Ayers v Miller, 2019 SKCA 2

Court of Appeal for Saskatchewan Docket: CACV3274 Citation: Ayers v Miller , 2019 SKCA 2 Date: 2019-01-03 Between: Larry Ayers, Jack Adams, CPC Networks Corp.

Prospective Appellants (Applicants) And Ronald Miller, Clayton Barry and McDougall Gauley LLP, Scott Spencer and Robertson Stromberg LLP Prospective Respondents (Respondents) Before: Jackson J.A. (in Chambers) Disposition: Application denied On Application From: 176/2012, 1004/2013, 165/2016, 211/2016, 1535/2017, Saskatoon Application Heard: August 8, 2018; further submissions, August 23 and September 5, 2018 Counsel: Larry Ayers and Jack Adams on their own behalf Karen Prisciak, Q.C., for the Respondents Jackson J.A. [ 1 ] This is an application for leave to appeal a decision of a Court of Queen’s Bench Chambers judge dismissing an application requesting that he recuse himself [ Recusal Fiat ].

The recusal application was initiated after a complaint had been made to the Canadian Judicial Council; following which, the Chambers judge made what the applicants believed to be an unfavourable decision establishing the sequence in which a series of upcoming substantive applications would be heard [ Scheduling Order ]. No attempt was made to follow the Scheduling Order or appeal it.

A preliminary issue arises as to whether the Recusal Fiat is appealable. [ 2 ] By way of further background, Larry Ayers, Jack Adams and CPC Networks Corp., the applicants in the Court of Queen’s Bench and in this Court, asked the Chambers judge to recuse himself on the basis of “bias or prejudice” or, in the alternative, “a perception of bias”. The applicants complained to the Canadian Judicial Council about what they believe to be an inordinate delay in how the Chambers judge has been managing a case management process.

Shortly after the complaint had been made to the Canadian Judicial Council, the Chambers judge released the Scheduling Order . The applicants believed that the

schedule favours the respondents and opted to ask the Chambers judge to recuse himself, rather than follow the Scheduling Order . Ronald Miller, Clayton Barry, McDougall Gauley LLP, Scott Spencer and Robertson Stromberg LLP, the respondents in the Court of Queen’s Bench and in this Court, opposed the application to recuse. [ 3 ] After receiving oral and written submissions, the Chambers judge gave written reasons outlining why he refused to recuse himself. He intimated that an “unusually heavy workload” had made it impossible to give priority to the applicants’ matters.

In the Scheduling Order , he apologized to the parties, saying the delay had been “unavoidable”. Applying the tests from such authorities as Aalbers v Aalbers , 2013 SKCA 64 , 417 Sask R 69 [ Aalbers ], and Bossé v Lavigne , 2015 NBCA 54 , 390 DLR (4th) 77, he determined that he could “adjudicate the applications … in an unbiased fashion” and, in view of the strong presumption of judicial impartiality, he found that “the reasonable person would not believe that I would not or could not abide by my oath of office and fairly decide the matters” ( Recusal Fiat at 5). In

summary, he did not consider that a reasonable person, having considered the matter, would perceive a reasonable apprehension of bias on his part. He ordered that the applicants pay $3,500 in costs. [ 4 ] In their application for leave to appeal to this Court, the applicants took the position that the Recusal Fiat is an interlocutory order, for which s. 8 of The Court of Appeal Act, 2000 , SS 2000, c C-42.1 ., requires leave to appeal.

The respondents, in their written materials, agreed that leave was required and opposed it being granted. [ 5 ] When this matter appeared on the Court of Appeal Chambers list, I asked the parties for their submissions on the following issue: Whether a bare refusal to recuse, as opposed to the appeal of an interlocutory or final decision based on bias or an apprehension of bias, is justiciable? [ 6 ] It is an important point, generally, and specifically so in the context of this litigation, because, according to the evidence filed before the Chambers judge, this is the fourth time one or other of the applicants has sought the recusal of a judge hearing and managing the matters currently dividing the parties.

On the first occasion, after Mr. Ayers had filed a complaint with the Canadian Judicial Council, the judge in question recused himself out of hand, saying, nonetheless, “I consider Mr. Ayers’ complaint to be without merit. I also consider it to demonstrate a “shocking”, for a lawyer, lack of understanding of the role of the judge in a pre-trial settlement conference” (unreported Chambers fiat dated March 12, 2013). [ 7 ] On the second occasion, on an application by Mr.

Ayers, the second case management judge refused to recuse himself and a Chambers judge of this Court granted leave to appeal (oral reasons on July 27, 2016 (CACV 2921)). Following leave to appeal being granted, and before the appeal could be heard, Mr. Adams applied for the recusal of the judge, which would be the third such application. After reviewing and rejecting all of Mr. Adams’s arguments with respect to why he should recuse himself, the judge determined that he could nonetheless no longer keep an open and objective mind, and recused himself, rendering the appeal from the earlier refusal to recuse moot.

In doing so, the Chambers judge made it clear that his decision to recuse was “not based on the representations made by Mr. Adams and supported by Mr. Ayers but rather on their conduct” (unreported Chambers fiat dated November 2, 2016).

[8] In this instance, the parties provided me with supplementary submissions on the preliminary issue for which I am grateful.The applicants maintained their earlier position that the Recusal Fiat is interlocutory, but, if I considered that it is not, the matter shouldbe referred to a panel of this Court along with their application for leave. The respondents asserted that it is not justiciable, providingsubmissions to the effect that the refused recusal decision does not give rise to any order capable of being appealed.

I also asked theparties to outline what is precisely at stake in the remaining Chambers applications so as to permit me to better understand theimportance of the litigation to the parties, if I were to determine that the Recusal Fiat were interlocutory. [9] Reservations about the justiciability of a bare recusal order are given concrete expression by Geoffrey S.

Lester in“Disqualifying Judges for Bias and Reasonable Apprehension of Bias: Some Problems of Practice and Procedure” (2001) 24 Adv Q 326.The author makes the following point: “The decision to continue or to stand down is in no real sense a ‘judgment’. ... [T]here is noexercise of judicial power or adjudication because there is no authoritative and binding decision in a suit between subject and subject orbetween the sovereign and subject” (at 343). [10] Several courts have commented upon the persuasiveness of Mr.

Lester’s observations regarding the justiciability of recusaldecisions, but none have held that they are not appealable: see D.M.M. v T.B.M., 2011 YKCA 8 at paras 2 and 31–42, 311 BCAC 146; orMacPhail v MacKinnon, 2001 PESCAD 20, 203 Nfld & PEIR 355.

Most Canadian courts do not address the appealability issue andeither assume or find recusal decisions to be interlocutory, without any detailed analysis: see, for example, Middelkamp v Fraser ValleyReal Estate Board (1993), (BC CA), 83 BCLR (2d) 257 (CA) [Middelkamp]; R v Curragh Inc. (1995), 1995NSCA 234 , 140 NSR (2d) 177 (CA) at para 13; Samson Indian Band v Canada (1998), 151 FTR 158 (CA); Mitsui & Co.(Point Aconi) Ltd. v Jones Power Co.

Limited, 2001 NSCA 112 at para 1, 202 DLR (4th) 499; Mary and David Goodine Dairy Farm vNew Brunswick (Milk Marketing Board), 2002 NBCA 38 at para 10, 217 DLR (4th) 708; Francis v Canada (Minister of Citizenship andImmigration), 2012 FC 1141 at para 23, 45 Admin LR (5th) 191; Cabana v Newfoundland and Labrador, 2014 NLCA 1, 345 Nfld &PEIR 350 [Cabana #1]; Cabana v Newfoundland and Labrador, 2014 NLCA 34, 356 Nfld & PEIR 103 [Cabana #2]; Carbone vMcMahon, 2017 ABCA 384, 64 Alta LR (6th) 246 [Carbone]; and Morse Shannon LLP v Fancy Barristers P.C., 2017 ONSC 2135 atpara 5. [11] All of the above decisions concern bare refusals to recuse. (Cabana #1 is unique in that the Chambers judge granted leave toappeal the recusal decision, but not the underlying substantive decision.) In some of the other decisions, reservations are expressed aboutthe nature of the decision under appeal.

For example, in Middelkamp, Southin J.A. refers to the recusal decision as a “ruling, if that is theright word for it” (emphasis added, at para 2). Nonetheless, the Court, sitting in a panel of three, granted leave to appeal what they calledan interlocutory decision and dismissed the appeal. [12] The Canadian position is in marked contrast to the Australian approach, which is reflected in Barton v Walker, [1979] 2NSWLR 740 (CA) [Barton].

In Barton, the Court wrote as follows (at 751): But in the end this first question is determined by what was said by the majority in Watson’s [(1976) 136 CLR 248] case (13): It was submitted on behalf of the husband that the wife’s proper remedy was to appeal to the Full Court of the Family Court. As to thatsubmission no more need to be said than that an appeal lies only from a “decree” (s. 94(1)), which means a “decree, judgment or order”(s. 4(1)), and a judge who simply continues to sit after it has been submitted that he is disqualified does not thereby make a “decree”.

Nor does he make an order, I would think, if he announces that he will sit, or gives reasons for deciding to do so. I do not consider that any order was made in the present case from which an appeal can be brought. Regarding what eventual remedy might be available to the appellants, the Court held that a suspicion of bias can be argued as a groundfor appeal from the final judgment (at 758). [13] Barton has been followed in other Australian states: see Stone v Moore, [2015] SASC 46 (Jade) at para 40 [Stone].

From timeto time, reservations have been expressed and practical solutions have been instituted when an applicant seeks to appeal a bare recusalorder: see Barakat v Goritsas, [2012] NSWCA 8 (AustLII) at para 16 [Barakat], where the Chambers judge referred the question ofleave to a division of the Court for resolution on the merits, while, at the same time, granting a stay of the proceedings in the trial court. [14] There is much to commend the Barton approach to the justiciability of a bare recusal decision. When a judge decides tocontinue to sit, there is no “order” as such.

Whether the judge writes on the flyleaf of the file, “I refuse to recuse myself”, or givesdetailed reasons, the result is the same. One can say there is a “decision” within the meaning of s. 2 of The Court of Appeal Act, but it isincapable of being enforced. If the judge renders a later decision that a party does not accept, the allegation of bias or apprehension ofbias is preserved and can form a ground of appeal with respect to the later decision: see Barakat at para 13, Stone at para 42 and Cabana#2 at paras 11 to 17).

It is at that point that an appeal court can consider the impartiality of the judge. [15] Unmoored from a decision that is itself challenged on the basis of bias or apprehension of bias, it is difficult to see a role forthe Court of Appeal that does not interfere with the independence of the judge whose recusal decision is under appeal. As counsel for therespondents submitted, decisions like Arsenault–Cameron v Prince Edward Island, (SCC), [1999] 3 SCR 851, and R vAnderson, 2017 BCCA 154, make it clear that it is for the individual judge to decide whether he or she can judge the parties’ disputeimpartially.

Thus, even in Carbone, where the Alberta Court of Appeal heard an appeal from a bare refusal to recuse, the Court did notperceive itself able to order the judge not to sit, but rather respectfully requested that the Chief Justice immediately assign another judgeto case manage the matter (at para 12). [16] However, in light of what I perceive to be the weight of Canadian authority, including this Court’s earlier Chambers decision,I have concluded that I should resolve the application before me on the basis the parties originally presented it, which is to treat the

Recusal Fiat as an interlocutory order and apply the test from Rothmans, Benson & Hedges Inc. v Saskatchewan, 2002 SKCA 119 atpara 6, 227 Sask R 121 [Rothmans]. While the matter is not without doubt, I perceive the Canadian approach is to treat an appeal from abare recusal as interlocutory, with the nature of the decision being one factor to consider in determining whether leave should be granted. [17] The Rothmans test requires that a Chambers judge must weigh the merits and the importance of any proposed appeal in orderto determine whether leave to appeal an interlocutory decision should be granted.

From time to time, however, it is important to bereminded of the whole of the test, which requires a consideration of sufficient importance and sufficient merit, according to a probingexamination of both: [6] The power to grant leave has been taken to be a discretionary power exercisable upon a set of criteria which, on balance, must beshown by the applicant to weigh decisively in favour of leave being granted: Steier v. University Hospital, (SK CA),[1988] 4 W.W.R. 303 (Sask. C.A., per Tallis J.A. in Chambers).

The governing criteria may be reduced to two – each of which features asubset of considerations – provided it be understood that they constitute conventional considerations rather than fixed rules, that they arecase sensitive, and that their point by point reduction is not exhaustive.

Generally, leave is granted or withheld on considerations of meritand importance, as follows: First: Is the proposed appeal of sufficient merit to warrant the attention of the Court of Appeal? • Is it prima facie frivolous or vexatious? • Is it prima facie destined to fail in any event, having regard to the nature of the issue and the scope of the right of appeal,for instance, or the nature of the adjudicative framework, such as that pertaining to the exercise of discretionary power? • Is it apt to unduly delay the proceedings or be overcome by them and rendered moot? • Is it apt to add unduly or disproportionately to the cost of the proceedings?

Second: Is the proposed appeal of sufficient importance to the proceedings before the court, or to the field of practice or the state of thelaw, or to the administration of justice generally, to warrant determination by the Court of Appeal? • Does the decision bear heavily and potentially prejudicially upon the course or outcome of the particular proceedings? • Does it raise a new or controversial or unusual issue of practice? • Does it raise a new or uncertain or unsettled point of law? • Does it transcend the particular in its implications? (All emphasis in original) [18] In support of their application to the Chambers judge for recusal, Mr.

Ayers and Mr. Adams filed affidavits, setting out whatthey believed to be evidence to support their claim. In the affidavit of Mr. Ayers, he chronicled the delay in detail, and all of his efforts tomove the matter along, culminating with his assertion that, “[s]ince an atmosphere of delay, avoidance and neglect has shrouded thesecase files,” he believed that “neither CPCN [CPC Networks Inc.] nor I would receive a timely and fair hearing”.

He also complainedabout the sequencing of the upcoming hearings, asserting that the Chambers judge “has put the interests of the Defendants ahead of theinterests of CPCN by stating that he will hear the matters in QB1535 ahead of the matters in QB1004”. [19] In addition to the sequence of events stated in their affidavits, the applicants add that the Chambers judge erred by finding thathe could remain impartial, following their complaint to the Canadian Judicial Council. In his affidavit, Mr.

Adams attested that he couldnot see how, “[g]iven the complaint to the CJC [Canadian Judicial Council] made by Larry [Ayers]”, the Chambers judge could beimpartial. [20] After referring to R v Jordan, 2016 SCC 27, [2016] 1 SCR 631, and R v Cody, 2017 SCC 31, [2017] 1 SCR 659, theapplicants cite two decisions where courts have commented upon judicial delay and have granted a new process or entered a stay ofproceedings in response to the delay: R v Rahey, (SCC), [1987] 1 SCR 588 [Rahey], and S.H. v New Brunswick (SocialDevelopment) (2013), 2013 NBCA 35 , 362 DLR (4th) 337 (NBCA) [S.H.].[1] [21] On the basis of this evidence and arguments, the applicants assert primarily that the Chambers judge is biased against themand, alternatively, that a reasonable person would perceive a reasonable apprehension of bias. [22] In support of their motion being granted, the applicants also rely on Carbone, where the Alberta Court of Appeal overturnedthe recusal decision of a case management judge on the basis that the reasons had not disclosed sufficient information to the partiesregarding his professional relationship with the lawyer representing the adverse party. [23] For their part, the respondents oppose the granting of leave on these bases, inter alia: (

a) the application is frivolous and vexatious as it, in essence, is a collateral attack on the Scheduling Order, which is not beforethe Court; further, this is the third time the applicants have sought a judge’s removal from their case, which seems to occur when theapplicants perceive the judge assigned to them may not be favourable to their position; (

b) an appeal from the Recusal Decision is prima facie destined to fail on the basis presented;

(

c) delay has been endemic in this case; (

d) an appeal would add to their costs; (

e) the appeal does not raise a new or controversial issue of practice as the tests are well established as to when a judge shouldrecuse; (

f) there is nothing inherently important in this recusal application that requires examination by the Court; and (

g) if a complaint by each unsatisfied litigant leads to a successful recusal application, the integrity of the case managementsystem is at risk. [24] As I begin the analysis of these arguments, it is important to acknowledge that the proper functioning of the administration ofjustice depends on decision-making by independent and impartial adjudicators. A judge must step aside when the applicant hasdemonstrated bias or a reasonable apprehension of bias (failing a claim of necessity).

That principle is not in issue and requires no furtherexposition. [25] In Aalbers, this Court reviewed the law in determining when a judge should step aside based on a reasonable apprehension ofbias: [75] The test is whether an informed person, viewing the matter realistically and practically – and having thought the matter through –would think that it is more likely than not that the decision-maker, whether consciously or unconsciously, would not decide fairly(Committee for Justice and Liberty [ (SCC), [1978] 1 SCR 369] at p. 394).

The grounds for an apprehension of bias mustbe “substantial” (Committee for Justice and Liberty at p. 395). A real likelihood or probability of bias must be demonstrated; a meresuspicion is not enough (R.D.S. [ (SCC), [1997] 3 SCR 484] at para. 112).

The Supreme Court of Canada has alsoconsistently rejected the notion that the reasonableness of an apprehension of bias depends on the “very sensitive or scrupulousconscience” (Wewaykum, [2003 SCC 45] para. 76). [26] Relying on R v R.D.S., (SCC), [1997] 3 SCR 484 [R.D.S.], the Court in Aalbers confirmed the following (atpara 76): (a) “the threshold for a finding of a reasonable apprehension of bias is high” because “the courts recognize a presumption thatjudges will carry out their oath of office”; and (b) “‘cogent evidence’ is required to displace the presumption that judges will carry out their oath of office”. [27] The Court in Aalbers also referred, with approval, to the minority concurring opinion in R.D.S., where L’Heureux-Dubé andMcLachlin JJ. (as the latter then was) spoke in terms of the “presumption of impartiality”, which requires “clear evidence that the judgein question had improperly used his or her perspective in the decision-making process”, before “concluding that there exists a reasonableapprehension of bias in the conduct of a judge …” (at para 49).

When the appeal is with respect to a stand-alone recusal decision,proving bias or a reasonable apprehension of bias is a particularly difficult hurdle to overcome. [28] Addressing the question of delay first, the applicants have cited no decision in support of the proposition that one can inferbias because a judge has delayed the resolution of a matter. Rahey, of course, is a criminal decision. In S.H., the Court ordered a newtrial, but the context is wholly different. S.H. concerned a child protection case. The delay arose both before the trial and after and thejudge took over a year to render his decision.

In the interim, he declined to accept fresh evidence that could have affected his decision toplace the children into care. It is also noteworthy that the governing legislation in that case mandated a resolution in 30 days. Similarly, Ido not find Carbone supports the applicants’ position. Delay was present in that case too, but none of the judges referred to that aspect ofthe matter in allowing the appeal.

I acknowledge that the applicants, in their written submissions, also submit “[t]he effect thatunexplained unacceptable judicial delay has on civil proceedings is a vague area of law in Saskatchewan” (at para 43) and “[w]hethersection 7 of the Charter applies to the federal court system and a person’s civil right to fair process is also misunderstood” (at para 44).Beyond these statements, the applicants offer no authority to support the proposition that a judge’s decision refusing to recuse can be setaside on the basis of a reasonable apprehension of bias arising from delay only. [29] In this case, the Chambers judge, who has also been the case management judge for all of the upcoming files, responded witha

schedule by which he planned to hear all of the upcoming matters at two-week intervals. Thus, after making reference to the specialcircumstance of an unusually heavy workload (with Queen’s Bench judge appointments lagging behind legislated numbers), he plannedto address the parties’ concerns by turning to their matters immediately. If the applicants had not applied to have the Chambers judgerecuse himself, their matters would have already been heard. [30] But, delay does not seem to have been at the heart of the request for the Chambers judge to recuse.

Indeed, the Chambersjudge in his Recusal Fiat determined that the applicants’ real complaint was not about delay but was all about the sequencing of thehearing of the matters before him (at 3–4): The ground argued most vigorously by Mr. Ayers and Mr. Adams is that my May 23, 2018, fiat, in which I set out the order in which theapplications would be heard, prejudices their ability to prevail in those applications. Mr. Ayers posited that he had two choices afterreceiving my fiat – appeal or bring a recusal application.

He said that he did not think the Court of Appeal would favourably entertain anappeal in respect to scheduling so he brought an application asking that I recuse myself. Mr. Ridgeway’s argument followed similar lineswith a further twist. The defendants are members of large law firms and, he asserts, my fiat favours them. Thus, he says, there is areasonable apprehension that I am biased in favour of large law firms. That the applicants take the position that my fiat was wrong is not a ground for recusal. It can be a ground for an appeal. They chose notto appeal.

A recusal application is not an alternate means of dealing with a decision that is not to a party’s liking. It constitutes an abuseof process. Nor, noting that my fiat did not establish the

schedule for hearing the applications that was promoted by the lawyers and law

firms, the reasonable person would not believe that I am biased in favour of them. These grounds are without merit. (Emphasis added) [ 31 ] On my reading of the materials, the Chambers judge’s assessment of the applicants’ real issue accords with my own.

Indeed, in this Court, while the applicants stress the delay, it is their concern about the Scheduling Order that is the motivator, as evidenced in their written submissions to this Court: “This resequencing of the hearings prejudices the plaintiff in QBG 1535 because it is absolutely necessary for it to have all of its documents (requested in QBG 1004) to fairly represent itself in the QBG 1535 motion” (respondents’ brief of law at para 16).

The genesis of the recusal application, and this application for leave to appeal the refusal, is one and the same: the applicants are dissatisfied with the Scheduling Order and the applicants’ concern about delay is merely a means to attack the Scheduling Order. [ 32 ] That brings us to the heart of the problem that the applicants must address: they allege “bias or prejudice” stemming from the Scheduling Order as a basis of an appeal from the Recusal Decision .

The implication of their appeal is that, if they are successful in this application, and in the resulting appeal, they hope the Chief Justice of the Court of Queen’s Bench will assign yet another judge who will provide a different sequence of hearings. To my mind, this is a collateral attack on another order that is not before the Court – which is a principle that applies whether or not the Scheduling Order is appealable.

In that regard, this appeal is very similar to Middelkamp where the applicants for recusal alleged bias stemming from an evidentiary ruling, which would not be appealable and had not been appealed. Justice Southin referred to the appeal of the recusal decision as a “collateral attack”, which would not be permitted (at para 8). [ 33 ] But, even if I disregard this aspect of the respondents’ arguments regarding a collateral attack, the only evidence that the applicants have put forward to demonstrate their claim to bias in relation to the Scheduling Order is the fact of the sequence of the hearings alone.

The applicants submit that the sequence favours the respondents, but on what basis can bias or an apprehension of bias be inferred because a decision – let alone a scheduling decision – favours one party over the other? Even on the most robust test for bias (or apprehension of bias), the applicants’ allegations rise to the level of suspicion only and in that regard are prima facie destined to fail. [ 34 ] I also observe that the Chambers judge considered whether a reasonable person would think he could not be impartial because a complaint had been made to the Canadian Judicial Council.

In that regard, he wrote the following ( Recusal Fiat at 5): The applicants argue that the existence of Mr. Ayers’ unresolved complaint to the CJC is reason enough [to] ground an apprehension that I will not adjudicate the outstanding applications impartially. A complaint to the CJC is not a trifling matter. That there is a complaint, however, is not reason in and of itself to justify recusal. If it was, any litigant could simply lodge complaints against assigned judges until [one was found that] was predisposed to [the litigant’s] position. At this point, Mr.

Ayers’ complaint to the CJC is just that – a complaint. Many litigants who have not gotten what they wanted in an interim application voice their dissatisfaction in an unrestrained fashion before a final decision is rendered. Still, judges are able to adjudicate their disputes in a fair and impartial manner. Having broad shoulders goes with the territory.

In view of the strong presumption of judicial impartiality, I find that the reasonable person would not believe that I would not or could not abide by my oath of office and fairly decide the matters placed before me. [ 35 ] The logic of the Chambers judge’s reasons is unassailable. A complaint to the Canadian Judicial Council cannot result in an automatic and successful recusal application.

It is for the judge to determine, based on a review of all of the relevant evidence, and applying the applicable jurisprudence, whether he or she can continue to judge impartially notwithstanding the complaint to the Canadian Judicial Council. [ 36 ] Thus, on the first limb of the Rothmans test, I conclude that the appeal is frivolous, if not vexatious, and prima facie destined to fail in any event. [ 37 ] On the second limb of the Rothmans test, and having regard for the supplementary material that the applicants have filed on this application, I understand the dispute is significant, but importance to a party is only one aspect of the test.

Given my conclusion regarding merit, I do not see any basis upon which importance can carry much weight.

The proposed appeal is also not of sufficient importance to the field of practice or to the state of the law or to the administration of justice, generally, to warrant determination by the Court of Appeal. [ 38 ] As a matter of law, the applicants’ right of appeal on the basis of bias or an apprehension of bias survives my decision refusing leave in the event that either party is dissatisfied with a future decision of the Chambers judge and if either party remains of the view that the particular decision can be impugned on that basis. [ 39 ] Thus, I have concluded that the application for leave to appeal must be dismissed with costs in the usual way.

Jackson J.A.