners with an interest in the dispute at issue, one of whom was expected to be a witness at the trial.
Counsel for Bailey raised his concerns with the trial judge about the reasonable apprehension of bias, citing what he referred to as the "multiplicity of involvements" if not of the trial judge, then at least of the trial judge's wife. The trial judge decided that his wife's involvement was merely an "attenuated connection" falling "well short of the threshold" justifying the request of recusal.
In its decision, the Court of Appeal pointed out that the inquiry into whether a conflict exists sufficient to prompt a decision-maker to recuse him or herself must be fact-specific. The trial judge correctly identified the test to be applied for determining whether there exists a reasonable apprehension of bias. The Court of Appeal further cited the decision of Metropolitan Properties Co. (F.G.C.) Ltd. v. Lannon, [1968] 3 All E.R. 304 (C.A) where Lord Denning M. R. stressed the importance of the appearance of judicial impartiality:
In considering whether there was a real likelihood of bias, the court does not look at the mind of the justice himself.... It does not look to see if there was a real likelihood that he would, or did, in fact favour one side at the expense of the other. The court looks at the impression which would be given to other people. Even if he was as impartial as could be, nevertheless, if right-minded persons would think that, in the circumstances, there was a real likelihood of bias on his part, then he should not sit. And if he does sit, his decision cannot stand.
In this case, counsel did not suggest any actual bias on the part of the trial judge. However, as the Supreme Court pointed out in Weywakum Indian Band, at para. 66, "where disqualification is argued, the relevant inquiry is not whether there wasin fact either conscious or unconscious bias on the part of the judge, but whether a reasonable person properly informed would apprehend that there was" (emphasis in original).
The Court of Appeal noted that the question of what a reasonable person properly informed would conclude could not be answered without taking into account all of the relevant factors, which in this case included the trial judge's wife's connections to the people and properties at the heart of the dispute. Given the facts and circumstances of this case, the Court of Appeal found that there could be no doubt that the trial judge's wife's clients would have a great deal of knowledge about the parties to the dispute, and an obvious ongoing interest in the litigation and its result.
The Court of Appeal went on to explain that whenever a party claims that a reasonable apprehension of bias exists, the judge must weigh the submission carefully and contextually, taking account of all relevant circumstances. The trial judge did not follow that course in this case. Had he done so, he would have given greater consideration to his wife's involvement in the narrative, and he would not have concluded that the appellant's claim for disqualification was based only on "a general sense of unease" falling "well short of the threshold that justifies the order sought."
The Court of Appeal concluded that the appellant met the high threshold necessary to establish a reasonable apprehension of bias. The circumstances created a reasonable apprehension of bias, necessitating a new trial before a different judge. 


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