2022 NLCA 17, 2022 NLCA 17

John Quinlan and Gerard A. Quinlan (applicants/appellants) v. Eastern Regional Integrated Health Authority (first respondent) and Catherine Mann (second respondent) (21/79) Indexed as: Quinlan v. Eastern Regional Integrated Health Authority 2022 NLCA 17 7 C.A.N.L.R. 401 Court of Appeal of Newfoundland and Labrador Fry C.J.N.L., Welsh and Goodridge JJ.A. March 2, 2022

Summary: John and Gerard Quinlan applied to have a judge of the Supreme Court, General Division recuse himself from hearing the trial of their action based on an allegation that the judge had pre-conceived notions concerning the Quinlans due to an earlier unsuccessful case before the same judge. The judge dismissed their application with reasons. The Quinlans appealed the judge’s decision. Having failed to file their notice of appeal in time, they applied for and were granted an extension of time to file their notice of appeal. Held: Application allowed, appeal dismissed.

Welsh J.A. (Fry C.J.N.L. and Goodridge J.A. concurring): Under the Court of Appeal Rules , rule 8(2)(b), the Quinlans had 10 days to file their notice of appeal in the uncompleted matter (paragraph 4). However, the relevant test in Rowe v. Newfoundland and Labrador was satisfied, and the application was granted (paragraph 5). The disqualification of a judge, as outlined in Wewaykum Indian Band v. Canada , is decided on the standard of what an informed person would conclude, viewing the matter realistically and practically – and having thought the matter through.

There is a presumption of impartiality by a judge (paragraphs 6-7). The judge properly stated and applied the relevant test and gave reasons for not recusing himself (paragraphs 8-15). Cases cited: Rowe v. Newfoundland and Labrador , 2017 NLCA 17 , 1 C.A.N.L.R. 535 Wewaykum Indian Band v. Canada , 2003 SCC 45 , [2003] 2 S.C.R. 259 Rules considered: Court of Appeal Rules , rule 8(2)(

b) Counsel: The applicants/appellants, on their own behalf; Janet L. Carpenter and Julia P. Morris, for the first respondent;

Travis D. Payne, for the second respondent. The appeal was heard on March 2, 2022 before Fry C.J.N.L., Welsh and Goodridge JJ.A., with decision rendered orally. The following memorandum of disposition was filed on March 16, 2022 by Welsh J.A. for the Court. ______________________________________________________________ Welsh J.A.: [1] John and Gerard Quinlan made an application to a judge in the Supreme Court, General Division, in which they sought to havethe judge recuse himself from hearing the trial of their action, an allegation of negligence on behalf of the estate of their brother, JosephQuinlan.

The judge dismissed their application to recuse himself, with reasons. [2] The Quinlans, who do not have legal counsel, then filed a notice of appeal in this Court. As discussed below, the notice ofappeal was filed after the expiration of the limitation period. As a result, the Quinlans should have filed an application for extension oftime to file a notice of appeal. This issue was raised in the factum filed by the second respondent.

In the circumstances, the Court wassatisfied that sufficient notice of the issue had been given, and that no party would be prejudiced by the Court proceeding in the absenceof a written application by the Quinlans for an extension of time to file the notice of appeal. [3] The application and appeal were heard together. At the hearing, the application for an extension of time to file a notice of appealwas granted, but the appeal was dismissed. Following are the reasons.

Extension of Time to File Notice of Appeal [4] An appeal of a recusal decision by a trial judge is characterized as an appeal in an uncompleted matter for which a notice ofappeal must be filed within ten days after the order appealed from has been filed (Court of Appeal Rules, rule 8(2)(b)). The order wasfiled on November 12, 2021. The notice of appeal was filed on December 13, 2021, well past the ten-day limitation period.

In granting the extension of time within which to file a notice of appeal, the panel was satisfied that the relevant test was met (Rowe v.Newfoundland and Labrador, 2017 NLCA 17, 1 C.A.N.L.R. 535, at paragraph 6). In particular, it is clear that the Quinlans intended toappeal. However, they are self represented and, not recognizing that their appeal was in an uncompleted matter, they understood thatthey had thirty days within which to file a notice of appeal.

While the error was unfortunate, the other parties and the Court were able toaccommodate the filing of materials and hearing of the appeal without further delay. The issue of recusal of a judge arises veryinfrequently and, in the circumstances, the Court concluded that there was a benefit in allowing submissions on the appeal. Recusal by the Trial Judge The Law [5] The criterion for disqualification of a judge to hear a case is discussed in Wewaykum Indian Band v. Canada, 2003 SCC 45,[2003] 2 S.C.R. 259.

McLachlin C.J.C., for the Court, explained: [60] In Canadian law, one standard has now emerged as the criterion for disqualification. The criterion, as expressed by de Grandpré J.in Committee for Justice and Liberty v. National Energy Board [ (SCC), [1978] 1 S.C.R. 369], at p. 394, is the reasonableapprehension 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 more likelythan not that [the decision-maker], whether consciously or unconsciously, would not decide fairly?” [6] A fundamental principle in the analysis when applying this criterion is the presumption of impartiality, referenced inWewaykum: [58] The essence of impartiality lies in the requirement of the judge to approach the case to be adjudicated with an open mind. ... [59] Viewed in this light, “impartiality is the fundamental qualification of a judge and the core attribute of the judiciary” ... . It is thekey to our judicial process, and must be presumed.

As was noted by L’Heureux-Dubé J. and McLachlin J. (as she then was) in S. (R.D.),[ (SCC), [1997] 3 S.C.R. 484], at para. 32, the presumption of impartiality carries considerable weight, and the lawshould not carelessly evoke the possibility of bias in a judge, whose authority depends upon that presumption. Thus, while therequirement of judicial impartiality is a stringent one, the burden is on the party arguing for disqualification to establish that thecircumstances justify a finding that the judge must be disqualified.

Application of the Law [7] In making an application to have the judge recuse himself, the Quinlans submitted that the judge had a pre-conceived bias

against them, which was based on an earlier case in which the Quinlans had been unsuccessful before that judge. At the recusal hearing, the judge asked if the Quinlans were “prepared to argue [the recusal issue] today or do you want time in order to make your argument?” Gerard Quinlan responded: We filed our views in the application, Your Honour.

In my opinion, it doesn’t matter whether or not the issues [in an earlier case the Quinlans had before the same judge] were different enough, it’s that you were a judge in another hearing process that we were involved in and, personally speaking, I did not – I don’t like the way it was handled and I expressed my views in the document that was filed with the Court. [ 8 ] In this Court, Gerard Quinlan said that the trial judge was “combative”, “dismissive”, and “hostile”, and that he would not hear the matter with an open mind.

There is nothing in the transcript of the hearing that would support that submission. [ 9 ] In dismissing the recusal application, the judge emphasized the oath he swore as a judge to “do right to all manner of people after the laws and usages of this Province, without fear or favour, affection or ill will.” He explained: If I made a ruling against you in the past, it’s because I found that you had not made out your case. I bear no ill will against the Quinlan family, but I’m obligated by my oath to uphold the law. You as litigants are bound by that law.

And as Plaintiffs, it’s your duty and responsibility to make out your case on a balance of probabilities. You have, in the past, employed the argument that the facts speak for themselves. Certain things happened and, therefore, because they happened, the Court must assign blame. You’re employing the same argument in this recusal application. Medical malpractice suits don’t work that way. You must be able to show that there’s actual evidence of malpractice. You’re not qualified, as lay people, to express an opinion about a doctor’s course of treatment. You must get a specialist to render that opinion for you.

That is not as a result of any bias that I harbour against you or your cause, it will be because you have not followed the law and done what’s necessary to put your best foot forward. [ 10 ] The judge then correctly stated the test that applies in a recusal application: The test for recusal is whether an informed person, viewing the matter realistically and practically, and having thought the matter through, would think that it’s more likely than not that the decision-maker, whether consciously or unconsciously, would not decide fairly. [ 11 ] Consistent with the principles stated in Wewaykum , the judge concluded: The grounds for an apprehension of bias must be substantial.

A real likelihood or possibility of bias must be demonstrated and a mere suspicion is not enough. The threshold for a finding of reasonable apprehension of bias is high because the Courts recognize the presumption that judges will carry out their oath of office. Cogent evidence is required to displace the presumption that judges will carry out their oath of office. [ 12 ] Finally: I cannot recuse myself on the basis of the arguments that you have put before me. If I rule against you in an upcoming application, you have a right to appeal my decision.

If you feel that ruling that I may make was biased, you can advance that argument as part of the appeal. But I have no option but to deny your request that I recuse myself. [ 13 ] The judge properly applied the appropriate test and gave reasons for determining that it would be improper for him to recuse himself from hearing the matter. [ 14 ] Accordingly, at the hearing, after granting an extension of time within which to file a notice of appeal, the Court dismissed the appeal. Costs shall be costs in the cause. Application allowed, appeal dismissed.