Dahlseide v. Dahlseide, 2011 ABQB 696

Court of Queen ’ s Bench of Alberta Citation: Dahlseide v. Dahlseide, 2011 ABQB 696 Date: 20111114 Docket: 4801 121468 Registry: Calgary Between: Jo-Ella Dahlseide Plaintiff - and - Wayne Bobby Dahlseide Defendant ______________________________________________________ Reasons for Judgment of the Honourable Mr. Justice R. G. Stevens _______________________________________________________ Background [ 1 ] The Court of Appeal in its decision Dahlseide v. Dahlseide , 2011 ABCA 51 suggested that the Chief Justice the Court of Queen’s Bench appoint a case management judge.

I was appointed to case manage this matter in March, 2011. On October 25, 2011, the first case management meeting took place. [ 2 ] This is a family law matter. The parties were married on March 18, 1995. There are four children of the marriage A Divorce Judgment was granted on August 29, 2006 without matters of corollary relief or matrimonial property being decided. It appears the parties have continued a battle over the past five years without materially advancing towards a resolution of the outstanding matters.

[ 3 ] Mr. Dahlseide is a self-represented litigant. Ms. Kaminski (formerly Ms. Dahlseide) is represented by counsel as are three of the four children. One of the children apparently has written to children’s counsel indicating he does not wish representation of his interests and she has acknowledged that request. [ 4 ] Near the conclusion of the case management meeting on October 25, Mr. Dahlseide requested that I recuse myself. Notwithstanding that Mr. Dahlseide had known that I was case management judge for several months, his request was not accompanied by a Notice of Motion or Affidavit in Support.

Given the fractious nature of this litigation, I concluded it would be in the interests of all parties if I heard the application and addressed the issue without the formal requirements of notice and proper evidence. No party objected to this approach. [ 5 ] Specifically, Mr. Dahlseide said I should recuse myself for the following reasons: 1. Mr. Dahlseide wrote to me regarding this matter when I was Minister of Justice and Attorney General for the Province of Alberta. I held that position from November 25, 2004 until March 13, 2008. Mr.

Dahlseide provided copies of a number of letters addressed to my attention which I will outline in further detail later. 2. An investigation was done by the Director of Maintenance Enforcement Program into the Dahlseide support issue. The Maintenance Enforcement Program was and is part of the Ministry of Justice and, as such, Mr. Dahlseide argues that because I was Minster and Attorney General, I am imbued with that information. 3. Mr. Dahlseide laid a private information against Ms. Kaminski and her mother regarding an alleged assault. The prosecutor from Alberta Justice stayed the charges. Although Mr.

Dahlseide did not make further submissions on this point, it is correct that Crown Prosecutors are employees of Alberta Justice and are agents of the Attorney General. 4. As Minister of Justice and Attorney General, I set up the Domestic Violence Court in Calgary as a pilot project and, according to Mr. Dahlseide, that Court’s sole purpose is to prosecute men in domestic violence matters. It appears that Mr. Dahlseide believes only men will be prosecuted in that Court. Further, when Mr. Dahlseide uses the word “prosecute”, I believe he could equally interchange the word “persecute”. 5. Mr.

Dahlseide submits that my actions as Minister of Justice and Attorney General “clearly” showed a bias towards men in regards to family law matters. Mr. Dahlseide was short on specifics regarding this aspect of apprehended bias. 6. And lastly, Mr. Dahlseide argues that as a Justice of the Court of Queen’s Bench, I am inherently biased against him as he is a self-represented man in a family law proceeding. In my view, Mr. Dahlseide’s salient arguments are grounds 1, 2 and 3. [ 6 ] Mr.

Dahlseide provided copies of letters purporting to be written by himself to me on the following dates during the years 2005 to 2008 inclusive: January 14, 2005, May 9, 2005, November 13, 2005, May 2, 2006, May 15, 2006, June 8, 2006, August 16, 2006, February 20, 2007, June 9, 2007 and January 8, 2008. While one of these letters (May 9, 2005) dealt extensively with the background of his issues with Ms. Kaminski, most of the letters dealt with Mr. Dahlseide’s “disappointment with the Justice system, and the agents of the justice system in Alberta”.

Generally that “disappointment” was based on “the on going victimization” of men in domestic breakdown situations “by the Alberta Justice system. . .” (quotes taken from June 8, 2006 letter). [ 7 ] I have no memory of these letters, Mr. Dahlseide, Ms. Kaminski or anything relating to their issues.

[ 8 ] The Maintenance Enforcement Program was and is part of Alberta Justice. The Program is lead by a director, who during my time as Minister would meet as part of the Executive Management Team of Alberta Justice to review and discuss broad policy matters relating to the area of maintenance enforcement. Individual files with respect to Maintenance Enforcement were handled within the Program.

Again, I have no memory of the Dahlseide/Kaminski matter and that would be consistent with how such matters were handled at that time. [ 9 ] Provincial Crown Attorneys are agents of the Attorney General and as such, a decision to stay prosecution on a charge would be taken on behalf of the Attorney General. Legal Principles [ 10 ] There is a very helpful decision on point by Madam Justice Veit in L.M.B. v.

I.J.B. , 2000 ABQB 948 where a lawyer who was representing himself in family law proceedings asked Madam Justice Veit to recuse herself as the case management justice on grounds of apprehended bias. [ 11 ] After reviewing the general law on the issue of recusal, Madam Justice Veit said the following at paras. 18 - 25 inclusive: 18. The leading case on reasonable apprehension of bias is S (R.D.) in which Cory J., speaking for the Supreme Court of Canada defined “impartiality” as “a state of mind in which the adjudicator is disinterested in the outcome, and is open to persuasion by the evidence and submissions”.

Conversely, he defines “bias” as “a state of mind that is in some way predisposed to a particular result, or that is closed with regard to a particular issue”. 19 As broad as the concept of bias may be, it does not extend to include every slight, as the British Columbia Court of Appeal noted in Middelkamp : . . . bias does not mean that the judge is less that unfailingly polite or less that unfailingly considerate. Bias means a partiality to one side of the cause or the other.

It does not mean an opinion as to the case founded on the evidence, nor does it mean a partiality or preference or even a displayed special respect for one counsel or another, nor does it mean an obvious lack of respect for another counsel, if that counsel displays in the judge’s mind a lack of professionalism. 4. Test for reasonable apprehension of bias 20 In S. (R.D.) , the Supreme Court of Canada also approved the test found in Middelkamp for deciding if there is a reasonable apprehension of bias.

Referring to that decision, and to the existing case law, Cory, J. said: This test has been adopted and applied for the past two decades. It contains a two-fold objective element: the person considering the alleged bias must be reasonable, and the apprehension of bias itself must also be reasonable in the circumstances of the case . . .

Further, the reasonable person must be an informed person, with knowledge of all the relevant circumstances, including “the traditions of integrity and impartiality that form a part of the background and apprised also of the fact that impartiality is one of the duties the judges swear to uphold”. 21 This test has been described as having established a “high” threshold for a finding of perceived bias: Sorger . Bastarache J., declining to recuse himself from a case stated: “The test for apprehension of bias takes into account the presumption of impartiality.

A real likelihood or probability of bias must be demonstrated.” 5. Why would a judge decline to recuse herself when an allegation of bias is made against her?

22 It would be natural for members of the public to think that, whenever an allegation of bias is made against a judge, that judge should step aside. The Court of Queen’s Bench of Alberta has many judges at its disposal, and it would appear to be easy to replace any one judge with another. When a motion for recusal is made, the question then might arise: Why does a judge even have to think about it, why not just disqualify herself? 23 The concern of every judge against whom an allegation of bias is made is reflected in the words of McEachern, C.J.B.C. in G.W.L.

Properties : A reasonable apprehension of bias will not usually arise unless there are legal grounds upon which a judge should be disqualified. It is not quite as simple as that because care must always be taken to insure that there is no appearance of unfairness. That, however, does not permit the court to yield to every angry objection that is voiced about the conduct of litigation.

We hear so much angry objection these days that we must be careful to ensure that important rights are not sacrificed merely to satisfy the anxiety of those who seek to have their own way at any cost or price. 24 See also the comments of Mason, J. in Re J.R.L. : Although it is important that justice must be seen to be done, it is equally important that judicial officers discharge their duty to sit and do not, by acceding too readily to suggestions of appearance of bias, encourage parties to believe that by seeking the disqualification of a judge, they will have their case tried by someone thought to be more likely to decide in their favour. 6.

Is a case managing judge to be treated differently from a trial judge? 25 There are relatively few Alberta cases that deal with the issue of bias in the context of case management: Alberta Central Airways ; Watts Estate ; R. v. Teskey . However, Control & Metering and Coseka Resources are authority for the proposition that the test for apprehension of bias that is used for trial judges should also be used for case management judges and that the role of a judge as case manager could produce a reasonable apprehension of bias at trial.

Application of Legal Principles to the Case at Bar [ 12 ] In my opinion, the fact that I do not recall Mr. Dahlseide and/or Ms. Kaminski and their issues which may have been before myself and employees of Alberta Justice is irrelevant to the issue of apprehended bias. [ 13 ] I conclude that grounds one, two and three of apprehended bias as outlined above are reasonable. In other words, a reasonable person might feel an apprehension of bias in the circumstances of this case. With respect to ground one, based on my review of the correspondence Mr.

Dahlseide offered up, it appears the subject matter included what may be details of the parties’ matter before this Court. It also appears I responded to Mr. Dahlseide on at least one occasion. Turning to ground two, if the matter of support was being handled by Maintenance Enforcement Program, and I have no reason to believe otherwise, then many of the particulars of the support matter would have been on that file. Finally, on ground three, Crown Prosecutors are agents of the Attorney General. [ 14 ] Accordingly, I will recuse myself as case management judge. [ 15 ] I reject Mr.

Dahlseide’s other grounds of apprehended bias. Generally, I would describe Mr. Dahlseide’s other grounds as falling into the category of “angry objection” referred to in paragraph 23 of the L.M.B. decision. [ 16 ] Specifically, I did not set up the Domestic Violence Court as a pilot project in Calgary. It was in existence when I became Minister of Justice and Attorney General. That Court’s sole purpose is not to prosecute men in domestic violence situation. The work of that Court speaks for itself, particularly in terms of reducing the recidivism rates of offenders.

[ 17 ] Due to the informal nature of Mr. Dahlseide’s application, I have requested the clerk to place a copy of the transcript of the hearing on October 25, 2011 and the letters from Mr. Dahlseide to myself on the court record. Heard on the 25 th day of October, 2011. Dated at the City of Calgary, Alberta this 14th day of November, 2011. R. G. Stevens J.C.Q.B.A. Appearances: K. G. Hoag for the Plaintiff Wayne Bobby Dahlseide - Self Represented C. Kraft for the Children