Date: 20041012
Docket: T-1473-91
Ottawa, Ontario, the 12th day of October 2004
Present: THE HONOURABLE MR. JUSTICE SHORE
BETWEEN:
REMO IMPORTS LTD.
Plaintiff
(Defendant by Counterclaim)
- and -
JAGUAR CARS LIMITED and
FORD MOTOR COMPANY OF CANADA, LIMITED/
FORD DU CANADA LIMITÉE carrying on business as
JAGUAR CANADA
Defendants
(Plaintiffs by Counterclaim)
ORDER
For justice to be done and to be perceived to be done, a judge must act and be seen to act in a wholly transparent manner in regard to the matter before him. For the administration of justice necessitates the utmost of confidence in the process so as to trust the ultimate outcome;
The energy expended by the parties before the Court and the thought process behind that energy, wholly devoted to the matter between the parties, can only be sustained and nurtured, if the impartiality of the judge is witnessed in complete transparency;
And in that spirit, which gives justice its very breath and thus, life, a response is given to the Motion of the Applicant, of October 5, 2004, whereby a recusation was requested;
It is hoped that the response will elicit, at least, in spirit, a withdrawal of the Motion by the explanation hereby given, rather than the Motion be considered as denied. This, in order for the previous activity, to continue unabated with complete concentration to be given to the issues before the parties, with any apprehension, having been set aside;
The undersigned judge did not have any knowledge, whatsoever, at any time, of any of the circumstances, nor any of the issues, nor of any facts in regard to the individual cited. The undersigned judge only became aware of that which the Motion, in and of itself, stated, by the Motion itself. It is only by this means that anything was imparted to the undersigned judge, other than the judge having been told, in the month of December 2003, that the individual cited was looking forward to a new challenge, after a career of more than twenty-five years in a law firm, to working as an in-house counsel to a private company of whose name the undersigned judge was not made aware. This is the full and complete knowledge of all that the undersigned judge was cognizant until having received the said Motion;
It is the practice of the undersigned judge to ensure in any case in which he is aware of anything, at the outset, to inform all parties of any pertinent fact of which he may be aware, so that if anything is known, it be made immediately known. In the present matter, in respect of the Motion, the undersigned judge did not, even for a moment, from the time he was assigned the matter, relate, in his mind, the individual cited, either to the respective law firm which brought forward the motion, nor, to the matter between the parties. The cognizance, in regard of the individual cited to the law firm in question, in the manner described in the Motion, does not change the perception for the undersigned judge with respect to anyone, to any entity, nor to any matter, whatsoever, pertaining to the issues between the parties;
For the undersigned judge, the status quo in respect of who will be presiding at the forthcoming, twenty-day trial, pertaining to the issues to be resolved between the two parties, remains as was;
The Court rejects the notion of recusal as stated in the Motion for the following reasons, amongst the others stated above:
The facts do not demonstrate a reasonable apprehension of bias;
The onus of demonstrating a reasonable apprehension of bias is squarely on the Applicant;
In a case where the impartiality of a judge is in issue, the Supreme Court of Canada has held that the threshold for demonstrating reasonable apprehension of bias is high:
112 The appellant submitted that the test requires a demonstration of "real likelihood" of bias, in the sense that bias is probable, rather than a "mere suspicion". This submission appears to be unnecessary in light of the sound observations of de Grandpré J. in Committee for Justice and Liberty, supra, at pp. 394-95:
I can see no real difference between the expressions found in the decided cases, be they 'reasonable apprehension of bias', 'reasonable suspicion of bias', or 'real likelihood of bias'. The grounds for this apprehension must, however, be substantial and I entirely agree with the Federal Court of Appeal which refused to accept the suggestion that the test be related to the "very sensitive or scrupulous conscience". [Emphasis added.]
Nonetheless the English and Canadian case law does properly support the appellant's contention that a real likelihood or probability of bias must be demonstrated, and that a mere suspicion is not enough. See R.v. Camborne Justices, Ex parte Pearce, [1954] 2 All E.R. 850 (Q.B.D.); Metropolitan Properties Co. v. Lannon, [1969] 1 Q.B. 577 (C.A.: R.v. Gough, [1993] 2 W.L.R. 883 (H.L.); Bertram, supra, at p. 53; Stark, supra, at para. 74; Gushman, supra, at para. 30.
113 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. See Stark, supra, at paras. 19-20. Where reasonable grounds to make such an allegation arise, counsel must be free to fearlessly raise such allegations. Yet, this is a serious step that should not be undertaken lightly. [emphasis added]
R. v. R.D.S. [1997] 3 S.C.R. 484, 151 D.L.R. (4th) 193, 1 Admin. L.R. (3d) 74
The Supreme Court of Canada confirmed the stringent test to be applied in the recent case of Wewaykum:
The standard refers to an apprehension of bias that rests on serious grounds, in light of the strong presumption of judicial impartiality. In this respect, de Grandpré J. added these words to the now classical expression of the reasonable apprehension standard:
The grounds for this apprehension must, however, be substantial, and I ... refus[e] to accept the suggestion that the test be related to the "very sensitive or scrupulous conscience".
(Committee for Justice and Liberty v. National Energy Board, supra, at p. 395)
Wewaykum Indian Band v. Canada, [2003] 2 S.C.R. 259, 231 D.L.R. (4th) 1, 7 Admin. L.R. (4th) 1
There is a strong presumption that the judiciary is impartial:
32 ...judicial decision-makers, by virtue of their positions, have nonetheless been granted considerable deference by appellate courts inquiring into the apprehension of bias. This is because judges "are assumed to be [people] of conscience and intellectual discipline, capable of judging a particular controversy fairly on the basis of its own circumstances": United States v. Morgan, 313 U.S. 409 (1941), at p. 421. The presumption of impartiality carries considerable weight, for as Blackstone opined at p. 361 in Commentaries on the Laws of England, Book III, cited at footnote 49 in Richard F. Devlin, "We Can't Go On Together with Suspicious Minds: Judicial Bias and Racialized Perspective in R. v. R.D.S." (1985), 18 Dalhousie L.J. 408, at p. 417, "the law will not suppose a possibility of bias or favour in a judge, who is already sworn to administer impartial justice, and whose authority greatly depends upon that presumption and idea". Thus, reviewing courts have been hesitant to make a finding of bias or to perceive a reasonable apprehension of bias on the part of a judge, in the absence of convincing evidence to that effect: R.v. Smith & Whiteway Fisheries Ltd. (1994), 133 N.S.R. (2d) 50 (C.A.), at pp. 60-61.
R.v. R.D.S., supra (per L'Heureux-Dubé and Mclachlin JJ.)
117 Courts have rightly recognized that there is a presumption that judges will carry out their oath of office. See R.V. Smith & Whiteway Fisheries Ltd. (1994), 133 N.S.R. (2d) 50 (C.A.), and Lin, supra. This is one of the reasons why the threshold for a successful allegation of perceived judicial bias is high. However, despite this high threshold, the presumption can be displaced with "cogent evidence" that demonstrates that something the judge has done gives rise to a reasonable apprehension of bias. See Smith & Whiteway, supra, at para. 64; Lin, supra, at para. 37. The presumption of judicial integrity can never relieve a judge from the sworn duty to be impartial.
R.v. R.D.S., supra (per Cory, J.)
Judges of the Federal Court are required to take an oath that they will duly and faithfully execute their powers and trusts as judges to the best of their skill and knowledge;
Federal Courts Act, R.S., 1985, c. F-7, s. 9
This Court has recently confirmed, citing the Supreme Court's decision in Wewaykum, that the presumption of impartiality cannot lightly be set aside. There has to be a very good reason to rebut the presumption;
Zundel (Re) (17 December 2003), Doc. No. DES-2-03 (F.C.T.D.) confirmed by Federal Court of Appeal, Zundel v. Canada (2004), 238 D.L.R. (4th) 498, 2004 FCA 145
Even, a past professional association, without more, is insufficient to support an allegation of apprehended bias;
Hodson v. M.N.R. (1988), 46 D.L.R. (4th) 342 (F.C.A.)
Fogal v. Canada, [2000] F.C.J. No. 916 (F.C.A.)
In Fogal, The Hon. Mr. Justice Dubé was asked to recuse himself since the action was against the government of Canada and he had been a Cabinet Minister and a Member of Parliament for the party still in power. Justice Dubé refused to recuse himself, finding that there was no basis for the allegation of reasonable apprehension of bias. His comments reflect the fact that the Court has to take a practical approach to the issue of judges deciding cases involving former associates:
Judges do not descend from heaven. ... Our duty is to render justice without fear or favours.
Fogal v. Canada (1999), 164 F.T.R. 99, 30 C.P.C. (4th) 13, upheld [2000] F.C.J. No. 916, 258 N.R. 97 (F.C.A.)
In Wewaykum, the Supreme Court of Canada did not find a reasonable apprehension of bias where one of the Justices, in a previous position as Associate Deputy Minister of Justice had had occasion to deal with the aboriginal land claims at issue by giving policy advice on the matter;
Wewaykum Indian Band v. Canada, supra
With respect to the facts, of the situation and circumstances, fully described, they do not come anywhere near satisfying the test of demonstrating a real likelihood or probability of bias, in this case, especially in light of the strong presumption that a judge has decided a case impartially;
In regard to the Applicant's suggestion, this apprehension of bias argument could be raised often. The position would then ignore the practical reality, as expressed in the jurisprudence. The Supreme Court of Canada has clearly held that there is a strong presumption that judges will decide these issues fairly;
In conclusion, the jurisprudence has shown that, even in the closest of relationship settings, described in Roman Catholic Children's Aid Society v. P.(T.), [1989] O.J. No. 606, which is not, at all the circumstance for the undersigned judge in this matter, the judge, in that case, further to analysis, decided as to the absence of a reasonable apprehension of bias for the following reasons:
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.
For all these reasons, the Motion is denied.
THIS COURT ORDERS that the Motion be denied.
"Michel M.J. Shore"
Judge
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