



COURT OF APPEAL FOR ONTARIO

CITATION:
Bailey v. Barbour, 2012
    ONCA 325

DATE: 20120516

DOCKET: C55105

Juriansz, LaForme and Ducharme JJ.A.

BETWEEN

Angelina Bailey

Claimant (Appellant)

and

Gerald Harry Barbour

Objector (Respondent)

Robert J. Fenn, Richard Rohmer (O.C.) Q.C., Izaak De
    Rijcke and Patrick M. Floyd, for the appellant

Jeffrey Streisfield, for the respondent

Heard: April 18, 2012

On appeal from the judgment of Justice John R. McIsaac of
    the Superior Court of Justice dated June 24, 2011, with reasons reported at
    2011 ONSC 4019, 8 R.P.R. (5th) 76.

By the
    Court:


A.

OVERVIEW

[1]

The parties to this dispute have
    been battling for years over their respective rights to the waterfront
    properties they own on or near the shores of Georgian Bay in the township of Tiny
    in northern Simcoe County
.

[2]

The appeal to this court is from
    the decision and order of McIsaac J. released June 24, 2011. In that decision,
    the trial judge set aside the decision of Deputy Director of Titles Rosenstein,
    dated February 9, 2010, following an application by the appellant Mrs. Bailey
    pursuant to s. 46(2) of the
Land Titles Act
, R.S.O. 1990, c. L.5. In
    the proceeding under the
Land Titles Act
, the Deputy Director of
    Titles found that the objection filed by the respondent Mr. Barbour was not valid,
    and granted to Mrs. Bailey possessory title to a portion of the parcel claimed
    by Mr. Barbour, a narrow access route across the Barbour property to Mrs.
    Baileys property known as Tiny Island.

[3]

Mr. Barbours appeal from the
    decision of the Deputy Director of Titles proceeded as a trial
de novo
before McIsaac J. and consumed 19 days. However, at its very outset, the trial
    judge alerted counsel to a potential conflict of interest and asked them to
    consider whether it caused either side any difficulty. Two short recesses
    followed, after each of which counsel for Mrs. Bailey respectfully asked the
    trial judge to recuse himself. The trial judge declined the request.

[4]

On this appeal, the appellant
    raises eight issues, the first of which is whether it was appropriate and
    necessary in the interests of justice for the judge to recuse himself. We begin
    with that issue.

B.

FACTS RELEVANT TO THE ISSUE OF REASONABLE APPREHENSION OF BIAS

[5]

In raising the issue of possible
    conflict, the trial judge declared, among other things, that his wife is a real
    estate agent in Tiny Township where the properties of the parties are located,
    that she specializes in waterfront property, that she has a website titled
    Shores of Tiny, and that among the clients she has had are Heidi Lauridsen
    and Rebecca Kynoch-Rice. In the discussion with counsel that followed, the
    trial judge added that he and his wife also own waterfront property in Tiny
    Township, and have a cottage there.

[6]

Ms. Lauridsen and Ms.
    Kynoch-Rice are daughters of the late Nancy Ann K. Rice, and nieces of the late
    Rebecca Van Aller, Mrs. Rices sister. Mrs. Rice was a neighbour of the parties
    and well known to them. She too owned waterfront property, which adjoined the
    northerly border of Mr. Barbours. In 2002, she joined Mrs. Bailey as an
    objector to Mr. Barbours application under the
Boundaries Act,
R.S.O.
    1990, c. B.10, to confirm the true location of the northerly, westerly, and
    southerly boundaries of his property on the ground. Mrs. Bailey objected
    to the westerly border of Mr. Barbours property; Mrs. Rice objected to the
    northerly border.

[7]

Mrs. Rice and Mrs. Van Aller
    were the daughters of the late Dr. William G. Kynoch. In 1971, the property now
    owned by Mrs. Bailey, Tiny Island, was conveyed to Mrs. Van Aller by her mother
    in her capacity as the Executrix of Dr. Kynochs estate. In 1988, Mrs. Van
    Aller sold Tiny Island to Mr. and Mrs. Bailey.

[8]

Having disclosed his wifes
    connection to Ms. Lauridsen and Ms. Kynoch-Rice and their connection in turn to
    the property owned by the estate of Mrs. Rice, the trial judge asked counsel if
    they wanted a few minutes to discuss the matter. Only counsel for Mrs. Bailey
    expressed concern. He said that he wished to speak to his clients. With that,
    the trial judge offered the following: Okay. Well Ill just give you the names
    of [my wifes] two clients again for the record.

[9]

Even before consulting with his
    clients, however, counsel for Mrs. Bailey told the trial judge that he
    anticipated Ms. Lauridsen to be one of the witnesses in the trial. He added
    that he also anticipated statutory declarations of Mrs. Van Aller to be part of
    the record.

[10]

According to the record, both
    Mrs. Van Aller and her sister were elderly when they died.  At the time of the
Boundaries
    Act
hearing, Mrs. Van Aller was 81 years of age; her sister was 77. Mr.
    Barbour is himself today a man in his 90s. Through it all, what is clear is
    that one of the trial judges wifes clients, Ms. Lauridsen, was directly
    involved in the action as an expected witness; the other client, Ms.
    Kynoch-Rice, Ms. Lauridsens sister, also had far more than a passing interest
    in how the dispute between Mrs. Bailey and Mr. Barbour might be decided. Their
    mothers estate, after all, owns the neighbouring property and was and is
    apparently allied in interest with the appellant in this dispute.

[11]

Counsel for Mrs. Bailey pressed
    his concerns to the trial judge about the reasonable apprehension of bias,
    citing what he referred to as the multiplicity of involvements if not of the trial
    judge, then at least of the trial judges wife. He said: The apprehension on
    my clients part is that it would be virtually impossible, especially in light
    of what youve now indicated that you also own property in this locale  to not
    have information prior to today about the specific set of circumstances,
    because Tiny Island stands out.

[12]

Although the trial judge
    indicated that he had an understanding with his wife not to discuss their business
    matters at home, he acknowledged that when he was assigned as the trial judge to
    this matter he brought up the Tiny Island situation with his wife, and asked
    her if there was anything that, you know, I should know that you may be
    connected to this property. Through that discussion, presumably, he learned of
    and disclosed to counsel his wifes connection to Ms. Lauridsen and Ms.
    Kynoch-Rice.

[13]

In the end, the trial judge
    decided, over the spirited objections of Mrs. Baileys counsel, that his
    wifes involvement was merely an attenuated connection falling well short of
    the threshold justifying the request sought by Mrs. Bailey.

C.

the trial judges ruling on the recusal request

[14]

The trial judges ruling in its
    entirety was as follows:

Id like to begin this ruling with
    reference to some general principles.  A judges impartiality is presumed and a
    party seeking disqualification must establish that the circumstances justify a
    finding that the judge must be disqualified. The criterion of disqualification
    is the reasonable apprehension of bias.

The question is what would an
    informed, reasonable and right-minded person viewing the matter realistically
    and practically, and having thought the matter through, conclude. Would he or
    she think it is more likely than not that the judge, whether consciously or
    unconsciously, would not decide fairly? The standard refers to an apprehension
    based on serious grounds.  These principles come from the judgment of the
    Supreme Court of Canada in
Wewaykum Indian Band v. Canada
, [2003] 2
    S.C.R. 259.

At its highest, the applicants claim
    for disqualification is based on a general sense of unease because of the
    factors I announced earlier today in open court.  In my view, this basis falls
    well short of the threshold that justifies the order sought.  Accordingly, the
    application is dismissed.  I reserve the right to expand upon these reasons.

[15]

The trial judge did not expand
    upon his ruling, and made no further reference to it in his reasons for judgment.

D.

the applicable law

[16]

The inquiry into whether a
    conflict exists sufficient to prompt a decision-maker to recuse him or herself
    must be fact-specific. As his short oral ruling demonstrates, the trial judge
    correctly identified the test to be applied for determining whether there
    exists a reasonable apprehension of bias: What would an informed, reasonable
    and right-minded person, viewing the matter realistically and practically, and
    having thought the matter through, conclude? Would he or she think it is more
    likely than not that the judge, whether consciously or unconsciously, would not
    decide fairly?

[17]

This test was first articulated
    by 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. Ever
    since, the Supreme Court of Canada has consistently endorsed the standard,
    including in the case referred to by the trial judge,
Wewaykum Indian Band
,
    although the court has also sought from time to time to clarify and develop it.

[18]

Thus, for example, 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 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.

[19]

In addition to this high
    threshold set out by Cory J., the Supreme Court has made clear that, in those
    cases where a party seeks the recusal or disqualification of a judge,
    allegations of judicial bias will have to overcome the strong presumption of
    judicial impartiality. Moreover, in any case where the impartiality of the
    judge is in question, the appearance of the matter is just as important as the
    reality:
R. v. Bow Street Metropolitan Stipendiary Magistrate and others,
    ex parte Pinochet Ugarte (No. 2)
, [1999] 1 All E.R. 577 (H.L.), at
    p. 592.

[20]

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 put the matter this way:

[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.

[21]

This passage from Lord Denning
    M. R. in
Metropolitan Properties Co
.
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 also noted, at para. 20, that while Lord Denning M. R. used the
    phrase real likelihood,  variations in the expression such as reasonable
    apprehension, reasonable likelihood, and reasonable suspicion should not
    be regarded as involving any substantive difference in the approach to be
    taken, and indeed amount to the same standard.

E.

ANALYSIS

[22]

In this case, no one has
    suggested any actual bias on the part of the trial judge. However, as the
    Supreme Court pointed out in
Weywakum Indian Band
, at para. 66, where
    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 (emphasis in original).

[23]

Would a reasonable person
    properly informed apprehend that there was an appearance of bias overhanging
    this trial? In our view, the question cannot be answered without taking account
    of all relevant factors, including, notably, the trial judges wifes
    connections to the people and to the properties at the heart of the dispute.
    Among these connections were the following:

(a) 
    one of the trial judges wifes clients, Ms. Lauridsen, was expected to be a
    witness in the trial;

(b) 
    another of the wifes clients, Ms. Kynoch-Rice, is Ms. Lauridsens sister;

(c) 
    the sisters are the daughters of the late Mrs. Rice, whose estate owns the
    property abutting the northerly border of the respondents property;

(d) 
    Mrs. Rice joined the appellant as an objector to the respondents
Boundaries
    Act
application in 2002, and testified on the appellants behalf;

(e) 
    in the proceeding under the
Land Titles Act
, relevant evidence admitted by
Deputy Director of Titles
    Rosenstein included statutory declarations of Mrs. Rice and Mrs. Van Aller, by
    then both deceased, and a sworn affidavit of Ms. Lauridsen.

[24]

Given these facts and
    circumstances, there can be no doubt that the trial judges wifes clients have
    a great deal of knowledge about the parties to the dispute, and an obvious
    ongoing interest in the litigation and its result. In this context, it bears
    emphasis too that the trial judge spoke to his wife about, as he put it, the
    Tiny Island situation, and asked her if there was anything he should know
    about her connection to the property. Whatever her answer might have been, a
    reasonable person properly informed would only conclude that her connection to
    the property is deep and current and multi-layered.

[25]

Whenever a party takes the
    position that a reasonable apprehension of bias exists, the judge must weigh
    the submission carefully and contextually, taking account of all relevant
    circumstances. The trial judge did not follow that course in this case. Had he
    done so, he would have given greater consideration to his wifes involvement in
    the narrative, and he would not have concluded that the appellants claim for
    disqualification was based only on a general sense of unease falling well
    short of the threshold that justifies the order sought.

[26]

In our view, the appellant has
    met the high threshold necessary to establish a reasonable apprehension of
    bias. The circumstances created a reasonable apprehension of bias,
    necessitating a new trial before a different judge of the court.

F.

DISPOSITION

[27]

For the foregoing reasons, the
    appeal is allowed. In the light of this determination, it would be
    inappropriate to comment on the other issues raised in the appeal.

[28]

The order of the trial judge is
    set aside and a new trial ordered. The costs of the trial in the court below
    are in the cause. The costs of this appeal are to the appellant in the
    all-inclusive sum of $25,000.

Released: May 16, 2012 RGJ

R.G.
    Juriansz J.A.


H.S. LaForme J.A.


Ducharme J.A.


