2013 NBCA 48, 2013 NBCA 48

COURT OF APPEAL OF NEW BRUNSWICK 99-12-CA PHILIP ANDREW LAMBERT (Respondent) APPELLANT PHILIP ANDREW LAMBERT (Intimé) APPELANT - and - - et - GLADYS BARBARA LACEY-HOUSE (Petitioner) RESPONDENT GLADYS BARBARA LACEY-HOUSE (Requérante) INTIMÉE Lambert v. Lacey-House, 2013 NBCA 48 Lambert c.

Lacey-House, 2013 NBCA 48 CORAM: The Honourable Justice Bell The Honourable Justice Quigg The Honourable Justice Green CORAM : L’honorable juge Bell L’honorable juge Quigg L’honorable juge Green Appeal from a decision of the Court of Queen’s Bench: July 6, 2012 Appel d’une décision de la Cour du Banc de la Reine : Le 6 juillet 2012 History of Case: Historique de la cause : Decision under appeal: 2012 NBQB 217 Décision frappée d’appel : 2012 NBQB 217 , 2012 NBBR 217 Preliminary or incidental proceedings: N/A Procédures préliminaires ou accessoires : S.O.

Appeal heard: February 21, 2013 Appel entendu : Le 21 février 2013 Judgment rendered: July 25, 2013 Jugement rendu : Le 25 juillet 2013

Counsel at hearing: For the appellant: Howard T. Myatt For the respondent: David A. Estey Avocats à l’audience : Pour l’appelant : Howard T. Myatt Pour l’intimée : David A. Estey THE COURT The appeal is allowed without costs, and the matter is remitted to the Court of Queen’s Bench, Family Division, for a new hearing before a different judge. The following is the judgment delivered by THE COURT I. Introduction [ 1 ] The parties are a former married couple with three adult children. An ongoing dispute exists with respect to child support obligations.

The appellant brought a Notice of Motion before a judge of the Court of Queen’s Bench, Family Division, seeking a variation of child support, an order stating no further support payments were required, and an order stating no arrears of child support were due or owing. In a decision dated July 6, 2012, the appellant was ordered to pay the respondent a total of $67,202.88, plus costs of $4,000.00 inclusive. He now appeals. For the reasons which follow, we would allow the appeal, and remit the matter to the Court of Queen’s Bench, Family Division, for a new hearing before a different judge of that court. II.

Background [ 2 ] Given our reasons for the disposition of this appeal, it is not necessary to reproduce a detailed factual history of the dispute over child support. Suffice it to say the parties were married in 1980, separated in 1996, and divorced in 2000. The three children of the marriage all pursued post-secondary education which continued after reaching the age of majority. On September 19, 2001, a judge of the Court of Queen’s Bench rendered a decision dealing with marital property, education costs, and support. Counsel for the appellant was to prepare the draft order.

For a variety of reasons, no order setting out the particulars of that decision was issued until February 6, 2008. The appellant made child support payments in the amounts he determined were appropriate in the years following the 2001 decision. As such, the amounts paid did not reflect what the judge had directed. III. Issues

[ 3 ] The appellant attributes three errors to the motion judge: 1. Failing to conduct a proper analysis of the means, needs and other circumstances of the adult children of the parties in determining the appropriate amount of child support to be paid; 2. Lacking the jurisdiction to make a retroactive variation of child support, and wrongly attributing blameworthy conduct to the appellant; and 3. Having heard the motion in the face of a reasonable apprehension of bias. As will become apparent, we have determined we need only consider the third of these alleged errors. IV. Law and Analysis A.

What is expected from a judge in terms of impartiality? [ 4 ] The passage which follows is extracted from Ethical Principles for Judges , a publication of the Canadian Judicial Council. The objects of the Council are set out in s. 60(1) of the Judges Act , R.S.C. 1985, c. J-1: “ to promote efficiency and uniformity, and to improve the quality of judicial service, in superior courts”. The Principles are intended to serve as guidelines for judges in the discharge of their responsibilities.

On the subject of impartiality and reasonable apprehension of bias, the Principles have this to say; Impartiality is not only concerned with perception, but more fundamentally with the actual absence of bias and prejudgment. This dual aspect of impartiality is captured in the often repeated words that justice must not only be done, but manifestly be seen to have been done. As de Grandpre, J. put it in Committee for Justice and Liberty v.

National Energy Board , the test is whether “an informed person, viewing the matter realistically and practically — and having thought the matter through —” would apprehend a lack of impartiality in the decision maker. Whether there is a reasonable apprehension of bias is to be assessed from the point of view of a reasonable, fair minded and informed person. [p. 31] B.

What was stated in the decision under appeal? [ 5 ] The July 6, 2012 decision of the motion judge contains the following introductory comments, which are pertinent to the issue of reasonable apprehension of bias: I was asked to hear this matter on short notice to me. The dates for the hearing had been scheduled but no judge was available. It was not until I entered the courtroom I discovered I knew the petitioner though I did not know her well. At the outset I informed Mr. Lambert I had some prior contact with Ms. Lacey-House.

One of the three Lambert children was a member of the same local bagpipe band with one of my children. I would see the petitioner regularly at band practices. Perhaps more important, though somewhat more indirect, Ms. Lacey-House is now married to a by-law enforcement officer for the City of Fredericton. Prior to my appointment as a Judge I was the City Solicitor for the City of Fredericton and I worked with Mr. House. Ours was a business relationship limited to the office or a court setting. We had no social contact. My contacts with Ms.

Lacey-House were limited and my connection with her husband was purely as co-workers. As a consequence, I do

not consider myself to have any conflict of interest in sitting upon this case. Despite this, had I recognized the name of the Petitioner at the time I was asked to hear this case, in all probability I would have refused to proceed with this case. After I informed Mr. Lambert of the nature of my limited connections with the Petitioner, I told him I would not recuse myself and explained why. Still, I gave him the opportunity, should he wish, to request a different judge. Mr. Lambert considered the question and determined he would prefer to proceed with the case now rather than adjourn to seek another judge.

On that basis, I heard the evidence upon which I now render this decision. [paras. 3-7] [ 6 ] Simply on the face of the above quoted passage, we would not be convinced a reasonable, fair minded and informed person would apprehend a lack of impartiality on the part of the motion judge. Regrettably, the situation is somewhat more complicated than it at first appears. C. What was actually said in court? [ 7 ] We begin by referring to the transcript, to determine precisely what was said by the motion judge to the parties: THE COURT: Okay. Here’s my problem, until I sat down I did not realize that I know [Ms.

Lacey-House] through activities that our son’s were both involved with. I do not know her as a dinner companion or anything of that nature, but it should be known to Mr. Lambert that I am at least familiar with her so I’m a little bit reluctant to be hearing this matter, and I certainly would give Mr. Lambert the opportunity if he believes that as a consequence [of] my relationship or my knowledge of – of Ms. Lacey-House is such that I should not be hearing this case. […] […] THE COURT: At the same time, Mr.

Lambert, I’m going to give you in that fifteen minutes the opportunity to decide whether or not you are willing to have me hear this particular case. I – I’m not going to suggest to you whether I should or shouldn’t, because it’s got to be your decision and you’ve got to accept that I can render a fair and unbiased decision. If – if after you – you’ve thought about it, you decide that it is not available for me to render such a decision, I would ask you just to simply say so and what I will be doing I will be informing the Clerk that you’ve got to find another judge.

If on the other hand you want me to hear it, I’m willing to hear it, but bear in mind I do on the basis of the information that you’ve already got, and so it’s not available for you later to say gee whiz, the Judge was biased or potentially was biased. MR. LAMBERT: Okay. THE COURT: So you’re going to take a few minutes and you can discuss what kinds of information, and when I come back we’ll see whether we’re proceeding or whether we’re going to get another judge. […] And Mr. Lambert I will expect from you a decision as to whether or not you accept me as a Judge.

RECESS 9:43 am – RESUME 10:31 am THE COURT: Okay, Mr. Lambert, first question is to you.

MR. LAMBERT: Mr. Justice, I have no concerns about you hearing this case. THE COURT: In which case I thank you, I will – I will take that as a challenge to make sure that I bring out the best possible decision that I can exclusive of any bias. […] D. Comparing the Two [ 8 ] Upon comparison, the decision rendered and what was actually said in court are problematic for a number of reasons.

First and foremost for the purposes of this appeal, the account of the exchange between the motion judge and the parties as reflected in the decision does not mirror what appears in the transcript, and the discrepancies are significant. Specifically, the motion judge made no mention at the hearing of his connection to the respondent’s new husband. We have searched the transcript in vain for any such reference.

At the hearing of the appeal, counsel for the respondent was asked to direct us to that portion of the transcript wherein the motion judge disclosed and discussed the fact he and the respondent’s husband worked together. He was not able to do so. [ 9 ] A number of months passed between the motion being heard and the release of the decision. We surmise this may account for the differences between what the motion judge said in court, and what appears in his decision.

By the time of writing, the motion judge may well have believed he had made full disclosure to the parties of his connections to the respondent, but with the passage of time his recollection of the hearing was mistaken. On appeal, counsel for the appellant suggested the same explanation, i.e. the motion judge was simply mistaken when he wrote that portion of his decision because of the length of time that had passed. E. What would a reasonable person conclude? [ 10 ] What then would a reasonable, fair minded person, informed of all the relevant information, conclude from the above?

The following points would be expected to be among such a person’s observations: 1. Had the motion judge recognized the name of the respondent prior to the commencement of the hearing, he would “in all probability” have recused himself. 2. The motion judge voiced to the parties his reluctance to hear the matter at the outset of the hearing, clearly indicating he had concerns about proceeding. 3. The motion judge not only knew, but used to work with, the respondent’s new husband.

In spite of what was written in the decision, nowhere in the transcript does it appear the motion judge made this connection known to the appellant. 4. By the motion judge’s own admission, his connection with the respondent’s new husband was perhaps “more important” than his prior contact with the respondent herself through the shared activities of their respective children. 5.

The motion judge had been city solicitor for the municipality which employed the respondent’s new husband as a by-law enforcement officer, which suggests a closer working relationship between the two than merely having an employer in common.

6. The motion judge’s comments to the appellant following the recess, and after the appellant had indicated he had no concerns with themotion judge continuing, suggest the judge himself saw potential bias when he stated, “I will take that as a challenge to make sure that Ibring out the best possible decision that I can exclusive of any bias”. [Emphasis added.] F. The Positions of the Parties [11] The appellant focuses on the motion judge’s omission in disclosing a prior working relationshipbetween the judge and the respondent’s new husband.

The appellant’s written submission frames the issue as follows: It is submitted that a reasonable apprehension of bias exists when a fair-minded and informed person would have a reasoned suspicion ofa lack of impartiality on behalf of the trier of fact. [12] The appellant contends the threshold is met on the facts of this case. In support of hisargument, the appellant relies upon the Ontario Court of Appeal decision in Benedict v. Ontario, (ON CA), [2000]O.J.

No. 3760 (QL): In circumstances like this case, it is only the judge who knows the particulars that could give rise to apparent bias should the judge heara case. Where a judge perceives a potential self-interest, especially where the circumstances may not be known to the litigants, he or sheshould withdraw from the case or should raise the potential problem and make full disclosure of all the relevant facts prior to, or at theonset of, the proceedings. [para. 35] [13] Mr. Benedict had initiated a wrongful dismissal proceeding against the Crown, his formeremployer, by way of a Notice of Application.

The Crown in turn sought a stay of his application, arguing Mr. Benedict should have fileda grievance before the applicable administrative tribunal. The motion judge refused to issue a stay. It was subsequently learned thejudge in question was herself a former employee of the Ontario government, and was involved in her own wrongful dismissal actionagainst the Crown, related to her former position as a lawyer with the Ontario Human Rights Commission. The Court of Appeal held thejudge should not have heard the motion, as she “had an interest” in its outcome.

With respect, Benedict is readily distinguishable giventhere is no suggestion of “potential self-interest” for the motion judge in the present case. We will explore more relevant jurisprudenceshortly. [14] Counsel for the respondent, who had also been her counsel at the hearing of the motion,conceded he had been unable to find any reference in the transcript to the motion judge’s prior connection with his client’s new husband,although he thought he recalled it having been mentioned.

Notwithstanding that admission, the respondent argues a reasonable personwould not apprehend bias, and points to the fact that at the time of the hearing, a number of years had passed since the motion judge hadserved as city solicitor for the municipality in question. We note the period in question was just under three years. G. Relevant Jurisprudence [15] The law in Canada with respect to reasonable apprehension of bias was articulated by theSupreme Court per L’Heureux-Dubé J. and McLachlin J. (as she then was) in R. v. R.D.S., (SCC), [1997] 3 S.C.R. 484,[1997] S.C.J.

No. 84 (QL): The test for reasonable apprehension of bias is that set out by de Grandpré J. in Committee for Justice and Liberty v. National EnergyBoard, (SCC), [1978] 1 S.C.R. 369. Though he wrote dissenting reasons, de Grandpré J.'s articulation of the test for biaswas adopted by the majority of the Court, and has been consistently endorsed by this Court in the intervening two decades: see, forexample, 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". As Cory J. notes at para. 92, the scope and stringency of the duty of fairness articulated by de Grandpré depends largely on the role andfunction 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 considerableweight, for as Blackstone opined at p. 361 in Commentaries on the Laws of England, Book III, cited at footnote 49 in Richard F. Devlin,"We Can't Go On Together with Suspicious Minds: Judicial Bias and Racialized Perspective in R. v. R.D.S." (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,and whose authority greatly depends upon that presumption and idea".

Thus, reviewing courts have been hesitant to make a finding ofbias or to perceive a reasonable apprehension of bias on the part of a judge, in the absence of convincing evidence to that effect: R.v. Smith & Whiteway Fisheries Ltd. (1994), 1994 NSCA 130 , 133 N.S.R. (2d) 50 (C.A.), at pp. 60-61. Notwithstanding the strong presumption of impartiality that applies to judges, they will nevertheless be held to certain stringent standardsregarding bias -- "a reasonable apprehension that the judge might not act in an entirely impartial manner is ground for disqualification":Blanchette v. C.I.S.

Ltd., (SCC), [1973] S.C.R. 833, at pp. 842-43. [paras. 31-33] See also Wewaykum Indian Band v. Canada, 2003 SCC 45, [2003] 2 S.C.R. 259, at paragraph 60. [16] This Court has applied the test set out above. In Rothesay Residents Association Inc. v. RothesayHeritage Preservation & Review Board et al., 2006 NBCA 61, 299 N.B.R. (2d) 369, Robertson J.A. states: The legal test to be applied in bias cases was first articulated by Justice de Grandpré in his dissenting opinion in Committee for Justiceand Liberty v. National Energy Board, (SCC), [1978] 1 S.C.R. 369 at 394.

With the passage of time that dissentingopinion has become the governing law. Its most recent affirmation is found in the Supreme Court's decision in Wewaykum, where atpara. 60 the Court held: In Canadian law, one standard has now emerged as the criterion for disqualification. The criterion, as expressed by de Grandpré J. inCommittee 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 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 morelikely than not that [the decision-maker], whether consciously or unconsciously, would not decide fairly." As well, the Supreme Court has directed that the state of mind of the disinterested third person must be reasonable and not overlysensitive or scrupulous. This component of the test was articulated at paragraph 76 of Wewaykum: First, it is worth repeating that the standard refers to an apprehension of bias that rests on serious grounds, in light of the strongpresumption of judicial impartiality.

In this respect, de Grandpré J. added these words to the now classical expression of the reasonableapprehension standard:

The grounds for this apprehension must, however, be substantial, and I ... refus[e] to accept the suggestion that the test be related to the "very sensitive or scrupulous conscience." In brief, the reasonable apprehension of bias test is an objective one: what would an informed person, viewing the matter realistically, conclude? However, the party alleging bias must recognize that the threshold for finding a real or perceived bias is a high one. Such allegations are not to be made lightly. [paras. 16-18] H.

Conclusion on the Reasonable Apprehension Issue [ 17 ] As stated by Robertson J.A. in Rothesay Residents , the threshold for a finding of reasonable apprehension of bias is a high one. Regrettably, that standard has been met in this matter. As we stated earlier, had the opening paragraphs of the motion judge’s decision been an accurate reflection of what was said in court, we would not be persuaded there existed a reasonable apprehension of bias. That was not the case. The motion judge made no mention of his connection to the respondent’s new husband.

More problematic is the fact the motion judge himself expressed reluctance at presiding, and went on to inform the appellant he would render the best decision possible “ exclusive of any bias”. On its face, this statement could be interpreted as an acknowledgement of actual bias. [ 18 ] We are satisfied a reasonable, fair minded person, informed of all the relevant information in this matter, would have a reasonable apprehension of bias. On that basis alone, the decision cannot stand. I.

The Decision to Recuse [ 19 ] We feel compelled to comment upon the process adopted by the motion judge for presenting his concerns about possible conflicts to the parties, and how the parties were invited to respond. The transcript reveals the motion judge essentially placed the decision as to whether or not he would proceed to hear the case squarely in the hands of the appellant. With respect, such an approach should not be encouraged. The decision of whether or not to recuse rests with the judge and the judge alone. This responsibility should not be transferred to one or both of the parties.

One additional observation must be made: the respondent was not given an opportunity to make submissions, and should have been, before the motion judge made his decision. [ 20 ] We turn again to the Canadian Judicial Council and the Ethical Principles for Judges to provide guidance on point: E.13 Consent of the Parties Commentaries on Judicial Conduct acknowledges the practical difficulty of attempting to cure a concern about disqualification by disclosure to and consent of the parties.

The main concern is that such an approach puts counsel in an unfair position — as one respondent put it, to either consent or to risk being seen as a trouble maker. E.14 It is not suggested that consent of the parties would justify a judge continuing in a situation in which he or she felt that disqualification was the proper path. The issue of consent, therefore, arises only in those cases in which the judge believes that there is an arguable point about disqualification but in which the judge believes, at the end of the day, a reasonable person would not apprehend a lack of impartiality.

Putting the matter this way perhaps highlights the difficult position in which counsel is placed. By disclosing the matter and seeking consent to continue, the judge is in essence saying that no reasonable person should apprehend a lack of impartiality. Therefore, if counsel fails to consent, counsel (or their clients) may appear to be taking an unreasonable position. A partial answer to this concern may be to adopt the English practice in which the judge is told that an objection was made by one of the parties without being told which side objected.

E.15 The better approach is for the judge to make the decision without inviting consent, perhaps in consultation with his or her chief justice or other colleague. If the judge concludes that no reasonable, fair minded and informed person, considering the matter, would have a reasoned suspicion of a lack of impartiality, the matter should proceed before the judge. If the conclusion is the opposite, the judge should not sit. E.16 The judge should make disclosure on the record and invite submissions from the parties in two situations.

The first arises if the judge has any doubt about whether there are arguable grounds for disqualification. The second is if an unexpected issue arises shortly before or during a proceeding. The judge’s request for submissions should emphasize that it is not counsel’s consent that is being sought but assistance on the question of whether arguable grounds exist for disqualification and whether, in the circumstances, the doctrine of necessity applies.[pp. 48-49] [ 21 ] In

summary, the preferable approach for the motion judge would have been to disclose before the parties in open court the full extent of his prior connections with the respondent, both directly as a result of their children’s shared activities, and indirectly through the former working relationship with her new husband. The judge could have invited submissions from the parties, making clear he was not seeking their consent, but rather in the context suggested above.

At that point, perhaps after taking a brief recess to reflect upon the situation, and if he so chose after taking time to speak to the Chief Justice of his Court or another colleague, the judge could have decided whether or not he should continue. Comments such as, “I will take that as a challenge to make sure that I bring out the best possible decision that I can exclusive of any bias”, should obviously have been avoided. V. Disposition [ 22 ] The appeal is allowed, and the matter is remitted to the Court of Queen’s Bench, Family Division, for a new hearing before a different judge of that court.

In the circumstances, there will be no award of costs. ______________________________ B. RICHARD BELL, J.A. ______________________________ KATHLEEN A. QUIGG, J.A. _____________________________ BRADLEY V. GREEN, J.A.