Authorson (Litigation guardian of) v. Canada
PROCEEDING UNDER the Class Proceedings Act, 1992
Joseph Patrick Authorson, by his Litigation Guardian, Lenore
Majoros, plaintiff, and
The Attorney General of Canada, defendant
 O.J. No. 4352
 O.T.C. 998
17 C.P.C. (5th) 274
111 A.C.W.S. (3d) 1128
Court File No. 99-GD-45963
Ontario Superior Court of Justice
Heard: October 10, 2001.
Judgment: October 18, 2001.
Courts -- Judges -- Powers -- To remain seized of a matter -- Disqualification -- Bias, reasonable apprehension of bias -- Bias, arising out of expressed opinions on legal issues.
Application by the defendant Attorney General of Canada for the case management judge to recuse himself. This was a class action brought by two different groups of military veterans. The first group consisted of physically and mentally handicapped veterans whose pensions were administered by the Department of Veteran Affairs. They claimed that the Department did not pay interest on these funds. The second group consisted of the estates and beneficiaries of deceased veterans whose estates were administered by the Department. They claimed that the Department had seized the estates. At a motion on October 8, 1999, the Crown claimed that the judge told one of its lawyers that he took a dim view of its conduct. On July 6, 2001, a case management conference was held to determine if the Crown's accountants produced a report on the estimated damages in response to the plaintiffs' report. The plaintiffs produced a report that supported a claim for $1.6 billion on behalf of all living and dead disabled veterans. The Crown's report supported a claim of $46 million. It related to a very limited number of veterans who were alive. Before the conference, the plaintiffs' counsel and the court had not been aware of any difference of opinion as to the scope of the class of the applicable claimants. The Crown claimed that the judge yelled at its counsel and used improper language. The judge conceded that he forcefully reprimanded the Crown because it did not provide satisfactory explanations for the change. The Crown argued that the judge did not read the report and did not give the Crown a full and impartial hearing regarding its contents.
HELD: Application dismissed. There was nothing wrong if either party developed new and different theories of the case as it progressed. However, the Crown acted in a shocking manner when it suddenly revealed a new theory about the scope of the claimants. This created substantial problems with the management of the litigation. The case conference was not the time and place to read and consider the report or to hear submissions about its contents. These things were to be done at a formal motion to consider the quantum of damages. A reasonable, right-minded and informed person would conclude the judge was not biased against the Crown. The judge acted properly when he reprimanded the Crown. There was no permanent breakdown in previous cordial relationships between the judge and the Crown.
Raymond Colautti, for the plaintiff.
Sheila Block and Frank Cesario, for the defendant.
[Quicklaw note: A corrigendum was released by the Court February 14, 2002. The correction has been made to the text and the corrigendum is appended to this document.]
1 This motion, asking that I recuse myself as Case Managing Judge in this case was heard by me on October 10, 2001. Although the motion purports to be one asking that the action and pending motions be adjourned so they could be assigned to another judge, it was evident from the grounds set forth, namely that on the basis of alleged comments, there was a reasonable apprehension of anti-government bias which indicates a lack of impartiality; that I had prejudged an expert report by an accounting firm; that I had prejudged issues in the case; and that I had precluded defence counsel from completing submissions, violating the right to a fair and impartial hearing; that what was being sought was my recusal.
2 Counsel retained by the Attorney General, Ms. Block, gave me the courtesy of forwarding a copy of the Notice of Motion to me, and on September 27th, a telephone conference call was held with myself, Messrs. Colautti and Greeenaway and Ms. Block and others of her office to discuss the process of dealing with this motion. Ms. Block was concerned that the motion should perhaps be heard by me. I then indicated my reluctance to hear the motion and I that wished that it be dealt with by someone else. After discussion with opposing counsel, counsel agreed to approach Chief Justice LeSage. The motion as drawn was to have been to him. At the request of plaintiffs' counsel, I forwarded a transcript of the discussion (which had been recorded on consent) to all counsel and also to Chief Justice LeSage and Regional Senior Justice McDermid. In my accompanying letter, I repeated my reluctance to have to hear the motion, but raised the point that; on the basis of the wording governing case management judges under the Class Proceedings Act, the carefully reasoned decision of Associate Chief Justice Smith in R. v. Duong, 129 C.C.C. (3d) 430, and the unreported decision of the Chief Justice in R. v. Mallory & Stewart, mentioned in Duong at pg. 440; I might be required to hear the motion. Counsel appeared before the Chief Justice on October 2, and per his endorsement the motion was returned before me.
3 Plaintiffs counsel urged that an early date be found for the motion because there were pending motions in the same action scheduled before me on October 15th and the entire week of November 5th. The Windsor trial co-ordinator obliged by making October 10th available and counsel somehow assembled a documentary record, relevant case law and factums in the short time available. However, I gather, because no mention was made of it, that there was no time for cross-examination on the various affidavits filed.
4 This is a class action brought on behalf of two different, but perhaps overlapping classes. The first class is all physically and/or mentally handicapped veterans whose pensions and allowances were being administered for them by the Department of Veterans Affairs, and who did not receive any interest on the money held by the government on their behalf. This group was acknowledged throughout the litigation (at least until July of 2001) to contain thousands of veterans, most of whom are deceased, and to involve administrations stretching back to the first world war.
5 The second class is composed of the estates and beneficiaries of deceased veterans whose estates were being administered by the Department of Veterans Affairs, which estates were allegedly seized by the Government, under purported, and by the plaintiff impugned, Governmental authority.
6 Fundamentally, the first class was understood to be claiming for interest while the second class was understood to be claiming for principal.
7 A summary judgment motion had been heard by me in relation to the claims of the members of the first class, and a judgment had been given by me finding the Government liable for interest. That judgment was appealed, and in fact the appeal was heard, and a decision reserved, in the week before the argument of this motion before me.
8 No findings have yet been made yet been reached relating to the second class, although a motion for summary judgment on the claims of that class had been scheduled by me, for some time, for argument during the week of November 5th, 2001.
9 It is perhaps important to note that in relation to the first class, liability had been decided and a judgment granted, and what was left to do in relation to that class (depending of course on the decision of the Court of Appeal) was to make a determination as to the quantum of damages owed. After the appeal of the judgment had been filed, counsel for the Crown moved before Chief Justice McMurtry for a stay in the proceedings relating to damages. Chief Justice McMurtry declined to grant that stay, and the process of moving towards the damage assessment was and is ongoing.
10 This case very much involves the activities and actions of civil servants. The evidence produced as to liability dealt with the activities of countless members of the civil service, from Deputy Ministers to the lowest level of clerk. Quantification of damages was and is also a problem, at least from the Crown's side, involving great numbers of civil servants. However, no civil servant is named as a defendant in the action. The sole party against whom the claim is being made is the Attorney General of Canada, which means in effect the Government itself.
11 Class counsel, to-date, have taken the simplistic view on damages that they are prepared to rely upon the annual figures in the Nations accounts, setting out the amounts under administration for veterans, and through expert evidence postulate the figure for the total amount of interest due. Crown counsel have throughout taken the view that the individual records, or at least a significant number of them, for the various veterans have to be examined in order to put a clear and accurate picture before the Court. This involves massive difficulties because the Department of Veterans Affairs, which was once a very large department, is now considerably shrunken, its principle office has been relocated to Charlottetown, its records were to some extent scattered across the country, and the "Departmental Culture" which dictated the office practices and would indicate the meaning of some of these files, has to some extent been lost by the relocation and the retirement of staff.
12 Despite the involvement of great numbers of people, the case to date has proceeded, and is anticipated to proceed in future, on the basis of affidavits and Government documents, without viva voce evidence.
13 At the start of this action, I had advised Messrs. Colautti and Greenaway for the proposed class and Mr. Spencer, lead counsel for the Crown, that among other things in my past life I had acted for 30 years as the solicitor for a Town, where I was taking instructions from and reporting to public servants, serving with them on committees, and on behalf of that Town, interacting with the staffs of other municipalities and with the public service of several departments of the Provincial Government as well, on occasion, with those of the Federal Government. Counsel was well aware that part of the "baggage" I brought with me was that background in public law and in dealing with various levels of public services.
14 A continuing problem in the efficient management of this case has been budgetary problems and constraints facing Crown counsel. Case Conferences were held on a frequent and regular basis. At many of them, plaintiffs' counsel was pushing towards an early resolution of one issue or another, and the lead Crown counsel was complaining of a lack of staff in his own office, a lack of budgetary approvals for the seconding of clerks etc., from the Department, difficulties in obtaining funding to computerize records, and finally difficulties in obtaining authority for independent auditing input. I found myself repeatedly urging him to send the message back to Ottawa that this was a serious and substantial case, which was being pressed ahead, and that he needed the money and resources to adequately represent the position of Government. I think to some extent those messages did get back, because he advised from time to time at Case Conferences that additional staff had been retained by his office, that computerization had been provided, that clerks had been seconded to assist in searching through boxes and boxes of documents, and finally again at a Case Conference, that an independent auditing firm had been retained.
15 Plaintiffs counsel at that Case Conference, and at previous ones, had argued that the class members and their representatives were becoming concerned at the delays and did not understand what was happening. I directed that to resolve the issue, and make the resolution public, a formal motion should be brought seeking a fixed date for a damages hearing, so that the Crown could formally respond.
16 At that motion, Crown counsel filed an affidavit of Mr. Hodson, of Ernst & Young. That affidavit, Exhibit 1 to the affidavit of Peter Sengbusch, in the responding parties motion record, set out in some detail the work to be performed by himself and his accounting firm. In that affidavit he indicated the terms of engagement were to,
"Review the available financial data from 80 years of relevant Crown records in order to determine as accurately and as expeditiously as possible the amount which must be restored by the Crown to class members on account of her failure to allow a return of income on the funds administered for those class members."
17 In his affidavit he indicated that he expected, by June 30, 2001, to be able to complete a report providing the aggregate amount of administered funds annually since 1920, the aggregate entitlement based on reasonable yield and tax assumptions, and a number of other things. On the basis of that evidence, the question of setting a date for the damage hearing was put over for some 4 months, until after June 30th.
18 Following that, on my recall, in at least one Case Conference, Mr. Spencer confirmed that at great expense to the Crown, the accounting firm had two shifts of accountants working daily in Charlottetown who were moving towards producing the anticipated report.
THE JULY 6TH CASE MANAGEMENT CONFERENCE
19 This conference took place immediately following the argument in Court in relation to claims of privilege by the defence re certain documents. It may be relevant to note that, although the defence position was ably argued, the Crown was substantially unsuccessful. The Crown counsel who argued the motion, Messrs. Knights and Brucker attended in my chambers together with Messrs. Greenaway and Sengbusch representing the plaintiffs. Ms. Koller, another Crown counsel, attended by telephone. Mr. Spencer, the lead Crown counsel was unavailable. Mr. Colautti, the other plaintiffs counsel in this case, was not present. The primary purpose of the Case Conference was to find out whether the accounting firm retained by the Crown had produced a report, and if so, to schedule subsequent events such as reply materials, productions, cross-examinations etc., leading to a date for the assessment of a lump sum for damages arising from the summary judgment on liability. The proposal of plaintiffs' counsel, with which no one disagreed, had been to do an assessment in bulk of total damages, followed by some system of individual assessment of the entitlement of the various veterans or their heirs to share in that fixed amount. The first item was obviously to inquire whether the accountant's report had been prepared and sent to the plaintiffs. Mr. Knights advised that that had occurred, but then Mr. Sengbusch intervened, to advise, substantially as he indicates at Paragraph 10 of his affidavit filed, that the report was limited to reporting on claims of veterans still living, based apparently upon a new unilateral interpretation by the Crown of the meaning of the class definition in the Certification Order.
20 In my view, the implications were immediately obvious. Plaintiffs' counsel had produced a report by their expert supporting a claim of 1.6 billion dollars on behalf of all disabled veterans, living and dead, who did not receive interest. The Crown was producing a report supporting a figure of 46 million dollars relating only to the very limited number of effected veterans who were still alive. It was a classic situation of apples and oranges. Further, apparently plaintiffs' counsel, and certainly the Court, had never been advised of any difference of opinion as to a fundamental underlying assumption before months of very expensive accounting work had been undertaken by the Crown, which work might be of no assistance in advancing the resolution of the case.
21 While this seemed immediately obvious to me, it is clear that it was not obvious to Mr. Knights. His position seemed to be that if deceased veterans had a claim for interest, it would have to be raised in the estates portion of the case. He did not seem to appreciate, or be aware of the fundamental distinction that had, in my belief, been common to all counsel involved since the inception of this case - that the primary claim was for interest and the estates claim was for principal - even when put to him, substantially as reported by Ms. Koller at Paragraph 22 of her original affidavit, in the simplest terms, of taking away principal, and not giving interest. Nor did he seem to grasp that in ordinary legal parlance, the word "person" includes the heirs and estates of people who have subsequently died.
22 In the end, I asked counsel to speak directly to each other to attempt to resolve among themselves the difference in opinion as to the meaning of the class definition, and if they were unable to do so let me know I would schedule a formal motion to hear argument and interpret the wording of that definition. Counsel subsequently reported to me in a telephone Case Conference Call of July 18th, (with Mr. Spencer now speaking for the Crown) that an agreement had not been reached and so October 15th was set for an interpretation motion. In that conversation, (which was quite cordial) Mr. Spencer spoke vaguely of the differences between the two classes relating perhaps to "living" and "dead" rather than "interest" and "principal".
23 It was not until during the course of this motion that I received some inkling of where a change in Crown position may have come from. I see at Paragraph 6.4 of the accountant's report (which was not given to me at the July 5th meeting) that the accountants stated that, "It is our presumption that the status of "person" ceases on death". I see at Paragraph 24 of Mr. Spencer's affidavit that reliance is placed upon legislative language, which was not raised in previous legal arguments in this case. I expect all of this will be elucidated fully in the eventual motion to interpret class definition, which motion has had to be rescheduled due to the intervention of this motion.
24 There are discrepancies between the affidavits of Ms. Koller, Mr. Knights, and Mr. Brucker and the affidavit of Mr. Sengbusch on exactly what was said and how it was said at the Case Conference of July 6th. However, it is clear that the three Crown lawyers were upset. Ms. Koller refers to my "shouting". Mr. Sengbusch denies that I yelled or shouted, Mr. Brucker supports the recall of Ms. Koller and Mr. Knights describes it as "high volume". I suppose the perception of the volume of the speaker's voice depends in part on whether the listener is on the receiving end or is simply a spectator. In the same way, the recall of language used, and the perception of its meaning, depends upon the individual interests of the listeners. No one participating in that Conference was disinterested in the proceedings. There is a lesson to be learned - disputes over what was said, and how it was said can be avoided by having discussions at Case Conferences recorded, a practice I intend to follow in future.
25 I am prepared to accept that the tone of my questions and statements was louder, and the language used was more in the vernacular than I on reflection would have preferred, even in the relaxed informality of a Case Conference, out of the public eye. I note, however, that portion of the Conference was much shorter than the affidavits of the Crown lawyers would seem to indicate, as is shown by Ms. Koller's notes, annexed to her initial affidavit. In her notes she has from 4 to 4 1/2 pages spent discussing the implications of the Crown accountant's report followed by 7 or more pages devoted to the problems of scheduling various events, which incidentally included moving the date for the estates judgment motion from the end of August or first week in September, when the plaintiff's wanted it, to the first week in November, to accommodate the schedule of Ms. Yurka, who is to argue that motion on behalf of the Crown.
26 Ms. Block in her argument before me, referred to the principles of civility for advocates, particularly Paragraph 72, which says in part that, "... Judges will not engage in unjustified reprimands of counsel .... "This is preceded by Paragraph 71, which says that,
"Counsel are entitled to expect judges to maintain firm control of court proceedings and insure that they are conducted in an orderly, efficient and civil manner by counsel and others engaged in the process".
27 Mr. Sengbusch, at Paragraph 11 of his affidavit says of me:
"It was obvious to me that I was shocked at the Crown's unilateral decision to redefine the class, without any intervening notice to anyone".
Ms. Koller, at Paragraph 19 of her affidavit, puts it that I was "exceptionally unhappy". Mr. Colautti, in his argument for the plaintiffs, puts forth the argument of provocation - that Crown counsel brought on what was said at the July 5th meeting, and they did it by a direct breach of the undertaking contained in the Hodson affidavit, to bring before the Court material directly responsive to the plaintiff's position, which affidavit had been used to gain a 4 month delay in the case. His position is that Crown counsel properly deserved to be censured for their actions - that any reprimand received by them was fully justified.
28 This is a complex, Case Managed Case. The whole purpose of Case Management is to attempt to organize the proceedings in a case so that the various issues can be dealt with as simply and as expeditiously as may be practically possible, while fully preserving the party's rights. Case Management meetings are administrative and informal. No decisions on the ultimate issues of fact or law are made there.
29 In this case, the general scheme had been agreed to long ago - that liability, and then quantum would be dealt with on the interest issue, and similarly but separately issues of liability and quantum would be tackled on the estates issue. Fundamental to the Case Management System is that any changes in position or any problems that could impact on the scheduling or on future hearings are to be immediately brought up with opposing counsel and with the Case Management Judge. My availability was well known to counsel - I had in this case done one Case Conference from Prince Edward Island, and the last one from my cottage near Peterborough.
30 There is certainly nothing wrong with counsel on either side of the case developing new and different theories as the case goes along. This happens regularly. However, in my view what was provoking and shocking in this instance was that a new defence theory of the meaning of the class definition was apparently not revealed to the plaintiffs, but instead, during an adjournment granted to allow the defence to bring in material responsive to the plaintiffs damage position, the defence instead commissioned an obviously huge expenditure that produced numbers that would result from that new theory, if it was in fact accepted by the Court. It created an apples and oranges situation, with all of the consequent problems of sorting out the resulting mess, with no advance warning or consultation.
OCTOBER 8, 1999 MOTION
31 In addition to the July 5th, 2001 Case Conference, Ms. Block relies on a purported comment made by me to Mr. Spencer at this motion. In 1999, before any finding of liability had been made Ms. Koller's hearsay report of this in Paragraph 26 of her original affidavit was that I,
"... Advised Mr. Spencer that his client ought not to spend a great deal of time and resources searching records, but should settle the claim forthwith as there was a judge in Windsor who had taken a very dim view of the Government's conduct".
Mr. Spencer in his own affidavit, in Paragraph 7 reports that I said to him to tell his client,
... "That there was a judge down in Windsor, Ontario, who took a very dim view of the way in which the Government of Canada had treated disabled veterans."
I further purportedly said his client,
"... Should not spend a lot of time trying to dig up old papers, but rather should direct its efforts towards repairing a wrong that had been done".
Mr. Sengbusch, in Paragraph 14 of his affidavit responds by saying,
"Neither I nor my co-counsel, present at each Case Conference, ever heard such statements".
I would add that I have no recall of making such a statement. If I had ever made a statement anything like that, I would have remembered it, and I would not then have continued on with the case. In either of the versions presented by Crown counsel, such a statement would be a clear indication that defence efforts should be abandoned and a settlement pursued, and necessarily, my involvement in the case would then be finished.
32 As I indicated previously, I had on several occasions urged Mr. Spencer to get the message back to Ottawa that this was a serious case, and that the defence should be properly funded and supported. I can only assume that he somehow misheard one of those comments. If in fact he was sure he heard it, as he now says he did, and if he had taken it seriously, he would have been duty bound to have raised the issue of possible bias with me at that time, or at least before preparing for and then embarking on the defence of a lengthy motion before me for summary judgment on liability. The first I heard of it was in the affidavits filed on this motion. I was advised by Ms. Block that this allegation was not raised before the Court of Appeal, where it would have been germane to a determination of whether I had jurisdiction to grant the summary judgment being appealed. See R. v. Curragh Inc. S.C.O. 144 D.L.R. (4th) 614 at 620 -
"We accept that, in order to maintain the integrity of the Court's authority such allegations must, as a general rule, be brought forward as soon as it is reasonably possible to do so".
For the foregoing reasons, I give no further consideration to that allegation.
APPREHENSION OF BIAS
33 The classic test for apprehension of bias was that set out in Committee for Justice and Liberty v. National Energy Board  1 S.C.R. 369. This was restated and amplified in R. v. R.D.S.  3 S.C.R. 484 and is summarized in the authorized headnote to the case as follows:
"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. The test is what would an informed person, viewing the matter realistically and practically - and having thought the matter through - conclude. This test contains a twofold 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. Further the reasonable person must be an informed person, with knowledge of all the relevant circumstances, including the traditions of integrity and impartiality that form a part of the background and apprised also of the fact that impartiality is one of the duties the judges swear to uphold. ... The jurisprudence indicates that a real likelihood or probability of bias must be demonstrated and that a mere suspicion is not enough. The existence of a reasonable apprehension of bias depends entirely on the facts. The threshold for such a finding is high and the onus of demonstrating bias lies with the person who is alleging its existence".
34 The various parts of this test have been expanded upon judicially in R. v. R.D.S. and in other cases.
35 In R. v. R.D.S. Cory J. at pg. 533 stated that,
"Courts have rightly recognized that there is a presumption the judges will carry out their oath of office".
36 Further, at pg. 533 and 534, Cory J. continued as follows:
"The requirement for neutrality does not require judges to discount the very life experiences that may so well qualify them to preside over disputes. It has been observed that the duty to be impartial does not mean that a Judge does not, or cannot bring to the bench many existing sympathies antipathies or attitudes. There is no human being who is not the product of every social experience, every process of education, and every human contact with those with whom we share the planet. Indeed, even if it were possible, a judge free of his heritage of past experience would probably lack the very qualities of humanity required of a judge. Rather the wisdom required of a judge is to recognize, consciously allow for, and perhaps to question, all of the baggage of past attitudes and sympathies that fellow citizens are free to carry, untested, to the grave.
True impartiality does not require that the Judge have no sympathies or opinions; it requires that the judge nevertheless be free to entertain and act upon different points of view with an open mind".
37 Cory J. at pg. 528 distinguishes between impartiality and bias as follows:
"... Impartiality can be described - perhaps somewhat in-exactly - as a state of mind in which the adjudicator is disinterested in the outcome, and is open to persuasion by the evidence and submissions.
In contrast, bias denotes a state of mind that is in some way predisposed to a particular result, or that is closed with regard to particular issues".
38 In Marchand (Litigation Guardian of) v. Public, (2000), 51 O.R. (3d) 97 (C.A.),  O.J. No. 4428, the Court in Paragraph 131 of the Quicklaw version at Item 7 said the following:
"The threshold for a finding of actual or apprehended bias is high. Courts presume that judges will carry out their oath of office. Thus, to make out an allegation of judicial bias requires cogent evidence. Suspicion is not enough. The threshold is high because a finding of bias calls into question not just the personal integrity of the judge but the integrity of the entire administration of justice".
39 The characteristics of the "observer" in the classic test were expounded upon in the minority decision in R. v. R.D.S. supra, at Paragraph 36 of the Quicklaw version as follows:
"The presence or absence of an apprehension of bias is evaluated through the eyes of the reasonable, informed, practical and realistic person who considers the matter in some detail .... The person postulated is not a "very sensitive or scrupulous" person, but rather a right minded person familiar with the circumstances of the case".
40 In G.W.L. Properties Ltd. v. W.R. Grace & Co. of Canada Ltd.,  B.C.J. No. 2828 (C.A.) McEachern, C.J.B.C. at Paragraph 18 observed that:
"Reasonable apprehension of bias does not exist just in the subjective views of a litigant".
41 The case law on reasonable apprehension of bias developed in relation to trials where the decision-maker was in the process of reaching decisions on the issues of law and fact in the case. The informed viewer would presumably be the imagined spectator at a public trial, where the old maxim, that justice must not only be done but seem to be done, would apply.
42 A case conference is not a trial. It is not a motion. It is not a hearing for the determination of any question of law or fact in the case. It is an administrative meeting held in private, to deal with minor interlocutory matters and administrative details relating to advancing the case, principally the scheduling of future events, leading to eventual motions or trials where the issues could be formally adjudicated. Counsel did locate, and directed me to two decisions in which the question of apprehension of bias in relation to case management proceedings was adjudicated upon.
43 Mitsui & Co. (Point Aconi) Ltd. v. Jones Power Co.  N.S.J. No. 271 (C.A.) was a situation where a Case Management Judge predetermined the interpretation of a disputed memorandum of understanding, and refused to allow counsel to further argue the question of its interpretation, despite not having heard full argument on that point by the counsel who wanted to argue that issue. That certainly is not the situation in this case. The conclusion on the contentious issue at the Case Management Conference in this case was to direct counsel to discuss the matter with each other, and if they could not reach a resolution, to schedule a time with me for full argument, which scheduling in fact was later done.
44 The other case referred to was G.W.L. Properties Ltd. v. W.R. Grace & Co. of Canada Ltd., supra. In that case, Chief Justice McEachern, in addition to the comment quoted above, said at Paragraph 13 that the Court is not permitted,
"To yield to every angry objection that is voiced about the conduct of litigation. We hear so much angry objection these days that we must be careful to insure that important rights are not sacrificed merely to satisfy the anxiety of those who seek to have their own way at any cost or at any price".
He said at Paragraph 18, among other factors to be taken into account in considering whether a Case Management Judge should be removed are,
"... The great waste and inconvenience which will arise by reason of the knowledge and familiarity of the pre-trial management judge being wasted; ... and importantly in this particular application, the fact that the judge is only dealing with management and interlocutory applications rather than the trial itself".
45 Ms. Block in her Factum and in oral argument argued that I had dismissed the defendants expert's report without reading it, and I did not give Crown counsel a full and impartial hearing as to his position on the contents of the report. With respect, as the foregoing I hope amply indicates, the Case Conference was not the time and place to read and consider the expert's report, or to hear submissions on its contents. These were things to be done at a formal motion to consider the quantum of damages. The issue at the Conference was instead whether the Government had obtained, as previously promised, a comprehensive report responding to the figures in the plaintiffs' report, and if not, why not, and then what to do about it.
46 Mr. Colautti in his submissions, argued that the timing of this motion was suspicious, in that although it related to events in early July, it was not filed until late September, just before the hearing of the appeal in this case and shortly before the fixed dates for two important motions, on which the Crown had not filed responding material. The argument was that the real purpose of this motion was to further delay the case, and to in effect obtain the stay which had been refused by Chief Justice McMurtry. This was emphatically denied by Ms. Block who advised that the Crown counsel had in fact prepared responding material for the upcoming motions. I accept Ms. Block's submissions on that point, and give no weight to that allegation.
47 I have, as Ms. Block urged, and the case law above quoted requires, considered how the Case Conference of July 6th would appear to a reasonable, right minded and informed person, with knowledge of all the relevant circumstances; and considered whether such a person would conclude, past the high threshold required, that a real likelihood or probability of bias against the Government of Canada had been demonstrated.
48 My conclusion is that such a person would have seen a judge, in an informal, private administrative meeting, obviously upset by the news that first, defence counsel had not complied with the terms of an undertaking given to gain a 4 month adjournment, and second, they had failed to tell opposing counsel and the judge of a new defence theory, that was bound to impact seriously on the scheduling of events in the lawsuit. That person would have seen the judge loudly and vigorously questioning the defence counsel present, and on not receiving satisfactory explanations for the egregious breaches, bluntly and forcefully reprimanding the defence team, and then moving on to deal with other administrative matters, including even granting a timing concession in favour of defence counsel.
49 My further conclusion is that such person would conclude that the judge was, for a short time, upset with, or perhaps even mad at defence counsel, but given the knowledge of the many dealings before, and the Case Conference after, would not conclude that he/she had witnessed any permanent breakdown in previous cordial relationships.
50 My final conclusion is that such person would not even connect this incident with the defendant, the Government of Canada, let alone conclude from it that the judge was likely, or even that there was a probability, that the judge would disregard his oath to be free to entertain and act upon different points of view with an open mind in the lawsuit, and instead was predisposed against the Government or closed to defence positions, not yet put forth. That person, who by definition would be informed of the past history of the lawsuit, including the detailed reasons given for rulings on fact and law to-date, would, in my view, if asked to consider whether he/she was apprehensive that the judge was biased against the Government of Canada say that there was no air of reality to the question.
51 I deny the motion seeking my recusal. I see no practical or personal difficulty in continuing to act as the Case Management Judge in this action and am prepared to do so.
52 I would ask counsel to arrange with the co-ordinator for a time within the next 30 days to make submissions to me, in person or by Conference Call, on the issue of costs in this motion, including the fixing thereof.
* * * * *
Released: February 14, 2002
... As you will recall the reason for the resubmission is that counsel for the defendant (the Attorney General) requested that junior counsel Mr. Frank Cesario be added as counsel appearing on behalf of the defendant. ...