



WARNING

This
    is a case under the
Child, Youth and Family Services Act, 2017
and
    subject to subsections 87(8) and 87(9) of this legislation.
These subsections and subsection 142(3) of
the
Child,
    Youth and Services Act, 2017
, which
deals with the consequences of failure to comply, read
    as follows:

87
(8)
Prohibition re identifying
    child
 No person shall publish or make public information that has
    the effect of identifying a child who is a witness at or a participant in a
    hearing or the subject of a proceeding, or the childs parent or foster parent
    or a member of the childs family.

(9)
Prohibition
    re identifying person charged
 The court may make an order
    prohibiting the publication of information that has the effect of identifying a
    person charged with an offence under this Part.

142
(3)
Offences re publication
 A
    person who contravenes subsection 87(8) or 134(11) (publication of identifying
    information) or an order prohibiting publication made under clause 87(7)(
c
)
    or subsection 87(9), and a director, officer or employee of a corporation who
    authorizes, permits or concurs in such a contravention by the corporation, is
    guilty of an offence and on conviction is liable to a fine of not more than
    $10,000 or to imprisonment for a term of not more than three years, or to both.




COURT
    OF APPEAL FOR ONTARIO

CITATION:
J.B. v. Ontario (Child and Youth Services), 2020 ONCA 199

DATE: 20200311

DOCKET:
    C67040, C67041, C67042,
C67043, C67044 & C67045

van Rensburg, Benotto
    and Harvison Young JJ.A.

BETWEEN

J.B.

Plaintiff
    (Appellant)

and

Her Majesty the Queen
    in Right of Ontario as represented by the Minister of Child and Youth Services
    and the Minister of Health and Long-Term Care
,
Childrens Aid Society of the
    Regional Municipality of Waterloo
,
Hospital for Sick Children, Gideon Koren and Joey Gareri

Defendants (
Respondents
)

AND BETWEEN

Y.M.

Plaintiff
    (Appellant)

and

Her Majesty the Queen
    in Right of Ontario
,
The Catholic Children's Aid Society of Toronto
, The Hospital for Sick
    Children,
Child Protection Worker(s)
John Doe/Jane Doe
, Gideon Koren, Joey Gareri
Viaguard Inc., also known as Accu-Metrics,
Harvey Tenenbaum and Kyle Tsui

Defendants (
Respondents
)

AND BETWEEN

C.T.

Plaintiff (Appellant)

and

Hospital for Sick
    Children, Gideon Koren, Joey Gareri,
The Children's Aid
Society of the Regional Municipality of Waterloo
,
The Children's Aid
Society of Hamilton
,
Child Protection Worker(s) John Doe/Jane Doe
,
and
Her Majesty the Queen in Right of Ontario

Defendants (
Respondents
)

AND BETWEEN

T.W.
, K.B. and K.-L.B.

Plaintiffs (
Appellant
)

and

Her Majesty the Queen
    in Right of Ontario
,
Family Youth and Child
Services of Muskoka
, The Hospital for Sick Children, Gideon Koren,
Joey Gareri, and Marilyn Smart

Defendants (
Respondents
)

AND BETWEEN

C.R., C.H., J.H., and
    C.H.H. by his litigation guardian, C.R.

Plaintiffs (Appellants)

and

Her Majesty the Queen
    in Right of Ontario
,
Children's Aid Society of
the Regional Municipality of Waterloo
, Angela Brenner, Michael Buchnea,
    James Woodstock, The Hospital for Sick Children, Gideon Koren,
Joey Gareri, and Julia Klein

Defendants (
Respondents
)

AND BETWEEN

M.MD., D.W.
and B.W. by his
    litigation guardian M.MD.

Plaintiffs (
Appellants
)

and

The Children's Aid
    Society of the Niagara Region
,
Child Protection Worker(s) John Doe/Jane
    Doe
, The Hospital for Sick Children, Gideon Koren, Joey Gareri, and
Her
    Majesty the Queen in Right of Ontario

Defendants (
Respondents
)

Katherine Hensel and Kaelan Unrau, for the
    appellant J.B.

Julie Kirkpatrick, for the appellants Y.M.,
    C.T., T.W., C.R., and M.MD.

Jeremy Glick and Estée Garfin, for the
    respondent Her Majesty the Queen in Right of Ontario

Elizabeth Bowker and Ejona Xega for the
    respondents Childrens Aid Society of the Regional Municipality of Waterloo,
    Catholic Childrens Aid Society of Toronto, Childrens Aid Society of Hamilton,
    Family Youth Child Services of Muskoka and Child Protection Worker(s) John Doe/Jane
    Doe

Heard: December 12, 2019

On appeal from the
    judgment of Justice Darla A. Wilson of the Superior Court of Justice, dated May
    1, 2019, with reasons reported at 2019 ONSC 2734.

REASONS FOR DECISION ON MOTION FOR
    RECONSTITUTED PANEL

[1]

At the opening of oral submissions in the group of six appeals before
    this court, counsel for J.B. requested that the panel be reconstituted to
    replace Benotto J.A. The basis for the request was her involvement in this
    courts unanimous decision in
Childrens Aid Society of the Regional
    Municipality of Waterloo v. C.T.
, 2017 ONCA 931, leave to appeal refused,
    [2018] S.C.C.A. No. 51 (
Waterloo
), which reinstated the trial judges
    no access order: at para. 101.

[2]

Counsel for J.B. suggested that it would be awkward to make
    submissions to the same judge who had heard another appeal involving her client.
    Counsel did not assert actual bias, but rather the reasonable apprehension of
    bias.

[3]

We determined that no bias  actual or reasonably apprehended  could
    possibly arise and denied the request.

[4]

There is a strong presumption of judicial impartiality. A party who
    seeks to rebut this presumption bears a heavy burden. In his dissenting reasons
    in
Committee for Justice and Liberty v. Canada (National Energy Board)
, [1978]
    1 S.C.R. 369, at p. 394, de Grandpré J. articulated the test for a reasonable
    apprehension of bias, which the Supreme Court has repeatedly endorsed:

[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.

[5]

Cory J. expanded on this test, explaining that it contains a two-fold
    objective element: the person considering the alleged bias must be reasonable,
    and the apprehension of bias itself must also be reasonable in the
    circumstances of the case:
R. v. S. (R.D.)
, [1997] 3 S.C.R. 484,
    at para. 111.

[6]

The issue is whether a hypothetical observer, who is informed of all the
    facts, would believe it is more likely than not that a judicial
    decision-maker would not decide fairly:
Committee for Justice and Liberty
,
    at p. 394
.
This analysis does not engage the views or conclusions of a
    particular litigant before the court.

[7]

The issue in
Waterloo
was whether the judge below had erred in
    law in allowing J.B. and C.T.s appeal from the trial judges Crown wardship,
    no access order for their child. This court held that there were indeed legal
    errors in the appeal below and reinstated the trial judges order.

[8]

This appeal raises different legal issues. (If it did not, the matter
    would be
res judicata.
)

[9]

A reasonable observer, informed of all the facts, would not conclude
    that a judge would appear to be biased only because of her involvement in another
    case affecting the same party: see
Arsenault-Cameron v. Prince Edward Island
,
    [1999] 3 S.C.R. 851, at para. 5; see generally
Miracle v. Miracle
, 2017
    ONCA 195 and
R. v. J.L.A.
, 2009 ABCA 344, 464 A.R. 289. As this court
    held in
Miracle
, at para. 4:

A reasonable observer
    would not conclude that, because a judge has ruled against a party on a legal
    issue in one case, that judge, whether consciously or unconsciously, would
    likely be biased when deciding a different legal issue with respect to that
    same party in another case.

[10]

We agree and denied the request to reconstitute the panel.

K. van Rensburg J.A.

M.L. Benotto J.A.

A. Harvison Young J.A.


