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JUDGES - Disqualification or removal of - Bias, reasonable apprehension of

Tuesday, February 19, 2019 @ 9:06 AM  


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Application by Ayers, Adams and CPC Networks for leave to appeal a decision by a chambers judge of the Court of Queen's Bench refusing recusal. Following a complaint to the Canadian Judicial Council alleging inordinate delay in the case management process, the chambers judge scheduled the sequence for hearing a series of substantive applications. The applicants regarded the scheduling order as unfavourable. Rather than following or appealing the order, the applicants requested that the judge recuse himself based on bias or prejudice. The chambers judge refused, finding that he could adjudicate the forthcoming applications in an unbiased and impartial fashion. The judge found that no reasonable apprehension of bias arose from the surrounding circumstances. The applicants sought leave to appeal, reiterating their assertion of bias or a reasonable apprehension of bias, and contending that the reasons refusing recusal were inadequate.

HELD: Application dismissed. The weight of Canadian authority favoured resolving the application on the basis that the bare recusal was an interlocutory order that required leave to appeal, with the nature of the decision being one factor to consider in whether leave should be granted. There was no authority for the proposition that bias could be inferred from the chambers judge's delay in resolving the scheduling matter. In any event, the applicants' complaint centred on the sequencing of the forthcoming applications. The appeal from the recusal decision was effectively a collateral attack on the scheduling order. Even on the most robust test for bias, it was not apparent how the sequence of the upcoming hearings favoured the respondents. The applicants' complaint to the Canadian Judicial Council could not result in an automatic and successful recusal application. The appeal was frivolous, if not vexatious, and was destined to fail in any event. The proposed appeal was 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.

Ayers v. Miller, [2019] S.J. No. 2, Saskatchewan Court of Appeal, G.R. Jackson J.A., January 3, 2019. Digest No. TLD-February182019002