Canada (Minister of National Revenue) v. Mathers, 2001 FCT 104

                                                                                                                                            Date: 20010221

                                                                                                                                 Docket: ITA-8856-99

MONTRÉAL, QUEBEC, FEBRUARY 21, 2001

Before:            RICHARD MORNEAU, PROTHONOTARY

In re the Income Tax Act

                                                                              - and -

In re one or more assessments made by the Minister of National Revenue pursuant to one or more of the following statutes: the Income Tax Act, the Canada Pension Plan and the Employment Insurance Act

AGAINST:

                                                              JEAN-GUY MATHERS

                                                                                                                                          Judgment debtor

                                                                              AND

                                                    CINÉPARC ST-EUSTACHE INC.

                                                                                                                                                         Objector

                                                                              AND

                                     DEPUTY MINISTER OF REVENUE OF QUEBEC

                                                                                                                                                     Intervener

                                                                            ORDER

This motion by the objector is dismissed with costs. The judgment creditor will see that her currently pending application is replaced on the roll as soon as the instant decision has become final.

          Richard Morneau          

Prothonotary

Certified true translation

Suzanne M. Gauthier, C. Tr., LL.L

                                                                                                                                            Date: 20010221

                                                                                                                                 Docket: ITA-8856-99

                                                                                                             Neutral reference: 2001 FCT 104

In re the Income Tax Act

                                                                              - and -

In re one or more assessments made by the Minister of National Revenue pursuant to one or more of the following statutes: the Income Tax Act, the Canada Pension Plan and the Employment Insurance Act

AGAINST:

                                                              JEAN-GUY MATHERS

                                                                                                                                          Judgment debtor

                                                                              AND

                                                    CINÉPARC ST-EUSTACHE INC.

                                                                                                                                                         Objector

                                                                              AND

                                     DEPUTY MINISTER OF REVENUE OF QUEBEC

                                                                                                                                                     Intervener

                                                            REASONS FOR ORDER

RICHARD MORNEAU, PROTHONOTARY

Introduction

[1]         In the case at bar the Court has before it a motion by the objector asking me to disqualify myself in the instant case on the ground that the facts raised by the said motion establish a reasonable apprehension of bias on my part.

[2]         Accordingly, the challenge is made regarding "individual", not "institutional", bias and does not in any way concern the concept of "independence".

Procedural background                                                              

[3]         Although the motion at issue comes from Quebec and the Federal Court Rules, 1998 ("the Rules") do not as such contain any specific rule of procedure regarding the disqualification of a member of this Court, there is no basis for relying in the case at bar via Rule 4 on the procedure laid down in arts. 237 et seq. of the Quebec Code of Civil Procedure (C.C.P.).

[4]         Rule 4 in fact provides that the Court "may", not "must", refer to provincial rules of procedure. Over the years the Court has developed its own practice when confronted with a motion to disqualify (see inter alia the following cases: Samson Indian Nation and Band v. Canada, [1998] 3 F.C. 3, affirmed on appeal, [1998] F.C.J. No. 688 (hereinafter "Samson"); Fogal v. Canada, [1999] F.C.J. No. 129, affirmed on appeal, [2000] F.C.J. No. 916 (hereinafter "Fogal")). That does not mean that the substantive provisions of art. 234 C.C.P. may not be consulted for analytical purposes.

[5]         It can be seen from Fogal and Samson that it is the person against whom the motion is made who first hears it (see also as to this the article by Roger Philip Kerans, a judge for 27 years, titled "It's good to refuse to recuse", appearing in the Globe and Mail, Wednesday edition, November 24, 1999, at p. A15).

[6]         This is why in the weeks preceding the making of the motion I informed counsel for the objector that I would hear the motion myself.

[7]         Additionally, the affidavit in support of the motion originated with counsel for the objector. This practice is prohibited in principle by Rule 82. That rule reads as follows:

[8]         However, as the facts set out in that affidavit are not disputed (we shall have occasion to return to the question of whether the facts are sufficient); as this is the only affidavit in the record (Her Majesty the Queen, the judgment creditor, having chosen not to file an affidavit); and since so far as possible procedural obstacles which could delay hearing of the motion ought to be removed, I have authorized counsel for the objector, in accordance with Rule 82 in limine, to proceed nonetheless.

Applicable factual background

[9]         The general factual background against which the motion to disqualify was made is as follows.

[10]       The judgment creditor garnished a certain sum of money on the basis that this sum belonged to the judgment debtor in the case at bar. The objector objected to the garnishment, alleging that it was the owner of the said amount. The merits of this objection have not yet been decided: in the meantime, the case has been the subject of several motions including the one at bar, to which we may now return.

[11]       The affidavit of counsel for the objector (hereinafter "the objector's affidavit") indicated the following:

[TRANSLATION]

1.              I am counsel for the objector in the instant case;

2.              I have received the objector's instructions to file the instant motion record for disqualification;

3.              Chantal Comtois, counsel for Her Majesty the Queen in the case at bar, is part of the Taxation Branch of the federal Department of Justice, Montréal office;

4.              Pascale O'Bomsawin also works for the Taxation Branch of the federal Department of Justice, Montréal office;

5.              Chantal Comtois and Pascale O'Bomsawin therefore work in the same sector for the federal Department of Justice;

6.              Chantal Comtois and Pascale O'Bomsawin are both required to work on federal Customs and Revenue Agency matters;

7.              I have been informed by counsel working for the federal Department of Justice that Pascale O'Bomsawin is the spouse of the prothonotary Richard Morneau;

8.              Richard Morneau is the prothonotary hearing the case at bar;

9.              the prothonotary Richard Morneau has already made several decisions, orders and/or directions in the case at bar;

10.            the prothonotary Richard Morneau will be making several other decisions, orders and/or directions in the case at bar;

11.            the objector's motion is made in good faith and in the interests of justice and of all taxpayers;

12.            all the facts alleged in the instant notice of motion and in this affidavit are true.

[12]       There is no question that the facts mentioned in paras. 3, 4 and 7 of this affidavit are true.

[13]       We could accept the facts set out in paras. 5 and 6 of the said affidavit for what they establish and the following analysis (paras. 26 et seq.) and the outcome of the motion at bar would not be in any way altered. However, their veracity needs clarification and must accordingly be qualified so as to reflect what an informed person should know. In this connection, it does not seem that the objector really attempted to obtain from the judgment creditor the following additional facts which I take the liberty of mentioning, since in a motion like the one at bar the addition of facts by the person deciding the motion seems to be appropriate (see Samson, supra, p. 18, para. 15).

[14]       The facts which I discuss in paras. 15 to 24 are facts which were brought to my attention by my spouse and I consider them to be true. For the same reasons, I consider that these facts in practice reflect the public operation of the Tax Litigation Directorate of the federal Department of Justice and of the federal Customs and Revenue Agency ("the Agency").

[15]       The general nature of para. 5 of the objector's affidavit is such that the statement it contains cannot be denied. However, a person seeking to obtain the fullest information would have known that the Montréal office of the Department of Justice consists of three litigation branches: Civil Matters Directorate, Federal Prosecutions Service (criminal litigation) and the Tax Litigation Directorate ("the Directorate").

[16]       In practice, the Directorate consists of two groups: the collections group (which includes some nine lawyers) and the taxation group (which includes about 41 lawyers). As additional information, the taxation group consists of the general procedure subgroup and the informal procedure subgroup (hereinafter "the informal subgroup").

[17]       Ms. Comtois is part of the collections group and my spouse is part of the taxation group, specifically the informal subgroup.

[18]       The taxation group essentially appears in the Tax Court of Canada and the Federal Court of Appeal for, first, appeals against assessments of taxpayers pursuant to the Income Tax Act, R.S.C. 1985 (5th Supp.), c. 1, as amended, and second, on appeals regarding determinations made under the Employment Insurance Act, S.C. 1996, c. 23, as amended.

[19]       The collections group tries to collect money owed to the agency by execution proceedings in the Federal Court Trial Division and the Superior Court.

[20]       Cases for both groups are administered and conducted in the courts by counsel who do not act in cases for both groups at the same time.

[21]       To my spouse's knowledge, there is no professional interaction between counsel for both groups in the conduct of cases.

[22]       The taxation group and the collections group are headed by different team leaders, who regularly report to a third person, the director of the Branch.

[23]       These team leaders manage their groups separately in all types of administrative matters.

[24]       On para. 6 of the objector's affidavit, and like para. 5 of the said affidavit, the general terms are such that the statement it contains cannot be denied. However, the facts set out above lead to the conclusion that cases for the collections group and for the taxation group come from different parts of the Agency.

[25]       My spouse indicated, and I believe her, that the facts mentioned in paras. 15 to 24 could easily have been obtained from the Branch by the objector. It appears that the objector did not, as argued in the pleadings, have to undertake a difficult investigation to obtain this information.

Analysis

[26]       It is worth beginning our analysis with the following observations of the Supreme Court on the concepts of impartiality and bias, made in R. v. S. (R.D.), [1997] 3 S.C.R. 484, at 528:

In Valente v. The Queen, [1985] 2 S.C.R. 673, at p. 685, Le Dain J. held that the concept of impartiality describes "a state of mind or attitude of the tribunal in relation to the issues and the parties in a particular case". He added that "[t]he word ‘impartial' . . . connotes absence of bias, actual or perceived". See also R. v. Généreux, [1992] 1 S.C.R. 259, at p. 283. In a more positive sense, impartiality can be described - perhaps somewhat inexactly - as a state of mind in which the adjudicator is disinterested in the outcome, and is open to persuasion by the evidence and submissions.

In contrast, bias denotes a state of mind that is in some way predisposed to a particular result, or that is closed with regard to particular issues.

[27]       On the test applicable to weighing reasonable apprehension of bias, Bastarache J. of the Supreme Court recently noted the following:

The test for apprehension of bias takes into account the presumption of impartiability. A real likelihood or probability of bias must be demonstrated (R. v. S. (R.D.), [1997] 3 S.C.R. 484, at paras. 112 and 113).

(My emphasis)

[28]       In R. v. S. (R.D.), at 532, the Supreme Court emphasized that the threshold for a finding of bias is high:

Regardless of the precise words used to describe the test, the object of the different formulations is to emphasize that the threshold for a finding of real or perceived bias is high. It is a finding that must be carefully considered since it calls into question an element of judicial integrity. Indeed an allegation of reasonable apprehension of bias calls into question not simply the personal integrity of the judge, but the integrity of the entire administration of justice.

[29]       In the same breath, the Court indicated that the careful examination in question will depend entirely in each case on the evidence presented by the party alleging the reasonable apprehension of bias:

The onus of demonstrating bias lies with the person who is alleging its existence: Bertram, supra, at p. 28; Lin, supra, at para. 30. Further, whether a reasonable apprehension of bias arises will depend entirely on the facts of the case.

[30]       In Droit de la Famille - 1559 (C.A.), [1993] R.J.Q. 625, at 633, Delisle J.A., speaking for a majority of the Quebec Court of Appeal, after reviewing the now well-known observations of De Grandpré J. in [1978] 1 S.C.R. 369">Committee for Justice and Liberty v. National Energy Board, [1978] 1 S.C.R. 369, at 394-95, analysed the reasonable apprehension of bias with the following pragmatic approach:

[TRANSLATION]

To be a cause of disqualification, therefore, the apprehension of bias must:

(a) be reasonable, in the sense that it must be both a logical apprehension, that is one which is based on valid grounds, and an objective one, that is one which a person described in (b) below, placed in the same circumstances, would share: there can be no question of a superficial, frivolous or isolated apprehension;

(b) be entertained by a person:

(1) who is sensible, not a quibbler, who is neither over-scrupulous nor anxious, naturally apprehensive nor readily inclined to blame others;

(2) who is well informed, because he or she has viewed the matter realistically and practically, that is, devoid of all emotionalism: the application to disqualify cannot be impulsive or a way of choosing the person who will hear the argument; and

(c) be based on good grounds: in analysing this test, the requirements will be more or less strict depending on whether the argument was recorded and whether a right of appeal exists.

(My emphasis)

[31]       With the aid of this information, if we now try and focus on circumstances which are somewhat similar to our own, we will first find that in legislative terms only Quebec, through art. 234(9) C.C.P., deals with the possibility of disqualification for reasons of relationship or marriage.

[32]       This paragraph indicates that a judge may be disqualified:

[33]       Of course, that is not the position here. I am neither related nor allied to Ms. Comtois and my spouse is not the latter's partner. Indeed, as someone working in the public sector my spouse is not the partner of any other counsel in the Branch, or indeed in the rest of the Department of Justice.

[34]       It is thus clear that in legislative terms the situation in question is not objectionable.

[35]       In terms of precedent, the only judgment which this Court has been able to find (which was also cited by the judgment creditor) and which approximates to the case at bar is Essex (County) Roman Catholic Children's Aid Society v. P. (T.), [1989] O.J. No. 606 (hereinafter "Essex").

[36]       In that case the motion to disqualify was based on the fact that the judge's wife practised as a lawyer in the law firm acting for one of the parties, namely the Children's Aid Society. As the Court understood the matter, it was argued that advancement of the judge's wife to the position of partner could be facilitated by the judge making a decision favourable to the Society.

[37]       The following is how the judge analysed this argument, at p. 5, and concluded there was no real likelihood of bias:

It appears to me upon my reading of this law that counsel in this case must establish not just that their clients have an apprehension of bias, but that there is a foundation for that apprehension in that the circumstances are such that there is a real likelihood of bias. To put it another way, they must establish that my interest in this case, arising from the employment of my wife with the firm representing the Society is such a substantial interest that judged by a reasonable man there exists, not a possibility but a probability or real likelihood of the existence of bias.

As I understand it, counsel for the parents in explaining the foundation for the apprehension on the part of their clients have suggested that my wife, being an employee of the legal firm which represents the Society, is under the control of the partnership. Counsel implies that a decision which I might make in this case might be viewed favourable or unfavourably by the Law firm and that that may have a consequence upon my wife's employment or perhaps upon her aspirations, if in fact they exist, to be given partnership status in the firm. Consequently, as I understand it, the suggestion is that I might favour the Society.

Having considered the facts presented and the law to which I have referred including those circumstances as disclosed by the decided cases in which a real likelihood of bias has been found, I have reached the conclusion that a real likelihood of bias does not exist in the circumstances of this case.

[38]       In the case at bar, the objector's motion record does not explain its apprehension of bias in any way. The objector's affidavit does not even use this expression. The objector's written submissions in support of its motion do not elaborate in any way on this apprehension of bias (see inter alia paras. 10, 38, 47 and 52). In its motion, the objector reaches the conclusion solely on the basis of the facts mentioned in its affidavit. It does not in any way indicate the process by which there could be a reasonable apprehension of conflict between a personal interest on my part (the wish to favour my spouse) and my duties, of rendering justice with impartiality (as to the relevance of such a process, see Ethical Principles for Judges, Canadian Judicial Council, November 1998, pp. 42 to 44).

[39]       In the same way, the only assumption that could support the objector's conclusion has to be the following: it would be reasonable to think that I already knew that by favouring the Agency in the case at bar - as in any other case handled by the collections group that involved the Agency - the result would be to contribute to my spouse's advancement in the taxation group. This necessarily implies inter alia, in view of the facts mentioned in paras. 15 to 24, supra, that my spouse's team leader and the director of the Branch had indicated to my spouse that any advancement she might receive would be due wholly or in part to my favouring the Agency. My spouse would also have had to mention the content of such remarks to me in order to ensure that the process would continue.

[40]       Such a suggestion was not expressly made by the objector, and if it had been it would be difficult to believe that it came from a person:

(1) who is sensible, not a quibbler, who is neither over-scrupulous or anxious, naturally apprehensive or readily inclined to blame others;

(2) who is well informed, because he or she has viewed the matter realistically and practically, that is, devoid of all emotionalism: the application to disqualify cannot be impulsive or a way of choosing the person who will hear the argument; and

(c) be based on good grounds: in analysing this test, the requirements will be more or less strict depending on whether the argument was recorded and whether a right of appeal exists.

(My emphasis)

[41]       At para. 53 of its written submissions, the objector referred the Court to the following situation:

[TRANSLATION]

53.            Louis Crête J. of the Superior Court, in Lizotte v. RBC Dominion Valeurs Mobilières Inc. . . . withdrew from the case on the following grounds:

Whereas on the morning of the hearing Christine Carron, a partner in the firm of Ogilvy, Renault, appeared and indicated that she was representing certain witnesses who had been called by Mr. Lizotte in the proceeding;

Whereas the undersigned judge is married to Sylvie Graton, also a partner at Ogilvy, Renault . . .

[42]       To begin with, it will be noted that this situation involved lawyers in private practice who were partners in the same firm. Further, it cannot be ignored that the Court in that case chose to take the option that seemed easiest. However, it does not follow that such an approach is necessarily the best one in all cases, as is clearly indicated by the following comments from Commentaries on Judicial Conduct, Canadian Judicial Council, March 1991, at p. 62:

The easiest, and most tempting, answer to all question of this kind is, of course, for the judge not to sit on the case. But the easy answer is not necessarily the correct one.

(See Kerans' article, supra, para. 5 for the same conclusion.)

[43]       Additionally, in argument at the hearing counsel for the objector placed special emphasis on the fact that as my spouse has the Agency as a client the situation could lead her to pass on to me information from her client affecting taxpayers' cases.

[44]       These arguments lead to the conclusion that it would be reasonable to believe that I could in return use this information to necessarily favour the Agency in collection cases brought before me.

[45]       First, as mentioned earlier the Agency employees working with my spouse are not in the same sector of the Agency as those working with the collections group.

[46]       Secondly, any allegation of favouritism towards the Agency must ultimately lead us to the process explored in para. 39 supra and to the conclusion stated in para. 40 supra. In other words, since we are concerned with a motion raising a reasonable apprehension of bias by a member of the judiciary "in the broad sense" (and not, for example, with respect to a motion alleging a conflict of interest that would make a firm unable to represent a client, as discussed in MacDonald Estate v. Martin, [1990] 3 S.C.R. 1235), it is not so much what I might know about the Agency's cases that matters but the reasons that would lead me to favour it as a party.

[47]       For this reason, I consider that these arguments by the objector do not in any way advance the discussion of the matter.

[48]       Consequently, in my opinion a reasonable and well-informed person - especially if that person is aware of the facts contained in paras. 15 to 24 supra - could not conclude that there is any reasonable apprehension of bias in the case at bar, that is, a logical fear based on good grounds. In short, the objector in the case at bar has not established a real likelihood of bias.

[49]       For these reasons, this motion must be dismissed with costs.

[50]       The judgment creditor will see that her currently pending motion is replaced on the roll as soon as the instant decision has become final.

         Richard Morneau          

Prothonotary

MONTRÉAL, QUEBEC

February 21, 2001

Certified true translation

Suzanne M. Gauthier, LL.L. Trad. a.

                               Federal Court of Canada

                                       Trial Division

                                                                           Date: 20010221

                                                                Docket: ITA-8856-99

In re the Income Tax Act

- and -

In re one or more assessments made by the Minister of National Revenue pursuant to one or more of the following statutes: the Income Tax Act, the Canada Pension Plan and the Employment Insurance Act

AGAINST:

JEAN-GUY MATHERS

                                                                         Judgment debtor

AND

CINÉPARC ST-EUSTACHE INC.

                                                                                        Objector

AND

DEPUTY MINISTER OF REVENUE OF QUEBEC

                                                                                    Intervener

                          REASONS FOR ORDER

                                                    FEDERAL COURT OF CANADA

                              NAMES OF COUNSEL AND SOLICITORS OF RECORD

COURT FILE No.:                                        ITA-8856-99

STYLE OF CAUSE:                           In re the Income Tax Act

- and -

In re one or more assessments made by the Minister of National Revenue pursuant to one or more of the following statutes: the Income Tax Act, the Canada Pension Plan and the Employment Insurance Act

AGAINST:

JEAN-GUY MATHERS

                                                                                                                                             Judgment debtor

AND

CINÉPARC ST-EUSTACHE INC.

                                                                                                                                                         Objector

AND

DEPUTY MINISTER OF REVENUE OF QUEBEC

                                                                                                                                                        Intervener

PLACE OF HEARING:                                Montréal, Quebec

DATE OF HEARING:                                  February 12, 2001

REASONS FOR ORDER BY:         RICHARD MORNEAU, PROTHONOTARY

DATE OF REASONS FOR ORDER:       February 21, 2001

APPEARANCES:

Maria Grazia Bittichesu                           for the judgment creditor

Yves Ouellette                                        for the objector

SOLICITORS OF RECORD:

Morris Rosenberg                                             for the judgment creditor

Deputy Attorney General of Canada

Gowling, Lafleur, Henderson                           for the objector

Montréal, Quebec