Date: 20110520
Docket: A-90-10
Citation: 2011 FCA 171
Present: SEXTON
J.A.
STRATAS
J.A.
MAINVILLE J.A.
BETWEEN:
R. MAXINE COLLINS
Appellant
and
HER MAJESTY THE QUEEN
Respondent
REASONS FOR ORDER
MAINVILLE J.A.
[1]
The
appellant has made a motion seeking the following:
a. an order pursuant to paragraph
399(2)(a) of the Federal Courts Rules, SOR/98-106 (the “Rules”) to set
aside the order of Evans J.A., Dawson J.A. and Trudel J.A. dated March 30, 2011
dismissing the appellant’s three motions for recusal, and to consequently
declare invalid the judgment dated April 18, 2011 rendered by that panel and
which dismissed the appellant’s appeal on its merits;
b. a consequential order
directing a new hearing on the merits of the appellant’s appeal by a panel of
judges who have not previously rendered decisions in any of the matters arising
on the appeal or the related appeal as to costs;
c. alternatively, in the event
the above orders are not issued, an order pursuant to paragraph 397(1)(b) of
the Rules granting the appeal on its merits with costs throughout upon
reconsideration of the terms of the judgment dated April 18, 2011 which
dismissed the appellant’s appeal on its merits.
[2]
For the
reasons set out below, I would dismiss that part of the appellant’s motion seeking
to set aside the order dated March 30, 2011 dismissing the appellant’s three
recusal motions, and I would refer the motion to reconsider the judgment dated
April 18, 2011 back to the panel of this Court that rendered that judgment.
Background
[3]
On June
22, 2009, the appellant commenced an action by way of Statement of Claim in the
Federal Court alleging various wrongful acts in the administration of
the Income Tax Act, R.S.C. 1985, c. 1 (5th Supp.) and the Privacy
Act, R.S.C. 1985, c. P-21, as well as the violation of rights pursuant to
the Canadian Charter of Rights and Freedoms, Part I of the Constitution
Act, 1982, being schedule B to the Canada Act 1982 (U.K.), 1982, c.
11. By amended Notice of Motion dated October 22, 2009, the Crown sought to
strike out that Statement of Claim as amended.
[4]
In
a judgment dated March 5, 2010 and bearing citation 2010 FC 254, Justice
Heneghan of the Federal Court granted the Crown’s motion to strike, and
consequently struck the appellant’s Amended Statement of Claim with costs in
favour of the Crown.
The appellant appealed this judgment to this Court.
[5]
In a
letter dated March 10, 2011, the appellant wrote to the Chief Justice of this Court
requesting that seven judges of this Court recuse themselves from sitting on
the panel which would hear the merits of her appeal. Each of these judges had
rendered various orders or directions in the course of managing the appeal
which the appellant deemed to be unsatisfactory or improper. Consequently, the
appellant held the belief that none of these judges would render a fair and
unbiased decision on the merits of her appeal.
[6]
The Chief
Justice rendered a direction on March 17, 2011 scheduling the hearing on the
merits of the appeal on March 30, 2011, and adding that any party who wished to
raise a motion for recusal based on a reasonable apprehension of bias could do
so on that date and before that panel of judges. The appellant thus served and
filed a motion for recusal against each of the members of the concerned panel,
namely Evans J.A., Dawson J.A. and Trudel J.A., which motions were heard before
the concerned panel of this Court on March 30, 2011. These motions requested
that all the judges on the panel recuse themselves, principally on the grounds
that they had each at different times made interlocutory orders in connection
with the appeal or a related appeal and denied the appellant the relief she had
sought, or had drafted reasons in a related appeal which were deemed
unsatisfactory by the appellant.
[7]
In reasons
delivered from the bench on March 30, 2011 and cited as 2011 FCA 123, the
concerned panel of this Court ordered the dismissal of these motions to recuse principally
on the basis that a judge cannot be disqualified for bias solely on the ground
that she or he rendered an interlocutory decision adverse to a litigant in the
same or related proceedings, or has written reasons for deciding an appeal in a
related matter.
[8]
The
concerned panel of this Court thus proceeded to hear the merits of the
appellant’s appeal, and on April 18, 2011 issued a judgment and reasons for
judgment cited as 2011 FCA 140 dismissing the appeal with costs, but also specified
that the appellant was given leave to re-amend her Statement of Claim to allege
the tort of misfeasance in public office.
The motion to set aside the Order of March
30, 2011
[9]
Paragraph
399(2)(b) of the Rules provide that an order may be set aside or varied by
reason of a matter that arose or was discovered subsequent to the making of the
order.
[10]
The
appellant asserts that the judgment dated April 18, 2011 dismissing her appeal
was a matter which arose subsequent to the order of March 30, 2011 and is
evidence of “the continued impugned conduct constitu[ting] a determined
influence on the decisions of the Justices not to recuse themselves from
sitting on the appeal”: Motion at paragraph 2c. The thrust of the appellant’s
argument is that the subsequent judgment dismissing her appeal proves that the
judges hearing her appeal were biased.
[11]
The simple
fact that judges render a judgment which is unfavourable to a party cannot in
itself result in a conclusion of bias. Were it otherwise, no judgment could
ever be issued. A reasonable apprehension of bias must be shown to exist either
in the judgment itself, in the comportment of the judge or by some other means.
I have closely reviewed the judgment of April 18, 2011 and I am convinced that
there is absolutely no merit to the appellant’s contentions. The reasons for
this judgment are considered, balanced and sound, and no bias whatsoever can be
found in them.
[12]
In this
case, the appellant has utterly failed to demonstrate the existence of any
matter subsequent to the Order of March 30, 2011 which could justify the
setting aside of that Order. Paragraph 399(2)(a) of the Rules cannot be used as
a vehicle for revisiting judgments every time a litigant is unsatisfied with a
judgment. The general principle is that judicial decisions are final, and consequently
the setting aside of such a decision under paragraph 399(2)(a) of the Rules must
be based on exceptionally serious and compelling grounds. This is necessary to
ensure certainty in the judicial process as well as to preserve the integrity
of that process.
The motion for reconsideration of the
April 18, 2011 judgment
[13]
Pursuant
to paragraph 397(1)(b) of the Rules, a motion to request a reconsideration of
the terms of an order or judgment may be made on the ground that a matter that
should have been dealt with has been overlooked or accidentally omitted.
However, that Rule clearly provides that such a motion must be submitted to and
decided by the panel of the Court constituted at the time the concerned order
or judgment was made.
[14]
Consequently,
I would refer that portion of the appellant’s motion concerning the
reconsideration of the April 18, 2011 judgment to the panel of this Court which
rendered that judgment.
Conclusions
[15]
I would
dismiss with costs the appellant’s motion pursuant to paragraph 399(2)(a) of
the Rules to set aside the Order dated March 10, 2011 dismissing the appellant’s
recusal motions, and would refer the appellant’s motion for reconsideration of
the April 18, 2011 judgment to the panel of this Court which rendered that
judgment.
"Robert M.
Mainville"
“I agree.
J. Edgar
Sexton J.A.”
“I agree.
David
Stratas J.A.”
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