Gordon v. Pielak Date:, 2012 BCPC 387

Citation: Gordon v. Pielak Date: 20121018 2012 BCPC 0387 File No: 0920897 Registry: North Vancouver IN THE PROVINCIAL COURT OF BRITISH COLUMBIA BETWEEN: HUNTER W. GORDON CLAIMANT AND: EDWARD PIELAK DEFENDANT RULING ON APPLICATION OF THE HONOURABLE JUDGE CHALLENGER Appearing on their own behalf: H. Gordon Appearing on their own behalf: E. Pielak Place of Hearing: North Vancouver , B.C.

Date of Hearing: September 11, 2012 Date of Judgment: October 18, 2012 [ 1 ] Mr. Pielak is the defendant and claimant by counterclaim in this matter. Mr. Gordon, the claimant, is a lawyer and Judicial Justice of this Court (JJ). The claim concerns monies that Mr. Gordon says are owing to him as a result of a business venture the two men engaged in involving the recovery of an overpayment of sales tax incurred by a certain group of businesses. [ 2 ] The trial of this matter commenced on June 30th of 2011. The trial commenced in a somewhat unusual manner.

The parties asked the Court to rule on a narrow issue which was, at the time, thought to be dispositive of the litigation. That ruling was given on August 25 th 2011 and the matter was adjourned generally. Mr. Gordon has now withdrawn his claim against Mr. Pielak and the matter is proceeding on Mr. Pielak’s counterclaim. Issue [ 3 ] The matter was brought back to court by Mr. Pielak on September 11 th 2012. He now says the Court should declare a mistrial as a result of a reasonable apprehension of bias which arises from the relationship between Mr.

Gordon, in his position as a JJ of the Provincial Court, and all judges of the Provincial Court. He says that a Supreme Court Judge should preside over this matter. His argument is premised on this singular proposition. Mr. Gordon declined to make submissions on this point. It is unclear at what point Mr. Pielak discovered Mr. Gordon’s position with the Court but he alleges in his application that it was after the start of the trial. [ 4 ] Mr.

Pielak does not take the position that, as the trial judge, I am in any way actually biased or could reasonably be seen to be biased as a result of any other professional or social connection to Mr. Gordon or any connection to the subject matter of the litigation. Indeed, I was unaware of Mr. Gordon’s status with this Court at the time I presided over the commencement of the trial and when I gave my ruling. I remained unaware of this fact until Mr. Pielak recently brought this issue to the attention of the Court. I understand that Mr. Gordon’s position as a JJ is part time and that he continues to practice law.

He is assigned to sit in the South Island Judicial District. [ 5 ] There are just over 150 Provincial Court Judges which includes all senior judges who sit part time. The Court sits in over 80 locations throughout the province. There are close to 35 JJs some of whom are part time and some of whom are full time. To my recollection Mr. Gordon has never sat in any courthouse at the same time when I have been presiding. [ 6 ] Judicial Justices perform different and limited roles for our Court. As a sitting JJ, I understand Mr. Gordon deals primarily with traffic and other violation tickets.

JJ’s duties also may involve shift work at the Justice Centre doing after-hours bail hearings and reviewing requests by the police for various search warrants under the Criminal Code and CDSA . Provincial Court Judges do not sit on appeal over decisions made by JJ’s. JJ’s and Judges do not attend educational programming together nor do we attend conferences together. Law [ 7 ] The principles governing the reasonable apprehension of bias have been helpfully summarized by the BC Court of Appeal in Taylor Ventures Ltd (Trustee of) v Taylor , 2005 BCCA 350 , [2005] BCJ No 1380.

At paragraph 7, Donald JA stated: These principles are: (

i) a judge's impartiality is presumed; (ii) a party arguing for disqualification must establish that the circumstances justify a finding that the judge must be disqualified; (iii) the criterion of disqualification is the reasonable apprehension of bias; (iv) the question is what would an informed, reasonable and right-minded person, viewing the matter realistically and practically, and having thought the matter through, conclude; (

v) the test for disqualification is not satisfied unless it is proved that the informed, reasonable and right-minded person would think that it is more likely than not that the judge , whether consciously or unconsciously, would not decide fairly ; (vi) the test requires demonstration of serious grounds on which to base the apprehension; (vii) each case must be examined contextually and the inquiry is fact-specific. [ 8 ] The leading case on judicial bias is the Supreme Court of Canada’s decision in Wewaykum Indian Band v Canada , 2003 SCC 45 , [2003] SCJ No 50, [2003] 2 SCR 259 [ Wewaykum ].

At paragraph 2, the Court stated: An allegation that a judgment may be tainted by bias or by a reasonable apprehension of bias is most serious. That allegation calls into question the impartiality of the Court and its members and raises doubt on the public's perception of the Court's ability to render justice according to law.

[9] At paragraph 57 the Court stated: … public confidence in our legal system is rooted in the fundamental belief that those who adjudicate in law must always do so withoutbias or prejudice and must be perceived to do so. [10] At paragraph 58 the Court restated the definition of bias set out in R v S (RD), (SCC), [1997] 3 SCR 484 atparagraph 106: The essence of impartiality lies in the requirement of the judge to approach the case to be adjudicated with an open mind. Conversely,bias or prejudice has been defined as: a leaning, inclination, bent or predisposition towards one side or another or a particular result.

In its application to legal proceedings, itrepresents a predisposition to decide an issue or cause in a certain way which does not leave the judicial mind perfectly open toconviction. Bias is a condition or state of mind which sways judgment and renders a judicial officer unable to exercise his or herfunctions impartially in a particular case. (R. v. Bertram, [1989] O.J. No. 2123 (QL) (H.C.), quoted by Cory J. in R. v.

S. (R.D.), (SCC), [1997] 3 S.C.R. 484, atparagraph. 106.) [11] At paragraph 59, the Court stated: Viewed in this light, "[i]mpartiality is the fundamental qualification of a judge and the core attribute of the judiciary" (Canadian JudicialCouncil, Ethical Principles for Judges (1998), at p. 30). It is the key to our judicial process, and must be presumed.

As was noted byL'Heureux-Dubé J. and McLachlin J. (as she then was) in S. (R.D.), supra, at paragraph. 32, the presumption of impartiality carriesconsiderable weight, and the law should not carelessly evoke the possibility of bias in a judge, whose authority depends upon thatpresumption.

Thus, while the requirement of judicial impartiality is a stringent one, the burden is on the party arguing for disqualification to establishthat the circumstances justify a finding that the judge must be disqualified. [12] The test for a reasonable apprehension of bias was set out by the majority of the Supreme Court of Canada in Committee forJustice and Liberty v Canada (National Energy Board), (SCC), [1978] 1 SCR 369 at p 394: ... the apprehension of bias must be a reasonable one, held by reasonable and right minded persons, applying themselves to the questionand obtaining thereon the required information.

In the words of the Court of Appeal, that test is "what would an informed person,viewing the matter realistically and practically -- and having thought the matter through -- conclude. Would he think that it is more likelythan not that [the decision-maker], whether consciously or unconsciously, would not decide fairly. [13] This test has been affirmed by the Supreme Court of Canada in numerous subsequent decisions.

See: Wewaykum supra atparagraph 60; R v S (RD) supra at paragraph 111. [14] In R v Curragh Inc, (SCC), [1997] 1 SCR 537 at paragraph 5, the Supreme Court of Canada stated: The properly drawn conclusion that there is a reasonable apprehension of bias will ordinarily lead inexorably to the decision that a newtrial must be held.

In circumstances where reasonable apprehension of bias is demonstrated the trial judge has no further jurisdiction inthe proceedings and there is no alternative to a new trial. [15] As the passages from the above noted cases make clear, public confidence in the justice system is dependent on the impartialityof judges in making their decisions. Maintaining this confidence requires not only that a judge is in fact impartial, but that they are alsoperceived to be impartial.

In the absence of actual bias, a reasonable perception of bias is sufficient to warrant judicial disqualification.This is reflected in the principle, cited in Wewaykum at paragraph 66 that: “it is not merely of some importance but is of fundamental importance that justice should not only be done, but should manifestly andundoubtedly be seen to be done" (The King v.

Sussex Justices, Ex parte McCarthy, [1924] 1 KB 256 at p 259 To put it differently, incases where disqualification is argued, the relevant inquiry is not whether there was in fact either conscious or unconscious bias on thepart of the judge, but whether a reasonable person properly informed would apprehend that there was. In that sense, the reasonableapprehension of bias is not just a surrogate for unavailable evidence, or an evidentiary device to establish the likelihood of unconsciousbias, but the manifestation of a broader preoccupation about the image of justice.

As was said by Lord Goff in Gough, supra, at p. 659,"there is an overriding public interest that there should be confidence in the integrity of the administration of justice".

[16] And at paragraph 67, the Court stated: ... the criterion of disqualification still goes to the judge's state of mind, albeit viewed from the objective perspective of the reasonableperson. The reasonable person is asked to imagine the decision-maker's state of mind, under the circumstances. [17] At paragraph 76, the Court stated: … it is worth repeating that the standard refers to an apprehension of bias that rests on serious grounds, in light of the strong presumptionof judicial impartiality.

In this respect, de Grandpré J. added these words to the now classical expression of the reasonable apprehensionstandard: 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 at p. 395) [18] At paragraph 77, the Court stated: ...this is an inquiry that remains highly fact-specific….As a result, it cannot be addressed through peremptory rules, and contrary to whatwas submitted during oral argument, there are no "textbook" instances. Whether the facts, as established, point to financial or personalinterest of the decision-maker; present or past link with a party, counsel or judge; earlier participation or knowledge of the litigation; orexpression of views and activities, they must be addressed carefully in light of the entire context.

There are no shortcuts. [19] I am not aware of any prior cases that have considered the application of these principles to situations where a litigant is also ajudicial officer of the same court (whether a Judge or another type of judicial officer). However, there have been many cases which haveconsidered the apprehension of bias in other somewhat analogous circumstances.

In some, the judge had previous dealings with matterswhen acting as a Associate Deputy Minister or had family who worked in a department of government that was involved in the matter athand, or had in the past acted for a large corporate insurer who was now a party, or had a family member who worked as a lawyer in alaw firm that was also representing a litigant before that court. In all of these cases the judge had not had personal dealings with thematter nor with the lawyer or lawyers involved and no actual bias was alleged.

The Courts in all these circumstances found that noreasonable apprehension of bias existed.

See: Wewaykum Indian Band v Canada, 2003 SCC 45; R v Quinn, 2006 BCCA 255; Makowsky v John Doe, 2007 BCSC 1231; De Cotiis v De Cotiis, 2004 BCSC 117; R v Trunzo, 2012 MBQB 211; Canada (Minister ofNational Revenue - MNR) v Mathers, 2001 FCT 104; GWL Properties Ltd v WR Grace & Co of Canada Ltd, (BC CA),[1992] BCJ No 2828; Essex (County) Roman Catholic Children’ Aid Society v P(T), [1989] OJ No 606. [20] There are other cases where a reasonable apprehension of bias was found to exist where a judge’s spouse had an indirect interestin the subject matter of the litigation, or the judge was a plaintiff in a personal injury case involving the same insurer who was before thejudge, or the judge had direct dealings with the subject matter of the litigation prior to appointment and was previously a partner in a lawpractice with a person who was involved in the matter.

See: Bailey v Barbour, 2012 ONCA 325; Liszkay v Robinson, 2003 BCCA 506;Barrett v Glynn, (NL CA), 2001 NFCA 70. [21] The above case law is reflected in The Ethical Principles for Judges developed by the Canadian Judicial Council which statesthe following under Principles of Impartiality: Conflicts of Interest 1. Judges should disqualify themselves in any case in which they believe they will be unable to judge impartially. 2.

Judges should disqualify themselves in any case in which they believe that a reasonable, fair minded and informed person wouldhave a reasoned suspicion of conflict between a judge’s personal interest (or that of a judge’s immediate family or close friends orassociates) and a judge’s duty. 3. Disqualification is not appropriate if: (

a) the matter giving rise to the perception of a possibility of conflict is trifling or would notsupport a plausible argument in favour of disqualification, or (

b) no other tribunal can be constituted to deal with the case or, because ofurgent circumstances, failure to act could lead to a miscarriage of justice. [22] The commentary provided in respect of these principles also has the following helpful statement: Necessity: Extraordinary circumstances may require departure from the approaches discussed above. The principle of necessity holdsthat a judge who would otherwise be disqualified may hear and decide a case where failure to do so could result in an injustice. Thismight arise where an adjournment or mistrial would work undue hardship or where there is no other judge reasonably available whowould not be similarly disqualified.

[ 23 ] By virtue of ss. 7 and 8 of the a judge of the Supreme Court may be designated to sit as a judge of the Provincial Court, as could a Provincial Court Judge from another Province of Canada. Thus, there is no necessity for a British Columbia Provincial Court Judge to hear this matter. Analysis [ 24 ] I start by emphasizing that the presumption of judicial impartiality carries significant weight. As such, the burden is on the party seeking disqualification to establish a reasonable apprehension of bias.

Further, in light of the presumption of impartiality, the grounds for disqualification must be serious. [ 25 ] As stated in the case law, I must examine this matter contextually and consider the specific facts giving rise to Mr. Pielak’s application. The unique and singular ground for disqualification put forth by Mr. Pielak is the institutional relationship between me, a judge of this Court, and Mr. Gordon, a judicial officer of the same court. [ 26 ] There is no interrelationship between the two judicial positions and all Judges and JJ’s enjoy independence in their decision making functions.

There is and has been no professional or personal relationship between Mr. Gordon and myself. There is also no connection whatsoever between the subject matter of the litigation and me, the Judge. Further, there is no connection between the subject matter of the litigation and Mr. Gordon’s part-time role as a JJ. [ 27 ] The case law illustrates that certain relationships with counsel or a litigant, or some past or present connection to the subject matter of the litigation, may give rise to a reasonable apprehension of bias.

In the absence of such a relationship or connection, the fact that a judge may have had some institutional or distant or historical connection to a person or subject matter involved in the litigation has not been found to give rise to a reasonable apprehension of bias.

I find the present case more factually similar to the latter mentioned cases. [ 28 ] The question is whether a reasonable, right minded and informed person, after careful, realistic and practical consideration of all the circumstances, would perceive there to be a reasonable apprehension of bias and conclude that a Judge of this Court would likely not, either consciously or unconsciously, decide the case fairly and impartially. [ 29 ] I find that Mr. Pielak’s application for this Court, as a whole, to be recused from hearing this matter must fail.

I do not find that a reasonable apprehension of bias arises from the bare fact of an institutional relationship between a Judge and a JJ. The presumption of a Provincial Court Judge’s impartiality is not displaced simply because one litigant is another type of judicial officer within the same court. It must also be recalled that the litigation itself is not related in any way to the litigant’s part-time judicial office. ________________________ J. Challenger Provincial Court Judge