2016 QCCA 1436, 2016 QCCA 1436

Droit de la famille — 162288 2016 QCCA 1436 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No: 500-09-026264-168 (500-12-307889-117) MINUTES OF THE HEARING DATE: September 9, 2016 THE HONOURABLE NICHOLAS KASIRER, J.A. PETITIONER COUNSEL L. SH. Mtre simon lahaie ( Lahaie, avocats) Mtre linda hammerschmid ( Hammerschmid & associé

s) Absents RESPONDENT COUNSEL S. S. Mtre robert pancer ( Phillips Friedman Kotler s.e.n.c.r.l.) Mtre nicolas nadeau-ouellet ( Osler, Hoskin & Harcourt, S.E.N.C.R.L./s.r.l. ) Absents

DESCRIPTION: Application for leave to appeal from a judgment rendered in the course of proceedings on July 15, 2016 by the Honourable Francine Nantel of the Superior Court, District of Montreal (articles 30 and 31 C.C.P. ) Clerk: Annabel David Courtroom: RC-14

HEARING 9 h 30 The parties were instructed that their presence at the hearing was not required and, ifabsent, the judgment would be forwarded to them by email. Annabel DavidClerk BY THE JUDGE JUDGMENT [1] L. Sh. seeks leave to appeal from a judgment of the Superior Court, District of Montreal, rendered during the course ofproceedings on July 15, 2016, which dismissed her motion for recusal of the presiding judge (the Honourable Madam Justice FrancineNantel, hereinafter the Judge), with legal costs. [2] The Judge was named special case management judge in divorce proceedings in which the petitioner is defendant.

In her re-amended motion for recusal, the petitioner stated that there were grounds for a reasonable apprehension of bias based on, in particular,the fact that the Judge had practised law with Mtre Gerald Stotland, one of the attorneys for the respondent, from November 20, 1994 toAugust 13, 1999. [3] This relationship was not disclosed to the petitioner either by the Judge or by the attorney in question. The re-amended motionfor recusal cites a series of decisions rendered by the Judge during the course of proceedings that, according to the petitioner, give rise toa reasonable apprehension of bias.

The petitioner adds that on June 9, 2016, the Judge wrote to the respondents’ attorneys, with a copy tocounsel to the petitioner, in a manner that demonstrates grounds for a reasonable apprehension of bias. The Judge wrote that it would beuseful for Mtre Stotland to testify at the hearing on recusal “afin qu’il puisse répondre aux points factuels” raised on the motion.

In sodoing, says the petitioner, the Judge inappropriately “advised a party how to orchestrate evidence” in a manner that favoured the positionespoused by Mtre Stotland’s client. *** [4] The petitioner argues that the Judge erred in law by failing to apply the relevant legal test for reasonable apprehension of biasas it pertains to family matters, as set forth in particular in Miglin v. Miglin, 2003 SCC 24 , [2003] 1 SCR 303. Specifically, sheis said to have erred in law by failing to disclose her past professional relationship with Mtre Stotland.

The Judge also is said to havefailed to consider the cumulative effect of her “alleged improprieties” which show that she has consistently decided matters to thedisadvantage of the petitioner consonant with a reasonable apprehension of bias. Indeed the balance of the motion for recusal is adetailed account of the various points of fact and law the Judge is said to have wrongly considered or wrongly decided over the course ofthe proceedings to date which, the petitioner alleges, all reflect her “systematic exclusion” of the petitioner and, in appearance at least, abiased treatment of her interests in the dispute.

[5] By way of remedy in addition to the recusal of the Judge and legal costs, the petitioner seeks an order to have the file returnedto the Associate Chief Justice of the Superior Court for the appointment of a new case management judge. *** [6] Leave is required, as specified in

article 205 C.C.P. The motion is governed by

article 31, para 2 C.C.P.: leave may be grantedif it decides part of the matter in dispute or causes irremediable prejudice to the petitioner. In addition, granting leave must be in the bestinterests of justice (art. 9 C.C.P.) and must be appropriate in light of the principle of proportionality (art. 18 C.C.P.). As my colleague St-Pierre J.A. observed in chambers recently in Leroux v. Letellier, 2016 QCCA 1350, these requirements are cumulative. [7] I shall assume that the judgment, in dismissing the motion for recusal, meets the requirement of

article 31, para. 2 C.C.P. in thatit decides in part the dispute in a manner that the final judgment could not remedy.[1] [8] That said, the petitioner has failed to convince me that it would be in the best interests of justice to grant leave because anappeal would have no reasonable chance of success. This alone suffices, in circumstances like this one, to dismiss the motion for leave:see, e.g., the reasons of my colleague Hogue, J.A. in Alidzaeva v.

Alipoor, 2016 QCCA 1057. [9] First, and contrary to the position taken by the petitioner, the Judge made no discernable error of law in identifying the rulesapplicable to a motion for recusal. The petitioner is right of course to observe that it is important for trial judges in acrimoniousmatrimonial matters not just to be free of bias but, as well, to maintain, at all times, an appearance of impartiality and fairness, as wasnoted by the Supreme Court in Miglin, supra, para. 27.

While she did not cite the Miglin case, the Judge considered the leadingauthorities in paragraphs [9], [10] and [11] of her reasons and, importantly, applied the correct legal test in asking whether a reasonableperson, properly apprised of the circumstances of the case and who considered the matter realistically and practically, would apprehendbias: see, e.g., Wewaykum Indian Band v.

Canada, 2003 SCC 45 , [2003] 2 SCR 259, para. 74. [10] Not only did the Judge apply the correct test, the reasons she gave for dismissing the motion show no apparent weakness. [11] In considering the Judge’s reasons, it bears recalling that the impartiality of the Judge is presumed and that the petitioner bearsthe burden of showing bias or reasonable apprehension of bias.

As noted by the Supreme Court, “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”: Wewaykum Indian Band, supra, para. 59. [12] I agree with the Judge’s view that the petitioner failed to acquit that burden. In the circumstances, it is implausible that theprofessional relationship described in the motion, itself dating back 17 years, could on its own constitute the source of a reasonableapprehension of bias.

There is indeed authority for the proposition that the passage of a significant amount of time is a factor, often adecisive factor, in concluding against apprehended bias: Wewaykum Indian Band, supra, para. 85 and passim. [13] To my mind, it is most relevant that a former attorney of the petitioner, Mtre Andrew Heft, did not see the past professionalrelationship between the Judge and Mtre Stotland as problematic and chose not to inform his client of it. While not, in itself, a bar toraising bias thereafter, this fact does suggest that the reasonable person would not have an apprehension of bias here.

In thesecircumstances, I decline to see the Judge’s decision not to raise the matter with the petitioner as the source of a reviewable error. [14] Moreover, I fail to see the letter sent by the Judge suggesting that it would be useful to have Mtre Stotland testify at the hearingon recusal as an impropriety by which the Judge “orchestrated” evidence contrary to the interests of the petitioner. It strikes me asunsurprising that Mtre Stotland would be called upon to explain his past professional relationship with the Judge at the hearing.

As a signof reasonable apprehension of bias, the argument based on the letter is without merit. [15] As to the cumulative weight of the various matters decided by the Judge supposedly “against the interests” of the petitioner, noplausible argument has been made that these are explained by bias or that they give rise to a reasonable apprehension of bias. I agree withthe view that a reasonable person, looking carefully at the whole of the record and considering it practically and realistically, would notsee or apprehend bias.

As is often said, a motion for the recusal of a judge should not be used as a disguised appeal. [16] To grant leave based on such a weak foundation would undermine the stake that all have in the proper administration of justice,be they winners or losers in court, and, inevitably, encourage others to cry wolf as just one more way of expressing their displeasure withjudgments rendered against them. FOR THE FOREGOING REASONS, the undersigned: [17] DISMISSES the motion, with legal costs against the petitioner. NICHOLAS KASIRER, J.A.