Apprehension of Bias

Robinson v Lepage, 2015 ONSC 3128 (CanLII)

[19] The test for ascertaining whether there is a reasonable apprehension of bias was set out by the Supreme Court of Canada in Committee for Justice v. The National Energy Board, 1976 CanLII 2 (SCC), [1978] 1 S.C.R. 369] :

…the apprehension of bias must be a reasonable one, held by reasonable and right minded persons, applying themselves to the question and obtaining thereon the required information…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 likely than not the Decision maker, whether consciously or unconsciously, would not decide fairly.

[20] Whether Deputy Judge Gilbert was aware of the ethical guidelines of the CJC is not material. He had received a financial donation from the paralegal company representing the Respondent along with a personal message from the paralegal, herself.

[21] When the Appellant learned of Deputy Judge Gilbert’s relationship with Phoenix Paralegal & Advocacy and the Respondent’s representative, Tami Cogan, after receiving the decision of the court, he could not but think that he did not receive a fair trial and that the judge was biased in favour of the Respondent (Plaintiff). Any informed person, viewing the matter realistically and practically would arrive at the same conclusion.

[22] Deputy Judge Gilbert should have recused himself on his own volition under the circumstances.

[23] All of this information should have been disclosed by Deputy Judge Gilbert to the Appellant before the commencement of the trial and it was not. Failure to make disclosure denied the Appellant the opportunity to ask for an adjournment or to request that the judge recuse himself.

[24] It is my finding that the Appellant has established that Deputy Judge Gilbert demonstrated a reasonable apprehension of bias. Consequently, there is no reason to address the other grounds of appeal.

[25] The appeal is allowed. The decision of Deputy Judge Gilbert is set aside. The registrar of the Small Claims Court is directed to schedule a new trial date.