Jordan Zimmerman v. Jaylene Zimmerman, 2022 SKPC 49

IN THE PROVINCIAL COURT OF SASKATCHEWAN CIVIL DIVISION Citation: 2022 SKPC 49 Date: November 28, 2022 File: 19-2021 Location: Moose Jaw _____________________________________________________________________________ Between: Jordan Zimmerman and Jaylene Zimmerman - and - 101102070 Saskatchewan Ltd. o/a Moose Jaw Window Cleaning -and- Kohltech International Ltd. and Westrum Lumber Ltd. David Chow, K.C. For the Plaintiff Jeremy Ellergodt For the Defendant Carl Ballard For the Third Parties ______________________________________________________________________________ FIAT DEMONG, J ______________________________________________________________________________

[ 1 ] This Fiat deals with a request by the defendant that I recuse myself from sitting as the trial judge on this matter - which is set to proceed on December 5, 6, and 7.

It also deals with some further requested ancillary relief. [ 2 ] The lawsuit deals with a claim by the plaintiff that window cleaning services provided by the defendant were defective, causing damage to those windows and a resulting loss to the plaintiffs. [ 3 ] Some months ago I was asked to sit as trial judge on this Moose Jaw file because the two resident judges had participated in case management settlement negotiations and were thereby precluded from sitting as trial judge.

On receipt of the file, I summarily reviewed it and in so doing made note of the fact that the defendant had filed three (what appeared to be Internet) articles which appeared to favour its assertion that the services it provided to the plaintiff were in accordance with industry practice.

At a later pre-trial motion brought by the defendant (dealing with a motion to strike certain parts of the plaintiffs’ claim), I asked defence counsel if he intended to call an expert - because, in the ordinary course of these types of claims, articles such as these are not generally allowed to be entered into evidence as proof of the opinions set forth therein. He indicated that he would not be doing so. [ 4 ] Shortly thereafter (November 7, 2022) the defendant brought an application seeking an order that I recuse from presiding at the trial of this action based on an apprehension of bias.

The defendant seeks a further order to have a letter dated October 18, 2021, with the attached articles, be removed from the court file. I am the assigned trial judge, and these applications are properly brought before me. [ 5 ] I will deal with the second application first because it can be dealt with summarily. The application requesting that the October 18, 2021 letter and its attachments be removed from the file and returned to the defendant is denied. It may well be that one of the parties involved in this action may appeal either this Fiat, or the trial decision.

As such it would be inappropriate to remove, from the file, the very documents under consideration. This, because an appellate court may have to review those documents. Their removal would render the file incomplete. [ 6 ] That stated, I am satisfied that there is a middle ground.

I direct the court clerk to place these documents in an envelope under seal with instructions that they remain under seal until such time as any appeal period has expired - at which time they may be returned to the owner; or, until such time as a superior court, on appellate review, seeks to view them. [ 7 ] That leaves the remaining application - a request that I recuse as trial judge by reason of an ‘apprehension of bias’. [ 8 ] To put the application into perspective, I think it is important to understand the plaintiff’s cause of action; the Reply that has been filed; one of the essential evidentiary rules that generally governs these types of claims; and the rather

summary nature of proceedings in this Court and the corresponding gatekeeping functions that a judge in small claims is obligated to undertake.

I say ‘put the application into perspective’ because, as I will note shortly, an application for recusal of this type is predicated on a ‘reasonable’ apprehension of bias - and the case law compels a court to consider an apprehension of bias in the context of an informed person: who has applied themselves to the question; obtained all of the required information; and who has, thereafter, realistically and practically thought the entire matter through. [See: my paragraph 32, infra]. [ 9 ] The plaintiffs have alleged that in or about June of 2019 they had retained the defendant to clean several windows that had been purchased new, and which had been installed in their lakeside cottage.

They allege that after the services were provided, they noted significant scratch marks on the windows and having failed to obtain a satisfactory resolution to this problem, they brought this action alleging that the work performed by the defendant was defective - in the sense that their property had been damaged by the defendant. They sought damages equal to, but not in excess of, the monetary jurisdiction of this Court - which stands at $30,000.00. [ 10 ] The defendant filed a Reply to the action and brought both the seller and the manufacturer of the windows into this action as third parties.

In its Reply, among other things, the defendant denied that its work was defective and asserted that it’s cleaning methodology was generally accepted in the industry. In essence, it asserted that it performed the work in a good and workmanlike manner and that the damage (which it alleges is, in any event, nominal) arose by virtue of an incorrect and improper manufacturing process, something which was clearly outside of its control. [ 11 ] Claims such as this - in addition to claims for debt and liquidated demand and motor vehicle accident claims - are the bread and butter of the small claims court.

They are claims which generally allege that a tradesperson is in breach of contract because either the work was not performed in a good and workmanlike fashion, or the goods used were not fit for their intended purpose. Unfortunately, these types of claims are all too common. [ 12 ] In the absence of an express contractual agreement identifying the manner in which contracted for work is to be done, the

common law imports an implied condition that the work will be done in a good and workmanlike fashion; that the workmen employed will be possessed of the ordinary amount of skill demanded of that profession; and, that the materials used will be fit for their intended purpose. Whether or not the work performed is defective is a question of fact.

And, because a judge cannot rely on their own experience to ascertain whether the services provided were good and workmanlike, expert evidence is generally needed - unless the work done, or the materials used, are so obviously defective that any reasonable person could identify it as so. This ‘expert requirement’ has been oft repeated both in this Court and by courts throughout Canada and the commonwealth.

Madame Justice Dawson, in her decision Maisonneuve v Burley , 2001 SKQB 407 , 211 Sask R 100, makes this requirement clear at para 27 of her decision: [27] As stated in Goldsmith on Canadian Building Contracts (looseleaf; (Rel. 2) 1998) (Toronto: Carswell, 1988) at pp. 5-11 through 5- 12 : Work which does not meet the requirements of the specifications contained in the contract, or which, in the absence of such specifications, is not of a reasonable workmanlike quality, is not proper compliance with the contract and constitutes a breach.

Furthermore, compliance by the contractor with the specifications will not be sufficient performance if the specifications were prepared by him and are deficient, even if they were approved by the owner.

Whether work, or material supplied, is defective or not is, in each case, a question of fact, depending on the construction of the particular specifications where there are any, and on expert evidence as to what is reasonable where there are none . [Emphasis added] [ 13 ] One of the essential problems faced by judges of this Court is balancing the need to meet two of the objectives of this Court - cost effectiveness and simplicity - with the occasional requirement for a litigant to retain, instruct, and call experts (sometimes at significant cost) to give opinion evidence.

All too often, self-represented litigants (and oftentimes youngish lawyers) simply do not understand the evidentiary requirement to call an expert in these types of claims; or alternatively, they presume (wrongly) that this evidentiary requirement will be met by filing documents which support their position - materials which have been pulled from the Internet, or handbooks, or materials given to them by people working in the trade under consideration.

The fact that the defendant in this case assumed that a judge of this Court sitting in a case management conference would consider these articles to be, somehow, indicative of the meritorious nature of its defence, is an obvious example of the frequency of this practice which, as I say, is adopted by self- represented litigants and lawyers both. [ 14 ] Because these litigants feel that these documents are relevant to their case, and because they are unfamiliar with the laws of evidence, they file documents like these with the court or bring them to a case management conference.

In my ten years sitting on this Court, I see this regularly. I well understand their position, since section 12(4) of The Small Claims Act, 2016, SS 2016, c S-50.12 [the Act ] states that ‘Each party to the action must bring to the case management conference all relevant documents’. Because the litigant feels that the document is relevant, and because they may well be unfamiliar with the more exacting evidentiary demands of calling an expert, these documents are included as part and parcel of that litigant’s document package.

Usually, these materials remain on the file, either because the litigant has not requested that they be returned, or because the case management judge may be reticent to disallow those materials from being filed - thereby potentially usurping the discretion of the trial judge to give future consideration to them to be entered into evidence or reviewed in support of, or in cross-examination of, any expert evidence that may be tendered. [ 15 ] All too often a trial must be adjourned when the judge assigned to a trial of this type starts to review the file only to find out that a litigant actually intends to rely on these documents and actually tender them as proof of the contents therein - instead of calling expert evidence.

In consequence, the trial judge will regularly advise the litigant that those materials will not likely be accepted as proof of the opinions noted therein, and that they will be required to call an expert to ensure that the opinion is properly before the Court. An adjournment is inevitably required because, generally speaking, to do anything other than adjourn - in the face of an honest but mistaken belief as to the manner of proving or defending a claim - does a disservice to the litigants.

This gatekeeper function (that a judge of this Court provides from the date of assignment until date of trial) is necessarily incidental to ensuring that the Court meets the objectives of the Act – timely, cost-effective, and efficient resolution of relatively nominal civil disputes, in a forum unconstrained by formalized and technical rules of court.

This gatekeeper function arises precisely because there are so few rules governing its practice. [ 16 ] With these preliminary comments made, I now turn to the application before me and the grounds upon which the application is brought. [ 17 ] First, the defendant asserts that I reviewed ‘without prejudice’ materials that were submitted to the case management judge by the defendant. This is partially true.

When reviewing the file, I noted the October 18 correspondence and summarily reviewed the attached materials which, I surmised, tended to support the defendant’s assertion that the methodology employed by the defendant in cleaning the windows is sometimes employed in the window cleaning trade. The letter asks that the articles be drawn to the attention of the case management judge. The letter most assuredly does not indicate the materials are sent on a without prejudice basis. There is nothing on the letter, or on file that I can see, that purports to characterize them as such.

There is nothing in the file which asks the Court to return these documents back to the defendant either following the case management conference or at any other time.

[ 18 ] The defendant next asserts that ‘upon reviewing the articles’ I ‘came to the determination that the defendant would need to provide expert evidence at the trial in order to rely on the findings contained in the articles that had been filed’. This is only partially true. I did not come to the determination because of reviewing the articles. I noted, upon a review of the file, that the plaintiff intended to call an expert to give evidence that the defendant’s manner of cleaning the windows was not only defective but was also the cause of the damage to the windows.

I also noted that the time frame within which the defendant was obliged to file its own Notice of Expert had expired. My decision to advise the defendant that the articles would not suffice as proof of the opinions noted therein was predicated on having had to provide this advice and direction to any number of litigants in the past. [ 19 ] The defendant next asserts that these materials should have been removed from the file by the case management judge in the same manner as is done with pre-trial briefs following a pre-trial conference in the Court of King’s Bench. On that point I simply disagree.

Many lawyers assert that this Court should be, or is bound by, the King’s Bench Rules of Court. This is wrong, and the Court is not so bound. Those rules are excellent rules, and they are used from time to time by this Court when it requires assistance … but only then. If materials are not marked as ‘without prejudice’ the Court is unable to determine whether the materials filed are intended to be part of the defendant’s obligation under

section 12 of the Act to bring what it considers to be its relevant documents. If they are not asked to be returned, I think it fair to conclude that the attending judge properly assumes that the litigant wishes them to remain on file. [ 20 ] The tendency to equate a case management conference in small claims court to a pre-trial settlement conference in King’s Bench is improper. Pre-trial conferences in King’s Bench deal primarily with the last, best, opportunity to negotiate a settlement with the assistance of an informed third party.

To my admittedly dated recollection of that process, a pre-trial in King’s Bench proceeds after all that needs to have been done to prepare for trial has already, or is supposed to have already, taken place. Case management conferences in small claims have much more of a dual purpose - settlement discussions certainly, but if that fails, then a rather robust discussion regarding pre-trial preparation. It is at this very early stage that the parties are advised of, contemplate, and discuss those procedural steps that need to occur before a trial can be held.

I will discuss this in greater detail shortly. [ 21 ] The defendant next asserts, by way of affidavit of Julia Ellergodt, that the case management judge had advised the defendant ‘multiple times’ that ‘ all discussions and information discussed during the case management conference were without prejudice’; and ‘that none of the information discussed during the case management conference would be shared with the trial judge’. Ms.

Ellergodt asserts that she relied on these assurances and that she reasonably believed that no information received at that case management conference would be reviewed by the trial judge. [ 22 ] I cannot, of course, verify that the attending case management judge gave this blanket assurance. I would be surprised if he did so, but that is the only evidence before me.

If the learned case management judge gave this blanket assurance, then, unfortunately, I must say that it was an overstatement. [ 23 ] The defendant also asserts that it is a breach of section 12(10) of the Act for a trial judge to have reviewed not only this information, but any information that was presented at a case management conference. This latter assertion is indisputably wrong. Let me explain. [ 24 ] Case management conferences in small claims court are conducted pursuant to

section 12 of the Act . The conference is intended to serve two purposes. The first purpose is to create a forum where the parties can entertain settlement discussions with the guidance and direction of a case management judge. Where, however, the parties do not effect settlement, the second purpose of the conference comes into play. It is to ‘manage the case’ in preparation for trial. This management component is rather exhaustively laid out.

Section 12 reads: Case management conference 12(1) Subject to subsections (2) and 14(4), before a trial date is set, a case management conference must be held at the time and place: (

a) set out in the summons or the notice of third party claim; or (

b) set by the judge at a first appearance.

(2) If the judge is of the view that a case management conference would not be beneficial, the judge may:

(

a) issue a summons or a notice of third party claim setting the trial date; or (

b) set a trial date at a first appearance.

(3) All parties to the action: (

a) must attend the case management conference and have authority to settle the claim; and (

b) may be accompanied by a lawyer or agent.

(4) Each party to the action must bring to the case management conference all relevant documents.

(5) A judge in a case management conference may attempt to settle any issues in dispute.

(6) If settlement attempts pursuant to subsection (5) have not resolved the dispute, a judge in a case management conference may do any of the following: (

a) decide any issues that do not require evidence; (

b) make any other appropriate order according to terms agreed to by the parties; (

c) set a trial date and location, if a trial is necessary; (

d) discuss any evidence that will be required and the procedure that will be followed, if a trial is necessary; (

e) order the defendant or a third party to file a reply in accordance with

section 9, if the defendant or third party has not already done so; (

f) if the defendant or a third party has filed a reply in accordance with

section 9, order the defendant or third party to: (

i) provide additional information respecting the reply;

(ii) amend the reply based on the additional information; and (iii) serve the amended reply on the other parties to the action; (

g) order the plaintiff or a third party claimant to: (

i) provide additional information respecting the summons or the notice of third party claim; (ii) amend the summons or the notice of third party claim based on the additional information; and (iii) serve the amended summons or notice of third party claim on the other parties to the action; (

h) order a party to: (

i) give another party copies of documents by a set date; or (ii) allow another party to inspect and copy documents by a set date; (

i) order a party to permit a person chosen by another party to examine any item or property; (

j) adjourn the case management conference from time to time; (

k) direct the parties to participate in a mediation session; (

l) make any order for the just, timely and inexpensive resolution of the action.

(7) If a party does not comply with an order made pursuant to subsection (6), a judge may at any time do one or more of the following: (

a) adjourn a case management conference; (

b) order a trial to proceed without permitting that party to produce as evidence any information, document or records withheld as a result of the non-compliance; (

c) dismiss the claim, counterclaim, reply or third party claim, as the case may be.

(8) A judge may do one or both of the following: (

a) make any appropriate order against a party who does not attend a case management conference; (

b) without hearing evidence, give judgment in the absence of: (

i) a plaintiff; or (ii) any other party who fails to attend a case management conference if proof of service on that party of the summons or the notice of third party claim, as the case may be, has been filed with the court.

(9) If a matter is to proceed to trial, the judge shall prepare a case management conference report.

(10) If the matter proceeds to trial, no communication shall be made to the trial judge as to the proceedings at the case management conference except as disclosed in the case management conference report prepared pursuant to subsection (9).

(11) Subject to an order of a judge made pursuant to subsection (6), the following are not admissible as evidence in any civil, administrative, regulatory or

summary conviction proceeding, except with the written consent of all parties to an action who participated in the case management conference: (

a) evidence directly arising from anything said in the course of the case management conference; (

b) anything said in the course of the case management conference; (

c) any oral or written admission or communication made in the course of the case management conference. [ 25 ] Even a cursory review of this

section makes it apparent that the case management judge will be making a variety of orders; collecting and disseminating information regarding trial dates; discussing evidence and the manner in which that evidence will be tendered; make further orders regarding clarification, expansion, or amendment of pleadings; serving documents; exchanging documents; adding parties; and, any other manner of discussion which have absolutely nothing to do with settlement discussions.

In fact, the orders made and the discussions between the parties will often extend to whether or not lawyers will be retained for trial; the names of, and the number of witnesses; whether or not experts will be engaged; the number of days that might be required for trial; any special electronic equipment that might be required or utilized at trial; agreements as to facts; agreements as to documents and joint exhibit books; and the list goes on.

[26] Clearly, and quite obviously, all this information, which is distinct from communications made regarding settlement or withoutprejudice admissions will, of necessity, be reviewed by the trial judge. If it were not, the trial judge would have no idea if orders that hadbeen made had been followed.

The judge would not know what, if any, documents had been filed; whether there will be experts, or evenif witnesses will be called; whether there will be an agreed set of facts or agreement on the law to be addressed; or, even when the trialwill be set and for how long - to mention only a few. [27] It is for that reason that I say I would be surprised if the case management judge would have made a blanket assurance to theeffect that nothing said or done at case management would be shared with trial judge. But again, if he made such a sweeping statement,it would be overly broad.

That stated, I respectfully suggest that the judge’s comments should reasonably have been considered in thecontext of the entirety of

section 12 of the Act. [28] The defendant has alleged that I breached section 12(10) of the Act by reviewing information that was presented at casemanagement. In my respectful view, section 12(10) of the Act must be read contextually having regard to the broader purposes of theentire section, and the objectives of the Act.

The subsection states that “If the matter proceeds to trial no communication shall be made tothe trial judge as to the proceedings at the case management conference except as disclosed in the case management report preparedpursuant to subsection (9).” These section 12(9) case management reports are drafted by the Court and are intended to capture all of theinformation that has been taken at case management conference other than discussions relating to the settlement component of theconference.

Therefore, the phrase “no communication… as to the proceedings” should be read in the context of the phrase “except asdisclosed in the case management conference report prepared”. In that regard, I can advise the parties that the conference report, draftedby this Court, and intended to record all of this ‘non-settlement’ communication, expressly excludes any reference to any settlementdiscussion by any party unless a settlement actually occurs, at which time the nature of that agreement is recorded.

With dueconsideration of the bifurcated nature of a case management conference, I incline to the view that the word ‘communication’ set forth insection 12(10) should be read in a restrictive sense as meaning any discussion regarding without prejudice written or oral discussions,offers, or admissions made, in an effort to resolve the dispute at hand. Unfortunately, there was no prepared case managementconference report on the file.

Either one was not prepared, or it did not find its way onto the file. [29] I make special note of the fact that when I reviewed the file there was not a single scrap of paper or notation included within itrelating to any admissions made, or settlement offers exchanged, or discussed. The parties are aware that when this application was beinganticipated I duly advised them of that.

They also have had the opportunity to review the entire file to confirm this. [30] It may well be that the defendant’s personal representatives subjectively feel that I may be biased because I summarily reviewedmaterials on the file which they assert were some sort of without prejudice settlement communication - in the face of an apparent blanketassurance that, to use the affiant’s words “all the information that we presented at the case management conference would remainconfidential”. However, the defendant has failed to explain how a judge’s

summary review of materials that purport to assist a litigant’sdefence - as opposed to detract from it - can somehow imbue a judicial bias against the party that referred to them. How can it berationally asserted that a reasonable person would apprehend that a judge would be biased against their case if a judge reviewed adocument that they put forward that says, in essence, ‘this document proves me right’? Would it not be precisely the opposite? Eventhen, it is not the plaintiff that brings this application. At the hearing of this application they expressed absolutely no concern of mycursory review of those articles. [31] The defendant has also suggested that my

summary review of those materials was the catalyst that directed me to advise thatthose articles would not likely be accepted as evidence of the opinions set forth therein - but on this latter point they would be wrong.The catalyst was, I know, predicated on ensuring that out-of-province defence counsel was aware that an

article expressing an opinionwithout supporting expert testimony is not generally accepted into evidence in our Saskatchewan small claims court. [32] With those comments made, I now turn to the law. In Patel v Saskatchewan (Health Authority), 2020 SKQB 194, Scherman Jwas dealing with an application for recusal based on a reasonable apprehension of bias.

At paras 15 - 19 he referred to the factors to beconsidered: [15] Prior to that the decision in Aalbers v Aalbers, 2013 SKCA 64, 417 Sask R 69, the Court of Appeal, having stated the same test,added the following: [76] As Cory J. states in R.D.S., [ (SCC), [1997] 3 SCR 484], one of the reasons why the threshold for a finding of areasonable apprehension of bias is high is that the courts recognize a presumption that judges will carry out their oath of office: 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), 1994 NSCA 130 , 133 N.S.R. (2d) 50 (C.A.), and Lin [ (BCSC)]. This is oneof the reasons why the threshold for a successful allegation of perceived judicial bias is high. … [emphasis added by Court of Appeal]

Cory J. went on to indicate in R.D.S. that “cogent evidence” is required to displace the presumption that judges will carry out their oathof office (at para. 117).

In the same decision, L’Heureux-Dubé and McLachlin JJ. (as the latter then was) spoke in terms of the“presumption of impartiality” which requires clear evidence that the judge in question had improperly used his or her perspective in thedecision-making process, before concluding that there exists a reasonable apprehension of bias in the conduct of a judge (at paras. 48-49). [77] When these principles are applied the outcome can vary depending on the context.

As the court stated in Wewaykum [2003 SCC45, [2003] 2 SCR 259], whether an apprehension of bias exists is a “highly fact-specific” inquiry for which there are no shortcuts: 77 … As a result, it cannot be addressed through peremptory rules, and contrary to what was submitted during oral argument, there areno “textbook” instances.

Whether the facts, as established, point to financial or personal interest of the decision-maker; present or pastlink with a party, counsel or judge; earlier participation or knowledge of the litigation; or expression of views and activities, they must beaddressed carefully in light of the entire context.

There are no shortcuts. [emphasis added by Court of Appeal] [16] In R v R.D.S., [1997] 2 SCR 484, the reasons of L’Heureux-Dubé J. and McLaughlin J. (as she then was) provided the followingdiscussion about the presumption of impartiality applicable to judges, the distinct but related concept of judicial neutrality and thereasonable person test: II. The Test for Reasonable Apprehension of Bias [31] The test for reasonable apprehension of bias is that set out by de Grandpré J. in Committee for Justice and Liberty v. NationalEnergy Board, (SCC), [1978] 1 S.C.R. 369.

Though he wrote dissenting reasons, de Grandpré J.’s articulation of the testfor bias was adopted by the majority of the Court, and has been consistently endorsed by this Court in the intervening two decades: see,for example, Valente v. The Queen, (SCC), [1985] 2 S.C.R. 673; R. v. Lippé,, (SCC), [1991] 2 S.C.R.114; Ruffo v. Conseil de la magistrature, (SCC), [1995] 4 S.C.R. 267.

De Grandpré J. stated, at pp. 394-95: ... 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.... [T]hat test is “what would an informed person, viewing the matter realistically andpractically – and having thought the matter through – conclude.

Would he think that it is more likely than not that [the decision-maker],whether consciously or unconsciously, would not decide fairly.” 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”. [32] As Cory J. notes at para. 92, the scope and stringency of the duty of fairness articulated by de Grandpré depends largely on the roleand function of the tribunal in question.

Although judicial proceedings will generally be bound by the requirements of natural justice to agreater degree than will hearings before administrative tribunals, judicial decision-makers, by virtue of their positions, have nonethelessbeen granted considerable deference by appellate courts inquiring into the apprehension of bias. This is because judges “are assumed tobe [people] of conscience and intellectual discipline, capable of judging a particular controversy fairly on the basis of its owncircumstances”: 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, “WeCan’t Go On Together with Suspicious Minds: Judicial Bias and Racialized Perspective in R. v. R.D.S.” (1995), 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, andwhose authority greatly depends upon that presumption and idea”.

Thus, reviewing courts have been hesitant to make a finding of bias orto 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), 1994 NSCA 130 , 133 N.S.R. (2d) 50 (C.A.), at pp. 60-61. [33] Notwithstanding the strong presumption of impartiality that applies to judges, they will nevertheless be held to certain stringentstandards regarding bias – “a reasonable apprehension that the judge might not act in an entirely impartial manner is ground fordisqualification”: Blanchette v. C.I.S.

Ltd., (SCC), [1973] S.C.R. 833, at pp. 842-43. [34] In order to apply this test, it is necessary to distinguish between the impartiality which is required of all judges, and the concept ofjudicial neutrality. The distinction we would draw is that reflected in the insightful words of Benjamin N.

Cardozo in The Nature of theJudicial Process (1921), at pp. 12-13 and 167, where he affirmed the importance of impartiality, while at the same time recognizing thefallacy of judicial neutrality: There is in each of us a stream of tendency, whether you choose to call it philosophy or not, which gives coherence and direction tothought and action. Judges cannot escape that current any more than other mortals.

All their lives, forces which they do not recognizeand cannot name, have been tugging at them – inherited instincts, traditional beliefs, acquired convictions; and the resultant is an outlookon life, a conception of social needs.... In this mental background every problem finds its setting. We may try to see things as objectivelyas we please. None the less, we can never see them with any eyes except our own.

... Deep below consciousness are other forces, the likes and the dislikes, the predilections and the prejudices, the complex of instincts andemotions and habits and convictions, which make the [person], whether he [or she] be litigant or judge. [35] Cardozo recognized that objectivity was an impossibility because judges, like all other humans, operate from their ownperspectives. As the Canadian Judicial Council noted in Commentaries on Judicial Conduct (1991), at p. 12, “[t]here is no human beingwho is not the product of every social experience, every process of education, and every human contact”.

What is possible and desirable,they note, is impartiality: ... the wisdom required of a judge is to recognize, consciously allow for, and perhaps to question, all the baggage of past attitudes andsympathies that fellow citizens are free to carry, untested, to the grave. True impartiality does not require that the judge have no sympathies or opinions; it requires that the judge nevertheless be free toentertain and act upon different points of view with an open mind. III.

The Reasonable Person [36] The presence or absence of an apprehension of bias is evaluated through the eyes of the reasonable, informed, practical andrealistic person who considers the matter in some detail (Committee for Justice and Liberty, [ (SCC), [1978] 1 SCR 369].)The person postulated is not a “very sensitive or scrupulous” person, but rather a right-minded person familiar with the circumstances ofthe case. [17] In the reason of Cory and Iacobucci JJ. (agreed with in the result by L’Heureux-Dubé and McLaughlin JJ. – the four judgesthereby constituting the majority decision of the Court), they said the following: [111] The manner in which the test for bias should be applied was set out with great clarity by de Grandpré J. in his dissenting reasonsin Committee for Justice and Liberty v.

National Energy Board, (SCC), [1978] 1 S.C.R. 369, at p. 394: [T]he 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. ... [The] test is “what would an informed person, viewing the matter realistically andpractically – and having thought the matter through – conclude. ...” This test has been adopted and applied for the past two decades.

It contains a two-fold objective element: the person considering thealleged bias must be reasonable, and the apprehension of bias itself must also be reasonable in the circumstances of the case.See Bertram, [1989] OJ No 2123 (QL) (Ont H Ct)], at pp. 54-55; Gushman [[1994] OJ No 813 (Ont Ct J) (QL)], at para. 31. Further thereasonable person must be an informed person, with knowledge of all the relevant circumstances, including “the traditions of integrityand impartiality that form a part of the background and apprised also of the fact that impartiality is one of the duties the judges swear touphold”: R. v.

Elrick, [1983] O.J. No. 515 (H.C.), at para. 14. See also Stark [[1994] OJ No 406 (QL) (Ont Ct J)], at para. 74; R. v.Lin, [1995] B.C.J. No. 982 (S.C.), at para. 34. To that I would add that the reasonable person should also be taken to be aware of thesocial reality that forms the background to a particular case, such as societal awareness and acknowledgement of the prevalence ofracism or gender bias in a particular community. [112] The appellant submitted that the test requires a demonstration of “real likelihood” of bias, in the sense that bias is probable, ratherthan a “mere suspicion”.

This submission appears to be unnecessary in light of the sound observations of de Grandpré J. in Committee forJustice 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’, ‘reasonablesuspicion of bias’, or ‘real likelihood of bias’.

The grounds for this apprehension must, however, be substantial and I entirely agree withthe Federal Court of Appeal which refused to accept the suggestion that the test be related to the “very sensitive or scrupulousconscience”. [Emphasis added by Supreme Court of Canada.] Nonetheless the English and Canadian case law does properly support the appellant’s contention that a real likelihood or probability ofbias 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 thethreshold for a finding of real or perceived bias is high. It is a finding that must be carefully considered since it calls into question anelement of judicial integrity. Indeed an allegation of reasonable apprehension of bias calls into question not simply the personal integrityof the judge, but the integrity of the entire administration of justice. See Stark, supra, at paras. 19-20.

Where reasonable grounds to makesuch an allegation arise, counsel must be free to fearlessly raise such allegations. Yet, this is a serious step that should not be undertakenlightly. [114] The onus of demonstrating bias lies with the person who is alleging its existence: Bertram, supra, at p. 28; Lin, supra, at para. 30.Further, whether a reasonable apprehension of bias arises will depend entirely on the facts of the case. …. [136] Allegations of reasonable apprehension of bias are entirely fact-specific.

It follows that other cases in which courts have dealtwith similar allegations are of very limited precedential value. It is simply not possible to look at an individual case and conclude that thedetermination of the presence or absence of bias in that case must apply to the case at bar.

Nonetheless, it is helpful to review someselected cases in which similar allegations have been made if only to observe the benchmarks against which the allegations weremeasured. [18] In Wewaykum Indian Band v Canada, 2003 SCC 45, [2003] 2 SCR 259 [Wewaykum], the Court undertook a detailed analysis ofthe importance of the principle of impartiality, reasonable apprehension of bias and actual bias and disqualification for reasonableapprehension of bias. I quote at length because this leading authority is conceptually instructive and addresses some of the very issuesraised by Dr. Patel in this case. IV. Analysis A.

The Importance of the Principle of Impartiality [57] The motions brought by the parties require that we examine the circumstances of this case in light of the well-settled,foundational principle of impartiality of courts of justice. There is no need to reaffirm here the importance of this principle, which hasbeen a matter of renewed attention across the common law world over the past decade.

Simply put, public confidence in our legal systemis rooted in the fundamental belief that those who adjudicate in law must always do so without bias or prejudice and must be perceived todo so. [58] 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, atpara. 106.) [59] Viewed in this light, “[i]mpartiality is the fundamental qualification of a judge and the core attribute of the judiciary” (CanadianJudicial Council, Ethical Principles for Judges (1998), at p. 30). It is the key to our judicial process, and must be presumed. As wasnoted by L’Heureux-Dubé J. and McLachlin J. (as she then was) in S. (R.D.), supra, at para. 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 fordisqualification to establish that the circumstances justify a finding that the judge must be disqualified. [60] In Canadian law, one standard has now emerged as the criterion for disqualification. The criterion, as expressed byde Grandpré J. in Committee for Justice and Liberty v.

National Energy Board, supra, at p. 394, is the reasonable apprehension of bias: ... the apprehension of bias must be a reasonable one, held by reasonable and rightminded 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 morelikely than not that [the decision-maker], whether consciously or unconsciously, would not decide fairly.” [61] We will return shortly to this standard, as it applies to the circumstances outlined in the factual background. Before doing that, itis necessary to clarify the relationship of this objective standard to two other factors: the subjective consideration of actual bias; and thenotion of automatic disqualification re-emerging in recent English decisions.

B. Reasonable Apprehension of Bias and Actual Bias [62] Determining whether the judge brought or would bring prejudice into consideration as a matter of fact is rarely an issue. Ofcourse, where this can be established, it will inevitably lead to the disqualification of the judge. But this said, most arguments fordisqualification typically begin with an acknowledgment by all parties that there was no actual bias, and move on to a consideration ofthe reasonable apprehension of bias.

Here, as in many cases, it is conceded by the parties that there was no actual bias on Binnie J.’s part,and his statement that he had no recollection of involvement is similarly accepted by all concerned. As submitted by the parties, hispersonal integrity is not in doubt, either in these appeals or in any appeal in which he has sat as a member of this Court. Nevertheless, it issaid, the circumstances of the present case are such as to create a reasonable apprehension of bias on his part.

Since the two propositionsgo hand in hand, to understand what is meant by reasonable apprehension of bias, it is helpful to consider what it means to say thatdisqualification is not argued on the basis of actual bias. [63] Saying that there was “no actual bias” can mean one of three things: that actual bias need not be established because reasonableapprehension of bias can be viewed as a surrogate for it; that unconscious bias can exist, even where the judge is in good faith; or that thepresence or absence of actual bias is not the relevant inquiry.

We take each in turn. [64] First, when parties say that there was no actual bias on the part of the judge, they may mean that the current standard fordisqualification does not require that they prove it. In that sense, the “reasonable apprehension of bias” can be seen as a surrogate foractual bias, on the assumption that it may be unwise or unrealistic to require that kind of evidence. It is obviously impossible todetermine the precise state of mind of an adjudicator (Cory J. in Newfoundland Telephone Co. v. Newfoundland (Board ofCommissioners of Public Utilities), (SCC), [1992] 1 S.C.R. 623, at p. 636).

As stated by the English Court of Appealin Locabail (U.K.) [[2000] QB 451], at p. 472: The proof of actual bias is very difficult, because the law does not countenance the questioning of a judge about extraneous influencesaffecting his mind; and the policy of the common law is to protect litigants who can discharge the lesser burden of showing a real dangerof bias without requiring them to show that such bias actually exists.

Again, in the present instance, no one suggests that Binnie J. was consciously allowing extraneous influences to affect his mind.Consequently, it would appear that reasonable apprehension of bias is not invoked here as a surrogate for actual bias. [65] Second, when parties say that there was no actual bias on the part of the judge, they may be conceding that the judge was actingin good faith, and was not consciously relying on inappropriate preconceptions, but was nevertheless unconsciously biased. In R. v.Gough, [1993] A.C. 646 (H.L.), at p. 665, quoting Devlin L.J. in The Queen v.

Barnsley Licensing Justices, [1960] 2 Q.B. 167 (C.A.),Lord Goff reminded us that: Bias is or may be an unconscious thing and a man may honestly say that he was not actually biased and did not allow his interest to affecthis mind, although, nevertheless, he may have allowed it unconsciously to do so. The matter must be determined upon the probabilitiesto be inferred from the circumstances in which the justices sit.

As framed, some of the arguments presented by the parties suggest that they are preoccupied that Binnie J. may have been unconsciouslybiased despite his good faith. [66] Finally, when parties concede that there was no actual bias, they may be suggesting that looking for real bias is simply not therelevant inquiry. In the present case, as is most common, parties have relied on Lord Hewart C.J.’s aphorism that “it is not merely ofsome importance but is of fundamental importance that justice should not only be done, but should manifestly and undoubtedly be seento be done” (The King v.

Sussex Justices, Ex parte McCarthy, [1924] 1 K.B. 256, at p. 259). To put it differently, in cases wheredisqualification is argued, the relevant inquiry is not whether there was in fact either conscious or unconscious bias on the part of thejudge, but whether a reasonable person properly informed would apprehend that there was. In that sense, the reasonable apprehension ofbias is not just a surrogate for unavailable evidence, or an evidentiary device to establish the likelihood of unconscious bias, but themanifestation of a broader preoccupation about the image of justice.

As was said by Lord Goff in Gough, supra, at p. 659, “there is anoverriding public interest that there should be confidence in the integrity of the administration of justice”. [67] Of the three justifications for the objective standard of reasonable apprehension of bias, the last is the most demanding for thejudicial system, because it countenances the possibility that justice might not be seen to be done, even where it is undoubtedly done –that is, it envisions the possibility that a decision-maker may be totally impartial in circumstances which nevertheless create a reasonableapprehension of bias, requiring his or her disqualification.

But, even where the principle is understood in these terms, the criterion ofdisqualification still goes to the judge’s state of mind, albeit viewed from the objective perspective of the reasonable person. Thereasonable person is asked to imagine the decision-maker’s state of mind, under the circumstances.

In that sense, the oft-stated idea that“justice must be seen to be done”, which was invoked by counsel for the bands, cannot be severed from the standard of reasonableapprehension of bias. [68] We emphasize this aspect of the criterion of disqualification in Canadian law because another strand of this area of the law in theCommonwealth suggests that some circumstances of conflict of interest may be enough to justify disqualification, whether or not, fromthe perspective of the reasonable person, they could have any impact on the judge’s mind.

As we conclude in the next section, this lineof argument is not helpful to counsel for the bands in the present case. [Emphasis in original] [19] In Taylor Ventures Ltd. (Trustee of) v Taylor, 2005 BCCA 350, 49 BCLR (4th) 134, the British Columbia Court of Appealsummarized the principles to be extracted from Wewaykum as follows: [7] The leading case on recusal is Wewaykum Indian Band v. Canada [2003 SCC 45], 2003 SCC 45 , [2003] 2 S.C.R. 259.Counsel for the respondent correctly identified the principles governing the reasonable apprehension of bias concept as discussedin Wewaykum and I quote from his factum: 7.

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. [Emphasis in original.] [ 33 ] While the analysis is extensive, I think I can summarize the principles.

It is, I believe, incumbent on the defendant to recognize the high threshold for a finding of a reasonable apprehension of bias - with due recognition of the fact that there is a presumption (which the defendant must rebut) that a trial judge will carry out their oath of office. This will demand that there be found to exist clear evidence, based on serious grounds that the trial judge will improperly use their perspective in the decision-making process. The apprehension is not subjective but objective.

It must be a reasonable one held by reasonable persons such that a right-minded person; fully cognizant of all the surrounding information; and having thought the entire matter through; having regard to the entire context of the situation in a realistic and practical sense; with due acknowledgement of the fact that impartiality is one of the duties a judge swears to uphold; conclude that, more likely than not, the trial judge would not decide the matter fairly.

This evidence must be analyzed with due recognition that true impartiality does not mean that the trial judge has no sympathies or opinions, but rather, that the judge will simply be free to entertain and act upon different points of view with an open mind. [ 34 ] In my view, the evidence that has been tendered, falls well short of this rather stringent test.

I am satisfied that a reasonable person would, as defence counsel has conceded in argument, understand that a trial judge will, and must, review much of the information that has been provided at case management - and therefore understand that the case management judge likely made an overstatement when they asserted that all information would be held in confidence. I think that a reasonable person would be even more disinclined to see bias when they are advised that the Act expressly authorizes this.

Any reasonable person would be more comfortable yet if they were then advised of this by a competent lawyer who is aware of the law - and defence counsel has acknowledged that he was aware of this.

I am persuaded more so, when a reasonable person would have been made aware of the fact that there was not a scintilla of information on the file which mentioned any settlement discussions whatsoever. [ 35 ] I am further satisfied that a reasonable person, when advised of the gatekeeping function that a trial judge is necessarily obligated to perform in small claims court, would well understand that my comment to defence counsel to the effect that the articles in question would not likely be accepted into evidence as proof of the opinions state therein, was intended to educate - and was not a biased predisposition of the defendant’s case. [ 36 ] Nor can I accept that a reasonable person would conclude that my

summary review of three articles that favoured the defendant’s specific pleading (that it had met industry standards) would constitute seriously grounded and clear evidence that I would, for some un-explained reason, improperly use my perspective in a biased manner against that defendant’s case. In fact, the affiant who tendered the only evidence in this application has not even averred to the fact that these three articles were discussed at case management. The averment relates only to ‘the materials that were reviewed’, but not these precise articles.

As indicated, I have not been made privy to the manner in which these particular articles, if actually discussed, were referred to, or how they would be relied upon. [ 37 ] Finally, the defendant’s affiant says that “she is advised by her solicitor that had she been made aware of [the fact that a trial judge might review these articles] … the way in which it conducted the case management conference would have been different”. I have concerns with this assertion. First, this is an interlocutory application, and this assertion is made on information and belief. One would

have thought that the grounds for that belief would have been provided - as is customary in averments made on information and belief in interlocutory matters. Yet no such grounds were provided. Even if those grounds had been provided, defence counsel has failed to explain, how that would form the basis of a reasonable apprehension of bias in me acting as trial judge - since I have no knowledge of either the original settlement approach or the potential amended settlement approach.

I simply do not think that a reasonable person would understand how a change in a secretive settlement style unknown by anybody other than the defendant and her counsel would constitute clear evidence of a propensity by a trial judge to exercise a bias against a litigant who may change an unknown (by the trial judge) settlement methodology and proceed with another unknown (by the trial judge) settlement methodology. [ 38 ] In conclusion, I am satisfied that a reasonable person would conclude that the defendant has failed to rebut the presumption of impartiality, something which I can confidently assert that I hold.

For all these reasons, the recusal application is dismissed. Costs may be spoken to at the conclusion of the trial which is scheduled to proceed in Moose Jaw on December 5, 2022, commencing at 9:30 a.m. ________________________ P. Demong, J