The Lawyers Weekly - June 15, 2012

Comments made about
plaintiff résumé deemed
to be inappropriate

CHRISTOPHER GULY

A claim that the conduct of a judge has raised a reasonable apprehension of bias is rarely successful. But in two rulings just days apart, the Ontario Court of Appeal again found that the actions of a Superior Court judge required the order of a new trial.

Following its decision in Bailey v. Barbour, the Court of Appeal also concluded in Lloyd v. Bush, 2012 ONCA 349, that Justice Robert Scott’s conduct raised a reasonable apprehension of bias.

The court was hearing an appeal from the ruling of Justice Scott in a case where the plaintiff, Leslie Lloyd, sustained permanent head injuries on Jan. 3, 2003, after her vehicle collided with a propane truck driven by David Bush, one of the defendants, on a snowpacked road.

During the proceedings, Justice Scott, who also presided over the high-profile Russell Williams double-murder trial in 2010, concluded that counsel for the appellants improperly raised an allega-

Hughes
Ziegel

tion of fraud against the town of Greater Napanee, also named as a defendant in the lawsuit. This was despite repeated insistence from lawyer Steven Baldwin that he had not made such an allegation. As well, the judge commented on Lloyd’s credibility after determining she had “falsified” her curriculum vitae that was filed with the court (she included a degree for which she was one course short) and stated that “may affect” his determination of damages.

Baldwin declined to comment on the Court of Appeal decision, to let the ruling speak for itself. Kirk Stevens and Stuart Zacharias, counsel for the respondents in the appeal, did not respond to an interview request.

The Court of Appeal noted
that the defendants’ counsel did
not object to expert witness
testimony that questioned the
veracity of town records on win-
ter road maintenance and said
the witness raised “issues of reli-
ability and credibility, not fraud.”
Yet Justice Scott was persistent
in referring to the “erroneous
characterization” of fraudulent
record-keeping that suggested
“the trial judge appeared to have
the view that the plaintiff was
asserting a position that could
not be possibly true and doomed
Lloyd’s case,” wrote Justice Rob-
ert Armstrong on behalf of the
three-judge panel.

‘Smoking gun’ not necessary

Bias
Continued From Page 1

Had he done so, he would have
given greater consideration to
this wife’s involvement in the
narrative, and he would not
have concluded that the appel-
lant’s claim for disqualification
was based only on ‘a general
sense of unease’ falling ‘well
short of the threshold that jus-
tifies the order sought.’ ”
Instead, Justice McIsaac
should’ve considered what an
“informed, reasonable and right-
minded person” might think
about his ability to “concisely or
subconsciously” fairly hear the
case, the ruling said. “A reason-
able person properly informed
would only conclude that [the]
connection to the property is
deep and current and multi-
layered,” the appeal court wrote.

Ed Ratushny, a law professor at the University of Ottawa who specializes in judicial conduct, said there is a strong presumption of impartiality on behalf of a judge. When that is placed into question, it must be carefully considered. “A person wanting to get a judge recused must have a pretty strong

Ratushny

case to do that,” he said. “Clearly
this was a strong case.”
Generally, it is quite difficult
to establish whether a judge
actually possesses a bias or a con-
flict of interest. In this case, the
panel specifically points out that
this was not their suggestion,
making it even more important
that the perception of the judge’s
impartiality be examined from an
objective point of view.

“This has always been central to the rule. It’s hard to prove what is going on in someone’s mind, you need a smoking gun of some kind to show that the judge was actually biased,” Ratushny said.

“Very seldom will you have the
evidence. Instead, you have to use
this objective test: What would a
reasonable person think if that
reasonable person was looking at
this matter objectively?”
The balance must be between
a proper analysis of the facts in
the case and an effort to not open
the flood gates for future litigants
to “judge-shop,” he said.

In most trials where this issue is raised, a judge would generally recuse himself or herself “out of an abundance of caution.” These issues are also usually brought up at the earliest opportunity in an effort to avoid having to stop the trial midway or risk losing thousands of dollars in litigation, Ratushny added.

Robert Fenn of the Richmond
Hill, Ont., firm Rohmer and Fenn
said his client, Angelina Bailey,
was “pleased” with the panel’s
decision. “The Court of Appeal
ruling was well-reasoned and
well thought out.”
A lawyer for the respondent,
Gerald Harry Barbour, could not
be reached. n

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