



COURT OF APPEAL FOR ONTARIO

CITATION:
Langstaff v. Marson, 2014 ONCA 510

DATE: 20140702

DOCKET: C56643

MacPherson, Watt and Benotto JJ.A.

BETWEEN

Scott Langstaff

Plaintiff (Respondent)

and

Robert Terry Marson and the
Hastings and Prince
    Edward District School Board

Defendants (Appellant)

Donald Rogers and David Rogers, counsel for the
    appellant

R. Steven Baldwin, counsel for the respondent

Heard: May 21, 2014

On appeal from the judgment of Justice Wolfram
    Tausendfreund of the Superior Court of Justice, sitting with a jury, dated January
    25, 2013.

Benotto J.A.:

A.

Introduction

[1]

The appellant seeks to admit fresh evidence which, it is submitted,
    would disclose a reasonable apprehension of bias on the part of the trial
    judge. The appellant asks that the judgment and jury verdict be set aside and
    that a new trial be ordered. In the alternative, the appellant asks that the
    quantum of damages be varied.

[2]

For the reasons that follow, I would admit the fresh evidence, allow the
    appeal and order a new trial.

B.

FACTS

(1)

The Respondents Action

[3]

The respondent brought an action for damages for the sexual abuse he
    suffered at the hands of his grade seven and eight science teacher in 1976 and
    1977. The teacher, Robert Terry Marson, was employed by the Hastings and Prince
    Edward District School Board (the appellant). The respondent named both Mr. Marson
    and the appellant as defendants. Mr. Marson did not defend the action.

[4]

Mr. Marson operated a mini-zoo in his classroom at Harry J. Clarke
    School in Belleville, Ontario. The zoo consisted of a number of small animals housed
    in cages. Mr. Marson used the zoo as a way to lure and groom young boys so that
    he could sexually abuse them.

[5]

The respondent was one of those boys.  It is not in dispute that Mr.
    Marson abused the respondent by fondling him, performing oral sex on him and,
    on one occasion, sodomizing him. The respondent told no one until 2006 when he
    disclosed the abuse to his wife. Thereafter, he went to the police and Mr.
    Marson was charged and convicted of sexual assault. The respondent brought this
    action in 2008 for damages against Mr. Marson and the appellant. It was tried
    by a judge and jury in January 2013.

[6]

The appellant did not deny the assault or that the respondent had
    suffered damages. The issues at trial involved the quantum of damages and
    whether the appellant had been directly negligent or was vicariously liable for
    the acts of Mr. Marson.

[7]

The jury found that the appellant had been negligent. In a separate
    ruling, the trial judge found the appellant vicariously liable for the
    teachers acts of abuse. The jury awarded general, special and punitive
    damages.

(2)

The Mead Action

[8]

The respondent was not the only former student to bring an action
    against the appellant and Mr. Marson for sexual abuse. Kent Mead was a student
    of Mr. Marsons around the same time as was the respondent, and he also brought
    an action for damages. The Mead action was proceeding through the courts and was
    to be heard after the respondents action.

[9]

The Mead action was extraordinarily similar to the respondents action.
    It involved almost identical factual claims: the same teacher; the same school;
    the same mini-zoo; the same mode of luring and grooming in connection with the
    zoo; and a time frame that overlapped with that of the respondents
    allegations. The legal issues were also the same: Mead sought damages for negligence
    on the part of the appellant school board both directly and by way of vicarious
    liability.

[10]

P.
    Diane McDowell was counsel for the appellant in both the respondents action
    and the Mead action.

[11]

On
    May 31, 2012, Ms. McDowell attended a pre-trial in the Mead action. The
    pre-trial judge expressed his view on the key issues in the case, namely the
    liability of the appellant for Mr. Marsons actions and the quantum of damages.
    The pre-trial judge opined that there would be vicarious liability on the part
    of the appellant because of the zoo in the classroom, which provided the opportunity
    for Mr. Marson to abuse the student.

[12]

During
    the course of the pre-trial, the judge realized that he knew both the plaintiff
    and his family and had an association with them. Because of this, it was agreed
    that the pre-trial would not proceed any further.

(3)

Change of Counsel

[13]

Four
    months later, in October 2012, Ms. McDowell retired from the practice of law.
    She transferred ten or twelve files, including the respondents action and the
    Mead action, to S. Wayne Morris.

[14]

The
    files arrived in Mr. Morriss office from late October until the third week of
    November. A trial date for the respondents action had been set for January 7,
    2013. Mr. Morris was under time constraints to have the matter ready for trial
    immediately after the Christmas season. As a result, he focused on preparing
    the respondents action for trial. He did nothing with the Mead case other than
    formally opening the file on a computer system.

(4)

The Respondents Trial Begins

[15]

Jury
    selection began in the respondents trial on January 7, 2013. After the jury
    had been selected, Beth Olave, an adjuster with the appellants insurer,
    mentioned to Mr. Morris that she recognized the trial judge as the pre-trial judge
    in the Mead action and that the pre-trial had been discontinued. She did not
    say why the pre-trial was discontinued. Mr. Morris remembers the conversation
    as one in which Ms. Olave was making an observation that she recognized the
    trial judge.

[16]

Mr.
    Morris had no concerns about the trial judges involvement in another matter because
    he had faith that any issue involving a conflict would have been disclosed to
    counsel prior to trial at the trial management conference.

[17]

At
    the time, Mr. Morris was unaware of the similarities between the respondents
    action and the Mead action. He was also unaware of the trial judges
    association with the Mead family. He did not realize that the trial judge had
    conducted the Mead pre-trial, rendered an opinion and discontinued because of
    his association with the plaintiff and his family.

[18]

The
    respondents trial proceeded. On January 24, 2013, the jury rendered a verdict
    against the appellant.

(5)

The Fresh Evidence

[19]

In
    April 2013, Mr. Morris was preparing the Mead case for discovery. It was only
    then that Mr. Morris became aware that the trial judge in the respondents
    trial had rendered an opinion on the same issues while sitting as the pre-trial
    judge in an identical case where he knew that plaintiff and his family
    sufficiently well to disqualify himself. He testified that, had he known this
    prior to the respondents trial, he would have asked the trial judge to recuse
    himself.

C.

ISSUES

[20]

The
    issues to be addressed are:

1.       Is the fresh evidence admissible?

2.       Does the evidence disclose a reasonable apprehension
    of bias?

D.

ANALYSIS

(1)

Is the Fresh Evidence Admissible?

[21]

The
    principles governing the admissibility of fresh evidence on appeal are outlined
    in
R. v. Palmer
, [1980] 1 S.C.R. 759. The
Palmer
test
    requires the applicant to satisfy four criteria: (i) the evidence could not,
    through the exercise of due diligence, have been adduced at trial; (ii) the
    evidence must be relevant in that it bears on a decisive or potentially
    decisive issue; (iii) the evidence must be reasonably capable of belief; and
    (iv) the evidence must be such that, if believed, it may have affected the
    result at trial.

[22]

When
    the proposed fresh evidence raises issues connected to the validity of the
    process itself, different considerations apply. In
R. v. W.W and I.W.
(1995),
25 O.R. (3d) 161 (Ont. C.A.),
    Doherty J.A. said at para 18:

The
Palmer
criteria do not, however, apply to all
    situations where fresh evidence is offered on appeal. Those criteria reflect
    the balancing of competing considerations relevant to the interests of justice
    when fresh evidence is offered to attack a determination made at trial. The
    same criteria cannot necessarily be applied where, as here, the fresh evidence
    is offered for a different purpose. The material sought to be admitted here is
    not directed at a finding made at trial, but instead challenges the very
    validity of the trial process. The nature of this material and the purpose for
    which it is offered places it outside the
Palmer
paradigm:
R. v.
    McKellar
(1994), 34 C.R. (4th) 28 at p. 31 (Ont. C.A.);
R. v. Vottero
(12 June 1992), (Ont. C.A.) [unreported].

[23]

The
    fresh evidence sought to be introduced here deals with subsequently discovered
    facts that are directly related to the validity of the trial process. I would
    admit the fresh evidence.

(2)

Does the Evidence Disclose a Reasonable Apprehension of Bias?

(a)

The Applicable Law

[24]

There
    is a strong presumption of judicial impartiality and a heavy burden on a party
    who seeks to rebut this presumption.

[25]

Judicial
    impartiality has been called the key to our judicial process: see
Wewaykum
    Indian Band v. Canada,
[2003] 2 S.C.R.
    259
, at p. 288. Chief Justice Lamer referred to public confidence
    in the impartiality of the judiciary as essential to the effectiveness of the
    court system: see
R. v. Campbell,
[1997] 3 S.C.R. 3, at para 10. The
    presumption of impartiality anchors public confidence in the integrity of the
    administration of justice.

[26]

An
    allegation of bias engages the very foundation of our judicial system. It calls
    into question not simply the personal integrity of the judge, but the integrity
    of the entire administration of justice.

[27]

In
    order to rebut the presumption of impartiality, a test has been developed by
    the Supreme Court of Canada. It was first articulated by de Grandpré J. in his
    dissenting reasons in
Committee for Justice and Liberty v. National Energy
    Board
, [1978] 1 S.C.R. 369, at p. 394:

[T]he 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.  [T]hat 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 that [the judge], whether consciously or unconsciously, would
    not decide fairly."

[28]

The
    Supreme Court has repeatedly endorsed this test. In his reasons in
R. v. S.
    (R. D.)
, [1997] 3 S.C.R. 484, Cory J. explained, at para. 111, that the
    test set down by de Grandpré J. contains a two-fold objective element: not
    only must the person considering the alleged bias be reasonable, but the
    apprehension of bias itself must also be reasonable in the circumstances of the
    case.  Cory J. added, at para. 113, that:

[T]he threshold for a finding of real or perceived bias is
    high. It is a finding that must be carefully considered since it calls into
    question an element of judicial integrity. Indeed an allegation of reasonable
    apprehension of bias calls into question not simply the personal integrity of
    the judge, but the integrity of the entire administration of justice.

[29]

This
    two-fold objective element is based on reasonableness: the person considering
    the alleged bias must be reasonable and the apprehension of bias itself must
    also be reasonable. The reasonable person must be informed and know the
    relevant circumstances, including the traditions of integrity and impartiality
    on which the judicial system is based. A mere suspicion is not enough.

[30]

The
    determination is also fact-specific. In
Wewaykum,
the Supreme Court held
, at para. 77:

[T]his is an inquiry that remains highly fact-specific. In
Man
    OWar Station Ltd. v. Auckland City Council (Judgment No. 1)
, [2002] 3
    N.Z.L.R. 577, [2002] UKPC 28, at par. 11, Lord Steyn stated that This is a
    corner of the law in which the context, and the particular circumstances, are
    of supreme importance.  As a result, it cannot be addressed through peremptory
    rulesthere are no textbook instances.  Whether the facts, as established,
    point to financial or personal interest of the decision-maker;  present or past
    link with a party, counsel or judge; earlier participation or knowledge of the
    litigation; or expression of views and activities, they must be addressed
    carefully in light of the entire context.  There are no shortcuts.

[31]

This
    stringent test for a party alleging apprehension of bias is grounded in the
    need to preserve the integrity of the judicial system. It also recognizes the
    need to maintain the public confidence in the judicial system. The analysis
    contemplates a hypothetical observer who is informed of all the facts. It does
    not depend upon the views or conclusions of the litigant.

[32]

It
    has also been held that, in order to maintain public confidence in the
    administration of justice, the appearance of judicial impartiality is as
    important as the reality. In
Metropolitan Properties Co. (F.G.C.) Ltd. v.
    Lannon
, [1968] 3 All E.R. 304 (C.A.), at p. 310, Lord Denning M.R.
    stressed the importance of the appearance of judicial impartiality. He said:

[I]n considering whether there was a real likelihood of bias,
    the court does not look at the mind of the justice himself.... It does not look
    to see if there was a real likelihood that he would, or did, in fact favour one
    side at the expense of the other. The court looks at the impression which would
    be given to other people. Even if he was as impartial as could be,
    nevertheless, if right-minded persons would think that, in the circumstances,
    there was a real likelihood of bias on his part, then he should not sit. And if
    he does sit, his decision cannot stand.

[33]

This
    passage was cited with approval by Major J. in his dissenting reasons in
S.(R.
    D.),
at para. 11, and by this court in
Benedict v. Ontario
(2000),
    51 O.R. (3d) 147 (C.A.). In
Benedict
, the court added, at para. 20:

We note that while Lord Denning M.R. spoke in terms of a real
    likelihood rather than a reasonable apprehension, in
National Energy
    Board
de Grandpré J. took care to state that such variations in the
    expression used should not generally be treated as involving any substantive
    difference in the approach to be taken.  Reasonable apprehension, real
    likelihood, reasonable likelihood and reasonable suspicion amount to the
    same standard.

This reasoning accords with the decision of Lord Nolan
    in
R. v. Bow Street Metropolitan Stipendiary Magistrate et al.
, [1999]
    1 All E.R. 577 (H.L.), at p. 592:

[I]n any case where the impartiality of the judge is in
    question, the appearance of the matter is just as important as the reality.

The appearance of impartiality was emphasized in
Weywakum,
at para. 66:

[W]here disqualification is argued, the relevant inquiry is not
    whether there was
in fact
either conscious or unconscious bias on the
    part of the judge, but whether a reasonable person properly informed would apprehend
    that there was.

(b)

Application to the Facts

[34]

The
    facts and the sequence of events here are unique. The trial judge gave an
    opinion on a key issue of liability during a pre-trial in a related matter.  He
    withdrew from that pre-trial because he had an association with the plaintiff
    and his family. He then conducted a trial in a mirror-image matter and rendered
    a decision on the same key issue of liability. This decision, consistent with
    his earlier opinion, was favourable to the parties with whom he had an
    association. The trial judge felt sufficiently compromised by his association
    with the Mead family that he recused himself during a pre-trial when no binding
    decision would be rendered. He then rendered a decision, consistent with his
    opinion at the pre-trial, which favoured the family that he was associated with.

[35]

The
    respondent relies on Rule 50 of the
Rules of Civil Procedure
, R.R.O.
    1990, reg. 194 for the proposition that a pre-trial judge is not precluded from
    conducting the trial. Rule 50 was amended in January 2012 to expand the case
    management powers of the pre-trial judge and to remove the blanket prohibition
    against the pre-trial judge presiding at trial provided that all parties
    consent in writing. Rule 50 does not preclude a pre-trial judge from presiding
    at the trial of a related matter. Thus, there was no procedural impediment to
    the pre-trial judge in Mead presiding at the Respondents trial. While I accept
    this proposition, it ignores the issue. The issue here arises not because the
    trial judge presided at the pre-trial of a related action but rather as a
    result of a unique combination of events. Those events are: the pre-trial
    judges opinion on the matter; his association with a party; and his decision
    in an identical matter which might reasonably assist the party he had an
    association with.

[36]

The
    respondent further submits that the appellants counsel should have objected to
    the participation of the trial judge immediately after jury selection when he
    had been told about the trial judges participation in the Mead pre-trial. The
    appellant submits that his failure to immediately object disentitles him from
    raising the issue on appeal.

[37]

I
    do not accept this submission. There is a presumption of impartiality on the
    part of the judiciary and counsel was entitled to assume impartiality. Counsel testified
    that it did not occur to him that there was anything to object to. He was not
    aware of the facts which are now relied upon, in particular, he did not know of
    the opinions given by the trial judge in an identical matter from which he
    recused himself as a result of his association with the Meads. The facts he
    knew at the opening of trial would not support the serious allegation questioning
    the impartiality of the trial judge.

[38]

A
    voluntary and informed decision must be made whether to advance a bias claim
    before a party can be said to waive the right to do so: see
Canadian
    College of Business and Computers Inc. v. Ontario (Private Career Colleges Act,

Superintendent)
, 2010 ONCA 856, 272 O.A.C. 177, at para 51.

[39]

Consistent
    with the presumption of impartiality is the fact that there can be no duty to
    investigate possible grounds of bias if there is no reason to believe they
    exist: see G.S. Lester, Bias: How and When to Raise the Objection (1997) 3
    A.A.P. 49, at p. 50.

[40]

There
    is a high threshold required to rebut the presumption of impartiality.  There
    is also an imperative on the part of the administration of justice to uphold
    the appearance of impartiality.

[41]

The
    hypothetical reasonable person would be informed of the trial judges pre-trial
    opinion, his association with the plaintiffs, the discontinued pre-trial and
    the subsequent trial decision. In my view, this person viewing the matter
    realistically and practically would conclude that there was an apprehension of
    bias.

E.

DISPOSITION

[42]

I
    would allow the appeal and order a new trial, with costs payable to the appellant
    in the amount of $40,000 inclusive of disbursements and applicable taxes.

M.L. Benotto J.A.

I agree J.C. MacPherson
    J.A.

I agree David Watt
    J.A.

Released: July 02, 2014


