



COURT OF APPEAL FOR ONTARIO

CITATION: Health
    Genetic Centre Corp. (Health Genetic Center) v. New Scientist Magazine, 2019
    ONCA 977

DATE: 20191212

DOCKET: C66385

Juriansz, Pepall and Miller JJ.A.

BETWEEN

Health Genetic Center Corp. o/a Health
    Genetic Center and Yuri Melekhovets a.k.a. Iouri Melekhovets

Plaintiffs (Appellants)

and

New Scientist Magazine,
Peter Aldhous, and Reed Business Information Ltd.

Defendants (Respondents)

Gil Zvulony, for the appellants

Sandra Barton and Erin Farrell, for the
    respondents

Heard: December 5, 2019

On appeal from the judgment of Justice Thomas
    R. Lederer of the Superior Court of Justice, dated December 7, 2018, with
    reasons reported at 2018 ONSC 7224.

REASONS FOR DECISION


A.

Introduction

[1]

Dr. Melekhovets began selling a prenatal
    paternity test to the public in 2001. Unlike other paternity tests that obtain the
    DNA of the fetus from the womb, the appellants test was non-invasive in that
    it purported to extract the DNA of the fetus from a sample of the mothers
    blood.

[2]

Dr. Melekhovets claimed that he and his
    corporation were defamed by the publication of an article in New Scientist
    magazine in December 2010. The article was the product of an 18-month
    investigation by the respondents. It criticized Dr. Melekhovets and the test
    for yielding unreliable results.

[3]

At the 14-day trial, the respondents led
    evidence that Dr. Melekhovets lacked the expertise to develop the test. They
    alleged that Dr. Melekhovets did not validate the test before putting it on the
    market, that the test ran on flawed methodology, and that the test reported
    incorrect results to several customers who used it to determine the paternity
    of an unborn child. The trial judge rejected Dr. Melekhovets unsupported
    assertions that the test was scientifically sound and that the respondents were
    motivated by malice. He concluded that the respondents had established the
    defences of justification, fair comment, responsible communication, and
    qualified privilege and dismissed the appellants action.

[4]

Dr. Melekhovets and his corporation appeal the
    trial decision. They also seek leave to appeal the trial judges costs award of
    $1,478,766.64: 2019 ONSC 575, at para. 17.

B.

Appeal Proceedings

[5]

The appellants first filed a notice of appeal on
    January 3, 2019, alleging in excess of 25 legal and factual errors in the trial
    judgment. The notice was filed by Dr. Melekhovets trial counsel.

[6]

The trial judge rendered his costs award on
    January 22, 2019. The appellants filed a supplementary notice of appeal on January
    29, 2019, seeking leave to appeal the costs award and alleging errors in that
    award. This supplementary notice of appeal was also filed by trial counsel.

[7]

The appellants retained new counsel and filed another
    supplementary notice of appeal on May 27, 2019. This third notice of appeal
    withdrew all the substantive grounds of appeal in the initial notice and set
    out a single ground of appeal, namely that the appellants did not receive a
    fair trial because the trial judges conduct of the trial and his reasons for
    decision gave rise to a reasonable apprehension of bias.

[8]

On appeal, the respondents sought to introduce
    fresh evidence in the form of an affidavit by a lawyer who attended most of the
    trial hearings when she was an articling student. We ruled that a significant
    part of the tendered fresh evidence was inadmissible because it related to the
    appellants conduct after the trial. We regarded other parts of the tendered
    fresh evidence to be unnecessary as they related to matters evident from the trial
    transcripts and the correspondence already within the appeal materials.

C.

Analysis

[9]

The appellants recognize that they bear the onus
    of establishing that an informed person viewing the matter realistically and
    practically  and having thought the matter through  would conclude that it
    was more likely than not that the trial judge, whether consciously or
    unconsciously, would not decide fairly:
Stuart Budd & Sons Limited v.
    IFS Vehicle Distributors ULC
, 2016 ONCA 60, 129 O.R. (3d) 37, at para. 47.

[10]

The appellants also recognize that their burden is
    a heavy one, as the strong presumption of judicial impartiality is not easily
    displaced:
Stuart Budd
, at para. 48.

[11]

We raise one additional principle. An apprehension
    of bias should be raised as soon as it is reasonably possible to do so:
R.
    v. Curragh Inc
., [1997] 1 S.C.R. 537, at para. 11. This principle protects
    the integrity of the courts authority:
Curragh Inc.
, at para. 11. It
    also ensures a full record, and prevents counsel from keeping allegations of
    bias in reserve and deploying them tactically upon receipt of an unfavourable
    decision. Furthermore, as Donald J.A. of the Court of Appeal for British Columbia
    has observed, the genuineness of the apprehension becomes suspect when it is
    not acted on right away:
Eckervogt v. British Columbia
, 2004 BCCA 398, 30
    B.C.L.R. (4th) 291, at para. 48.

[12]

In their written materials, the appellants rely
    on numerous instances of alleged bias in the trial judges conduct of the
    hearing and his interaction with counsel. Each of these instances, considered
    on its own, seems petty in an appeal alleging bias. However, the appellants assert
    that the cumulative effect of each instance must be considered in light of the
    trial judges decision and reasons. In oral argument, the appellants counsel
    expressly conceded that the cumulative effect of the trial judges conduct
    during the trial itself would be insufficient to establish a reasonable
    apprehension of bias.

[13]

The appellants likened their position to that of
    the appellants in
Stuart Budd
, the main authority on which they relied. In
    that case, the appellants raised the reasonable apprehension of bias argument for
    the first time on appeal, and this court concluded that the motion judges comments
    and conduct during the hearing, considered together with his reasons for
    decision, gave rise to a reasonable apprehension of bias. We accept that where
    a judges decision and reasons are necessary to support an apprehension of bias,
    the appeal may be the earliest occasion on which the ground could reasonably be
    asserted.

[14]

In this case, the appellants did not raise the bias
    allegation immediately upon appealing, but only in their third notice of appeal.
    We observe that the first two notices of appeal, which were filed by trial
    counsel, raised no issue of bias. While the test is an objective one, the
    appellants have filed no evidence that either they or their counsel, who were
    present at trial and observed the trial judges conduct in person, held a
    subjective apprehension of bias.

[15]

It is also telling that the appellants withdrew
    all the substantive grounds of appeal they first put forward. Thus, they seek
    to assert their position on appeal that the trial judges findings are tainted
    by bias while avoiding a review of the evidence on which those findings are
    based. It seems to us there is good reason to regard the ground of reasonable
    apprehension of bias advanced by the appellants as tactical in nature.

[16]

Given the appellants concession that the trial
    judges decision and reasons are necessary to ground the reasonable apprehension
    of bias argument, we find it unnecessary to discuss each of the alleged
    instances of bias at the trial, which the appellants itemized meticulously in
    their pleadings. We focus on the instances that the appellants addressed in
    oral argument.

[17]

One instance involved the trial judges acceptance
    of cough drops from the respondents counsel, which the appellants allege prompted
    him to show her extra courtesy the next day of trial. The appellants counsel placed
    great emphasis on the cough drops. In fact, he advanced the alternative
    argument that the trial judges acceptance of the cough drops, which he
    described as a gratuity, was on its own sufficient to establish a reasonable
    apprehension of bias.

[18]

We first dispose of the alternative argument. It
    is clear from the transcript that the trial judge was not well on the day respondents
    counsel gave him cough drops. The trial judge was too sick to attend the hearing
    the next day. When he returned the following day, he apologized for having
    cancelled court on little notice to the parties. The appellants counsel would
    not agree that the trial judges acceptance of cough drops from counsel was
    inconsequential. However, he did accept that it would be inconsequential for a
    trial judge to accept a tissue from counsel. We fail to see any meaningful
    distinction between cough drops and a tissue. We have no hesitation in
    concluding that any apprehension of bias flowing from the acceptance of the
    cough drops is unreasonable.

[19]

The only other instance addressed in oral
    argument was the trial judges comment that the appellants trial counsel was
    too young to know the usual practice with respect to sealing orders. The
    transcript makes clear that the trial judge was considering the breadth of the proposed
    sealing order and wished to see case law. The appellants trial counsel
    proceeded to address the usual practice, to which the trial judge responded
    that counsel was too young to know the usual practice, adding that he made the
    comment to lighten the load. The trial judge then commented positively on
    counsels description of the practice. While it would have been preferable for the
    trial judge to have avoided any reference to counsels age, this exchange does
    not contribute to the allegation of reasonable apprehension of bias.

[20]

All the instances on which the appellants rely must
    be considered in the context of the trial judges manner of dealing with all
    counsel throughout the trial:
Stuart Budd
, at para. 49. In a trial of
    any length, it is all too easy to cherry-pick individual off-hand remarks by the
    trial judge. For example, the appellants took us to pp. 3175-76 of the
    transcripts, which cover a brief exchange occurring at the start of the 14
th
day of the hearing, to support his argument that the trial judge displayed
    extra courtesy to the respondents counsel at the next hearing day after he
    accepted her cough drops. We observe that immediately following the passage on
    which that argument rests, the trial judge showed a special courtesy to
    appellants counsel, Mr. Donald, by conveying to him a personal salutation from
    a justice of the Federal Court of Appeal.

[21]

This was a trial in which the issues were
    exceedingly technical and hotly contested. The trial judge and the parties were
    under strain to complete the evidence, which included testimony from several expert
    witnesses, in the allotted time. The court sat during extended hours on several
    occasions. The trial judges comments to counsel during the trial may have been
    informal, sometimes unnecessary, and occasionally inadvisable (such as his
    comment on counsels youth). However, considered cumulatively and in full
    context, we are not persuaded that his comments are evidence of partiality or differential
    treatment toward the respondents counsel.

[22]

It remains to consider whether the trial judges
    reasons cast a different light on his conduct of the trial. The appellants
    counsel complains that the trial judge, in his reasons, was far more critical of
    Dr. Melekhovets than was the original magazine article. He offers no authority for
    the proposition that the trial judge fell into legal error by drawing harsh
    conclusions from the voluminous record before him.

[23]

The appellants do not attack the trial judges findings
    that the defences of fair comment, responsible communication, and qualified
    privilege were established. Nor do the appellants mount a direct attack on his
    finding of the defence of justification. They merely argue the trial judge
    failed to recognize Dr. Melekhovets right to commercialize his work. As we
    read his reasons, the trial judge observed that Dr. Melekhovets relied on his
    right to commercialize his work to excuse his failure to meet the shifting evidentiary
    burden to counter the respondents evidence that the paternity test was unreliable.

[24]

In his decision spanning 179 paragraphs, the
    trial judge carefully sets out his findings and the evidence that supports
    them. His reasons for decision provide no basis to regard his conduct of the
    trial in a different light. Considered together, his conduct and his reasons do
    not support a reasonable apprehension of bias against the appellants.

D.

Disposition

[25]

The appeal is dismissed. Leave to appeal costs
    is denied.

[26]

The respondents are entitled to a net costs
    order in the amount of $45,000, inclusive of disbursements and applicable tax,
    on account of the appeal. This amount reflects a reduction for their failed
    motion for leave to admit fresh evidence.

R.G. Juriansz J.A.

S.E. Pepall J.A.

B.W. Miller J.A.


